The Commissions Clause

[The President] shall Commission all the Officers of the United States.

—Robert Luther III

Introduction

The Constitution does not define “Commission,” but it is well-described in Founding-era dictionaries. John Kersey’s Dictionarium Anglo-Britannicum (1736) defines “Commission” as “a Warrant for an Office of Place; a Charge to buy, or to do any Act for another,”¹ and Samuel Johnson’s Dictionary of the English Language (1755) defines it as “[a] trust; a warrant by which any trust is held, or authority exercised.”² In short, a commission is some act taken by the President, or perhaps under his direction, that produces a written record or evidence of an appointment. Although occasionally overlooked or mistaken for a “trifling” duty,³ it is a necessary final step in the appointment of a federal officer.⁴

Three primary legal issues are associated with commissions. First, who does the President commission? The text provides that the President “shall Commission all the Officers of the United States.” Second, when does the President issue a commission? The President can commission a principal “Officer of the United States” only after the Senate provides advice and consent. Third, how does the President issue a commission? Traditionally, the President has signed a commission, though Congress can set the “final act” to complete the appointment.

History Before 1787

The Executive’s power to commission officers derives from the English tradition. In Britain, the monarchy controlled the entire appointment process.⁵ The king appointed royal governors to rule the American colonies and listed their duties and powers in royal commissions.⁶

In the years following independence, the new national and state governments rejected British norms and experimented with decentralized methods of appointing officers.⁷ The Pennsylvania constitution of 1776, for example, specified that “[a]ll commissions shall be in the name, and by the authority of the freemen of the commonwealth of Pennsylvania, sealed with the state seal, signed by the president or vice-president, and attested by the secretary; which seal shall be kept by the council.”⁸ In Massachusetts, militia officers were “commissioned by the governor, who shall determine their rank.”⁹

The Articles of Confederation granted the national legislature the power to select certain civil officers,¹⁰ but because Americans feared the consolidation of power in the central government, the Articles split the selection power of military officers between Congress and state legislatures.¹¹ Regardless of who made the selection, the Confederation Congress ultimately commissioned “all officers whatever in the service of the United States.”¹²

The Constitutional Convention

During the Constitutional Convention, the delegates vigorously debated the appointment power,¹³ but the Commissions Clause was not subject to much debate. The Committee of Detail listed the power to commission among the President’s other powers.¹⁴ On August 25, 1787, there was a proposal that would have allowed Congress to designate that the “Executive[s] of the several States shall have the power” to appoint and commission certain officers.¹⁵ This proposal was defeated, and the language proposed by the Committee of Detail was adopted without alteration.

The Ratification Debates

The Commissions Clause was not controversial during the ratification debates. In Federalist No. 69, Alexander Hamilton observed that the Commissions Clause, a “power of the president, will resemble equally that of the king of Great Britain, and of the governor of New York.”

The Commission Process

The President is obligated to issue a commission to a broad category of positions: “all the Officers of the United States.” This category clearly includes the principal and inferior “Officers of the United States” that the President appoints.¹⁶ For example, on September 11, 1789, President Washington nominated Alexander Hamilton as Secretary of the Treasury.¹⁷ The Senate confirmed Hamilton, and Washington promptly issued the commission.¹⁸ Similarly, Washington nominated John Jay to serve as the first Chief Justice of the U.S. Supreme Court on September 24.¹⁹ The Senate confirmed the nomination two days later, and Washington promptly signed and mailed Jay’s commission.²⁰ From the outset of the Republic, the commissioning process was diligently executed.

Does the President also have an obligation to commission the inferior “Officers of the United States” who are appointed by the “Courts of Law” or the “Heads of Departments”? The text would seem to suggest that the President would commission all of the “Officers of the United States”—principal and inferior—but there is evidence that some early inferior officers, such as the first clerk of the Supreme Court, did not receive presidential commissions.²¹ In Marbury v. Madison (1803), Chief Justice John Marshall recognized that the Constitution “requires the President to commission all the officers of the United States” but observed that it “may never have been applied to officers appointed otherwise than by himself. . . .”²² In modern times, the Justice Department’s Office of Legal Counsel (OLC) has observed that “although the holder of an office usually receives a commission, that characteristic too, like an oath or pay, is incidental rather than essential.”²³

