Of all the powers delegated to the executive branch, only one was accepted without any questions asked and without a single murmur of dissent. From the outset, the Virginia Plan provided that “a National Executive be instituted” and endowed with the “general authority to execute the National laws.” The Framers were political men, and they were confident that they already understood what it meant to execute the laws, and no one ever contested that the authority to execute laws belonged exclusively to the executive office.
The Committee of Detail was largely responsible for the shape that the executive office took, and its wording—after being condensed—was the basis for the formula that is found in Article II: “The executive Power shall be vested in a President of the United States of America,” and he “shall take Care that the Laws be faithfully executed.” It would be the other powers of the executive branch—the ones that required more discretion or were in fact only quasi-executive—that were destined to cause more disagreement among the delegates. The Framers would ultimately conclude that many of the powers over foreign affairs were not, properly speaking, executive in their nature, and they would vest them in the legislative branch or share them between the executive and the Senate. As a rule, however, all the domestic powers that were widely understood to be executive in nature would be lodged in that branch unless the Constitution said otherwise.
The appointment power was one of those named exceptions. Most of the offices and departments that we normally associate with being “the government”—the military, the treasury, the post office, the IRS, etc.—are all constituent parts of the executive branch. Appointing officers to administer these departments has therefore traditionally been considered an executive function. When James Wilson was listing those powers that he considered to be “strictly executive” on June 1, he included only two: the execution of the laws, “and appointing officers, not appertaining to, and appointed by, the legislature.” Yet the heads of the most important departments can wield so much power, and can have such a profound influence on the direction of policy, that the Framers were reluctant to give the president a free hand with the most important appointment decisions. Additionally, whereas appointing executive officers may be considered a naturally executive function, it was far less obvious who should appoint judges.
The Virginia Plan had been silent on the question of appointments to executive offices, and it had provided that federal judges should “be chosen by the National legislature.” It is probable that Madison had presumed that the appointments of all executive officers would simply fall under the general heading of executive power. On June 1 he suggested they amend that clause to read that the national executive be explicitly empowered “to appoint to offices in cases not otherwise provided for.” This formula would place the presumption of the appointment power in the hands of the executive, but it would also allow the Framers to name certain exceptions to the general rule. This wording received almost unanimous support, and it was included in the report generated by the Committee of the Whole.
On June 5, the delegates considered separately the question of appointing the judiciary by Congress. Wilson objected that the legislature was too numerous a body for this decision; their decisions were likely to be influenced by intrigue and partiality. Wilson was here reiterating a theme that ran throughout the debates on the presidency. One of the main reasons for trusting the executive powers to just one person “was, that officers might be appointed by a single responsible person.” Rutledge objected that the appointment of judges was such a great power that it was improper to trust it to one person; the people were liable to suspect that they were creating a monarchy. Franklin pointed out that only two modes had been suggested so far, either by the legislature or the executive. “He wished such other modes to be suggested as might occur to other gentlemen; it being a point of great moment.” By June 13, the Framers had voted after only a little debate to vest the power to appoint federal judges in the Senate.
The two rival plans of government that were presented to the Convention offered two additional alternatives for the appointment power. Paterson’s New Jersey Plan would have likewise given the power “to appoint all federal officers not otherwise provided for” to the executive, but it also would have placed the choice of federal judges entirely within the hands of the executive. Hamilton’s plan, on the other hand, surprisingly enough, was more wary of executive power on this point. The executive would have had the sole power of appointment for “the heads or chief officers of the departments of finance, war, and foreign affairs,” but all other important appointments would only be initiated by the executive and “subject to the approbation or rejection of the senate.”
Neither of the rival plans of government was seriously considered in the Convention, but when the question of appointing judges came up for debate again on July 18 it was clear that the delegates were not entirely satisfied with vesting this power in the Senate. Nathaniel Gorham of Massachusetts suggested the style of appointment that was practiced by his own state: “that the judges be appointed by the executive, with the advice and consent of the second branch.” That process had been “found to answer perfectly well” in Massachusetts. Wilson preferred an appointment by the executive alone, but he favored Gorham’s suggestion if his own preference was impossible. The debates shifted to the possibility of vesting the power in the executive alone, but when it came to the point, only two states voted in favor of an executive appointment. Gorham then formally moved that they incorporate the Massachusetts model into the new Constitution, but that proposal lost on a tie vote. The delegates decided to postpone the question for the day.
