An officer of the United States is a functionary of the executive or judicial branches of the federal government of the United States to whom is delegated some part of the country's sovereign power . The term officer of the United States is not a title, but a term of classification for a certain type of official.
138-753: The Appointments Clause of the United States Constitution empowers the President of the United States to nominate and, with the advice and consent (confirmation) of the United States Senate , appoint public officials . Although the Senate must confirm certain principal officers (including ambassadors , Cabinet secretaries, and federal judges ), Congress may by law invest the appointment of "inferior" officers to
276-606: A President of the United States. . . ." This grant of authority establishes the President as the chief constitutional officer of the Executive Branch, entrusted with supervisory and policy responsibilities of utmost discretion and sensitivity. (457 U.S. 749-750).” The Appointments Clause of the Constitution ( Article II , section 2, clause 2), empowers the president of the United States to appoint "Officers of
414-616: A bicameral (two-house) Congress that was to be elected on a proportional basis based on state population, an elected chief executive, and an appointed judicial branch. An alternative to the Virginia Plan , known as the New Jersey Plan , also called for an elected executive but retained the legislative structure created by the Articles, a unicameral Congress where all states had one vote. On June 19, 1787, delegates rejected
552-618: A calligrapher) on foolscap folio sized parchment. The president and secretary of state usually hand-sign these certificates and, like others, they are sealed with the Great Seal. The commissions of military officers are signed under the line "for the President" by the appropriate service secretary (e.g. the secretary of the Army , secretary of the Navy , secretary of the Air Force , or for
690-479: A citizen of the United States for seven years, and live in the state they represent. Senators must be at least 30 years old, be a citizen for nine years, and live in the state they represent. Article I, Section 8 enumerates the powers delegated to the legislature. Financially, Congress has the power to tax, borrow, pay debt and provide for the common defense and the general welfare; to regulate commerce, bankruptcies, and coin money. To regulate internal affairs, it has
828-472: A convention of state delegates in Philadelphia to propose revisions to the Articles. Unlike earlier attempts, the convention was not meant for new laws or piecemeal alterations, but for the "sole and express purpose of revising the Articles of Confederation." The convention was not limited to commerce; rather, it was intended to "render the federal constitution adequate to the exigencies of government and
966-410: A descriptive clause that can be removed from the sentence to leave the sentence still discussing all Officers of the United States, rather than as a restrictive clause compatible with existence of Officers of the United States that are out of scope of the sentence, but have appointment "herein [in the constitution] provided for". A select committee report to the 39th Congress identified the “officers of
1104-642: A major influence on the Albany Plan of Union , Benjamin Franklin's plan to create a unified government for the Thirteen Colonies , which was rejected. The Constitution includes four sections: an introductory paragraph titled Preamble, a list of seven Articles that define the government's framework, an untitled closing endorsement with the signatures of 39 framers, and 27 amendments that have been adopted under Article V (see below ). The Preamble,
1242-523: A permanent capital. North Carolina waited to ratify the Constitution until after the Bill of Rights was passed by the new Congress, and Rhode Island's ratification would only come after a threatened trade embargo. The U.S. Constitution was a federal one and was greatly influenced by the study of Magna Carta and other federations, both ancient and extant. The Due Process Clause of the Constitution
1380-519: A restraint on Congress and as an important structural element in the separation of powers. Attempts by Congress to circumvent the Appointments Clause, either by making appointments directly, or through devices such as "unilaterally appointing an incumbent to a new and distinct office" under the guise of legislating new duties for an existing office", have been rebuffed by the courts. The Appointments Clause distinguishes between officers of
1518-405: A set procedure. First, the Constitution must describe the office, or the U.S. Congress must create the office through a statute (though the president may independently create offices when exercising his exclusive jurisdiction in the exercise of foreign affairs, generally meaning ambassadorships). Second, the president nominates a person to fill the office and then commissions that person at which time
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#17327654625591656-470: Is in theory a commander of large military or naval units by presidential direction or in the event of catastrophic casualties among his or her superiors." The officer's authority to command the forces of the U.S. draws its legitimacy from the president himself as "Commander in Chief of the Army and Navy of the United States"; the president cannot reasonably be expected to command every soldier, or any soldier, in
1794-586: Is interpreted, supplemented, and implemented by a large body of federal constitutional law and has influenced the constitutions of other nations. From September 5, 1774, to March 1, 1781, the Second Continental Congress , convened in Philadelphia in what today is called Independence Hall , functioned as the provisional government of the United States. Delegates to the First Continental Congress in 1774 and then
1932-525: Is needed to end debate. The only exception was for nominations to the Supreme Court of the United States , which could still be blocked from going to a vote by a filibuster, until the Senate rules were again changed on April 6, 2017 during Senate debate on the nomination of Neil Gorsuch to the Supreme Court. Congress itself may not exercise the appointment power; its functions are limited to
2070-410: Is not a formal power exercised by the Senate. On November 21, 2013, the Senate changed its rules regarding the number of votes needed to end debate on a presidential nomination and bring it to a vote. Before that date, a minority of senators could engage in a filibuster and block a vote on a nomination unless three-fifths of senators voted to end debate. Under the new rules, a simple majority is all that
2208-595: Is not the best." The advocates of the Constitution were anxious to obtain unanimous support of all twelve states represented in the convention. Their accepted formula for the closing endorsement was "Done in Convention, by the unanimous consent of the States present." At the end of the convention, the proposal was agreed to by eleven state delegations and the lone remaining delegate from New York, Alexander Hamilton. Within three days of its signing on September 17, 1787,
2346-726: Is so, then "Heads of Departments" would appear to include (as Justice Antonin Scalia reasons in his concurrence in Freytag ) the heads of the Cabinet Departments and also the heads of "all independent executive establishments". From 1999 to 2008, a change in the statute governing the United States Patent and Trademark Office (USPTO) permitted a number of judges of the Board of Patent Appeals and Interferences and
