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CRS Annotated Constitution

Article II -- Table of ContentsPrev | Next
[p.512]
Appointments and Congressional Regulation of Offices

That the Constitution distinguishes between the creation of an office and appointment thereto for the generality of national offices has never been questioned. The former is by law and takes place by virtue of Congress’ power to pass all laws necessary and proper for carrying into execution the powers which the Constitution confers upon the government of the United States and its departments and officers.461 As an incident to the establishment of an office, Congress has also the power to determine the qualifications of the officer and in so doing necessarily limits the range of choice of the appointing power. First and last, it has laid down a great variety of qualifications, depending on citizenship, residence, professional attainments, occupational experience, age, race, property, sound habits, and so on. It has required that appointees be representative of a political party, of an industry, of a geographic region, or of a particular branch of the Government. It has confined the President’s selection to a small number of persons to be named by others.462 Indeed, it has contrived at times to designate a definite eligibility, thereby virtually usurping the appointing power.463 De[p.513]spite the record of the past, however, it is not at all clear that Congress may cabin the President’s discretion, at least for offices that he considers important, by, for example, requiring him to choose from lists compiled by others. To be sure, there are examples, but they are not free of ambiguity.464

But when Congress contrived actually to participate in the appointment and administrative process and provided for selection of the members of the Federal Election Commission, two by the President, two by the Senate, and two by the House, with confirmation of all six members vested in both the House and the Senate, the Court unanimously held the scheme to violate the appointments clause and the principles of separation of powers. The term “officers of the United States” is a substantive one requiring that any appointee exercising significant authority pursuant to the laws of the United States be appointed in the manner prescribed by the appointments clause.465 The Court did hold, however, that the Commission so appointed and confirmed could be delegated the powers Congress itself could exercise, that is, those investigative and informative functions that congressional committees carry out were properly vested in this body.

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.” 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?466 “[A]ny appointee[p.514]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 Sec. 2, cl. 2, of [Article II].”467 “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.”468

Supplement: [P. 514, add to text following n.468:]

The Court, in Edmond v. United States,6 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.7 “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.” 8

Thus, officers who are not “inferior Officers” 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, i.e., principal officers.469 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[p.515]every organ in the executive Branch is a department would multiply the number of actors eligible to appoint.”470

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.471 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.”472 The use of the word “like” in this passage suggests that it is not just Cabinet–headed departments that are departments but as well entities that are similar to them in some way, and its reservation of the validity of investing appointing power in the heads of some named 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.473 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.474 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 im[p.516]mediately below the President in the organizational structure of the Executive Branch.”475

The Freytag decision must be considered a tentative rather than a settled construction. The close division of the Court means that new appointments, some of which have already occurred, could change the construction. Further guidance must be awaited.

Supplement: [P. 516, add new footnote to end of first sentence of first full paragraph:]

As the text suggested, Freytag seemed to be a tentative decision, and Edmond v. United States, 520 U.S. 651 (1997) , a unanimous decision written by Justice Scalia, whose concurring opinion in Freytag challenged the Court’s analysis, may easily be read as retreating considerably from it.

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?476 But in Ex parte Siebold,477 the Court sustained Congress’ decision to vest the appointment of federal election supervisors, charged with preventing fraud and rights violations in congressional elections in the South, in courts 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.478


