Article II, Section 2, Clause 2:

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The Appointments Clause requires that “Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States” be appointed by the President subject to the advice and consent of the Senate, although Congress may vest the appointment of “inferior” officers “in the President alone, in the Courts of Law, or in the Heads of Departments.” 1 The Supreme Court has interpreted these requirements as distinguishing between two types of officers: (1) “principal” officers who must be appointed by the President and confirmed by the Senate to their position, and (2) “inferior” officers, whose appointment Congress may place with the President, judiciary, or department heads.2

, 116 Stat. 81. These constitutional provisions are instrumental in ensuring the separation of powers, as the Framers of the Constitution deliberately separated Congress’s power to create offices in the federal government from the President’s authority to nominate officers to fill those positions.3 At the same time, placing the power to appoint principal officers with the President alone ensures a measure of accountability for his choices in staffing important government positions.4

While the Constitution specifies that certain persons, such as Supreme Court Justices, qualify as “Officers of the United States,” the Appointments Clause does not specify all persons who fall under its purview. Thus, the Appointments Clause’s reach and scope has been disputed. In the 1976 case of Buckley v. Valeo, the Supreme Court explained that whether an individual wields “significant authority” informs the assessment of whether that person is an officer, but the Court has not significantly elaborated on this test since that decision.5 Likewise, determining the difference between “principal” and “inferior” officers has generated controversy. Examining the history of the appointment power in the United States and the treatment of the Appointments Clause by the Supreme Court can shed light on the structural makeup of the federal government and the balancing of power between the branches.

Footnotes

1

U.S. Const. art. II, § 2, cl. 2.

2

Buckley v. Valeo, 424 U.S. 1, 132 (1976) (per curiam) ( “Principal officers are selected by the President with the advice and consent of the Senate. Inferior officers Congress may allow to be appointed by the President alone, by the heads of departments, or by the Judiciary.” ), superseded by statute, Bipartisan Campaign Reform Act of 2002, Pub. L. No.

107-155

, 116 Stat. 81.

3

See ArtII.S2.C2.3.2 Historical Background on Appointments Clause.

4

See ArtII.S2.C2.3.2 Historical Background on Appointments Clause.

5

Buckley, 424 U.S. at 126.