2484-551: Is to receive only one compensation from the federal government. The inaugural oath is specified to preserve, protect and defend the Constitution. The president is the Commander in Chief of the United States Armed Forces , as well as of state militias when they are mobilized. The president makes treaties with the advice and consent of a two-thirds quorum of the Senate. To administer the federal government,
2622-404: The 13 original states ; Rhode Island refused to send delegates. The convention's initial mandate was limited to amending the Articles of Confederation, which had proven highly ineffective in meeting the young nation's needs. Almost immediately, however, delegates began considering measures to replace the Articles. The first proposal discussed, introduced by delegates from Virginia , called for
2760-569: The British Government was based on persons "holding sovereign authority delegated from the King that enabled them in conducting the affairs of government to affect the people." This was an extension of the general common-law rule that "where one man hath to do with another's affairs against his will, and without his leave, that this is an office, and he who is in it, is an officer." In February 2020, The United States Court of Appeals for
2898-638: The Cato Institute , and Seth Barrett Tillman, member of the Faculty of Law at Maynooth University , have argued that the president is not constitutionally an "officer of the United States". Ilya Somin, chair of Constitutional Studies at the Cato Institute, has disagreed, noting that the Appointments Clause refers to "Officers of the United States, whose Appointments are not herein [in the constitution] otherwise provided for", and propounding that
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#17327654625593036-463: The Coast Guard , the secretary of homeland security ), instead of the secretary of state, and are sealed with their respective departmental seal (e.g. Army seal ) instead of the Great Seal. The presentation of commissions for civilian officers generally follows the following style, or some variation thereof: To all who shall see these presents, greeting: Know Ye that, reposing special trust in
3174-482: The Colorado Supreme Court ruled that the U.S. president is an officer of the United States as pertains to Section 3 of the 14th Amendment of the United States Constitution , reversing a November 2023 contrary ruling by a Colorado district court . Section 3 regards the disqualification from public office of any officers of the United States who have engaged in insurrection or rebellion against
3312-482: The Constitutional Convention , "As the President was to nominate, there would be responsibility, and as the Senate was to concur, there would be security". The Appointments Clause confers plenary power to the President to nominate, and confers plenary power to the Senate to reject or confirm a nominee, through its advice and consent provision. As with other separation of powers provisions in
3450-524: The Freytag decision seems to have reserved the question whether the heads of non-Cabinet executive-branch agencies could be deemed to be "Heads of Departments" for purposes of the Appointments Clause. Perhaps the phrase "like the Cabinet-level departments" was included in Freytag as an indication that the Court would not necessarily be inflexible about requiring Cabinet status in future cases. If that
3588-584: The Necessary and Proper Clause in Article One to allow Congress to enact legislation that is neither expressly allowed by the enumerated powers nor expressly denied in the limitations on Congress. In McCulloch v. Maryland (1819), the Supreme Court read the Necessary and Proper Clause to permit the federal government to take action that would "enable [it] to perform the high duties assigned to it [by
3726-501: The Second Continental Congress from 1775 to 1781 were chosen largely from the revolutionary committees of correspondence in various colonies rather than through the colonial governments of the Thirteen Colonies . The Articles of Confederation and Perpetual Union was the first constitution of the United States. The document was drafted by a committee appointed by the Second Continental Congress in mid-June 1777 and
3864-595: The State of the Union , and by the Recommendation Clause , recommends "necessary and expedient" national measures. The president may convene and adjourn Congress under special circumstances. Section 4 provides for the removal of the president and other federal officers. The president is removed on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors. Article III describes
4002-424: The Supreme Court and other federal courts ( Article III ). Article IV , Article V , and Article VI embody concepts of federalism , describing the rights and responsibilities of state governments , the states in relationship to the federal government, and the shared process of constitutional amendment. Article VII establishes the procedure subsequently used by the 13 states to ratify it. The Constitution of
4140-541: The Trademark Trial and Appeal Board to be appointed by the USPTO Director. This arrangement was challenged as unconstitutional under the Appointments Clause because the appointing party was not the head of the department. In order to avoid the crisis that would result from new challenges to many BPAI and TTAB decisions made in that period, Congress passed a 2008 amendment to the statute which specifies that
4278-480: The U.S. postmaster general , who is appointed by the Board of Governors of the U.S. Postal Service , which, in turn, is appointed by the president. Members of the U.S. Congress —the legislative branch of the U.S. government—are not "officers of the United States" and cannot simultaneously serve in Congress and as an officer of the U.S. under the "Ineligibility Clause" (also called the "Incompatibility Clause") of
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4416-722: The Virginia Declaration of Rights were incorporated into the Bill of Rights. Upon the arrival of the American Revolution, many of the rights guaranteed by the Federal Bill of Rights were recognized as being inspired by English law. A substantial body of thought had been developed from the literature of republicanism in the United States , typically demonstrated by the works of John Adams , who often quoted Blackstone and Montesquieu verbatim, and applied to
4554-401: The court system (the judicial branch ), including the Supreme Court . The article describes the kinds of cases the court takes as original jurisdiction . Congress can create lower courts and an appeals process and enacts law defining crimes and punishments. Article Three also protects the right to trial by jury in all criminal cases , and defines the crime of treason . Officer of
4692-549: The egalitarian character of the American people. In a 1787 letter to John Rutledge , Jefferson asserted that "The only condition on earth to be compared with [American government] ... is that of the Indians, where they still have less law than we." American Indian history scholars Donald Grinde and Bruce Johansen claim there is "overwhelming evidence" that Iroquois Confederacy political concepts and ideas influenced
