All the President’s Men: Congressional Appointment Restrictions at the Founding

Nicholas Holmes* & Eric Walker** May, 2025

The appointment power is exercised through a unique unicameral process. The Founders emphasized its distinctiveness from our system’s general bicameral legislative process, yet the power has largely been overlooked by scholars and jurists. This Note reveals that appointment discretion is the crucial, but under-studied, flipside of the removal-power coin and is essential for presidential administration. Constitutional text, structure, and history indicate that there is a line beyond which congressional restrictions on who is eligible to hold federal office exceed Congress’s delegated powers and infringe on the president’s nomination and appointment power under Article II. The conventional wisdom on this line, expressed in Myers v. United States, is incorrect and permits undue congressional interference into presidential powers. This Note employs a case study of the Fairness in Judicial Appointments Act to explore the historical meaning of the Constitution as it relates to statutory restrictions on eligibility for appointed offices. Ultimately, by rebuffing absolutist trends in recent scholarship, we show that while some legislative qualifications are permissible, many existing statutes purporting to restrict whom the president may appoint to federal office are invalid and unconstitutional.

Introduction

Courts and scholars seemingly fixate on defining the scope of executive power according to the president’s removal authority.¹ In a string of recent cases, the Supreme Court has expanded presidential removal power—eliminating layered removal protections;² narrowing protections for independent agencies;³ and dismantling protections for officers wielding significant executive powers.⁴

The president employs the removal power, and its broad scope is frequently justified by the president’s need to control policy.⁵ However, Article II makes no reference to the removal power.⁶ Rather, the power to remove is an implied and inherent component of the executive power vested in the president and is necessary to ensure that the laws are faithfully executed.⁷ But, for removals to advance the president’s agenda, the president must also be able to select replacement officers.

The power to nominate and appoint officers, therefore, lies at the root of the debate over removal powers and at the heart of presidential authority under the Constitution. Appointment power is a central executive function and offers control over executive policy that is equal to, if not greater than, that afforded by the removal power.⁸ Despite this, the scope of the nomination power has been minimally developed in scholarship and overlooked in practice.

The Constitution does not explicitly define the scope of the nomination power. Article II’s procedure for nominating and appointing principal officers involves a unique unicameral Senate process, and the text of Article II vests the power to nominate principal officers in the president alone.⁹ The subsequent power to appoint a principal officer is assigned to the president, qualified only by the Senate’s “Advice and Consent.”¹⁰ The House of Representatives plays no role in the nomination or appointment of principal officers.¹¹ However, attempts to circumvent this strictly unicameral process have resulted in a wide range of statutory provisions that purport to limit the field of nominees for office. They range in character from loose guidelines that nominees have certain minimum levels of experience, to requirements so specific that they functionally designate a single individual for the office.¹²

Current scholarship lacks a constitutionally justified theory for the scope of the president’s nomination and appointment powers. The Supreme Court’s only comment supporting legislative qualifications on appointments is found in overbroad and self-contradictory dicta from a century old case: Myers v. United States.¹³ Since Chief Justice Taft articulated Myers’s nebulous framework, scholarship on the Appointments Clause has polarized into two competing strands of absolutism. The first group of scholars—we call them “permissive absolutists”—believe that all statutory restrictions on appointments are permissible, overlooking the limits on Congress’s enumerated authority and ignoring the president’s unique constitutional role in appointments.¹⁴ The critics of this approach—whom we dub “restrictive absolutists”—counter with a view that rejects all legislative qualifications, neglecting the constitutional and historical bases for congressional action in this area.¹⁵

Yet reconciliation of presidential and congressional powers is possible. The president’s power to nominate and Congress’s power to create offices need not render the other nugatory. The Necessary and Proper Clause grants Congress inherent and implied powers to support its office-creating power without usurping the executive nomination power created by Article II. Because the evaluation of nominees’ qualifications was entrusted to presidential discretion and senatorial consent, the bicameral Congress cannot use qualifications improperly to usurp that power. Conversely, Congress need not let its power to assign functions to the offices it creates be rendered a dead letter by the selection of genuinely incapable nominees. Therefore, the congressional office-creating power supports narrow requirements designed to ensure nominees possess the minimum capacities necessary to perform their duties. Legislative qualifications are extremely varied.¹⁶ Their impact on the constitutional separation of powers is equally varied. Thus, no accurate theory of the Necessary and Proper Clause will universally permit or prohibit legislative qualifications. Only a qualified theory, permitting some but not all qualifications, can reconcile the historical understanding of the nomination power, the grant of implied powers in the Necessary and Proper Clause, and the mixed nature of early practice.

This Note rejects both absolutist theories of the nomination and appointment powers and argues that the Constitution is best read to permit some, but not all, legislative qualifications. A qualified theory of legislative qualifications will allow the president to disregard many legislative restrictions that purportedly constrain the selection of officers. Even if many of these statutory provisions are not legally binding, there is good reason to believe that presidential incentives and senatorial advice and consent will ensure that officers remain sufficiently qualified.¹⁷

Although we think of our government as one centered on bicameralism, the Founders left the oversight of appointments—a significant executive power—in the hands of a distinctive unicameral process.¹⁸ The Founders placed great weight on the exclusivity of this unicameral process. This Note shows that the Senate’s unicameral power is not a mirage in a sea of bicameralism but instead represents a unique check important to the structure of our constitutional order. It does so by rediscovering the importance that the ratifiers of the Constitution placed on presidential discretion in choosing who to present for the Senate’s “Advice and Consent,” and the structural necessity of restraining unauthorized House involvement.

Part I introduces the legal landscape for statutory restrictions on officer and judicial nominations through a case study on the Fairness in Judiciary Appointments Act and explains why these restrictions have an overlooked constitutional salience. Part II analyzes the constitutional text and history to support the view that the power to nominate is exclusive to the executive and cannot be unduly constrained by unnecessary legislative qualifications. Finally, Part III addresses the history’s significant implications for our judicial-appointments case study as well as for presidential powers generally.

I. The Legal Landscape of Presidential Appointments

Nearly two and a half centuries of law and historical practice separate us from the Founders’ views of congressional restrictions on appointments. We start by laying the groundwork for analyzing the historical sources. First, we review the Appointments Clause and the modern doctrine’s approach to legislative restrictions. Second, we explain the existing scholarship’s bifurcation into two absolutist camps. Third, we introduce our case study of a statute requiring diffuse geographic distribution of circuit court judges to focus our review of this area’s competing legislative and executive powers. Fourth, we briefly survey the field of congressionally enacted appointment-restriction statutes to understand the scope of the constitutional issue. Finally, we argue that congressional involvement in appointment discretion has constitutional salience that must be respected and that current doctrine contradicts both itself and the constitutional text.

A. The Appointment Power

The Appointments Clause gives the president power, with the “Advice and Consent” of the Senate, to appoint officers of the United States.¹⁹ Other than the few offices explicitly created by the Constitution itself, consistent practice and interpretation leaves to Congress the authority to create additional offices through its power to enact laws “necessary and proper” for carrying out enumerated federal powers.²⁰ The Appointments Clause is the constitutional basis for the president’s and Senate’s roles in filling these jobs. However, the Clause itself provides few details on the appointments process. The Clause distinguishes between “principal” and “inferior” officers. Inferior officer’s selection may be vested directly in the president, heads of executive departments, or the courts, but the Clause specifically provides that the president must nominate principal officers who are then appointed subject to the “Advice and Consent of the Senate.”²¹ The Constitution provides no further details on how officers are appointed and does not specify any role for the House in the process.

