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 Clause1 establishes two tiers of officers:2 (1) principal (or superior) officers, who must be appointed by the President with the Senate’s advice and consent;3

, 116 Stat. 81. Although the Supreme Court has long used the term “principal officer” to describe the first category of officers subject to the Appointments Clause, the term itself derives, not from the Appointments Clause, but from the first clause of article II, section 2, which allows the President to require the written opinion of “the principal Officer in each of the executive Departments,” on subjects relating to the duties of their respective offices. See U.S. Const. art. II, § 2, cl. 1; NLRB v. SW Gen., Inc., No. 15-1251, slip op. at 1–2 (U.S. Mar. 21, 2017) (Thomas, J., concurring) (noting that the Court has “long denominated” the noninferior officers referenced in the Appointments Clause “principal” officers (citing Germaine, 99 U.S. at 509, 511)); Germaine, 99 U.S. at 511 (noting that in the same section of the Constitution that contains the Appointments Clause, “the President may require the opinion in writing of the principal officer in each of the executive departments, relating to the duties of their respective offices” ); Tucker v. Comm’r, 135 T.C. 114, 122 (2010) (stating that “[t]he term ‘principal officer’ is not in the Appointments Clause but is borrowed from the immediately preceding clause (i.e., U.S. Const. art. II, sec. 2, cl. 1)” ). Similarly, the Twenty-Fifth Amendment mentions the “principal officers of the executive departments. However, while the term “departments” is found in both clauses, it is unclear precisely how much relevance either provision has for interpreting the Appointments Clause.” Compare Freytag v. Comm’r, 501 U.S. 868, 886 (1991) (concluding that the Court should interpret the meaning of “Heads of Departments” “consistently with its interpretation in other constitutional provisions” and ruling that the Tax Court was not a department), with id. at 915 (Scalia, J., concurring in part and concurring in judgment) (arguing that the Tax Court is a Department because it is a “free-standing, self-contained entity in the Executive Branch” ); Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 511 (2010) (adopting the reasoning of Justice Antonin Scalia’s concurrence in Freytag and concluding that because the Securities and Exchange Commission “is a freestanding component of the Executive Branch, not subordinate to or contained within any other such component, it constitutes a ‘Departmen[t]’ for the purposes of the Appointments Clause” ). Likewise, while the Opinions Clause includes the term “principal officer” and the Twenty-Fifth Amendment includes “principal officers,” whether the substantive construction of either term is relevant to the Appointments Clause is unclear. See Morrison v. Olson, 487 U.S. 654, 722 (Scalia, J., dissenting) ( “Even an officer who is subordinate to a department head can be a principal officer.” ); Edmond v. United States, 520 U.S. 651, 667 (1997) (Souter, J., concurring in part and concurring in the judgment) (reasoning that an individual may be a principal officer even if he has a superior); NLRB v. SW Gen., Inc., slip op. at 1–2 (Thomas, J., concurring) (arguing that the general counsel of the NLRB may be a principal officer). and (2) inferior officers, who must be appointed in the same manner unless Congress, by law, has vested their appointment in the President alone, in a court, or in a department head.4 Both types of “officers” are those individuals who occupy positions that wield “significant authority.” 5 The difference between the two is nevertheless important as the Constitution provides different requirements for their appointment. The Supreme Court has observed that the Framers provided “little guidance” into where the line between principal and inferior officers “should be drawn.” 6 Accordingly, the Court has fashioned its own standards for distinguishing these officers which have evolved over time.

The focus of the Court’s analysis in cases addressing the difference between principal and inferior officers has varied over time. The Court’s early Appointments Clause cases did not present a clear picture of the differences between principal and inferior officers, often focusing on the method Congress prescribed for a given officer’s appointment or the duration of an officer’s tenure.7 When questions concerning the principal-inferior officer distinction surfaced again in the second half of the twentieth century, the Court applied a functional, mulit-factor analysis, which emphasized that inferior officers, relative to principal officers, had more constrained duties and less discretion.8

, 116 Stat. 81; see also ArtII.S2.C2.3.10 Officer and Non-Officer Appointments. In 1997, the Court took a more formalist approach in defining the line between principal and inferior officers, holding that an inferior officer is one “whose work is directed and supervised at some level by others who were appointed by presidential nomination with the advice and consent of the Senate.” 9

Footnotes

1

U.S. Const. art. II, § 2, cl. 2.

2

See United States v. Germaine, 99 U.S. 508, 509 (1878) ( “The Constitution for purposes of appointment very clearly divides all its officers into two classes.” ).

3

See Buckley v. Valeo, 424 U.S. 1, 132 (1976) (per curiam) ( “Principal officers are selected by the President with the advice and consent of the Senate.” ), superseded by statute, Bipartisan Campaign Reform Act of 2002, Pub. L. No.

