Officers of the United States Within the Meaning of the Appointments Clause

• Decision Date: 16 April 2007
• Docket Number: 07-7
• Citation: 31 Op. O.L.C. 73
• Court: Opinions of the Office of Legal Counsel of the Department of Justice
• Parties: Officers of the United States Within the Meaning of the Appointments Clause

31 Op. O.L.C. 73

Officers of the United States Within the Meaning of the Appointments Clause

No. 07-7

United States Department of Justice

April 16, 2007

STEVEN G. BRADBURY Acting Assistant Attorney General Office of Legal Counsel

Officers of the United States Within the Meaning of the Appointments Clause

A position to which is delegated by legal authority a portion of the sovereign powers of the federal government and that is "continuing" is a federal office subject to the Constitution's Appointments Clause. A person who would hold such a position must be properly made an "Officer[] of the United States" by being appointed pursuant to the procedures specified in the Appointments Clause.

MEMORANDUM OPINION FOR THE GENERAL COUNSELS OF THE EXECUTIVE BRANCH

I. The Safeguards of the Appointments Clause.....................................................74

II. The Essential Elements of an Office Subject to the Appointments Clause..................................76

A. The Position Must Possess Delegated Sovereign Authority of the Federal Government.....................................78

1. The Foundations of This Element.......................................................78

2. Defining Delegated Sovereign Authority............................................87

3. Three Arguably Relevant Characteristics...........................................93

a Discretion.....................................................................................93

b Contractors...................................................................................96

c State Officers...............................................................................99

B. The Position Must Be "Continuing"........................................................100

1. The Foundations of This Element.....................................................101

2. Defining a "Continuing" Position.....................................................111

3. A Few Recurring Areas....................................................................113

C. Several Additional Criteria Are Incidental, Not Distinct Elements of an Office..................................................115

1. Method of Appointment....................................................................115

2. Established by Law...........................................................................117

3. Oath of Office...................................................................................119

4 Emoluments......................................................................................119

5. Commission......................................................................................122

III. Conclusion....................................................................................................122

This memorandum addresses the requirements of the Appointments Clause of the Constitution, which sets out the exclusive methods of appointing all "Officers of the United States" whose appointments are not otherwise provided for in the Constitution. U.S. Const, art. II, § 2, cl. 2. In particular, we address which positions are required by that Clause to be filled pursuant to its procedures. We conclude that any position having the two essential characteristics of a federal "office" is subject to the Appointments Clause. That is, a position, however labeled, is in [ 74] fact a federal office if (1) it is invested by legal authority with a portion of the sovereign powers of the federal government, and (2) it is "continuing." A person who would hold such a position must be properly made an "Officer[] of the United States" by being appointed pursuant to the procedures specified in the Appointments Clause.

I. The Safeguards of the Appointments Clause

The Appointments Clause provides:

[The President] 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.

Id. The Appointments Clause, as the Supreme Court has explained, reflects more than a "frivolous" concern for "etiquette or protocol." Buckley v. Valeo, 424 U.S. 1, 125 (1976) (per curiam). Rather, the Clause limits the exercise of certain kinds of governmental power to those persons appointed pursuant to the specific procedures it sets forth for the appointment of "officers." As the Supreme Court explained in Buckley:

We think that the term "Officers of the United States" as used in Art. II, defined to include "all persons who can be said to hold an office under the government, " is a term intended to have substantive meaning. We think its fair import is that any appointee exercising significant authority pursuant to the laws of the United States is an "Officer of the United States, " and must, therefore, be appointed in the manner prescribed by § 2, cl. 2, of that Article.

Id. at 125—26 (citation omitted; quoting United States v. Germaine, 99 U.S. 508, 510 (1879)); see also Id. at 132 ("Unless their selection is elsewhere provided for, all officers of the United States are to be appointed in accordance with the Clause. ... No class or type of officer is excluded because of its special functions."); id. at 136 (noting that prior cases allowing restrictions on President's removal power had been careful not to suggest that his appointment power could be infringed). Applying this understanding, the Court in Buckley unanimously held that the Appointments Clause required that the enforcement, regulatory, and other administrative powers of the Federal Election Commission could properly "be exercised only by 'Officers of the United States, ' appointed in conformity with" [ 75] the Clause. Id. at 143; see Id. at 267 (White, J., concurring in part and dissenting in part) (agreeing). Because the members of the Commission had not been so appointed, the Commission could not constitutionally exercise these powers. Id. at 141—43 (opinion of Court); see also Id. at 126—27 (describing existing appointment procedure).

This Office also has long taken the same view of the force of the Appointments Clause. We have concluded, for example, that it is not "within Congress's power to exempt federal instrumentalities from the Constitution's structural requirements, such as the Appointments Clause"; that Congress may not, for example, resort to the corporate form as an "artifice" to "evade the 'solemn obligations' of the doctrine of separation of powers, " The Constitutional Separation of Powers Between the President and Congress, 20 Op. O.L.C. 124, 148 n.70 (1996) (“Separation of Powers'"); and that the "methods of appointment" the Appointments Clause specifies "are exclusive, " Common legislative Encroachments on Executive Branch Authority, 13 Op. O.L.C. 248, 249 (1989) (“Legislative Encroachments'"). Indeed, the Court's conclusion in Buckley that the methods of appointment in the Appointments Clause are exclusive for anyone who can be said to hold an office under the United States was anticipated by a line of Attorney General opinions dating back to well before the Civil War. See, e.g., Appointment and Removal of Inspectors of Customs, 4 Op. Att'y Gen. 162, 164 (1843); see also Civil Service Comm'n, 13 Op. Att'y Gen. 516, 518 (1871) (Appointments Clause "must be construed as excluding all other modes of appointment" of executive and judicial officers). Moreover, the text of the Appointments Clause emphatically applies to "all" officers of the United States, unless their method of appointment is "otherwise provided for" in the Constitution.

The requirements of the Appointments Clause are "among the significant structural safeguards of the constitutional scheme" and are "designed to preserve political accountability relative to important government assignments." Edmond v. United States, 520 U.S 651, 659, 663 (1997). The Clause "is a bulwark against one branch aggrandizing its power at the expense of another branch, " particularly by preventing Congress from taking to itself the appointment power, as was at issue in Buckley, or otherwise stripping that power from the other Branches. Ryder v. United States, 515 U.S. 177, 182 (1995). By vesting the selection of principal officers in the President and of inferior officers in the President or certain other officers of the Executive or Judicial Branches, the Clause "prevents congressional encroachment upon" those branches, Edmond, 520 U.S. at 659, and supports the President's authority and duty to see to the execution of the laws, Printz v. United States, 521 U.S. 898, 922-23 (1997). But the Appointments Clause "is more: it preserves another aspect of the Constitution's structural integrity by preventing the diffusion of the appointment power." Ryder, 515 U.S. at 182 (internal quotation marks omitted). Thus, in Ryder the Court held invalid a military court's affirmance of a conviction where, even though the court had been appointed by an Executive [ 76] Branch officer, the appointing official was not among those specified in the Appointments Clause. Id. at 179; see also United States v. Maurice, 26 F. Cas. 1211, 1216, 1219 (C.C.D. Va. 1823) (No. 15, 747) (Marshall, Circuit Justice) (finding appointment by cabinet member, rather than President with Senate advice and consent, invalid under the Appointments Clause and stating that "the policy of the law condemns such appointments, " although illegal appointment did not prevent governmental suit to recover money...