# Why do Pres/elect cabinet appointment require senate "conformation"? **URL:** \ **Category:** Factual Questions\ **Created:** [November 19, 2008, 2:33am UTC](https://boards.straightdope.com/t/why-do-pres-elect-cabinet-appointment-require-senate-conformation/473404 "2008-11-19T02:33:10Z")\ **Posts on this page:** 15\ **Page:** 2
**Author:** ![Cliffy](https://avatars.discourse-cdn.com/v4/letter/c/59ef9b/32.png) [@Cliffy](https://boards.straightdope.com/u/Cliffy)\ **Post date:** [November 19, 2008, 9:15pm UTC](https://boards.straightdope.com/t/why-do-pres-elect-cabinet-appointment-require-senate-conformation/473404/21 "2008-11-19T21:15:28Z")
> [@Elendil\_s\_Heir](#): > > Congress is within its rights to limit the pool from which the President might pick appointees. It has already done so in terms of limiting appointments only to adults, citizens, nonfelons, etc. Prohibiting the President from appointing a relative is neither unreasonable nor unconstitutional (although we might need to pass a waiver when the next Bobby Kennedy comes along). I think you’re right, but I can see the argument in the other direction – the Constitution vests the appointment power in the president, and doesn’t indicate that Congress can limit it (whereas in other instances where Branches have power over the exercise of other Branches’ power, it is specified). There’s precedent that some restrictions on the appointment power can be too onerous, although the one I’m thinking of (_Bowsher_?) was a much, much stricter limitation (Congress gives the pres. three names and he picks one). –Cliffy ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [November 19, 2008, 9:32pm UTC](https://boards.straightdope.com/t/why-do-pres-elect-cabinet-appointment-require-senate-conformation/473404/22 "2008-11-19T21:32:31Z")
> [@Cliffy](#): > > the Constitution vests the appointment power in the president, and doesn’t indicate that Congress can limit it (whereas in other instances where Branches have power over the exercise of other Branches’ power, it is specified). What is “consent” but a limitation? It doesn’t specify how the Senate gets to exercise its consent power. ---
**Author:** ![Cliffy](https://avatars.discourse-cdn.com/v4/letter/c/59ef9b/32.png) [@Cliffy](https://boards.straightdope.com/u/Cliffy)\ **Post date:** [November 19, 2008, 9:59pm UTC](https://boards.straightdope.com/t/why-do-pres-elect-cabinet-appointment-require-senate-conformation/473404/23 "2008-11-19T21:59:21Z")
I meant other than through the Constitutionally-specified manner, of course. –Cliffy ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [November 19, 2008, 10:02pm UTC](https://boards.straightdope.com/t/why-do-pres-elect-cabinet-appointment-require-senate-conformation/473404/24 "2008-11-19T22:02:28Z")
But the Constitution doesn’t specify a manner. That’s the point. It just says that the Senate gets to consent. Such consent might very well include statutory standards for appointments. ---
**Author:** ![Cliffy](https://avatars.discourse-cdn.com/v4/letter/c/59ef9b/32.png) [@Cliffy](https://boards.straightdope.com/u/Cliffy)\ **Post date:** [November 19, 2008, 11:15pm UTC](https://boards.straightdope.com/t/why-do-pres-elect-cabinet-appointment-require-senate-conformation/473404/25 "2008-11-19T23:15:18Z")
Congress and the Senate aren’t the same thing. And I believe we have rather well-understood precedent for exactly how the Senate performs its consent role. –Cliffy ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [November 19, 2008, 11:32pm UTC](https://boards.straightdope.com/t/why-do-pres-elect-cabinet-appointment-require-senate-conformation/473404/26 "2008-11-19T23:32:17Z")
> [@Cliffy](#): > > Congress and the Senate aren’t the same thing. For Congress to approve, it means that the Senate must have. It’s included. > [@](#): > > And I believe we have rather well-understood precedent for exactly how the Senate performs its consent role. I don’t think the concept of “precedent” really applies here. No court has ever reviewed the Senate’s consent power, and I doubt it’ll happen soon. ---
**Author:** ![Markxxx](https://avatars.discourse-cdn.com/v4/letter/m/5daacb/32.png) [@Markxxx](https://boards.straightdope.com/u/Markxxx)\ **Post date:** [November 19, 2008, 11:32pm UTC](https://boards.straightdope.com/t/why-do-pres-elect-cabinet-appointment-require-senate-conformation/473404/27 "2008-11-19T23:32:23Z")
But a president can do a lot “unofficially.” He can appoint someone and never use them either, then rely on his buddies “off the record.” ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [November 20, 2008, 12:41pm UTC](https://boards.straightdope.com/t/why-do-pres-elect-cabinet-appointment-require-senate-conformation/473404/28 "2008-11-20T12:41:25Z")
> [@acsenray](#): > > For Congress to approve, it means that the Senate must have. It’s included. But where does the the House of Representatives get the power to put a limitation on the appointments by the President? The Constitution gives the President the power to appoint, and gives the Senate the power to confirm. The drafters did not give the Representatives any role in the process. Doesn’t this law amount to an attempt by the Representatives to give themselves a role in the appointment process that the drafters did not give them? ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [November 20, 2008, 3:10pm UTC](https://boards.straightdope.com/t/why-do-pres-elect-cabinet-appointment-require-senate-conformation/473404/29 "2008-11-20T15:10:59Z")
