...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.Article II, Section 2, Clause 2
The appointment power has become one of the chief powers of the President. The "by Law" language concerning inferior officers—sometimes known as the Excepting Clause—authorizes the President in certain cases to exercise the appointment power alone, or through the heads of departments who are themselves his appointees. That mechanism greatly expands the scope of the appointment power beyond the restrictions of Senate consent.
The Appointments Clause (Article II, Section 2, Clause 2) divides constitutional officers into two classes: principal officers, who must be appointed through the advice and consent mechanism; and inferior officers, who may be appointed through advice and consent of the Senate, but whose appointment Congress may place instead in any of the "three repositories of the appointment power" in the Excepting Clause. See Freytag v. Commissioner of Internal Revenue (1991); United States v. Germaine (1879). These two methods are the only means of appointing government officers under the Constitution. Most officers are considered inferior officers.
Significantly, Congress itself may not exercise the appointment power; its functions are limited to the Senate's role in advice and consent, and to deciding whether to vest a direct appointment power over a given office in the President, a Head of Department, or the Courts of Law. The Framers were particularly concerned that Congress might seek to exercise the appointment power and fill offices with their supporters, to the derogation of the President's control over the executive branch. The Appointments Clause thus functions as a restraint on Congress and as an important structural element in the separation of powers. Attempts by Congress to circumvent the Appointments Clause, either by making appointments directly, or through devices such as "unilaterally appointing an incumbent to a new and distinct office" under the guise of legislating new duties for an existing office, have been rebuffed by the courts. Buckley v. Valeo (1976); Weiss v. United States (1994).
The final "by Law" language emerged at the end of the Constitutional Convention, as a late addendum to the compromise over the device of presidential nomination and Senate advice and consent for principal officers. The language occasioned little debate. An earlier version of the language would have given the President a broader power to "appoint officers in all cases not otherwise provided for by this Constitution," but some delegates worried that this language would permit the President to create offices as well as to fill them, a classic case of institutional corruption. The requirement that the President can appoint inferior officers only when Congress has "by Law vest[ed]" that power in the President apparently sought to preclude that possibility.
Although separation of powers values lay behind the language of the Appointments Clause, early judicial interpretations struck a more practical note. Chief Justice John Marshall, sitting as a circuit justice, opined that the "by Law" language was the Framers' means to ensure "that they had provided for all cases of offices." United States v. Maurice (1823). The Supreme Court in United States v. Germaine (1879) gave its explanation of the Framers' intent behind the "by Law" language as anticipating that "when offices became numerous, and sudden removals necessary," the advice and consent process might prove too "inconvenient."
Two chief questions recur under the "by Law" language: (1) who are "inferior Officers," not subject to the requirement of advice and consent; and (2) what constitutes a "Department," when Congress seeks to place the appointment power away from the President?
As an initial matter, most government employees are not officers and thus are not subject to the Appointments Clause. In Buckley v. Valeo, the Supreme Court held that only those appointees "exercising significant authority pursuant to the laws of the United States" are "Officers of the United States," and consequently it is only those who exercise such "significant authority" who must be appointed by a mechanism set forth in the Appointments Clause.
The Framers did not define the line between principal officers and inferior officers, and the Court has been content to approach the analysis on a case-by-case basis rather than through a definitive test. See Morrison v. Olson (1988). In Morrison, the Court listed certain factors as hallmarks of "inferior Officer" status, such as removability by a higher executive branch official other than the President, and limitations on the officer's duties, jurisdiction, and tenure. In Edmond v. United States (1997), the Court, while continuing to deny that it had recognized any definitive test, stated that "‘inferior Officers' are officers 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." Among those officers recognized as "inferior" are district court clerks, federal supervisors of elections, the Watergate Special Prosecutor, and an Independent Counsel appointed under the Ethics in Government Act of 1978.
The phrase "Heads of Departments" also has not been precisely defined by the Court. On the one hand, judicial interpretations of the phrase refer to the heads of departments that are within the executive branch, "or at least have some connection with that branch." Buckley v. Valeo. Under this view, the heads of all agencies and departments exercising executive power under the President would seem to qualify as "Heads of Departments." See also Printz v. United States (1997). Similarly, in Freytag v. Commissioner of Internal Revenue (1991), the Court interpreted "Heads of Departments" to refer "to executive divisions like the Cabinet-level departments." The use of the phrase "like the Cabinet-level departments" could mean that, in addition to the Cabinet departments, other entities within the executive branch that are sufficiently analogous to the Cabinet departments may qualify as "Departments" for purposes of the Appointments Clause.
On the other hand, the Freytag Court itself seemed unclear what it meant by the phrase "like the Cabinet-level departments," and certainly stepped back from any bright-line test. The Freytag Court sought to harmonize its analysis with the interpretation given the different term "executive Departments" in the Opinion Clause (which has been interpreted to refer only to Cabinet departments) and with earlier cases that suggested that only the Cabinet Secretaries qualified as "Heads of Departments." Ultimately, the Freytag Court seems to have reserved the question whether the heads of non-Cabinet executive-branch agencies could be deemed to be "Heads of Departments" for purposes of the Appointments Clause. Perhaps the phrase "like the Cabinet-level departments" was included in Freytag as an indication that the Court would not necessarily be inflexible about requiring Cabinet status in future cases. If that is so, then "Heads of Departments" would appear to include (as Justice Antonin Scalia reasons in his concurrence in Freytag) the heads of the Cabinet Departments and also the heads of "all independent executive establishments."
- Douglas Cox
- Gibson, Dunn & Crutcher, LLP