Article II, Section 2, Clause 2 — Appointments

ArtII.S2.C2.3.1 Overview of Appointments Clause

The Appointments Clause requires that “Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States” be appointed by the President subject to the advice and consent of the Senate, although Congress may vest the appointment of “inferior” officers “in the President alone, in the Courts of Law, or in the Heads of Departments.”¹ The Supreme Court has interpreted these requirements as distinguishing between two types of officers: (1) “principal” officers who must be appointed by the President and confirmed by the Senate to their position, and (2) “inferior” officers, whose appointment Congress may place with the President, judiciary, or department heads.² These constitutional provisions are instrumental in ensuring the separation of powers, as the Framers of the Constitution deliberately separated Congress’s power to create offices in the federal government from the President’s authority to nominate officers to fill those positions.³ At the same time, placing the power to appoint principal officers with the President alone ensures a measure of accountability for his choices in staffing important government positions.⁴

While the Constitution specifies that certain persons, such as Supreme Court Justices, qualify as “Officers of the United States,” the Appointments Clause does not specify all persons who fall under its purview. Thus, the Appointments Clause’s reach and scope has been disputed. In the 1976 case of Buckley v. Valeo, the Supreme Court explained that whether an individual wields “significant authority” informs the assessment of whether that person is an officer, but the Court has not significantly elaborated on this test since that decision.⁵ Likewise, determining the difference between “principal” and “inferior” officers has generated controversy. Examining the history of the appointment power in the United States and the treatment of the Appointments Clause by the Supreme Court can shed light on the structural makeup of the federal government and the balancing of power between the branches.

ArtII.S2.C2.3.2 Historical Background on Appointments Clause

The deliberations at the Constitutional Convention in Philadelphia, major writings of the prominent supporters of ratification,¹ and the words and records of the state ratifiers of the federal Constitution reveal careful consideration about the proper method of appointment for federal offices. The delegates to the Constitutional Convention, in designing a system of appointments for federal government offices, drew on “their experiences with two flawed methods of appointment.”²

First, the colonists who lived during the American Revolution resented the often unilateral power of the English Crown and the royal governors in the colonies to create and fill government offices.³ The “manipulation of official appointments”—generally achieved by creating and filling the key offices of government with political favorites, who were in turn dependent on the entity who appointed them—was “one of the American revolutionary generation’s greatest grievances against executive power.”⁴

Second, many early state constitutions, adopted after the Declaration of Independence was written, reacted to the perceived abuses of the appointment power by the Crown and royal governors by lodging the power to appoint officials with the state legislature alone.⁵ But placing the appointment power with state representative assemblies also caused considerable turmoil.⁶ Those legislatures were seen as consolidating all governmental power—executive, judicial, and legislative—for themselves.⁷ This consolidation of power “had become the principal source of division and faction in the states.”⁸ At least in the views of many delegates to the Constitutional Convention, the failure to give governors a stronger role in the appointment process was damaging to many state governments whose legislatures “had fallen easy prey to demagogues, provincialism, and factions” in their exercise of appointments.⁹ Likewise, the Articles of Confederation—which provided the governing framework for the young Republic before the adoption of the federal Constitution—authorized the Continental Congress to appoint officers.¹⁰

The delegates to the Constitutional Convention at Philadelphia were aware of the weaknesses of these models of appointment, and thus chose instead to separate “the power to create federal offices . . . from the power to fill them.”¹¹ They chose to vest Congress with the legislative power, including the authority to create federal offices, while the power “to appoint the most important officers” was placed with the single-person President, subject to confirmation by the Senate.¹² Separating the power to create offices from the authority to appoint officers would, in the words of James Madison, provide “[o]ne of the best securities against the creation of unnecessary offices or tyrannical powers.”¹³

At the Constitutional Convention, an early general consensus emerged among the delegates that the chief executive should play a more prominent role in the appointment of officers whose method of appointment was “not otherwise provided for” specifically in the Constitution.¹⁴ The delegates also debated where the power of appointment should be vested for a number of federal offices, including ambassadors, judges (including judges on the Supreme Court), as well as a treasurer.¹⁵ Some argued that placing the appointment power with the legislature would result in factional disputes and partisanship; others that granting such authority to the Executive would tend too much towards a monarchical system of government.¹⁶ The compromise that was eventually reached authorized the President to appoint high-level officers in the federal government, including certain postions named explicitly, as well as “all other officers” not mentioned, subject to Senate confirmation.¹⁷ This arrangement avoided the potential weaknesses of a legislative body making appointments, but preserved a check on the excesses of the Executive by preventing the President from making appointments unilaterally.¹⁸ Congress was also permitted to place the appointment of “inferior” officers with “the President alone, in the courts of law, or in the Heads of Departments.”¹⁹

The Framers’ decision to place the power to appoint principal officers with the President ensures accountability for his choices.²⁰ Placing the power of nomination with the President alone guarantees that the public knows who to blame for poor (or corrupt) choices.²¹ Alexander Hamilton’s arguments in the Federalist Papers, which “contain the most thorough contemporary justification for the method of appointing principals officers that the Framers adopted,”²² stressed that placing the appointment power with a single individual, rather than a multi-member body, ensured a measure of accountability for those appointments.²³ Although the public can reasonably hold a single individual accountable for his appointment choices, doing so for a multi-member body is much more difficult as the individual ultimately responsible for an appointment is “impenetrable to the public eye.”²⁴ Granting the appointment power to a single President was preferable to “a body of men” because a single individual would have a “livelier sense of duty and a more exact regard to reputation” in making appointments. A single President would have “fewer personal attachments to gratify[ ] than a body of men,” and “cannot be distracted and warped by that diversity of views, feelings, and interests, which frequently distract and warp the resolutions of a collective body.”²⁵ Rather than selecting the best candidate for an office on the merits, a collective body could simply trade votes in order to select their personal favorites based on “friendship and of affection.”²⁶ On the other hand, requiring Senate concurrence with regard to major appointments served as “an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters.”²⁷

The Framers of the Constitution thus placed the power of appointment for principal officers with a single individual—the President—because a single actor would more likely be held accountable for his choices.²⁸ This principle of accountability extended to the Framers’ provision that inferior officers may be appointed by the heads of executive departments, as the latter “possess a reputational stake in the quality of the individuals they appoint [and] are directly answerable to the President, who is responsible to his constituency.”²⁹ Further, at the Constitutional Convention, the delegates were also careful to prevent the “diffusion” of the appointment power by strictly limiting who can make appointments.³⁰ The Framers’ careful “husbanding [of] the appointment power to limit its diffusion . . . ensure[d] that those who wielded it were accountable to political force and the will of the people.”³¹ The importance of accountability for federal appointments and the crucial check the Appointments Clause provides between the branches of government are principles that have informed subsequent Supreme Court jurisprudence concerning the appointment of federal officials.

ArtII.S2.C2.3.3 Process of Appointment for Principal Officers

The appointment of principal officers of the United States consists of three steps.¹ First, the President nominates an individual to an office; second, the Senate decides whether to confirm that person to the office; ² and third, the President commissions the officer to the post.³ The Supreme Court has made clear that compliance with the procedures established in the Constitution for the appointment of officers, both principal and inferior, is not a mere formality. Indeed, the Court has sometimes invalidated actions taken by individuals whose selection conflicts with the requirements of the Appointments Clause and has severed provisions of statutes that violate those constraints.⁴

As an initial matter, Senate confirmation of an individual nominated to an office is insufficient to vest an individual with an appointment to that office absent a final act of appointment by the President.⁵ In other words, the President retains discretion not to appoint an individual even after Senate confirmation.⁶ In the seminal Supreme Court case of Marbury v. Madison, the Supreme Court held that the relevant final act of appointment for principal officers is the signing of a commission by the President, which is expressly required by Article II, Section 3 of the Constitution.⁷

The controversy in Marbury arose when President Thomas Jefferson ordered his Secretary of State, James Madison, not to deliver a commission to William Marbury, even though his predecessor, President John Adams, had already signed the commission.⁸ Marbury filed suit seeking a writ of mandamus to compel Madison to deliver the commission.⁹ The Court, in an opinion by Chief Justice John Marshall, ultimately held that it lacked jurisdiction to issue mandamus because the statute authorizing the Court to do so violated Article III by improperly expanding the original jurisdiction of the Supreme Court.¹⁰ Before reaching this conclusion, however, the Court ruled that Marbury did have a right to the commission because it had been signed by the President, thereby becoming “conclusive evidence” of Marbury’s appointment.¹¹ Justice John Marshall reasoned that an appointment is complete once the “last act” required of the appointing authority is completed.¹² Because the last act required of the President, as the relevant appointing authority, was the signing of the commission, Marbury’s appointment was completed when the President signed the commission.¹³

ArtII.S2.C2.3.4 Ambassadors, Ministers, and Consuls Appointments

The appointment of foreign diplomats stands in some contrast to the appointment of most domestic officers. Given the lack of Supreme Court precedent on the appointment of foreign diplomats, it appears that the appointment of such positions is primarily informed by the historical practice of the political branches. As discussed later, while positions in the federal government occupied by “officers of the United States” are typically established through statute by Congress or via authority delegated by Congress,¹ the Executive Branch has generally taken the view that the President enjoys an independent, inherent authority to create diplomatic offices.² The Executive Branch has espoused this view for most of the Republic’s history,³ and it appears to find support in the earliest governmental practices.⁴ The first Congresses appropriated money for conducting foreign relations but did not create any diplomatic posts; instead, Presidents simply appointed diplomats, subject to Senate confirmation.⁵ Generally speaking, it seems that Congress has acceded to this practice.⁶ In other words, the President has often appointed ambassadors to foreign countries even though no congressional statute explicitly created a particular diplomatic office to fill. At the same time, Congress has exercised some control over the creation and operation of foreign diplomatic posts, including by appropriating specific sums of money for salaries, creating particular offices which are then filled by the President, and imposing requirements for the selection of foreign officers via statute.⁷

