Abstract
The problem of how to establish the whole procedure of making appointments was raised at the Constitutional Convention of 1787. There was a fear on the part of some that if the executive were given a large degree of authority over the other members of the administrative branch an elective monarchy with its own “royal court” might result. Men such as Roger Sherman, Benjamin Franklin and George Mason were afraid of creating a strong executive and preferred giving the appointing power to the upper house.1 There were others, of course, who, aware of the weakness of the Confederation, were determined that the chief executive should be a fairly strong one. James Wilson, Gouverneur Morris, Alexander Hamilton, and James Madison, to mention a few, felt that responsible government would be jeopardized if the appointing power lay in the hands of the legislature. They pointed out that in the states where such a procedure was followed the appointees were often not of great merit. They preferred giving the President sole authority in the realm of appointments.2
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References
Harris, op. cit., pp. 17–18.
Ibid., p. 18.
Report of the Committee on Detail, August 6, 1787, Madison, Debates, pp. 342, 459, as cited in George H. Haynes, The Senate of the United States, Its History and Practice (Boston: Houghton Mifflin Co., 1938), II, 723.
Harris, op. cit., pp. 29–30.
Herbert W. Horwill, The Usages of the American Constitution (London: Oxford University Press, 1925), pp. 126–27.
Quincy Wright, The Control of American Foreign Relations (New York: The Macmillan Co., 1922), p. 314.
Horwill, op. cit., pp. 127–29.
Writings of James Madison, ed. Gaillard Hunt (New York: G. P. Putnam’s Sons, 1910), IX, 91, n. 1.
Annals of Congress, 13th Cong., ist Sess., XXVI, 711–12.
Official Opinions of the Attorney s-General of the United States, VII, 242; XXII, 186.
John M. Mathews, The Conduct of American Foreign Relations (New York: The Century Company, 1922), p. 419;
Edward S. Corwin, The Constitution and What It Means Today (nth ed.; Princeton: Princeton University Press, 1954), p. 115; Wriston, op. cit., p. 30.
The Writings of Thomas Jefferson, ed. H. A. Washington (New York: H. W. Derby, 1861), VII, 465.
Official Opinions of the Attorneys-General of the United States, XXVII, 215, 267.
Revised Statutes of the United States, Sec. 1674.
August 18, 1866, Statutes at Large, XI, 139; March 3, 1893, Statutes at Large, XXVII, 497; April 5, 1907, Statutes at Large, XXXIV, 99; March 2, 1909, Statutes at Large, XXXV, 672; August 13, 1946, Statutes at Large, LX, 1007.
John W. Foster, The Practice of Diplomacy as Illustrated in the Foreign Relations of the United States (New York: Houghton Mifflin Co., 1906), pp. 20–26.
Statutes at Large, XXXV, 672.
Congressional Record, 78th Cong., ist Sess., LXXXIX, 3341.
Ibid., p. 5826.
Statutes at Large, LX, 1007. This matter is the subject of some discussion by both Corwin and Stuart, and it would seem to this writer that the latter’s and not the former’s position is the correct one. Corwin states that “Today new posts of ministerial rank are dependent on Congressional authorizations, and no new ambassadorships may be created for existing posts ‘unless the same shall be provided for by Act of Congress.’” Title 22, Sec. 1–23, 31–40, as cited in Edward S. Corwin, The President: Office and Powers 1787–1957 (4th rev. ed. ; New York: New York University Press, 1957), pp. 205–206. However, as indicated above the statute that is now in force is that of 1946. Corwin’s reference in the United States Code is outdated since this refers to the Act of March 2, 1909, which was repealed by the 1946 Act. Although he has acknowledged the error in correspondence with the writer, he does not seem aware of the fact that the prerogative allowed the President by these two acts is vastly different, the earlier being much more restrictive than the latter. It is not, as he indicates, merely an error in citation. Furthermore, Corwin states that the 1909 law was violated by various Presidents, which, although undoubtedly a correct opinion, does not appear to be substantiated by some of the evidence he introduces, but is, however, supported by that introduced by Stuart. The evidence that Corwin introduces are the missions by Elihu Root in 1917 — “Congress was not consulted or informed” — that of Senator’s Henry Lodge and Oscar Underwood, who were United States delegates to the Washington Arms Conference of 1922, having been given the rank of Ambassador by President Harding, and the missions of Brigadier General John H. Russel as Ambassador to Haiti, also appointed by Harding, and that of Myron Taylor who was sent by Franklin Roosevelt to the Vatican in 1940. Ibid., pp. 440–41. But none of these would appear to be a violation of the 1909 Statute inasmuch as that probably referred to permanent diplomatic posts, and the missions to which Corwin refers were clearly of a temporary nature, those who went went as personal representatives of the President, and they did not receive an appointment to an ambassadorship in the constitutional sense of the term.
On the other hand Stuart’s examples of missions established by the President without having been provided for by Act of Congress do seem accurate, as is his interpretation of the President’s authority regarding diplomatic grades. He writes, “The question as to the President’s control of grades of diplomatic officers has never been definitely settled.” Despite the Act of March 2, 1909 which required that new diplomatic posts be authorized by Congress, President Wilson appointed an ambassador to Peru in 1919 without any authorization other than that provided in the appropriation bill for the Department of State. (Statutes at Large, XL, 1325.) Confirmation was to be had by the novel route of a joint resolution but was never passed by the House. (Congressional Record, 65th Cong., 3rd Sess., LVII, 4537). Coolidge followed Wilson’s policy and appointed ministers to Canada and the Irish Free State in 1927 and the appropriation bill covered this. The bill also implied that the President could “reduce the rank of the representative to Turkey from ambassador to minister with a corresponding reduction in salary.” Again, in 1935, the diplomatic post in Peiping was raised to an Embassy without prior authorization and
Nelson T. Johnson was sent as ambassador. Graham H. Stuart, American Diplomatic and Consular Practice (2d ed.; New York: Appleton-Century Crofts, Inc., 1952), pp. 137–38.
August 13, 1946, Sec. 511, Statutes at Large, LX, 1007.
Appendix to the Congressional Globe, 33rd Cong., 2nd Sess., XXIV, 162–64.
Ibid., p. 356.
Ibid., 34th Cong., ist Sess., XXV, 787.
Wriston, op. cit., p. 133.
Mathews, op. cit., p. 419.
Wright, op. cit., p. 325.
Richardson, Messages and Papers of the Presidents, IV 602; cited in Tracy H. Lay, The Foreign Service of the United States (New York: Prentice Hall, 1925), p. 115.
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© 1963 Martinus Nijhoff, The Hague, Netherlands
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Waters, M. (1963). The Nominating and Appointing Power. In: The Ad Hoc Diplomat: A Study in Municipal and International Law. Springer, Dordrecht. https://doi.org/10.1007/978-94-015-0897-1_2
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