ArtII.S2.C2.2.1.4 Appointing Inferior Officers

Article II, Section 2, Clause 2:

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.

Congress is authorized by the Appointments Clause to vest the appointment of inferior Officers, at its discretion, in the President alone, in the Courts of Law, or in the Heads of Departments. The principal questions arising under this portion of the clause are Who are ‘inferior officers,’ and what are the ‘Departments’ whose heads may be given appointing power?1 [A]ny appointee exercising significant authority pursuant to the laws of the United States is an ‘Officer of the United States,’ and must, therefore, be appointed in the manner prescribed by § 2, cl. 2, of [Article II].2 The Constitution for purposes of appointment very clearly divides all its officers into two classes. The primary class requires a nomination by the President and confirmation by the Senate. But foreseeing that when offices became numerous, and sudden removals necessary, this mode might be inconvenient, it was provided that, in regard to officers inferior to those specially mentioned, Congress might by law vest their appointment in the President alone, in the courts of law, or in the heads of departments. That all persons who can be said to hold an office under the government about to be established under the Constitution were intended to be included within one or the other of these modes of appointment there can be but little doubt.3

In Edmond v. United States,4 the Court reviewed its pronouncements regarding the definition of inferior officer and, disregarding some implications of its prior decisions, seemingly settled, unanimously, on a pragmatic characterization. Thus, the importance of the responsibilities assigned an officer, the fact that duties were limited, that jurisdiction was narrow, and that tenure was limited, are only factors but are not definitive.5 Generally speaking, the term ‘inferior officer’ connotes a relationship with some higher ranking officer or officers below the President: Whether one is an ‘inferior’ officer depends on whether he has a superior. It is not enough that other officers may be identified who formally maintain a higher rank, or possess responsibilities of a greater magnitude. If that were the intention, the Constitution might have used the phrase ‘lesser officer.’ Rather, in the context of a Clause designed to preserve political accountability relative to important Government assignments, we think it evident that ‘inferior officers’ are officers whose work is directed and supervised at some level by others who were appointed by Presidential nomination with the advice and consent of the Senate.6

Thus, officers who are not inferior Officers are principal officers who must be appointed by the President with the advice and consent of the Senate in order to make sure that all the business of the Executive will be conducted under the supervision of officers appointed by the President with Senate approval.7 Further, the Framers intended to limit the diffusion of the appointing power with respect to inferior officers in order to promote accountability. The Framers understood . . . that by limiting the appointment power, they could ensure that those who wielded it were accountable to political force and the will of the people. . . . The Appointments Clause prevents Congress from distributing power too widely by limiting the actors in whom Congress may vest the power to appoint. The Clause reflects our Framers’ conclusion that widely distributed appointment power subverts democratic government. Given the inexorable presence of the administrative state, a holding that every organ in the executive Branch is a department would multiply the number of actors eligible to appoint.8

Yet, even agreed on the principle, the Freytag Court split 5-to-4 on the reason for the permissibility of the Chief Judge of the Tax Court to appoint special trial judges. The entire Court agreed that the Tax Court had to be either a department or a court of law in order for the authority to be exercised by the Chief Judge, and it unanimously agreed that the statutory provision was constitutional. But there agreement ended. The majority was of the opinion that the Tax Court could not be a department, but it was unclear what those Justices thought a department comprehended. Seemingly, it started from the premise that departments were those parts of the executive establishment called departments and headed by a cabinet officer.9 Yet, the Court continued immediately to say: Confining the term 'Heads of Departments' in the Appointments Clause to executive divisions like the Cabinet-level departments constrains the distribution of the appointment power just as the [IRS] Commissioner’s interpretation, in contrast, would diffuse it. The Cabinet-level departments are limited in number and easily identified. The heads are subject to the exercise of political oversight and share the President’s accountability to the people.10 The use of the word like in this passage suggests that it is not just Cabinet-headed departments that are departments but also entities that are similar to them in some way, and its reservation of the validity of investing appointing power in the heads of some unnamed entities, as well as its observation that the term Heads of Departments does not embrace inferior commissioners and bureau officers all contribute to an amorphous conception of the term.11 In the end, the Court sustained the challenged provision by holding that the Tax Court as an Article I court was a Court of Law within the meaning of the Appointments Clause.12 The other four Justices concluded that the Tax Court, as an independent establishment in the executive branch, was a department for purposes of the Appointments Clause. In their view, in the context of text and practice, the term meant, not Cabinet-level departments, but all independent executive establishments, so that ‘Heads of Departments’ includes the heads of all agencies immediately below the President in the organizational structure of the Executive Branch.13

