The Inferior Officers Appointments Clause

. . . but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

—Jeffrey B. Wall

Introduction

Article II of the Constitution divides “officers of the United States” into two classes: principal officers and inferior officers. Both classes can be appointed “with the Advice and Consent of the Senate,” but Congress can also vest the power to appoint inferior officers “in the President alone, in the Courts of Law, or in the Heads of Departments.”¹ The Inferior Officers Appointments Clause, also known as the Excepting Clause, has become one of the Executive’s chief powers.² It authorizes the President to exercise the power to appoint inferior officers directly or through heads of departments who are themselves the President’s appointees. It also authorizes the courts of law, over whom the President has no power, to appoint inferior officers in the judiciary. The Supreme Court has rebuffed attempts by Congress to circumvent the Appointments Clause, either by making appointments directly or by “unilaterally appointing an incumbent to a new and distinct office.”³ At the same time, the clause prevents the President from appointing subordinates to high-level governmental posts without the Senate’s consent.⁴

The Constitutional Convention

The Inferior Officers Appointments Clause was not introduced until September 15, 1787, two days before the Constitution would be signed.⁵ Gouverneur Morris of Pennsylvania proposed an amendment to the end of the Appointments Clause: “but the Congress may by law vest the appointment of such inferior Officers as they think proper, in the President alone, in the Courts of law, or in the heads of Departments.”⁶ He seemed to recognize that the President should not be burdened with lower-level executive branch appointments. Moreover, the courts of law should be able to appoint their own subordinate officials without seeking consent from the President and the Senate. Roger Sherman of Connecticut seconded the motion.

James Madison of Virginia, however, argued that the provision did “not go far enough.” He thought that “Superior Officers below Heads of Departments ought in some cases to have the appointment of the lesser offices.”⁷ Morris dismissed Madison’s proposal as unnecessary: “Blank Commissions can be sent.”⁸ Presumably, the heads of departments could rubber-stamp any appointments made by their subordinates.

Morris’s motion failed by a vote of 5 to 5 with one state divided. According to Madison’s journal records, “[i]t was urged that [the question] be put a second time, some such provision being too necessary, to be omitted.”⁹ The clause was then approved without further debate.

The Ratification Debates

The Inferior Officers Appointment Clause was not widely discussed during the ratification debates. Some Anti-Federalists feared that this provision would allow the President to bypass Senate confirmation. Federal Farmer asked, “Who are inferior officers?”¹⁰ He warned that Congress could “vest the appointment of almost every officer in the president alone” and thereby “destroy the check” that is “lodged in the senate.”¹¹ A Georgian wanted to strike out the clause and would have allowed the President to “nominate and appoint all officers, civil and military, by and with the advice of the senate, etc. only.”¹²

The Framers were concerned that the Senate’s advice-and-consent process might prove “inconvenient” “when offices became numerous, and sudden removals necessary.”¹³ The Excepting Clause ensured “that they had provided for all cases of offices” that might require appointments.14 The Appointments Clause reflects the Framers’ desire to divide the appointment power between the political branches. As the U.S. Supreme Court has explained, the “Framers understood . . . that by limiting the appointment power, they could ensure that those who wielded it were accountable to political force and the will of the people.”¹⁴ The Framers were specifically concerned that Congress might place its political supporters in high-level governmental posts and thereby undermine the President’s control of the executive branch.¹⁵ By preventing Congress from directly appointing either principal or inferior officers, the Appointments Clause functions as a restraint on Congress and is an important structural element in the separation of powers.

Three major question recur under the Excepting Clause: (1) who are “inferior Officers” that may be appointed without the advice and consent of the Senate; (2) who qualifies as a “Head of Department” able to appoint an inferior officer; and (3) under what conditions can Congress limit the power of the President or the head of a department to remove inferior officers?

Who Are “Inferior Officers” of the United States?

