ArtII.S2.C2.3.10 Officer and Non-Officer 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.

Supreme Court case law concerning which individuals in the federal government constitute “Officers of the United States” —and thus must be appointed pursuant to the requirements of the Appointments Clause—has been relatively sparse over the course of the Nation’s history,1 with many of the key Supreme Court decisions occurring in the late twentieth and early twenty-first centuries.2 In one of the earliest cases addressing the issue, Chief Justice John Marshall, riding circuit in the 1823 case of United States v. Maurice, defined an officer as one entrusted with a duty that is “a continuing one, which is defined by rules prescribed by the government, and not by contract, which an individual is appointed by government to perform.” 3 A similar principle was espoused in an opinion issued by Attorney General Hugh Legare in 1843, wherein he contrasted the appointment of “permanent” customs inspectors who qualify as officers of the United States, with the appointment by customs collectors of “occasional inspectors” who do not.4 In 1878, the Supreme Court held in United States v. Germaine that federal civil surgeons were employees not subject to the constitutional requirements of the Appointments Clause, rather than officers, because their positions were “occasional and intermittent,” rather than “continuing and permanent.” 5 However, some of the Court’s early decisions addressing which individuals constitute officers tended not to examine closely the substantive differences between officers and non-officers, and instead simply relied on an individual’s method of appointment.6 In other words, according to some of these early cases, no matter the duties assigned to a position, if an individual was not appointed according to the strictures of the Appointments Clause, then by definition he or she could not constitute an officer; but if an individual was appointed pursuant to the Appointments Clause, then he or she did qualify as an officer.7

In the 1976 case of Buckley v. Valeo, the Court established that “Officers of the United States” are those persons “exercising significant authority pursuant to the laws of the United States.” 8

107-155
, 116 Stat. 81. Subsequent cases have followed the Court’s analysis of “significant authority.” See, e.g., Edmond v. United States, 520 U.S. 651, 662 (1997) (acknowledging that military appellate judges exercise “significant authority” ); Freytag v. Comm’r, 501 U.S. 868, 881–82 (1991) (holding that special trial judges of Article I tax courts are “Officers of the United States” based on the degree of authority they exercise). In that case, the Court examined the appointment of members of the Federal Election Commission (FEC) charged with regulating federal elections by enforcing the Federal Election Campaign Act.9 The FEC was composed of six members: four nominated by congressional leadership and two by the President, all of whom were subject to confirmation by both the Senate and House.10 In examining whether the FEC members wielded significant authority, the Buckley Court distinguished among three types of powers the members exercised: functions concerning (1) the flow of information— “receipt, dissemination, and investigation” ; (2) the implementation of the statute— “rulemaking and advisory opinions” ; and (3) the enforcement of the statute “informal procedures, administrative determinations and hearings, and civil suits.” 11

The Buckley Court held that the first category of FEC duties could be performed by non-officers because they were “investigative and informative,” essentially “in aid of the legislative function of Congress.” 12 Such functions could therefore be exercised by individuals not appointed in conformity with the Appointments Clause.13 The latter two categories of functions, however, were executive in nature and constituted “significant authority.” The duties regarding implementation of the statute—including rulemaking, disbursal of funds, and decisions about who may run for a federal office—constituted significant authority that could be executed only by “Officers of the United States.” 14 Likewise, the power to enforce the underlying statute, “exemplified by [the Commissioner’s] discretionary power to seek judicial relief” by instituting civil litigation to vindicate public rights, amounted to authority that, according to the Court, must be exercised by an officer appointed pursuant to the Appointments Clause.15 In a footnote, the Court contrasted the duties of officers with “employees of the United States,” who are “lesser functionaries subordinate to officers” and may be selected outside of the requirements of the Appointments Clause.16 The Court thus concluded that most of the powers granted to the FEC could only be wielded by officers of the United States, and therefore could not be exercised by the FEC because the selection of its members did not comply with the Appointments Clause.17

Nearly fifteen years after Buckley, the Supreme Court’s opinion in Freytag v. Commissioner of Internal Revenue again examined what responsibilities make an individual an officer of the United States, concluding that a special trial judge of the U.S. Tax Court qualified as such an officer.18 The Court ruled that special trial judges were officers because of the “significance of the duties and discretion” they possessed.19 First, the Court noted that the office of special trial judge was “established by Law” 20 and its “duties, salary, and means of appointment” were specified in statute.21 The Court contrasted the special trial judges with the position of special masters, who temporarily assisted Article III judges on an “episodic” basis, and whose positions, duties, and functions were not “delineated in a statute.” 22 Second, special trial judges were entrusted with duties beyond “ministerial tasks,” exercising significant discretion in taking testimony, conducting trials, ruling on evidence, and enforcing compliance with discovery orders.23 In addition, the Court noted that, even leaving aside these duties, special trial judges qualified as officers because the underlying statute authorized special trial judges, in certain circumstances, to render independently binding decisions.24 The Commissioner conceded that for these purposes, special trial judges acted as officers, but argued that the petitioners lacked standing to challenge those aspects of the judges’ power.25 The Court rejected this contention, concluding that it made no sense to consider special trial judges to operate as officers for some purposes, but not others.26

