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In the US, the Congress has the power of Advice and Consent to the President. As such, it has the power to vote up or down the heads of the departments whom he nominates. This is on the theory that, as secretaries of this and that, the heads of departments advice a President so that he can decide on a proper course of actions. So Congressmen delegate their power of advice when they confirm department heads.

I've heard it occasionally threatened that such and such department secretary would be impeached. But would they have to be? If the power of advice and consent is delegated to them by Congress, can it not be simply revoked? Is this established by law or by rules of Congress?

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    @grovkin If Congress wants to, for example, abolish NASA in a law that does so, all employees at NASA, including Presidential appointees confirmed by the U.S. Senate, can lose their jobs. But, that isn't a revocation of an appointment. There is absolutely no precedent whatsoever for revoking an appointment.
    – ohwilleke
    Apr 24 '18 at 2:01
  • @ohwilleke, As far as I know the rules for what "consent" means procedurally come from Senate rules. For example, holding up votes for nominations is something that the Senate does from time to time. If the rules can hold back consent indefinitely, what is there to stop (other than the current lack of procedure) the Senate from withdrawing consent? Does the word "appoint" carry some finality with it? So an appointment begins with a nomination and ends with a confirmation?
    – grovkin
    Apr 24 '18 at 2:07
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    The confirmation of appointee's isn't a delegation of the Advice and Consent clause. The delegation comes deeper in the paragraph, where Congress can vest the power of appointment in the President alone for inferior offices. The manner in which you described the clause is flawed. Apr 24 '18 at 2:09
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    @grovkin In the relevant sense (the sense it is used in, in the U.S. Constitution), appointment means being hired on to a government job. It does not mean either the work of appointing someone or the work that an appointee does. Black's Law Dictionary (5th edition) defines it as follows: "The selection or designation of a person, by the person or persons having authority therefore, to fill an office or public function and discharge the duties of the same." It happens at an instant in time and is complete.
    – ohwilleke
    Apr 24 '18 at 2:19
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    @grovkin - sorta in jest, but there IS a rule that no laws can be retroactive IIRC, so not completely in jest
    – user4012
    Apr 24 '18 at 2:34
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No.

Once a nominee is confirmed by the U.S. Senate, that approval is final and may not be withdrawn or revoked, as a consequence of the United States Constitution. At that point, the only power the U.S. Senate has over the appointee is to impeach that individual, or to abolish the post to which that individual was appointed entirely by law. No law passed by Congress and no Congressional rule can change this fact.

This is a point so completely settled and obvious that I do not believe that it has ever been litigated. Certainly, the U.S. Senate has never purported to withdraw or revoke its confirmation of a nominee.

Congressmen delegate their power of advice when they nominate department heads.

This is a fundamental misunderstanding of the advice and consent power of Article II, Section 2, Clause 2 of the U.S. Constitution, which in the course of enumerating powers of the President states:

He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which 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 departments.

It is not a power of Congress, in general, it is particular to the U.S. Senate.

The U.S. Senate can provide advice and consent to the President, directly, regarding who should be appointed to certain positions requiring U.S. Senate approval (there has been some debate over whether that advice should be pre-nomination or post-nomination, but there is no debate that it must be pre-confirmation), and regarding treaties.

The advice and consent power is not global as to all actions of the President; it applies only to treaties and appointments. And, it is never delegated. Consent to an appointment is consent to the momentary act of hiring someone for a position. Once that act is completed, there is nothing to withdraw consent to that is not a fait accompli, the appointment has happened. The U.S. Senate consents only to the act of hiring someone and not to the continued employment of someone.

Conceptually, hiring and firing personnel in the executive branch is an executive branch function. The U.S. Constitution's appointments clause, which is in Article II of the U.S. Constitution pertaining to the Presidency, contains a small check on the President's power to hire executive branch officials by requiring U.S. Senate approval for the President to appoint certain senior executive branch officials determined by law. Once that narrow check on the President's power is overcome, the default principle that personnel matters in the executive branch are the President's problem and not for Congress to have a say in, in the strong President form of government that exists in the United States, is restored.

This is an application of the principle of separation of powers with checks and balances, as set forth by James Madison in Federal Paper No. 51 (which is authoritative because the Federalist papers are legislative history for the U.S. Constitution and represent the intended meaning of the document which was considered and effectively adopted by ratifying states when the U.S. Constitution was presented for ratification. The Federalist papers are basically the contemporaneous official commentary to the U.S. Constitution, written by its proponents, which elucidate its meaning, given the brevity of the U.S. Constitution. Federalist Papers 65-67 (written by Alexander Hamilton) also clarify the contemplated meaning of Article II, Section 2, Clause 2 of the United States Constitution and how that interacts with the impeachment power.

Because the U.S. is not a parliamentary system of government, Congress does not have a say over the day to day operational decisions involved in running the government, such as monitoring the performance of senior government officials once they have been appointed and firing them if they fail to perform.

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  • sorry, i meant "confirm" rather than "nominate" when referring to Congress' actions. I'll change the question accordingly. It was a brain fart mostly.
    – grovkin
    Apr 24 '18 at 1:36
  • re: "he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States..." So the power of consent stops at the confirmation itself? Can a legislature be passed which allows Senate to withdraw a consent expressed through a confirmation? I mean without a constitutional amendment.
    – grovkin
    Apr 24 '18 at 1:50
  • "So the power of consent stops at the confirmation itself?" Yes. "Can a legislature be passed which allows Senate to withdraw a consent expressed through a confirmation? I mean without a constitutional amendment." No. Consent is to the "shall appoint" act. Once the appointment is complete there is nothing left to do and the act is complete.
    – ohwilleke
    Apr 24 '18 at 1:54
  • The "inferior officers" clause means that the U.S. Senate's right to give advice and consent can be, by law, forfeited. For instance, the appointment of someone to the post of chief janitor for the Treasury Department building could be vested in the assistant deputy Treasury Secretary (an inferior officer) without Congressional approval.
    – ohwilleke
    Apr 24 '18 at 1:58
  • Sorry, I parsed that clause wrong. If I can ask, going back to my original question, is the reason that no law can be passed to allow Senate to withdraw consent a law or a Congress/Senate rule? You already said that it hasn't been litigated, so I assume it's not a court opinion.
    – grovkin
    Apr 24 '18 at 2:01

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