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Appointments Clause: Wikis

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Article II, Section 2, Clause 2 of the United States Constitution, known as the Appointments Clause, empowers the President of the United States to appoint certain public officials with the "advice and consent" of the U.S. Senate. This clause also allows lower-level officials to be appointed without the advice and consent process.

Contents

Full text of the clause

[The President] shall nominate, and, by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein 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.

Background

In the federal government of the United States, "advice and consent" is a power of the United States Senate — in this instance, the power to approve appointments by the President of the United States to public positions, including Cabinet secretaries, federal judges, and ambassadors. The term "advice and consent" first appears in the United States Constitution in Article II, Section 2, Clause 2, referring to the Senate's role in the signing and ratification of treaties. This term is then used again, to describe the Senate's role in the appointment of public officials, immediately after describing the President's duty to nominate such officials.

Several framers of the U.S. Constitution explained that the required role of the Senate is to advise the President after the nomination has been made by the President.[1][2] Roger Sherman believed that advice before nomination could still be helpful.[3] Likewise, President George Washington took the position that pre-nomination advice was allowable but not mandatory.[4] The notion that pre-nomination advice is optional has developed into the unification of the "advice" portion of the power with the "consent" portion, although several Presidents have consulted informally with Senators over nominations and treaties.

The actual motion adopted by the Senate when exercising the power is "to advise and consent," which shows how initial advice on nominations and treaties is not a formal power exercised by the Senate.[5][6] For appointments, a majority of Senators are needed to pass a motion "to advice and consent", but unless the appointment has the support of three-fifths of Senators a filibuster blocking the passage of the motion is possible.

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Appointments by Heads of Departments

From 1999 to 2008, a change in the statute governing the United States Patent and Trademark Office ("USPTO") permitted a number of judges of the Board of Patent Appeals and Interferences and the Trademark Trial and Appeal Board to be appointed by the USPTO Director. This arrangement was challenged as unconstitutional under the Appointments Clause because the appointing party was not the Heads of the Department.[7] In order to avoid the crisis that would result from new challenges to many BPAI and TTAB decisions made in that period, Congress passed a 2008 amendment to the statute which specifies that the Secretary of Commerce is responsible for such appointments, and permitting the Secretary to retroactively appoint those persons named by the USPTO Director.

Footnotes

  1. ^ Currie, David. The Constitution in Congress: The Federalist Period, 1789-1801, page 25 (University of Chicago Press 1997) via Google Books: “Madison, Jefferson, and Jay all advised Washington not to consult the Senate before making nominations.”
  2. ^ Hamilton, Alexander. Federalist No. 76 (1788): “In the act of nomination his judgment alone will be exercised.”
  3. ^ Letter from Roger Sherman to John Adams (July 1789) in The Founders Constitution: "their advice may enable him to make such judicious appointments."
  4. ^ U.S. Senate history on the power to advise and consent: "In selecting nominees, Washington turned to his closest advisers and to members of Congress, but the president resolutely insisted that he alone would be responsible for the final selection. He shared a common view that the Senate's constitutionally mandated 'advice' was to come after the nomination was made."
  5. ^ U.S. Senate Rule 30: "On the final question to advise and consent to the ratification in the form agreed to, the concurrence of two-thirds of the Senators present shall be necessary to determine it in the affirmative."
  6. ^ U.S. Senate Rule 31: "the final question on every nomination shall be, 'Will the Senate advise and consent to this nomination?'"
  7. ^ Translogic Technology, Inc. v. Dudas, U.S., No. 07-1303, 10/6/08.

See also


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