Footnotes

461 However, “Congress’ power . . . is inevitably bounded by the express language of Article II, cl. 2, and unless the method it provides comports with the latter, the holders of those offices will not be ‘Officers of the United States.”’ Buckley v. Valeo, 424 U.S. 1, 138– 139 (1976) (quoted in Freytag v. CIR, 501 U.S. 868, 883 (1991)).
462 See Myers v. United States, 272 U.S. 52, 264–274 (1926) (Justice Brandeis dissenting). Chief Justice Taft in the opinion of the Court in Myers readily recognized the legislative power of Congress to establish offices, determine their functions and jurisdiction, fix the terms of office, and prescribe reasonable and relevant qualifications and rules of eligibility of appointees, always provided “that the qualifications do not so limit selection and so trench upon executive choice as to be in effect legislative designation.” Id., 128–129. For reiteration of Congress’ general powers, see Buckley v. Valeo, 424 U.S. 1, 134–135 (1976); Morrison v. Olson, 487 U.S. 654, 673–677 (1988). And see United States v. Ferriera, 13 How. (54 U.S.) 40, 51 (1851).
463 See data in E. Corwin, op. cit., n.44, 363–365. Congress has repeatedly designated individuals, sometimes by name, more frequently by reference to a particular office, for the performance of specified acts or for posts of a nongovernmental character; e.g., to paint a picture (Jonathan Trumbull), to lay out a town, to act as Regents of Smithsonian Institution, to be managers of Howard Institute, to select a site for a post office or a prison, to restore the manuscript of the Declaration of Independence, to erect a monument at Yorktown, to erect a statue of Hamilton, and so on and so forth. Note, Power of Appointment to Public Office under the Federal Constitution, 42 Harv. L. Rev. 426, 430–431 (1929). In his message of April 13, 1822, President Monroe stated the thesis that, “as a general principle, . . . Congress have no right under the Constitution to impose any restraint by law on the power granted to the President so as to prevent his making a free selection of proper persons for these [newly created] offices from the whole body of his fellow–citizens.” 2 J. Richardson, op. cit., n.42, 698, 701. The statement is ambiguous, but its apparent intention is to claim for the President unrestricted power in determining who are proper persons to fill newly created offices. See the distinction drawn in Myers v. United States, 272 U.S. 52, 128–129 (1926), quoted, op. cit., n.462. And note that in Public Citizen v. U. S. Dept. of Justice, 491 U.S. 440, 482–489 (1989) (concurring), Justice Kennedy suggested the President has sole and unconfined discretion in appointing).
464 The Sentencing Commission, upheld in Mistretta v. United States, 488 U.S. 361 (1989), numbered among its members three federal judges; the President was to select them “after considering a list of six judges recommended to the President by the Judicial Conference of the United States.” Id., 397 (quoting 28 U.S.C. Sec. 991 (a)). The Comptroller General is nominated by the President from a list of three individuals recommended by the Speaker of the House of Representatives and the President pro tempore of the Senate. Bowsher v. Synar, 478 U.S. 714, 727 (1986) (citing 31 U.S.C. Sec. 703 (a)(2)). In Metropolitan Washington Airports Authority v. Citizens for the Abatement of Aircraft Noise, Inc., 501 U.S. 252, 268–269 (1991), the Court carefully distinguished these examples from the particular situation before it that it condemned, but see id., 288 (Justice White dissenting), and in any event it never actually passed on the list devices in Mistretta and Synar. The fault in Airports Authority was not the validity of lists generally, the Court condemning the device there as giving Congress control of the process, in violation of Buckley v. Valeo.
465 Buckley v. Valeo, 424 U.S. 1, 109–143 (1976). The Court took pains to observe that the clause was violated not only by the appointing process but by the confirming process, inclusion of the House of Representatives, as well. Id., 137. See also Metropolitan Washington Airports Auth. v. Citizens for the Abatement of Aircraft Noise, Inc., 501 U.S. 252 (1991).
466 Concurrently, 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. CIR, 501 U.S. 868 (1991) (Court divides 5–to–4 whether an Article I court is a court of law under the clause).
467 Freytag v. CIR, 501 U.S.868, 881 (1991) (quoting Buckley v. Valeo, 424 U.S. 1, 126 (1976)).
468 United States v. Germaine, 99 U.S. 508, 509–510 (1879) (quoted in Buckley v. Valeo, 424 U.S. 1, 125 (1976)). The constitutional definition of an “inferior” officer is wondrously imprecise. See Freytag v. CIR, 501 U.S. 868, 880–882 (1991); Morrison v. Olson, 487 U.S. 654, 670–673 (1988). And see United States v. Eaton, 169 U.S. 331 (1898). There is another category, of course, employees, but these are lesser functionaries subordinate to officers of the United States. Ordinarily, the term “employee” denotes one who stands in a contractual relationship to her employer, but here it signifies all subordinate officials of the Federal Government receiving their appointments at the hands of officials who are not specifically recognized by the Constitution as capable of being vested by Congress with the appointing power. Auffmordt v. Hedden, 137 U.S. 310, 327 (1890). See Go–Bart Importing Co. v. United States, 282 U.S. 344, 352– 353 (1931); Burnap v. United States, 252 U.S. 512, 516–517 (1920); Germaine, supra, 511–512.
469 Freytag v. CIR, 501 U.S. 868, 919 (1991) (Justice Scalia concurring).
470 Freytag v. CIR, 501 U.S. 868, 884–885 (1991).
471 Id., 886 (citing Germaine and Burnap, the opinion clause, Article II, Sec. 2, and the 25th Amendment, which, in its Sec. 4, referred to “executive departments” in a manner that reached only cabinet–level entities). But compare id., 915–922 (Justice Scalia concurring).
472 Id., 886(emphasis supplied).
473 Id., 886–888. Compare id., 915–919 (Justice Scalia concurring).
474 Id., 888–892. This holding was vigorously controverted by the other four Justices. Id., 901–914(Justice Scalia concurring).
475 Id., 918, 919 (Justice Scalia concurring).
476 Ex parte Hennen, 13 Pet. (38 U.S.) 230 (1839). The suggestion was that inferior officers are intended to be subordinate to those in whom their appointment is vested. Id., 257–258; United States v. Germaine, 99 U.S. 508, 509 (1879).
477 100 U.S. 371 (1880).
478 Morrison v. Olson, 487 U.S. 654, 673–677 (1988). See also Young v. United States ex rel. Vuitton et Fils S. A., 481 U.S. 787 (1987) (appointment of private attorneys to act as prosecutors for judicial contempt judgments); Freytag v. CIR, 501 U.S. 868, 888–892 (1991) (appointment of special judges by Chief Judge of Tax Court).

Supplement Footnotes

6 520 U.S. 651 (1997) .
7 Id. at 661–62.
8 Id. 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) .
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