Myers v. United States, which centered on the president’s power to remove officers, established the modern doctrine’s approach to congressional restrictions on presidential nominations.²² The case arose after President Woodrow Wilson attempted to fire Frank Myers, the first-class postmaster for Portland, Oregon, in contravention of an 1876 statute requiring Senate consent for the removal of a postmaster.²³ Writing for the Court, Chief Justice Taft held that the executive powers vested in the president permit most officers’ unilateral removal and that Congress is not empowered to impose removal restrictions on postmasters.²⁴ This was sufficient to resolve the case. But Chief Justice Taft bolstered his argument with dicta that has since defined the current doctrine’s approach to appointment restrictions. Responding to Myers’s argument that striking down removal restrictions would call into question the validity of appointment restrictions, which had already enjoyed several decades of frequent use,²⁵ Chief Justice Taft wrote that conflicts seldom arose between legislative qualifications and the president’s appointment and removal powers. According to the Chief Justice, as long as legislative qualifications did not restrict the pool of candidates so narrowly “as to be in effect legislative designation,” they were constitutionally sound.²⁶

But by broadly permitting congressional intrusion into the appointment power and framing the test around the volume of candidates that remain, Myers’s dicta contradicted both itself and the historical record. As we explain below, Chief Justice Taft’s approach clashes with the constitutional structure of congressional and presidential powers in this area, contradicts the very quote from Madison on which it relies, and fails to account for the historical understanding of the appointment power.

B. A Tale of Two Absolutisms: Reviewing Existing Scholarship

Scholars who have addressed the appointment power typically fall into one of two competing schools based on whether their approach to constitutional interpretation is more functionalist or more formalist.²⁷ Functionalist scholars, the permissive absolutists, tend to support the longstanding doctrine articulated in Myers, which permits Congress’s broad intrusion into appointments. They emphasize Congress’s office-creating powers and read away any potential constitutional conflict with a dependent presidential nomination “privilege.”²⁸ They argue that the Constitution permits any and all qualifications, even those that restrict the pool of potential nominees so tightly that they result in effective legislative designation.²⁹ Following arguments raised as early as 1871 by Attorney General Amos Akerman, they argue that “the unquestioned right of Congress to create offices implies a right to prescribe qualifications for them.”³⁰

On the other hand, the strand of originalist scholarship critiquing the permissive conventional wisdom is absolutist in the opposite direction. These restrictive absolutists argue that the original meaning of the Nominations Clause indicates that any and all qualifications are infringements of the robust executive nomination power—a power that is checked only by the Senate’s advice and consent.³¹ These scholars, however, have not fully reconciled the available textual and historical evidence on the further issue of whether these statutory qualifications represent an unconstitutional encroachment by the House into the Senate’s exclusive unicameral process.³² Likewise, they fail to distinguish key characteristics of legislative qualifications in immediate post-ratification practice.³³ Finally, scholarship does not persuasively harmonize the Necessary and Proper Clause³⁴ with the text of the Appointments Clause to produce a comprehensive understanding of the Constitution’s original meaning as it relates to statutory qualifications. Neither the restrictive nor permissive absolutist views of legislative qualifications can be reconciled with a historical understanding of the nomination power’s scope, the grant of implied powers in the Necessary and Proper Clause, and the mixed nature of early practice.

C. Fairness in Judiciary Appointments Act

To analyze how these absolutist claims fare in practice, we turn to our case study. The Fairness in Judiciary Appointments Act of 1997 (FJAA) purports to require at least one active federal court of appeals judge appointed from the residents of each of the fifty states.³⁵ The Act added this language to 28 U.S.C. § 44(c), which specifies certain other requirements for circuit judges and nominees for circuit judgeships.

The FJAA was enacted in 1997 after years of lobbying by members of Congress from states in which no circuit judge sat.³⁶ In 1995, no active Ninth Circuit judge sat in Montana nor did any Second Circuit judge have chambers in Vermont.³⁷ Hawaii had lacked an active judge on the Ninth Circuit since 1984.³⁸ North Carolina had been caught in a blue-slip filibuster during the Clinton Administration and was at risk of soon having no active circuit judges.³⁹ Senators Daniel Akaka and Daniel Inouye of Hawaii proposed remedial legislation to “ensure Hawaii representation on the Ninth Circuit” by requiring presidents to appoint circuit judges from every state.⁴⁰ Senator Akaka argued that this measure would promote “fairness . . . and remove political pressure in weighing the nomination of a person from a more populated State over an individual from a less populated State.”⁴¹ They included a provision that explicitly limited the president’s appointment discretion to comply with the state representation requirement.⁴² The sponsor of the House companion legislation, Hawaii Representative Neil Abercrombie, addressed the constitutional question by implicitly drawing on the conventional wisdom articulated in Myers that Congress possesses broad qualification powers.⁴³

The bill was then incorporated into a 1998 appropriations bill and enacted on November 26, 1997.⁴⁴ The explicit reference to the president’s appointment decisions had been removed so that the Act’s final text read: “In each circuit (other than the Federal judicial circuit) there shall be at least one circuit judge in regular active service appointed from the residents of each state in that circuit.”⁴⁵

The FJAA was immediately disregarded. The Clinton Administration continued to simultaneously overlook both the statute and its sponsors’ home state of Hawaii.⁴⁶ President Clinton nominated, and the Senate confirmed, eleven judges who were not residents of Hawaii to vacancies on the Ninth Circuit in violation of the new statutory requirement.⁴⁷ Moreover, the statute failed to save North Carolina from experiencing the circuit-judgeless fate that the legislation had been introduced in part to prevent.⁴⁸

Today, the FJAA has practical significance for the eleven states—in four different circuits—that currently have only a single active court of appeals judge.⁴⁹ When those states’ circuit court judgeships become vacant, the provision theoretically requires that the seat be filled only by a candidate “appointed from the residents of” that state.⁵⁰ Whether this statute is constitutional and binding—or invalid and meaningless—therefore determines whether the president, with the advice and consent of the Senate, can only choose from among the small fraction of the population that lives in that particular state or is free to select the nominee whom he believes is best suited for the role.

D. Existing Statutory Restrictions on Appointments

The FJAA’s state representation requirement is not the only restriction Congress has placed on appointments. On the contrary, Congress has frequently placed similar conditions on appointments of executive officers throughout American history. For example, Congress used appointment restrictions as a tool in the wake of Hurricane Katrina to address perceived shortfalls in agency responses. The Post-Katrina Emergency Management Reform Act of 2006 mandated that the Federal Emergency Management Agency (FEMA) Administrator “be appointed from among individuals who have” both “demonstrated ability in and knowledge of emergency management and homeland security” and have at least five years of executive leadership experience.⁵¹

Some statutes require the president to select nominees based on a list of potential candidates prepared by other officials. For example, Congress mandates that the president nominate the Comptroller General—who directs the Government Accountability Office⁵²—from three names provided by the Speaker of the House and the President Pro Tempore of the Senate.⁵³ These are but a small sample of the numerous forms of appointment restrictions Congress has imposed.⁵⁴

The legal discussion of executive powers has long neglected the importance of the appointment power and presidential discretion. These burdensome statutory requirements have rarely been challenged. Even the Supreme Court failed to acknowledge the potential conflict when it considered constitutional challenges to the Sentencing Commission’s appointment requirement and again when it described the unique appointment process for the Comptroller General.⁵⁵

E. Constitutional Salience

Despite courts’ and commentators’ nonchalant attitude toward congressional appointment restrictions, these statutes raise serious constitutional questions. We turn our attention next to the reason a constitutional line must exist beyond which Congress cannot restrict presidential appointment discretion, the relevance of this line, and why Myers does not properly represent it.

1. The Existence of a Limit

If Congress could enact unlimited qualifications on appointments, then the president’s appointment power would be little more than a façade for congressional selections. Permissive absolutism is, therefore, incorrect. There must be a line beyond which purported statutory restrictions on principal officer appointments are invalid. This is so for three reasons: (1) it is the implication of the plain text of the relevant constitutional provisions, (2) it is supported by longstanding though mixed precedent, and (3) it is necessary to prevent results that all but the most permissive absolutists would consider unconstitutional.