There is no evidence that the President has ever commissioned a member of Congress, and congressional precedent reveals that Representatives and Senators do not receive commissions.²⁴ Likewise, there is no evidence that the President has ever commissioned a Vice President, himself, or his successor. Professors Josh Blackman and Seth Barrett Tillman reach the sound conclusion that these elected officials are not “Officers of the United States” and therefore do not receive commissions.²⁵

Finally, the Recess Appointments Clause provides that the President shall “grant Commissions” to recess appointees.²⁶ (See Essay No. 109.) Because the Senate does not provide consent for recess appointees, the commission is the sole act of appointment.

Judicial Precedent

Presidential appointment of a principal “Officer of the United States” is a three-step process: (1) The President submits a nomination to the Senate, (2) the Senate provides its advice and consent, and (3) the President appoints the officer.²⁷ This third step is concluded when the President signs the presidential commission. However, after the Senate confirms a nominee, the President retains the discretion to withhold the actual appointment.²⁸ An officer’s appointment is complete only when the President signs the commission.²⁹

In Marbury, the Supreme Court deferred to the President’s authority to make appointments, but drew a clear line that cut off the President’s discretion at the end of the three-step process.³⁰ Chief Justice John Marshall wrote that “[s]ome point of time must be taken when the power of the Executive over an officer, not removable at his will, must cease.” Specifically, this “point of time must be when the constitutional power of appointment has been exercised.” When the appointment is complete, the President forfeits his discretion over the nominee. Even the subsequent death of the President before delivery does not affect the appointment.³¹

In January 2022, Justice Stephen Breyer announced that he intended to retire “when the Court rises for the summer recess . . . assuming that by then my successor has been nominated and confirmed.”³² President Joseph Biden nominated Judge Ketanji Brown Jackson to the seat, and she was confirmed on April 7, 2022. Biden signed Jackson’s commission on April 8, 2022, despite the fact that Justice Breyer was still serving.³³ The Office of Legal Counsel took the position that the President has “appointment authority at the time [a] vacancy is expected to arise” and therefore “may perform in advance the ‘last act’ in the three-step appointment process.” As a result, OLC reasoned, the President may commission an officer well before the officer is actually appointed.³⁴ OLC identified “several examples of judges who were appointed by the President prior to the effective date of the outgoing official’s resignation.”³⁵ OLC’s reasoning was unsound, but this issue had not yet been tested in the courts.

In Marbury, the law provided that a presidential commission for a Justice of the Peace “shall have been signed by the President of the United States.”³⁶ Chief Justice Marshall concluded that “the last act required from the person possessing the power . . . is the signature of the commission.”³⁷ Delivery of the signed commission was not required to make an appointment effective, nor was any overtly public act. In this case, President John Adams signed the commission appointing William Marbury as Justice of the Peace. Even though then-Secretary of State John Marshall failed to deliver the commission to Marbury, his appointment was still final. The Supreme Court reaffirmed this analysis in United States v. Le Baron (1856).³⁸

In Marbury, Marshall as Chief Justice suggested that Congress could choose a different “final act,” other than a signature. He wrote that Congress has the power to chart a “precise course accurately marked out by law” to complete the appointment and that the President “has no control” over this process.³⁹

Open Questions

• As an original matter, is the appointment of an “Officer[] of the United States” absent a commission invalid? Would that appointment be saved by the de facto officer doctrine?⁴⁰
• Can Congress by law “automatically” appoint an officer after the Senate provides advice and consent?⁴¹
• By what authority was Justice Jackson appointed to a seat that was not yet vacant? Did the United States briefly have a Supreme Court composed of ten active Justices? Federal law limits the Court to nine members.⁴² Could Justice Breyer have withdrawn his retirement letter?
• Could a President preemptively nominate and commission replacements for each member of the Supreme Court and lower federal courts? Would “stockpiled commissions” effectively finalize an appointment as soon as a vacancy arises?