4830-585: The "sovereign power" of the U.S. to exercise; while a letter carrier for the U.S. Postal Service has not. Some very prominent title-holders, including the White House Chief of Staff , the White House Press Secretary and most other high-profile presidential staff assistants, are only employees of the U.S. as they have no authority to exercise the sovereign power of the federal government. In addition to civilian officers of
4968-543: The 74 delegates appointed by the states, 55 attended. The delegates were generally convinced that an effective central government with a wide range of enforceable powers must replace the weaker Congress established by the Articles of Confederation. Two plans for structuring the federal government arose at the convention's outset: On May 31, the Convention devolved into the Committee of the Whole , charged with considering
5106-508: The Appointments Clause ( Article II, Section 2, Clause 2 , which in part concerns appointment by the president of Officers of the United States). Citing a report by the Supreme Court of the United States in the 2010 case of Free Enterprise Fund v. Public Company Accounting Oversight Board stating that "The people do not vote for the 'Officers of the United States'", Josh Blackman, a constitutional law professor and adjunct scholar at
5244-578: The Appointments Clause would have given the President a broader power to "appoint officers in all cases not otherwise provided for by this Constitution", but some delegates of the Philadelphia Constitutional Convention worried that this language would permit the President to create offices as well as to fill them, a classic case of institutional corruption . The requirement that the President can appoint inferior officers only when Congress has "by Law vest[ed]" that power in
5382-447: The Appointments Clause. In Buckley v. Valeo , the Supreme Court held that only those appointees "exercising significant authority pursuant to the laws of the United States" are "Officers of the United States", and hence it is only those who exercise such "significant authority" who must be appointed by a mechanism set forth in the Appointments Clause. The Framers did not define the line between principal officers and inferior officers, and
5520-457: The Cabinet-level departments". The use of the phrase "like the Cabinet-level departments" could mean that, in addition to the Cabinet departments, other entities within the executive branch that are sufficiently analogous to the Cabinet departments may qualify as "Departments" for purposes of the Appointments Clause. On the other hand, the Freytag decision itself seemed unclear what it meant by
5658-459: The Colorado district court also involved giving benefit of the doubt to the presidential candidate. The Colorado Supreme Court ruling dismissed the resulting interpretation of Section 3 as being contrary to its "plain language and history". One point of contention in the wider context of the U.S. Constitution is whether classifying the president as an officer of the United States conflicts with
Appointments Clause - Misplaced Pages Continue
5796-562: The Confederation had "virtually ceased trying to govern." The vision of a respectable nation among nations seemed to be fading in the eyes of revolutionaries such as George Washington , Benjamin Franklin , and Rufus King . Their dream of a republic , a nation without hereditary rulers, with power derived from the people in frequent elections, was in doubt. On February 21, 1787, the Confederation Congress called
5934-657: 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. The Framers of the U.S. Constitution understood the role of high officers specially imbued with certain authority to act on behalf of the head of state within the context of their earlier experience with the British Crown . Day-to-day administration of
6072-417: 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. The President has plenary power to nominate political appointees, and the Senate's role is only advisory to the nomination, because the President is not bound to appoint his own nominee even with their advice. As Gouverneur Morris stated in
6210-701: The Constitution (Article 1, Section 6, Clause 2). This provision states: No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been increased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office. The question of whether
6348-416: The Constitution delineates the frame of the federal government . The Constitution's first three articles embody the doctrine of the separation of powers , in which the federal government is divided into three branches: the legislative , consisting of the bicameral Congress ( Article I ); the executive , consisting of the president and subordinate officers ( Article II ); and the judicial , consisting of
6486-569: The Constitution was submitted to the Congress of the Confederation , then sitting in New York City, the nation's temporary capital. The document, originally intended as a revision of the Articles of Confederation, instead introduced a completely new form of government. While members of Congress had the power to reject it, they voted unanimously on September 28 to forward the proposal to the thirteen states for their ratification . Under
6624-605: The Constitution's introductory paragraph, lays out the purposes of the new government: We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America. The opening words, " We
6762-777: The Constitution, the Federalists , and the other opposing it, the so-called Anti-Federalists . Over the ensuing months, the proposal was debated, criticized, and expounded upon clause by clause. In the state of New York , at the time a hotbed of anti-Federalism, three delegates from the Philadelphia Convention who were also members of the Congress— Hamilton , Madison , and Jay —published a series of commentaries, now known as The Federalist Papers , in support of ratification. Before year's end, three state legislatures voted in favor of ratification. Delaware
6900-486: The Constitution, the wording here seeks to ensure accountability and preempt tyranny. Alexander Hamilton defended the use of a public confirmation of officers in Federalist No. 77 , where he commented "a conclave in which cabal and intrigue will have their full scope. ... [T]he desire of mutual gratification will beget a scandalous bartering of votes and bargaining for places." This separation of powers between
7038-508: The Constitution] in the manner most beneficial to the people," even if that action is not itself within the enumerated powers. Chief Justice Marshall clarified: "Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are Constitutional." Article II describes
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#17327654625597176-682: The Constitutional Convention. Prior to and during the framing and signing of the Constitution, Blackstone , Hume , Locke and Montesquieu were among the political philosophers most frequently referred to. Historian Herbert W. Schneider held that the Scottish Enlightenment was "probably the most potent single tradition in the American Enlightenment" and the advancement of personal liberties. Historian Jack P. Greene maintains that by 1776
7314-501: The Court held that administrative law judges are inferior officers within the meaning of the Appointments Clause of the United States Constitution. Another chief question is, what constitutes a "Department", when Congress seeks to place the appointment power away from the President? The phrase "Heads of Departments" has not been precisely defined by the Supreme Court. On the one hand, judicial interpretations of
