FEDERAL APPOINTMENTS.
The Appointing Power.— When framing the Constitution the Federal Convention of 1787, while vesting "executive power" in the President, did not intend that he should be subjected to the annoyance of making selec tions of persons for minor positions. Hence Art. II, Sec. II, ¶ 2, provides that the President " shall have power, by and with the advice and consent of the Senate, to nominate and appoint ambassadors, other public ministers and consulsjudges of the Supreme Court, and all other officers of the United States, whose appoint ments are not herein otherwise provided for, and shall be established by law; but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of the departments." All three branches of the government legislative, executive and judicial — exercise the power of appointment to public office, but from the time the first departments were established the heads thereof have made the majority of appointments, since most of the officers are con nected with the executive branch of the govern ment. For this reason the executive authority alone is restricted in its power to make appoint ments. With few exceptions, legislative bodies choose their own officers and employees prac tically without interference or regulation by either of the other two branches of the govern ment; nor do the other branches, save in a few cases, hinder the independent appointments to subordinate positions connected with the courts that are made by the judicial branch. An executive appointment is usually subject to the approval of some other body.
Appointment of Members of Congress to Office.— Article I, Sec. VI, ¶ 2 of the Consti tution provides that "no Senator or Representa tive shall, during the time for which he was elected, be appointed to any civic office under the authority of the United States, which shall have been created, or the emoluments whereof shall have been increased, during such time; and no person, holding any office under the United States, shall be a member of either House during his continuance in office.° With regard to the first clause of this paragraph there has been some dispute, though its sig nificance is apparent. Some have questioned the right of a Senator, who was appointed to a Cabinet position, to receive the increased emolu ment of the new office if the salary of the Cabinet officers had been increased during the time for which the Senator was elected, but such a Senator is not held to be ineligible to the Cabinet position if he surrender voluntarily the increase of salary. The last clause evi dently was intended to make a sharp distinction between the legislative and executive branches, but it has been necessary to define the word office. Accordingly the House judiciary com mittee has decided that members of commis sions appointed for purposes of investigation but which possess or exercise no legislative, executive or judicial powers are not officers of the government within the meaning of this clause; nor can a contractor under the govern ment be disqualified from serving as a member. A distinction has been made also "between the performance of paid services for the executive, like temporary service as assistant United States attorney, and the acceptance of an in compatible office." There is also a distinction between a member and a member-elect, the latter possessing the right until Congress meets to choose between the seat and an incompatible office. On the other hand, persons holding
commissions in the army and an officer in the militia of the District of Columbia are con sidered ineligible.
History of the Appointing Power.— Up to the administration of President Jackson (q.v.) in 1829, there was comparatively little abuse of the power to make appointments to Federal offices either for personal or partisan purposes. The President assumed responsibility for his appointees, endeavored to snake ap pointments from all parts of the country so that no section would feel slighted, and after 1793 usually made his selections from among the ad herents of the dominant party, keeping the fitness of the appointee constantly, in mind. But there were some attempts to gain a partisan advantage by use of the appointing power, such as Adams' appointment of the "Midnight Judges" and Jefferson's removals and appointments with the object of securing a more even balance be tween the parties in the civil service. The States had become more or less permeated with the spirit of the spoils system, particularly New York, Pennsylvania, Rhode Island and Massa chusetts; in New York the Council of Ap pointment and the Albany Regency (q.v.) held sway for a number ofyears and finally the Federal service in New York and Pennsylvania became tainted. There wag a wholesome dis trust of the life-tenure in executive and legis lative office with the result that the States began to enact laws substituting a fixed term for tenure during "pleasure' or "good be havior." The influence of these laws was felt in the Federal service, when, in 1820, Congress passed a law known as the "Four Years Law," limiting the tenure of office of the majority of United States officials, such as district attorneys, naval officers, surveyors, collectors of customs and others having the custody of public money. This served as an entering wedge for the in troduction of the spoils system, which was used for purely partisan purpose by President Jack son and his successors without serious hin drance until 1871 and has continued in a modi fled form since that time. For details of the spoils system, see UNITED STATES-THE NEW DEMOCRACY AND THE SPOILS SYSTEM.
Attempts at reforming the system of ap pointments were made prior to the Civil War. In 1853 Congress passed an act which graded the clerical positions according to salary and required examinations of applicants before ap pointment, but as these were merely non competitive or "pass* examinations and were conducted by boards selected by department heads, the spoils system received no serious check. In 1871 the first reform law was passed as a rider to an appropriation bill, which em powered the President "to prescribe such regu lations for the admission of persons into the civil service of the United States as may best promote the efficiency thereof?' President Grant appointed a commission, with George William Curtis (q.v.) as its first chairman, which formulated a set of rules for competitive examinations, but these were rendered in operative by the refusal of Congress to appro priate sufficient money, though in 1877 they were revived for the New York custom house and post-office. On 16 Jan. 1883 the first com prehensive and detailed civil service act became law, and under it the President has power to extend its jurisdiction, so that the competitive system now covers two-thirds of the entire executive civil service of the Federal govern ment. See Civil. SERVICE REFORM.