# Appointments Clause **Article II, § 2, cl. 2.** 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: 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." Three things the text does that matter more than they look. **It splits one action into two.** Nomination is the President's alone. Appointment happens only after Senate consent — and, as a matter of practice, only when the commission is signed. See [[Advice and Consent]]. **It creates a two-tier officer scheme.** *Principal* officers must go through the Senate. *Inferior* officers may be appointed by the President alone, by the courts, or by a department head, if Congress so provides by law. The line between the two categories has no clean definition, which is why it is the seam every fight over acting officials, special counsels, administrative law judges, and agency adjudicators is fought along. **It is the source of the argument that Congress cannot appoint executive officers itself**, which in turn is load-bearing for [[Unitary Executive Theory]]'s removal-power claims — appointment and removal being treated as two faces of the same executive control. ## See also - [[How a Nominee Becomes a Federal Judge]] · [[Confirmation Pipeline]] · [[Advice and Consent]] - [[Recess Appointment]] · [[Federal Vacancies Reform Act]] · [[Unitary Executive Theory]] - [[Separation of Powers]] · [[Good Behavior Clause]] ## Where it is fought The Clause's live edges are all in the vault's second-term record. **Special counsels:** Judge [[Aileen Cannon]] held in July 2024 that Jack Smith's appointment violated the Clause because no statute authorized the Attorney General to appoint a principal officer from outside the Department ([[Mar-a-Lago Documents Case]]); the argument, drawn from Justice Thomas's concurrence in *[[Trump v. United States]]*, is the standing objection to the whole [[Special Counsel]] mechanism and the reason none has been appointed since. **Acting officials:** the [[Federal Vacancies Reform Act]] lets the President fill a Senate-confirmed post temporarily, and the second term has used acting appointments — at DIA, CISA, the Antitrust Division, the U.S. Attorneys' offices — to run agencies for months or years without the consent the Clause requires; courts have begun disqualifying interim U.S. Attorneys installed past the statutory limit. **Adjudicators:** *Lucia v. SEC* (2018) held ALJs to be officers who must be appointed under the Clause, and *United States v. Arthrex* (2021) required that patent judges answer to a principal officer — the line of cases that, with the removal-power decisions ([[Trump v. Slaughter]]), makes every agency adjudicator answerable to the President. The [[Inferior Officer]] page has the two-tier test; [[Advice and Consent]] the Senate's half; [[Unitary Executive Theory]] the doctrine that treats appointment and removal as one power.