7452-674: The Court stated that " 'inferior Officers' are officers whose work is directed and supervised at some level by others who were appointed by Presidential nomination with the advice and consent of the Senate." Among those officers recognized as "inferior" are district court clerks, federal supervisors of elections, the Watergate Special Prosecutor, and an Independent Counsel appointed under the Ethics in Government Act of 1978 . In Lucia v. SEC , 585 U.S. 237 (2018),
7590-551: The District of Columbia Circuit in K&;D LLC v. Trump Old Post Office, LLC, 951 F. 3d 503, concluded, at President Trump 's request, that the U.S. president is a federal officer, when they wrote: “President Trump removed the suit to federal court under the federal officer removal statute, 28 U.S.C. § 1442(a)(1).” According to an April 2007 memorandum opinion by the U.S. Department of Justice , Office of Legal Counsel , addressed to
7728-581: The Ineligibility Clause bars member of Congress or civil officers of the U.S. from simultaneously serving in the military (especially the military reserves ) has never been definitively resolved. A case involving the issue was litigated to the Supreme Court in Schlesinger v. Reservists Committee to Stop the War , but the Supreme Court decided the case on procedural grounds and did not address
7866-538: The Ineligibility Clause issue. Congress has enacted legislation provided that "a Reserve of the armed forces who is not on active duty or who is on active duty for training is deemed not an employee or an individual holding an office of trust or profit or discharging an official function under or in connection with the U.S. because of his appointment, oath, or status, or any duties or functions performed or pay or allowances received in that capacity." A 2009 Congressional Research Service report noted that "Because Congress has
8004-407: The Iroquois influence thesis is largely the product of "white interpretations of Indians" and "scholarly misapprehension". John Napoleon Brinton Hewitt , who was born on the Tuscarora Indian Reservation , and was an ethnologist at the Smithsonian Institution 's Bureau of Ethnology is often cited by historians of Iroquois history. Hewitt, however, rejected the idea that the Iroquois League had
8142-420: The Law of Nations, to declare war and make rules of war. The final Necessary and Proper Clause , also known as the Elastic Clause, expressly confers incidental powers upon Congress without the Articles' requirement for express delegation for each and every power. Article I, Section 9 lists eight specific limits on congressional power. The Supreme Court has sometimes broadly interpreted the Commerce Clause and
8280-482: The Laws of England are considered the most influential books on law in the new republic. Madison made frequent reference to Blackstone, Locke, and Montesquieu, all of whom were among the most prominent political theorists of the late eighteenth century. Following the Glorious Revolution of 1688, British political philosopher John Locke was a major influence, expanding on the contract theory of government advanced by Thomas Hobbes , his contemporary. Locke advanced
8418-419: The New Jersey Plan with three states voting in favor, seven against, and one divided. The plan's defeat led to a series of compromises centering primarily on two issues: slavery and proportional representation. The first of these pitted Northern states, where slavery was slowly being abolished, against Southern states, whose agricultural economies depended on slave labor. The issue of proportional representation
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#17327654625598556-404: The People ", represented a new thought: the idea that the people and not the states were the source of the government's legitimacy. Coined by Gouverneur Morris of Pennsylvania, who chaired the convention's Committee of Style, the phrase is considered an improvement on the section's original draft which followed the words We the People with a list of the 13 states. In place of the names of
8694-484: The President alone, or to courts of law or heads of departments. The Appointments Clause appears at Article II, Section 2, Clause 2 and provides: ... and [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
8832-540: The President and Senate is also present in the (immediately preceding) Treaty Clause of the Constitution, which gives international treaty-making power to the President, but attaches to it the proviso of the Senate's advice and consent. Several framers of the U.S. Constitution explained that the required role of the Senate is to advise the President after the nomination has been made by the President. Roger Sherman believed that advice before nomination could still be helpful. Likewise, President George Washington took
8970-459: The President and Vice President hold their offices is 'provide[d] otherwise' by the Constitution" in explication of the following opinion of his: "Except where the Constitution or a valid federal law provides otherwise, all 'Officers of the United States' must be appointed by the President 'by and with the Advice and Consent of the Senate. ' " Most civilian officers of the U.S. are issued written commissions . Those who do not require confirmation of
9108-400: The President sought to preclude that possibility. One chief question recurs under the "by Law" language: Who are "inferior Officers", not subject to the requirement of advice and consent; and (2) what constitutes a "Department", when Congress seeks to place the appointment power away from the President? As an initial matter, most government employees are not officers and thus are not subject to
9246-458: The Secretary of Commerce is responsible for such appointments, and permitting the Secretary to retroactively appoint those persons named by the USPTO Director. United States Constitution [REDACTED] [REDACTED] The Constitution of the United States is the supreme law of the United States . It superseded the Articles of Confederation , the nation's first constitution , on March 4, 1789. Originally including seven articles,
9384-462: The Senate (with each state's legislators generally choosing their respective senators), and that all money bills would originate in the House. The Great Compromise ended the stalemate between patriots and nationalists, leading to numerous other compromises in a spirit of accommodation. There were sectional interests to be balanced by the Three-Fifths Compromise ; reconciliation on Presidential term, powers, and method of selection; and jurisdiction of
9522-472: The Senate are provided semi-engraved commission certificates (partially printed with hand inscription of name, date, and title by a White House calligrapher ) on letter-sized parchment. To this is set the signatures of the president and the U.S. Secretary of State applied by autopen . The document is sealed with the Great Seal of the U.S. Those who require confirmation of the Senate are issued fully engraved certificates (certificates completely hand-written by
9660-476: The Senate does not require the commissions of all military officers to be confirmed; however, anyone being first promoted to major in the Regular Army, Marine Corps, Air Force, or Space Force, or lieutenant commander in the Regular Navy, does require such confirmation. Additionally, military officers promoted in the Reserves to colonel (or captain in the Navy) also require Senate confirmation. This results in hundreds of promotions that annually must be confirmed by
