                Appointment of a Senate-Confirmed Nominee

T he P resid en t is not legally obligated to appoint a nom inee to w hom the Senate has given its advice
    and consent. U ntil the President takes th e final public act necessary to com plete the appointm ent,
    w hich in the case o f a S enate-confirm ed official is custom arily evidenced by the P resident’s signing
    th e com m issio n , the P resident retains fu ll discretion not to appoint the nom inee.

                                                                                                 O c to b e r 12, 1 9 9 9


                 M e m o r a n d u m O p in io n f o r t h e C o u n s e l t o t h e P r e s id e n t


   You have asked whether the President has a legal duty to appoint and commis­
sion a nominee once the Senate has given its advice and consent to the nomination.
It has long been established that the President, until he takes the final public act
necessary to complete the appointment, retains the full discretion not to appoint
a nominee. The appointment is the voluntary act of the President, and the consent
of the Senate does not place him under any legal obligation. Accordingly, until
the President makes the appointment, which in the case of a Senate-confirmed
official is customarily evidenced by the President’s signing a commission, the
Constitution commits to the President’s sole discretion whether to appoint the
nominee.
   Article II of the Constitution provides that, except as to certain inferior officers,
the President “ shall nominate, and by and with the Advice and Consent of the
Senate, shall appoint . . . all . . . Officers of the United States” and that the
President “ shall Commission all the Officers of the United States.” U.S. Const,
art. II, § 2, cl. 2; § 3. The Constitution thus calls for three steps before a presi­
dential appointment is complete: first, the President’s submission of a nomination
to the Senate; second, the Senate’s advice and consent; third, the President’s
appointment of the officer, evidenced by the signing of the commission. All three
of these steps are discretionary. Even after the Senate’s advice and consent, up
to the moment that the President signs the commission, he can grant or withhold
an appointment in accordance with his will and judgment.
   Chief Justice M arshall’s opinion for the Supreme Court in Marbury v. Madison,
5 U.S. (1 Cranch) 137, 155-58 (1803), examined in detail the President’s discre­
tion over appointments. See a lso id. at 162, 167. The Court stated that the Presi­
dent’s appointment of an officer “ is . . . a voluntary act, though it can only be
performed by and with the advice and consent of the senate.” Id. at 155. As
Justice Story explained in his Commentaries on the Constitution,

          Upon the fullest deliberation, the court were of opinion that, when
          a commission has been signed by the President, the appointment
          is final and complete. The officer appointed has then conferred on
          him legal rights, which cannot be resumed. Until that, the discretion

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                       Appointment o f a Senate-Confirmed Nominee


       o f the President may be exercised by him as to the appointment;
       but, from that moment, it is irrevocable.

2 Joseph Story, Commentaries on the Constitution o f the United States § 1546,
at 371 (Melville M. Bigelow ed., 5th ed. 1994) (emphasis added). See also 3
Westel Woodbury Willoughby, The Constitutional Law o f the United States §987,
at 1506 (2d ed. 1929).
   The courts have continued to apply the principle set out in M arbury v. Madison.
In D ’Arco v. United States, 441 F.2d 1173 (Ct. Cl. 1971), the court held that
a military officer had not been promoted even though the Senate had confirmed
his nomination, because no commission had been signed: “ Chief Justice Mar­
shall’s reasoning teaches that, even if the office had been for a term of years,
like Marbury’s, the executive could still refuse to complete the appointment, after
Senate confirmation, by failing to prepare or sign the commission.” Id. at 1175.
See also National Treasury Employees Union v. Reagan, 663 F.2d 239, 242 (D.C.
Cir. 1981) (“ For more than one hundred and seventy-five years, the rule as to
when an appointment takes place has been clear: ‘when the last act to be done
by the [appointing authority] was performed.’ ” (quoting Marbury v. Madison,
5 U.S. (1 Cranch) at 157)).
  This principle has been repeatedly recognized in the authoritative legal judg­
ments of the executive branch. In 1843, for example, the Attorney General wrote
that the President’s nomination and the Senate’s advice and consent “ serve but
to indicate the purpose of the President to appoint, and the consent o f the Senate
that it should be effectuated; but they do not divest the executive authority of
the discretion to withhold the actual appointment from the nominee.” Appoint­
ments to Office — Case o f Lieutenant Coxe, 4 Op. Att’y Gen. 217, 219 (1843).
In 1931, the Attorney General stated that the Appointments Clause

