Appointment and Removal Power

A major difference between a presidential system of government like that of the United States and a parliamentary system, whose head of state is either a president or a monarch, is the personal power of the president to nominate and appoint key government officials who become directly responsible to him. In a parliamentary system, cabinet ministers are beholden to the parliament for their appointments and the performance of their duties. The head of state may be required to formally approve their appointments, but the cabinet, including the prime minister, is primarily a creature of the parliament. Cabinet members may lose their jobs if they lose the confidence of a majority of parliamentary members or, under most constitutions, just the lower house of the parliament.

The Framers of the Constitution struggled with the provisions regarding the American president’s appointment power, finally deciding to qualify it by requiring the Advice and Consent of the Senate. “There can be no good Executive without responsible appointment of officers to execute,” countered Pennsylvania delegate James Wilson, a supporter of a strong presidency who was unhappy with the provisions agreed on by the Constitutional Convention of 1787. As ratified in 1789, the Constitution’s Article II, section 2, tells the president that he may “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.”

In his first term of office (1789–93), George Washington eschewed partisanship and selected two members from each of the two major political factions or parties, the Federalists and the Democratic-Republicans, for the first four cabinet positions: secretaries of state, Treasury, and war and attorney general. President Andrew Jackson (1767–1845) is credited with beginning the “spoils system” of political patronage by rewarding his political supporters with appointments to government positions. Today the president’s prerogative to appoint members of his own party and his own political supporters is unquestioned.

As Supreme Court Justice Noah Swayne (1808–84) explained in United States v. Hartwell (1868): “An office is a public station, or employment, conferred by the appointment of government. The term embraces the ideas of tenure, duration, emolument [pay], and duties.” The appointment process generally begins with the president’s considering several candidates for a specific position in the executive branch or the judicial branch. The White House staff and the Federal Bureau of Investigation conduct background checks to determine if the nominee is fit for the position and is not a risk to national security. After the final selection is made, the nomination is submitted to the Senate, where it is assigned to the appropriate committee with oversight responsibility for the position or agency; federal court and Supreme Court nominees are considered by the Judiciary Committee.

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