The Appointments Clause does not actually refer to “principal” officers. Rather, the Opinion Clause provides that the President “may require the Opinion, in writing, of the principal Officer in each of the executive Departments,”¹⁶ and this term has carried over to the Appointments Clause. The Supreme Court has decided a number of cases drawing the line between principal and inferior officers. Morrison v. Olson (1988) listed certain hallmarks of “inferior Officer” status, including accountability to a principal officer and limitations on the officer’s duties, jurisdiction, and tenure.¹⁷ Edmond v. United States (1997) adopted a more formalist approach: An “inferior officer must be ‘directed and supervised at some level by others who were appointed by Presidential nomination with the advice and consent of the Senate.’”¹⁸ Arthrex v. United States (2021) explained that an inferior officer is “directed and supervised” only when a superior officer has the power to remove the inferior officer or review the inferior officer’s decisions.¹⁹

Edmond and Arthrex did not overrule Morrison’s multifactored approach. Rather, there is no “exclusive criterion for distinguishing between principal and inferior officers for Appointments Clause purposes.”²⁰ But those decisions nonetheless make clear that some level of supervision will be required before Congress can rely on the Excepting Clause to avoid the Senate’s advice-and-consent process.

The Supreme Court has distinguished further between officers and employees.²¹ First, in order to be an “officer of the United States,” an “individual must occupy a ‘continuing’ position established by law.”²² Second, only officers can “exercise significant authority pursuant to the laws of the United States.”²³ By contrast, non-officer employees who compose “the broad swath of ‘lesser functionaries’ in the Government’s workforce” do not need to occupy their positions consistent with the Appointments Clause.²⁴ However, “any appointee exercising significant authority pursuant to the laws of the United States is an ‘Officer of the United States,’ and must, therefore, be appointed in the manner prescribed by § 2, cl. 2, of that Article.”²⁵

In earlier cases, the Court focused on the nature of the duties performed as opposed to just continuity and significant authority. For example, governmental employees, such as clerks or surgeons, were not considered officers because they do not exercise “independent authority” or their duties were performed on a “temporary and episodic basis.”²⁶ It seems that even if a person has regular duties but his position is not continuous, his position lacks duration, and he is not an officer. Duration, in the constitutional sense, does not simply refer to a substantial period of time; it demands continuity from one position’s holder to his successor.²⁷ For example, with the Independent Counsel at issue in Morrison v. Olson, “when that [position’s] task is over the office is terminated.”²⁸ That position was not continuous.

Who Can Appoint Inferior Officers?

Congress has the discretion, as it “think[s] proper,” to vest the appointment of inferior officers in the “President alone, in the Courts of Law, or in the Heads of Departments.” This vesting must be done “by law” (that is, by statute).²⁹ First, Congress can grant this power to the President acting alone without the need to seek Senate consent.

Second, Congress traditionally has vested the power to appoint inferior judicial officers in individual federal courts or divisions of courts rather than in the federal judiciary as a whole or in the presiding officers alone.³⁰ The “Courts of Law” are not limited to Article III courts.

Third, Freytag v. Commissioner of Internal Revenue (1991) interpreted “Heads of Departments” to refer “to executive divisions like the Cabinet-level departments.”³¹ However, Freytag reserved the question whether the heads of non-Cabinet executive branch agencies could also be deemed “Heads of Departments.”

The Court would answer that question in Free Enterprise Fund v. Public Company Accounting Oversight Board (2010).³² The Securities and Exchange Commission (SEC), which “is a freestanding component of the Executive Branch, not subordinate to or contained within any other such component,” constituted a “Department” for purposes of the Appointments Clause.³³ “Heads of Departments” includes all freestanding agencies and departments exercising executive power under the supervision of the President. Free Enterprise also clarified that the “head of a department” does not need to be a single official; a multimember body like the SEC can be a “head of a department” within the meaning of the Appointments Clause.³⁴

Can Congress Limit the Removal of Inferior Officers?

Courts and commentators have long disagreed about whether and under what circumstances Congress can prevent the President or the head of a department from removing inferior “officers of the United States.” (See Essay No. 107.) Many of the Supreme Court’s leading precedents on the removal power concern principal officers who were nominated by the President and confirmed by the Senate.³⁵ However, several cases have addressed limitations on the President’s ability to remove inferior officers.