Notwithstanding the practice of presidential appointment of diplomats to posts not necessarily created by statute, those diplomatic offices are generally considered to possess “the delegated sovereign authority to speak and act on behalf of the United States” and their selection must comply with the requirements of the Appointments Clause.⁸ Writing in the Federalist Papers, Alexander Hamilton noted that ambassadors and other public ministers are “the immediate representatives of their sovereigns” and consuls are the “public agents” of the nation.⁹ The view that such foreign diplomats constitute officers whose appointment must comply with the Appointments Clause is confirmed by the earliest historical practices of the Republic. For instance, President George Washington nominated William Short to be “chargé d’affaires”¹⁰ for France in 1789, and nominated ministers to London, Paris, and the Hague in 1791.¹¹ All were confirmed by the Senate.¹² The Executive Branch has consistently expressed its view that ambassadors, ministers, and consuls constitute officers of the United States whose appointments must conform to the Appointments Clause.¹³

In contrast, Presidents have routinely dispatched envoys, emissaries, and secret (sometimes known as special) agents on limited diplomatic missions without nominating them to the Senate.¹⁴ In one of his first acts as President, George Washington unilaterally appointed Gouverneur Morris as a “special agent” to England to consider the possibility of a commercial treaty.¹⁵ Additionally, President Thomas Jefferson unilaterally appointed Senator Daniel Smith to negotiate treaties with the Cherokee Indians.¹⁶ The justification for this historical practice appears to be that such agents are not officers of the United States under the Appointments Clause because their duties are limited in duration and exist only for a temporary purpose.¹⁷

ArtII.S2.C2.3.5 Appointments of Justices to the Supreme Court

The Appointments Clause provides that the President shall appoint, subject to Senate confirmation, “Judges of the supreme Court, and all other officers of the United States.”¹ Thus Supreme Court Justices are officers of the United States whose appointment must comply with the requirements of the Appointments Clause. Importantly, the Constitution provides that presidential nominees are subject to the “advice and consent” of the Senate. A range of matters are potentially relevant when the Senate considers whether to give its consent for nominations to the Nation’s highest court, including political considerations, a nominee’s judicial philosophy, fitness for the bench, past statements on issues relevant to the Court, and the overall balance of power between political factions.

Since the beginning of the Nation’s history, just as the confirmation of Executive Branch officers has included political considerations, so to have nominees to the Supreme Court been accepted or rejected on political grounds.² For instance, the Senate rejected President George Washington’s choice to replace the first Chief Justice of the Supreme Court on largely political considerations.³ In 1795, President Washington chose John Rutledge, who had previously served on the Supreme Court as an Associate Justice from 1789 to 1791, to replace John Jay, who had been elected Governor of New York.⁴ After serving on the Court from 1789 to 1791, Rutledge had resigned his seat in order to serve as the chief justice of South Carolina’s Supreme Court.⁵ Prior to receiving a nomination to serve as Chief Justice on the U.S. Supreme Court, however, Rutledge gave a speech critical of the Jay Treaty reached with Great Britain, which had recently been approved for ratification by the Senate on June 24, 1795.⁶ The Federalists strongly supported the treaty, and their opposition in the Senate to Rutledge’s views ultimately sunk his nomination.⁷ The Senate voted to reject the nomination in December 1795.⁸ Of course, the Senate is not unique in considering politics and partisan considerations in this arena—every one of the twelve appointments President Washington made to the Supreme Court came from the Federalist Party,⁹ and subsequent Presidents have considered politics in making their own appointments.¹⁰

Indeed, the political landscape profoundly informs and shapes the Supreme Court nomination and confirmation process. For instance, the timing of a Supreme Court vacancy can be crucially important: a vacancy occurring shortly before an election can alter the type of candidate that can realistically be confirmed; and prominent legal issues facing the country can affect the scope of appropriate views that a nominee must have.¹¹ The Senate’s composition can also restrict a President’s choices of who to nominate. A shift in party control of the Senate can dramatically alter the type of nominees a President can expect to be confirmed.¹² Likewise, public opinion of the President can shape the type of nominee a President can expect the Senate to support: a President with strong approval ratings, for instance, might face an easier task in achieving confirmation for a Justice, or might enjoy broader leeway in the type of Justice he could nominate in the first place.¹³ An outgoing Justice’s attributes can narrow the options available to a President. The President might find himself limited to moderate nominees when replacing a Justice seen as a swing vote on the Court. He might also find replacing a pillar of the right or left to require a nominee that appeals to one political side more strongly.¹⁴ Finally, traditional norms of professional expectations play a role in circumscribing the eligible range of potential Supreme Court nominees—every single Justice has been a lawyer (though this is not required by the Constitution); since 1943, all Justices have graduated from accredited law schools; and most modern Justices graduated from top-ranked law schools and served on federal courts or in academia before confirmation.¹⁵

The rise of interest groups influencing the selection of Supreme Court Justices also reflects the increasing role of issue partisanship in the process. The nomination of Louis Brandeis to the Court in 1916 sparked a four month struggle with opposition from big business and past presidents of the American Bar Association.¹⁶ Objections to his nomination included his judicial temperament and character, the alleged radicalism of his views, and also arguably reflected an anti-Semitic character.¹⁷ He was eventually confirmed with the support of labor, consumer, and some religious groups.¹⁸ Opposition to President Ronald Reagan’s nomination of Robert Bork to the Supreme Court is a particularly prominent example of the role interest groups may play.¹⁹ Both labor and civil rights groups mounted significant opposition to the nomination. In the wake of that opposition’s success, conservative groups were organized to counteract the perceived role of liberal interest organizations in influencing judicial nominations.²⁰

Another important development regarding the selection of Supreme Court nominees is the increasingly public nature of the process. It was not until the twentieth century that open hearings were held over a Supreme Court nomination.²¹ In 1916, the Senate did so for the nomination of Louis Brandeis.²² Nine years later, Harlan Fiske Stone was the first nominee to appear personally before the Senate Judiciary Committee.²³ Stone’s testimony was limited to the Teapot Dome Scandal. In 1939, Felix Frankfurter appeared before the Senate Judiciary Committee and was “the first nominee to take unrestricted questions in an open, transcribed, public hearing.”²⁴ Almost all nominees since 1955 have testified formally before the Senate Judiciary Committee.²⁵ Those hearings have been televised since 1981.²⁶ Finally, the particular procedures used by the Senate in considering nominations can affect the likelihood of confirmation for a Supreme Court Justice. In cases where the Senate has eliminated the sixty vote threshold necessary for confirmation, it may be easier to confirm a nominee to the bench (notwithstanding accompanying political ramifications).²⁷

ArtII.S2.C2.3.6 Creation of Federal Offices

The Constitution gives Congress substantial power to establish federal government offices. As an initial matter, the Constitution vests the legislative power in Congress.¹ Article I bestows on Congress certain specified, or enumerated, powers.² The Court has recognized that these powers are supplemented by the Necessary and Proper Clause, which provides Congress with “broad power to enact laws that are ‘convenient, or useful’ or ‘conducive’ to [the] beneficial exercise” of its more specific authorities.³ The Supreme Court has observed that the Necessary and Proper Clause authorizes Congress to establish federal offices.⁴ Congress accordingly enjoys broad authority to create government offices to carry out various statutory functions and directives.⁵ The legislature may establish government offices not expressly mentioned in the Constitution in order to carry out its enumerated powers.⁶

The Appointments Clause supplies the method of appointment for certain specified officials, but also for “other [o]fficers” whose positions are “established by [l]aw.” Although principal officers must be nominated by the President and confirmed by the Senate, Congress “may by [l]aw” place the appointing power for inferior officers with the President alone, a department head, or a court.⁷ As this section will explain, the Supreme Court has recognized Congress’s discretion to establish a wide variety of governmental entities in the Executive, Legislative, and Judicial Branches.

