Article 2, Section 2, Clauses 2 and 3
William Rawle, A View of the Constitution of the United States 162--67 1829 (2d ed.)
In addition to the power over the army, navy, and militia, already noticed, the president has a qualified power of appointing the executive and judicial officers. The former of these are held during his pleasure; the latter during good behaviour. In respect to both, the commissions are granted by the president, but they specify that it is by and with the advice and consent of the senate. It was deemed expedient that the approbation of the senate should be given, unless a vacancy happened during its recess, in which case commissions are granted which expire at the end of the next session.
It may, however, be questioned, whether this restraint on the power of the president fully corresponds with the confidence which is otherwise reposed in him, and whether it does not in some degree affect the responsibility to public opinion which would accompany an unlimited power of appointments.
If it were left entirely to himself to select such agents as he might deem qualified for public duties, he would of course be scrupulous in his choice; but if a senate, either actuated by party motives, or for want of information of the fitness of the individual, rejects the nomination, not only may the public interests suffer in the immediate case, but the president be impelled to inadequate substitutions. It is true, that the converse of this proposition may also be admitted. Improper nominations, proceeding from personal or party influence, may be properly rejected by a virtuous and inflexible senate; but in the latter case, if it ever should be our misfortune to have a man so actuated, in possession of this high office, we may see him immediately after the rising of the senate, dismiss the incumbent, or in case of their rejecting one nomination, withholding another, and availing himself of the power to appoint during the recess. It would, therefore, appear upon the whole, that with the possibility of an evasion which would render the constitutional provision so entirely nugatory, it would have been more beneficial to have left this power in the president without restraint, and the more so, as the consent of the senate is not required for the dismission of the officer.
It would be improper to pass over the construction given by the senate to the power of appointing during their recess. It has been held by that venerable body, that if new offices are created by congress, the president cannot, after the adjournment of the senate, make appointments to fill them. The vacancies do not happen during the recess of the senate.
The text is not very explicit as to the officers whose appointments require the consent of the senate: it enumerates ambassadors, other public ministers, and consuls, judges of the supreme court, and all other officers of the United States, whose appointments are not therein otherwise provided for, and which shall be established by law; but the congress may by law vest the appointment of such inferior officers as they think proper in the president alone, in the courts of law, or in the heads of departments. The term "inferior" is somewhat vague, and it is perhaps left to congress to determine how to apply it; if they do not otherwise direct, the consent of the senate is necessary under the qualifications described.
A proper selection and appointment of subordinate officers, is one of the strongest marks of a powerful mind. It is a duty of the president to acquire, as far as possible, an intimate knowledge of the capacities and characters of his fellow citizens; to disregard the importunities of friends; the hints or menaces of enemies; the bias of party, and the hope of popularity. The latter is sometimes the refuge of feeble-minded men, but its gleam is transient if it is obtained by a dereliction of honest duty and sound discretion. Popular favour is best secured by carefully ascertaining and strictly pursuing the true interests of the people. The president himself is elected on the supposition that he is the most capable citizen to understand and promote those interests, and in every appointment he ought to consider himself as executing a public trust of the same nature.
Neither should the fear of giving offence to the public, or pain to the individual, deter him from the immediate exercise of his power of removal on proof of incapacity or infidelity in the subordinate officer. The public, uninformed of the necessity, may be surprised, and at first dissatisfied; but public approbation ultimately accompanies the fearless and upright discharge of duty. On the other hand, hasty and capricious dismissions from office are equally reprehensible. Although the officer may be dependent on the pleasure of the president, a sound discretion is expected to regulate that pleasure. The motives to attain a degree of excellence in the knowledge and performance of official duties are greatly abated, if the tenure is rendered altogether uncertain; and if he who by industry, capacity, and fidelity, has proved himself a useful servant of the public, is causelessly removed, the public will have much reason to complain.
A mode of proceeding is interwoven with the military organization of great benefit to the sound constitution of the army. Although the president is unquestionably authorized to deprive any military officer of his commission at pleasure, yet the established practice is, to allow the individual, whose conduct has given dissatisfaction, an opportunity of explaining and vindicating it, by means of a regular tribunal, before he is dismissed, suspended, or even reproved. The same usage prevails in the navy. Thus a sort of tenure during good behavour is produced, the effect of which, with men of integrity, is eminently useful. In the diversified employments of civil life, no similar institution could be systematically adopted, and a full analogy, therefore, cannot exist; but if we sometimes see in the revolutions of party, as well in other countries as in this, whole hosts of meritorious officers suddenly swept away, and their places filled by men without superior qualifications, we may regret that the principle is lost sight of, and that no remedy can be applied.
Four executive departments have been created by congress at different times. The department of state--of the treasury--of war--and of the navy--over each of which a principal officer, denominated the secretary, presides. Through one of these organs, the directions of the president are communicated, in all matters relative to their respective departments. But it has been decided that the president is not confined in his executive functions to the use of a particular department. Thus in a case where it was objected that an order from the secretary of state ought not to be considered as an act of the president; it was held that reference must be had to this department for the official acts of the president, which are not more immediately connected with duties of some other department, but, nevertheless, the president, for the more easy and expeditious discharge of his executive duties, may direct some other department to make known the measures which he may think proper to take. They are equally his acts, whether they emanate from the department of state, or any other department. His immediate mandate to an inferior officer is in no case necessary.
All commissions to officers issue from, and are signed by the president. When the president has nominated, the senate approved, and the commission is signed, the appointment is complete. If the officer be removable at the pleasure of the president, the commission may be arrested by him, if it is in the office of the secretary of state, but, if it is an office during good behaviour, the appointment is not revocable, and, after it has received the approbation of the senate, cannot be annulled.
Delivery is not essential to the validity of a commission, nor is it affected by detention after it has been signed by the president, if the officer is not removable at pleasure. If in such case, the secretary of state being possessed of the commission, should refuse to deliver it, the judicial officer may nevertheless lawfully exercise his functions, and will be entitled to his legal compensations.
Sickness, absence, or death, might delay the executing a commission, and the public interests in some cases, (as for instance the judge of a district court,) suffer great injury during the vacancy of the office. The commission is not the exclusive evidence of the appointment.
The appointments made, and commissions issued during the recess of the senate, are in force only till the end of the ensuing session. When their advice and consent are given, it is to be considered not as a confirmation of the preceding appointment made during the recess, but strictly as a new one; a new official oath must be taken; and if it is an office in which security is required, a new security must be given.
The Founders' Constitution
Volume 4, Article 2, Section 2, Clauses 2 and 3, Document 56
The University of Chicago Press
Rawle, William. A View of the Constitution of the United States of America. 2d ed. Philadelphia, 1829. Reprint. New York: Da Capo Press, 1970.
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