Article 2, Section 2, Clause 2 — Historical Background On Appointments Clause

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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 deliberations at the Constitutional Convention in Philadelphia, major writings of the prominent supporters of ratification,[1](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/historical-background-on-appointments-clause#fn1art2 " See The Federalist Papers. ") and the words and records of the state ratifiers of the federal Constitution reveal careful consideration about the proper method of appointment for federal offices. The delegates to the Constitutional Convention, in designing a system of appointments for federal government offices, drew on “their experiences with two flawed methods of appointment.” [2](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/historical-background-on-appointments-clause#fn2art2 " Weiss v. United States, 510 U.S. 163, 184 (1994) (Souter, J., concurring). ")

First, the colonists who lived during the American Revolution resented the often unilateral power of the English Crown and the royal governors in the colonies to create and fill government offices.[3](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/historical-background-on-appointments-clause#fn3art2 " See Gordon Wood, The Creation of The American Republic, 1776–1787, at 143–48 (1969); Freytag v. Comm’r, 501 U.S. 868, 883–84 (1991); Edward Corwin, The President: Office and Powers 1787–1957, at 69–70 (4th ed. 1957); Saikrishna B. Prakash, Imperial From the Beginning 171 (2015). ") The “manipulation of official appointments” —generally achieved by creating and filling the key offices of government with political favorites, who were in turn dependent on the entity who appointed them—was “one of the American revolutionary generation’s greatest grievances against executive power.” [4](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/historical-background-on-appointments-clause#fn4art2 " Freytag, 501 U.S. at 883 (quoting Wood, supra note 3, at 79). ")

Second, many early state constitutions, adopted after the Declaration of Independence was written, reacted to the perceived abuses of the appointment power by the Crown and royal governors by lodging the power to appoint officials with the state legislature alone.[5](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/historical-background-on-appointments-clause#fn5art2 " Wood, supra note 3, at 143–50; Michael J. Gerhardt, The Federal Appointments Process 16–20 (2003). See, e.g., Va. Const. (1776). Some state constitutions provided that the appointment power was shared between the governor and state assembly. Wood, supra note 3, at 148–50; Gerhardt, supra, at 17–20. ") But placing the appointment power with state representative assemblies also caused considerable turmoil.[6](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/historical-background-on-appointments-clause#fn6art2 " See Wood, supra note 3, at 407; Freytag, 501 U.S. at 903–07 (Scalia, J., concurring in part and concurring in the judgment); Weiss v. United States, 510 U.S. 163, 184 (1994) (Souter, J., concurring). ") Those legislatures were seen as consolidating all governmental power—executive, judicial, and legislative—for themselves.[7](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/historical-background-on-appointments-clause#fn7art2 " Wood, supra note 3, at 407. ") This consolidation of power “had become the principal source of division and faction in the states.” [8](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/historical-background-on-appointments-clause#fn8art2 " Wood, supra note 3, at 407. ") At least in the views of many delegates to the Constitutional Convention, the failure to give governors a stronger role in the appointment process was damaging to many state governments whose legislatures “had fallen easy prey to demagogues, provincialism, and factions” in their exercise of appointments.[9](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/historical-background-on-appointments-clause#fn9art2 " See Gerhardt, supra note 5, at 18. ") Likewise, the Articles of Confederation—which provided the governing framework for the young Republic before the adoption of the federal Constitution—authorized the Continental Congress to appoint officers.[10](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/historical-background-on-appointments-clause#fn10art2 " Articles of Confederation of 1781, art. IX, para. 5 ( “The united states in congress assembled shall have authority . . . to appoint such . . . civil officers as may be necessary for managing the general affairs of the united states under their direction . . . .” ). ")

