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Article II, Section 2, Clause 2 of the United States Constitution sets forth that

"[The President] 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."

This is known as the Appointments clause. This clause vests the power to make executive-branch appointments of "Officers of the United States" in the President, but "...by and with the Advice and Consent of the Senate...." Thus, the President actually only nominates his choice for "Officers of the United States", who are then called to testify before the Senate in Committee, and thereafter the Senate votes to confirm or deny the appointment.

The President also can be, and has been, vested with the power by the Congress (that is, both the U.S. House of Representatives and the U.S. Senate) to unilaterally appoint "...inferior officers...."

Controversy over a Presidential nomination to the executive can and does occur in the U.S. Senate. Thus, several Constitutional cases and controversies have made their way to the Supreme Court of the United States on the issue of whether or not a particular office is held by an "Officer of the United States", or is held by an "inferior Officer. Consequently, appointments to the latter type of office can be more politicized than appointments to the former, which must tend to be more suitable to bipartisan sensibilities, in order to maximize and expedite the possibility of a particular nominee's confirmation by the U.S. Senate.

Appointments as "Officers of the United States" must arise after U.S. Senate confirmation, but those held by an "inferior Officer" are political appointments as to which the President's choice as to a particular appointee cannot be negatived by the U.S. Senate.

Note also that (1) the President's cabinet is herein implicitly recognized textually ("Heads of Departments"); and, (2) both "Head of Departments" (cabinet secretaries appointed by the President) and the federal courts (federal Disrict Courts, U.S. Courts of Appeal and the Supreme Court of the United States) are textually authorized in and by the Constitution to make certain executive appointments, as well.

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