Congress’s authority to establish offices is limited by the terms of the Appointments Clause. The structure of federal agencies must comply with the requirement that the President appoint officers, subject to Senate confirmation, although the appointment of “inferior officers” may rest with the President alone, department heads, or the courts.⁸ More broadly, the Supreme Court has made clear that the Constitution imposes important limits on Congress’s ability to influence or control the actions of officers once they are appointed. Likewise, it is widely believed that the President must retain a certain amount of independent discretion in selecting officers that Congress may not impede. These principles ensure that the President may fulfill his constitutional duty under Article II to “take [c]are” that the laws are faithfully executed.⁹

ArtII.S2.C2.3.7 Creation of Federal Offices with Blended Features

The Supreme Court has recognized that the Constitution grants broad discretion to Congress to establish various offices across the federal government. Aside from Congress’s clear authority to create Executive Branch offices to be filled by officers that execute the law,¹ as well as federal courts filled with judicial officers to adjudicate cases and controversies,² Congress may sometimes merge features of various federal entities and establish unique agencies within the federal government. For instance, in the 1989 case of Mistretta v. United States, the Court ruled that the structure of the United States Sentencing Commission, an entity placed by Congress in the Judicial Branch and charged with promulgating sentencing guidelines for the federal courts, did not violate the separation of powers.³ The Commission was composed of seven voting members appointed by the President with Senate confirmation.⁴ The law required at least three members to be federal judges, and the President could remove Commission members for cause.⁵ The challenger in that case argued, among other things,⁶ that Congress’s delegation of power to the Judiciary, and individual Article III judges, to promulgate sentencing guidelines was unconstitutional as it enlisted the Judiciary in exercising legislative authority.⁷ In addition, the challenger argued that Congress had “eroded the integrity and independence of the Judiciary” by forcing Article III judges to share their power with non-judges and engage in the political work of promulgating sentencing guidelines. Further, while Article III judges enjoy constitutional protection from removal except for impeachment, here the statute required Article III judges to serve on the Commission subject to removal by the President.⁸

Acknowledging that the Commission constituted “an unusual hybrid in structure and authority” within the federal government, the Supreme Court upheld, in a vote of 8-1, the constitutionality of the Commission’s design and duties.⁹ In an opinion by Justice Harry Blackmun, the Court first examined whether creating an independent body, placed in the Judicial Branch, with the power to issue sentencing guidelines “vested in the Commission powers that are more appropriately performed by the other Branches or . . . undermine[d] the integrity of the judiciary.”¹⁰ The Court noted that “Congress may delegate to the Judicial Branch nonadjudicatory functions that do not trench upon the prerogatives of another Branch and that are appropriate to the central mission of the Judiciary.”¹¹ Because judges have historically exercised discretion in sentencing decisions and the Judiciary has long exercised authority to issue rules “for carrying into execution [its] judgments,” the Court reasoned that Congress could combine these features in the Commission and entrust it with the power to promulgate sentencing guidelines.¹² Although technically located in the Judicial Branch, the Commission’s powers, the Court observed, were not unconstitutionally “united with the powers of the Judiciary.”¹³ The Commission was not a court, did not exercise judicial power, and was not controlled by the Judicial Branch; instead, the Commission was an independent agency accountable to Congress and its members were removable by the President.¹⁴ In addition, placement of the Commission in the Judicial Branch did not increase that branch’s authority.¹⁵ Judges had historically decided sentencing questions in individual cases; the Commission simply did this via the promulgation of sentencing guidelines.¹⁶

The Court next turned to the composition of the Commission and concluded that its design did not undermine the integrity of the Judicial Branch.¹⁷ The service of three federal judges on the Commission, though “somewhat troublesome” in the eyes of the Court, did not on balance interfere with the integrity of the federal Judiciary as a whole.¹⁸ The Court looked to the early historical practices of the country and determined that Article III of the Constitution did not bar judges from undertaking certain extrajudicial duties.¹⁹ The judges on the Commission did not serve “pursuant to their status and authority as Article III judges, but solely because of their appointment by the President as the Act directs.”²⁰ The power wielded by the judges as Commissioners thus was not judicial in nature, but administrative, pursuant to the legislation creating the commission.²¹ The judges’ service did not ultimately undermine the impartiality of the Judiciary because the Commission’s task did “not enlist the resources or reputation of the Judicial Branch in either the legislative business of determining what conduct should be criminalized or the executive business of enforcing the law.”²² Instead, the Commission was dedicated to promulgating rules for sentencing, a topic traditionally within the province of the Judiciary.²³

Finally, the Court examined the extent of the President’s control over the Commission’s functioning.²⁴ The Court determined that the President’s power to remove the Commissioners for cause did not “compromise the impartiality” of the Judiciary or prevent that branch from performing its constitutional function because, even if removed as a Commissioner, a judge retained the status of an Article III judge.²⁵

ArtII.S2.C2.3.8 Federal Versus Territorial Officers

Not every office created by Congress is a federal office subject to the Appointments Clause.¹ In Financial Oversight & Management Board for Puerto Rico v. Aurelius Investment, LLC, the Court considered the constitutionality of an oversight board (the Board) that Congress created in 2016 to manage financial issues of the Commonwealth of Puerto Rico, a U.S. territory.² Writing for the Court, Justice Stephen Breyer explained that provisions in Articles I and IV of the Constitution “empower Congress to create local offices for the District of Columbia and for Puerto Rico and the Territories.”³ Based on the Constitution’s text, structure, and history, the Court reasoned that creating a local office “does not automatically make its holder an ‘Officer of the United States’” within the meaning of Article II’s Appointments Clause.⁴ At the same time, an official’s location in a territory does not, standing alone, exempt that office from the Appointment Clause’s reach.⁵ Instead, when Congress exercises its Article I or IV powers to create a local or territorial office, the Court examines whether Congress vested that official with “primarily local powers and duties.”⁶ If so, the official is not an “Officer of the United States” subject to the Appointments Clause.⁷

Based on the text of the 2016 law, the Aurelius Court concluded that when Congress created the Board, it exercised its Article IV powers under the Territories Clause.⁸ And the Court concluded that the powers and duties that Congress assigned to the Board were “primarily local in nature.”⁹ Justice Breyer cited several factors that “taken together” demonstrated the Board’s local nature: (1) the government of Puerto Rico paid the Board’s expenses; (2) the Board developed fiscal plans with the elected government of Puerto Rico and could initiate bankruptcy proceedings for Puerto Rico; and (3) the Board’s “broad investigatory powers”—akin to what federal officers exercise—were “backed by Puerto Rican, not federal, law.”¹⁰ Accordingly, the Court held that Board members were territorial officers, not federal “Officers,” and thus their selection need not comply with the Appointments Clause.¹¹

ArtII.S2.C2.3.9 Restrictions on Congress’s Authority

While Congress enjoys a certain amount of discretion when designing federal agencies, the Supreme Court has regularly invalidated congressional attempts to “aggrandiz[e] its own power at the expense of another branch.”¹ For instance, while Congress may undoubtedly establish a wide variety of federal offices to carry out statutory duties, it may not appoint its own Members to carry out executive functions or reserve for itself the power of appointment.² In the 1991 case of Metropolitan Washington Airports Authority v. Citizens for the Abatement of Aircraft Noise, the Supreme Court examined the constitutionality of legislation that authorized a review board composed of Members of Congress to review and reverse decisions of the Metropolitan Washington Airports Authority (MWAA).³ The MWAA is a regional body established to oversee the management and operations of Ronald Reagan Washington National Airport and Dulles International Airport.

The Court first ruled that Members of Congress on the Board exercised federal authority, even though the law specified that they would serve “in their individual capacities”⁴ as opposed to serving in their official role as legislators.⁵ In support of this conclusion, the Court noted that control over the airports in question was originally placed with the federal government and was transferred to the MWAA on condition that the States create the Board; the federal government has a significant interest in the operation of airports, which are crucial to government operations; and membership on the Board was limited to federal officials.⁶

Moreover, Congress exercised significant power over the appointment and removal of the Board members. The law required that the Board consist of nine members of Congress, eight of whom had to sit on specific congressional committees, chosen from a list provided by congressional leadership.⁷ There was no requirement that the lists contain more recommendations than openings on the Board.⁸ The Court concluded that this structure ensured congressional control of appointments.⁹ Further, by controlling committee assignments, Congress had removal power over the Board “because depriving a Board member of membership in the relevant committees deprives the member of authority to sit on the Board.”¹⁰

The Court ruled that the statute’s provision requiring Members of Congress to sit on the Board violated the separation of powers.¹¹ The Court did not expressly decide whether the Board’s power was executive or legislative in nature, but reasoned that, no matter how it was characterized, the statute’s grant of authority to the Board was not constitutional.¹² If the Board’s power was executive in nature, the Court explained, the Constitution barred an agent of Congress from exercising it; and if the Board’s power was legislative, then the Board could not operate without following the constitutional requirements of bicameralism and presentment for legislative action.¹³

Congress’s control over appointments is further limited on the question of who can remove an incumbent officer.¹⁴ In the 1986 case of Bowsher v. Synar, the Supreme Court invalidated a statute that gave an official controlled by Congress the power to order a decrease in federal spending.¹⁵ A 1985 act¹⁶ gave the Comptroller General authority, in the event of a budget shortfall, to issue a report detailing federal revenue and expenditure estimates, along with the specific reductions needed to cut the deficit to meet a statutory target.¹⁷ The President was then required to order the “sequestration” of those funds pursuant to the Comptroller General’s report.¹⁸ The Court held that the Comptroller’s power to trigger sequestration violated the separation of powers because a preexisting provision authorized Congress to remove the Comptroller General, who Congress viewed as an officer of the legislature,¹⁹ through a joint resolution.²⁰ The High Court explained that the Constitution’s division of power among the three branches of government barred “an active role for Congress in the supervision of officers charged with the execution of the laws it enacts.”²¹ The Court rejected the argument that the Comptroller Generalwas sufficiently independent from Congress such that there was no constitutional violation. The power of removal, for the Court, is a crucial tool of control; Congress’s ability to remove the Comptroller General “dictate[s] that he will be subservient to Congress.”²² As a remedy for this constitutional defect, the Court left Congress’s removal power in place, but invalidated the executive functions given to the Comptroller General.²³

