Article 2, Section 2, Clause 2 — Officer And Non Officer Appointments

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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](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/officer-and-non-officer-appointments#fn1art2 " 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). ") with many of the key Supreme Court decisions occurring in the late twentieth and early twenty-first centuries.[2](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/officer-and-non-officer-appointments#fn2art2 " See Gary Lawson, Federal Administrative Law 190 (7th ed. 2016). ") 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](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/officer-and-non-officer-appointments#fn3art2 " 26 F. Cas. 1211, 1214 (C.C.D. Va. 1823). ") 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](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/officer-and-non-officer-appointments#fn4art2 " 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). ") 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](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/officer-and-non-officer-appointments#fn5art2 " 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). ") 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](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/officer-and-non-officer-appointments#fn6art2 " 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). ") 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](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/officer-and-non-officer-appointments#fn7art2 " 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). ")

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](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/officer-and-non-officer-appointments#fn8art2 " 424 U.S. 1, 126 (1976) (per curiam) (emphasis added), superseded by statute, Bipartisan Campaign Reform Act of 2002, Pub. L. No.

, 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). ")

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](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/officer-and-non-officer-appointments#fn9art2 " 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. ") 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](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/officer-and-non-officer-appointments#fn10art2 " Id. ") 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](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/officer-and-non-officer-appointments#fn11art2 " Id. at 137. ")

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](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/officer-and-non-officer-appointments#fn12art2 " Id. at 138. ") Such functions could therefore be exercised by individuals not appointed in conformity with the Appointments Clause.[13](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/officer-and-non-officer-appointments#fn13art2 " Id. ") 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](https://www.law.cornell.edu/constitution-conan/article-2/sect