The Appointments Clause

The President . . . 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. . . .

—John O. McGinnis

Introduction

The Appointments Clause contemplates three sequential acts for the appointment of principal officers: nomination by the President, advice and consent of the Senate, and appointment of the officer by the President. The requirements of this provision apply to principal officers but not to inferior officers. (See Essay No. 108.) Although the Senate must confirm principal officers, including ambassadors and Supreme Court justices, Congress may still require that any inferior officer whose office is “established by Law” also be confirmed by the Senate. The principal concern of the Framers regarding the Appointments Clause, as in many of the Constitution’s other separation-of-powers provision, was to ensure accountability while avoiding tyranny.¹

There are several important questions with respect to principal officers and their confirmation: (1) Does the President have plenary power of nomination, or does the Constitution limit this power by requiring the President to seek pre-nomination “advice” from the Senate? (2) Must the President nominate only those who meet qualifications set by Congress? (3) Does the Senate have plenary power to reject nominees, or is that power circumscribed by some standard? Both the debates among the Framers and subsequent practice confirm that the President has plenary power to nominate; Congress has imposed some (but not absolute) qualifications on nominees; and the Senate has exercised an absolute power to reject nominees for any reason.

History Before 1787

The English monarch had unilateral authority to appoint colonial officers. Alexander Hamilton would charge in Federalist No. 69 that “The king of Great Britain . . . not only appoints to all offices, but can create offices.” The Declaration of Independence charged that the Crown had “erected a multitude of New Offices, and sent hither swarms of Officers to harass our people, and eat out their substance.”² The U.S. Supreme Court would observe that “‘the [King’s] power of appointment to offices’ was deemed ‘the most insidious and powerful weapon of eighteenth century despotism’” by “the American revolutionary generation[].”³

The Founders responded to this experience by vesting the appointment power in their state legislatures. The Virginia constitution of 1776 authorized the legislature to appoint the Attorney General, the Treasurer, and some judges.⁴ Other states, like Massachusetts, gave the governor a limited appointment power. Under the New York constitution of 1777, appointments were made by the governor, subject to approval by a council of members of the legislature.⁵ The Massachusetts constitution of 1780, written by John Adams, gave the governor somewhat greater power: “All judicial officers, the Attorney-General, the Solicitor-General, all Sheriffs, Coroners, and Registers of Probate, shall be nominated and appointed by the Governor, by and with the advice and consent of the Council,”⁶ the members of which were appointed by the governor. This provision resembled language from the 1691 Charter of Massachusetts Bay.⁷

Under the Articles of Confederation, Congress was a unicameral body, and each state would appoint delegates to that body.⁸ The Articles Congress had the power to appoint “civil officers as may be necessary for managing the general affairs of the United States under their direction”⁹ and the power to “appoint[] all officers of the land forces in the service of the United States, excepting regimental officers.”¹⁰ Congress could also appoint judges to decide cases concerning piracies, felonies on the high seas, and captures.¹¹

The Constitutional Convention

In the final version of the Constitution, Congress would not have the power to make appointments to the executive and judicial branches. However, earlier in the Convention, under the Virginia Plan, the “National Legislature” would appoint judges, and the “National Executive” would appoint “executive branch officers.”¹²

On July 17, 1787, the Committee of the Whole modified what would become the Appointments Clause.¹³ The new text provided that the “National Executive” would have the power “to appoint to offices in cases not otherwise provided for.”¹⁴ The legislature could appoint offices otherwise provided, including judges, as well as the Treasurer.¹⁵

On July 18, the Convention debated whether the legislature should appoint judges.¹⁶ Nathaniel Gorham of Massachusetts thought that the legislature was “too numerous, and too little personally responsible, to ensure a good choice.”¹⁷ He suggested that “Judges be appointed by the Executive with the advice & consent of” the Senate. “Advice and consent” suggests a simple majority vote. Gorham explained that this was “the mode prescribed by the [Massachusetts] constitution” and had been “found to answer perfectly well.”¹⁸ His comparison was not entirely apt, however, as the council that provided the governor with advice and consent was part of the executive branch. James Wilson and Gouverneur Morris of Pennsylvania supported Gorham’s proposal.

