The Appointments Clause of the United States Constitution grants the president the authority to nominate, and with the advice and consent of the Senate, appoint officers of the United States federal government.
Who approves presidential appointments?
The power to approve presidential nominations is vested in the United States Senate.
The Appointments Clause
Clause 2, Section 2 of Article II of the United States Constitution is known as the Appointments Clause. This specific part of the Constitution empowers the U.S. President to nominate anyone he or she sees fit to many different departments and positions in the federal government.
Accordingly, while the president can nominate anyone he or she sees fit, the Advice and Consent Provision of the Clause provides Congress with the power to confirm or deny that nomination. Congress also has the power to allow the president to appoint certain inferior officers without any need for confirmation.
The power possessed by the president is defined as being plenary. This means that the power to nominate is absolute. In other words, Congress lacks any power or authority to set minimum requirements for any position that the president may provide a nomination for. The qualifications of a nominee are purely at the discretion of the president of the United States.
Advice and Consent
While the Appointments Clause provides the president with plenary power to nominate anyone he or she sees fit, the clause also bestows the United States Senate the absolute power to confirm or reject that nominee’s appointment. The Advice and Consent provision was created to ensure that such high-level positions were filled with a level of accountability.
To ensure that the federal government continues to exist democratically rather than autocratically, the Founding Fathers felt there was a need to provide some form of checks and balances on the appointment process. According to Alexander Hamilton, as noted in Federalist No. 77, the public confirmation of certain positions within an administration prevents the president from operating the executive branch as if it were an autocracy.
The Founding Fathers
Although some of the Founding Fathers believed that the president should have the sole power to appoint without receiving advice from the Senate, many believed that such unbridled power could result in tyranny. There was a need to ensure that the executive branch was operated in line with the core beliefs of the democratic values enshrined within the United States Constitution.
Because of this disagreement, they specifically allowed the United States Congress to waive its right to confirmation for certain inferior officers. As a result, the president maintains complete plenary power of appointment over certain lower-level positions. Simultaneously, the president holds only the plenary power of nomination for the more senior-level positions within his or her administration.
The Limited Powers of Congress
As enshrined in the United States Constitution, the concept of plenary power ensures that only the president has the power to nominate anyone he or she sees fit to some of the most important offices within the government. At the same time, Congress has no power to nominate anyone because the sole function of the United States Senate in the nomination and confirmation process is that of Advice and Consent. Congress may only determine whether to confirm or deny a nominee’s appointment.
Likewise, because the president has plenary power to nominate anyone, Congress has limited powers over setting requirements for any position. In simpler terms, while the Constitution provides no guidelines or minimum requirements for an Associate Justice of the United States Supreme Court, Congress cannot set any guidelines for this position. Doing so would interfere with the president’s absolute power of nomination.
Despite this, Congress has attempted to circumvent the president’s absolute power of nomination by appointing heads to newly established departments within the government. However, due to the language used in the Constitution, courts at all levels have and always will reverse such an appointment for being unconstitutional.
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The Appointment of Inferior Officers
The Appointments Clause of the Constitution defines the differences between who must be nominated by the president and who may be appointed by the president. Under the Constitution, those considered to be officers of the nation require nomination and confirmation before their appointment. However, those considered inferior officers may be directly appointed to the position by either the President of the United States or the head of any U.S. Department.
The specific language of the clause only allows the president to appoint who he or she sees fit to an inferior office created through congressional action, so long as the head of that department does not have any significant authority. The Founding Fathers felt a need to word the Appointments Clause to prevent the president from creating positions to fill them.
Whenever a federal government department is created through congressional action, the head of that department may only be appointed through the procedures outlined under the Appointments Clause. If the department head does not yield significant authority, then the president may appoint the position directly.
Appointments by Department Heads
Regardless of whether the head of a specific department of the federal government is considered to hold significant authority, those under the head of that department generally do not. As a result, many sub-level positions can be filled exclusively through appointment. A good example of this can be seen within the Department of Justice.
The head of the Department of Justice, the Attorney General, must be nominated by the president of the United States and, after Advice and Consent, confirmed and appointed to the position. However, the Deputy Assistant Attorney General may be appointed by the Attorney General directly without any requirement to comply with the Advice and Consent Clause of the Constitution.
At the same time, the heads of the judicial branch must be nominated by the president, confirmed, and appointed by Congress to their positions as justices of the United States Supreme Court. However, the Justices of the Supreme Court cannot directly appoint anyone as judges for the appellate court or the individual district courts. This is because a judge, regardless of the court they are assigned to, holds significant authority over the enforcement of the nation’s laws.
