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ArtII.S2.C2.3.11.3 Modern Doctrine on Principal and 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.

In the late twentieth century, in cases addressing the difference between principal and inferior officers, the Court began to emphasize the duties and discretion accompanying each office in a multi-factor analysis.1

In the 1988 case of Morrison v. Olson, the Court considered the constitutionality of the “independent counsel” provisions of the Ethics in Government Act.2 The Act required the Attorney General to conduct a preliminary investigation into potential violations of certain federal criminal laws by certain high-ranking federal officials and to report his findings to a special court created by the act called the Special Division.3 It also authorized the Special Division to appoint an independent counsel upon the Attorney General’s application.4

In considering whether this independent counsel was a principal or an inferior officer, the Court declined to decide “exactly where the line falls” between the two types of officers.5 However, in the Court’s view, “several factors” placed the independent counsel squarely on the “'inferior officer’ side of that line.” 6 First, the Attorney General had the authority to remove the independent counsel, which suggested that the latter was “to some degree ‘inferior’ in rank and authority.” 7 Second, Congress, through the Ethics in Government Act, limited the independent counsel’s role to investigating and prosecuting specific federal crimes, granting him or her no authority to formulate federal policy or to exercise administrative duties apart from those necessary to operate this office.8 Third, the Special Division defined and thereby circumscribed the independent counsel’s prosecutorial jurisdiction to a “limited” sphere.9 And fourth, the independent counsel’s office was temporary in that it terminated upon the conclusion of the investigation.10 The Court held that “these factors relating to the ‘ideas of tenure, duration . . . and duties’ of the independent counsel are sufficient to establish that appellant is an ‘inferior’ officer in the constitutional sense.” 11

In Edmond v. United States, the Supreme Court considered whether judges of the Coast Guard Court of Criminal Appeals (Coast Guard Court) were principal or inferior officers in order to determine the constitutionality of the Secretary of Transportation’s appointments of civilian judges to that court.12

, 116 Stat. 2135, 2249 (codified at 6 U.S.C. § 468(b)). The Supreme Court began by observing that its cases up to that point had “not set forth an exclusive criterion for distinguishing between principal and inferior officers” 13 and that Coast Guard Court judges did not share all of the characteristics of officials previously held to be inferior officers.14 For instance, the position of Coast Guard Court judge was not limited in tenure or jurisdiction in the same way as the independent counsel position deemed to be an inferior office in Morrison.15 Although the Supreme Court acknowledged that the Coast Guard Court judges exercised “significant authority on behalf of the United States” (and were therefore officers), it held that such authority is a shared feature of inferior and principal officers and “marks, not the line between principal and inferior officer[s] . . . [but] the line between officer and non-officer.” 16 Departing from its functional analysis in Morrison, the Court applied a more formal test—inferior officers are those “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.” 17

The Supreme Court proceeded to identify two entities that directed and supervised the Coast Guard Court judges’ work.18 The first, the Judge Advocate General, exercised “administrative oversight” over the court by prescribing procedural rules for the court and formulating policies applicable to appeals of court-martial cases.19 The Judge Advocate General also had authority to remove Coast Guard Court judges from their judicial assignments at will.20 The Supreme Court observed that the second entity exercising supervisory authority—the Court of Appeals for the Armed Forces (Appeals Court)—reviewed decisions of the Coast Guard Court in certain circumstances. In such cases, the Appeals Court deferred to the factual findings of the Coast Guard Court when there was “some competent evidence in the record to establish each element of the offense beyond a reasonable doubt” but ultimately had the power to reverse the Coast Guard Court’s decisions.21 The Supreme Court held that in view of the supervisory roles of the Judge Advocate General and the Appeals Court, and notwithstanding the limitations on the latter’s scope of review, the Coast Guard Court judges had “no power to render a final decision on behalf of the United States unless permitted to do so by other executive officers,” and thus were inferior, not principal, officers.22 Accordingly, the Court affirmed the validity of the Secretary of Transportation’s civilian appointments to the Coast Guard Court.23

