Appointments Clause
Encyclopedia
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.
— 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. Roger Sherman
believed that advice before nomination could still be helpful. Likewise, President George Washington
took the position that pre-nomination advice was allowable but not mandatory. 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. 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.
("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. 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.
Article Two of the United States Constitution
Article Two of the United States Constitution creates the executive branch of the government, consisting of the President and other executive officers.-Clause 1: Executive power:...
, Section 2, Clause 2 of the United States Constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
, known as the Appointments Clause, empowers the President of the United States
President of the United States
The President of the United States of America is the head of state and head of government of the United States. The president leads the executive branch of the federal government and is the commander-in-chief of the United States Armed Forces....
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.
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 SenateUnited States Senate
The United States Senate is the upper house of the bicameral legislature of the United States, and together with the United States House of Representatives comprises the United States Congress. The composition and powers of the Senate are established in Article One of the U.S. Constitution. Each...
— in this instance, the power to approve appointments by the President of the United States
President of the United States
The President of the United States of America is the head of state and head of government of the United States. The president leads the executive branch of the federal government and is the commander-in-chief of the United States Armed Forces....
to public positions, including Cabinet secretaries, federal judges, and ambassadors. The term "advice and consent" first appears in the United States Constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
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. Roger Sherman
Roger Sherman
Roger Sherman was an early American lawyer and politician, as well as a founding father. He served as the first mayor of New Haven, Connecticut, and served on the Committee of Five that drafted the Declaration of Independence, and was also a representative and senator in the new republic...
believed that advice before nomination could still be helpful. Likewise, President George Washington
George Washington
George Washington was the dominant military and political leader of the new United States of America from 1775 to 1799. He led the American victory over Great Britain in the American Revolutionary War as commander-in-chief of the Continental Army from 1775 to 1783, and presided over the writing of...
took the position that pre-nomination advice was allowable but not mandatory. 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. 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
Filibuster
A filibuster is a type of parliamentary procedure. Specifically, it is the right of an individual to extend debate, allowing a lone member to delay or entirely prevent a vote on a given proposal...
blocking the passage of the motion is possible.
Appointments by Heads of Departments
From 1999 to 2008, a change in the statute governing the United States Patent and Trademark OfficeUnited States Patent and Trademark Office
The United States Patent and Trademark Office is an agency in the United States Department of Commerce that issues patents to inventors and businesses for their inventions, and trademark registration for product and intellectual property identification.The USPTO is based in Alexandria, Virginia,...
("USPTO") permitted a number of judges of the Board of Patent Appeals and Interferences
Board of Patent Appeals and Interferences
The Board of Patent Appeals and Interferences is an administrative law body of the United States Patent and Trademark Office , which decides issues of patentability. The Chief Administrative Patent Judge is James Donald Smith.-Structure:...
and the Trademark Trial and Appeal Board
Trademark Trial and Appeal Board
The Trademark Trial and Appeal Board is a body within the United States Patent and Trademark Office responsible for hearing and deciding certain kinds of cases involving trademarks. These include appeals from decisions by USPTO Examiners denying registration of marks, and opposition proceedings...
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. 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.
See also
- List of clauses of the United States Constitution
- The Tenure of Office Acts of 1820Tenure of Office Act (1820)The first Tenure of Office Act of May 15, 1820 in the United States“imposed tenure limits on certain current and future officeholders” in order “to insure removal under certain conditions.” Authored by William H...
and 1867 - Recess appointmentRecess appointmentA recess appointment is the appointment, by the President of the United States, of a senior federal official while the U.S. Senate is in recess. The U.S. Constitution requires that the most senior federal officers must be confirmed by the Senate before assuming office, but while the Senate is in...
- Advice and consentAdvice and consentAdvice and consent is an English phrase frequently used in enacting formulae of bills and in other legal or constitutional contexts, describing a situation in which the executive branch of a government enacts something previously approved of by the legislative branch.-General:The expression is...