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 negotiations or investigations.

September 23, 1943

MEMORANDUM FOR THE ASSISTANT SOLICITOR GENERAL

Clause 2 of Section 2, Article II, of the Constitution provides that 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 

consent 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 courts. 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 (1942). 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 Ministers” within the meaning of the constitutional provision. In many 

cases such personal representatives have been given diplomatic rank, 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 government. 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 then customarily accorded the diplomatic privileges 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 as Chairman of the Delegation of the United States to the 

General Disarmament Conference at Geneva, with the rank of Ambassador while 

serving in that capacity; and (2) Myron Taylor in 1938 as the American representative on the special intergovernmental committee to facilitate the emigration from 

Austria and Germany of political refugees, with the rank of Ambassador Extraordinary and Plenipotentiary. 4 Hackworth, Digest of International Law at 412.

Moore gives the following instances of appointments by the Secretaries of 

State:
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May 12, 1825, John James Appleton was appointed by the Secretary 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 McIlvaine 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 Samoa.

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 mission.

5 id. § 858, 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 Europe, 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 

Minister for Foreign Affairs in Hungary as “special and confidential agent of the 

United States to the Government of Hungary.” 1 id. § 72, at 219. Moore, however, 

also states that Mr. Mann “was appointed by President Taylor as a special and 

confidential agent to Hungary.” 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, Legal Adviser to the Secretary of State, with respect 

to the practice in this matter. He said that there was no uniform procedure. In the 
Presidential Appointments 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 Representative with the rank of Envoy Extraordinary and Minister Plenipotentiary” to meet with representatives of the Governments of Venezuela and Costa Rica to aid in the solution of the boundary controversy. 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. Hackworth 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 letter 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 General