The foundation for understanding the president’s and Congress’s respective powers in this area is the text of the Constitution itself.⁵⁶ First, the president’s appointment power is provided in Article II, § 2, which states that 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,” unless Congress vests the appointment of a particular inferior officer in another body.⁵⁷ Congress’s authority over appointments has several potential textual hooks. To start, the Appointments Clause itself discusses the appointment of other offices “which shall be established by Law.”⁵⁸ Though contained in Article II, this presumably clarifies that the creation of officers not specified in the Constitution is by default a congressional power.⁵⁹ Particularly relevant for the appointment of federal judges, Congress has the enumerated power “[t]o constitute Tribunals inferior to the supreme Court.”⁶⁰ Congress’s power to “constitute” inferior courts—as well as the president’s appointment power—is further augmented by Congress’s elastic powers under the Necessary and Proper Clause.⁶¹

The plain text of the Constitution makes clear that there is a limit to congressional appointment restrictions. Congress’s ability to act here is constrained in two ways. First, there is the zone of enumerated authority delegated by the Constitution within which Congress can normally operate.⁶² Second, there is the backstop of powers expressly granted to the president, with which Congress cannot interfere.⁶³ Specifically, the president, and not Congress, is given the power to nominate and appoint officers and judges—with the advice and consent of the Senate.⁶⁴ Congress cannot arrogate to itself the appointment power through statutory restrictions that effectively let Congress choose nominees. Moreover, Congress’s constitutional authorization in the judicial appointments area extends only to “establish[ing]” judgeships “by Law” and “constitut[ing]” the inferior courts.⁶⁵ Choosing the individual judges to fill those judgeships appears to be a plain overstep of this limited enumeration.

Second, the existence of such a line is a longstanding precedent. In Myers v. United States, Chief Justice Taft wrote for the Court that Congress may restrict appointments “provided of course that the qualifications do not so limit selection and so trench upon executive choice as to be in effect legislative designation.”⁶⁶ He drew on James Madison’s explanation of the strict separation of powers between the president and Congress in appointments.⁶⁷ Though underdeveloped and often overlooked, lower courts have continued to espouse the existence of such a limit.⁶⁸

Third, the existence of a line beyond which congressional appointment restrictions violate the separation of powers is logically necessary. Otherwise, Congress could impose statutory restrictions under the guise of “qualifications” that wholly subsume the appointment power. For example, if Congress’s qualifications power were unrestrained, a Republican Congress could require the president to choose all judicial appointments from a list prepared by Leonard Leo. Or, Congress could restrict the appointment of the Secretary of State to candidates chosen from a list prepared by the Speaker of the House and the President Pro Tempore of the Senate. Thus, were a line not to exist, outcomes that would almost universally be regarded as unconstitutional become possible. The Constitution’s grant of nomination and appointment powers to the president would be nugatory if the president exercised it only at the grace of Congress.⁶⁹

2. The Importance of Preserving the Constitutional Balance

The threat of aggrandizing legislative qualifications is not only an academic or theoretical concern—it’s real. In 1916, Congress included a peculiar rider in the Army Reorganization bill.⁷⁰ It mandated that one of the Judge Advocate positions created by the bill be filled with a candidate who: (1) was at least a major, (2) was currently a civilian, (3) was between the ages of forty-five and fifty, (4) had served for ten years as a judge of the Supreme Court of the Philippines Islands, (5) had two years of experience as a captain in the Army, and (6) was “proficient in the Spanish language and laws.”⁷¹ These rather oddly specific eligibility criteria were not arbitrary. Rather, only a single person at the time fit all the requirements: Judge Adam C. Carson. Unsurprisingly, Judge Carson was subsequently appointed to be the Judge Advocate.⁷² This was not a one-time shenanigan. Even more explicitly, Congress passed an act entitled “for the relief of Fitz-John Porter” in 1886.⁷³ That bill authorized the president “to appoint Fitz-John Porter . . . to the position of colonel in the Army of the United States, of the same grade and rank held by him at the time of his dismissal from the Army by sentence of court-martial” during the Civil War.⁷⁴ Although President Chester Arthur vetoed the act for violating his appointment power, Edward Corwin notes that “Congress has, nevertheless, repeatedly designated individuals, sometimes by name, more frequently by reference to a particular office, for the performance of specified acts or for posts of a non-governmental kind.”⁷⁵

If such statutes are valid, then the appointment power means only as much as Congress allows it to. Congress could bestow on itself functionally absolute control over appointments whenever it desires as long as it can override a veto. This would completely undermine the Constitution’s explicit delegation of nomination and appointment powers to the president.⁷⁶ The possibility of such an undesirable result—surely one the Framers did not intend when they bestowed the executive with the appointment power—reveals that some limit must be constitutionally required.

3. The Insufficiency of Current Doctrine

The line employed by conventional wisdom, however, is excessively permissive. Chief Justice Taft’s opinion in Myers undercuts the separation of powers in the appointment context by allowing statutory restrictions as long as the president can choose from a sufficiently large pool of candidates.⁷⁷ First, the focus on volume—rather than on whether Congress and the president are acting within the sphere of their constitutionally delegated powers—is an improper framework for analyzing these statutes. Evaluating statutes based on the quantity of candidates left to the president does not follow from the text of the Constitution. Rather, Congress may only restrict appointments if operating under an enumerated power or as a Necessary and Proper furtherance of a power assigned to one of the branches. Volume is orthogonal.

Second, Chief Justice Taft’s standard is contradicted by the very evidence he cites to support it. He reproduces a lengthy quotation from the debates of the First Congress where James Madison stated, in part, that “[t]he powers relative to offices are partly Legislative and partly Executive. The Legislature creates the office, defines the powers, limits its duration[,] and annexes a compensation. This done, the Legislative power ceases.”⁷⁸ Madison underscored the point, saying, “They ought to have nothing to do with designating the man to fill the office. That I conceive to be of an Executive nature.”⁷⁹ However, these references do not support Justice Taft’s volume argument. As Madison defined it, there are clear, differing legislative and presidential roles in appointments. Congress’s authority relates to actions that constitute the office, such as creating, empowering, and compensating it—nothing more. Chief Justice Taft’s allowance of more expansive bicameral congressional involvement—limited only by the burden it places on the president—runs directly contrary to the clear and unqualified distinction between the various powers in this area. That distinction properly directs the question towards the nature of Congress’s action and the powers it utilizes.

Moreover, Chief Justice Taft’s standard conflicts with the historical understanding of the Constitution, evidenced by its text and immediate post-ratification practice, as discussed below in Part II. The appointment power and the limits on congressional interference in this area matter. Congress’s statute purporting to require circuit judges to be appointed from the residents of each state raises serious separation of powers questions. Contrary to the views of permissive absolutists, a line must exist. The conventional wisdom on it is plainly too permissive. Now, we turn to the historical record to investigate where that line should be.

II. Nominations at the Founding

Having reviewed the framework and deficiencies of existing doctrine, we now turn our attention to examining the constitutional text, original understanding, history, and immediate post-ratification practice surrounding appointments and legislative qualifications. Current theories fail to reconcile all of these evidentiary sources in the historical record. We propose a novel interpretation based on the Constitution’s delegation of responsibility over appointments to the president—tempered by congressional powers implicit in the Necessary and Proper Clause—that properly synthesizes post-ratification practice and doctrine. Specifically, we argue that the Appointments Clause was originally understood to grant the president near-exclusive control over the qualifications of principal officers. Early congressional practice reflects this deference to executive control over principal officers’ qualifications with limited but informative exceptions. The Necessary and Proper Clause not only explains those exceptions but also defines the contours for a narrow field of permissible legislative qualifications—designed to ensure that nominees possess the bare minimum capacities to perform the functions of a given office.

A. The Scope of the Executive Nominations Power

At the Founding, the president’s nomination power was understood to be the primary mechanism ensuring the selection of qualified officers. Both the Philadelphia Convention and subsequent ratification debates were filled with substantial discussion of the nomination and appointment powers.⁸⁰ These debates were premised on a presumption of executive control over qualifications that is impossible to reconcile with the permissive absolutists’ view that all qualifications are valid. The Convention’s presumption of executive control must also be reconciled with the final constitutional text, including the Necessary and Proper Clause. Restrictive absolutists accurately identify the grant of executive discretion over nominations but fail to account for necessary and proper legislative powers.

