Presidential Appointment of Foreign Agents Without the Consent of the Senate ( 1943 )

Presidential Appointment of Foreign Agents
Without the Consent of the Senate
There are many precedents to sustain the power of the President, without the advice and consent of the
Senate, to appoint special agents or personal representatives for the purpose of conducting negotia-
tions or investigations.
September 23, 1943
MEMORANDUM FOR THE ASSISTANT SOLICITOR GENERAL
Clause 2 of Section 2, Article II, of the Constitution provides that the President
“shall nominate, and by and with the Advice and Consent of the Senate, shall
appoint Ambassadors, other public Ministers and Consuls.” There are, however,
many precedents to sustain the power of the President, without the advice and
consent of the Senate, to appoint agents for the purpose of conducting negotiations
or investigations. Some Senators have at times objected to the Presidents’ actions
as being without constitutional authority, but the question has not been passed
upon by the courts. Precedents are set forth in 4 John Bassett Moore, A Digest of
International Law § 632, at 452–56 (1904), and 4 Green Haywood Hackworth,
Digest of International Law 409–14 (1942). See also Edward S. Corwin, The
President’s Control of Foreign Relations 63–66 (1917).
Persons appointed as such special agents or representatives are considered to be
the personal representatives of the President and not “Ambassadors” or other
“public Ministers” within the meaning of the constitutional provision. In many
cases such personal representatives have been given diplomatic rank, including
that of minister, envoy, and ambassador. Special representatives with diplomatic
rank are not formally accredited to the foreign governments as official diplomatic
representatives of our government. It is customary before making such an
appointment for the State Department to ascertain from the foreign government
concerned whether the appointment is acceptable. If so, such appointees are
accredited informally. They are then customarily accorded the diplomatic privileg-
es and courtesies pertaining to their rank.
Two recent examples of special envoys with diplomatic rank are, as cited in Mr,
Hackworth’s digest, the appointments by President Roosevelt of (1) Norman H.
Davis in March 1933 as Chairman of the Delegation of the United States to the
General Disarmament Conference at Geneva, with the rank of Ambassador while
serving in that capacity; and (2) Myron Taylor in 1938 as the American representa-
tive on the special intergovernmental committee to facilitate the emigration from
Austria and Germany of political refugees, with the rank of Ambassador Extraor-
dinary and Plenipotentiary. 4 Hackworth, Digest of International Law at 412.
Moore gives the following instances of appointments by the Secretaries of
State:
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Supplemental Opinions of the Office of Legal Counsel in Volume 1
May 12, 1825, John James Appleton was appointed by the Secre-
tary of State to arrange a settlement of claims against Naples.
....
April 17, 1847, Nicholas P. Trist, who was then chief clerk of the
Department of State, was appointed a commissioner to conclude a
treaty of peace with Mexico, which he did on February 2, 1848.
....
In 1861 Archbishop Hughes and Bishop McIlvaine were sent to
Europe by Mr. Seward, with the approval of the President and his
Cabinet, as confidential agents in relation to questions growing out
of the civil war.
....
A.B. Steinberger was appointed by the Secretary of State, under
direction of the President, March 29, 1873, as a special agent to Sa-
moa.
4 Moore, Digest of International Law § 632, at 453–54.
With respect to the appointment of Mr. Trist, it appears that the instructions
issued to him by Mr. Buchanan, Secretary of State, stated in part:
The President, therefore, having full confidence in your ability,
patriotism, and integrity, has selected you as a commissioner to the
United Mexican States, to discharge the duties of this important mis-
sion.
5 id. § 858, at 781.
The instructions issued to the other appointees above mentioned are not given.
It also appears that Mr. Clayton, as Secretary of State, on June 18, 1849, issued
to Mr. A. Dudley Mann, who was then in Europe, instructions in relation to a
mission as a special and confidential agent to Hungary. Mr. Mann was given a
letter (presumably signed by the Secretary of State) introducing him to the
Minister for Foreign Affairs in Hungary as “special and confidential agent of the
United States to the Government of Hungary.” 1 id. § 72, at 219. Moore, however,
also states that Mr. Mann “was appointed by President Taylor as a special and
confidential agent to Hungary.” 4 id. § 632, at 453. I suppose that in all five cases
above mentioned the State Department would take the position that in making the
appointments the Secretary acted for and under the direction of the President.
I spoke to Mr. Hackworth, Legal Adviser to the Secretary of State, with respect
to the practice in this matter. He said that there was no uniform procedure. In the
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Presidential Appointments of Foreign Agents Without the Consent of the Senate
case of Dr. Frank P. Corrigan, President Roosevelt issued a commission to him in
1937 designating him “Special Representative with the rank of Envoy Extraordi-
nary and Minister Plenipotentiary” to meet with representatives of the Govern-
ments of Venezuela and Costa Rica to aid in the solution of the boundary contro-
versy. On the other hand, when Mr. Phillips was sent recently to India, the
Secretary of State wrote to Mr. Phillips in substance that he was enclosing a letter
signed by the President addressed to the Viceroy regarding his appointment to
serve near the Government of India as the President’s personal representative. The
Secretary further stated that his letter would serve in lieu of formal credentials.
The usual form of credentials was not used in this case because Mr. Phillips was
not being accredited to any foreign government.
Mr. Hackworth further advises that in all cases of special representatives the
instructions to them are prepared in the Department of State and signed by the
Secretary or the Acting Secretary of State. The State Department also prepares for
the President’s signature such formal document or letter as may be required or
desired in the particular case. When serving in a special capacity, the names of the
representatives are not submitted by the State Department to the Senate.
W.H. EBERLY
Attorney-Adviser
Office of the Assistant Solicitor General
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