Appointments and Congressional Regulation of Offices
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 Court of Law, or in the Heads of Departments.
It has never been questioned that the Constitution distinguishes between the creation of an office and appointment thereto. The former is by law and takes place by virtue of Congress’s 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.525 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.526 Indeed, it has contrived at times to designate a definite eligibility, thereby virtually usurping the appointing power.527 Despite 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.528
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 principle 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.529 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.” The 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?530 “[A]ny appointee 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 § 2, cl. 2, of [Article II].”531 “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.”532
In Edmond v. United States,533 the Court 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.534 “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.”535
Thus, officers who are not “inferior Officers” are principal officers who 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.536 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 every organ in the executive Branch is a department would multiply the number of actors eligible to appoint.”537
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.538 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.”539 The use of the word “like” in this passage suggests that it is not just Cabinet-headed departments that are departments but also entities that are similar to them in some way, and its reservation of the validity of investing appointing power in the heads of some unnamed 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.540 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.541 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 immediately below the President in the organizational structure of the Executive Branch.”542
The Freytag decision must be considered a tentative rather than a settled construction.543
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?544 No, the Court said subsequently. In Ex parte Siebold,545 the Court sustained Congress’s decision to vest in courts the appointment of federal election supervisors, charged with preventing fraud and rights violations in congressional elections in the South, 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.546
Congressional Regulation of Conduct in Office.—Congress has very broad powers in regulating the conduct in office of officers and employees of the United States, and this authority extends to regulation of political activities. By an act passed in 1876, it prohibited “all executive officers or employees of the United States not appointed by the President, with the advice and consent of the Senate, . . . from requesting, giving to, or receiving from, any other officer or employee of the Government, any money or property or other thing of value for political purposes.”547 The validity of this measure having been sustained,548 the substance of it, with some elaborations, was incorporated in the Civil Service Act of 1883.549 The Lloyd-La Follette Act in 1912 began the process of protecting civil servants from unwarranted or abusive removal by codifying “just cause” standards previously embodied in presidential orders, defining “just causes” as those that would promote the “efficiency of the service.”550 Substantial changes in the civil service system were instituted by the Civil Service Reform Act of 1978, which abolished the Civil Service Commission and delegated its responsibilities, its management, and its administrative duties to the Office of Personnel Management and its review and protective functions to the Merit Systems Protection Board.551
Until 1993, § 9(a) of the Hatch Act552 prohibited any person in the executive branch, or any executive branch department or agency, except the President and the Vice President and certain “policy determining” officers, to “take an active part in political management or political campaigns,” although employees had been permitted to “express their opinions on all political subjects and candidates.” In United Public Workers v. Mitchell,553 these provisions were upheld as “reasonable” against objections based on the First, Fifth, Ninth, and Tenth Amendments. The Hatch Act Reform Amendments of 1993, however, substantially liberalized the rules for political activities during off-duty hours for most executive branch employees, subject to certain limitations on off-duty hours activities and express prohibitions against on-the-job partisan political activities.554
The Loyalty Issue.—By section 9A of the Hatch Act of 1939, a federal employee was disqualified from accepting or holding any position in the Federal Government or the District of Columbia if he belonged to an organization that he knew advocated the overthrow of our constitutional form of government.555 The 79th Congress followed up this provision with a rider to its appropriation acts forbidding the use of any appropriated funds to pay the salary of any person who advocated, or belonged to an organization which advocated the overthrow of the government by force, or of any person who engaged in a strike or who belonged to an organization which asserted the right to strike against the government.556 These provisos ultimately wound up in permanent law requiring all government employees to take oaths disclaiming either disloyalty or strikes as a device for dealing with the government as an employer.557 Along with the loyalty-security programs initiated by President Truman558 and carried forward by President Eisenhower,559 these measures reﬂected the Cold War era and the fear of subversion and espionage following the disclosures of several such instances here and abroad.560
Financial Disclosure and Limitations.—The Ethics in Government Act of 1978561 requires high-level federal personnel to make detailed, annual disclosures of their personal financial affairs.562 The aims of the legislation are to enhance public confidence in government, to demonstrate the high level of integrity of government employees, to deter and detect conﬂicts of interest, to discourage individuals with questionable sources of income from entering government, and to facilitate public appraisal of government employees’ performance in light of their personal financial interests.563 Despite assertions that employee privacy interests are needlessly invaded by the breadth of disclosures, to date judicial challenges have been unsuccessful, with one exception.564 The one provision that was invalidated was section 501(b),565 which prohibits Members of Congress and officers or employees of the government, regardless of salary level, from receiving any “honorarium,” which the statute defines as “a payment of money or any thing of value for an appearance, speech or article (including a series of appearances, speeches, or articles if the subject matter is directly related to the individual’s official duties or the payment is made because of the individual’s status with the Government) . . . .”566 The Supreme Court held that this prohibition, even interpreted in accordance with the standards applicable to speech restrictions on government employees, was over-broad, as “[t]he speculative benefits the honoraria ban may provide the government are not sufficient to justify this crudely crafted burden of respondents’ freedom to engage in expressive activities.”567
Legislation Increasing Duties of an Officer.—Finally, “Congress may increase the powers and duties of an existing office without thereby rendering it necessary that the incumbent should be again nominated and appointed.”568 Such legislation does not constitute an attempt by Congress to seize the appointing power.
