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Topic: Appointments Clause

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FDIC: 1999 - Docket No. FDIC-95-65e Landry asserts that, under the Appointments Clause, Congress may assign the appointment of "inferior officers" such as administrative law judges to the President, the courts of law, or the heads of Departments, but that Congress has no constitutional authority to assign the power elsewhere. Accordingly, the ALJ in this case was validly appointed within the meaning of the Appointments Clause. [.28 ] Contrary to Landry's contention, the appointment of the two ALJs that work within OFIA is not violative of section 3105 or any other statute. www.fdic.gov /bank/individual/enforcement/5256.html

Ordinance 8 - The University of the West Indies The University Appointments Committee or the Campus Appointments Committee, as the case may be, shall, in each case of conferral of an honorary title under this clause, fix the period for which the title may be used. (ii) In considering whether or not to appoint a Professor, the University Appointments Committee shall, subject to clause 2(a)(iii) have regard inter alia to its assessment of the extent to which the proposed appointee satisfies or would if appointed during his or her tenure of office come to satisfy the criteria in clause 21(a)(ii). The University Appointments Committee or a Campus Appointments Committee, as the case may be, may confer the title of Visiting Fellow on any visitor not qualifying under clause 9(b) who is attached to a Department and making a substantial contribution to its academic life. www.uwi.edu /ord8.html

New York University Law Review Because recess appointments to the judiciary began and continued absent any evidence that the Framers had been aware of the conflict between the recess appointment clause and article III protections, recess appointments are not entitled to the same weight accorded to the historical practice in Marsh. Despite the infrequency of recess appointments to the judiciary since 1965, the total of 309 appointees demonstrates the executive branch's longstanding belief that the recess appointment clause may be applied to fill vacancies on the federal bench. Under the recess appointment clause of article II of the Constitution, the President ostensibly has the power to appoint federal judges whose permanent tenure is contingent upon continued presidential support and Senate confirmation of their nominations. www.arches.uga.edu /~shaoming

Weiss v. United States, 510 U.S. 163 (1994). Commissioner, 501 U. __, __ (1991), we observedthat in the Appointments Clause the Framers limited the "diffusion"of the appointment power in order to "ensure that those who wieldedit were accountable to political force and the will of the people." Id., at __ __ (slip op., at 14-15). Olson, 487 U.S. Since the chosen method for selecting military judges shows that neither Congress nor the President thought military judges were principal officers, and since in the presence of doubt deference to the political Branches' judgment is appropriate, I conclude that military judges are inferior officers for purposes of the Appointments Clause. Though thelaw was adopted by Congress and signed by the President, the Courtsaid that the law would nevertheless violate the Appointments Clauseif the independent counsel were a principal officer. supct.law.cornell.edu /supct/html/92-1482.ZC.html

ARTICLE 23 At least fifty (50) percent of the teaching term appointments shall be for a minimum period of two (2) consecutive semesters. 23.12 In making term appointments, the University shall follow the procedures set out in Articles 6, 7, 13 or 24 except that when appointments or extensions of term appointments need to be made urgently, such appointments need not be advertised. A term appointment may be extended without advertising providing that the reappointment is recommended by the Search Committee as specified in Clause 7.16 or Clause 13.19. www.mun.ca /munfa/art23.htm   (1947 words)

I. THE CONSTITUTIONAL SEPARATION OF POWERS BETWEEN THE PRESIDENT AND CONGRESS The Court has identified two such express procedures relating to the separation of executive and legislative powers: the bicameralism and presentment requirements for legislation, and the Appointments Clause. The rules of law derived from the requirements of bicameralism/presentment and the Appointments Clause have the clear and powerful effect of invalidating any inconsistent congressional action. The Appointments Clause's list of those who may appoint officers is exclusive, and Congress cannot authorize anyone else to appoint officers of the United States. www.usdoj.gov /olc/delly.htm   (14791 words)