The American Constitution’s system of office creation, nomination, and appointment is a variation on the unified power formerly held by the British monarch. In England, the King had the power to create offices and the prerogative to fill them with candidates of his choice.⁸¹ As in many other contexts, the American Framers divided this unitary power into three discrete functions distributed among the separate branches of government: the bicameral legislature was given the power of office creation; the executive was given the power of nomination and appointment; and, departing from the norms of the new bicameral legislative system, the Senate alone was given the role of providing advice and consent as a check on the executive’s discretionary choice.⁸²

The Founders did not create this structure in a vacuum, as evidenced by the thirteen state constitutions they heavily drew upon when drafting the Federal Constitution. When interpreting broad language in the Federal Constitution, scholars note that looking to these state constitutions helps inform original meaning.⁸³ In the context of appointments, these state constitutions reveal that eighteenth-century drafters knew how to explicitly assign discretion over appointments to the legislature and leave the executive with only a pro forma magisterial function. For example, at least six state constitutions provided that officers or judges be “appointed” by the legislature and “commissioned” by the governor.⁸⁴ On the other hand, Rhode Island’s fundamental law⁸⁵ assigned to the state’s bicameral legislature the authority to “distinguish and sett forth the severall names and titles, duties, powers and limitts, of each court, office and officer, superior and inferior.”⁸⁶ Because the Founders intended to place officer selection in the hands of the president, they chose to vest the president with the explicit power to “appoint”—the phrase used by state constitutions to indicate discretion in choosing officers, rather than the magisterial task of commissioning.

The prevailing consensus, informed by the states’ experiences, was that legislative bodies were ill-suited to the selection of officers.⁸⁷ Recognition of the “impropriety in the same men[] making offices and filling them” motivated a search for a constitutional mechanism that would give legislators “as small a share as possible in the disposal of [offices].”⁸⁸ Madison rejected the selection of judges by the legislature in full precisely because “many of the members were not judges of the requisite qualifications.”⁸⁹ The Framers also anticipated that the legislature’s political incentives would likely have more influence on its selections than the qualifications of candidates.⁹⁰ Evaluations of “virtue, merit, and talents for office” would be replaced by “partiality, intrigue, and chicane.”⁹¹ These concerns prompted an effort to separate the powers of office creation from officer selection, granting the former power to Congress and the latter to the president. This rejection of the bicameral legislature as a selection mechanism is significant. By rejecting legislative appointments, the Framers demonstrated a presumption that qualifications were to be judged in the stages of nomination and appointment, not established as a dimension of the office. No system permitting limitless congressional control over nominee qualifications comports with the Founders’ express rejection of legislative appointments. As a result, the debate concentrated on designing some mechanism, other than legislative selection, to ensure the qualifications of officers.⁹²

Madison first proposed appointment of officers by only the Senate on the basis that, “as a less numerous & more select body, [the Senate] would be more competent judges” of officers.⁹³ Subsequent debate raised the same critique of Senate appointments that had been raised against appointments by the legislature in full.⁹⁴ For some, even the more select Senate was “too numerous, and too little personally responsible, to ensure a good choice.”⁹⁵ Nathaniel Gorham, delegate from the Bay Colony of Massachusetts, proposed that the Federal Constitution instead adopt the nomination and appointment process used in the Constitution of Massachusetts.⁹⁶ In Massachusetts, judges were appointed by the executive upon the advice and consent of the legislative branch.⁹⁷ Gorham’s proposal provided the compromise structure around which the final federal process crystallized: unilateral presidential nomination and appointment tempered only by senatorial advice and consent.⁹⁸

The nomination power was understood to be a distinct and exclusive right of the president.⁹⁹ The Senate, the House, or the legislature in full were to play no role in nomination. “In the act of nomination [the president’s] judgment alone would be exercised,” Hamilton explained, “and as it would be his sole duty to point out the man who, with the approbation of the Senate, should fill an office, his responsibility would be as complete as if he were to make the final appointment.”¹⁰⁰ Even appointment was understood to be a presidential act, subject only to a Senate check¹⁰¹: “The President, not the Senate, appoint[s]; they only consent and advise.”¹⁰² The Framers viewed nomination and appointment as discretionary, political acts of the president.¹⁰³

The president’s unilateral power to appoint contained a duty to scrutinize officer qualifications.¹⁰⁴ To ensure that executive discretion was insulated, the president’s selection of nominees was expected to occur upstream of any checks—not downstream of legislative predetermination. The Founders defended unilateral presidential discretion because it best incentivized a thorough and impartial evaluation of candidate qualifications.¹⁰⁵ In contrast to the politicization of legislative appointments, a single executive would face genuine accountability for the selection of qualified candidates.¹⁰⁶ In clear contemplation of the fact that the president retained the capacity to nominate and appoint unqualified officers, the Framers maintained confidence in the fact that “[t]he blame of a bad nomination would fall upon the President singly and absolutely.”¹⁰⁷

Alternative qualifications mechanisms proposed by the Anti-Federalists—and rejected by the Constitution’s drafters—reveal several systems that contemporaries believed the Constitution did not embody. The Federal Farmer argued that any exposure to the legislature, even unicameral advice and consent, was likely to corrupt the selection process.¹⁰⁸ Instead, he recommended a system of presidential appointment via an executive council, an appointment mechanism deployed by several colonial governments but expressly rejected at the Philadelphia Convention.¹⁰⁹ If this proposal prompted concern about unchecked executive power, he recommended a compromise measure “giving the appointment of a few great officers to the legislature” in a modification of the Constitution’s unilateral nomination structure.¹¹⁰ The rejection of these alternate structures demonstrates that the constitutional power to select qualified officers belonged to the president, not Congress. Ardent Anti-Federalists were concerned that the Constitution’s text gave the president an expansive power, not a conditional privilege. Luther Martin described the president’s nomination and appointment powers as “above all restraint or controul.”¹¹¹

Forty-four years after the Constitution’s ratification, Joseph Story clearly articulated the view that presidential discretion checked by senatorial consent was the mechanism by which nominees’ qualifications would be evaluated and tested:

The President is to nominate, and thereby has the sole power to select for office; but his nomination cannot confer office, unless approved by a majority of the [S]enate. His responsibility and theirs is thus complete, and distinct. He can never be compelled to yield to their appointment of a man unfit for office; and, on the other hand, they may withhold their advice and consent from any candidate, who in their judgment does not possess due qualifications for office . . . . The consciousness of this check will make the president more circumspect, and deliberate in his nominations for office. He will feel, that, in case of a disagreement of opinion with the [S]enate, his principal vindication must depend upon the unexceptionable character of his nomination. And in case of a rejection, the most, that can be said, is, that he had not his first choice. He will still have a wide range of selection; and his responsibility to present another candidate, entirely qualified for the office, will be complete and unquestionable.¹¹²

In this view, the Senate is the only governmental body permitted to check presidential discretion in the nomination and appointments process. In convention debates, the Senate was selected for that role as (1) a protection against underqualified and underinformed appointments and (2) a cure for geographic favoritism. First, the Framers anticipated the risk of unqualified officers. The Senate’s unilateral advice and consent was designed to resist “any flagrant partiality or error, in the nomination.”¹¹³ The risk of “candidates who had no other merit” than some personal or regional connection to the president¹¹⁴ was to be cured by the Senate’s check on the appointment.¹¹⁵ Thus, the remedy they designed was the Senate’s downstream denial—and not the full legislature’s upstream restriction.

Second, any presidential geographic preferentialism in appointments was likewise to be cured by post-nomination senatorial advice and consent, not pre-nomination statutory restriction.¹¹⁶ Delegates at the Constitutional Convention voiced concern that unilateral executive appointments would be geographically concentrated.¹¹⁷ They implemented senatorial advice and consent as a check on these tendencies, injecting a measure of dispersed regional self-interest that would balance any concentrated interests of the executive.¹¹⁸ Relatedly, the Senate was expected to supplement the president’s “knowledge of the people in the several states.”¹¹⁹ Because the Senate was drawn from all the states, it could offer broader knowledge of the best candidates for office.¹²⁰ Equipped with this support, the president was empowered to look throughout the states for a qualified nominee.

