Authority to appoint and discharge persons from nonelective positions in the federal government
The U.S. Constitution describes the power to appoint government officials in some detail. Article II, section 2, clause 2, provides that the president shall appoint ambassadors (and other diplomats), Supreme Court justices, and “all other Officers of the United States,” with the “Advice and Consent of the Senate.” The president nominates people to fill these positions, and the Senate then approves or rejects these nominations by majority vote. The Senate usually confirms nominations of executive branch officials but sometimes rejects them. The level of deference given the president by the Senate has varied over time. However, when the Senate is not in session, the Constitution authorizes the president to fill vacancies in federal offices without the Senate’s approval. These “recess appointments” last until the end of the Senate’s next annual session.
The Constitution also authorizes Congress to vest the power to appoint “inferior Officers” in “the President alone, the Courts of Law, or in the Heads of Departments.” Thus, many federal officials can be appointed without Senate confirmation. The Court held that low-level positions, held by the vast majority of federal employees, are not covered by Article II, and thus Congress may vest power to hire such employees largely without restriction. In addition, congressional appointments of legislative branch officers are not subject to Article II appointment procedures.
Though difficult constitutional issues rarely arise with respect to the appointment power, in Buckley v. Valeo
The power to remove appointed officials outside of the legislative or judicial branches has produced significant controversy. The Constitution does not expressly discuss the power to remove officials, except to provide for removal of any “Civil Officer of the United States” upon impeachment by the House of Representatives and conviction by the Senate. Federal officials are almost never removed by impeachment. Shortly after the Constitution’s adoption, the question of the president’s power to remove government officials arose. The Senate concluded that the president could remove federal officials without its “advice and consent.” The right to remove officials serving in the executive branch is generally thought to inhere in the “executive power” of the United States, which the Constitution vests in the president.
The increased complexity of the government and the expansion of the role of administrative agencies beginning in the New Deal in the 1930’s unsettled the understanding of the locus of the removal power. In Humphrey’s Executor v. United States
Mistretta v. United States
Unlike officials at least nominally in the executive branch of government, Court justices and other judges appointed to judgeships created under Article III of the Constitution, namely federal district court and federal court of appeals judges, hold their offices during “good behavior” and may be removed only by impeachment.
Aman, Alfred C., Jr., and William T. Mayton. Administrative Law. St. Paul, Minn.: West Publishing, 1993. Carter, Stephen L. The Confirmation Mess: Cleaning Up the Federal Appointments Process. New York: Basic Books, 1994. Tribe, Laurence H. God Save This Honorable Court: How the Choices of Supreme Court Justices Shape Our History. New York: Random House, 1985.
Bowsher v. Synar
Buckley v. Valeo
Humphrey’s Executor v. United States
Impeachment of judges
Judicial codes and rules
Mistretta v. United States
Morrison v. Olson
Nominations to the Court
Separation of powers