It is generally understood that the President can remove only officers that he or his predecessor personally appointed.³⁶ The President cannot remove an inferior officer appointed by the head of a department, and Congress has imposed restrictions on the ability of heads of department to remove inferior officers. In Morrison v. Olson, a special division of the D.C. Circuit appointed an independent counsel who could be removed only by the Attorney General for “good cause.”³⁷ The Court found that this restriction did not “interfere with the President’s exercise of the ‘executive power’ and his constitutionally appointed duty to ‘take care that the laws be faithfully executed’ under Article II.”³⁸

The Court revisited the issue in Free Enterprise Fund, which involved a statute that empowered the SEC to appoint members of an oversight board.³⁹ In that case, the SEC appointed five members to the oversight board.⁴⁰ Those inferior officers could be removed by the SEC only for “good cause,”⁴¹ and the parties agreed that the President can remove members of the SEC only for good cause.⁴² There was, in effect, a double layer of “for-cause” removal protections between the President and the board members.⁴³ The Court ruled that these tenure protections for inferior officers “subvert[ed] the President’s ability to ensure that the laws are faithfully executed.”⁴⁴ The Court concluded that the “good cause” protection for the board members was therefore unconstitutional.

One decade later, Seila Law v. Consumer Financial Protection Bureau (2020) took a restrictive view of Congress’s ability to place limits on the removal of principal or inferior officers.⁴⁵ According to Seila Law, there is a “general rule that the President possesses the authority to remove those who assist him in carrying out his duties.”⁴⁶ That general rule has “only two exceptions.” First, the Court has upheld limitations on the President’s powers to remove members of “multimember expert agencies that do not wield substantial executive power.” Humphrey’s Executor v. United States (1935) viewed the Federal Trade Commission as such an entity.⁴⁷ Second, the Court has permitted restrictions on “inferior officers with limited duties and no policymaking or administrative authority.”⁴⁸ The independent counsel in Morrison was deemed to be such an inferior officer.⁴⁹

Open Questions

• The Fifth Circuit Court of Appeals declared unconstitutional the tenure protections for administrative law judges, who are inferior officers appointed by the Securities Exchange Commission.⁵⁰ On appeal, the Supreme Court decided SEC v. Jarkesy (2024) on other grounds.⁵¹ Was the Court of Appeals correct?
• The Commissions Clause provides that the President “shall Commission all the Officers of the United States.”⁵² However, there is a long-standing tradition of inferior officers not receiving commissions from the President,⁵³ and the Office of Legal Counsel has concluded that not all officers of the United States must receive a commission: “[A]lthough the holder of an office usually receives a commission, that characteristic too, like an oath or pay, is incidental rather than essential.”⁵⁴ How can this tradition be reconciled with the text of the Commissions Clause?
• Were Special Counsels Robert Mueller and Jack Smith principal officers or inferior officers?⁵⁵ Or is the Special Counsel an employee rather than an officer?⁵⁶