Luther Martin of Maryland opposed the proposal, believing that the Senate, “being taken from all the States” would “be best informed of characters & most capable of making a fit choice.”¹⁹ Roger Sherman of Connecticut added that it “would be less easy for candidates to intrigue with [the Senate], than with the Executive Magistrate.”²⁰ Gorham responded that “the Executive will be responsible in point of character at least, for a judicious and faithful discharge of his trust” and “will be careful to look through all the States for proper characters.”²¹ James Madison of Virginia suggested “that the Judges might be appointed by the Executives with the concurrence of” at least one-third of the Senate.²² This approach would “unite the advantage of responsibility in the Executive with the security afforded in the” Senate against “any incautious or corrupt nomination by the Executive.”²³

After this debate concluded, the Convention voted on whether to move the appointment of judges to the executive instead of the Senate. This proposal was defeated by a vote of 6 to 2, supported only by Massachusetts and Pennsylvania.²⁴ Gorham then proposed “that the Judges be nominated and appointed by the Executive, by & with the advice & consent of the [Senate].”²⁵ He explained that this mode had been ratified by the experience of 140 years in Massachusetts.”²⁶ Gorham’s proposal failed by a vote of 4 to 4.

The Convention would later adopt Gorham’s proposal. On September 4, 1787, the Committee of Eleven moved the power to appoint judges from Congress to the President in conjunction with Senate advice and consent.²⁷ The draft now provided, “The President . . . shall nominate and by and with the advice and consent of the Senate shall appoint Ambassadors and other public Ministers, Judges of the supreme Court, and all other officers of the U.S. whose appointments are not otherwise herein provided for.”²⁸ It appears that with this revision, “officers of the U.S.” was added to the Appointments Clause.²⁹ Ten days later, on September 14, John Rutledge of South Carolina moved to strike out Congress’s power to appoint the Treasurer.³⁰ That officer, Rutledge explained, should be “appointed in the same manner with other officers” —that is, by the President.³¹ The motion was approved by a vote of 8 to 3.³² The appointment of all “officers of the United States” was provided for in what would become Article II, Section 2.³³

The initiative of choice would be the President’s responsibility, but it was checked by advice and consent to forestall the possibility of abuse of this power. Morris described the advantages of this multistage process: “As the President was to nominate, there would be responsibility, and as the Senate was to concur, there would be security.”³⁴

Before the end of the Convention, the delegates made two final alterations in the Appointments Clause: A comma was added between “all other officers of the U.S.” and “whose appointments,” and an additional clause (“and which shall be established by Law”) was added at the end. This clause refers to appointed offices that were created through bicameralism and presentment.³⁵

The adopted text is an overly long single sentence, and its structure is grammatically complex. Chief Justice John Marshall would observe, “I feel no diminution of reverence for the framers of this sacred instrument, when I say that some ambiguity of expression has found its way into this clause.”³⁶

The Ratification Debates

In Federalist No. 76, Hamilton answered critics who would have preferred the whole power of appointment to be lodged in the President. Under the Constitution, the President had the sole power of nomination, but the Senate had to consent to the nominee’s appointment. Hamilton asserted that the President’s nomination power assured sufficient accountability and that an “absolute power of appointment in the hands of that officer [should] be avoided.” The President’s “judgment alone would be exercised” with the “act of nomination.” Hamilton added that the Senate’s role “would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters.”

The Federalists also argued that the Constitution would avoid an appointment that was the result of secret deals.³⁷ In Federalist No. 77, Hamilton contrasted the appointments process under the federal Constitution with New York’s multi-member appointment council. He argued that such a council acting in secret would be “a conclave in which cabal and intrigue will have their full scope” and warned that “the desire of mutual gratification will beget a scandalous bartering of votes and bargaining for places.”

