HKB
Mitchell[289] these provisions were upheld as "reasonable" against objections based on Amendments I, V, IX, and X.
THE LOYALTY ISSUE
By section 9A of the Hatch Act of 1939, it is made "* * * unlawful for any person employed in any capacity by any agency of the Federal Government, whose compensation, or any part thereof, is paid from funds authorized or appropriated by any act of Congress, to have membership in any political party or organization which advocates the overthrow of our constitutional form of government in the United States."[290] In support of this provision the 79th Congress in its second session incorporated in its appropriation acts a series of clauses which forbid the use of any of the funds appropriated to pay the salary of any person who advocates, or belongs to an organization which advocates, the overthrow of the Government by force; or any person who strikes, or who belongs to an organization of Government employees which asserts the right to strike against the Government.[291] The apparent intention of this proviso is to lay down a rule by which the appointing and disbursing authorities will be bound. Since Congress has the conceded power to lay down the qualifications of officers and employees of the United States; and since few people would contend that officers or employees of the National Government have a constitutional right to advocate its overthrow or to strike against it, the above proviso would seem to be entirely constitutional. President Truman's "Loyalty Order"--Executive Order 9835--of March 21, 1947[292] is an outgrowth in part of this legislation.
LEGISLATION INCREASING DUTIES OF AN OFFICER
Finally, Congress may devolve upon one already in office additional duties which are germane to his office without thereby "rendering it necessary that the incumbent should be again nominated and appointed." Such legislation does not constitute an attempt by Congress to seize the appointing power.[293]
"INFERIOR OFFICERS"; "EMPLOYEES"
Except the President and the Vice President all persons in the civil service of the National Government are appointive, and fall into one of three categories, those who are appointed by the President, "by and with the advice and consent of the Senate"; inferior officers, whose appointment Congress has vested by law "in the President alone, in the courts of law, or in the heads of departments"; and employees, a term which is here used in a peculiar sense. Ordinarily it denotes one who stands in a contractual relationship to his employer, but here it signifies all subordinate officials of the National Government receiving their appointments at the hands of officials who are not specifically recognized by the Constitution as capable of being vested by Congress with the appointing power.[294] Inferior officers are usually officers intended to be subordinate to those in whom their appointment is vested;[295] but the requirement is by no means absolute.[296]
STAGES OF APPOINTMENT PROCESS
Nomination
The Constitution appears to distinguish three stages in appointments by the President with the advice and consent of the Senate. The first is the "nomination" of the candidate by the President alone; the second is the assent of the Senate to the candidate's "appointment"; and the third is the final appointment and commissioning of the appointee, by the President.[297]
Senate Approval
The fact that the power of nomination belongs to the President alone prevents the Senate from attaching conditions to its approval of an appointment, such as it may do to its approval of a treaty. In the words of an early opinion of the Attorney General: "The Senate cannot originate an appointment. Its constitutional action is confined to the simple affirmation or rejection of the President's nominations, and such nominations fail whenever it rejects them. The Senate may suggest conditions and limitations to the President, but it cannot vary those submitted by him, for no appointment can be made except on his nomination, agreed to without qualification or alteration."[298] This view is borne out by early opinion[299] as well as by the record of practice under the Constitution.
When Senate Consent Is Complete
Early in January, 1931 the Senate requested President Hoover to return its resolution notifying him that it advised and consented to certain nominations to the Federal Power Commission. In support of its action the Senate invoked a long-standing rule permitting a motion to reconsider a resolution confirming a nomination within "the next two days of actual executive session of the Senate" and the recall of the notification to the President of the confirmation. The nominees involved having meantime taken the oath of office and entered upon the discharge of their duties, the President responded with a refusal, saying: "I cannot admit the power in the Senate to encroach upon the executive functions by removal of a duly appointed executive officer under the guise of reconsideration of his nomination." The Senate thereupon voted to reconsider the nominations in question, again approving two of the nominees, but rejecting the third, against whom it instructed the District Attorney of the District of Columbia to institute quo warranto proceedings in the Supreme Court of the District. In United States v. Smith[300] the Supreme Court overruled the proceedings on the ground that the Senate had never before attempted to apply its rule in the case of an appointee who had already been installed in office on the faith of the Senate's initial consent and notification to the President. In 1939 the late President Roosevelt rejected a similar demand by the Senate, action which was not challenged.[301]