> [@Northern\_Piper](#): > > But where does the the House of Representatives get the power to put a limitation on the appointments by the President? The Constitution gives the President the power to appoint, and gives the Senate the power to confirm. The drafters did not give the Representatives any role in the process. Doesn’t this law amount to an attempt by the Representatives to give themselves a role in the appointment process that the drafters did not give them? The House of Representatives is essentially irrelevant to this, isn’t it? So long as the Senate has approved – that’s the operative fact. The House of Representatives could also start holding confirmation votes. Though such a vote would have no practical effect, the fact that they don’t have a confirmation power wouldn’t void the Senate’s confirmation votes. And what if the Senate considered and decided that they (the senators) would also like to have the advice of the House of Representatives? The Constitution doesn’t say they can’t do that. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [November 20, 2008, 3:27pm UTC](https://boards.straightdope.com/t/why-do-pres-elect-cabinet-appointment-require-senate-conformation/473404/30 "2008-11-20T15:27:42Z")
I’m referring to the statute cited by **Elendil’s Heir** , which limits the individuals whom the President can appoint. That statute was passed by the Reps and the Senate. Doesn’t it amount to an attempt by the Reps to assert a role in the selection of Cabinet ministers, a role that the Constitution seems to assign exclusively to the President and the Senate? ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [November 20, 2008, 3:32pm UTC](https://boards.straightdope.com/t/why-do-pres-elect-cabinet-appointment-require-senate-conformation/473404/31 "2008-11-20T15:32:26Z")
Yes, that’s exactly what I’m referring to. The key is whether the _Senate_ consents. What does it matter if the Senate has consented to something that the House of Representatives has also consented to (the statute)? ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [November 20, 2008, 3:52pm UTC](https://boards.straightdope.com/t/why-do-pres-elect-cabinet-appointment-require-senate-conformation/473404/32 "2008-11-20T15:52:16Z")
But the statute purports to tell the President that there are some people he cannot appoint to the Cabinet, specifically close relatives à la Bobby Kennedy. Doesn’t that amount to an attempt by the Representatives to participate in the selection process, at the front end? There’s no doubt the Senate could have refused to confirm Bobby, if it was concerned about nepotism. But how can the Reps and the Senate foreclose the President from appointing someone in the first place? ---
**Author:** ![WF\_Tomba](https://avatars.discourse-cdn.com/v4/letter/w/d9b06d/32.png) [@WF\_Tomba](https://boards.straightdope.com/u/WF_Tomba)\ **Post date:** [November 20, 2008, 5:39pm UTC](https://boards.straightdope.com/t/why-do-pres-elect-cabinet-appointment-require-senate-conformation/473404/33 "2008-11-20T17:39:35Z")
> [@Northern\_Piper](#): > > But the statute purports to tell the President that there are some people he cannot appoint to the Cabinet, specifically close relatives à la Bobby Kennedy. Doesn’t that amount to an attempt by the Representatives to participate in the selection process, at the front end? There’s no doubt the Senate could have refused to confirm Bobby, if it was concerned about nepotism. But how can the Reps and the Senate foreclose the President from appointing someone in the first place? If I’m reading you right, we can imagine this scenario: the President nominates his brother for Attorney General. “That’s illegal,” says the House. “Find someone different.” “We’ll make an exception,” says the Senate. “He’s the right man for the job.” “You can’t make an exception to a law unless we agree to it!” says the House. “Yes we can. The Constitution doesn’t give you any say in this matter,” says the Senate. It would be an interesting case to be sure, but I have no idea who would win the argument. Edit: Personally, I would side with the Senate here. But unless such a disagreement actually happens, the issue just doesn’t arise. ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [November 20, 2008, 6:30pm UTC](https://boards.straightdope.com/t/why-do-pres-elect-cabinet-appointment-require-senate-conformation/473404/34 "2008-11-20T18:30:08Z")
> [@Northern\_Piper](#): > > But the statute purports to tell the President that there are some people he cannot appoint to the Cabinet, specifically close relatives à la Bobby Kennedy. Doesn’t that amount to an attempt by the Representatives to participate in the selection process, at the front end? There’s no doubt the Senate could have refused to confirm Bobby, if it was concerned about nepotism. But how can the Reps and the Senate foreclose the President from appointing someone in the first place? The House of Representatives is irrelevant. The way I look at it, the Senate has exercised its consent power, in part, by setting a rule beforehand saying that we will not consent to anyone who fails to meet these criteria. The rule just happens to appear in a statute that, as it happens, was also approved by the House and the president. But the point is that it was approved by the Senate, which is the only relevant body. ---
**Author:** ![Elendil\_s\_Heir](https://avatars.discourse-cdn.com/v4/letter/e/7cd45c/32.png) [@Elendil\_s\_Heir](https://boards.straightdope.com/u/Elendil_s_Heir)\ **Post date:** [November 20, 2008, 9:42pm UTC](https://boards.straightdope.com/t/why-do-pres-elect-cabinet-appointment-require-senate-conformation/473404/35 "2008-11-20T21:42:04Z")
I disagree. A bill doesn’t become a law until both the House and Senate approve it, and the President either signs it or permits it to become a law without his signature, or his veto is overridden. The laws prohibiting the appointment of noncitizens, felons, children and close relatives of the President - and, IIRC, in the case of the Attorney General, requiring that he or she be “learned in the law” - were duly adopted by the process set forth by the Constitution. With all due respect, I know of no one outside of this thread - not even the Unitary Executive/neo-royalist True Believers of the current administration - who argues that these laws are unconstitutional. [Previous page](https://boards.straightdope.com/t/why-do-pres-elect-cabinet-appointment-require-senate-conformation/473404.md?page=1)