Article II granted the president unilateral control over nominations. The Founders rejected proposals to have the bicameral Congress select principal officers and granted the Senate alone the power to advise and consent to the president’s choice. But even if the Senate were to reject a nominee, subsequent nominees would always be selected at the president’s discretion.¹²¹

B. Clarifying Early Practice

Early use of legislative qualifications aligns with executive and Senate control of principal officers’ qualifications.¹²² According to the standard account derived from Myers and championed by the permissive absolutists, legislative qualifications were an immediate and ubiquitous element of office-creating statutes.¹²³ Permissive absolutists often string-cite statutory provisions dating from the first acts of Congress that outline criteria for officeholders.¹²⁴ These scholars claim that any theory that legislative qualifications unconstitutionally interfere with the executive nomination power cannot be reconciled with early congressional practice.¹²⁵ Restrictive absolutists have largely ceded this ground—admitting that early practice imposed legislative qualifications but still dismissing them as unconstitutional.¹²⁶ However, early legislation reveals a delicately mixed practice that does not support either form of absolutism.

In reality, Congress implemented only a single form of qualification on principal officers before 1855: a requirement that principal officers practicing law be “learned in the law.”¹²⁷ Imprecise amalgamations of diverse qualification provisions have obscured the limited scope of this congressional action.¹²⁸ In spite of the portrayal of early practice as a pervasive implementation of all varieties of qualifications,¹²⁹ the statute books tell a different story.

The problem with the standard account is its failure to recognize that early legislative qualifications almost exclusively limited the president’s nomination of inferior officers. The relevant scope of historical practice, however, is limited to the president’s nomination of principal officers. The presidential nomination power does not extend to all officers equally. As prior scholars have recognized, the Constitution prescribes that the president’s exclusive nomination power only operates within the context of “confirmation appointments” of principal officers.¹³⁰ In contrast, “vested appointments” of inferior officers may be distributed throughout the branches of government at Congress’s discretion.¹³¹ In such “vested appointments,” the executive holds no exclusive power, and no process is specified. The legislature fully controls the selection processes of inferior officers. What the legislature can unilaterally appoint, it may certainly choose to qualify.¹³²

When early practice is viewed through the lens of this distinction, only a single legislative qualification affected principal officers during the first sixty-six years of the republic.¹³³ In Congress’s first year, the Judiciary Act of 1789 limited nominees for the United States Attorney General to those persons “learned in the law.”¹³⁴ Similarly, the nominations of federal district attorneys¹³⁵—and eventually of U.S. Attorneys¹³⁶—were limited by this same qualification. Written in an era before the first juris doctor degrees were awarded and bar admission was less regulated, these requirements did not simply mandate that the officeholders be “learned” in the conventional sense.¹³⁷ Rather, this was a term of art commonly employed from the fourteenth century onward,¹³⁸ which in the American colonies, and eventually the United States, meant that the person was a trained lawyer.¹³⁹ No other legislative qualifications for principal officers can be found in the early statute books.

This astoundingly constrained exercise of legislative qualifications on principal officers is best revealed, perhaps, in contrast. The most influential and technical offices created by Congress were utterly bereft of qualifications. The offices of the Secretary of War, the Secretary for the Department of Foreign Affairs (now the “Secretary of State”), the Secretary of the Treasury, the Treasurer, the Comptroller, the Auditor, and many others were created without any legislative qualifications.¹⁴⁰ The selection of qualified officers was entrusted entirely to the discretion of the executive and the review of the Senate. But it was not the case that Congress had simply failed to consider the possibility of legislative qualifications before the mid-nineteenth century. In contrast to its near silence on principal offices, Congress implemented a multitude of qualifications on inferior officers.¹⁴¹ Citizenship, land ownership, residence, military experience, language, and occupational experience qualifications all limited the “vested appointments” of inferior officers.¹⁴² This contrast amplifies congressional deference to the president’s nomination power in principal officers.

Even if there are only several instances of a single form of legislative qualification for principal officers, these admittedly are examples of some congressional limitation on the executive’s nomination and appointment of principal officers in the earliest years of the republic. It is possible to claim that these provisions are unconstitutional—immediate aberrations from a constitutional design produced by political incentives—as many restrictive absolutists do.¹⁴³ However, the practices of the first several Congresses are frequently considered among the most probative sources of original understanding.¹⁴⁴ The very delegates who carefully framed the presidential nomination power and designed the unique unicameral advice and consent process became the legislators who only two years later enacted the first limited set of qualifications.

These early but rare exceptions are important marks in the otherwise unbroken record of broad deference to presidential discretion over the nomination of principal officers. While restrictive absolutists interpret the Constitution’s insulation of presidential power more accurately than their permissive counterparts, they fail to recognize a constitutional explanation for these early limited exceptions. This concentrated behavior, and the underlying clash between legislative and executive powers, warrants further scrutiny.

C. Interaction with Legislative Powers

The Appointments Clause’s original meaning aligns with the view that primary discretion in appointments is vested in the president, but it also leaves ambiguities that must be resolved by context and early practice. The Constitution gives the president power to “nominate” and, with the advice and consent of the Senate, “appoint.”¹⁴⁵ The close connection between these words does not leave room for statutory restrictions on appointment discretion. “Nominate” was understood in terms of appointment: “To set down; to appoint by name.”¹⁴⁶ For example, Samuel Johnson’s dictionary illustrates this word by referencing John Locke’s use of it in parallel with “appoint”: “[W]e cannot expect he should nominate or appoint any person to it.”¹⁴⁷ John Ash’s dictionary gives it a similar meaning: “To name, to mention by name, to entitle, to set down or appoint by name.”¹⁴⁸ Likewise, “appoint” was defined as “[t]o establish any thing by decree.”¹⁴⁹ The Framers’ emphasis on discretion and choice is underscored by an example provided by Samuel Johnson: “It was before the Lord, which chose me before thy father, and before all his house, to appoint me ruler over the people of the Lord.”¹⁵⁰ The Framers’ word choice indicates that the president was granted a power to exercise discretion in officer selection, not merely to commission Congress’s designated candidates.

The Constitution’s specific grant of control over nominations to the president supplements the broader foundation of executive powers and duties related to appointments. Article II vests the entire executive power in the president, imposing a continuous duty to “take Care that the Laws be faithfully executed.”¹⁵¹ The Take Care Clause implies executive control over the principal officers of the United States.¹⁵² Control of appointments is a key mechanism by which the president satisfies the duty to take care that laws are faithfully executed.¹⁵³

Congress’s powers in the realm of appointments derive from several clauses. Offices not explicitly mentioned in the Constitution are “established by law.”¹⁵⁴ “Establish” was understood variously as, “To settle firmly; to fix unalterably,” “To form or model,”¹⁵⁵ or “To settle firmly, to ratify, to fix, to settle, to build firmly.”¹⁵⁶ As relevant for the FJAA, Congress is granted the enumerated power “[t]o constitute Tribunals inferior to the supreme Court.”¹⁵⁷ Samuel Johnson defined “constitute” as, “To give formal existence; to make any thing what it is; to produce” or “To erect; to establish,”¹⁵⁸ and John Ash similarly provides, “To set up, to make any thing what it is, to depute, to appoint.”¹⁵⁹ What Congress can constitute, are “Tribunals,” which were defined as “[t]he seat of a judge” “[a] court of justice”¹⁶⁰—not the judges themselves. Thus, the Constitution directs Congress’s powers not to the selection and qualities of the individual but to the characteristics of the office generally.