9798-459: The Senate's role in advice and consent, and to deciding whether to vest a direct appointment power over a given office in the President, a head of department, or the courts of law. The framers of the U.S. Constitution were particularly concerned that Congress might seek to exercise the appointment power and fill offices with their supporters, to the derogation of the President's control over the executive branch. The Appointments Clause thus functions as
9936-399: The Senate, though these are typically confirmed en masse without individual hearings. Finally, some persons not appointed by the president but, instead, appointed by persons or bodies who are, themselves, appointed by the president may be officers of the United States if defined as such under the law. Examples include U.S. magistrate judges , who are appointed by U.S. district courts , and
10074-476: The Supreme Court has been content to approach the analysis on a case-by-case basis rather than through a definitive test. The Court listed in Morrison v. Olson (1988) certain factors as hallmarks of "inferior Officer" status, such as removability by a higher executive branch official other than the President, and limitations on the officer's duties, jurisdiction, and tenure. In Edmond v. United States (1997)
10212-558: The U.S. Constitution , and are considered to be the most outspoken supporters of the Iroquois thesis. The idea as to the extent of that influence on the founding, however, varies among historians and has been questioned or criticized by various historians, including Samuel Payne, William Starna, George Hamell, and historian and archaeologist Philip Levy , who claims the evidence is largely coincidental and circumstantial. The most outspoken critic, anthropologist Elisabeth Tooker , claimed
10350-496: The U.S. Senate must give its "advise and consent" which, in practice, means approval by vote of a simple majority. An officer of the U.S. assumes his office's full authority upon the issuance of the commission. However, officers must take an oath of office before they can be paid. According to a 2012 study by the Congressional Research Service , there are between 1,200 and 1,400 civilian officers of
10488-552: The U.S. are entitled to preface their names with the honorific style "the Honorable" for life, but this rarely occurs. Officers of the U.S. should not be confused with employees of the U.S.; the latter are more numerous and lack the special legal authority of the former. The U.S. Supreme Court wrote in Nixon v. Fitzgerald , 457 U.S. 731 (1982): “Article II, § 1, of the Constitution provides that "[t]he executive Power shall be vested in
10626-778: The U.S. in the executive branch are numerous, but some examples include the secretary of defense , the attorney general , the administrator of the Environmental Protection Agency , the director of national intelligence , the director of the Federal Bureau of Investigation , the administrator of the National Aeronautics and Space Administration , and members of the Federal Communications Commission and Interstate Commerce Commission . In December 2023,
10764-578: The U.S. which are subject to the "advice and consent" of the Senate prior to commissioning. A further 100,000 civilian officers of the U.S. have been exempted from this requirement by the U.S. Congress under the "inferior officer" exemption allowed by the Appointments Clause. Among military officers there were, as of 2012, 127,966 officers in the Selected Reserve and 365,483 officers in the U.S. Armed Forces. The NOAA Corps and U.S. Public Health Service had smaller numbers of officers. Officers of
10902-522: The U.S., persons who hold military commissions are also considered officers of the U.S. While not explicitly defined as such in the Constitution, this fact is implicit in its structure. According to a 1996 opinion by then- Assistant Attorney General Walter Dellinger of the Justice Department's Office of Legal Counsel , "even the lowest ranking military or naval officer is a potential commander of U.S. armed forces in combat—and, indeed,
11040-469: The Union together and aided the Constitution's ratification, slavery continued for six more decades and the less populous states continue to have disproportional representation in the U.S. Senate and Electoral College . Since the Constitution became operational in 1789, it has been amended 27 times. The first ten amendments, known collectively as the Bill of Rights , offer specific protections of individual liberty and justice and place restrictions on
11178-602: The United States Under the Appointments Clause of the Constitution , the principal officers of the U.S., such as federal judges, ambassadors, and "public Ministers" ( Cabinet members) are appointed by the president with the advice and consent of the Senate , but Congress may vest the appointment of inferior officers to the president, courts, or federal department heads. Civilian officers of
11316-491: The United States and an Employee of the United States , therefore, ultimately rests on whether the office held has been explicitly delegated part of the "sovereign power of the United States". Delegation of "sovereign power" means possession of the authority to commit the federal government of the U.S. to some legal obligation, such as by signing a contract, executing a treaty, interpreting a law, or issuing military orders. A federal judge , for instance, has been delegated part of
11454-435: The United States who must be appointed with the advice and consent of the Senate; and those who may be specified by acts of Congress, some of whom may be appointed with the advice and consent of the Senate, but whose appointment Congress may place instead in the President alone, in the courts of law, or in the heads of departments. This last group are commonly referred to as "inferior officers". An earlier proposed draft of
11592-414: The United States is the oldest and longest-standing written and codified national constitution in force in the world. The drafting of the Constitution , often referred to as its framing, was completed at the Constitutional Convention , which assembled at Independence Hall in Philadelphia between May 25 and September 17, 1787. Delegates to the convention were chosen by the state legislatures of 12 of
11730-415: The United States of America the two-hundred and fortieth. BY THE PRESIDENT. Civilian officers of the U.S. are permitted to be titled " the Honorable " for life, even after they cease being an officer of the U.S. In practice, however, this custom is rarely observed except in the case of judges. When it is invoked for non-judicial officers it is only done in written address or platform introductions and never by
11868-551: The United States" with the " advice and consent " of the U.S. Senate . The same clause also allows lower-level officials to be appointed without the advice and consent process. ... he 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
12006-624: The United States. It was used by the Colorado Supreme Court in Anderson v. Griswold , to disqualify Donald Trump from the ballot for the 2024 Colorado Republican primary , pending an appeal to the US Supreme Court. This has raised the question of whether the president is an officer of the United States. There are two approaches to an answer: Textualists interpret the meaning of the text, and originalists interpret