       contemplates three steps. There is, first, the nomination, which is
       a mere proposal. Next comes action by the Senate consenting or
       refusing to consent to the appointment. Finally, if the Senate con­
       sents to the appointment there follows the executive act of appoint­
       ment. It has long been recognized that the nomination and the
       appointment are different acts, and that the appointment is not
       effected by the Senate’s so-called confirmation of the nomination.
       After the Senate has consented to the appointment, the nominee
       is not entitled to the office until the consent is followed by the
       executive appointment. After a nomination is sent to the Senate and
       has received the approval of that body, the President may, having
       changed his mind, decline to make the appointment.

                                         233
                          Opinions o f the Office o f Legal Counsel in Volume 23


Legality o f Appointm ent o f Certain M embers o f the Federal Pow er Commission,
36 Op. Att’y Gen. 382, 384-85 (1931); accord Nominations fo r Prospective
Vacancies on the Supreme Court, 10 Op. O.L.C. 108, 109 (1986) ( “ Confirmation
does not confer any rights on the nominee; the President remains free to decide
that he does not want to make the appointment, which is not legally completed
until the execution of the commission.” ). See also, e.g., President’s Pow er to
Fill Vacancies in Recess o f the Senate, 12 Op. Att’y Gen. 32, 42 (1866); Case
o f Virgil S. Eggleston, 13 Op. Att’y Gen. 44, 45 (1869); Relief o f Fitz John Porter,
18 Op. A tt’y Gen. 18, 25-26 (1884).1
   The Comptroller General, an officer in the legislative branch, likewise has
acknowledged that the President m ay withhold an appointment after confirmation
by the Senate. Appointments and Promotions — Presidential Appointees and Per
Diem Experts — Social Security B oard Appropriation Limitations, 17 Comp. Gen.
249, 252 (1937) ( “ The nomination is not an appointment; neither is the confirma­
tion. The nomination and confirmation serve but to indicate the purpose of the
President to appoint and the consent of the Senate that the appointment may be
made thereafter. They do not divest the executive authority of the discretion to
withhold the actual appointment. That discretion may be exercised at any time
before the commission is actually signed.” (internal quotation and citation
omitted)).
   We therefore conclude that even after the Senate gives its advice and consent,
the President lawfully may decline to appoint a nominee.

                                                                      DANIEL L. KOFFSKY
                                                       Acting Deputy Assistant Attorney General
                                                                 Office o f Legal Counsel




   1 In 1895, the Acting A ttorney General concluded that a Senator’s appointment to an executive office was barred
by the clause o f the Constitution forbidding appointment o f a member of Congress to a position for which the
salary was increased during that member’s elected term According to the opinion, the Senator was appointed on
February 23, 1895, the date he was nominated and confirmed, rather than March 5, 1895, the date his commission
was signed. M em ber o f Congress— Appointment to Office, 21 Op. Att’y Gen 211 (1895) The opinion arguably
could be read to equate the Senate’s advice and consent with the appointment. However, because the commission
had been backdated to February 23, and the appointee had been sworn in on March 4, the last act necessary to
make the appointment, under the peculiar facts o f the case, could be taken to have occurred before the signing
of the commission. See id. at 212, 214; s e e also Marbury, 5 U S (1 Cranch) at 156 ( “ if an appointment was
to be evidenced by any public act other than the commission, the performance of such public act would create
the officer” ).


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