What is the Constitutional Power of Presidential Appointments? [No. 86]
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What is the Constitutional Power of Presidential Appointments? [No. 86]

October 26, 2019

At the time of the drafting of the Constitution,
you can see actually as far back as the Declaration of Independence itself, the drafters of the
Declaration of Independence, signers of the Declaration of Independence, one of the abuses
they were concerned about is they refer to the King sending swarms of officers to harass
them, to harass the founding era colonists. The idea and the concern was that the King
at the time had the power to both create new offices and appoint people to fill those offices. The founders split up the appointment power
and essentially gave Congress, the legislators, the power to create administrative agencies,
executive departments, to create and establish by law officer positions. So, it wouldn’t just be one person creating
or deciding there needed to be a new position, but Congress would have to do that through
the challenging procedures of legislation. And then the Appointments Clause limits when
Congress creates an office, how Congress can establish that office to be filled. The people who were subject to the Appointments
Clause requirements are known as officers of the United States. So, that’s a specific phrase and to really
know how far the Appointments Clause applies, everybody who falls within its reach we have
to know who an officer of the United States is. Obviously, heads of departments would be considered
officers. Clerks of court have been found by the Supreme
Court to be officers. Postmaster generals have been found, so officials
within post offices have been considered officers. Quite honestly, people as far down in the
past as clerks, people called clerks in the past in administrative agencies have been
labeled officers by the federal courts. The other thing that’s specific in the Appointments
Clause is that Congress has given specific instructions about the limited number of people
who can pick officers. The President ah with the Senate consent,
the President alone, department heads, or courts of law. So, you know you have to interpret and figure
out who all those different actors are.

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  1. Seems like the role of Governor would suffice for both Senate/Congressional decision making.

    After all the Federal level maintains the Universal Law of Nation but the State ultimately determines the common Law?

    It just seems like the President should not be dragged around by a gang of people who already disagree on everything. Just my opinion I'm not a Law student

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