525 However, “Congress’s 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, 138–39 (1976) (quoted in Freytag v. Commissioner, 501 U.S. 868, 883 (1991)). The 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 was impermissible and their actions were not salvageable under the de facto officer doctrine. Ryder v. United States, 515 U.S. 177 (1995).
526 See Myers v. United States, 272 U.S. 52, 264–74 (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. at 128–29. For reiteration of Congress’s general powers, see Buckley v. Valeo, 424 U.S. 1, 134–35 (1976); Morrison v. Olson, 487 U.S. 654, 673–77 (1988). See also United States v. Ferreira, 54 U.S. (13 How.) 40, 51 (1851).
527 See data in E. Corwin, supra at 363–65. 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 (Johnathan 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, 430–31 (1929). In his message of April 13, 1822, President Monroe stated that, “as a general principle, . . . Congress have [sic] 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 supra at 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, 128–29 (1926), quoted supra. And note that in Public Citizen v. U.S. Department of Justice, 491 U.S. 440, 482–89 (1989) (concurring), Justice Kennedy suggested the President has sole and unconfined discretion in appointing).
528 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. at 397 (quoting 28 U.S.C. § 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. § 703(a)(2)). In Metropolitan Washington Airports Auth. v. Citizens for the Abatement of Airport Noise, 501 U.S. 252, 268–69 (1991), the Court carefully distinguished these examples from the particular situation before it that it condemned, but see id. at 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.
529 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. at 137. See also Metropolitan Washington Airports Auth. v. Citizens for the Abatement of Aircraft Noise, 501 U.S. 252 (1991).
530 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. Commissioner, 501 U.S. 868 (1991) (Court divides 5-to-4 whether an Article I court is a court of law under the clause).
531 Freytag v. Commissioner, 501 U.S.868, 881 (1991) (quoting Buckley v. Valeo, 424 U.S. 1, 126 (1976)).
532 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. Commissioner, 501 U.S. 868, 880–882 (1991); Morrison v. Olson, 487 U.S. 654, 670–73 (1988). See also 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, 352–53 (1931); Burnap v. United States, 252 U.S. 512, 516–17 (1920); Germaine, 99 U.S. at 511–12.
533 520 U.S. 651 (1997).
534 520 U.S. at 661–62.
535 520 U.S. 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).
536 Freytag v. Commissioner, 501 U.S. 868, 919 (1991) (Justice Scalia concurring).
537 Freytag v. Commissioner, 501 U.S. 868, 884–85 (1991).
538 501 U.S. at 886 (citing Germaine and Burnap, the Opinion Clause (Article II, § 2), and the 25th Amendment, which, in its § 4, referred to “executive departments” in a manner that reached only cabinet-level entities). But compare id. at 915–22 (Justice Scalia concurring).
539 501 U.S. at 886 (emphasis added).
540 501 U.S. at 886–88. Compare id. at 915–19 (Justice Scalia concurring).
541 501 U.S. at 888–92. This holding was vigorously controverted by the other four Justices. Id. at 901–14 (Justice Scalia concurring).
542 501 U.S. at 918, 919 (Justice Scalia concurring).
543 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.
544 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).
545 100 U.S. 371 (1880).
546 Morrison v. Olson, 487 U.S. 654, 673–77 (1988). 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); Freytag v. Commissioner, 501 U.S. 868, 888–92 (1991) (appointment of special judges by Chief Judge of Tax Court).
547 19 Stat. 143, 169 (1876).
548 Ex parte Curtis, 106 U.S. 371 (1882). Chief Justice Waite’s opinion extensively reviews early congressional legislation regulative of conduct in office. Id. at 372–73.