Both schools of absolutist scholars resolve this apparent tension between legislative and executive powers by asserting that one branch’s authority is exclusive of the other in the nominations context. Permissive absolutists posit that the legislative power to create an office precedes any privilege of the executive to fill it.¹⁶¹ Restrictive absolutists reason that because the executive’s nomination power demands the completely unconstrained selection of candidates, the legislature may not use qualifications to restrict the field of candidates in any manner.¹⁶²

These absolutist readings erase the substance of the two primary clauses and ignore the role of a third grant of power—the Necessary and Proper Clause.¹⁶³ The Constitution’s process for appointments explicitly relies upon presidential nomination and senatorial consent as the mechanism to ensure the selection of qualified officers.¹⁶⁴ Reading the Constitution as a harmonious whole, the grant of office-creating power to the legislature cannot negate the executive nomination power. As then-student Hanah Metchins Volokh identified, it is uncontroversial that “this power does not include the power to legislatively interfere with the President’s power of appointment to those offices.”¹⁶⁵ But the creation of an office—the definition of its location, title, powers, duties, and limits—will inherently narrow the field of candidates available to the president’s selection. The legislative power to create an office and the executive power to fill an office are distinct functions that both must operate without subversion.¹⁶⁶

The Necessary and Proper Clause injects an implied and inherent legislative addendum into this balance.¹⁶⁷ This clause provides Congress with the power to carry into execution all the legitimate constitutional ends entrusted to the legislature.¹⁶⁸ From the first version of the clause proposed at the Philadelphia Convention, it was evident that it was meant to confer an office-creating power on Congress. Edmund Randolph initially suggested a general legislative power to “organize the government” to accomplish previously enumerated ends.¹⁶⁹ In response, James Madison proposed what became the Necessary and Proper Clause.¹⁷⁰

The scope of the Clause has been vigorously contested from the moment the Constitution’s ink dried in 1789. One school of scholars, which represents current doctrine, reads the grant of power as expansive, requiring only a rational relationship between the legislature’s chosen means and the enumerated end.¹⁷¹ Another school believes the clause was limited by strict necessity, permitting only legislative actions without which performance of the enumerated power would be impossible.¹⁷² There is good reason to think the original scope of the Clause is narrower than current doctrine and closer to strict necessity, particularly where it is confined by specific grants of power to the executive.¹⁷³ It is sufficient for our purposes to demonstrate that no theory of the Necessary and Proper Clause can be reconciled with either absolutist view of the nomination powers.

All theories of the Necessary and Proper Clause agree on two points. First, the Clause only supports legislative actions that are consistent with the text and structure of the Constitution.¹⁷⁴ It does not permit the legislature to usurp any function which the Constitution vests in another branch or entity.¹⁷⁵ Congressional actions that violate principles of federalism or “undermine the structure of government established by the Constitution” have thus been rejected as improper.¹⁷⁶ As such, any legislative attempt to nullify the Constitution’s express grant to the president of discretionary selection over principal officers would be improper. Second, all theories of the Necessary and Proper Clause agree that legislative actions that are strictly necessary to the performance of enumerated powers are within the scope of the Clause. These strictly necessary measures—“those means without which the grant of the power would be nugatory”—define an unquestioned core of the clause’s grant.¹⁷⁷ The dimensions of the Necessary and Proper Clause rebut both the permissive and restrictive absolutists’ allocation of nomination power. They demand the conclusion that some, but not all, qualifications are constitutional exercises of the legislature’s office-creating power. The varied nature and use of qualifications is simply too diverse to support either absolutist view.

First, permissive absolutists must accept that not all uses of qualifications are constitutionally permissible. Legislative designations of principal officers—narrowing of the field to a single candidate—definitively usurp a power expressly reserved to another constitutional player. The executive nomination power and Senate confirmation process are the exclusive and proper mechanisms for the selection of principal officers.¹⁷⁸

Second, restrictive absolutists must also admit an exception. It cannot be true that any legislation which limits the pool of candidates from which the president may nominate an officer is an unconstitutional infringement of the nomination power. The legislative act of designating the duties of an office will generate some implied, inherent requirements of the qualities essential to perform those duties. In at least some cases, specific candidate characteristics will be strictly necessary for the performance of an office’s duties. Under any theory, the Necessary and Proper Clause at minimum permits those means without which the congressional power to create an office would be rendered nugatory.¹⁷⁹ Although the appointment power is granted to the president, congressional authority over creating an office and defining its duties implies that the president cannot abuse this discretion by appointing officers who are genuinely unable to carry out the responsibilities Congress assigns. That would render Congress’s definition of the responsibilities of office a dead letter. Though restrictive absolutists come close to the mark by reading Article II as insulating executive discretion over nominations, their reading fails to account for the narrow exceptions any interpretation of the Necessary and Proper Clause must admit.

In reality, to ensure that the duties Congress assigns to offices can be carried out, it may sometimes be both necessary and proper for Congress to attach limited, circumspect qualifications on offices to ensure nominees have the minimum capacities essential to perform the office’s functions. As an exercise of its necessary and proper power, Congress must act with the purpose of ensuring its statutory definition of responsibilities can be effectuated, not with the purpose of undermining presidential discretion by policing who it thinks is able to better serve in a particular role.¹⁸⁰

As even restrictive absolutists have recognized, Congress can effectively create a limit on available candidates by imposing exclusionary duties on offices; for example, Congress could require that the Solicitor General have to personally argue in court—which would exclude from contention all individuals not trained in the law without affirmatively requiring the pool of presidential nominees be lawyers.¹⁸¹ These absolutists fail to recognize a limitation of this type for what it is—a strictly necessary means for ensuring the performance of an enumerated legislative power. Although thin, immediate post-ratification practice supports this interpretation of the relationship between Congress’s necessary and proper power and the president’s appointment power. It was rational for the First Congress to have believed that being “learned in the law” was practically necessary to carry out the Attorney General’s statutory duties “to prosecute and conduct all suits in the Supreme Court in which the United States shall be concerned, and to give his advice and opinion upon questions of law when required by the President.”¹⁸² In sum, unlike the absolutists’ existing theories, this theory alone harmonizes all available evidence of original meaning.

Article II defines a barrier around executive powers that Congress cannot penetrate using the Necessary and Proper Clause. Congress cannot rely on the power to perform executive functions itself.¹⁸³ Congress cannot appoint or remove principal officers.¹⁸⁴ But Congress can compel the president to perform executive functions that are strictly necessary to achieve a legitimate legislative end. For example, if Congress has appropriated funding for the executive to perform a statutorily mandated function, the executive lacks discretion to not spend the appropriation.¹⁸⁵

In the appointments context, this means that Congress can legislate up to the edge of Article II, compelling the president to perform executive functions that, if omitted, would amount to a failure to faithfully execute the law. An office created by Congress will not function if the president refuses to appoint any officer to fill it. Congress, relying on the Necessary and Proper Clause, could compel the president to exercise the executive power to appoint an officer to fill the office. Likewise, an office created by Congress will not function if the president appoints officers without a qualification strictly necessary to perform the office’s statutorily defined duties. The Necessary and Proper Clause permits Congress to compel the president to appoint candidates with such strictly necessary qualifications. In doing so, Congress is not subsuming the discretionary selection power granted to the president by Article II but is instead mandating that the executive perform the executive duties necessary to bring legitimate legislative ends to fruition. The Constitution delegates to Congress the power to create offices and define their duties; the president’s own duty to “take care that the laws be faithfully executed” leaves him or her with no legitimate interest in appointing officers who cannot possibly carry out those responsibilities.

These are narrow propositions, but they are central to this Note’s purpose: breaking absolutism’s hold over theories of the nomination power. Qualifications are simply too varied in character and use to be absolutely permitted or restricted by the Constitution’s text and structure. Once deprived of the convenience of an “all” or “none” response, a prudent inquiry into the scope of constitutionally permissible legislative qualifications can commence.

III. Separation of Powers Implications

In the common parlance of American civics, the Constitution separates power between the three branches of government. Though this is a fair description in the aggregate, the details of the Constitution’s structure reveal numerous carve outs and delegations of power that intertwine the three branches. The foregoing history examines one such additional and underappreciated delegation, exposing a nuanced separation of powers issue. The Appointments Clause’s unique, unicameral process generally reserves discretion over principal officers’ qualifications to the president and Senate alone.

Article II reserves the vast swath of discretion in appointments to the president.¹⁸⁶ As a result, the Necessary and Proper Clause only permits legislative qualifications that are strictly necessary to perform statutory duties. The president chooses who is best for carrying out an office. But Congress, through its necessary and proper power, can ensure that its assignment of duties to offices is not rendered void; and the president’s take care duty gives him or her no legitimate interest in nominations that defy this limited and tightly focused category of qualifications statutes.¹⁸⁷

In practice, this means that few principal officers can be subject to statutory appointment restrictions. In our large and highly bureaucratic modern government, principal officers are, almost without exception, generalists.¹⁸⁸ They manage, direct, and oversee rather than directly carry out their statutory responsibilities.¹⁸⁹ As a result, there are few specific qualities or abilities that a principal officer truly cannot perform their statutory responsibilities without.

