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.

A related, recurring issue in the Court’s Appointments Clause jurisprudence is the meaning of the terms “Heads of Departments” and “Courts of Law.” For example, the Court in Freytag v. Commissioner analyzed whether the United States Tax Court was a “department” (headed by the Chief Judge) or a “court of law” in discussing the appointing authority for special trial judges of that court.1 All nine Justices agreed that the Chief Judge could constitutionally appoint special trial judges, but they disagreed on the rationale. The five Justices in the majority opined that the Tax Court could not be a department because “departments” usually were denominated as such and headed by a cabinet officer.2 The Court also observed that “[c]onfining the term ‘Heads of Departments’ . . . to executive divisions like the Cabinet-level departments constrains the distribution of the appointment power” because “Cabinet-level departments are limited in number and easily identified” and their heads “are subject to the exercise of political oversight and share the President’s accountability to the people.” 3 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.4 The other four Justices would have held that the Tax Court, as an independent establishment in the Executive Branch, was a “Department” for purposes of the Appointments Clause.5

The Court has also indicated that for purposes of the Appointments Clause, “Heads of Departments” can be understood more broadly than simply applying to the head of a traditional Cabinet-level agency. In Free Enterprise Fund v. Public Company Accounting Oversight Board, the Court invalidated as unconstitutional the combination of two layers of removal protection for members of the PCAOB.6 The underlying statute provided that PCAOB members could only be removed for cause by the Securities and Exchange Commission (SEC). But the SEC members themselves could not be removed by the President except for cause. After invalidating the statutory removal protection for the PCAOB members, the Court ruled that appointment by the SEC of the PCAOB members was permissible under the Constitution.7

Because the Court had invalidated the removal protections for the PCAOB members, they were now removable at will by the SEC. And combined with the other oversight authority the SEC had over the PCAOB, according to its reasoning in Edmond v. United States, discussed earlier,8 the Court concluded that the Board members were inferior officers eligible to be appointed by head of a department under the Appointments Clause.9 Finally, the Court ruled that because the SEC “is a freestanding component of the Executive Branch, not subordinate to or contained within any other such component,” the SEC members qualified as a “Head” of a “Department” under the Appointments Clause.10

Footnotes

1

Freytag v. Comm’r, 501 U.S. 868, 884 (1991).

2

Id.

3

Id. at 886

4

Id. at 890–92.

5

Id. at 901 (Scalia, J., concurring in part and concurring in the judgment).

6

See Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 484 (2010).

7

Id. at 510–13.

8

See ArtII.S2.C2.3.11.3 Modern Doctrine on Principal and Inferior Officers.

9

Free Enter. Fund, 561 U.S. at 510.

10

Id. at 511.