Appointing Power

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APPOINTING POWER

APPOINTING POWER. The power of appointment of a dictator or absolute monarch is unlimited, but in a constitutional republic the power can be limited in complex ways. The U.S. Constitution provides that certain officers, such as federal judges, ambassadors, and senior cabinet officials, are appointed by the president with the "advice and consent" of the Senate. An issue soon arose, however, regarding whether an official thus appointed could be terminated by the president alone, or only with Senate approval. The Constitution is silent on the subject. Practice and precedent seem to have settled that the president does not need Senate consent to terminate executive branch appointees in the absence of legislation to the contrary, but that judicial appointees may be removed only through impeachment by the House of Representatives and trial by the Senate. However, Congress has also created positions with fixed terms, or has placed limits—such as civil service rules—on the ability of executive branch supervisors to terminate or reassign personnel, or even on how they can be supervised. It has created independent agencies and authorities with large independent budgets and their own powers to raise revenues.

Another issue that has arisen is whether and to what extent appointees can subdelegate their authority to their own appointees, or whether judges and legislators can appoint their own staffs. Practice and precedents seem to have settled that they may appoint assistants, but that judges may not delegate judicial powers and legislators may not delegate legislative powers. However, Congress has adopted legislation authorizing executive branch officials to issue regulations that effectively delegate legislative powers.

A key problem with government appointments has been whether and to what extent persons should be appointed or assigned on the basis of talent or seniority, or to reward party service and assist in implementing party policies. In his early appointments, President George Washington emphasized "fitness of character," selecting men of high reputation. As the party system developed, however, Washington and his successors sought men of their own political persuasion.

President Andrew Jackson argued in his first message to Congress in 1829 that "rotation" in office every few years was needed to keep officials sensitive to popular needs. During the next fifty years, federal and state appointments were largely based upon party service and personal connections. By the 1870s, this "spoils system" was widely condemned for resulting in a decline in competence and honesty in government service. In 1883, Congress approved the Pendleton Act, which established "open, competitive examinations" to qualify job applicants. Initially, only 10 percent of federal employees were covered by civil service rules, but the figure had risen to about 86 percent by 1950. Only a few thousand exempt positions remained at the top of each federal agency to permit discretionary appointment of persons to carry out administration policies, and a few other positions remained available to reward party loyalty and interest-group support. However, nonexempt employees were often unresponsive to administration policies, and could pursue policies of those who appointed or sponsored them.

BIBLIOGRAPHY

Morganston, Charles Emile. The Appointing and Removal Power of the President of the United States: A Treatise on the Subject of the Appointing and Removal Power. Westport, Conn.: Greenwood Press, 1976. Reprint of Senate document no. 172, published in 1929.

Sayre, Wallace S., ed. The Federal Government Service. 2d ed. Englewood Cliffs, N.J.: Prentice-Hall, 1965.

JonRoland