Just as Congress may not appoint Members to wield executive power or exercise direct control over Executive Branch officers, its authority to impose procedural restrictions on the President’s nomination of an officer may also be limited. This issue arose in the 1989 Supreme Court case of Public Citizen v. Department of Justice, which examined whether the Federal Advisory Committee Act (FACA) applied to consultations between the Department of Justice (DOJ) and the American Bar Association’s Standing Committee on Federal Judiciary (ABA Committee).²⁴ The FACA required committees that advise the President, or other officers and agencies in the federal government, to follow a number of procedural requirements, such as filing a charter; keeping detailed minutes of meetings; and having meetings chaired by a federal government employee or officer authorized to adjourn any meeting.²⁵ The Court considered whether the Act covered consultations between DOJ and the ABA Committee regarding presidential nominations of federal judges. It noted that a strictly literal interpretation of the statute would conceivably reach every instance in which the President or an agency sought advice from “any group of two or more persons, or at least any formal organization,” including private entities.²⁶ The Court concluded that Congress did not intend that result, as it would mean the procedural requirements of FACA applied every time the President sought the views of a group of two or more people, “or at least any formal organization.”²⁷

Accordingly, the Court examined Congress’s intention in passing the FACA, including that Act’s legislative history as well as the history of other efforts “to regulate the Federal Government’s use of advisory committees.”²⁸ The Court reasoned that it ultimately was a “close question whether FACA should be construed to apply to the ABA Committee,” but constitutional considerations “tip[ped] the balance decisively against FACA’s application.”²⁹ The Court invoked the concept of constitutional avoidance, which essentially teaches that when faced with statutory ambiguity, if one interpretation of a statute would raise constitutional problems, but another, fairly possible interpretation does not, courts should adopt the latter construction.³⁰ The Court concluded that applying FACA to DOJ’s consultations with the ABA Committee “would present formidable constitutional difficulties,” namely, potentially infringing on the President’s constitutional duty under Article II to nominate federal judges.³¹ The Court accordingly concluded that FACA did not apply to DOJ’s confidential consultations with the ABA Committee.³²

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

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 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

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

ArtII.S2.C2.3.11.1 Overview of Principal and Inferior Officers

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 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 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

ArtII.S2.C2.3.11.2 Early Doctrine on Principal and Inferior Officers

In cases arising in the nineteenth century and the early twentieth century, the Supreme Court—when it analyzed the issue at all—considered a range of factors in determining whether an official was a principal or an inferior officer, including who appointed the individual, the nature and purpose of the position established by Congress, the historical practice surrounding the appointment of such officials, and the practical consequences of requiring a particular method of appointment.¹ The following cases illustrate the Court’s varied approaches to the question.

In Ex parte Hennen, the Supreme Court considered the authority of the U.S. District Court for the Eastern District of Louisiana (Louisiana district court) to appoint, and later to remove, the clerk of that court.² The Court held that without question, “a clerk is one of the inferior officers contemplated by [the] provision” in the Appointments Clause allowing Congress to vest the appointment of inferior officers in the courts of law.³ The Court appeared to base its holding on the fact that Congress, through a series of statutes, established the Louisiana district court and directed the judge of that court to appoint a clerk.⁴ In other words, Congress may have thought that clerks did not need to be appointed by the President because they did not constitute principal officers.

In Ex parte Siebold, the Supreme Court considered, among other issues, whether Congress had the authority to enact a law that required federal circuit courts to appoint election supervisors, who would monitor voting precincts within states where elections for congressional office were held. The challengers alleged that the election supervisors’ duties were “entirely executive” (rather than judicial) in nature, so courts should not be permitted to appoint such officers.⁵ The Court analyzed the constitutionality of the allegedly interbranch appointments on the apparent assumption that election supervisors were inferior officers.⁶ The Court reasoned that although “[i]t is no doubt usual and proper to vest the appointment of inferior officers in that department of the government, executive or judicial, or in that particular executive department to which the duties of such officers appertain,” the Constitution does not contain an “absolute requirement to this effect.”⁷

Just before the turn of the century, in United States v. Eaton, the Supreme Court considered the constitutionality of a statute allowing the President to “provide for the appointment of vice-consuls . . . in such manner and under such regulations as he shall deem proper,” in view of the Appointments Clause’s requirement of presidential nomination and Senate confirmation for the appointment of “consuls.”⁸ The Court held that vice-consuls, as defined in the statute, were inferior officers.⁹ The Court looked to the nature of the office and noted that it was temporary and subordinate to other offices. In particular, the President could only appoint vice-consuls in temporary situations, when there was an absence or vacancy. Even though vice-consuls assumed the duties of their superior officers in those circumstances,¹⁰ the Court reasoned that the delegation was “for a limited time and under special and temporary conditions,” and thus did not “transform[ ]” the vice-consuls into principal officers.¹¹

The Court also examined historical practices concerning the vice-consul position. The Court noted that while vice-consuls were nominated by the President and confirmed by the Senate in “the earlier periods of the Government,” those vice-consuls served as “permanent and in reality principal officers.”¹² The Executive’s prevailing practice in the case of consular office vacancies was to pay the acting officials as “de facto officers” for their temporary service, without requiring an appointment.¹³ Finally, the Court expressed concern that “the discharge of administrative duties would be seriously hindered” if the Court invalidated “any and every delegation of power to an inferior to perform under any circumstances or exigency the duties of a superior officer.”¹⁴

The Court thus concluded that the Appointments Clause’s reference to “consuls” (who appear to qualify as principal officers) “does not embrace a subordinate and temporary office like that of vice-consul as defined in the statute.”¹⁵ Because vice-consuls qualified as inferior officers, Congress could place the power to appoint them with the President alone as provided in the Appointments Clause.

In its 1931 decision in Go-Bart Importing Co. v. United States, the Court determined that a United States commissioner was an inferior officer based on his relationship with the federal district court that appointed him.¹⁶ At that time, a federal statute authorized federal district courts to appoint commissioners, and authorized the commissioners to perform numerous functions, including making arrests, imposing pretrial imprisonment or bail, issuing warrants, and enforcing the arbitration awards of foreign consuls in certain disputes.¹⁷ The Court held that, at least on the facts of the Go-Bart case, in considering the commissioner’s ability to issue an arrest warrant and conducted an arraignment, the commissioner was an inferior officer.¹⁸ The Court reasoned that all of the commissioner’s acts “were preparatory and preliminary to a consideration of the charge by a grand jury and . . . [upon indictment,] the final disposition of the case in the district court.”¹⁹ In this regard, the Court reasoned, the commissioner “acted not as a court, or as a judge of any court, but as a mere officer of the district court in proceedings of which that court had authority to take control at any time.”²⁰

As the foregoing cases demonstrate, no clear line separated principal from inferior officers during this time.

ArtII.S2.C2.3.11.3 Modern Doctrine on Principal and Inferior Officers

In the late twentieth century, in cases addressing the difference between principal and inferior officers, the Court began to emphasize the duties and discretion accompanying each office in a multi-factor analysis.¹

In the 1988 case of Morrison v. Olson, the Court considered the constitutionality of the “independent counsel” provisions of the Ethics in Government Act.² The Act required the Attorney General to conduct a preliminary investigation into potential violations of certain federal criminal laws by certain high-ranking federal officials and to report his findings to a special court created by the act called the Special Division.³ It also authorized the Special Division to appoint an independent counsel upon the Attorney General’s application.⁴

In considering whether this independent counsel was a principal or an inferior officer, the Court declined to decide “exactly where the line falls” between the two types of officers.⁵ However, in the Court’s view, “several factors” placed the independent counsel squarely on the “‘inferior officer’ side of that line.”⁶ First, the Attorney General had the authority to remove the independent counsel, which suggested that the latter was “to some degree ‘inferior’ in rank and authority.”⁷ Second, Congress, through the Ethics in Government Act, limited the independent counsel’s role to investigating and prosecuting specific federal crimes, granting him or her no authority to formulate federal policy or to exercise administrative duties apart from those necessary to operate this office.⁸ Third, the Special Division defined and thereby circumscribed the independent counsel’s prosecutorial jurisdiction to a “limited” sphere.⁹ And fourth, the independent counsel’s office was temporary in that it terminated upon the conclusion of the investigation.¹⁰ The Court held that “these factors relating to the ‘ideas of tenure, duration . . . and duties’ of the independent counsel are sufficient to establish that appellant is an ‘inferior’ officer in the constitutional sense.”¹¹

In Edmond v. United States, the Supreme Court considered whether judges of the Coast Guard Court of Criminal Appeals (Coast Guard Court) were principal or inferior officers in order to determine the constitutionality of the Secretary of Transportation’s appointments of civilian judges to that court.¹² The Supreme Court began by observing that its cases up to that point had “not set forth an exclusive criterion for distinguishing between principal and inferior officers”¹³ and that Coast Guard Court judges did not share all of the characteristics of officials previously held to be inferior officers.¹⁴ For instance, the position of Coast Guard Court judge was not limited in tenure or jurisdiction in the same way as the independent counsel position deemed to be an inferior office in Morrison.¹⁵ Although the Supreme Court acknowledged that the Coast Guard Court judges exercised “significant authority on behalf of the United States” (and were therefore officers), it held that such authority is a shared feature of inferior and principal officers and “marks, not the line between principal and inferior officer[s] . . . [but] the line between officer and non-officer.”¹⁶ Departing from its functional analysis in Morrison, the Court applied a more formal test—inferior officers are those “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.”¹⁷

