457



### Presidential Appointment of Foreign Agents
Without the Consent of the Senate

There are many precedents to sustain the power of the President, without the advice and consent of the Senate, to appoint special agents or personal representatives for the purpose of conducting negoti ations or investigations.

September 23, 1943

M EMORANDUM FOR THE A SSISTANT S OLICITOR G ENERAL

Clause 2 of Section 2, Article II, of the Constitution provides th at the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls.” There are, however, many precedents to sustain the power of the President, without the advice and

consen t of the Senate, to appoint agents for the purpose of conducting negotiations or investigations. Some Senators have at times objected to the Presidents’ actions as being without constitutional authority, but the question has not been passed upon by the cou rts. Precedents are set forth in 4 John Bassett Moore, A Digest of

International Law § 632, at 452

– 56 (1904) , and 4 Green Haywood Hackworth, Digest of International Law 409

– 14 (194 2 )

. See also Edward S. Corwin, The

President ’ s Control of Foreign Relations 63

– 66 (1917). Persons appointed as such special agents or representatives are considered to be the personal representatives of the President and not “ Ambassadors” or other “public M inisters” within the meaning of the constitutional provision. In many

cases such personal representatives have been given diplomatic ran k, including that of minister, envoy, and ambassador. Special representatives with diplomatic rank are not formally accredited to the foreign governments as official diplomatic representatives of our g overnment. It is customary before making such an appointment for the State Department to ascertain from the foreign government concerned whether the appointment is acceptable. If so, such appointees are accredited informally. They are th en customaril y accorded the diplomatic privile ges and courtesies pertaining to their rank. Two recent examples of special envoys with diplomatic rank are, as cited in Mr, Hackworth’s digest, the appointments by President Roosevelt of (1) Norman H.

Davis in March 1933 a s Chairman of the Delegation of the United States to the

Ge neral Disarmament Conference at Geneva, with the rank of Ambassador while serving in that capacity; and (2) Myron Taylor in 1938 as the American represent ative on the special intergovernmental comm ittee to facilitate the emigration from Austria and Germany of political refugees, with the rank of Ambassador Extrao rdinary and Plenipotentiary. 4 Hackworth, Digest of International Law at 412

. Moore gives the following instances of appointments by the Secretaries of

State:Supplemental Opinions of the Office of Legal Counsel in Volume 1

458 May 12, 1825, John James Appleton was appointed by the Secr etary of State to arrange a settlement of claims against Naples.

. . . .

April 17, 1847, Nicholas P. Trist, who was then chief clerk of the Department of State, was appointed a commissioner to conclude a treaty of peace with Mexico, which he did on February 2, 1848.

. . . .

In 1861 Archbishop Hughes and Bishop McI lvaine were sent to Europe by Mr. Seward, with the approval of the President and his Cabinet, as confidential agents in relation to questions growing out

of the civil war.

. . . .

A. B. Steinberger was appointed by the Secretary of State, under direction of the President, March 29, 1873, as a special agent to S amoa.

4 Moore, Digest of International Law § 632, at 453

– 54. With respect to the appointment of Mr. Trist, it appears that the instructions issued to him by Mr. Buchanan, Secretary of State, stated in part:

The President, therefore, having full confidence in your ability, patriotism, and integrity, has selected you as a commissioner to the United Mexican States, to discharge the duties of this important mi ssion.

5 id. § 85 8, at 781. The instructions issued to the other appointees above mentioned are not given. It also appears that Mr. Clayton, as Secretary of State, on June 18, 1849, issued to Mr. A. Dudley Mann, who was then in Euro pe, instructions in relation to a mission as a special and confidential agent to Hungary. Mr. Mann was given a letter (presumably signed by the Secretary of State) introducing him to the

M inister for Foreign Affairs in Hungary as “special and confidential age nt of the

United States to the G overnment of Hungary.” 1 id. § 72, at 219. Moore, however, also states that Mr. Mann “was appointed by President Taylor as a special and confidential age nt to Hun gary. ” 4 id. § 632, at 453. I suppose that in all five cases above mentioned the State Department would take the position that in making the appointments the Secretary acted for and under the direction of the President. I spoke to Mr. Hackworth, L egal Adviser to the Secretary of State, with respect to the practice in this matter. He said that there was no uniform procedure. In thePresidential Appointment s of Foreign Agents Without the Consent of the Senate

459 case of Dr. Frank P. Corrigan, President Roosevelt issued a commission to him in 1937 designating him “Special Represen tative with the rank of Envoy Extraord inary and Minister Plenipotentiary” to meet with representatives of the Gover nments of Venezuela and Costa Rica to aid in the solution of the boundary contr oversy. On the other hand, when Mr. Phillips was sent recently to India, the Secretary of State wrote to Mr. Phillips in substance that he was enclosing a letter signed by the President addressed to the Viceroy regarding his appointment to serve near the Government of India as the President’s personal representative. The Secretary further stated that his letter would serve in lieu of formal credentials. The usual form of credentials was not used in this case because Mr. Phillips was not being accredited to any foreign government.

Mr. Hack w orth further advises that in all cases of special representatives the instructions to them are prepared in the Department of State and signed by the Secretary or the Acting Secretary of State. The State Department also prepares for

the President ’s signature such formal document or let ter as may be required or desired in the particular case. When serving in a special capacity, the names of the representatives are not submitted by the State Department to the Senate.

W.H. EBERLY Attorney

- Adviser Office of the Assistant Solicitor Genera l