Distinguishing Between Officers and Non-Officers

ArtII.S2.C2.2.1.3.2 Distinguishing Between Officers and Non-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.

As a practical matter, the Appointments Clause not only separates principal officers from inferior ones, but also distinguishes both types of constitutional officers from a third class of government officials: mere employees.1 The general measure established by Buckley v. Valeo is that “any appointee exercising significant authority pursuant to the laws of the United States is an 'Officer of the United States.'” 2 In Freytag v. Commissioner, the Court applied this standard to hold that special trial judges (STJs) were inferior officers rather than mere employees.3 The government had argued in part that the STJs were employees because, with respect to the particular agency actions being challenged, STJs lacked “authority to enter a final decision.” 4 The Court rejected this argument, saying that it “ignores the significance of the duties and discretion that special trial judges possess.” 5 The Court noted that “the duties, salary, and means of appointment” of STJs were established by statute, and that STJs did not operate on a “temporary, episodic basis.” 6 The Court also emphasized that STJs exercised “significant discretion” in carrying out a number of “important functions,” including the ability to “take testimony, conduct trials, rule on the admissibility of evidence, and . . . enforce compliance with discovery orders.” 7 The Court held in the alternative that STJs were officers because the government had conceded that, with respect to other duties, STJs did “act as inferior officers who exercise independent authority.” 8 In the view of the Court, STJs could not be “inferior officers for purposes of some of their duties . . . , but mere employees with respect to other responsibilities.” 9

The Court again considered the proper test to distinguish inferior officers from mere employees in Lucia v. Securities and Exchange Commission (SEC).10 That case involved a challenge to the status of the administrative law judges (ALJs) of the SEC.11 The Court acknowledged that “Buckley's 'significant authority' test” is phrased in “general terms” that might one day need refinement, but ultimately concluded that it did not need to further elaborate on that test to resolve the dispute before it, because the SEC ALJs were “near-carbon copies” of the Freytag STJs.12 Without stating that any one factor was either necessary or sufficient to confer status as a constitutional “officer,” the Court held that the SEC ALJs met every factor considered by the Court in Freytag. Specifically, the Court noted that ALJs (1) hold “a continuing office established by law” ;13 (2) exercise “'significant discretion' when carrying out the same 'important functions,'” including the ability to take testimony, conduct trials, rule on the admissibility of evidence, and enforce compliance with discovery orders;14 and (3) issue decisions with “independent effect.” 15 Accordingly, the Court held that the cases were indistinguishable.16 Because the ALJs were inferior officers, their hiring by SEC staff members violated the Constitution.17

Footnotes
1
See, e.g., Lucia v. SEC, 585 U.S. ___, No. 17–130, slip op. at 5 (2018). See also Burnap v. United States, 252 U.S. 512, 516 (1920). back
2
424 U.S. 1, 126 (1976) (per curiam) (quoting U.S. Const. art. II, § 2, cl. 2). See also Go-Bart Importing Co. v. United States, 282 U.S. 344, 352–53 (1931); United States v. Germaine, 99 U.S. 508, 510 (1879). back
3
501 U.S. 868, 881 (1991). back
4
Id. back
5
Id. back
6
Id. See also Auffmordt v. Hedden, 137 U.S. 310, 327 (1890) (holding that merchant appraiser is not an officer because the “position is without tenure, duration, continuing emolument, or continuous duties, and he acts only occasionally and temporarily” ); United States v. Germaine, 99 U.S. 508, 510 (1879) (holding that civil surgeon is not an officer after noting that “the duties are not continuing and permanent, and they are occasional and intermittent” ). back
7
501 U.S. at 881–82. back
8
Id. at 882. back
9
Id. back
10
585 U.S. ___, No. 17-130, slip op. at 5 (2018). back
11
Id. at 1. back
12
Id. at 6. back
13
Id. at 8. back
14
Id. at 8–9 (quoting Freytag v. Commissioner, 501 U.S. 868, 882 (1991)). back
15
Id. at 9. back
16
Id. at 10. back
17
Id. at 5, 12. back

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