As noted, the Appointments Clause also authorizes Congress to vest the power in Courts of Law. Must the power to appoint when lodged in courts be limited to those officers acting in the judicial branch, as the Court first suggested?14 No, the Court said subsequently. In Ex parte Siebold,15 the Court sustained Congress’s decision to vest in courts the appointment of federal election supervisors, charged with preventing fraud and rights violations in congressional elections in the South, and disavowed any thought that interbranch appointments could not be authorized under the clause. A special judicial division was authorized to appoint independent counsels to investigate and, if necessary, prosecute charges of corruption in the executive, and the Court, in near unanimity, sustained the law, denying that interbranch appointments, in and of themselves, and leaving aside more precise separation-of-powers claims, were improper under the clause.16

Footnotes

  1.  Jump to essay-1Concurrently, of course, although it may seem odd, the question of what is a Court[] of Law for purposes of the Appointments Clause is unsettled. See Freytag v. Commissioner, 501 U.S. 868 (1991) (Court divides 5-to-4 whether an Article I court is a court of law under the clause).
  2.  Jump to essay-2Freytag v. Commissioner, 501 U.S. 868, 881 (1991) (quoting Buckley v. Valeo, 424 U.S. 1, 126 (1976)).
  3.  Jump to essay-3United States v. Germaine, 99 U.S. 508, 509–10 (1879). See also Buckley, 424 U.S. at 125; Morrison v. Olson, 487 U.S. 654, 670–73 (1988); United States v. Eaton, 169 U.S. 331, 343 (1898).
  4.  Jump to essay-4520 U.S. 651 (1997).
  5.  Jump to essay-5520 U.S. at 661–62.
  6.  Jump to essay-6520 U.S. at 662–63. The case concerned whether the Secretary of Transportation, a presidential appointee with the advice and consent of the Senate, could appoint judges of the Coast Guard Court of Military Appeals; necessarily, the judges had to be inferior officers. In related cases, the Court held that designation or appointment of military judges, who are officers of the United States, does not violate the Appointments Clause. The judges are selected by the Judge Advocate General of their respective branch of the Armed Forces. These military judges, however, were already commissioned officers who had been appointed by the President with the advice and consent of the Senate, so that their designation simply and permissibly was an assignment to them of additional duties that did not need a second formal appointment. Weiss v. United States, 510 U.S. 163 (1994). However, the appointment of civilian judges to the Coast Guard Court of Military Review by the same method was impermissible; they had either to be appointed by an officer who could exercise appointment-clause authority or by the President, and their actions were not salvageable under the de facto officer doctrine. Ryder v. United States, 515 U.S. 177 (1995). See also Ortiz v. United States, 585 U.S. ____, No. 16-1423, slip op. at 25 (2018) (rejecting the argument that the Appointments Clause prohibits an individual already serving as a principal officer on one military tribunal from also serving as an inferior officer on a separate military tribunal).
  7.  Jump to essay-7Freytag v. Commissioner, 501 U.S. 868, 919 (1991) (Justice Scalia concurring).
  8.  Jump to essay-8Freytag v. Commissioner, 501 U.S. 868, 884–85 (1991).
  9.  Jump to essay-9501 U.S. at 886 (citing Germaine and Burnap, the Opinion Clause (Article II, § 2), and the 25th Amendment, which, in its § 4, referred to executive departments in a manner that reached only cabinet-level entities). But compare id. at 915–22 (Justice Scalia concurring).
  10.  Jump to essay-10501 U.S. at 886 (emphasis added).
  11.  Jump to essay-11501 U.S. at 886–88. Compare id. at 915–19 (Justice Scalia concurring).
  12.  Jump to essay-12501 U.S. at 888–92. This holding was vigorously controverted by the other four Justices. Id. at 901–14 (Justice Scalia concurring).
  13.  Jump to essay-13501 U.S. at 918, 919 (Justice Scalia concurring).
  14.  Jump to essay-14In re Hennen, 38 U.S. (13 Pet.) 230 (1839). The suggestion was that inferior officers are intended to be subordinate to those in whom their appointment is vested. Id. at 257–58; United States v. Germaine, 99 U.S. 508, 509 (1879).
  15.  Jump to essay-15100 U.S. 371 (1880).
  16.  Jump to essay-16Morrison v. Olson, 487 U.S. 654, 673–77 (1988). See also Young v. United States ex rel. Vuitton, 481 U.S. 787 (1987) (appointment of private attorneys to act as prosecutors for judicial contempt judgments); Freytag v. Commissioner, 501 U.S. 868, 888–92 (1991) (appointment of special judges by Chief Judge of Tax Court).