I am currently working on a project concerning the meaning of “by law” in the appointment clause.

Art. II., Sec. 2. “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“

The appointments process has three steps, which are familiar from Marbury. First the President nominates the candidate. Second the Senate offers its advice and consent. Third, the President appoints the nominee. My question is this: can Congress prescribe “by law” how the appointment becomes final? It is generally understood that the Congress, acting pursuant to its Necessary and Proper power, can set certain qualifications for officers who are nominated. But what role does Congress play in designing the process to “appoint” a person to an office “established by law” after Senate confirmation. In other words, after the President has nominated the candidate of his choice, and the Senate has given its advice and consent to that candidate, can Congress prescribe “by law” what steps the President must take for the “appointment” to become final?

Consider Marbury. The position of “Justice of the Peace,” to which Marbury was appointed, was “established by law.” The process of completing this appointment was rigorously “established by law.” At the time, Congress provided by statute a procedure for appointments by the Secretary of State.

“An act of congress directs the secretary of state to keep the seal of the United States, “to make out and record, and affix the said seal to all civil commissions to officers of the United States, to be appointed by the President, by and with the consent of the senate, or by the President alone; provided that the said seal shall not be affixed to any commission before the same shall have been signed by the President of the United States.”

When does “the power of the executive over an officer, not removable at his will . . . cease”? “When the constitutional power of appointment has been exercised.” In this case, “last act is the signature of the commission.” Who determined that this was the final act? Marshall answers that it was Congress–not the President, as “[t]his idea seems to have prevailed with the legislature.” Through the act that created the “department of state,” Congress provided that the Secretary of State “shall keep the seal of the United States, ‘and shall make out and record, and shall affix the said seal to all civil commissions to officers of the United States, to be appointed by the President.'” The seal could only be affixed after it had been “signed by the President,” or in the words of Marshall, “when it is complete.”

Once the commission is signed, the appointment is out of the President’s hands. After the ink on the signature has dried, the Secretary, acting pursuant to an order from Congress, is required to affix the seal. Marshall refers to this obligation as the “subsequent duty of the secretary of state [that] is prescribed by law, and not to be guided by the will of the President.” (emphasis added). In other words, Congress dictated by statute how the appointment must vest following confirmation by the Senate. The Congress, and not the President, decides at what step an appointment becomes final. Even if the President instructs the Secretary of State–who is removable at will–not to seal it,”[h]e is to affix the seal of the United States to the commission, and is to record it.”

Marshall makes clear that the “proceeding” established by Congress may not “be varied,” even if the “executive shall suggest one more eligible” for the office. Rather, the statute offers a “precise course accurately marked out by law, and is to be strictly pursued.” (emphasis added). Again, Marshall repeats the phrase, “by law,” stressing that Congress, not the President is in control here. To make the point even more clear, Marshall stresses that it is Congress that determined that “No other solemnity is required by law” beyond the sealing of the commission.  For “it is the duty of the secretary of state to conform to the law,” established by Congress, as he is an “an officer of the United States, bound to obey the laws.”

To support this conclusion, Marshall praises the arguments of Marbury that were “very properly stated at the bar.” A recitation of the arguments by “their counsel, Charles Lee, esq., late attorney General of the United States” is instructive. In creating the office of the Secretary of State, Congress instructed that office to “to affix the seal of the United States to all civil commissions, after they shall have been signed by the President.” Lane seems to have no problem with Congress ordering the Secretary of State to affix the seal. Even though the Secretary of State is “responsible only to the President,” the President cannot “prevent him . . . [from] affixing the seal to civil commissions of such officers as hold not their offices at the will of the President, after he has signed them and delivered them to the secretary for that purpose.” If the Secretary of State refuses to do so, “he may be compelled by mandamus, in the same manner as other persons holding offices under the authority of the United States.” In other words, after the President has signed the commission, pursuant to the procedures “established by law,” the Secretary of State is obligated to seal the commission. Stated succinctly, “[t]he secretary is called upon to perform a duty over which the President has no control, and in regard to which he has no dispensing power, and for the neglect of which he is in no manner responsible.” This “seal”–not delivery–becomes the final act for purposes of appointment.

Marshall concludes that “since [Marbury’s] was signed by the President, and sealed by the secretary of state, [he] was appointed; and as the law creating the office, gave the officer a right to hold for five years, independent of the executive, the appointment was not revocable; but vested in the officer legal rights, which are protected by the laws of this country.” In short, “To withhold his commission, therefore, is an act deemed by the court not warranted by law, but violative of a vested legal right..” At every juncture, it is the laws of Congress that provided how Marbury obtained his office following confirmation.

This precedent seems to suggest that Congress has significant control over how an appointment vests. Rather than requiring the Secretary of State to seal it, presumably, Congress could set a number of other ministerial tasks before an appointment becomes final. In other words, the President’s signature, by itself, is not enough when Congress provides a contrary procedure “by law.”

There isn’t much caselaw on this question. The Supreme Court seemed to recognize this conclusion implicitly in Freytag v. Commissioner of Internal Revenue (1991), noting that the “office of special trial judge is ‘established by Law,’ Art. II, § 2, cl. 2, and the duties, salary, and means of appointment for that office are specified by statute.”

In Burmap v. United States  (1920), Justice Brandeis stated that when the laws of Congress are silent about how an inferior officer is to be appointed, that duty devolves onto the Department Head.

