11. Power to Confirm Certain Presidential Appointments

Power to Confirm Certain Presidential Appointments

Concept

The President makes appointments to certain offices with the consent of the Commission on Appointments. This is a limited confirmation power: Article VII, Section 16 identifies the appointments requiring consent and separately addresses other appointments the President may make. (Art. VII, Sec. 16, 1987 Const.)¹

Governing provisions

Article VII, Section 16 governs presidential appointments requiring consent, other appointments made by the President, and appointments during a recess of Congress. Article VI, Section 19 governs when the Commission on Appointments is constituted and when it may meet. Article VII, Section 15 restricts appointments near the end of a presidential term. (Art. VII, Sec. 16, 1987 Const.)¹ (Art. VI, Sec. 19, 1987 Const.)² (Art. VII, Sec. 15, 1987 Const.)³

Requisites / Rules

The President nominates and, with the Commission’s consent, appoints the following officers: (Art. VII, Sec. 16, 1987 Const.)¹

• Heads of executive departments. (Art. VII, Sec. 16, 1987 Const.)¹
• Ambassadors, other public ministers, and consuls. (Art. VII, Sec. 16, 1987 Const.)¹
• Officers of the armed forces from the rank of colonel or naval captain. (Art. VII, Sec. 16, 1987 Const.)¹
• Other officers whose appointments are vested in the President by the Constitution. (Art. VII, Sec. 16, 1987 Const.)¹

The Commission on Appointments must be constituted within 30 days after the Senate and the House of Representatives have been organized through the election of the Senate President and the Speaker. It meets only while Congress is in session, upon the call of its Chairman or a majority of all its Members, to discharge its constitutionally conferred functions. (Art. VI, Sec. 19, 1987 Const.)²

Distinctions

Do not treat every presidential appointment as one requiring Commission consent. Article VII, Section 16 also directs the President to appoint other government officers whose appointments are not otherwise provided for by law, and those whom the President may be authorized by law to appoint. It further permits Congress, by law, to vest appointment of other officers lower in rank in the President alone, the courts, or specified heads of departments, agencies, commissions, or boards. (Art. VII, Sec. 16, 1987 Const.)¹

Distinguish an appointment made during a recess of Congress from the Commission’s ordinary opportunity to meet: the Constitution expressly permits recess appointments, while the Commission meets only when Congress is in session. The recess appointment has the limited duration specified in Article VII, Section 16. (Art. VII, Sec. 16, 1987 Const.)¹ (Art. VI, Sec. 19, 1987 Const.)²

Key doctrines

The constitutional text supplies the controlling classification: first determine whether the office falls within the express group for which the President must nominate and appoint with Commission consent. If it does not, identify the applicable appointment authority under the remaining clauses of Article VII, Section 16 rather than assuming that consent is required. (Art. VII, Sec. 16, 1987 Const.)¹

Exceptions

The President may make appointments during a recess of Congress, whether the recess is voluntary or compulsory. Such appointments remain effective only until the Commission on Appointments disapproves them or Congress next adjourns. (Art. VII, Sec. 16, 1987 Const.)¹

From two months immediately before the next presidential elections until the end of the term, Article VII, Section 15 bars presidential appointments, except temporary appointments to executive positions when continued vacancies would prejudice public service or endanger public safety. (Art. VII, Sec. 15, 1987 Const.)³ Under De Castro v. Judicial and Bar Council (2010), this prohibition does not apply to appointments to the Judiciary.

Bar tip

Classify the office before discussing consent; then check whether the facts involve a congressional recess or the pre-election appointment restriction. (Art. VII, Sec. 16, 1987 Const.)¹ (Art. VII, Sec. 15, 1987 Const.)³