Congress’s limited appointment qualification powers under the Necessary and Proper Clause are not, however, wholly moot. There are a range of theoretical qualifications Congress could institute to ensure that officers are minimally capable of performing their responsibilities. A few examples help illustrate the line between valid and invalid appointment restrictions. If the Attorney General were required to personally defend the United States in court, a modern version of the 18th-century “learned in the law” requirement could mandate that only barred attorneys be nominated.¹⁹⁰ Or perhaps more realistically, Congress could require that a cabinet official (the Secretary of Defense, for instance) who needs access to top secret information to do his or her job be eligible for a security clearance. Under our framework, absent evidence that a law is pretext for commandeering the president’s appointment discretion, general laws rendering potential officeholders incapable of performing statutorily prescribed duties provide valid bases for appointment qualifications.

A sharper understanding of the separation of powers principles embodied in the Appointments Clause holds significant implications for modern government. Implementing the Clause’s partitioned discretion requires rejecting the century-old doctrine articulated by Chief Justice Taft in Myers; permitting the president to disregard dozens of laws that have unconstitutionally restrained selections of principal officers; and recalibrating how scholars should think about presidential powers.¹⁹¹ Our theory of the Appointments Clause questions conventional wisdom derived from Myers and navigates between the competing absolutist critiques.

In the context of the FJAA, our theory makes clear that the statute is an invalid congressional intrusion into the selection of the judiciary because it impermissibly limits presidential discretion in nominations. The FJAA unconstitutionally attempts to dramatically narrow the president’s range of options in exercising the appointment power in a way that is not essential to ensure that nominees are capable of performing their statutory duties and that finds no support in the Constitution’s text or early practice. Further, our framework requires rejecting the current doctrine of statutory restrictions on principal officer appointments. The president thus has the prerogative to ignore many existing qualifications as unconstitutional impediments on core presidential powers. The recovery of the Constitution’s original emphasis on the distinctive presidential role in appointments also reminds us of officer appointments’ centrality to presidential powers.

A. The Unconstitutionality of the FJAA

Drawing on the principles derived from the aforementioned historical record, we argue that the FJAA’s core requirement infringes on the president’s nomination powers and the exclusive presidential and senatorial role in appointments. It thus represents an unauthorized House encroachment into the judicial selection process.

The FJAA limits presidential discretion in circuit court appointments based on state residence.¹⁹² Specifically, it requires that each federal circuit court have a judge appointed from each state within that circuit. But as history makes clear, this limitation is highly suspect. Federal judges are principal officers and require presidential nomination and senatorial confirmation.¹⁹³ Article II vests in the president alone the power to nominate principal officers, subjecting this authority only to the advice and consent of the Senate.¹⁹⁴ By placing statutory qualifications on whom the president may choose to appoint, the FJAA exceeds Congress’s authority to merely create, define the powers of, and set the salary for judgeships.¹⁹⁵

This statutory restriction cannot be salvaged by the Necessary and Proper Clause’s narrow grant of congressional power to ensure nominees have minimum qualifications, the validity of which is supported by immediate post-ratification practice. Although Congress may have weighty policy motivations for desiring diffused representation on the circuit courts, this is an improper purpose to act upon in the context of the appointment process. After all, the geographic origin of judicial candidates does not relate to their capacity to carry out the powers or functions of a circuit judge. In contrast to the statutory requirement that most federal district judges reside within their district,¹⁹⁶ FJAA residency requirements do not ensure significant alignment between the residency of jurists and litigants.¹⁹⁷ Instead, as the proponents of the FJAA made clear, Congress sought to “remove political pressure in weighing” nominations and to “add to the credibility and legitimacy of the Federal appellate courts and the decisions they render.”¹⁹⁸ But Article II delegates questions of what candidate would promote geographic diversity and institutional legitimacy to the discretion of the president and the supervision of the Senate. The Constitution’s remedy for this was the Senate’s geographically diverse advice and consent, not legislative restriction.¹⁹⁹ Founding-era debates operated on the assumption that the president was duty bound to look throughout the states for qualified candidates and anticipated the risk that his appointments might be geographically concentrated.²⁰⁰

Moreover, the FJAA’s restriction does not apply equally to all parallel officeholders. State residency requirements only come into play when a state lacks an active-duty circuit court judge. This reveals that the restriction is not an exercise of Congress’s necessary and proper power to ensure that the functions it assigns to officers can be carried out in practice. A qualification of that sort would be necessary for a nominee to exercise the functions of the same office regardless of who else currently has a similar role. Instead, the FJAA limits presidential discretion in order to ossify a political compromise about state representation, which is a norm extraneous to the issue of carrying out the functions of an office. This limitation can be significant: When the Wyoming seat on the Tenth Circuit is vacant, the president’s constitutionally vested choice of who should fill it is limited to 0.17% of the U.S. population.²⁰¹ The FJAA thus represents an unconstitutional intrusion by the House into appointment discretion reserved for the president and Senate.

B. The President Can Disregard Most Congressional Restrictions on Appointments of Principal Officers

Our framework structures not only the analysis of Congress’s involvement in judicial appointments, but officer appointments generally. First, we argue that our view of the Constitution’s original meaning permits the president to ignore most statutory restrictions on principal officers’ qualifications allowed under current doctrine. Second, we explain why a return to this original understanding would not wreak havoc on modern government and the administrative state.

1. Rethinking Congressional Involvement in Appointments

As our review of the historical record demonstrates, Chief Justice Taft’s conventional justification for statutory restrictions and the two absolutist critiques of it are inadequate to capture the original meaning of the president’s nomination and appointment powers. These other views fail to seriously grapple with one category or another of evidence of original meaning. As such, we have argued that the Appointments Clause reserves for the president the discretion to choose candidates to serve as principal officers, including judges, but that the Necessary and Proper Clause provides Congress with a narrow prerogative to ensure the president does not render its definition of offices moot by choosing candidates who lack capacities genuinely necessary to execute their functions. Statutory qualifications that do not apply equally to all parallel officeholders are particularly suspect because they evince subjective preferences for filling an office, not safeguards for capacities necessary to carry out the office’s duties. But this nuanced line that we believe best harmonizes the constitutional text, history, and early practice admittedly remains murky in some contexts.

Because of the importance of control over discretion in appointments and the underdeveloped state of the doctrine, more research is needed on how the line created by the Constitution’s original public meaning can be implemented judicially and politically. The federal judiciary’s hesitancy to hear constitutional challenges to legislative qualifications on separation of powers grounds presents a barrier. The D.C. Circuit, for example, ruled that a broad challenge to the “restriction on the President’s appointment power to select more than three [FEC] commissioners from one party [was] not justiciable.”²⁰² The basis for this decision was the impossibility of determining “whether the statute actually limited the President’s appointment power” or if, instead, the president merely nominated the commissioners in anticipation of the Senate’s perceived political preferences.²⁰³ However, the court expressly acknowledged that a nomination and appointment made directly contrary to a legislative qualification, as this Note contemplates, would make the issue justiciable.²⁰⁴ We hope that a renewed conversation on the appointment power can support and incentivize the political actions necessary to refine this separation of powers framework in the courts.

