ArtII.S2.C2.3.14 Interbranch Appointments

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.

The Appointments Clause provides that Congress may vest the appointment of inferior officers with the President alone, department heads, or the courts of law.1 Both the Executive and Judicial Branches may thus be vested with authority to appoint inferior officers, as that term has been understood by the Supreme Court.2 One recurring issue in litigation in this area has been whether Congress may authorize one branch of government to appoint inferior officers in another branch. For instance, may Congress entrust the courts of law with the power to appoint officers in the Executive Branch? The Supreme Court first squarely addressed the issue in the 1879 case of Ex parte Siebold, which examined the constitutionality of placing the power to appoint election supervisors—officers whose duties were allegedly “entirely executive in character” —with the Circuit Courts.3 At issue was whether the Constitution permits “the courts of the United States to appoint officers whose duties are not connected with the judicial department.” 4 The Supreme Court noted that the Constitution included no “absolute requirement” that Congress vest the “appointment of inferior officers in that department of the government . . . to which the duties of such officers pertain.” 5 The Court reasoned that there was no “incongruity” between the judicial function and the appointment of election supervisors.6 Therefore, the Court ruled, the interbranch appointment by the Judiciary of election supervisors did not violate the Constitution.

Likewise, the 1987 Supreme Court case of Young v. United States ex rel. Vuitton et Fils S.A. affirmed the inherent power of the Judiciary to appoint individuals to prosecute certain crimes—namely, contempt proceedings.7 In that case, a federal district court appointed private attorneys to prosecute the defendants in a criminal contempt proceeding for violating a judicial injunction.8 The Court ultimately reversed the convictions because those private attorneys represented the beneficiary of the injunction and were thus unable to function as disinterested prosecutors on behalf of the government.9 However, it first expounded on the inherent power of the Judiciary to appoint private attorneys to prosecute criminal contempt proceedings.10 Although the power of prosecution is traditionally an executive function, the Judiciary nevertheless retains the inherent power to appoint attorneys to prosecute a contempt action in order to “vindicate” the Judiciary’s authority to “enforce orders and to punish acts of disobedience.” 11 The Court reasoned that a court’s power to initiate prosecutions for contempt was not limited to punishing “in-court contempts that interfere with the judicial process,” but included “out-of-court contempt[s], which require prosecution by a party other than the court.” 12

One year later in 1988, the Supreme Court also upheld Congress’s power to vest the appointment of an independent prosecutor with the Judiciary. In Morrison v. Olson,13 the Court considered the constitutionality of the independent counsel statute,14 which required the Attorney General to apply in certain circumstances to a Special Division of the U.S. Court of Appeals for the D.C. Circuit for the appointment of an independent counsel.15 The Special Division was composed of three federal judges16 and enjoyed final authority to appoint and define the jurisdiction of an independent counsel, who would investigate and prosecute crimes committed by certain Executive Branch officials as well as individuals connected to presidential campaign committees.17 In considering a challenge to Congress’s authority to vest the appointment of the independent counsel outside the Executive Branch, the Court observed that the text of the Constitution appeared to give Congress broad discretion in choosing whether to place the appointment of inferior officers with the Judiciary, department heads, or the President.18 Further, the Court noted that its prior decision in Siebold rejected a requirement that the appointment of inferior officers be vested in the specific branch of government to which the duties of those officers relate.19 The Court explained that its prior decision in Vuitton had recognized a court’s inherent power to appoint private attorneys to prosecute criminal contempt proceedings. The Court also noted with approval Congress’s vestment of power with district courts to make interim appointments of United States Attorneys.20 In light of these considerations, combined with the fact that the independent counsel statute barred judges of the Special Division from participating in any judicial proceeding concerning matters that involve an independent counsel they appointed, the appointment of the independent counsel by the Judiciary did not infringe upon “the constitutional limitation on ‘incongruous’ interbranch appointments.” 21

Footnotes
1
U.S. Const. art. II, § 2, cl. 2. back
2
See ArtII.S2.C2.3.11.1 Overview of Principal and Inferior Officers to ArtII.S2.C2.3.11.3 Modern Doctrine on Principal and Inferior Officers. back
3
100 U.S. 371, 397–99 (1879). back
4
Id. at 397. The Court distinguished a prior case, Ex parte Hennen, which stated that the appointment power “was no doubt intended to be exercised by the department of the government to which the official to be appointed most appropriately belonged,” 38 U.S. (13 Pet.) 230, 258 (1839), as “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.” Ex parte Siebold, 100 U.S. at 398. back
5
Ex parte Siebold, 100 U.S. at 397. back
6
Id. at 398. The Court also appeared to approve of the judicial appointment of United States commissioners, who were granted certain executive powers by Congress, in Go-Bart Importing Co. v. United States, 282 U.S. 344, 353–54, 353 n.2 (1931). See Morrison v. Olson, 487 U.S. 654, 676 (1988) (describing the Court’s decision in Go-Bart as “approv[ing] [the] court appointment of United States commissioners, who exercised certain limited prosecutorial powers” ). back
7
481 U.S. 787, 793–801 (1987). See also 28 U.S.C. § 546(d) (authorizing district courts to appoint United States attorneys to fill vacancies in certain situations). back
8
481 U.S. at 789–92. back
9
Id. at 803–14. back
10
Id. at 793–801. back
11
Id. at 796 (quoting Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 450 (1911)). back
12
Id. at 797. back
13
487 U.S. 654 (1988). back
14
28 U.S.C. §§ 591–599. back
15
Id. §§ 591–593. For more on Morrison v. Olson, see ArtII.S2.C2.3.15.6 Later Twentieth Century Cases on Removal. back
16
28 U.S.C. §§ 49, 593. back
17
Id. § 593. back
18
Morrison, 487 U.S. at 673–74. back
19
Id. back
20
Id. at 676–77; see 28 U.S.C. § 546. back
21
Morrison, 487 U.S. at 677. back