Also known as: appointment powers · power of appointment
Written by attorneys · grounded in primary & secondary sources — see below
2 senses
A power granted to a beneficiary or other person to direct the disposition of trust property to designated objects. The power may be general, allowing appointment to the holder or the holder's creditors, or special, limited to a defined class. A presently exercisable general power of appointment qualifies as a power of withdrawal when the holder may demand trust assets unilaterally without trustee consent or an ascertainable standard.
The authority vested in the President by Article II to nominate and appoint ambassadors, public ministers, consuls, Supreme Court justices, and other officers of the United States. Principal officers require Senate confirmation while Congress may vest appointment of inferior officers in the President alone, courts of law, or heads of departments.
Each sense below has its own examples, sources, and questions.
A power granted to a beneficiary or other person to direct the disposition of trust property to designated objects. The power may be general, allowing appointment to the holder or the holder's creditors, or special, limited to a defined class. A presently exercisable general power of appointment qualifies as a power of withdrawal when the holder may demand trust assets unilaterally without trustee consent or an ascertainable standard.
Select any source to read its text and confirm it supports the definition.
Antonio Alvarado is the sole lifetime beneficiary of a trust holding Apex Dynamics shares. The instrument permits him to demand any amount of principal at any time by written notice alone. A judgment creditor seeks to reach the shares. Antonio's right constitutes a presently exercisable general power of appointment that qualifies as a power of withdrawal reachable by the creditor.
Adrian Aguilar is beneficiary of a trust holding Arcadia Retail property. He may withdraw parcels only after obtaining written consent from co-trustee Abigail Alvarez, who also holds a remainder interest. Because the withdrawal right requires consent from a person with an adverse interest, it does not qualify as a power of withdrawal.
A beneficiary's right qualifies when it is a presently exercisable general power of appointment that the beneficiary may exercise unilaterally. The definition excludes powers held by a trustee and limited by an ascertainable standard or powers exercisable only with the consent of a trustee or adverse party.
Supporting sources
Yes. When the trust instrument conditions withdrawal on consent from a trustee or other person holding an adverse interest, the power falls outside the statutory definition of a power of withdrawal even if it would otherwise resemble a general power of appointment.
Supporting sources
The authority vested in the President by Article II to nominate and appoint ambassadors, public ministers, consuls, Supreme Court justices, and other officers of the United States. Principal officers require Senate confirmation while Congress may vest appointment of inferior officers in the President alone, courts of law, or heads of departments.
Select any source to read its text and confirm it supports the definition.
The Attorney General seeks appointment of an independent counsel to investigate executive branch officials. A special division of the court of appeals makes the appointment under a statute authorizing courts of law to appoint inferior officers. The appointment satisfies the Appointments Clause because the counsel is an inferior officer and the appointing body is a court of law.
Congress enacts a statute allowing one house to veto an executive suspension of deportation. An alien whose deportation is reinstated challenges the procedure. The one-house veto violates separation of powers because it interferes with the President's appointment and removal authority over executive officers executing the immigration laws.
Congress may vest appointment of inferior officers in the President alone, in the courts of law, or in heads of departments. The independent counsel statute validly authorized a special division of the court of appeals to appoint an inferior officer because the division is a court of law.
Supporting sources
Yes when the restriction prevents the President from exercising adequate control over an executive officer. A single-director agency structure with for-cause removal protection unconstitutionally limits the President's ability to supervise through appointment and removal authority.
Supporting sources
…made on this motion was by Madison, who felt that the Clause did not go far enough in that it did not allow Congress to vest appointment powers in "Superior Officers below Heads of Departments." The first vote on Morris' motion ended in a tie. It was then put forward a second time, with the urging that "some such provision [was]…
…supra , at 118-124 ( per curiam ), and Myers v. United States , 272 U. S. 52 (1926), congressional action compromised the
…removal restrictions imposed by §§7211(e)(6) and 7217(d)(3) do. Under the traditional default rule, removal is incident to the
…that Article II “grants to the President” the “general administrative control of those executing the laws, including the
…and if the words ‘in such manner as the legislature thereof may direct,’ had been omitted, it would seem that the legislative power of appointment
Congress creates an agency headed by a single director removable only for cause. A regulated entity challenges the structure after an enforcement action. The removal restriction violates Article II because it prevents the President from exercising sufficient control over an executive officer through the appointment and removal power.
A newly elected sheriff terminates nonpolicymaking employees solely because they supported the prior administration. The dismissed employees sue, claiming violation of their rights. The dismissals are unconstitutional because the appointment power does not extend to patronage terminations of employees whose positions do not involve policy formulation.