The Meech Lake Accord pg 97 According to Mandel, all of these "Constitutional Authorities" were pro-Accord (and hence why they were picked for the job) and used their opinions to transform the "distinct society clause" into a "duality-distinct society clause" via their letter. Meech Lake also provided a clause that created a mechanism for putting in place agreements between the federal government and any province to give that province control over immigration. With Vriend and Morgentaler: after the Courts made their decision, the governments didn’t try to redraft legislation or use an override clause because it was politically too risky (especially using the override clause). www.yorku.ca /igreene/smith.html   (2493 words)

member_statement.cfm?id=1071&wit_id=2629 The recess appointments clause of the Constitution was not intended to change the balance of power between the Senate and the President that is established as part of the fundamental set of checks and balances in our government. The recess appointments power was intended as a means to fill vacancies when the Senate was not available to give its consent; it was intended to ensure effective functioning of the government when the Senate adjourned for months at a time. Recent Attorneys General have all opined that a recess of 10 days or less does not justify the President’s use of the recess appointments power and would be considered unconstitutional. judiciary.senate.gov /member_statement.cfm?id=1071&wit_id=2629   (2493 words)

ACSBlog: The Blog of the American Constitution Society United States, held that, for purposes of the Appointments Clause, military judges are “Officers of the United States.” It would be decidedly awkward if “Officers” under the Appointments Clause had a different scope than “Office” under the Incompatibility Clause. Powerful new evidence emerged yesterday that the United States dropped massive quantities of white phosphorus on the Iraqi city of Fallujah during the attack on the city in November 2004, killing insurgents and civilians with the appalling burns that are the signature of this weapon. The constitutional ban on gay marriage was overwhelmingly approved by Oregon voters in the November 2004 election. www.acsblog.org   (12988 words)

testimony.cfm?id=744&wit_id=2045 The Constitution establishes a simple majority as the Senate consensus sufficient to confirm nominees of the President who are officers of the United States under the Appointments Clause, including judges and members of the Cabinet. The absence of any supermajority language or hint of the same in the Appointments Clause confirms the obvious- that a simple majority was intended to confirm nominees. The arguments in favor of a supermajority cloture rule for the purpose of thwarting confirmation by a simple Senate majority are unpersuasive. www.senate.gov /comm/judiciary/general/testimony.cfm?id=744&wit_id=2045   (1840 words)

GAO:  Duration of Recess Appointment, B-290712, August 14, 2002 Reich's January 11, 2002, appointment, the second session of the 107th Congress is the “next session” indicated in the recess appointments clause of the Constitution. Reich's recess appointment depends on the meaning of the term “next session” in the recess appointments clause. Where, as here, a recess appointment was made during an intersession recess, the duration of the appointment only continues until the end of the session that was about to commence. www.gao.gov /decisions/other/290712.htm   (1840 words)

The Imperial Presidency's New Vestments And if balance is what really concerns most parties to the Appointments Clause debate (and I think it is), then a structural interpretation at least *1375 has the value of concentrating minds on the real matter at issue. Had Taft accepted the Vesting thesis as set out in The Structural Constitution, he should have written a short opinion explaining that the plenary pardon power is part of the executive power vested in the President, and that the purpose of the pardon clause, U.S. Const. A structural approach to the Constitution would reason from the existence of three "co-equal" branches of government rather than from the words "shall be vested"-- or any other clause. www.law.miami.edu /~froomkin/articles/imperial.htm   (1840 words)

No. 04-38: Miller v. United States - Opposition A fifth member of that Court, James Iredell, opined, after the resignation of Chief Justice Jay, that the President could "make a temporary appointment" of his successor under the Recess Appointments Clause. The only two courts that have considered constitutional challenges to judicial recess appointments have held such appointments to be constitutional. Texas, 511 U.S. 1097, 1098 (1994) (O'Connor, J., concurring in denial of certiorari). www.usdoj.gov /osg/briefs/2004/0responses/2004-0038.resp.html   (7019 words)

FindLaw: U.S. Constitution: Article II: Annotations pg. 3 of 18 CIR, 501 U.S. -887 (1991), in which the Court declined to be bound by the language of the 25th Amendment in determining the meaning of ''Heads of Departments'' in the appointments clause. The only issue with regard to the qualifications set out in this clause, which appears to be susceptible of argument, is whether a child born abroad of American parents is ''a natural born citizen'' in the sense of the clause. Wong Kim Ark, 169 U.S. With minor variations, this language remained law in subsequent reenactments until an 1802 Act, which omitted the italicized words for reasons not discernable. caselaw.lp.findlaw.com /data/constitution/article02/03.html   (612 words)

