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 cases arising in the nineteenth century and the early twentieth century, the Supreme Court—when it analyzed the issue at all—considered a range of factors in determining whether an official was a principal or an inferior officer, including who appointed the individual, the nature and purpose of the position established by Congress, the historical practice surrounding the appointment of such officials, and the practical consequences of requiring a particular method of appointment.1 The following cases illustrate the Court’s varied approaches to the question.

In Ex parte Hennen, the Supreme Court considered the authority of the U.S. District Court for the Eastern District of Louisiana (Louisiana district court) to appoint, and later to remove, the clerk of that court.2 The Court held that without question, “a clerk is one of the inferior officers contemplated by [the] provision” in the Appointments Clause allowing Congress to vest the appointment of inferior officers in the courts of law.3 The Court appeared to base its holding on the fact that Congress, through a series of statutes, established the Louisiana district court and directed the judge of that court to appoint a clerk.4 In other words, Congress may have thought that clerks did not need to be appointed by the President because they did not constitute principal officers.

In Ex parte Siebold, the Supreme Court considered, among other issues, whether Congress had the authority to enact a law that required federal circuit courts to appoint election supervisors, who would monitor voting precincts within states where elections for congressional office were held. The challengers alleged that the election supervisors’ duties were “entirely executive” (rather than judicial) in nature, so courts should not be permitted to appoint such officers.5 The Court analyzed the constitutionality of the allegedly interbranch appointments on the apparent assumption that election supervisors were inferior officers.6 The Court reasoned that although “[i]t is no doubt usual and proper to vest the appointment of inferior officers in that department of the government, executive or judicial, or in that particular executive department to which the duties of such officers appertain,” the Constitution does not contain an “absolute requirement to this effect.” 7

Just before the turn of the century, in United States v. Eaton, the Supreme Court considered the constitutionality of a statute allowing the President to “provide for the appointment of vice-consuls . . . in such manner and under such regulations as he shall deem proper,” in view of the Appointments Clause’s requirement of presidential nomination and Senate confirmation for the appointment of “consuls.” 8 The Court held that vice-consuls, as defined in the statute, were inferior officers.9 The Court looked to the nature of the office and noted that it was temporary and subordinate to other offices. In particular, the President could only appoint vice-consuls in temporary situations, when there was an absence or vacancy. Even though vice-consuls assumed the duties of their superior officers in those circumstances,10 the Court reasoned that the delegation was “for a limited time and under special and temporary conditions,” and thus did not “transform[ ]” the vice-consuls into principal officers.11

The Court also examined historical practices concerning the vice-consul position. The Court noted that while vice-consuls were nominated by the President and confirmed by the Senate in “the earlier periods of the Government,” those vice-consuls served as “permanent and in reality principal officers.” 12 The Executive’s prevailing practice in the case of consular office vacancies was to pay the acting officials as “de facto officers” for their temporary service, without requiring an appointment.13 Finally, the Court expressed concern that “the discharge of administrative duties would be seriously hindered” if the Court invalidated “any and every delegation of power to an inferior to perform under any circumstances or exigency the duties of a superior officer.” 14

The Court thus concluded that the Appointments Clause’s reference to “consuls” (who appear to qualify as principal officers) “does not embrace a subordinate and temporary office like that of vice-consul as defined in the statute.” 15 Because vice-consuls qualified as inferior officers, Congress could place the power to appoint them with the President alone as provided in the Appointments Clause.

In its 1931 decision in Go-Bart Importing Co. v. United States, the Court determined that a United States commissioner was an inferior officer based on his relationship with the federal district court that appointed him.16 At that time, a federal statute authorized federal district courts to appoint commissioners, and authorized the commissioners to perform numerous functions, including making arrests, imposing pretrial imprisonment or bail, issuing warrants, and enforcing the arbitration awards of foreign consuls in certain disputes.17 The Court held that, at least on the facts of the Go-Bart case, in considering the commissioner’s ability to issue an arrest warrant and conducted an arraignment, the commissioner was an inferior officer.18 The Court reasoned that all of the commissioner’s acts “were preparatory and preliminary to a consideration of the charge by a grand jury and . . . [upon indictment,] the final disposition of the case in the district court.” 19 In this regard, the Court reasoned, the commissioner “acted not as a court, or as a judge of any court, but as a mere officer of the district court in proceedings of which that court had authority to take control at any time.” 20

As the foregoing cases demonstrate, no clear line separated principal from inferior officers during this time.

Footnotes

1

See, e.g., United States v. Germaine, 99 U.S. 508, 510 (1878) (considering whether a civil surgeon appointed by the Commissioner of Pensions was an “Officer of the United States” by examining who appointed him and the nature of his employment); Rice v. Ames, 180 U.S. 371, 378 (1901) (holding that Congress had the authority to invest federal courts with the power to appoint “commissioners,” whose position Congress created and “who are not judges in the constitutional sense” ); see generally John M. Burkoff, Appointment and Removal Under the Federal Constitution: The Impact of Buckley v. Valeo, 22 Wayne L. Rev. 1335, 1349 n.61 (1976) (positing that “[a]t this point in our constitutional history, the Supreme Court was rather clearly deferring to established appointment practice rather than leading the way in defining on its own who were officers and who were not through the exercise of certain substantive duties” ).

2

38 U.S. (13 Pet.) 230, 256–61 (1839).

3

Id. at 258.

4

Id. The Court noted that Louisiana was not a state when Congress first established federal district courts and authorized them to appoint clerks who would serve in both the district courts and the circuit courts located in those districts. Id. However, through subsequent laws concerning Louisiana (i.e., providing for a temporary government, admitting Louisiana into the Union, and including it in the circuit court system), Congress established the Louisiana district court and gave the judge of that court the authority to appoint a clerk for the district who would also serve as the circuit court clerk. Id. The Court ultimately held that although the Louisiana district court had appointed the petitioner as its clerk, the court’s subsequent appointment of a different clerk and notice to the petitioner effected his removal from that office. Id. at 258–61.

5

100 U.S. 371, 397 (1879).

6

See id. (citing the portion of the Appointments Clause allowing Congress to vest the appointment of inferior officers in the President, the courts, or department heads).

7

Id.; see also id. at 398 ( “The observation in the case of Hennen . . . that the appointing power in the clause referred to ‘was no doubt intended to be exercised by the department of the government to which the official to be appointed most appropriately belonged,’ was not intended to define the constitutional power of Congress in this regard, but rather to express the law or rule by which it should be governed.” ).

8

169 U.S. 331, 336 (1898) (internal quotation marks and citation omitted); U.S. Const. art. II, § 2, cl. 2; see also Eaton, 169 U.S. at 339, 343–44.

9

Eaton, 169 U.S. at 343. The President subsequently delegated the appointment of vice-consuls, through regulations, to the Secretary of State. Id. at 337. The Eaton Court did not question the constitutionality of this delegation or the resulting method of appointment. See id. at 339, 343–44.

10

Id. at 336–37, 339.

11

Id. at 343.

12

Id. at 343–44.

13

Id. at 344.

14

Id. at 343.

15

Id.

16

282 U.S. 344, 352–53 (1931).

17

Id. at 353 n.2.

18

Id. at 352 ( “United States commissioners are inferior officers.” ); see also id. at 353–54 (declining to consider the relationship between the district court and its commissioners in “matters unlike that now before us” ).

19

Id. at 354.

20

Id.