12144-738: The United States” with “appointment herein provided for” as “the President, Vice President, and members of Congress”, despite having considered at least part of the Incompatibility Clause. Similarly, an essay in The Federalist Papers spells out that Senators are not covered by the first part of the Appointments Clause since they are "otherwise provided for" in the Constitution, and established by it, rather than "by law". And Blackman and Tillman admit to having been advised by Justice Scalia , "The manner in which
12282-548: The Virginia Plan. On June 13, the Virginia resolutions in amended form were reported out of committee. The New Jersey Plan was put forward in response to the Virginia Plan. A Committee of Eleven, including one delegate from each state represented, met from July 2 to 16 to work out a compromise on the issue of representation in the federal legislature. All agreed to a republican form of government grounded in representing
12420-464: The appointee comes to occupy the office and is an officer of the U.S. However, if the office is that of ambassador , "public minister" (member of the Cabinet of the U.S. ), judge of the U.S. Supreme Court, or if the office has not been specifically vested for filling "in the President alone" by the authorizing legislation, then an intermediate step is required before the commission can be issued, namely,
12558-418: The case of K&D LLC v. Trump Old Post Office, LLC, 951 F. 3d 503, President Trump successfully argued that the U.S. president qualifies as an officer of the United States, citing 28 U.S.C. § 1442(a)(1). The court agreed, stating this statute permitted President Trump, in his capacity as an "officer... of the United States", to remove the state suit relating to duties of his office to federal court. However,
12696-401: The close of these discussions, on September 8, a Committee of Style and Arrangement, including Alexander Hamilton from New York , William Samuel Johnson from Connecticut , Rufus King from Massachusetts , James Madison from Virginia, and Gouverneur Morris from Pennsylvania, was appointed to distill a final draft constitution from the 23 approved articles. The final draft, presented to
12834-420: The convention on September 12, contained seven articles, a preamble and a closing endorsement , of which Morris was the primary author. The committee also presented a proposed letter to accompany the constitution when delivered to Congress. The final document, engrossed by Jacob Shallus , was taken up on Monday, September 17, at the convention's final session. Several of the delegates were disappointed in
12972-998: The creation of state constitutions . While the ideas of unalienable rights, the separation of powers and the structure of the Constitution were largely influenced by the European Enlightenment thinkers, like Montesquieu , John Locke and others, Benjamin Franklin and Thomas Jefferson still had reservations about the existing forms of government in Europe. In a speech at the Constitutional Convention Franklin stated, "We have gone back to ancient history for models of Government, and examined different forms of those Republics ... And we have viewed modern States all round Europe but find none of their Constitutions suitable to our circumstances." Jefferson maintained, that most European governments were autocratic monarchies and not compatible with
13110-418: The federal judiciary. On July 24, a Committee of Detail , including John Rutledge (South Carolina), Edmund Randolph (Virginia), Nathaniel Gorham (Massachusetts), Oliver Ellsworth (Connecticut), and James Wilson (Pennsylvania), was elected to draft a detailed constitution reflective of the resolutions passed by the convention up to that point. The Convention recessed from July 26 to August 6 to await
13248-452: The field and so delegates his authority to command to officers he commissions. Commissioned officers of the eight uniformed services of the U.S. —the Army , Marine Corps , Navy , Air Force , Space Force , Coast Guard , National Oceanic and Atmospheric Administration (NOAA) Corps , and Public Health Service Commissioned Corps —are all officers of the U.S. Under current law,
13386-433: The first senators and representatives, the first Wednesday of January (January 7, 1789); electing the first president, the first Wednesday of February (February 4); and officially starting the new government, the first Wednesday of March (March 4), when the first Congress would convene in New York City. As its final act, the Congress of Confederation agreed to purchase 10 square miles from Maryland and Virginia for establishing
13524-480: The focus of each Article remains the same as when adopted in 1787. Article I describes the Congress , the legislative branch of the federal government. Section 1 reads, "All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives ." The article establishes the manner of election and the qualifications of members of each body. Representatives must be at least 25 years old, be
13662-415: The founders drew heavily upon Magna Carta and the later writings of "Enlightenment rationalism" and English common law . Historian Daniel Walker Howe notes that Benjamin Franklin greatly admired David Hume , an eighteenth-century Scottish philosopher, and had studied many of his works while at Edinburgh in 1760. Both embraced the idea that high-ranking public officials should receive no salary and that
13800-424: The general counsels of the executive branch, defined "officer of the United States" as: a position to which is delegated by legal authority a portion of the sovereign power of the federal government and that is 'continuing' in a federal office subject to the Constitution's Appointment Clause. A person who would hold such a position must be properly made an 'officer of the United States' by being appointed pursuant to
13938-637: The government, and some paid nothing. A few states did meet the interest payments toward the national debt owed by their citizens, but nothing greater, and no interest was paid on debts owed foreign governments. By 1786, the United States was facing default on its outstanding debts. Under the Articles, the United States had little ability to defend its sovereignty. Most of the troops in the nation's 625-man army were deployed facing non-threatening British forts on American soil. Soldiers were not being paid, some were deserting, and others were threatening mutiny. Spain closed New Orleans to American commerce, despite
14076-467: The idea of separation had for its purpose the even distribution of authority among the several branches of government. The English Bill of Rights (1689) was an inspiration for the American Bill of Rights. Both require jury trials , contain a right to keep and bear arms , prohibit excessive bail and forbid " cruel and unusual punishments ". Many liberties protected by state constitutions and
14214-434: The integrity, ability, and fidelity of John Dow, I have nominated and, by and with the advice and consent of the Senate, do appoint John Dow as Librarian of Congress , and do authorize and empower him to execute and fulfill the duties of that office according to law, and to have and to hold said office, with all the powers, privileges, and emoluments to the same of right appertaining unto him, the said Librarian of Congress, for
14352-706: The lower class was a better judge of character when it came to choosing their representatives. In his Institutes of the Lawes of England , Coke interpreted Magna Carta protections and rights to apply not just to nobles, but to all British subjects. In writing the Virginia Charter of 1606 , he enabled the King in Parliament to give those to be born in the colonies all rights and liberties as though they were born in England. William Blackstone's Commentaries on
