Statutory Qualifications on Appointments: Congressional and Constitutional Choices

Article excerpt

After the announced resignation of Treasury Secretary John W. Snow in May of 2006, President George W. Bush almost immediately nominated former Goldman Sachs chairman and chief executive Henry Paulson as his replacement. However, the appointment of Paulson ran into a conflict with existing federal law which forbids government officials from holding personal financial investments that could benefit from decisions that they might make (18 U.S.C. [section] 208 [2006]). Since Paulson owned more than $485 million in Goldman Sachs stock he was forced to comply with the conflict-of-interests provision before Senate confirmation could occur (Bloomberg News 2006: C3). After Paulson divested himself of these assets the Senate quickly confirmed him.

Although the conflict-of-interests provision is not often considered part of statutory qualifications for office, it is a very important and real limitation placed by Congress on those who wish to serve in federal government. Clearly the success of any organization depends partly on the quality of the people in it. Those who work in federal government have a profound impact on what government does. This type of law is directed at a concern that government workers with the best intentions might have their judgment impaired when their interests (personal or economic) are affected by their decisions. The principle benefits the public that federal employees should serve the government, not some narrow and conflicting private interest. Practice and experience have given rise to congressional mandates that promote good government.

In recent years, proponents of a unitary executive model of the presidency have advanced a theory that claims all executive powers are centered in the president and subject to his plenary control. This includes the appointment power which, under such a theory, would preclude the stipulation of congressional qualifications on the president's ability to select individuals for federal offices. Although the unitary executive movement has prominent advocates within the executive branch and in legal academic circles, there has been surprisingly little focus on its intent or scope especially in the area of appointments. As one study pronounced "make no mistake, a quiet and intentional revolution has been under way in Washington" that needs to be studied and given "a more vigorous debate and a more serious comprehension of what is at stake" (MacKenzie 2008: vi).

The lack of attention to the unitary executive movement's impact on the appointment process does not mean that the question of the constitutionality of statutory qualifications has not been raised. For instance, Saikrishna Prakash, a supporter of the unitary executive theory, argues that all statutory qualifications are unconstitutional restraints on a president's ability to appoint (2005: 238239). Similarly Donald J. Kochan, Michael J. Gerhardt, and others see similar problems in these appointment restrictions (Kochan 2005; Gerhardt 2000: 153-162; and, H.W.I. 1910: 577-578). Others, including constitutional scholars Edward S. Corwin, Louis Fisher, and Harold J. Krent disagree (Fisher 2007: 25-26; and, Krent 2005: 3234). In declaring qualifications constitutional, Corwin remarked that they are by "far the most important limitation[s] on presidential autonomy in this field of power" (1957: 74).

Despite what appears to be a rather crowded debate over statutory qualifications there has been surprisingly little systematic study of this issue and no attempt to answer directly the claims made by unitary executive advocates. In this article I argue that statutory qualifications are permissible and necessary in light of the Constitution, longstanding practice, and practical administrative concerns. Neither the text nor the original meaning of the Appointments Clause supports the contention that such restrictions violate the Constitution.

Congress, in carrying out its legislative responsibilities, has all the necessary power to make proper qualifications on offices. …