Article 2, Section 2, Clauses 2 and 3
[Volume 4, Page 109]
Thomas Jefferson, Opinion on Powers of the Senate respecting Diplomatic Appointments24 Apr. 1790Papers 16:378--80
The Constitution having declared that the President "shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors other public ministers and consuls" the President desires my opinion Whether the Senate has a right to negative the grade he may think it expedient to use in a foreign mission, as well as the persons to be appointed?
I think the Senate has no right to negative the grade.
The Constitution has divided the powers of government into three branches, Legislative, Executive and Judiciary, lodging each with a distinct magistracy. The Legislative it has given completely to the Senate and House of representatives: it has declared that "the Executive powers shall be vested in the President," submitting only special articles of it to a negative by the Senate; and it has vested the Judiciary power in the courts of justice, with certain exceptions also in favor of the Senate.
The transaction of business with foreign nations is Executive altogether. It belongs then to the head of that department, except as to such portions of it as are specially submitted to the Senate. Exceptions are to be construed strictly. The Constitution itself indeed has taken care to circumscribe this one within very strict limits: for it gives the nomination of the foreign Agent to the President, the appointment to him and the Senate jointly, the commissioning to the President. This analysis calls our attention to the strict import of each term. To nominate must be to propose: appointment seems that act of the will which constitutes or makes the Agent: and the Commission is the public evidence of it. But there are still other acts previous to these, not specially enumerated in the Constitution; to wit 1. the destination of a mission to the particular country where the public service calls for it: and 2. the character, or grade to be employed in it. The natural order of all these is 1. destination. 2. grade. 3. nomination. 4. appointment. 5. commission. If appointment does not comprehend the neighboring acts of nomination, or commission, (and the constitution says it shall not, by giving them exclusively to the President) still less can it pretend to comprehend those previous and more remote of destination and grade. The Constitution, analysing the three last, shews they do not comprehend the two first. The 4th. is the only one it submits to the Senate, shaping it into a right to say that "A. or B. is unfit to be appointed." Now this cannot comprehend a right to say that "A. or B. is indeed fit to be appointed, but the grade fixed on is not the fit one to employ," or "our connections with the country of his destination are not such as to call for any mission." The Senate is not supposed by the Constitution to be acquainted [Volume 4, Page 110] with the concerns of the Executive department. It was not intended that these should be communicated to them; nor can they therefore be qualified to judge of the necessity which calls for a mission to any particular place, or of the particular grade, more or less marked, which special and secret circumstances may call for. All this is left to the President. They are only to see that no unfit person be employed.
It may be objected that the Senate may, by continual negatives on the person, do what amounts to a negative on the grade; and so indirectly defeat this right of the President. But this would be a breach of trust, an abuse of the power confided to the Senate, of which that body cannot be supposed capable. So the President has a power to convoke the legislature; and the Senate might defeat that power by refusing to come. This equally amounts to a negative on the power of convoking. Yet nobody will say they possess such a negative, or would be capable of usurping it by such oblique means. If the Constitution had meant to give the Senate a negative on the grade or destination, as well as the person, it would have said so in direct terms, and not left it to be effected by a sidewind. It could never mean to give them the use of one power thro the abuse of another.
The Papers of Thomas Jefferson. Edited by Julian P. Boyd et al. Princeton: Princeton University Press, 1950--.
© 1987 by The University of Chicago