Appointing

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.

By default, the Appointments Clause requires that all “Officers of the United States” be appointed by the President with the advice and consent of the Senate.1 However, the Clause authorizes Congress 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.” 2 Because of this language, the Supreme Court has recognized two classes of officers: (1) principal officers, who must be appointed by the President with the Senate’s advice and consent; and (2) inferior officers, whose appointment Congress may assign to the President alone, the courts, or a department head.3 This dichotomy has led to questions about whether there are constitutionally significant differences between principal and inferior officers. Related questions concern who constitutes the “Head[] of [a] Department” and which entities qualify as “Courts of Law.”

Principal Versus Inferior Officers

The Supreme Court has not set forth an “exclusive criterion for distinguishing between principal and inferior officers for Appointments Clause purposes.” 4 However, several decisions elucidate the factors for consideration. In Morrison v. Olson, the Supreme Court considered whether an independent counsel appointed under the Ethics in Government Act was a principal or an inferior officer.5 The Court concluded that the independent counsel was “clearly” an inferior officer because (1) he was “subject to removal by a higher Executive Branch official” ; (2) the statute authorized him “to perform only certain, limited duties” ; and (3) his office was limited in “jurisdiction” and “tenure.” 6

In 1997, the Court set out a general definition of “inferior officer” in Edmond v. United States, stating that “[g]enerally speaking, the term ‘inferior officer’ connotes a relationship with some higher ranking officer or officers below the President.” 7 Although the Court seemed to describe a formal chain of command, it cautioned that a government official is not an inferior officer merely because others “formally maintain a higher rank, or possess responsibilities of a greater magnitude.” 8 Instead, the Court emphasized “political accountability relative to important Government assignments,” concluding that an inferior officer is one “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.” 9

The officials in question in Edmond were judges of the Coast Guard Court of Criminal Appeals. To determine whether they were inferior officers, the Court examined several factors, including whether a superior could: (1) supervise their work; (2) remove them from their position without cause; and (3) review their decisions.10 The Court concluded that the Coast Guard judges were inferior officers for two main reasons.11 First, the Judge Advocate General, who reports to the Secretary of Transportation, could remove them from their judicial assignments without cause—authority which the Court described as “a powerful tool for control.” 12 Second, the Court of Appeals for the Armed Forces, an executive branch tribunal, could review their decisions, albeit with some deference to their factual findings.13 “What is significant,” the Court explained, is that the Coast Guard judges “have no power to render a final decision on behalf of the United States unless permitted to do so by other executive officers.” 14

The Court considered the potential for review by a superior, executive branch official to be similarly critical in Arthrex v. United States.15 Arthrex held that administrative patent judges’ ability to render unreviewable decisions in certain proceedings, combined with protections against at-will removal, was “incompatible” with their appointment as inferior officers.16 To remedy the constitutional defect, the Court ruled that the Director of the Patent and Trademark Office could review administrative patent judges’ decisions unilaterally in the proceedings at issue, rendering “unenforceable” a particular statutory provision limiting the Director’s review.17

Meaning of "Heads of Departments" and "Courts of Law"

Another recurring issue in the Court’s Appointments Clause jurisprudence is the meaning of the terms “Heads of Departments” and “Courts of Law.” For example, the Court in Freytag v. Commissioner analyzed whether the United States Tax Court was a “department” (headed by the Chief Judge) or a “court of law” in discussing the appointing authority for special trial judges of that court.18 All nine Justices agreed that the Chief Judge could constitutionally appoint special trial judges, but they disagreed on the rationale. The five Justices in the majority opined that the Tax Court could not be a department because “departments” usually were denominated as such and headed by a cabinet officer.19 The Court also observed that “[c]onfining the term 'Heads of Departments' . . . to executive divisions like the Cabinet-level departments constrains the distribution of the appointment power” because “Cabinet-level departments are limited in number and easily identified” and their heads “are subject to the exercise of political oversight and share the President’s accountability to the people.” 20 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.21 The other four Justices would have held that the Tax Court, as an independent establishment in the executive branch, was a “Department” for purposes of the Appointments Clause.22

When Congress designates “Courts of Law” as the appointing authority, the courts are not limited to appointing judicial officers.23 In Ex parte Siebold,24 the Court sustained Congress’s decision to vest appointments of federal election supervisors, charged with preventing fraud and rights violations in congressional elections in the South, in courts. In Morrison v. Olson, Congress had authorized a special judicial division to appoint independent counsels to investigate and, if necessary, prosecute charges of corruption in the executive.25 . In sustaining the law, the Court held that interbranch appointments, in and of themselves, do not violate the Appointments Clause.26

Footnotes

1

U.S. Const. art. I, § 2, cl. 2; Edmond v. United States, 520 U.S. 651, 660 (1997).

2

U.S. Const. art. I, § 2, cl. 2.

3

Buckley v. Valeo, 424 U.S. 1, 132 (1976) (per curiam); see also United States v. Germaine, 99 U.S. 508, 509 (1879) ( “The Constitution for purposes of appointment very clearly divides all its officers into two classes.” ).

4

Edmond v. United States, 520 U.S. 651, 661 (1997).

5

Morrison v. Olson, 487 U.S. 654, 674 (1988).

6

Id. at 671–72; see also United States v. Eaton, 169 U.S. 331, 343 (1898) ( “Because the subordinate officer is charged with the performance of the duty of the superior for a limited time and under special and temporary conditions, he is not thereby transformed into the superior and permanent official.” ).

7

Edmond, 520 U.S. at 662.

8

Id. at 662–63.

9

Id.

10

Id. at 664–65.

11

Id. at 666.

12

Id. at 664.

13

Id. at 665.

14

Id.. See also Ortiz v. United States, No. 16-1423, slip op. at 25 (U.S. Jan. 5, 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).

15

No. 19-1434 (U.S. June 21, 2021).

16

Id. at 14.

17

Id. at 22.

18

501 U.S. 868, 884 (1991).

19

Id. at 886.

20

Id..

21

Id. at 891–92.

22

Id. at 901 (Scalia, J., concurring in part and concurring in the judgment).

23

In 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).

24

100 U.S. 371 (1880).

25

Morrison, 487 U.S. 654.

26

Id. at 673–77. 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).