The Law: The President “Shall Nominate”: Exclusive or Shared Constitutional Power?


Mitchel A. Sollenberger is a lecturer of political science at Bowling Green State University. He previously worked for Congressional Research Service.


The power to nominate has often been a delicate issue to analyze. No doubt the Constitution gives to the president the ability to make formal nominations, but the question lingers as to whether or not the Senate can involve itself before that decision is made. This article examines the advice and consent clause through a constitutional, historical, and institutional perspective to address this question. Saying that the president has the final judgment in nominating does not preclude the Senate (or even the House of Representatives) from giving counsel during the decision-making process for selecting a nominee. A president, however, may well decide to ignore congressional advice, but he should be mindful of the fact that the Constitution gives to the Senate the ability to reject his nominations and block other White House objectives, including legislation and treaties.