In the 2018 case of Lucia v. SEC, the Supreme Court reaffirmed its analysis in Freytag and concluded that administrative law judges (ALJs) within the Securities and Exchange Commission (SEC) qualified as officers of the United States.27 The Court reasoned that because the duties of SEC ALJs essentially mirrored those of the special trial judges in Freytag, the SEC ALJs also constituted officers.28 As an initial matter, both held “a continuing office established by law.” 29 Further, special trial judges and SEC ALJs “exercise[d] the same ‘significant discretion’ when carrying out the same ‘important functions.’” 30 Both types of officials were authorized to (1) “take testimony,” 31 (2) “conduct trials,” 32 (3) “rule on the admissibility of evidence,” 33 and (4) were entrusted with “the power to enforce compliance with discovery orders.” 34 Moreover, the Court observed, SEC ALJs actually had somewhat more independent authority to render decisions than did the special trial judges in Freytag: while a major decision made by the special trial judges had no force unless a Tax Court judge adopted it as his own, the SEC could decline to review an ALJ’s decision, in which case the decision became final and was “deemed the action of the Commission.” 35 Accordingly, because SEC ALJs were “near-carbon-copies” of the special trial judges in Freytag, they were officers who must be appointed pursuant to the Appointments Clause.36 Importantly, the Court declined to elaborate on the significant authority test for determining whether an individual is an officer, reasoning that its analysis in Freytag resolved the case before it.37 Because the petitioner had raised a “timely” Appointments Clause challenge, the Court remanded the case for a new hearing before a properly appointed ALJ or the Commission itself.38

19-1442, 20-105, slip op. at 2
(U.S. Apr. 22, 2021) (holding that petitioners, Social Security claimants, did not forfeit their Appointments Clause challenges by raising them for the first time in federal court and not before the administrative law judges who presided over their agency hearings).

In addition, while not directly applying the significant authority test to determine whether an individual counts as an officer, at least one other case discussed previously may at least shed some light on what types of duties might be relevant in determining if an individual qualifies as an officer, at least in the Executive Branch. In the 1986 case of Bowsher v. Synar,39 the Court held that a statute authorizing an official controlled by Congress to carry out duties that were executive in nature violated the separation of powers.40 The statute entrusted the Comptroller General with preparing a report detailing estimates of projected federal revenues and outlays as well as any necessary reductions to reduce the projected deficit to a specified target.41 The Court reasoned that this required the Comptroller to “exercise judgment concerning facts that affect the application of the Act [and] interpret the provisions of the Act to determine precisely what budgetary calculations are required.” 42 The Comptroller enjoyed the final authority to determine budgetary cuts; and the President himself had to carry out the official’s directives.43 The Court concluded that these duties were executive in nature.44 However, under a statute passed years before, only Congress could remove the Comptroller through a joint resolution.45 The Court ruled that, by placing executive power in an officer that Congress itself controlled, the legislature had “intruded into the executive function” and violated the Constitution’s separation of powers.46

