The Appointments Process and the Administrative Presidency

As with most aspects of the Constitution, the power of presidents to hire, fire, and otherwise create an administration consistent with presidential tastes leaves much to the imagination. Much of the definition of appointive and dismissal power, and the creation of executive coherence through the power of appointment and, hence, the terms of service of appointees, would eventually be shaped through case law, interpretation, and the evolution of constitutional tradition. Sections 2 and 3 of Article II of the Constitution are especially relevant in this regard. Article II describes the executive power. Section 2 of that article refers to the conditions of appointment. Specifically, it says that 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. Moreover, The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the end of their next session. One of the key phrases in the constitutional text is in the part that discusses the appointments of inferior officers--that is, the offices not specifically noted in the foregoing passage from Section 2. Such "inferior officials" do not have to be approved by the Senate but, once enabled by statute, may be appointed directly by the president or the president's "Heads of Departments." Equally notable is the limited permission given to presidents to fill vacancies when Congress is not in session--the so-called recess appointments. Although limited to a year with pay, the recess appointments are not merely used to fill offices in emergencies but also, and more importantly, to fill offices when the Senate has delayed or otherwise indicated its distaste for particular presidential nominees. In Section 3 of Article II, the president is given the authority to "take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States." The two powers and sections of Article II, taken together, constitute the origins of what in contemporary terms has become known as the administrative presidency. The "administrative presidency"--a term originated by Richard Nathan (1983), an academician and former executive branch official during the administration of Richard M. Nixon--is predicated on the president's control of the elements of administration--finances, laws, and people. The struggle for control over finances is a complicated one. Strictly speaking, the Constitution gives to Congress the power of the purse based on appropriations. Appropriations are the discretionary part of the budget. They constitute a continuously declining portion of the federal budget, however. The rise of entitlement spending (which also includes the pension benefits of federal civil and military officers) crowds out discretionary spending, as do the requirements to finance the deficit. The struggle over discretionary spending continues, with Congress holding the upper hand on domestic pork and the president having the advantage in defense appropriations. But both the president and Congress are losing ground to the expenditure commitments created by programs from the past--an obstacle to both congressional control and presidential command of the executive. This makes laws and people especially important elements of the administrative presidency, and they tend to be presidential advantages in the struggle to create a unified executive centered in the presidency. …