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

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 understudied, 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.