The Senate was not understood to have any formal pre-nomination advisory role. Such a role might lead Senate leaders and the President to make a deal that would serve their parochial interests and then be insulated from all but pro forma scrutiny.38 At the North Carolina ratification convention, James Iredell observed that “[a]s to offices, the Senate has no other influence but a restraint on improper appointments.” The future Supreme Court justice said that if the Senate thinks the President’s nominee is “improper, the President must nominate another, whose appointment ultimately again depends upon the Senate.”³⁸

The President’s Exclusive Power of Nomination

The practice of the first President and Senate support the construction of the Appointments Clause that reserves the act of nomination exclusively to the President. In June 1789, President George Washington requested confirmation of his first nominee to be the charge d’affaires at the French embassy: “I nominate William Short, Esquire, and request your advice on the propriety of appointing him.”³⁹ Two days later, the Senate notified the President of Short’s confirmation: “Resolved, that the President of the United States be informed, that the Senate advise and consent to his appointment of William Short Esquire. . . .”41 The Senate regarded “advice” as a post-nomination rather than a pre-nomination function.

Washington wrote in his diary that Thomas Jefferson and John Jay agreed with him that the Senate’s powers “extend no farther than to an approbation or disapprobation of the person nominated by the President, all the rest being Executive and vested in the President by the Constitution.”⁴⁰ Washington’s construction of the Appointments Clause has been embraced by his successors and confirmed by Marbury v. Madison (1803), Justice Joseph Story’s Commentaries on the Constitution, and modern Supreme Court precedent.⁴¹

Nevertheless, there is some role for consultation between the President and the Senate. The Congressional Research Service has observed that “U.S. Senators of the state in which the judicial districts are located” identify candidates for district court positions according to a “well-established custom” that stretches back to the “early 19th Century.”⁴² Also, Presidents at times have made deals with Congress about appointments. The disputed election of 1800 was purportedly settled after Thomas Jefferson promised to keep in place the holdover tax collector in the port of Wilmington, Delaware.⁴³ Presidents have consulted with Senators out of comity or political prudence and never with the understanding that they were constitutionally obliged to do so, and modern Presidents have rejected any notion that the Senate has a duty to provide “advice” about a potential nominee before a nomination is made.⁴⁴

Congress’s Powers over Presidential Nominees

Congress has often used its powers under the Necessary and Proper Clause to establish qualifications for those who can serve in the offices it has created, thereby limiting the range of those the President can nominate.⁴⁵ For example, the Solicitor General must be “learned in the law.”⁴⁶ But Congress may not give itself or its presiding officers the power to make appointments of “officers of the United States.” Buckley v. Valeo (1976) held that the Speaker of the House and the Senate President Pro Tempore lacked the power to appoint officers to the Federal Election Commission.⁴⁷

A new appointment is not necessary if Congress expands the duties of an office after the initial appointment takes place. Weiss v. United States (1994) held that military officers who served as judges in courts-martial did not need a separate act of appointment and Senate approval.⁴⁸ The Supreme Court declared that serving as military judge was not “so different” from the duties of a military officer that a separate appointment was necessary. In fact, it went so far as to say that being a military judge was “germane” to the duties of a military officer at the time of the original appointment.

It is unclear how many qualifications Congress can impose for principal officers without contravening the Framers’ interest in assuring the President’s accountability for the initial choice. In Myers v. United States (1926), Chief Justice William Howard Taft declared that the qualifications set by Congress may not “so limit selection and so trench upon executive choice as to be in effect legislative designation.”⁴⁹ In Public Citizen v. U.S. Department of Justice (1989), Justice Anthony M. Kennedy, concurring, opined that the President’s appointing power was exclusive and that the Ineligibility Clause is “the sole limitation on the President’s power to nominate these officers.”52 The Supreme Court has not yet resolved this issue.

The Senate’s Power to Reject Nominees

The Senate has independent constitutional authority to refuse to confirm a nominee for any reason. The Framers located the process of advice and consent in the Senate as a check to prevent the President from appointing people who have unsound principles as well as blemished characters and checkered histories.⁵⁰ Hamilton wrote in Federalist No. 66 that a nominee should be rejected only for “special and strong reasons.” Ideology was likely not foremost on the Framers’ minds. As the President has complete discretion in the use of his veto power, the Senate has complete and final discretion as to whether to accept or reject a nomination.