The Supreme Court proceeded to identify two entities that directed and supervised the Coast Guard Court judges’ work.¹⁸ The first, the Judge Advocate General, exercised “administrative oversight” over the court by prescribing procedural rules for the court and formulating policies applicable to appeals of court-martial cases.¹⁹ The Judge Advocate General also had authority to remove Coast Guard Court judges from their judicial assignments at will.²⁰ The Supreme Court observed that the second entity exercising supervisory authority—the Court of Appeals for the Armed Forces (Appeals Court)—reviewed decisions of the Coast Guard Court in certain circumstances. In such cases, the Appeals Court deferred to the factual findings of the Coast Guard Court when there was “some competent evidence in the record to establish each element of the offense beyond a reasonable doubt” but ultimately had the power to reverse the Coast Guard Court’s decisions.²¹ The Supreme Court held that in view of the supervisory roles of the Judge Advocate General and the Appeals Court, and notwithstanding the limitations on the latter’s scope of review, the Coast Guard Court judges had “no power to render a final decision on behalf of the United States unless permitted to do so by other executive officers,” and thus were inferior, not principal, officers.²² Accordingly, the Court affirmed the validity of the Secretary of Transportation’s civilian appointments to the Coast Guard Court.²³

In 2010, the Supreme Court decided Free Enterprise Fund v. Public Company Accounting Oversight Board (PCAOB or Board), a case centrally concerned with the constitutionality of limitations on the removal of members of the PCAOB, a board overseen by the Securities and Exchange Commission (SEC) and charged with, among other things, enforcing federal securities laws and promulgating professional accounting standards.²⁴ The Court first invalidated a statutory restriction on removing the PCAOB members, concluding that this good-cause removal protection violated Article II when combined with a second good-cause restriction on removing SEC members.²⁵ With this provision severed from the statute, the Court then rejected an additional constitutional challenge to the method of appointment of PCAOB members: the plaintiffs argued that, due to the significance of the duties the PCAOB members had, they were principal officers who must be appointed by the President and confirmed by the Senate.²⁶ The Court held, however, that the Board members were inferior, rather than principal, officers based on its reasoning in Edmond.²⁷ Specifically, the Court held that “[g]iven that the Commission is properly viewed, under the Constitution, as possessing the power to remove Board members at will, and given the Commission’s other oversight authority, we have no hesitation in concluding that under Edmond the Board members are inferior officers.”²⁸

The Court considered the potential for review by a superior, Executive Branch official to be similarly critical in its 2021 decision in United States v. Arthrex, Inc..²⁹ Arthrex held that administrative patent judges’ ability to render unreviewable decisions in certain proceedings, combined with protections against at-will removal, was “incompatible” with their appointment as inferior officers.³⁰ To remedy the constitutional defect, the Court ruled that the Director of the Patent and Trademark Office could review administrative patent judges’ decisions unilaterally in the proceedings at issue, rendering “unenforceable” a particular statutory provision limiting the Director’s review.³¹

ArtII.S2.C2.3.12 Departments Heads and Courts of Law

A related, recurring issue in the Court’s Appointments Clause jurisprudence is the meaning of the terms “Heads of Departments” and “Courts of Law.” For example, the Court in Freytag v. Commissioner analyzed whether the United States Tax Court was a “department” (headed by the Chief Judge) or a “court of law” in discussing the appointing authority for special trial judges of that court.¹ All nine Justices agreed that the Chief Judge could constitutionally appoint special trial judges, but they disagreed on the rationale. The five Justices in the majority opined that the Tax Court could not be a department because “departments” usually were denominated as such and headed by a cabinet officer.² The Court also observed that “[c]onfining the term ‘Heads of Departments’ . . . to executive divisions like the Cabinet-level departments constrains the distribution of the appointment power” because “Cabinet-level departments are limited in number and easily identified” and their heads “are subject to the exercise of political oversight and share the President’s accountability to the people.”³ In the end, the Court sustained the challenged provision by holding that the Tax Court, as an Article I court, was a “Court of Law” within the meaning of the Appointments Clause.⁴ The other four Justices would have held that the Tax Court, as an independent establishment in the Executive Branch, was a “Department” for purposes of the Appointments Clause.⁵

The Court has also indicated that for purposes of the Appointments Clause, “Heads of Departments” can be understood more broadly than simply applying to the head of a traditional Cabinet-level agency. In Free Enterprise Fund v. Public Company Accounting Oversight Board, the Court invalidated as unconstitutional the combination of two layers of removal protection for members of the PCAOB.⁶ The underlying statute provided that PCAOB members could only be removed for cause by the Securities and Exchange Commission (SEC). But the SEC members themselves could not be removed by the President except for cause. After invalidating the statutory removal protection for the PCAOB members, the Court ruled that appointment by the SEC of the PCAOB members was permissible under the Constitution.⁷

Because the Court had invalidated the removal protections for the PCAOB members, they were now removable at will by the SEC. And combined with the other oversight authority the SEC had over the PCAOB, according to its reasoning in Edmond v. United States, discussed earlier,⁸ the Court concluded that the Board members were inferior officers eligible to be appointed by head of a department under the Appointments Clause.⁹ Finally, the Court ruled that because the SEC “is a freestanding component of the Executive Branch, not subordinate to or contained within any other such component,” the SEC members qualified as a “Head” of a “Department” under the Appointments Clause.¹⁰

ArtII.S2.C2.3.13 Changing the Duties of an Existing Officer

Once an individual has been appointed to an office pursuant to the Appointments Clause, questions can arise concerning the circumstances in which an officer’s duties may be altered after the officer’s appointment. In the 1893 case of Shoemaker v. United States, the Court examined a statute that established a commission to oversee development of Rock Creek Park in the District of Columbia.¹ The Commission included two government officials who had already been appointed by the President and confirmed by the Senate to other positions, but the plaintiffs argued that they needed to be separately appointed and confirmed in order to serve on the Commission.² They argued that while Congress may create offices, it may not circumvent the Appointments Clause by vesting additional powers in an existing officer. The Court ruled that because the officers in question had already been appointed through advice and consent, new duties “germane” to their offices could be assigned to them without a subsequent appointment and confirmation.³ The Court rejected the appointments challenge because the new duties assigned to the officers were not “dissimilar to, or outside of the sphere of, their official duties.”⁴ Congress thus enjoys some discretion to “increase the power and duties of an existing office” without the necessity of a new appointment.⁵

Similarly, in the 1994 case of Weiss v. United States, the Court considered whether the selection of military judges to try criminal cases in the military justice system violated the Appointments Clause.⁶ Like the commissioners in Shoemaker, the military judges were already appointed by the President and confirmed by the Senate when they received their commissions as military officers.⁷ Selection for the role of military judges was made by the Judge Advocate General for each of the military service branches.⁸ The question in Weiss was whether serving as a military judge necessitated another appointment consistent with the Appointments Clause.⁹ The Court distinguished the situation in Shoemaker. Shoemaker’s germaneness test, the Court explained, helped to “ensure that Congress was not circumventing the Appointments Clause by unilaterally appointing an incumbent to a new and distinct office.”¹⁰ Unlike in Shoemaker where Congress had assigned specific, incumbent officers to new roles, here Congress had authorized the selection of an “indefinite number” of military judges “from among hundreds or perhaps thousands” of qualified commissioned officers.¹¹ Thus, in Weiss, the Court found “no ground for suspicion” that “Congress was trying to both create an office and also select a particular individual to fill” that office.¹²

Further, even if Shoemaker’s germaneness standard applied, the Court concluded that the test was nevertheless satisfied in Weiss.¹³ All military officers, the Court reasoned, “play a role in the operation of the military justice system,” as they are authorized to impose punishments and act as a summary court-martial or president of a court-martial without a judge.¹⁴ In the Court’s view, the military judge position is less distinct from other positions in the military than a judge in civilian society is from other civilian offices. Unless detailed to a court-martial, military judges have no more authority than another commissioned military officer.¹⁵ The Court concluded that the Appointments Clause did not require a separate appointment for military officers to the position of military judge.¹⁶

The Constitution thus does not give Congress unfettered discretion to augment the powers of existing offices. However, it may permit Congress to add duties that are germane to an office or to make an existing category of officers eligible for a new assignment akin to their existing duties, without requiring a new appointment. Given the paucity of case law on these issues, there may be limits that have not received extensive treatment by the Supreme Court. For instance, the Court has not had occasion to squarely address the hypothetical situation where Congress grants additional duties to an inferior officer (who was not subject to Senate advice and consent) such that the new duties transform the position to that of a principal officer.¹⁷

ArtII.S2.C2.3.14 Interbranch Appointments

The Appointments Clause provides that Congress may vest the appointment of inferior officers with the President alone, department heads, or the courts of law.¹ Both the Executive and Judicial Branches may thus be vested with authority to appoint inferior officers, as that term has been understood by the Supreme Court.² One recurring issue in litigation in this area has been whether Congress may authorize one branch of government to appoint inferior officers in another branch. For instance, may Congress entrust the courts of law with the power to appoint officers in the Executive Branch? The Supreme Court first squarely addressed the issue in the 1879 case of Ex parte Siebold, which examined the constitutionality of placing the power to appoint election supervisors—officers whose duties were allegedly “entirely executive in character”—with the Circuit Courts.³ At issue was whether the Constitution permits “the courts of the United States to appoint officers whose duties are not connected with the judicial department.”⁴ The Supreme Court noted that the Constitution included no “absolute requirement” that Congress vest the “appointment of inferior officers in that department of the government . . . to which the duties of such officers pertain.”⁵ The Court reasoned that there was no “incongruity” between the judicial function and the appointment of election supervisors.⁶ Therefore, the Court ruled, the interbranch appointment by the Judiciary of election supervisors did not violate the Constitution.