Footnotes
1
Stacy M. Lindstedt, Developing the Duffy Defect: Identifying Which Government Workers Are Constitutionally Required to Be Appointed, 76 Mo. L. Rev. 1143, 1151 (2011). The Executive Branch has taken the position, which does not appear to contradict Supreme Court case law, that temporary designations to offices are permissible without complying with the Appointments Clause. Officers of the United States Within the Meaning of the Appointments Clause, 31 Op. O.L.C. 73, 106 (2007); Designation of Acting Dir. of the Off. of Mgmt. & Budget, 27 Op. O.L.C. 121, 123–25 (2003); Auth. of Lieutenant Colonel Commandant of Marine Corps, 2 Op. Att’ys Gen. 77, 78–79 (1828). Appointment & Removal of Inspectors of Customs, 4 Op. Att’ys Gen. 162, 163 (1843); The Reconstruction Acts, 12 Op. Att’ys Gen. 141, 155–56 (1867). But see NLRB v. SW Gen., Inc., No. 15-1251, slip op. at 1–2 (U.S. Mar. 21, 2017) (Thomas, J., concurring) (arguing that a temporary designation under the Federal Vacancies Reform Act was unconstitutional because the procedures of the Appointments Clause were not followed). back
2
See Gary Lawson, Federal Administrative Law 190 (7th ed. 2016). back
3
26 F. Cas. 1211, 1214 (C.C.D. Va. 1823). back
4
Appointment & Removal of Inspectors of Customs, 4 Op. Att’ys Gen. 162, 163 (1843); see also Tenure of Off. of Inspectors of Customs, 1 Op. Att’ys Gen. 459, 459 (1821); Tenure of Off. of Inspectors of Customs, 2 Op. Att’ys Gen. 410, 412 (1831). In 1865, Attorney General James Speed reasoned that a statute which vested in assessors the power to appoint assistant assessors of the internal revenue service was unconstitutional because the former were not Heads of Departments. Appointment of Assistant Assessors of Internal Revenue, 11 Op. Att’ys Gen. 209, 209–12 (1865); see Act of Mar. 3, 1865, § 1, 13 Stat. 469. He concluded that assistant assessors constituted officers because Congress has created their office and they exercised independent authority. Appointment of Assistant Assessors of Internal Revenue, 11 Op. Att’ys Gen. 209, 211 (1865). The following year, Congress amended the statute to authorize the Treasury Secretary to appoint assistant assessors. Act of Jan. 15, 1866, 14 Stat. 2. For more on early Attorney General opinions regarding the Appointments Clause, see Aditya Bamzai, The Attorney General and Early Appointments Clause Practice, 93 Notre Dame L. Rev. 1501, 1504–14 (2018). back
5
99 U.S. 508, 511–12 (1878) (noting that the term officer “embraces the ideas of tenure, duration, emolument, and duties” ) (citing United States v. Hartwell, 73 U.S. (6 Wall.) 385, 393–94 (1867)); see Auffmordt v. Hedden, 137 U.S. 310, 327 (1890) ( “His position is without tenure, duration, continuing emolument, or continuous duties, and he acts only occasionally and temporarily. Therefore, he is not an ‘officer,’ within the meaning of the clause of the constitution referred to.” ); Officers of the United States Within the Meaning of the Appointments Clause, 31 Op. O.L.C. 73, 100–11 (2007). back
6
See Landry v. FDIC, 204 F.3d 1125, 1132–33 (D.C. Cir. 2000) ( “In fact, the earliest Appointments Clause cases often employed circular logic, granting officer status to an official based in part upon his appointment by the head of a department.” ) (citing United States v. Mouat, 124 U.S. 303, 307 (1888); Germaine, 99 U.S. at 510; United States v. Hartwell, 73 U.S. (6 Wall) 385, 393 (1867)); Wise v. Withers, 7 U.S. (3 Cranch) 331 (1806); John M. Burkoff, Appointment and Removal Under the Federal Constitution: The Impact of Buckley v. Valeo, 22 Wayne L. Rev. 1335, 1347 (1976). back
7
See, e.g., United States v. Smith, 124 U.S. 525, 531–32 (1888); Mouat, 124 U.S. at 307; Burnap v. United States, 252 U.S. 512, 516 (1920). back
8
424 U.S. 1, 126 (1976) (per curiam) (emphasis added), superseded by statute, Bipartisan Campaign Reform Act of 2002, Pub. L. No.
107-155
, 116 Stat. 81. Subsequent cases have followed the Court’s analysis of “significant authority.” See, e.g., Edmond v. United States, 520 U.S. 651, 662 (1997) (acknowledging that military appellate judges exercise “significant authority” ); Freytag v. Comm’r, 501 U.S. 868, 881–82 (1991) (holding that special trial judges of Article I tax courts are “Officers of the United States” based on the degree of authority they exercise). back
9
Buckley, 424 U.S. at 126. Congress had provided that the FEC be composed of eight members, which included six voting members and two nonvoting ex officio members. Id. at 113. back
10
Id. back
11
Id. at 137. back
12
Id. at 138. back
13
Id. back
14
Id. at 140–41. The Court also noted with approval that prior decisions had found that a postmaster first class and the clerk of a district court qualified as officers. Id. at 126 (citing Myers v. United States, 272 U.S. 52 (1926) (postmaster) and Ex parte Hennen, 38 U.S. (13 Pet.) 225 (1839) (clerk)). back
15
Buckley, 424 U.S. at 138, 140–41. back
16
Id. at 126 n.162. back
17