When a substantial number of Senators assert that there are strong and compelling political reasons to reject a nominee, the Constitution’s structure ensures a confirmation battle. The Appointments Clause contains conflict within the republican process in order to protect against degeneration of the Republic’s original ideals and thus ensure the Republic’s stability. This provision structures the confirmation process so that when two of the Republic’s national governing branches are in fundamental disagreement, there will be a struggle to persuade the people of the correctness of their respective positions.⁵¹

If the Senate rejects a nominee, the President would generally be in a position to find a second candidate without these putative defects who generally shares the President’s point of view.⁵² George Mason recognized this salient fact at the Philadelphia Convention: “Notwithstanding the form of the proposition by which the appointment seemed to be divided between the Executive & Senate, the appointment was substantially vested in the former alone.”⁵³

Open Questions

• The consensus view is that “Officers of the United States” refers to appointed positions in the executive and judicial branches. The Supreme Court has observed that “[t]he people do not vote for the ‘Officers of the United States.’”⁵⁴ Some scholars contend that members of Congress, the Speaker of the House, the President, and the Vice President may be “officers of the United States” whose appointments are provided for outside of Article II, Section 2.⁵⁵ But these positions are elected rather than appointed and are not “established by law.”⁵⁶
• Does the Senate have a constitutional duty to give a nominee a hearing or a confirmation vote? Following the death of Justice Antonin Scalia and nomination of Judge Merrick Garland to fill the vacancy, some scholars argued that the Senate had such a duty.⁵⁷ Is there any textual or historical basis for such an obligation?⁵⁸
• The D.C. Home Rule Act provides that the President can select nominees for D.C. courts only from a list of three candidates generated by the D.C. Judicial Nominations Commission.⁵⁹ If the President fails to choose one of these candidates, the Nomination Commission appoints the candidate for Senate confirmation. Would these local territorial judges be considered “officers of the United States,”⁶⁰ and if so, does the Home Rule statute violate the Appointments Clause?⁶¹ What would the remedy be if the President nominated and the Senate confirmed a judge who was not on this list? Could the courts invalidate the appointment, or would that be a political question?
• Does the President have any duty to nominate candidates to vacant positions? If the President fails to do so, is he subject to any sanctions and perhaps even impeachment?

