Article 2, Section 2, Clauses 2 and 3

Document 53

James Madison to Senate of United States

I have recd. from the Committee appointed by the resolution of the Senate of the [14] day of [June] a copy of that resolution, which authorizes the Committee to confer with the P. on the subject of the nomination made by him of a Min: Plenipo. to Sweden.

Conceiving it to be my duty to decline the proposed conference with the Committee, & it being uncertain when it may be convenient to explain to the Committee & thro' them, to the Senate, the grounds of my so doing, I think it proper to address the explanation directly to the Senate.

Without entering into a general review of the relations, in which the constitution has placed the several departments of the Govt. to each other, it will suffice to remark

That the Executive & Senate in the cases of appointments to Office & of Treaties, are to be considered as independent of and co-ordinate with each other. If they agree the appointments or treaties are made. If the Senate disagree they fail. If the Senate wish information previous to their final decision, the practice, keeping in view the constitutional relations of the Senate & the Executive has been either to request the Executive to furnish it, or to refer the subject to a committee of their body to communicate either formally or informally with the head of the proper Department.

The appointment of a Committee of the Senate to confer immediately with the Executive himself appears to lose sight of the co-ordinate relation between the Executive & the Senate which the Constitution has established, & which ought therefore to be maintained.

The relation between the Senate & House of Representatives in whom legislative power is concurrently vested, is sufficiently analogous to illustrate that between the Executive & senate in making appointments & treaties. The two houses are in like manner independent of & co-ordinate with each other; and the invariable practice of each in appointing Committees of conference & consultation is to commission them to confer not with the co-ordinate Body itself, but with a Committee of that Body. And although both branches of the Legislature may be too numerous to hold conveniently a conference with committees were they to be appointed by either to confer with the entire Body of the other, it may be fairly presumed that if the whole number of either branch were not too large for the purpose, the objection to such a conference, being agst. the principle, as derogating from the co-ordinate relations of the two Houses, would retain all its force.

I add only that I am entirely persuaded of the purity of the intentions of the Senate, in the course they have pursued on this occasion, & with which my view of the subject makes it my duty not to accord; & that they will be cheerfully furnished with all the suitable information in possession of the Executive, in any mode deemed consistent with the principles of the Constitution, and the settled practice under it.

The Founders' Constitution
Volume 4, Article 2, Section 2, Clauses 2 and 3, Document 53
http://press-pubs.uchicago.edu/founders/documents/a2_2_2-3s53.html
The University of Chicago Press

The Writings of James Madison. Edited by Gaillard Hunt. 9 vols. New York: G. P. Putnam's Sons, 1900--1910. See also: Federalist