The delegates to the Constitutional Convention at Philadelphia were aware of the weaknesses of these models of appointment, and thus chose instead to separate “the power to create federal offices . . . from the power to fill them.” [11](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/historical-background-on-appointments-clause#fn11art2 " Weiss, 510 U.S. at 184 (Souter, J., concurring); see Myers v. United States, 272 U.S. 52, 111 (1926). ") They chose to vest Congress with the legislative power, including the authority to create federal offices, while the power “to appoint the most important officers” was placed with the single-person President, subject to confirmation by the Senate.[12](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/historical-background-on-appointments-clause#fn12art2 " Weiss, 510 U.S. at 184 (Souter, J., concurring). ") Separating the power to create offices from the authority to appoint officers would, in the words of James Madison, provide “[o]ne of the best securities against the creation of unnecessary offices or tyrannical powers.” [13](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/historical-background-on-appointments-clause#fn13art2 " Madison’s Observations on Jefferson’s Draft of a Constitution for Virginia (1788), reprinted in 6 Papers of Thomas Jefferson 308, 311 (J. Boyd ed., 1952). ")

At the Constitutional Convention, an early general consensus emerged among the delegates that the chief executive should play a more prominent role in the appointment of officers whose method of appointment was “not otherwise provided for” specifically in the Constitution.[14](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/historical-background-on-appointments-clause#fn14art2 " 1 The Records Of The Federal Convention Of 1787, at 67 (Max Farrand ed., 1966). See Joseph P. Harris, The Advice and Consent of the Senate 18 (1953). During the proceedings, the Convention adopted a motion to authorize judges to be appointed by the Senate, but ultimately rejected this framework in favor of Presidential appointment of all principal officers. Id. at 19. ") The delegates also debated where the power of appointment should be vested for a number of federal offices, including ambassadors, judges (including judges on the Supreme Court), as well as a treasurer.[15](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/historical-background-on-appointments-clause#fn15art2 " See Harris, supra note 14, at 19–24; Gerhardt, supra note 5, at 16–23. ") Some argued that placing the appointment power with the legislature would result in factional disputes and partisanship; others that granting such authority to the Executive would tend too much towards a monarchical system of government.[16](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/historical-background-on-appointments-clause#fn16art2 " Gerhardt, supra note 5, at 16–23. ") The compromise that was eventually reached authorized the President to appoint high-level officers in the federal government, including certain postions named explicitly, as well as “all other officers” not mentioned, subject to Senate confirmation.[17](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/historical-background-on-appointments-clause#fn17art2 " See Weiss, 510 U.S. at 184 (Souter, J., concurring) ( “With error and overcorrection behind them, the Framers came to appreciate the necessity of separating at least to some degree the power to create federal offices (a power they assumed would belong to Congress) from the power to fill them, and they came to see good reason for placing the initiative to appoint the most important federal officers in the single-person presidency, not the multimember Legislature.” ); see to . ") This arrangement avoided the potential weaknesses of a legislative body making appointments, but preserved a check on the excesses of the Executive by preventing the President from making appointments unilaterally.[18](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/historical-background-on-appointments-clause#fn18art2 " See Weiss, 510 U.S. at 184–85 (Souter, J., concurring). See The Federalist No. 76 (Alexander Hamilton); 3 Joseph Story, Commentaries on the Constitution of the United States §§ 1522–1525 (1833). ") Congress was also permitted to place the appointment of “inferior” officers with “the President alone, in the courts of law, or in the Heads of Departments.” [19](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/historical-background-on-appointments-clause#fn19art2 " U.S. Const. art. II, § 2, cl. 2. ")

The Framers’ decision to place the power to appoint principal officers with the President ensures accountability for his choices.[20](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/historical-background-on-appointments-clause#fn20art2 " See 1 The Records of the Federal Convention of 1787, at 70 (Max Farrand ed., 1911) [hereinafter Farrand’s Records] (Mr. Wilson: “If appointments of Officers are made by a sing. Ex he is responsible for the propriety of the same. [N]ot so where the Executive is numerous.” ); Id. at 42 ( “As the Executive will be responsible in point of character at least, . . . he will be careful to look through all the States for proper characters.” ) (statement of