Likewise, the 1987 Supreme Court case of Young v. United States ex rel. Vuitton et Fils S.A. affirmed the inherent power of the Judiciary to appoint individuals to prosecute certain crimes—namely, contempt proceedings.⁷ In that case, a federal district court appointed private attorneys to prosecute the defendants in a criminal contempt proceeding for violating a judicial injunction.⁸ The Court ultimately reversed the convictions because those private attorneys represented the beneficiary of the injunction and were thus unable to function as disinterested prosecutors on behalf of the government.⁹ However, it first expounded on the inherent power of the Judiciary to appoint private attorneys to prosecute criminal contempt proceedings.¹⁰ Although the power of prosecution is traditionally an executive function, the Judiciary nevertheless retains the inherent power to appoint attorneys to prosecute a contempt action in order to “vindicate” the Judiciary’s authority to “enforce orders and to punish acts of disobedience.”¹¹ The Court reasoned that a court’s power to initiate prosecutions for contempt was not limited to punishing “in-court contempts that interfere with the judicial process,” but included “out-of-court contempt[s], which require prosecution by a party other than the court.”¹²

One year later in 1988, the Supreme Court also upheld Congress’s power to vest the appointment of an independent prosecutor with the Judiciary. In Morrison v. Olson,¹³ the Court considered the constitutionality of the independent counsel statute,¹⁴ which required the Attorney General to apply in certain circumstances to a Special Division of the U.S. Court of Appeals for the D.C. Circuit for the appointment of an independent counsel.¹⁵ The Special Division was composed of three federal judges¹⁶ and enjoyed final authority to appoint and define the jurisdiction of an independent counsel, who would investigate and prosecute crimes committed by certain Executive Branch officials as well as individuals connected to presidential campaign committees.¹⁷ In considering a challenge to Congress’s authority to vest the appointment of the independent counsel outside the Executive Branch, the Court observed that the text of the Constitution appeared to give Congress broad discretion in choosing whether to place the appointment of inferior officers with the Judiciary, department heads, or the President.¹⁸ Further, the Court noted that its prior decision in Siebold rejected a requirement that the appointment of inferior officers be vested in the specific branch of government to which the duties of those officers relate.¹⁹ The Court explained that its prior decision in Vuitton had recognized a court’s inherent power to appoint private attorneys to prosecute criminal contempt proceedings. The Court also noted with approval Congress’s vestment of power with district courts to make interim appointments of United States Attorneys.²⁰ In light of these considerations, combined with the fact that the independent counsel statute barred judges of the Special Division from participating in any judicial proceeding concerning matters that involve an independent counsel they appointed, the appointment of the independent counsel by the Judiciary did not infringe upon “the constitutional limitation on ‘incongruous’ interbranch appointments.”²¹

ArtII.S2.C2.3.15.1 Overview of Removal of Executive Branch Officers

The Appointments Clause delineates the method of appointment for “Officers of the United States.” Other provisions of the Constitution indicate that both judges and Executive Officers may be removed through impeachment;¹ and both may also voluntarily retire from their positions.² However, while the Constitution elsewhere provides that judicial officers maintain their office for life,³ it is silent as to the tenure for Executive Branch officers.⁴ Historical practice and judicial decisions acknowledge that the President is empowered to remove those officers he appoints without assent from Congress.⁵ Congress has, however, historically enacted legislation that shields certain Executive Branch officials from removal except for cause, although exactly which types of officials may be protected is not settled definitively. Even for those officers who may be protected from at-will removal, Congress’s ability to insulate them from presidential control is not unlimited; for instance, Congress generally may not impose two layers of removal protection on a specific office (i.e., Congress may not provide that an inferior officer may only be removed for cause if his superior officer is also protected by a for-cause removal provision).⁶ As explained infra, in examining statutory protections from removal for Executive Branch officers, the Court has sometimes applied a formalist approach to interpreting the Constitution, stressing the importance of the text’s division of powers among the three branches.⁷ At other times it has applied a more functional analysis, giving Congress more room to design agencies as long as the broad background principle of a balance of power between the branches is respected.⁸

ArtII.S2.C2.3.15.2 Decision of 1789 and Removals in Early Republic

While the Constitution provides that federal judges shall retain their “offices during good behavior,” which the Court has interpreted to mean that judges are entitled to life tenure absent resignation or impeachment,¹ it does not expressly specify how long Executive Branch officers may remain in office (although they may retire and are subject to impeachment).² The Framers’ understanding of the removal power—regarding both who wields the power to remove Executive Branch officers as well as the circumstances in which they may be removed—is not clear from the records of the Constitutional Convention or other contemporaneous documents.³ However, a major debate and decision of the First Congress on the matter, commonly known as the “Decision of 1789,” has informed the Nation’s understanding of where the removal power is placed,⁴ although scholars and judges disagree about the best understanding of that decision.⁵ The implications of the Decision of 1789 are particularly important because the Supreme Court has made clear that the views of the First Congress are “weighty evidence” of the Constitution’s meaning since many of the Framers were elected to that body.⁶

The Decision of 1789 concerns the debate in the First Congress over whether the Constitution authorizes the President to remove Executive Branch officers unilaterally.⁷ On May 19, 1789, Representative Elias Boudinot proposed establishing the executive departments of the Treasury, War, and Foreign Affairs;⁸ Representative James Madison subsequently proposed that the Secretaries of these Departments be removable by the President alone.⁹ The House debated the issue for over a month,¹⁰ focusing in particular on whether the President enjoyed power under the Constitution to remove government officers absent legislation specifically authorizing him to do so.¹¹ Congress eventually passed bills for each department that removed any explicit mention of removal authority, but provided that a lower-level department official would take custody of the department’s records whenever the department head “shall be removed from office by the President of the United States” or in any other case of a vacancy.¹²

The Supreme Court has cited the Decision of 1789 a number of times as congressional acknowledgment that Congress does not possess a direct role in the removal process.¹³ There is some dispute over whether a majority of legislators affirmed that the Constitution vests the President with removal authority, or whether no majority actually supported a specific position on the issue.¹⁴ Still, early historical practice confirms that the President’s power to appoint Executive Branch officers includes authority to remove them. In the 1926 case of Myers v. United States, the Supreme Court opined that the Decision of 1789 affirmed that the President is entrusted with power to remove those officers he appoints, a proposition that “was soon accepted as a final decision of the question by all branches of the government.”¹⁵

The Nation’s first two Presidents, George Washington and John Adams, each unilaterally removed Executive Branch officers, although neither of them removed a large number of officials.¹⁶ President Thomas Jefferson, although initially considered an opponent of a powerful Executive, likewise exercised this power, removing more officials than either Washington or Adams.¹⁷ Presidents James Madison, James Monroe, and John Quincy Adams also exercised the power of removal over Executive Branch officers, although they appear to have each removed a smaller number than Jefferson.¹⁸ This historical practice of presidential removal of Executive Branch officers was reinforced by Attorney General opinions affirming the President’s constitutional power to do so.¹⁹ Congress, however, asserted some control over the tenure of certain Executive Branch positions. During the Administration of President Monroe, Congress passed the Tenure of Office Act of 1820, which provided that certain Executive Officers be appointed for a term of four years, “but shall be removable from office at pleasure.”²⁰

ArtII.S2.C2.3.15.3 Removals in Jacksonian America Through the Nineteenth Century

While the first six Presidents of the young Republic exercised the power of removal over Executive Branch officers on a somewhat limited basis, President Andrew Jackson replaced more officials than all Presidents before him combined.¹ He instituted what was commonly known as the “spoils system,” wherein a new presidential administration would remove a large number of federal officials and replace them with supporters.² Jackson embraced the Tenure of Office Act of 1820³ and argued that “rotation in office” would improve government operations and serve a democratizing function that would curb the importance of privilege in governmental offices.⁴ Perhaps most famously, amidst conflict with Congress over the status of the Second Bank of the United States, Jackson dismissed Treasury Secretary William Duane.⁵ Duane had effectively refused to withdraw federal monies from the Bank as instructed by President Jackson, so he was replaced by Roger Taney, who did.⁶ A major fight with Congress ensued, and the Senate eventually passed a resolution in 1834 condemning Jackson’s actions.⁷ Congress did not, however, reverse Jackson’s decision or pass legislation preventing such action in the future. Following a change in party control, the Senate expunged the prior censure in 1837.⁸

Presidents that followed Jackson largely continued the practice of removing Executive Branch officers, although their stated reasons for doing so varied. For example, President Martin Van Buren, who succeeded Jackson in office, continued the spoils system, removing Executive Branch officers at will and replacing them with party loyalists.⁹ In contrast, the Nation’s ninth president, William Henry Harrison, who had defeated Van Buren in 1841 and became the first Whig elected president, pledged not to replace Executive Branch officers for political reasons. Though Harrison died within a month after his inauguration, his brief record is somewhat mixed on the matter.¹⁰ Harrison was succeeded by his Vice President John Tyler.¹¹ Although Tyler initially vowed, consistent with Harrison’s Whig principles, not to remove Executive Branch officials for partisan reasons, he quickly did exactly that during his nearly four full years in office.¹² Opinions from his Attorney General issued during Tyler’s time in office affirmed presidential removal authority in opinions that have informed subsequent practice and consideration of the removal power.¹³ Attorney General Hugh S. Legare argued that, following the Decision of 1789, the whole country had acquiesced to the power of the President to remove Executive Branch officers.¹⁴ One year later, he reaffirmed this conviction, noting that “Whatever I might have thought of the power of removal from office, if the subject were res integra, it is now too late to dispute the settled construction of 1789.”¹⁵ Likewise, President Zachary Taylor, also a member of the Whig party, removed nearly two-thirds of the prior President James Polk’s appointees in his first year in office.¹⁶