107-155

, 116 Stat. 81. Although the Supreme Court has long used the term “principal officer” to describe the first category of officers subject to the Appointments Clause, the term itself derives, not from the Appointments Clause, but from the first clause of article II, section 2, which allows the President to require the written opinion of “the principal Officer in each of the executive Departments,” on subjects relating to the duties of their respective offices. See U.S. Const. art. II, § 2, cl. 1; NLRB v. SW Gen., Inc., No. 15-1251, slip op. at 1–2 (U.S. Mar. 21, 2017) (Thomas, J., concurring) (noting that the Court has “long denominated” the noninferior officers referenced in the Appointments Clause “principal” officers (citing Germaine, 99 U.S. at 509, 511)); Germaine, 99 U.S. at 511 (noting that in the same section of the Constitution that contains the Appointments Clause, “the President may require the opinion in writing of the principal officer in each of the executive departments, relating to the duties of their respective offices” ); Tucker v. Comm’r, 135 T.C. 114, 122 (2010) (stating that “[t]he term ‘principal officer’ is not in the Appointments Clause but is borrowed from the immediately preceding clause (i.e., U.S. Const. art. II, sec. 2, cl. 1)” ). Similarly, the Twenty-Fifth Amendment mentions the “principal officers of the executive departments. However, while the term “departments” is found in both clauses, it is unclear precisely how much relevance either provision has for interpreting the Appointments Clause.” Compare Freytag v. Comm’r, 501 U.S. 868, 886 (1991) (concluding that the Court should interpret the meaning of “Heads of Departments” “consistently with its interpretation in other constitutional provisions” and ruling that the Tax Court was not a department), with id. at 915 (Scalia, J., concurring in part and concurring in judgment) (arguing that the Tax Court is a Department because it is a “free-standing, self-contained entity in the Executive Branch” ); Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 511 (2010) (adopting the reasoning of Justice Antonin Scalia’s concurrence in Freytag and concluding that because the Securities and Exchange Commission “is a freestanding component of the Executive Branch, not subordinate to or contained within any other such component, it constitutes a ‘Departmen[t]’ for the purposes of the Appointments Clause” ). Likewise, while the Opinions Clause includes the term “principal officer” and the Twenty-Fifth Amendment includes “principal officers,” whether the substantive construction of either term is relevant to the Appointments Clause is unclear. See Morrison v. Olson, 487 U.S. 654, 722 (Scalia, J., dissenting) ( “Even an officer who is subordinate to a department head can be a principal officer.” ); Edmond v. United States, 520 U.S. 651, 667 (1997) (Souter, J., concurring in part and concurring in the judgment) (reasoning that an individual may be a principal officer even if he has a superior); NLRB v. SW Gen., Inc., slip op. at 1–2 (Thomas, J., concurring) (arguing that the general counsel of the NLRB may be a principal officer).

4

U.S. Const. art. II, § 2, cl. 2; see also Edmond, 520 U.S. at 660 ( “The prescribed manner of appointment for principal officers is also the default manner of appointment for inferior officers.” ). By default all “Officers of the United States” —both those specifically enumerated in the Clause (e.g., ambassadors) and “all other Officers . . . whose Appointments are not . . . otherwise provided for” —must be appointed by the President with the Senate’s advice and consent, subject to Congress’s power to vest the appointment of “such inferior Officers, as they think proper” in the President alone, the courts of law, or department heads. U.S. Const. art. II, § 2, cl. 2; see also Myers v. United States, 272 U.S. 52, 126–27 (1926) ( “[T]he appointment of all officers, whether superior or inferior, by the President is declared to be subject to the advice and consent of the Senate. . . . [T]he legislative power of Congress . . . is excluded save by the specific exception as to inferior offices in the clause that follows, viz, ‘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.’” ).

5

See ArtII.S2.C2.3.10 Officer and Non-Officer Appointments. See also Freytag, 501 U.S. at 880–81 (examining the division between inferior officers and employees and analyzing the duties of particular inferior officers).

6

Morrison, 487 U.S. at 671.

7

The Court’s early focus on who appointed an individual has led some courts and commentators to describe the Court’s early Appointments Clause decisions as “circular.” See Landry v. FDIC, 204 F.3d 1125, 1132–33 (D.C. Cir. 2000) (stating that “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” ); John M. Burkoff, Appointment and Removal Under the Federal Constitution: The Impact of Buckley v. Valeo, 22 Wayne L. Rev. 1335, 1347 (1976) (arguing that the Court’s reasoning in its 1878 decision in United States v. Germaine “like much of the early law in this area, is entirely circular” because the Germaine Court had reasoned that a civil surgeon was an employee, not an inferior officer, because “none of the prescribed modes of appointment was used” in the surgeon’s hiring). See United States v. Germaine, 99 U.S. 508, 509 (1878).

8

The Supreme Court’s shift in focus to an official’s duties and discretion is also reflected in the test the Court announced in Buckley for who constitutes an officer (rather than a mere employee) under the Appointments Clause: an officer is “any appointee exercising significant authority pursuant to the laws of the United States.” Buckley v. Valeo, 424 U.S. 1, 126 (1976) (per curiam), superseded by statute, Bipartisan Campaign Reform Act of 2002, Pub. L. No.

107-155

, 116 Stat. 81; see also ArtII.S2.C2.3.10 Officer and Non-Officer Appointments.

9

Edmond v. United States, 520 U.S. 651, 662–63 (1997). For more on the difference between functional and formalist approaches in separation of powers cases, see Intro.7.2 Separation of Powers Under the Constitution.