549 22 Stat. 403 (the Pendleton Act). On this law and subsequent enactments that created the civil service as a professional cadre of bureaucrats insulated from politics, see Developments in the Law: Public Employment, 97 Harv. L. Rev. 1611, 1619–1676 (1984).
550 Act of Aug. 24, 1912, § 6, 37 Stat. 539, 555, codified as amended at 5 U.S.C. § 7513. The protection was circumscribed by the limited enforcement mechanisms under the Civil Service Commission, which were gradually strengthened. See Developments, supra, 97 Harv. L. Rev., 1630–31.
551 92 Stat. 1111 (codified in scattered sections of titles 5, 10, 15, 28, 31, 38, 39, and 42 U.S.C.). For the long development, see,Developments,supra, 97 Harv. L. Rev. at 1632–1650.
552 53 Stat. 1147, 1148 (1939), then 5 U.S.C. § 7324(a). The 1940 law, § 12(a), 54 Stat. 767–768, applied the same broad ban to employees of federally funded state and local agencies, but this provision was amended in 1974 to restrict state and local government employees in only one respect: running for public office in partisan elections. Act of Oct. 15, 1974, Pub. L. 93–443, § 401(a), 88 Stat. 1290, 5 U.S.C. § 1502.
553 330 U.S. 75 (1947). See also Civil Serv. Comm’n v. National Ass’n of Letter Carriers, 413 U.S. 548 (1973), in which the constitutional attack was renewed, in large part based on the Court’s expanding free speech jurisprudence, but the act was again sustained. A “little Hatch Act” of a state, applying to its employees, was sustained in Broadrick v. Oklahoma, 413 U.S. 601 (1973).
554 Pub. L. 103–94, § 2(a), 107 Stat. 1001 (1993), 5 U.S.C. §§ 7321–7326. Executive branch employees (except those appointed by the President, by and with the advice and consent of the Senate) who are listed in § 7323(b)(2), which generally include those employed by agencies involved in law enforcement or national security, remain under restrictions similar to the those in the old Hatch Act on taking an active part in political management or political campaigns.
555 53 Stat. 1147, 5 U.S.C. § 7311.
556 See Report of the Special Committee on The Federal Loyalty-Security Program, The Association of the Bar of the City of New York (New York: 1956), 60.
557 5 U.S.C. § 3333. The loyalty disclaimer oath was declared unconstitutional in Stewart v. Washington, 301 F. Supp. 610 (D.D.C. 1969), and the did not appeal. The strike disclaimer oath was voided in National Ass’n of Letter Carriers v. Blount, 305 F. Supp. 546 (D.D.C. 1969); after noting probable jurisdiction, 397 U.S. 1062 (1970), the Court dismissed the appeal on the government’s motion. 400 U.S. 801 (1970). The actual prohibition on strikes, however, has been sustained. United Fed’n of Postal Clerks v. Blount, 325 F. Supp. 879 (D.D.C. 1971), aff’d per curiam, 404 U.S. 802 (1971).
558 E.O. 9835, 12 Fed. Reg. 1935 (1947).
559 E.O. 10450, 18 Fed. Reg. 2489 (1953).
560 See generally, Report of the Special Committee on The Federal Loyalty-Security Program, The Association of the Bar of the City of New York (New York: 1956).
561 Pub. L. 95–521, tits. I–III, 92 Stat. 1824–1861. The Act was originally codified in three different titles, 2, 5, and 28, corresponding to legislative, executive, and judicial branch personnel, but by Pub. L. 101–194, title II, 103 Stat. 1725 (1989), one comprehensive title, as amended, applying to all covered federal personnel was enacted. 5 U.S.C. App. §§ 101–111.
562 See Developments, supra, 97 Harv. L. Rev. at 1660–1669.
563 97 Harv. L. Rev. at 1661 (citing S. REP. 170, 95th Cong., 2d sess. (1978), 21– 22).
564 97 Harv. L. Rev. at 1664–69. The Ethics in Government Act also expanded restrictions on post-employment by imposing bans on employment, varying from a brief period to an out-and-out lifetime ban in certain cases. Id. at 1669–76. The 1989 revision enlarged and expanded on these provisions. 103 Stat. 1716–1724, amending 18 U.S.C. § 207.
565 92 Stat. 1864 (1978), as amended, 103 Stat. 1760 (1989), as amended, 5 U.S.C. App. § 501(b).
566 5 U.S.C. App. § 505(3).
567 United States v. NTEU, 513 U.S. 454, 477 (1995).
568 Shoemaker v. United States, 147 U.S. 282, 301 (1893). The Court noted that the additional duties at issue were “germane to the offices.” Id.