1. John O. McGinnis, The President, the Senate, the Constitution, and the Confirmation Process: A Reply to Professors Strauss and Sunstein, 71 Tex. L. Rev. 633, 639 (1993). ↩︎
2. Declaration of Independence, ¶ 12. ↩︎
3. Freytag v. Commissioner, 501 U.S. 868, 883 (1991) (quoting G. Wood, The Creation of the American Republic 1776–1787, at 79 (1969)). ↩︎
4. Va. Const. of 1776. ↩︎
5. N.Y. Const. of 1777, art. XXIII. ↩︎
6. Mass. Const. of 1780, ch. II, § II, art. IX. ↩︎
7. The Charter of Massachusetts Bay (1691), https://perma.cc/G86J-L3KY. ↩︎
8. Articles of Confederation, art. VI, § 1. ↩︎
9. Id. at art. IX, § 5. ↩︎
10. Id. at art. IX, § 4. ↩︎
11. Id. at art. IX, § 1. ↩︎
12. 1 Farrand’s 20–22. ↩︎
13. 2 Farrand’s 21. ↩︎
14. Id. at 23. ↩︎
15. Id. at 177, 181–82, 315. ↩︎
16. Id. at 41. ↩︎
17. Id. ↩︎
18. Id. ↩︎
19. Id. ↩︎
20. Id. at 41, 43. ↩︎
21. Id. at 42. ↩︎
22. Id. ↩︎
23. Id. at 43. ↩︎
24. Id. at 44. ↩︎
25. Id. ↩︎
26. Id. ↩︎
27. Id. at 493, 495. ↩︎
28. Id. at 495, 539–40. ↩︎
29. Jennifer L. Mascott, Who are “Officers of the United States,” 70 Stan. L. Rev. 443, 472 (2018). ↩︎
30. 2 Farrand’s 612, 614. ↩︎
31. Id. at 614. ↩︎
32. Id. ↩︎
33. Seth Barrett Tillman & Josh Blackman, Offices and Officers of the Constitution, Part III: The Appointments, Impeachment, Commissions, and Oath or Affirmation Clauses, 62 S. Tex. L. Rev. 349, 383–85 (2023). ↩︎
34. 2 Farrand’s 539. ↩︎
35. Tillman & Blackman, supra at 378–83. ↩︎
36. United States v. Maurice, 26 F. Cas. 1211, 1213 (C.C.D. Va. 1823) (No. 15,747) (Marshall, C.J.). ↩︎
37. McGinnis, supra at 642. ↩︎
38. 4 Elliot’s 134. ↩︎
39. 1 S. Exec. J., 1st Cong., 1st Sess. 6 (June 16, 1789). ↩︎
40. Diary entry (Apr. 27, 1790), in The Diary of George Washington from 1789 to 1791, at 128 (Benson J. Lossing ed., 1860). ↩︎
41. 5 U.S. (1 Cranch) 137 (1803); 3 Story’s Commentaries § 1525; Edmond v. United States, 520 U. S. 651, 660 (1997); United States v. Arthrex, 594 U.S. 1, 11–12 (2021). ↩︎
42. Denis Steven Rutkus, Cong. Rsrch. Serv., R43762, The Appointment Process for U.S. Circuit and District Court Nominations: An Overview 9 n.43 (2016), https://perma.cc/7K5E-S4RS. ↩︎
43. Bruce Ackerman, The Failure of the Founding Fathers: Jefferson, Marshall, and the Rise of Presidential Democracy 106 (2005). ↩︎
44. Patrick Leahy, Supreme Court Preview: It Doesn’t Have to Be Armageddon, Vote Smart (June 25, 2003), https://perma.cc/XB6B-6H6X; David G. Savage, Bush Spurns Proposal on Court Picks, L.A. Times (June 19, 2003), https://perma.cc/DJR3-MFDW; Josh Blackman, Foreword: SCOTUS After Scalia, 11 N.Y.U. J.L. & Liberty 48, 140–43 (2017). ↩︎
45. Art. I, § 8, cl. 18. ↩︎
46. Act of June 22, 1870, ch. 150, § 2, 16 Stat. 162. ↩︎
47. 424 U.S. 1, 126–27 (1976). ↩︎
48. 510 U.S. 163 (1994). ↩︎
49. 272 U.S. 52 (1926). ↩︎
50. McGinnis, supra at 653. ↩︎
51. Id. at 659. ↩︎
52. Id. ↩︎
53. 2 Farrand’s 27. ↩︎
54. Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 497–98 (2010). ↩︎
55. Thomas W. Merrill, Rethinking Article I, Section 1: From Nondelegation to Exclusive Delegation, 104 Colum. L. Rev. 2097, 2136 n.157 (2004); David Froomkin & Eric Eisner, Officers (Jan. 6, 2025), https://ssrn.com/abstract=5029416. ↩︎
56. Tillman & Blackman, supra at 443; Chad Squitieri, Towards Nondelegation Doctrines, 86 Mo. L. Rev. 1239, 1262 (2021). ↩︎
57. Peter J. Eckerstrom, The Garland Nomination, the Senate’s Duty, and the Surprising Lessons of Constitutional Text, 21 U. Pa. J. Const. L. 33 (2018). ↩︎
58. Seth Barrett Tillman, On the Senate’s Purported Constitutional Duty to Meaningfully Consider Presidential Nominees to the Supreme Court of the United States, 21 U. Pa. J. Const. L. 881 (2019). ↩︎
59. D.C. Code §§ 1-204.34(d)(1) & 1-204.33(a). ↩︎
60. William Baude, Adjudication Outside Article III, 133 Harv. L. Rev. 1511, 1540 (2020). ↩︎
61. In the Matter of a Charge of Judicial Misconduct or Disability, Judicial Council Complaint No. DC-21-90051, Judicial Council of the District of Columbia Circuit at 12 (Feb. 14, 2022) (Katsas, J., dissenting), https://perma.cc/9LEA-FGU3; Josh Blackman, Judge Silberman Petitions the Judicial Council to Review His Misconduct Complaint Against Judge Sullivan, Volokh Conspiracy (Nov. 19, 2021), https://perma.cc/5H2J-TX4X. ↩︎