The scope of the President’s removal authority was at the center of the first impeachment of a United States President.¹⁷ Congress on March 2, 1867 reauthorized (and amended), over the veto of President Andrew Johnson, the Tenure of Office Act.¹⁸ That law provided that Executive Branch officers who had been Senate-confirmed (as well as future such officers) were entitled to remain in their position until a replacement was confirmed.¹⁹ The law also provided that certain positions would retain their offices for the full term of the President who appointed them, plus one month thereafter, unless the Senate consented to their removal.²⁰ Johnson subsequently fired his Secretary of War Edwin Stanton without Senate approval. On February 24, 1868, the House voted to impeach President Johnson.²¹ An important point of contention at the trial in the Senate was whether the Tenure of Office Act protected Stanton at all due to his appointment by President Abraham Lincoln, rather than President Johnson.²² The Senate ultimately failed to convict President Johnson by one vote on three different articles, and it failed to vote on the remaining eight.²³ The Tenure of Office Act of 1867 was amended in 1869²⁴ and requirements concerning Senate approval for removal were repealed in 1887.²⁵

By the end of the nineteenth century, the Supreme Court affirmed that the President enjoyed the sole power of removal over Executive Branch officers.²⁶ In the 1897 case of Parsons v. United States, the Court concluded that the President was authorized to remove a U.S. attorney, even though the Tenure of Office Act of 1820 provided that the term of appointment was four years.²⁷ The Court reasoned that the Decision of 1789 and consistent government practice since indicated that the President enjoys the power of removal.²⁸ It thus interpreted the statute to establish that a term of office expired after four years, but did not bar the President from removing a U.S. attorney before that time.²⁹ Likewise, in 1903, the Court in Shurtleff v. United States reaffirmed this understanding of the President’s power.³⁰ That case concerned a suit for back pay by a Senate-confirmed Executive Branch official who was removed without notice or a hearing. The statute establishing the officer’s position provided that the President could remove him “for inefficiency, neglect of duty, or malfeasance in office.”³¹ The Court concluded that while notice and a hearing might be required when an officer is removed for the reasons specified in the statute, the President also had authority to remove the officer for other reasons entirely and, in those circumstances, was not required to provide such procedural protection.³² The Court thus rejected the suit because the President removed the officer for reasons other than those mentioned in the statute.³³

ArtII.S2.C2.3.15.4 Removals in the 1920s

Congress’s authority to restrict the President’s power to remove Executive Branch officers was squarely addressed by the Supreme Court in the 1926 case of Myers v. United States.¹ Myers concerned a postmaster who was removed from office in violation of a statute providing that postmasters could only be removed with the Senate’s consent.² Chief Justice William Taft, a former President, writing for the Court in an opinion that took a formalist approach to the separation of powers, espoused a broad view of the President’s authority under Article II.³ His opinion examined the history of removals of Executive Branch officials as well as the constitutional text, and concluded that Article II’s vestment of executive power in the President bestowed on him “the general administrative control of those executing the laws,”⁴ including the “exclusive power of removal.”⁵ The Chief Justice described the Decision of 1789 at length, concluding that the First Congress had determined that “the power of appointment carried with it the power of removal,” a rule that was “acquiesce[d] [to] for nearly three-quarters of a century by all branches of the government.”⁶ Congress had, Chief Justice Taft noted, disrupted this understanding by passing the Tenure of Office Act in 1867—which required Senate approval to remove Executive Branch officials and resulted in the impeachment of President Andrew Johnson—but, in the view of the Court, the Executive Branch never acquiesced to this assertion of power.⁷

The Court in Myers reasoned that Article II’s vestment of executive power in the President authorized him to select subordinate officers and direct them in executing the law; and just as it was “essential” to select officers to execute the law, “so must be his power of removing those for whom he cannot continue to be responsible.”⁸ In the Court’s reading of the Constitution, the grant of the executive power to the President, supplemented by the duty to take care that the law is faithfully executed, meant that executive power includes “the exclusive power of removal.”⁹ The Court thus invalidated the statute before it insofar as the law denied to the President “the unrestricted power of removal” of Executive Branch officers.¹⁰

ArtII.S2.C2.3.15.5 Removals in the 1930s

Nine years after its decision in Myers v. United States, in which the Court invalidated a statute that prohibited the President from removing an executive official absent Senate approval,¹ the Supreme Court applied a much more functionalist approach in its analysis in another case addressing Congress’s authority to restrict the President’s removal authority.² In the 1935 case of Humphrey’s Executor v. United States, the Court upheld a statute that limited the President’s power to remove a Commissioner of the Federal Trade Commission (FTC).³ The statute in question provided that a Commissioner could be removed for “inefficiency, neglect of duty, or malfeasance in office.”⁴ The Commissioner’s estate brought suit seeking backpay after President Franklin Roosevelt dismissed him.⁵ In an opinion by Justice George Sutherland, the Court ruled that the President violated the statute because the law’s specification of reasons for removal was meant to be exclusive and he did not base his removal of the Commissioner on any of the grounds listed in the statute.⁶ The Court distinguished its prior decision in Shurtleff v. United States, which interpreted a statutory list of grounds for removal not to be exclusive,⁷ noting that while FTC Commissioners in Humphrey’s Executor were appointed to a specific term of office, the officer in Shurtleff had no such restriction on his tenure.⁸ In addition, the Court observed that Congress intended the Commission to be nonpartisan and not subject to the direction of the President.⁹

Turning to the constitutionality of limiting the President’s power of removal, the Court read its recent decision in Myers narrowly to establish only that Congress could not condition the President’s power to remove an Executive Branch officer on Senate approval.¹⁰ Because the statute before it did not do that, it did not run afoul of Myers. The Court determined that the officer in that case, a postmaster, was charged solely with executive functions, whereas the office of an FTC Commissioner was tasked with “quasi-legislative” and “quasi-judicial” functions. The Commission was not “an arm or an eye of the executive” and it “must be free from executive control” “in the exercise of its duties.”¹¹ The Court ruled that the Constitution permitted Congress, with respect to officers charged with quasi-legislative and quasi-judicial functions, to “fix the period during which they shall continue in office, and to forbid their removal except for cause . . . .”; and that the President’s removal of a FTC Commissioner for reasons not listed in the statute thus violated the law.¹²

The Court’s approval in Humphrey’s Executor of restrictions on the President’s power of removal over the heads of certain federal agencies has influenced the structure of the modern administrative state.¹³ Congress has established a number of “independent” agencies that are headed by multi-member bodies whose officers may only be removed by the President for cause.¹⁴ These independent agencies stand in contrast to what may be considered traditional Executive Branch agencies, with a single head who is removable at will by the President.¹⁵ Because Congress has created a variety of agencies with various structural features,¹⁶ certain functions of a particular agency may (at least for constitutional purposes) be considered “executive” while others in the same agency may not.¹⁷

In the years following Humphrey’s Executor, scholars have debated the constitutionality of independent agencies whose heads are insulated from presidential control, as well as what limits the Constitution may place on Congress’s power to shield Executive Branch officers from removal.¹⁸ As discussed infra, Congress in the twentieth century has also enacted legislation insulating agency officials other than the heads of multimember boards from removal.¹⁹ However, Supreme Court decisions in the twenty-first century appear to reflect an increasing skepticism of such congressional limits on the President’s power to remove agency officials.²⁰

ArtII.S2.C2.3.15.6 Later Twentieth Century Cases on Removal

Although the number of cases squarely presenting the validity of for-cause removal protections is limited, the Court applied a functional analysis similar to Humphrey’s Executor in a number of twentieth-century cases that affirmed the constitutionality of statutory independence from the President for certain Executive Branch officers.¹ For instance, in the 1958 case of Wiener v. United States,² the Court ruled that even in the absence of an express statutory restriction on removal, the President acted illegally by removing a member of the War Claims Commission on the grounds that the President simply wanted a member of his own choosing.³ The Court read Humphrey’s Executor as limiting the scope of Myers to “purely executive officers” and approving for-cause protections for “quasi-judicial” officers.⁴ Examining the scope of the President’s power to remove members of the Commission, the Court focused on the “nature of the function[s] Congress vested” in the Commission and concluded that its purpose was judicial—adjudicating claims free from presidential or congressional influence.⁵ Even though the statute was silent as to removal, the Court reasoned that because, “as one must take for granted,” the President was precluded from influencing the Commission with regard to adjudicating claims, Congress must not have intended “to have hang over the Commission the Damocles’ sword of removal” at will.⁶ The Court thus concluded that, due to its judicial character, the President lacked an inherent power of removal at will over the Commission.

