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 appointment of principal officers of the United States consists of three steps.1 First, the President nominates an individual to an office; second, the Senate decides whether to confirm that person to the office; 2 and third, the President commissions the officer to the post.3 The Supreme Court has made clear that compliance with the procedures established in the Constitution for the appointment of officers, both principal and inferior, is not a mere formality. Indeed, the Court has sometimes invalidated actions taken by individuals whose selection conflicts with the requirements of the Appointments Clause and has severed provisions of statutes that violate those constraints.4

, 116 Stat. 81. But see United States v. Arthrex, Inc., No. 19-1434, slip op. at 23 (U.S. June 21, 2021) (plurality opinion) ( “Because the source of the constitutional violation is the restraint on the review authority of the Director, rather than the appointment of APJs by the Secretary, Arthrex is not entitled to a hearing before a new panel of APJs.” ).

As an initial matter, Senate confirmation of an individual nominated to an office is insufficient to vest an individual with an appointment to that office absent a final act of appointment by the President.5 In other words, the President retains discretion not to appoint an individual even after Senate confirmation.6 In the seminal Supreme Court case of Marbury v. Madison, the Supreme Court held that the relevant final act of appointment for principal officers is the signing of a commission by the President, which is expressly required by Article II, Section 3 of the Constitution.7

The controversy in Marbury arose when President Thomas Jefferson ordered his Secretary of State, James Madison, not to deliver a commission to William Marbury, even though his predecessor, President John Adams, had already signed the commission.8 Marbury filed suit seeking a writ of mandamus to compel Madison to deliver the commission.9 The Court, in an opinion by Chief Justice John Marshall, ultimately held that it lacked jurisdiction to issue mandamus because the statute authorizing the Court to do so violated Article III by improperly expanding the original jurisdiction of the Supreme Court.10 Before reaching this conclusion, however, the Court ruled that Marbury did have a right to the commission because it had been signed by the President, thereby becoming “conclusive evidence” of Marbury’s appointment.11 Justice John Marshall reasoned that an appointment is complete once the “last act” required of the appointing authority is completed.12 Because the last act required of the President, as the relevant appointing authority, was the signing of the commission, Marbury’s appointment was completed when the President signed the commission.13

Footnotes

1

United States v. Le Baron, 60 U.S. 73, 78 (1856) ( “When a person has been nominated to an office by the President, confirmed by the Senate, and his commission has been signed by the President, and the seal of the United States affixed thereto, his appointment to that office is complete.” ). The appointment of inferior officers, by contrast, may be vested in the President alone, the courts of law, or the heads of departments. U.S. Const. art. II, § 2, cl. 2.

2

U.S. Const. art. II, § 2, cl. 2. See also United States v. Smith, 286 U.S. 6, 30–49 (1932) (concluding that the Senate’s rules did not authorize that body to revoke a previously-given confirmation).

3

U.S. Const. art. II, § 3. See Quackenbush v. United States, 177 U.S. 20, 27 (1900) ( “The appointment and the commission are distinct acts . . . .” ); Appointment of a Senate-Confirmed Nominee, 23 Op. O.L.C. 232, 232 (1999).

4

See Ryder v. United States, 515 U.S. 177, 182–83 (1995) ( “We think that one who makes a timely challenge to the constitutional validity of the appointment of an officer who adjudicates his case is entitled to a decision on the merits of the question and whatever relief may be appropriate if a violation indeed occurred.” ); Buckley v. Valeo, 424 U.S. 1, 140 (1976) (per curiam) (invalidating sections of the Federal Election Campaign Act that violated the Appointments Clause), superseded by statute, Bipartisan Campaign Reform Act of 2002, Pub. L. No.

107-155

, 116 Stat. 81. But see United States v. Arthrex, Inc., No. 19-1434, slip op. at 23 (U.S. June 21, 2021) (plurality opinion) ( “Because the source of the constitutional violation is the restraint on the review authority of the Director, rather than the appointment of APJs by the Secretary, Arthrex is not entitled to a hearing before a new panel of APJs.” ).

5

Marbury v. Madison, 5 U.S. (1 Cranch) 137, 157 (1803) ( “The last act to be done by the President, is the signature of the commission. He has then acted on the advice and consent of the senate to his own nomination. The time for deliberation has then passed. He has decided. His judgment, on the advice and consent of the senate concurring with his nomination, has been made, and the officer is appointed.” ); D’Arco v. United States, 441 F.2d 1173, 1175 (Ct. Cl. 1971) ( “Chief Justice Marshall’s reasoning teaches that, even if the office had been for a term of years, like Marbury’s, the executive could still refuse to complete the appointment, after Senate confirmation, by failing to prepare or sign the commission.” ); Appointment of a Senate-Confirmed Nominee, 23 Op. O.L.C. 232, 232–34 (1999).

6

D’Arco, 441 F.2d at 1175; Appointment of a Senate-Confirmed Nominee, 23 Op. O.L.C. 232, 232–34 (1999).

7

Marbury, 5 U.S. (1 Cranch) at 162. See also U.S. Const. art. II, § 3 (stating that the President “shall Commission all the Officers of the United States” ).

8

See Marbury, 5 U.S (1 Cranch) at 153–55.

9

Id. at 153–54.

10

Id. at 176–80.

11

Id. at 158, 162.

12

Id. at 157.

13

See United States v. Le Baron, 60 U.S. 73, 78 (1856) ( “The transmission of the commission to the officer is not essential to his investiture of the office. If, by any inadvertence or accident, it should fail to reach him, his possession of the office is as lawful as if it were in his custody.” ).