32 Journal of Regulatory Compliance Issue II
America.” 85 The Framers apparently understood authority to appoint
executive officers to inhere in this “executive Power.”
Specifically, the Virginia Plan that the Framers used as their initial
working draft of the Constitution provided only very generally that an
executive magistrate should “enjoy the Executive rights vested in Congress
by the Confederation.”86 That working draft explicitly provided for “the
National Legislature” to select judges,87 but it made no direct reference to the
appointment of executive branch officers.88 The Framers apparently assumed
such authority was encompassed within “the Executive rights.”89
Fairly early in the drafting process the Committee of the Whole amended
the draft Constitution to explicitly assign some appointment authority to the
Executive, clarifying that he should receive, among other responsibilities, the
power “to appoint to offices in cases not otherwise provided for.”90 The
author of the amendment, James Madison, questioned whether it was
absolutely necessary to explicitly delineate that “appoint[ing]” authority.91
He thought the power to appoint executive officers likely already was
encompassed within the amendment’s reference to the Executive having the
“power to carry into effect the national laws.”92 Madison “did not however
see any inconvenience in retaining [the words].”93 Subsequently an
appointments clause was added to the explicit list of the Executive’s
85. U.S. CONST. art. II, § 1 (emphasis added).
86. 1 THE RECORDS OF THE FEDERAL CONVEN TION OF 1787, at 21 (Max Farrand ed., 1937)
[hereinafter FARRAND’S RECORDS] (Resolution 7) (May 29).
87. Id. at 21–22 (Resolution 9) (May 29).
88. See id. at 20–23 (May 29).
89. See ARTICLES OF CONFEDERATION of 1781, art. IX (assigning the Confederation
Congress appointments authority); see also 1 FARRAND’S RECORDS, supra note 86, at 65–66
(June 1) (characterizing James Wilson’s statements: “The only powers he conceived strictly
Executive were those of executing the laws, and appointing officers, not appertaining to and
appointed by the Legislature.”).
90. 1 FARRAND’S RECORDS, supra note 86, at 62–63 (June 1) (internal quotation omitted).
91. Id. at 63, 66–67 (June 1).
92. Id. at 67 (June 1).
94. Id. Professor Amar’s article highlights an additional distinct aspect of the
Appointments Clause drafting history that supports the conclusion that the “inferior Officers”
provision permits only intrabranch appointments. In particular, Professor Amar notes there
was such little debate over the provision that it must have been “viewed as a minor
housekeeping measure”—not one that would make the dramatic change of permitting judges
to appoint executive branch actors such as diplomats or prosecutors. See Amar, supra note
24, at 808; see also infra notes 113–15 and accompanying text (noting that the record of the
debate on the “inferior Officers” provision was limited to just one-half of one page in