The U.S. Code is littered with legislative qualifications that could be brought into justiciable dispute by the president’s exercise of appointment powers. Many statutes violate the historical understanding. For example, Congress’s requirement that the president nominate the Comptroller General from a list of three names assembled by a committee impermissibly subsumes the president’s authority to choose a nominee.²⁰⁵ This statutory restriction is not a valid exercise of Congress’s necessary and proper authority because recommendation by congressional leaders is not necessary for a candidate to have the capacity to exercise the duties Congress assigned to the Comptroller General.²⁰⁶

To provide another example, the Post-Katrina Emergency Management Reform Act of 2006’s requirements also unconstitutionally interfere with the president’s appointment power. The Act’s mandate that the FEMA director have “demonstrated ability in and knowledge of emergency management and homeland security” and have at least five years of executive leadership experience likely flows from a congressional desire to ensure that the director is competent to perform this difficult and demanding job.²⁰⁷ However, it goes much further than the precedent of requiring the Attorney General to be “learned in the law.” Lacking that quality would make the Attorney General’s crucial responsibility for providing legal advice practically impossible and would functionally rule out the possibility of representing the United States in court. For the FEMA director, having “demonstrated” emergency management ability and possessing executive experience certainly increases our confidence in them executing the job well. But those who have not affirmatively “demonstrated” relevant skills or gained directly on-point experience can much more plausibly perform the functions of FEMA director than someone with no knowledge of the law can render legal advice or argue in court. The FEMA qualifications are reasonable measures for who is likely to be good at the job, not capacities directly necessary for its functions. The responsibility for making that judgment goes to the president and Senate, not Congress as a whole. Although likely an unwise decision, there is no task statutorily assigned to the FEMA director that would be impossible for a nominee without direct experience to perform. As a result, such a nomination would not violate the president’s take care duty and therefore cannot fall within Congress’s authority to prohibit. The nuances this example raises, however, underscore the importance of understanding the Necessary and Proper Clause’s scope.

Our reconciling the various original sources frees presidents from a restraint they have long chafed against and supports their oft-repeated claim to be legally entitled to disregard restrictions on their nomination and appointment powers. Presidents from as early as James Monroe to as recent as George W. Bush have forcefully insisted on their freedom to appoint officers regardless of purported legislative qualifications.²⁰⁸ Because most legislative qualifications overstep Congress’s powers, our review of the text, history, and early practice largely provides evidence to fortify the Office of Legal Counsel’s 1989 opinion asserting that statutory restrictions “violate the Appointments Clause.”²⁰⁹ Thus, the presumption that presidents are bound by appointment restrictions for principal offices must be rejected. The result is that a wide range of existing qualifications statutes that purport to constrain presidents’ discretion in choosing who to nominate and appoint are invalid and should be ignored.²¹⁰

2. Limits on the Original Understanding’s Challenge to Present Practice

Since the mid-nineteenth century, legislative qualifications have become standard fare for American political offices.²¹¹ Even if this practice has been unexplained or improperly justified, many pragmatists will voice concern that a corrected theory of the appointment power will have dramatic and disruptive consequences, particularly within the expansive administrative state. There are several reasons to doubt this prospect and to anticipate that a qualified theory will disturb the status quo far less than an absolutist theory. Although the theory we advance would eliminate many legislative qualifications, it does not render principal officer appointments unrecognizable, it does not apply to inferior officers, and it does not upset agency function.

a. Principal Officers

The elimination of legislative qualifications on principal officers likely will not undermine competence and expertise among nominees for office because of existing political incentives. The president and the Senate are incentivized to nominate and appoint qualified candidates.²¹² History demonstrates that the Founders succeeded in selecting a qualifications-ensuring mechanism—the advice and consent of the Senate—that concentrated the costs and benefits of political accountability upon those actors.²¹³ The risk of dramatically unqualified principal officers is unlikely to substantially increase beyond the status quo. Principal officers are already thoroughly vetted during the Senate confirmation process. In fact, nomination and confirmation have become some of the most significant and politically leveraged functions of presidents and senators.²¹⁴ While much of the confirmation process is admittedly political show, when senators truly believe a nominee is unqualified, they are equipped to reject the candidate.²¹⁵

b. Administrative Agencies

Our qualified theory of the nomination and appointment power would not irreparably undercut the functioning of the administrative state, where the desire to insulate expertise is particularly acute. The thesis of this Note, that qualifications that go beyond those capacities strictly necessary to perform an office’s statutorily defined duties violate the president’s appointment power, is limited to the context of principal officers. Congress’s powers are greater in the context of inferior officers, for it can vest the appointment of such officers not just in the president but also in the heads of executive departments or in the courts.²¹⁶

The vast majority of agency experts are inferior officers whose qualifications would remain unthreatened.²¹⁷ To ensure expertise remains a core function of administrative agencies, Congress may simply need to rely upon expertise in supervised bodies of inferior officers.²¹⁸ For example, even if partisan balance is unnecessary for the vast majority of principal offices and thus not a permissible statutory restriction under Congress’s necessary and proper powers, Congress can still achieve many of the same ends by shifting “balanced” bodies of experts and decisionmakers into inferior office positions, where such qualifications may be permissible.

Regardless, under any theory of the Necessary and Proper Clause, true necessity would survive as a justification for qualifications. The odds of this occurring in the technical functions of an agency are perhaps higher than in any other place in American government. Principal officers in political roles do not run into many strict necessities. But scientists, engineers, researchers, handlers of top-secret information, and other agency experts may more frequently perform functions in which some candidate characteristic is strictly necessary to the performance of their office’s duties. Thus, in the administrative agency context, necessity may be a more common justification available to Congress—as opposed to judicial or other principal officers.

c. Appointments in Presidential Administration

This analysis also demands that we expand our vision of presidential powers. Scholars have long viewed the relationship between staffing decisions and presidential administration through the prism of the removal power.²¹⁹ But the Founders emphasized the crucial role that control over discretion in appointments would have for the functioning of the republic.²²⁰ They extensively debated competing proposals for where this power should be vested.²²¹ Ultimately, they entrusted the president with discretionary selection, tempered by consultation with the more deliberative legislative chamber.

The wisdom of their concern for decisionmaking over appointments bears out in practice. If removal authority is needed for a president to fulfill his or her “take care” duty by firing recalcitrant officials who either cannot or will not execute the president’s directives,²²² what meaning does this authority have if the president lacks the discretion to choose a replacement who will? Presidents can have free rein to remove any and all officers at will, but if Congress puppeteers the appointment of replacements to require the selection of candidates similar to the deposed officials, then the result will be no different than if presidents lacked removal authority altogether. Presidents can only “take care” if they can choose officials who are suited to implementing their policies. If they cannot, presidential administration would be undercut. And certainly the “unitary executive”²²³ would be shattered into the countless shards of officials chosen as much by Congress as the president.

We should, therefore, view presidential control over the appointment of principal officers as the indispensable flipside of the removal-power coin. The centuries-long debate over removal has produced countless opinions and a much more detailed framework than the dictum from Myers that currently governs appointments doctrine.²²⁴

Conclusion

Despite the appointment power’s perennial significance and the intense focus paid to appointments in the Founding Era debate, modern theories of the nomination power fail to reconcile its history, the grant of implied powers in the Necessary and Proper Clause, and the mixed nature of early practice.

Legislative qualifications place the tension between executive and legislative powers in high relief. No absolutism is required to resolve that tension. The Founders’ careful design of a unicameral check on presidential discretion comports with the conclusion that some, but not all, qualifications are necessary and proper acts of legislative office creation. A qualified theory of statutory restrictions counsels that the Fairness in Judiciary Appointments Act, along with similar statutory constraints on presidential appointments, should be rejected as improper usurpations of the executive nomination power. A solidified view of the president’s nomination power will confirm the extensive executive discretion that supports the selection and removal of officers and presidential administration.

* J.D., Class of 2024, University of Michigan Law School. I am very grateful to my superb co-author, Eric Walker, for proposing that we embark on this quest for original meaning together, for his tireless efforts turning through the dusty pages of Farrand’s Records of the Federal Convention of 1787, and for his keen insights as we honed our theory. I would like to thank Professor Christopher J. Walker for his mentorship throughout law school and his indispensable advice as we put this Note together. Finally, we are both indebted to Isaac Houskamp for his contributions in many discussions in Hutchins Hall that formed the structure of our theory.

** J.D., Class of 2024, University of Michigan Law School. I would like to thank Professor Christopher J. Walker for his consistent guidance and support throughout law school and the development of this piece. I am indebted to the Michigan Law Federalist Society, whose many events with visiting judges and attorneys inspired and informed our search for original meaning. I am grateful to my wife and children, who tolerated the extra hours I spent reading old books, and to my admirable co-author, Nicholas Holmes, who was the but-for cause of an enjoyable writing process and the ultimate success of this piece. Finally, I would like to thank the Volume 123 Notes Office for their thorough editing throughout the publication process.