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.

Once an individual has been appointed to an office pursuant to the Appointments Clause, questions can arise concerning the circumstances in which an officer’s duties may be altered after the officer’s appointment. In the 1893 case of Shoemaker v. United States, the Court examined a statute that established a commission to oversee development of Rock Creek Park in the District of Columbia.1 The Commission included two government officials who had already been appointed by the President and confirmed by the Senate to other positions, but the plaintiffs argued that they needed to be separately appointed and confirmed in order to serve on the Commission.2 They argued that while Congress may create offices, it may not circumvent the Appointments Clause by vesting additional powers in an existing officer. The Court ruled that because the officers in question had already been appointed through advice and consent, new duties “germane” to their offices could be assigned to them without a subsequent appointment and confirmation.3 The Court rejected the appointments challenge because the new duties assigned to the officers were not “dissimilar to, or outside of the sphere of, their official duties.” 4 Congress thus enjoys some discretion to “increase the power and duties of an existing office” without the necessity of a new appointment.5

Similarly, in the 1994 case of Weiss v. United States, the Court considered whether the selection of military judges to try criminal cases in the military justice system violated the Appointments Clause.6 Like the commissioners in Shoemaker, the military judges were already appointed by the President and confirmed by the Senate when they received their commissions as military officers.7 Selection for the role of military judges was made by the Judge Advocate General for each of the military service branches.8 The question in Weiss was whether serving as a military judge necessitated another appointment consistent with the Appointments Clause.9 The Court distinguished the situation in Shoemaker. Shoemaker's germaneness test, the Court explained, helped to “ensure that Congress was not circumventing the Appointments Clause by unilaterally appointing an incumbent to a new and distinct office.” 10 Unlike in Shoemaker where Congress had assigned specific, incumbent officers to new roles, here Congress had authorized the selection of an “indefinite number” of military judges “from among hundreds or perhaps thousands” of qualified commissioned officers.11 Thus, in Weiss, the Court found “no ground for suspicion” that “Congress was trying to both create an office and also select a particular individual to fill” that office.12

Further, even if Shoemaker’s germaneness standard applied, the Court concluded that the test was nevertheless satisfied in Weiss.13 All military officers, the Court reasoned, “play a role in the operation of the military justice system,” as they are authorized to impose punishments and act as a summary court-martial or president of a court-martial without a judge.14 In the Court’s view, the military judge position is less distinct from other positions in the military than a judge in civilian society is from other civilian offices. Unless detailed to a court-martial, military judges have no more authority than another commissioned military officer.15 The Court concluded that the Appointments Clause did not require a separate appointment for military officers to the position of military judge.16

The Constitution thus does not give Congress unfettered discretion to augment the powers of existing offices. However, it may permit Congress to add duties that are germane to an office or to make an existing category of officers eligible for a new assignment akin to their existing duties, without requiring a new appointment. Given the paucity of case law on these issues, there may be limits that have not received extensive treatment by the Supreme Court. For instance, the Court has not had occasion to squarely address the hypothetical situation where Congress grants additional duties to an inferior officer (who was not subject to Senate advice and consent) such that the new duties transform the position to that of a principal officer.17

Footnotes

1

147 U.S. 282, 298–99 (1893).

2

Id. at 300–01.

3

Id.

4

Id. at 301.

5

Id.

6

510 U.S. 163, 165–69 (1994).

7

Id. at 170.

8

Id. at 168–69. The Court declined to rule on the constitutionality of a statutory provision authorizing the selection of civilians as military judges as that issue was not presented here, as the relevant military judges were military officers. Id. at 170 n.4. See 10 U.S.C. § 866(a)(1).

9

Weiss, 510 U.S. at 165.

10

Id. at 174.

11

Id.

12

Id.

13

Id.

14

Id. at 175–76.

15

Id.

16

Id. at 176. See also Ortiz v. United States, No. 16-1423 (U.S. June 22, 2018) (rejecting the argument that a military judge’s dual service on the military Court of Criminal Appeals (CCA) and the Court of Military Commission Review (CMCR) violated the Appointments Clause).

17

See generally Weiss, 510 U.S. at 182–83 (Souter, J., concurring) (explaining that such a situation, though not presented in the case, would violate the Constitution).