1. John Kersey, Dictionarium Britannicum (2nd ed., 1776), https://bit.ly/3SlQmZn. ↩︎
2. Samuel Johnson, 1 A Dictionary of the English Language (1755), https://bit.ly/3FdKfDb. ↩︎
3. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 641 n.9 (1952) (Jackson, J., concurring). ↩︎
4. Appointment of a Senate-Confirmed Nominee, 23 Op. O.L.C. 232, 233 (1999). ↩︎
5. David Loades, Power in Tudor Britain 70–71 (1997). ↩︎
6. Commission to Sir Edmund Andros as Governor of the Dominion of New England, in English Historical Documents: American Colonial Documents to 1776, 239 (Merrill Jensen ed., 1955). ↩︎
7. Articles of Confederation, art. IX. ↩︎
8. Pa. Const. of 1776, § 21. ↩︎
9. Mass. Const. of 1780, art. X. ↩︎
10. Articles of Confederation, art. IX. ↩︎
11. Id. at arts. VII, IX. ↩︎
12. Id. at art. IX. ↩︎
13. Joseph P. Harris, Debates on the Appointing Power in the Constitutional Convention, in The Advice and Consent of the Senate 17 (1953). ↩︎
14. 2 Farrand’s 146, 171. ↩︎
15. Id. at 420. ↩︎
16. 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, 415–16 (2023). ↩︎
17. S. Exec. Jour., 1st Cong., 1st Sess. 25 (Sept. 11, 1789). ↩︎
18. Appointment [of Alexander Hamilton] as Secretary of the Treasury (Sept. 11, 1789), https://perma.cc/MS9GJQZ4. ↩︎
19. John Jay, 1789–1795, Supreme Court Historical Society, https://perma.cc/Q8PE-KZFF. ↩︎
20. Letter from George Washington to John Jay (Oct. 5, 1789), https://perma.cc/KRN7-FL6H. ↩︎
21. The Documentary History of the Supreme Court of the United States, 1789–1800, at 158–60 (Maeva Marcus & James R. Perry eds., 1985). ↩︎
22. Marbury v. Madison, 5 U.S. 137, 156 (1803). ↩︎
23. Officers of the United States Within the Meaning of the Appointments Clause, 31 Op. O.L.C. 122 (2007). ↩︎
24. Asher C. Hinds, 1 Hinds’ Precedents of the House of Representatives of the United States § 547 (1907), https://perma.cc/5GN7-C5NQ; Case of Brigham H. Roberts, of Utah, H.R. Rep. No. 56-85, at 36 (1900). ↩︎
25. Tillman & Blackman, supra at 416–21; Josh Blackman & Seth Barrett Tillman, Sweeping and Forcing the President into Section 3, 28 Tex. Rev. L. & Pol. 350, 549 (2024). ↩︎
26. Art. II, § 2. ↩︎
27. Appointment of a Senate-Confirmed Nominee, supra at 232. ↩︎
28. 2 Story’s Commentaries § 1546. ↩︎
29. Appointment of a Senate-Confirmed Nominee, supra at 232. ↩︎
30. 5 U.S. 137, 157 (1803). ↩︎
31. United States v. Le Baron, 60 U.S. 73, 78–79 (1856). ↩︎
32. Letter from Justice Stephen Breyer to President Joseph Biden (Jan. 27, 2022), https://perma.cc/FM25-H9HG. ↩︎
33. Ed Whelan, KBJ Appointment Follies, Natl. Rev. Bench Memo (Apr. 14, 2022, 8:07 AM), https://perma.cc/B2HU-5MBT. ↩︎
34. Authority of the President to Prospectively Appoint a Supreme Court Justice, 46 Op. O.L.C. __, 5 (Apr. 6, 2022). ↩︎
35. Id. at 4–5. ↩︎
36. Marbury, 5 U.S. at 155. ↩︎
37. Id. ↩︎
38. 60 U.S. at 78–79. ↩︎
39. Marbury, 5 U.S. at 141, 158. ↩︎
40. Nguyen v. United States, 539 U.S. 69, 77 (2003) (quoting Ryder v. United States, 515 U.S. 177, 180 (1995)). ↩︎
41. Dysart v. United States, 369 F.3d 1303 (Fed. Cir. 2004). ↩︎
42. 28 U.S.C. § 1. ↩︎