House of Lords - Explanatory Note Clause 3 provides for existing judiciary-related functions of the Office of the Lord Chancellor set out in primary legislation to be transferred either to the Minister or the Lord Chief Justice of England and Wales. Part 2 of Schedule 4 provides that appointments to the offices listed in it will in future be made by the Minister (the Secretary of State for Constitutional Affairs) rather than the Lord Chancellor. Clause 2 provides a new, additional, statutory title of President of the Courts of England and Wales which will be assumed by the Lord Chief Justice. www.parliament.the-stationery-office.co.uk /pa/ld200304/ldbills/091/en/04091x--.htm   (612 words)

University of Liverpool Reserved business shall be the business which the Council determines shall be reserved including, but without prejudice to the generality of the foregoing, appointments, promotions and other matters affecting the personal affairs of individual members of the staff and the admission and academic assessment of individual students. Reserved business shall be that business which the Council upon the recommendation of the Senate determines shall be reserved including, but without prejudice to the generality of the foregoing, appointments, promotions and other matters affecting the personal affairs of individual members of the staff and the admission and academic assessment of individual students. 2 The Registrar shall be the Clerk of the Court, the Council and the Senate and of all Committees and Joint Committees of these bodies except the Joint Committee constituted under Clause 1 of this Statute, and shall undertake such other administrative duties as the Council may prescribe. www.liv.ac.uk /commsec/calendar/statutesb.html   (612 words)

THE CONSTITUTIONALITY OF COOPERATIVE INTERNATIONAL LAW ENFORCEMENT ACTIVITIES...... Accordingly, the substantiality of the delegated authority is immaterial to the Appointments Clause conclusion. The 1988 Opinion concluded that "[a]s a matter of general principle, anyone exercising law enforcement powers on behalf of the United States must be viewed as holding an office of trust under the Emoluments Clause." authorize the British law enforcement vessels on which they are embarked to assist in the enforcement of the laws of the United States seaward of the territorial sea of Anguilla, Bermuda, the Cayman Islands, Montserrat, and Turks and Caicos. www.usdoj.gov /olc/retype5_13.htm   (612 words)

William Howard Taft Taft also wrote an opinion for the Court declaring unconstitutional a congressional effort to outlaw child labor through use of the taxing power (The Court had already declared unconstitutional Congress's attempt to use the commerce clause power to prohibit child labor.) Taft did dissent in Adkins v. Taft was able to make six appointments to the Supreme Court during his four years as President, the greatest number of appointments made in any four year term other than in George Washington's first term. William Howard Taft was born in Cincinnati, Ohio, on September 15, 1857. www.michaelariens.com /ConLaw/justices/taft.htm   (535 words)

Australian Communications and Media Authority Bill 2004 (Bills Digest, no. 78, 2004-05) Clauses 19—21 provide that the ACMA shall consist of a Chair, Deputy Chair, and 1 to 7 other members.  The Chair and Deputy Chair must be full-time appointments.  Appointments may be made for up to five years, but may not extend beyond ten years. Clause 54 provides that the staff of the ACMA shall be employed under the Public Service Act 1999. Clauses 8 to 11 set out the ACMA’s functions, grouping them under headings for telecommunications, spectrum management, and broadcasting, content and datacasting.  These functions are essentially the same as those currently in the Australian Communications Authority Act 1997 and the Broadcasting Services Act 1992. www.aph.gov.au /library/pubs/BD/2004-05/05bd078.htm   (2991 words)

The Meech Lake Accord pg 97 Meech Lake also provided a clause that created a mechanism for putting in place agreements between the federal government and any province to give that province control over immigration. They found in unconstitutional, thus "forcing" Quebec to use the notwithstanding clause and increasing tensions between ROC and Quebec during Meech Lake. Appointments to the Supreme Court of Canada and the Senate. www.yorku.ca /igreene/smith.html   (2493 words)

socalconf.html Whatever the term "advice" means, it does not mean "senatorial courtesy": traditionally, Presidents have paid a good deal of attention to the opinions of Senators of their own party on the question of judicial appointments, [FN6] but that cannot be what the appointments clause envisions. Advice is not binding, and a role for the Senate that prevented a President from choosing the nominee of her choice would be inconsistent with the plain text of the Constitution. To begin, it seems likely that the term "advice" has some meaning distinct from that of "consent." The two terms are not normally synonyms, and if all that the Framers meant by "advice and consent" was "consent" it would have been easy enough to have used that word in place of the phrase they chose. instapundit.com /lawrev/socalconf.html   (2383 words)