14490-464: The need for balanced forces pushing against each other to prevent tyranny (reflecting the influence of Polybius 's 2nd century BC treatise on the checks and balances of the Roman Republic ). In his The Spirit of Law , Montesquieu maintained that the separation of state powers should be by its service to the people's liberty: legislative, executive and judicial, while also emphasizing that
14628-586: The newly formed states. Despite these limitations, based on the Congressional authority granted in Article 9, the league of states was considered as strong as any similar republican confederation ever formed. The chief problem was, in the words of George Washington , "no money." The Confederated Congress could print money, but it was worthless, and while the Congress could borrow money, it could not pay it back. No state paid its share of taxes to support
14766-477: The office, qualifications, and duties of the President of the United States and the Vice President . The President is head of the executive branch of the federal government , as well as the nation's head of state and head of government . Article two is modified by the 12th Amendment , which tacitly acknowledges political parties, and the 25th Amendment relating to office succession. The president
14904-603: The people in the states. For the legislature, two issues were to be decided: how the votes were to be allocated among the states in the Congress, and how the representatives should be elected. In its report, now known as the Connecticut Compromise (or "Great Compromise"), the committee proposed proportional representation for seats in the House of Representatives based on population (with the people voting for representatives), and equal representation for each State in
15042-576: The phrase "like the Cabinet-level departments", and certainly stepped back from any bright-line test. The Freytag decision sought to harmonize its analysis with the interpretation given the different term "executive Departments" in the Opinion Clause (which has been interpreted to refer only to Cabinet departments) and with earlier cases that suggested that only the Cabinet Secretaries qualified as "Heads of Departments". Ultimately,
15180-518: The phrase refer to the heads of departments that are within the executive branch, or according to Buckley v. Valeo "at least have some connection with that branch". Under this view, the heads of all agencies and departments exercising executive power under the President would seem to qualify as "Heads of Departments". The Court interpreted in Freytag v. Commissioner of Internal Revenue (1991) "Heads of Departments" to refer "to executive divisions like
15318-476: The position that pre-nomination advice was allowable but not mandatory. The notion that pre-nomination advice is optional has developed into the unification of the "advice" portion of the power with the "consent" portion, although several Presidents have consulted informally with Senators over nominations and treaties. The actual motion adopted by the Senate when exercising the power is "to advise and consent", which shows how initial advice on nominations and treaties
15456-401: The power to determine the qualifications of its own Members, the limitations that it has imposed on what constitutes an employee holding an office of the United States may be significant to courts considering the constitutional limitations." With the exception of military officers and certain court- and board -appointed officers, the method for creating an officer of the U.S. generally follows
15594-407: The power to regulate and govern military forces and militias , suppress insurrections and repel invasions. It is to provide for naturalization, standards of weights and measures, post offices and roads, and patents; to directly govern the federal district and cessions of land by the states for forts and arsenals. Internationally, Congress has the power to define and punish piracies and offenses against
15732-494: The powers of government within the U.S. states. The majority of the 17 later amendments expand individual civil rights protections. Others address issues related to federal authority or modify government processes and procedures. Amendments to the United States Constitution, unlike ones made to many constitutions worldwide, are appended to the document. The original U.S. Constitution was handwritten on five pages of parchment by Jacob Shallus . The first permanent constitution, it
15870-428: The preservation of the Union." The proposal might take effect when approved by Congress and the states. On the appointed day, May 14, 1787, only the Virginia and Pennsylvania delegations were present, and the convention's opening meeting was postponed for lack of a quorum. A quorum of seven states met on May 25, and deliberations began. Eventually 12 states were represented, with Rhode Island refusing to participate. Of
16008-418: The president commissions all the offices of the federal government as Congress directs; and may require the opinions of its principal officers and make " recess appointments " for vacancies that may happen during the recess of the Senate. The president ensures the laws are faithfully executed and may grant reprieves and pardons with the exception of Congressional impeachment . The president reports to Congress on
16146-401: The president could have been considered to be appointed via vote of the electoral college, as evidenced by an essay in The Federalist Papers . The President of the United States would be an officer elected by the people for FOUR years; the king of Great Britain is a perpetual and HEREDITARY prince. Blackman and Tillman construe “whose Appointments are not herein otherwise provided for” as
16284-528: The principle of consent of the governed in his Two Treatises of Government . Government's duty under a social contract among the sovereign people was to serve the people by protecting their rights. These basic rights were life, liberty, and property . Montesquieu's influence on the framers is evident in Madison's Federalist No. 47 and Hamilton's Federalist No. 78 . Jefferson, Adams, and Mason were known to read Montesquieu. Supreme Court Justices ,
16422-427: The procedures specified in the Appointments Clause. Several officers of the U.S. are included in the presidential line of succession and are empowered to become acting president in situations where neither the president nor the vice president is able to discharge their functions. Article II, Section 1, Clause 6 of the Constitution authorizes Congress to enact such a statute. The difference between an officer of
16560-556: The process outlined in Article VII of the proposed Constitution, the state legislatures were tasked with organizing "Federal Conventions" to ratify the document. This process ignored the amendment provision of the Articles of Confederation which required unanimous approval of all the states. Instead, Article VII called for ratification by just nine of the 13 states—a two-thirds majority. Two factions soon emerged, one supporting
16698-504: The prospect of defeat, the Federalists relented, promising that if the Constitution was adopted, amendments would be added to secure individual liberties. With that, the anti-Federalists' position collapsed. On June 21, 1788, New Hampshire became the ninth state to ratify. Three months later, on September 17, the Congress of the Confederation certified the ratification of eleven states, and passed resolutions setting dates for choosing
