Evening star., 1943-02-25
Wisdom of McKeIlar
Bill Questioned.

To the Editor of The Star:
Much has been made by Senator Nc
Kellar and other supporters of the Nc
Kellar bill Is. 575) in the Senate of the
provision in the Constitution empowering
the Congress by law to west the ap-
pointment of such inferior officers as
they think proper in the President alone,
in the courts Of law, or in the heads of
departments" They argue inferentially
though mistakenly I believe-that this
In effect implies that Senate conhrma-
positions in which the exercise of dis
cretion is more or less inherent This
has been interpreted in the McKellar
bill to mean all positions with $500 or
So, 800 salaries.
Carried out to its ultimate, this theory
could apply to virtually all but routine
positions OF clerks, mechanics and the
like. 1t would also do violence to the
division OF executive, judicial and legis-
lative authority in Senate if confirmation
were deemed imperative for appoint
ments made by the courts, for example.
There is, however, clear distinction
In the Constitution (Article II, section 2,
paragraph D between the power of the
Congress to determine in whom to vest
the power of appointment and the man
datory requirement Of confirmation of
appointments of inferior officers. Senator
McKellar has led his colleagues to believe
that the Constitution imposes that re-
sponsibility on the Senate in the case Of
all inferior officers" This interpreta-
ton is unsound.
The important distinction made in the
Constitution is not mere chance 1t was
deliberate. Close reading of the Consti-
tuition will show that "a consent of the
Senate is required in the appointment by
the President of all ambassadors, min
listers and consuls, judges of the Supreme
Court and all other officers of the United
States whose appointments are not here
In otherwise provided for, and which
shall be established by law: 90 Congress
may vest the appointment of such in
ferlor officers in the President alone,
in the courts of law or in the heads of
departments.
The reference In the Constitution to
inferior oftcers' is not to all inferior
officers in generic sense The reference
is only to inferior officers established by
law" This must mean specific officers
established by some express statute set
ting forth the specific powers and func-
tions OF such officers. 1t applies to off,
GERS vested by statute with special au-
thority not merely to those assuming
authority or undertaking to exercise dis
cretion. 1t does not apply, and cannot
by the nature of things apply, to the
thousands of administrative aides whose
positions are provided solely by budget
authority or authorized by department
head. The creation of positions under
a general authority to an agency, bureau
or division to carry out function
authorized by the Congress does not
place such positions in the category of
inferior officers established by law" as
contemplated by the Constitution. Prac-
tical construction of the Constitutional
section as we'll as the general practice in
the States having somewhat similar pro-
visions calling for legislative confirmation
Of appointments by the Governor sup
ports this view. Confirmation is gener-
ally restricted to the relatively few
policy determining ofices held by persons
Of the rank Of commissioners. depart