The Court also took a functional approach in upholding the constitutionality of a statute insulating a federal prosecutor from executive control. Following the scandal of Watergate and resignation of President Richard Nixon, Congress passed the Ethics of Government Act of 1978.⁷ Title VI of that Act, the independent counsel statute, established a statutory mechanism for the appointment of a prosecutor by a Special Division of the U.S. Court of Appeals for the D.C. Circuit vested with a measure of independence from the Executive Branch.⁸ The Special Division enjoyed authority to appoint and define the jurisdiction of the prosecutor, who could only be removed “by the personal action of the Attorney General and only for good cause, physical or mental disability . . . , or any other condition that substantially impairs the performance of such independent counsel’s duties.”⁹

In the 1988 case of Morrison v. Olson, the Supreme Court upheld the independent counsel statute against a constitutional challenge.¹⁰ Writing for the Court, Chief Justice William Rehnquist concluded that the independent counsel was an inferior, rather than a principal, officer, whose appointment was not required to be made by the President subject to Senate confirmation.¹¹

The Court also held that the Independent Counsel Act’s provision limiting the authority of the Attorney General to remove the independent counsel for good cause did not impermissibly intrude on the President’s power under Article II.¹² The Court rejected a formalist rule that would bar statutory for-cause removal protections for any individual tasked with “purely executive” functions; instead, it applied a functional test and asked whether Congress has “interfere[d] with the President’s” executive power and his “duty to ‘take care that the laws be faithfully executed.’”¹³ The Court recognized that the independent counsel exercised “law enforcement functions that typically have been undertaken by officials within the Executive Branch,”¹⁴ but noted that the position nevertheless has a “limited jurisdiction and tenure and lack[ed] policymaking or significant administrative authority.”¹⁵ The Court reasoned that it did “not see how the President’s need to control” the independent counsel’s discretion “is so central to the functioning of the Executive Branch” as to demand a constitutional rule mandating removal at will.¹⁶ The Court also concluded that the removal provision did not “impermissibly burden[ ]” the President’s ability to control the independent counsel because the position could still be eliminated for cause.¹⁷

In addition, the Court concluded that the statute did not violate the separation of powers by undermining the Executive Branch’s powers or prohibiting that branch from carrying out its constitutional duties.¹⁸ The majority opinion reasoned that the statute ultimately gave “the Executive Branch sufficient control over the independent counsel to ensure that the President is able to perform his constitutionally assigned duties.”¹⁹ This control, the Court concluded, arose from the ability of the Attorney General to remove the independent counsel for good cause.²⁰

While the Court’s functional analyses in Humphrey’s Executor, Wiener, and Morrison effectively allow removal protections for a range of federal entities, Congress’s power to create agencies independent from executive control is far from absolute. For instance, in the 1986 case of Bowsher v. Synar, the Supreme Court applied a much more formalist approach to a separation of powers dispute and invalidated a statute that gave an official controlled by Congress power to order decreases in federal spending.²¹ The Balanced Budget and Emergency Deficit Control Act of 1985²² gave the Comptroller General authority, in the event of a budget shortfall, to issue a report detailing federal revenue and expenditure estimates and the specific reductions needed to reduce the deficit to a statutory target.²³ The President was then required to order the “sequestration” of those funds pursuant to the Comptroller General’s report.²⁴

The Court held that vesting the Comptroller General with these authorities violated the separation of powers in light of Congress’s removal authority; a prior law had authorized Congress to remove the Comptroller General through a joint resolution.²⁵ The High Court explained that the Constitution’s division of power among the three branches of government barred “an active role for Congress in the supervision of officers charged with the execution of the laws it enacts.”²⁶ The Constitution explicitly provides no role for Congress in the removal of officers beyond impeachment.²⁷ Allowing Congress to exercise removal power over an officer engaged in executive functions “would, in practical terms, reserve in Congress control over the execution of the laws.”²⁸ Just as Congress may not itself execute the law, the Court said that it may not indirectly do so by “grant[ing] to an officer under its control what it does not possess.”²⁹ The Court reasoned that the Comptroller General’s duties under the statute amounted to “execution of the law” because he was charged with interpreting statutory provisions and exercising independent judgment in preparing budget estimates and reductions. Additionally, the Comptroller General had “the ultimate authority to determine the budget cuts to be made,” given that the President was required to carry out the Comptroller General’s report through a sequestration order.³⁰ The Court concluded that by entrusting an officer “subject to removal only by itself” with execution of the law, “Congress in effect has retained control over the execution of the Act and has intruded into the executive function.”³¹

ArtII.S2.C2.3.15.7 Twenty-First Century Cases on Removal

In the twenty-first century, the Court has applied a somewhat formalist approach to removal cases, invalidating removal protections for Executive Branch officials in three different decisions. In the 2010 case of Free Enterprise Fund v. Public Company Accounting Oversight Board, the Court ruled that two layers of removal protection for an Executive Branch official impermissibly interfered with the President’s powers under Article II of the Constitution.¹ In that case, the Court examined the Public Company Accounting Oversight Board (PCAOB or Board), an entity created by the Sarbanes-Oxley Act of 2002 to oversee aspects of the accounting industry.² The Board’s members were appointed by the Securities and Exchange Commission (SEC) and were subject to the Commission’s oversight when issuing rules and sanctions.³ But the members of the PCAOB could not be removed from office except for good cause shown by the SEC in a formal proceeding.⁴ Because the President could not remove the SEC Commissioners themselves without cause,⁵ the Board members were thus insulated by two layers of removal protection.⁶

The Court’s opinion stressed the importance of accountability for government officers that the Appointments Clause and its concomitant power of removal ensure. The Court acknowledged that it had upheld removal restrictions for the principal officers of independent agencies in Humphrey’s Executor and for certain inferior officers in Morrison, but concluded that the “novel” combination of dual for-cause removal restrictions “tranform[ed]” the independence of the Board in a manner that impaired the President’s duty to execute the law.⁷ A second layer of removal protection meant that “[n]either the President, nor anyone directly responsible to him, nor even an officer whose conduct he may review only for good cause, has full control of the Board.”⁸ Dual for-cause removal protections inhibit the principle of accountability for Executive Branch officers because they infringe on the President’s “ability to execute the laws,” by preventing him from “holding his subordinates accountable for their conduct.”⁹ The Court emphasized that the public does not vote for agency officials, but “look[s] to the President to guide the ‘assistants or deputies . . . subject to his superintendence.’”¹⁰ In other words, the President must be able to hold agency officers accountable for their actions, because it is ultimately the President who is accountable to the people for actions of the Executive Branch, rather than Executive Branch officers.¹¹ Because the statute “grant[ed] the Board executive power without the Executive’s oversight,” Congress had “subvert[ed] the President’s ability to ensure that the laws are faithfully executed” in violation of Article II’s vestment of executive power in the President.¹²

The Court’s turn in the modern era toward a more formalist approach to interpreting the strictures of the Appointments Clause has been applied in two recent cases that further limit Congress’s ability to shape the administrative state. These decisions concluded that an independent agency with a single director insulated from presidential control violated the separation of powers.

In Seila Law LLC v. Consumer Financial Protection Bureau (CFPB), the Supreme Court concluded that Congress could not provide for-cause removal protections for the head of the CFPB, an independent financial regulatory agency led by a single Director.¹³ The Court described the President’s removal power as “unrestricted,”¹⁴ rejecting the view that Humphrey’s Executor and Morrison “establish a general rule that Congress may impose ‘modest’ restrictions on the President’s removal power.”¹⁵ Instead, “the President’s removal power is the rule, not the exception.”¹⁶ The Court explained that after Free Enterprise Fund, only “two exceptions” to the rule requiring removability remained.¹⁷ First, under Humphrey’s Executor, Congress may sometimes “create expert agencies led by a group of principal officers removable by the President only for good cause” if the agency does not exercise substantial executive power.¹⁸ In interpreting this 1935 case, the Seila Law Court interpreted Humphrey’s Executor narrowly, saying that this exception permitted for-cause removal protections for “a multimember body of experts, balanced along partisan lines, that performed legislative and judicial functions and was said not to exercise any executive power.”¹⁹ The Court said that the second exception to the President’s removal power allowed at least some removal protections for inferior officers, as in Morrison, if those officers have “limited duties and no policymaking or administrative authority.”²⁰

The Court concluded in Seila Law that the CFPB Director did not fall within either of these two exceptions.²¹ The single Director was not a multimember expert body, and, in the view of the Court, could not be considered “a mere legislative or judicial aid.”²² Rather than performing merely reporting and advisory functions, the CFPB Director exercised executive power, possessing the authority “to promulgate binding rules fleshing out 19 federal statutes, [to] issue final decisions awarding legal and equitable relief in administrative adjudications,” and to seek “daunting monetary penalties” in enforcement actions in federal court.²³ Neither could the CFPB Director be considered an inferior officer with limited duties.²⁴ And the Court ruled that it would not recognize a new exception to the President’s removal authority for “an independent agency led by a single Director and vested with significant executive power.”²⁵ The Court described the CFPB’s structure as “unprecedented”²⁶ and “incompatible with our constitutional structure,”²⁷ saying that the agency’s structure violated the Constitution “by vesting significant governmental power in the hands of a single individual accountable to no one.”²⁸ Consequently, the Court concluded that the provision insulating the Director from removal was unconstitutional, severing the for-cause removal provision from the governing statute.²⁹

Shortly thereafter, in Collins v. Yellen, the Supreme Court ruled that the structure of the Federal Housing Finance Agency (FHFA) violated the Constitution’s separation of powers.³⁰ Like the CFPB, the FHFA is headed by a single Director whom, under the statute establishing the agency, the President could remove only for cause.³¹ The Collins Court considered Seila Law to be “all but dispositive” of the constitutional question, reasoning that differences in the “nature and breadth” of the agencies’ respective regulatory authorities did not justify the constraint on the President’s removal power.³² The Court remanded the case for the lower courts to decide whether the challengers—shareholders of FHFA-regulated entities—were actually harmed by the existence of the statutory removal protection.³³