The Lichfield Group - How Far Should Advice and Consent Go? Article II, section 2, clause 2 of the Constitution (Appointments Clause), subjects Supreme Court nominees to the “advice and consent” of the Senate. The Senate’s advice and consent role in the confirmation of Justice is too important to be left to fables as opposed to facts. Bruce Fein was associate deputy attorney general under President Ronald Reagan ans is a constitutional lawyer and international consultant at Bruce Fein and Associates and The Lichfield Group. www.samuelgarrick.com /pubs/2005/01/reid   (902 words)

News Alert Reid on "Advice & Consent" It is clear that the President misunderstands the meaning of the Advice and Consent Clause. Nowhere in that document does it say the Senate has a duty to give presidential nominees “an up or down vote.” It says appointments shall be made with the Advice and Consent of the Senate. It's the same Advice and Consent Clause – why was a Republican filibuster of Surgeon General nominee Henry Foster constitutional, but a Democratic filibuster of Fifth Circuit nominee Priscilla Owen unconstitutional? www.buzzflash.com /alerts/05/05/ale05079.html   (1902 words)

Advice and Consent: What the Constitution Says This clause contemplates three sequential acts for the appointment of principal officers—the nomination of the President, the advice and consent of the Senate, and the Appointment of the Official by the President. The very grammar of the clause is telling: the act of nomination is separated from the act of appointment by a comma and a conjunction. 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. www.heritage.org /Research/AmericanFoundingandHistory/wm800.cfm   (1915 words)

Andrew C. McCarthy on Senate on National Review Online The appointments clause (Article II, Section 2, Paragraph 2) states, in pertinent part, that the president "shall nominate, and by and with the advice and consent of the Senate, shall appoint...judges of the Supreme Court and all other officers of the United States" (which includes judges of the lower federal courts). Senator Specter maintains that "[t]he advice clause in the Constitution has been largely ignored[,]" and has even gone so far as to urge the Bush administration to consult with Senate Democrats before nominating any new Supreme Court justices. Under its plain terms, the president alone nominates; it is only the subsequent, final appointment that is subject to the advice and consent of the senate. www.nationalreview.com /mccarthy/mccarthy200502280746.asp   (1854 words)

Ryder v. United States [1995] USSC 33; (1995) 515 U.S. 177 (12th June, 1995) Leon, 468 U.S. 897, does not require the affirmance of petitioner's conviction, since no collateral consequence arises from rectifying an Appointments Clause violation, see id., at 907, and such rectification provides a suitable incentive to make challenges under the Clause, see id., at 918-921. United States, 140 U.S. 118, are distinguishable here because, inter alia, petitioner's claim is that there has been a trespass upon the constitutional power of appointment, not merely a misapplication of a statute providing for the assignment of already appointed judges. Williams, 404 U.S. 549, which Buckley cited as authority, were civil cases that did not explicitly rely on the de facto officer doctrine in validating the past acts of public officials against constitutional challenges, and this Court is not inclined to extend those cases beyond their facts. www.austlii.edu.au /~andrew/ussc/1995/33.html   (1854 words)

The Constitution And Reservation The expression "backward class" in this sub-clause is interpreted by the Supreme Court to mean "socially and educationally backward" as is specifically mentioned in the sub-clause (4) added later to Article 15. Article 16 (4) permits the state to make any provision for the reservation of appointments or posts in favour of any backward class, which, in the opinion of the state, is not adequately represented in the services under it. Some other features of the present reservation system may be borne in mind, which is often forgotten by many, in their supercilious approach to the problems of reservation. www.countercurrents.org /dalit-sawant030703.htm   (1276 words)

vernonrobinson.com Foxx that they rewarded her with coveted, plum political appointments in their administrations. Foxx violated her oath of office to uphold the state constitution specifically, its equal protection clause that expressly forbids racial discrimination. Foxx gave credibility to the racial profiling hysteria (peddled by professional racial agitator Al Sharpton, race-hustling poverty pimp Jesse Jackson, the NAACP, and the ACLU) and said she was proud to have voted to require North Carolina s state troopers to keep a record of the race of every motorist pulled over. vernonrobinson.com /cgi-data/news/files/5.shtml   (3306 words)

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