Id. at 143; see id. at 267–82 (White, J., concurring in part and dissenting in part) (confirming the majority opinion’s analysis on this point). While Buckley’s “significant authority” definition of an officer went beyond the Court’s prior jurisprudence on the matter, it arguably did not establish a conclusive test for what precisely constitutes significant authority. It bears mention in this vein that a Department of Justice Office of Legal Counsel (OLC) opinion, issued after Buckley, argued that two characteristics define an office of the United States. See Officers of the United States Within the Meaning of the Appointments Clause, 31 Op. O.L.C. 73, 73 (2007). According to the OLC, the position must first be endowed with delegated sovereign authority, such as the power to “bind third parties, or the Government itself, for the public benefit.” Id. at 87. In addition, the position must be “continuing.” Id. at 74. The OLC opinion offers two indicia of a continuing position. A position is continuing if it is “permanent, meaning that it is not limited by time or by being of such a nature that it will terminate by the very act of performance.” Id. at 111cite> (internal quotations omitted). Alternatively, even if a position is temporary (because of an expiration date, or due to the nature of its duties), the presence of three factors can nevertheless indicate a “continuing” position: (1) the existence of the position is not personal, meaning that the duties continue even if the person changes; (2) it is not a “transient” position, meaning that the more enduring the position is the more likely it constitutes an office; and (3) the duties of the position are more than “incidental” to the government’s operations. Id. at 100, 112. back
18
The Court held that the special trial judge was an inferior officer, rather than an employee. Freytag v. Comm’r, 501 U.S. 868, 881–82 (1991). The Court subsequently made clear that the exercise of significant authority establishes the line not between inferior and principal officers, but between “officer and non-officer.” Edmond v. United States, 520 U.S. 651, 662 (1997). In other words, whether a position qualifies as an “inferior officer” under Freytag concerns the difference between employees and officers and is conceptually distinct from whether an officer is properly viewed as a principal or inferior officer. See ArtII.S2.C2.3.11.1 Overview of Principal and Inferior Officers. back
19
Freytag, 501 U.S. at 881. back
20
Id. (quoting U.S. Const. art. II, § 2, cl. 2.). back
21
Freytag, 501 U.S. at 881. back
22
Id. back
23
Id. at 881–82. back
24
Id. at 882. back
25
Id. back
26
Id. back
27
Lucia v. SEC, No. 17-130, slip op. at 1–4 (U.S. June 21, 2018). back
28
Id. at 6–8. back
29
Id. at 8. back
30
Id. (quoting Freytag, 501 U.S. at 878). back
31
Id. at 9 (quoting Freytag, 501 U.S. at 881) (quotation marks omitted). The Court noted that this included the authority to “receive evidence,” “examine witnesses,” and conduct pre-hearing depositions. Id. (quoting 17 C.F.R. §§ 201.111(c), 200.14(a)(4)) (quotation marks omitted). back
32
Id. at 9 (quoting Freytag, 501 U.S. at 882) (quotation marks omitted). This power includes the ability to administer oaths, rule on motions, and determine the course of the hearing. Id. back
33
Id. (quoting Freytag, 501 U.S. at 882) (quotation marks omitted). back
34
Id. (quoting Freytag, 501 U.S. at 882) (quotation marks omitted). In arguing that SEC ALJs are not officers under Freytag, the amicus appointed by the Court to argue that SEC ALJs were employees (the Solicitor General agreed with the challengers in the case) proffered two distinctions between the power of Tax Court special trial judges and SEC ALJs. First, the amicus noted that the Tax Court special trial judges have more expansive power to compel compliance with discovery orders—including ordering fines and imprisonment—than do SEC ALJs. Writing for the Court, Justice Elena Kagan rejected this argument, noting that Freytag did not reference any particular method of compelling compliance with discovery, and observing that the less stringent power wielded by SEC ALJs, including the power to exclude parties and attorneys from the proceedings, was sufficient under the reasoning of Freytag. Id. at 9–11. Second, the amicus noted that the Tax Court’s rules provide that a special trial judge’s factual finding “shall be presumed” correct, Tax Court Rule 183(d), whereas the SEC regulations do not contain a similar deferential standard. Justice Kagan rejected this argument as well, noting that the level of deference given to factual findings was not relevant to the Freytag Court’s analysis. Further, Justice Kagan noted, the SEC frequently does afford a similar deference to its ALJs as a matter of practice. Id. at 9–13. back
35
Id. at 10 (quoting 15 U.S.C. § 78d–1(c)). See 17 C.F.R. §§ 201.360(d)(2). back
36
Id. at 6. back
37
Id. back
38
Id. at 12; see also Ryder v. United States, 515 U.S. 177, 182 (1995) (holding that “one who makes a timely challenge to the constitutional validity of the appointment of an officer who adjudicates his case is entitled to a decision on the merits of the question and whatever relief may be appropriate if a violation indeed occurred” ). Cf. Carr v. Saul, Nos.
19-1442, 20-105, slip op. at 2
(U.S. Apr. 22, 2021) (holding that petitioners, Social Security claimants, did not forfeit their Appointments Clause challenges by raising them for the first time in federal court and not before the administrative law judges who presided over their agency hearings). back
39
See ArtII.S2.C2.3.15.6 Later Twentieth Century Cases on Removal for additional discussion of the Bowsher decision. back
40
478 U.S. 714, 717 (1986). back
41
Id. at 732. back
42
Id. at 733. back
43
Id. back
44
Id. at 732–33. back
45
The Comptroller could also have been removed through impeachment. Id. at 728. back
46
Id. at 734. back