Appointing and Removal Power, Presidential

• Author: Philip B. Kurland
• Pages: 109-111

Page 109

Article II, section 2, clause 2, of the Constitution provides in part that the President "shall nominate, and by and with the ADVICE AND CONSENT of the Senate, he 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." It goes on to authorize Congress to provide for the appointment of "inferior officers" by the President, the courts, or the heads of departments. The only patent ambiguity is in the distinction between the appointment of "inferior officers" and those presidential appointments requiring advice and consent of the Senate. This problem has given little cause for concern, perhaps because Congress has erred on the side of requiring advice and consent appointments, so that even every officer in the armed forces receives such a presidential appointment.

The processes of the appointment power were canvassed by JOHN MARSHALL in MARBURY V. MADISON (1803), where he also addressed the question that has plagued the construction of Article II, section 2, clause 2, not the

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meaning of the appointment provisions but what meaning they have for the removal power. The language of the Constitution is silent about removal, except for impeachment and the life tenure it gives to judges. Marshall said:

Where an officer is removable at the will of the executive, the circumstance which completes his appointment is of no concern; because the act is at any time revocable; and the commission may be arrested, if still in the office. But when the officer is not removable at the will of the executive, the appointment is not revocable, and cannot be annulled. It has conferred legal rights which cannot be resumed.

The discretion of the executive is to be exercised until the appointment has been made. But having once made the appointment, his power over the office is terminated in all cases, where by law the officer is not removable by him. The right to the office is then in the person appointed, and he has the absolute, and unconditional power of accepting or rejecting it.

Mr. Marbury, then, since his commission was signed by the president, and sealed by the secretary of state, was appointed; and as the law creating the office, gave the officer a right to hold for five years, independent of the executive, the appointment was not revocable, but vested in the officer legal...