1. Freytag v. Commissioner, 501 U.S. 868, 878 (1991). ↩︎
2. Edmond v. United States, 520 U.S. 651, 660 (1997). ↩︎
3. Weiss v. United States, 510 U.S. 163, 188 (1994). ↩︎
4. Edmond, 520 U.S. at 660. ↩︎
5. Theodore Y. Blumoff, Separation of Powers and the Origins of the Appointment Clause, 37 Syracuse L. Rev. 1037, 1067–68 (1987). ↩︎
6. 2 Farrand’s 627. ↩︎
7. Id. ↩︎
8. Id. ↩︎
9. Id. at 627–68. ↩︎
10. Storing 2.8.45. ↩︎
11. Id. ↩︎
12. Storing 5.9.10. ↩︎
13. United States v. Germaine, 99 U.S. 508, 510 (1878). ↩︎
14. Freytag, 501 U.S. at 884. ↩︎
15. Buckley v. Valeo, 424 U.S. 1, 135–36 (1976). ↩︎
16. Art. II, § 2, cl. 1 (emphasis added). ↩︎
17. 487 U. S. 654, 671–72 (1988). ↩︎
18. United States v. Arthrex, 594 U.S. 1, 13 (2021) (quoting Edmond, 520 U.S. at 663). ↩︎
19. Id. at 13–14. ↩︎
20. Id. at 23 (citing Edmond, 520 U.S. at 661). ↩︎
21. Lucia v. Sec. & Exch. Comm’n, 585 U.S. 237 (2018) (citing Germaine, 99 U.S. at 511–512, and Buckley, 424 U.S. at 126). ↩︎
22. Lucia, 585 U.S. at 245 (quoting Germaine, 99 U.S. at 511). ↩︎
23. Id. (citing Germaine, 99 U.S. at 511–12, and Buckley, 424 U.S. at 126). ↩︎
24. Id. (citing Buckley, 424 U.S. at 126, n.162); Dep’t of Just., Off. of Legal Counsel, Officers of the United States Within the Meaning of the Appointments Clause, 31 Op. O.L.C. 122 (Apr. 16, 2007). ↩︎
25. Buckley, 424 U.S. at 126. ↩︎
26. United States v. Hartwell, 73 U.S. 385 (1867); Germaine, 99 U.S. at 510; Lucia, 585 U.S. at 247 & n.4. ↩︎
27. Morrison, 487 U.S. at 672. ↩︎
28. Id. at 572. ↩︎
29. Seth Barrett Tillman & Josh Blackman, Offices and Officers of the Constitution, Part III: The Appointments, Impeachment, Commissions, and Oath or Affirmation Clauses, 62 S. Tex. L. Rev. 349, 378–79, 385 (2023). ↩︎
30. Morrison, 487 U.S. at 678–79. ↩︎
31. 501 U.S. 868, 886 (1991). ↩︎
32. 561 U.S. 477 (2010). ↩︎
33. Id. at 511. ↩︎
34. Id. at 512. ↩︎
35. Myers v. United States, 272 U.S. 52, 109–110 (1926); Humphrey’s Executor v. United States, 295 U.S. 602, 631–32 (1935); Seila L. v. U.S. Consumer Fin. Prot. Bureau, 591 U.S. 197, 202 (2020). ↩︎
36. Free Enter. Fund, 561 U.S. at 493; Myers, 272 U.S. at 238 (Brandeis, J., dissenting). ↩︎
37. Morrison, 487 U.S. at 663. ↩︎
38. Id. at 690. ↩︎
39. 561 U.S. 477 (2010). ↩︎
40. Id. at 484. ↩︎
41. Id. at 486, 510. ↩︎
42. Id. at 487; id. at 546 (Breyer, J., dissenting). ↩︎
43. Id. at 488; id. at 526 (Breyer, J., dissenting). ↩︎
44. Free Enter. Fund, 561 U.S. at 498. ↩︎
45. Seila L., 591 U.S. at 204–05. ↩︎
46. Id. at 215. ↩︎
47. 295 U.S. 602 (1935). ↩︎
48. Id. at 218. ↩︎
49. Id. at 218–20. ↩︎
50. Jarkesy v. SEC, 34 F.4th 446, 463–64 (5th Cir. 2022). ↩︎
51. SEC v. Jarkesy, 603 U.S. 109, 115 (2024). ↩︎
52. Art. II, § 3 (emphasis added). ↩︎
53. Tillman & Blackman, supra at 418. ↩︎
54. Officers of the United States Within the Meaning of the Appointments Clause, supra. ↩︎
55. United States v. Trump, 740 F. Supp. 3d 1245, 1267 (S.D. Fla. July 15, 2024); Steven G. Calabresi & Gary Lawson, Why Robert Mueller’s Appointment as Special Counsel Was Unlawful, 95 Notre Dame L. Rev. 87 (2019). ↩︎
56. Trump, 740 F. Supp. 3d at 1301 n.60; Seth Barrett Tillman & Josh Blackman, Is Robert Mueller an “Officer of the United States” or an “Employee of the United States”?, Lawfare (July 23, 2018), https://perma.cc/GA25-56MU. ↩︎