In 2010, the Supreme Court decided Free Enterprise Fund v. Public Company Accounting Oversight Board (PCAOB or Board), a case centrally concerned with the constitutionality of limitations on the removal of members of the PCAOB, a board overseen by the Securities and Exchange Commission (SEC) and charged with, among other things, enforcing federal securities laws and promulgating professional accounting standards.24 The Court first invalidated a statutory restriction on removing the PCAOB members, concluding that this good-cause removal protection violated Article II when combined with a second good-cause restriction on removing SEC members.25 With this provision severed from the statute, the Court then rejected an additional constitutional challenge to the method of appointment of PCAOB members: the plaintiffs argued that, due to the significance of the duties the PCAOB members had, they were principal officers who must be appointed by the President and confirmed by the Senate.26 The Court held, however, that the Board members were inferior, rather than principal, officers based on its reasoning in Edmond.27 Specifically, the Court held that “[g]iven that the Commission is properly viewed, under the Constitution, as possessing the power to remove Board members at will, and given the Commission’s other oversight authority, we have no hesitation in concluding that under Edmond the Board members are inferior officers.” 28

The Court considered the potential for review by a superior, Executive Branch official to be similarly critical in its 2021 decision in United States v. Arthrex, Inc..29 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.30 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.31

See, e.g., Weiss v. United States, 510 U.S. 163, 194 (1994) (Souter, J., concurring) (concluding that military judges were inferior officers under the functional reasoning of Morrison). See supra Intro.7.2 Separation of Powers Under the Constitution. back
487 U.S. 654, 659 (1988). back
Id. at 660–61. back
Id. at 661. back
Id. at 671. back
Id. back
Id. back
Id. at 671–72. back
Id. at 661, 672. back
Id. at 672. back
Id. (internal citation omitted) (quoting United States v. Germaine, 99 U.S. 508, 511 (1878)). The Court went on to hold that Congress had the authority to vest the power to appoint the independent counsel in the Special Division, a “specially created federal court,” because the Appointments Clause allows Congress to vest the appointment of inferior officers in, among other entities, the “Courts of Law.” Id. at 673–76. back
520 U.S. 651, 658 (1997). At the time, the Coast Guard was situated within the Department of Transportation during times of peace. In 2002, Congress transferred the Coast Guard to the Department of Homeland Security for peacetime operations. Homeland Security Act of 2002, Pub. L. No.
, 116 Stat. 2135, 2249
(codified at 6 U.S.C. § 468(b)). back
Edmond, 520 U.S. at 661. back
See id. back
Id. back
Id. at 662 (citing Buckley v. Valeo, 424 U.S. 1, 126 (1976) (per curiam), superseded by statute, Bipartisan Campaign Reform Act of 2002, Pub. L. No.
, 116 Stat. 81
). back
Id. at 662–63. See Intro.7.2 Separation of Powers Under the Constitution. back
Edmond, 520 U.S. at 664. back
Id. back
Id. back
Id. at 654–55. back
Id. at 655. back
Id. at 666. back
561 U.S. 477, 485–86 (2010). back
The Court held that Congress could constitutionally limit the President’s power to remove a principal officer at will in certain circumstances, and it could likewise limit a principal officer’s power to remove an inferior officer at will, but it could not do both. Id. at 484, 495–96. Such “dual” limitations on removal were unconstitutional. Id. at 484, 492. For additional discussion of the Free Enterprise Fund decision as it relates to the removal of officers, see ArtII.S2.C2.3.15.7 Twenty-First Century Cases on Removal. back
Free Enter. Fund, 561 U.S. at 510. The Court held that the multi-member Commission is a department head for purposes of the Appointments Clause. Id. at 510–13. back
Id. at 510. back
Id. at 503–04 ( “The Commission may, for example, approve the Board’s budget, § 7219(b), issue binding regulations, §§ 7202(a), 7217(b)(5), relieve the Board of authority, § 7217(d)(1), amend Board sanctions, § 7217(c), or enforce Board rules on its own, §§ 7202(b)(1), (c).” ). back
No. 19-1434 (U.S. June 21, 2021). back
Id. at 14. back
Id. at 22. back