16836-532: The protests of U.S. officials. When Barbary pirates began seizing American ships of commerce, the Treasury had no funds to pay toward ransom. If a military crisis required action, the Congress had no credit or taxing power to finance a response. Domestically, the Articles of Confederation was failing to bring unity to the diverse sentiments and interests of the various states. Although the Treaty of Paris in 1783
16974-505: The public opinion at the time the text was written. On the one hand, textual interpretations exist that exclude the presidency from the group of officers. On the other hand, it is clear that during the 19th century, the president of the United States was considered an officer of the United States by the public because the original public meaning of “officer” is much broader than modern doctrine assumes— encompassing any government official with responsibility for an ongoing governmental duty. In
17112-492: The purpose of representation in the federal government, and by requiring the return of escaped slaves to their owners, even if captured in states where slavery had been abolished. Finally, the delegates adopted the Connecticut Compromise , which proposed a Congress with proportional representation in the lower house and equal representation in the upper house (the Senate) giving each state two senators. While these compromises held
17250-425: The report of this "Committee of Detail". Overall, the report of the committee conformed to the resolutions adopted by the convention, adding some elements. A twenty-three article (plus preamble) constitution was presented. From August 6 to September 10, the report of the committee of detail was discussed, section by section and clause by clause. Details were attended to, and further compromises were effected. Toward
17388-442: The result, a makeshift series of unfortunate compromises. Some delegates left before the ceremony and three others refused to sign. Of the thirty-nine signers, Benjamin Franklin summed up, addressing the convention: "There are several parts of this Constitution which I do not at present approve, but I am not sure I shall never approve them." He would accept the Constitution, "because I expect no better and because I am not sure that it
17526-475: The ruling from the Colorado district court involved distinguishing the oath referred to in Section 3 of the 14th Amendment (an oath to "support" the constitution) from the presidential oath (to "preserve, protect, and defend" the constitution). The December 2023 Colorado Supreme Court ruling rejected this argument in a section titled "The Presidential Oath Is an Oath to Support the Constitution". The ruling from
17664-416: The spirit of the Articles. In September 1786, during an inter–state convention to discuss and develop a consensus about reversing the protectionist trade barriers that each state had erected, James Madison questioned whether the Articles of Confederation was a binding compact or even a viable government. Connecticut paid nothing and "positively refused" to pay U.S. assessments for two years. A rumor at
17802-477: The states Morris substituted "of the United States" and then listed the Constitution's six goals, none of which were mentioned originally. The Constitution's main provisions include seven articles that define the basic framework of the federal government. Articles that have been amended still include the original text, although provisions repealed by amendments under Article V are usually bracketed or italicized to indicate they no longer apply. Despite these changes,
17940-415: The term of ten years, unless the President of the United States, for the time being, should be pleased sooner to revoke this commission. In testimony whereof, I have caused these letters to be made patent and the seal of the United States hereunto affixed. Given under my hand, at the city of Washington, the twenty-ninth day of April, in the year of our Lord two thousand and sixteen, and of the independence of
18078-675: The time was that a seditious party of New York legislators had opened a conversation with the Viceroy of Canada . To the south, the British were said to be openly funding Creek Indian raids on Georgia, and the state was under martial law . Additionally, during Shays' Rebellion (August 1786 – June 1787) in Massachusetts, Congress could provide no money to support an endangered constituent state. General Benjamin Lincoln
18216-519: The ultimate interpreters of the constitution, have cited Montesquieu throughout the Court's history. (See, e.g. , Green v. Biddle , 21 U.S. 1, 1, 36 (1823). United States v. Wood , 39 U.S. 430, 438 (1840). Myers v. United States , 272 U.S. 52, 116 (1926). Nixon v. Administrator of General Services , 433 U.S. 425, 442 (1977). Bank Markazi v. Peterson , 136 U.S. 1310, 1330 (2016).) Montesquieu emphasized
18354-430: Was adopted by the full Congress in mid-November of that year. Ratification by the 13 colonies took more than three years and was completed March 1, 1781. The Articles gave little power to the central government. While the Confederation Congress had some decision-making abilities, it lacked enforcement powers. The implementation of most decisions, including amendments to the Articles, required legislative approval by all 13 of
18492-425: Was first, voting unanimously 30–0; Pennsylvania second, approving the measure 46–23; and New Jersey third, also recording a unanimous vote. As 1788 began, Connecticut and Georgia followed Delaware's lead with almost unanimous votes, but the outcome became less certain as leaders in key states such as Virginia, New York, and Massachusetts expressed concerns over the lack of protections for people's rights. Fearing
18630-401: Was obliged to raise funds from Boston merchants to pay for a volunteer army. Congress was paralyzed. It could do nothing significant without nine states, and some legislation required all 13. When a state produced only one member in attendance, its vote was not counted. If a state's delegation was evenly divided, its vote could not be counted towards the nine-count requirement. The Congress of
18768-517: Was of similar concern to less populous states, which under the Articles had the same power as larger states. To satisfy interests in the South, particularly in Georgia and South Carolina, the delegates agreed to protect the slave trade, that is, the importation of slaves, for 20 years. Slavery was protected further by allowing states to count three-fifths of their slaves as part of their populations, for
18906-427: Was partly based on common law and on Magna Carta (1215), which had become a foundation of English liberty against arbitrary power wielded by a ruler. The idea of Separation of Powers inherent in the Constitution was largely inspired by eighteenth-century Enlightenment philosophers, such as Montesquieu and John Locke . The influence of Montesquieu, Locke, Edward Coke and William Blackstone were evident at
19044-402: Was signed between Britain and the U.S., and named each of the American states, various states proceeded to violate it. New York and South Carolina repeatedly prosecuted Loyalists for wartime activity and redistributed their lands. Individual state legislatures independently laid embargoes, negotiated directly with foreign authorities, raised armies, and made war, all violating the letter and
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