There is no statute which provides specifically by whom the landscape architect in the office of public buildings and grounds shall be appointed. As the office of public buildings and grounds is a part of the bureau of the Chief of Engineers, and that bureau is in the War Department, the Secretary of War would, under section, have the power to appoint the landscape architect as an employé in his department, in the absence of other provision dealing with the subject. 21 Op. Attys. Gen. 355.

While this doesn’t answer the threshold question of what conditions Congress can place on the appointment of an officer, it seems to presume that had Congress legislated on this matter, those laws would have prevailed over the Secretary’s determinations about the proper method for appointments.

The cited Opinion of the Attorney General Judson Harm confirms this reading:

I think that the word ‘employ’ in this section is used as the equivalent of ‘appoint’ (see Rev. Stat., secs. 60, 194); and therefore that the sole responsibility of every appointment in an Executive Department rests upon the head of that Department, except where otherwise specially provided by statute, as in Revised Statutes, section 476.

Taking a contrary view is Sai Prakash, who argues that Chief Justice Marshall was mistaken. Prakash contends that because the President is silent, the President gets to decide “when or how an appointment vests.”

Yet the Great Chief Justice was mistaken too. He wrongly insisted that delivery of a commission to the appointee and acceptance of the office were irrelevant because in both cases the President had already made the appoint- ment. The better view is that because the Constitution does not specify when or how an appointment vests, it leaves these matters to the appointer to decide. This discretionary theory posits that the Constitution cedes flexibility to appointers, permitting them to vest offices in a number of ways.28

Prakash addresses the “difficult question” whether Congress “may dictate when appointments vest.”

Congress enjoys the power to enact necessary and proper laws for carrying into execution the powers of the federal government, including the appointment power.252 Some might suppose that the Necessary and Proper Clause includes authority to specify how and when appointment powers will be carried into execution.

He concludes that the N&P power does not stretch far enough to dictate to the President how to perform its appointment duties:

Yet there are sound reasons for doubting that Congress has power to tell the other branches how to exercise their powers, even when such congressional regulation might be beneficial.253 The Necessary and Proper Clause clearly enables Congress to help implement presidential and judicial powers, say by creating institutions that help the President and courts better exercise their respective powers. But the Clause, properly understood, does not empower Congress to direct how other branches exercise their respective powers. If it did, Congress might forbid presidential pardons for murderers and specify the content of the First Amendment to the courts. It seems rather unlikely that the Sweeping Clause sweeps so far. And if it does not permit such laws, the Clause likewise should not be read to authorize statu- tory rules for when an appointment vests.

The question, in my mind, becomes if Congress has the power to establish an office “by law,” can it set the qualifications for that office, and provide how an appointment becomes final. For example, by providing that delivery of the commission is necessary. Prakash notes that “The Court has yet to say whether Congress can either prescribe the means of appointment or establish conditions precedent to an appointment.” Prakash suggests the answer is no.

Relatedly, the phrase “By Law” appears 9 times in the Constitution.

1. Art. I., Sec. 2. “The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct.”
2. Art. I., Sec. 4. “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.”
3.  Art. I., Sec. 4. “The Congress shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December, unless they shall by Law appoint a different Day.”
4. Art. I., Sec. 6. “The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States”
5. Art. I., Sec. 9. “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.”
6. Art. II., Sec. 1. “In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.” (Abrogated by the 25th Amendment).
7. Art. II., Sec. 2. “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“
8. Art II., Sec. 2. “but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”
9. Art. III., Sec. 2. “The Trial of all Crimes, except in Cases of Impeachment; shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.”

Each situation seems to be giving Congress, explicitly, a power to legislate, and even self-deal, in an arena that may otherwise seem to violate the separation of powers.

First, the “enumeration” clause gives Congress the power to design the census, which directly impacts the size of its own branch of government, and how many members are allocated per state. This directly impacts how the body is constituted, and which states will gain in representation.

Second, Congress can alter the “time, place, and manner” of the election of its own members (the meaning of this phrase will be addressed by the Court this term in the Arizona redistrict case). This important fallback power may override if the states decline to schedule elections for federal offices.

Third, Congress is given a power to alter when it meets. This may seem inconsequential, but in theory Congress could adjourn itself indefinitely to shut down the government–although the President has the power to convene Congress.

Fourth, Congress can set its own pay.  This power–subject now to the 27th Amendment, which was originally proposed in 1789–is the ultimate element of self-dealing.

Fifth, only Congress through appropriations can decide when the Treasury–an executive branch agency–can withdraw funds. By blocking funding, the Congress can cripple the Presidency.

Sixth, Congress could provide by law the method for removal of the President (this was abrogated by the 25th Amendment). Deeming the President unable to discharge his duties is a critical power over a constitutional crisis.

Seventh, as I discussed, it falls to Congress to “establish[] by law” the other officers to which the President can appoint officers. My question is what is the scope of this “establish[ment]” power.

Eighth,  Congress can delegate the appointment power “by law” for the “inferior officers, as they think proper” to the President or the Courts. While Congress is usually unable to delegate the legislative power, here, they can expressly delegate the appointment power to other branches of government, as they “think proper.”

Ninth, Congress can decide where crimes “not committed within any state” should be held. This is a significant power over the due process rights of defendants.