ArtII.S2.C2.3.6 Creation of Federal Offices

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.

The Constitution gives Congress substantial power to establish federal government offices. As an initial matter, the Constitution vests the legislative power in Congress.1 Article I bestows on Congress certain specified, or enumerated, powers.2 The Court has recognized that these powers are supplemented by the Necessary and Proper Clause, which provides Congress with “broad power to enact laws that are ‘convenient, or useful’ or ‘conducive’ to [the] beneficial exercise” of its more specific authorities.3 The Supreme Court has observed that the Necessary and Proper Clause authorizes Congress to establish federal offices.4

, 116 Stat. 81. Congress accordingly enjoys broad authority to create government offices to carry out various statutory functions and directives.5 The legislature may establish government offices not expressly mentioned in the Constitution in order to carry out its enumerated powers.6

The Appointments Clause supplies the method of appointment for certain specified officials, but also for “other [o]fficers” whose positions are “established by [l]aw.” Although principal officers must be nominated by the President and confirmed by the Senate, Congress “may by [l]aw” place the appointing power for inferior officers with the President alone, a department head, or a court.7 As this section will explain, the Supreme Court has recognized Congress’s discretion to establish a wide variety of governmental entities in the Executive, Legislative, and Judicial Branches.

Congress’s authority to establish offices is limited by the terms of the Appointments Clause. The structure of federal agencies must comply with the requirement that the President appoint officers, subject to Senate confirmation, although the appointment of “inferior officers” may rest with the President alone, department heads, or the courts.8 More broadly, the Supreme Court has made clear that the Constitution imposes important limits on Congress’s ability to influence or control the actions of officers once they are appointed. Likewise, it is widely believed that the President must retain a certain amount of independent discretion in selecting officers that Congress may not impede. These principles ensure that the President may fulfill his constitutional duty under Article II to “take [c]are” that the laws are faithfully executed.9

U.S. Const. art. I, § 1. back
Id. art. I; United States v. Morrison, 529 U.S. 598, 607 (2000). back
United States v. Comstock, 560 U.S. 126, 134 (2010) (quoting McCulloch v. Maryland, 17 U.S. (Wheat.) 316, 413, 418 (1819)). See ArtI.S8.C18.1 Overview of Necessary and Proper Clause. back
See Freytag v. Comm’r, 501 U.S. 868, 883 (1991) (noting “Congress’s authority to create offices and to provide for the method of appointment to those offices” ); Buckley v. Valeo, 424 U.S. 1, 138 (1976) (per curiam) ( “Congress may undoubtedly under the Necessary and Proper Clause create ‘offices’ in the generic sense and provide such method of appointment to those ‘offices’ as it chooses.” ), superseded by statute, Bipartisan Campaign Reform Act of 2002, Pub. L. No.
, 116 Stat. 81
. back
See Myers v. United States, 272 U.S. 52, 129 (1926) ( “To Congress under its legislative power is given the establishment of offices, the determination of their functions and jurisdiction, the prescribing of reasonable and relevant qualifications and rules of eligibility of appointees, and the fixing of the term for which they are to be appointed and their compensation—all except as otherwise provided by the Constitution.” ). back
See Freytag, 501 U.S. at 883; Buckley, 424 U.S. at 138. back
U.S. Const. art. II, § 2, cl. 2. back
U.S. Const. art. II, § 2, cl. 2. back
U.S. Const. art. II, § 3. back