After some additional discussion, during which Madison proposed that the executive should appoint the judges subject to an override by the Senate with a two-thirds majority, the question was considered again late in the Convention, on August 23. Morris and Wilson repeated their disapproval with lodging the appointment power in the Senate, especially as it pertained to the appointment of judges. It was finally decided to refer this whole section to a committee. On September 4, the Committee on Postponed Matters proposed that: “The President … shall nominate, and, by and with the advice and consent of the Senate, shall appoint ambassadors, and other public ministers, judges of the Supreme Court, and all other officers of the United States, whose appointments are not otherwise herein provided for.” This provision was debated on September 7, and a few delegates rehearsed the well-worn arguments that this provision would give the president either too much or too little agency in the appointments. But most of the delegates were satisfied, for it passed overwhelmingly. For the most important appointments, including those to the federal judiciary, the Framers had decided to combine the responsibility that a single magistrate would bring to the choice with the security that an approval by the upper body of Congress would add.
At the conclusion of the debates on appointment, Richard Dobbs Spaight of North Carolina moved to add to that provision that “the President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of the next session of the Senate,” and this amendment was accepted without any debate or dissenting votes. Early sessions of the Senate lasted only three to six months, and Senators headed home to their respective states during the six-to-nine-month recesses, making them unable to provide their advice and consent to nominations during a large portion of the year.
To remain in effect, recess appointments must be confirmed by the Senate by the end of the next session of Congress, or the position becomes vacant again. More than 300 judges have received recess appointments, including Supreme Court Justices William J. Brennan, Jr., Potter Stewart, and Earl Warren. The pace has slowed in recent years, however, and only a handful of federal judges have been appointed in recess since 1980.
The pardoning power is an executive function that allows for considerable discretion in the hands of a single person. Ordinarily, the executive is the one who is responsible for ensuring that transgressors of the law are punished for their misdeeds, but the executives in state constitutions (like the king of Great Britain before them) were often empowered, in individual cases, to do the opposite. An executive could either decide when there were compelling reasons for pardoning (which simply means declaring that a person will be deemed not guilty of a crime, either before or after any court has convicted), or for granting a reprieve (which means commuting all or part of a person’s punishment while not erasing that person’s guilt). Like so many of the executive powers named in the Constitution, this one was not considered until very late in the summer.
It was not until the Committee of Detail submitted its report on August 6 that the Convention was first confronted with a concrete proposal to vest the pardoning power in the executive. Their report suggested that the president “shall have power to grant reprieves and pardons, but his pardon shall not be pleadable in bar of an impeachment.” On August 25, the Convention decided without debate to replace the last clause with the simpler: “except in cases of impeachment.” On the next day that they met, August 27, Luther Martin suggested amending this clause further, so that the president could only grant a pardon “after conviction” of a crime. But when James Wilson pointed out that the promise of a pardon was sometimes necessary to obtain the testimony of accomplices, Martin withdrew his suggestion.
The subject of pardons was not broached again until September 10, when Edmund Randolph listed his many objections to the plan of government. Among his grievances was “the unqualified power of the President to pardon treasons.” The Convention agreed to Randolph’s request to refer this question to a committee. Nothing came of the referral, however, and the final draft of the Constitution included the exception for impeachments but not for cases of treason. Randolph felt that “the prerogative of pardon in these cases was too great a trust. The President may himself be guilty. The traitors may be his own instruments.” Wilson insisted that pardon in these cases was sometimes necessary, and the power could not be placed in any hands better than the President. He reminded the others that the threat of impeachment should be sufficient to prevent or punish abuses of the pardoning power. Ultimately, the Convention voted down the treason exception, 2-to-8.
The president was therefore entrusted with a broad pardoning power, one which made an exception only for cases of impeachment. The Committee of Style had clarified that the president could only grant pardons “for Offences against the United States,” so the clause could never be construed to extend to infractions against state or civil law. That limitation, combined with the exception for impeachments, is the only restriction on the executive’s authority. Otherwise, the pardoning power gives to the president tremendous latitude for discretion.