The Volokh Conspiracy

I'm going to lay out the arguments in my paper in a series of posts. This post provides some background information about the Constitution's procedures for appointing officers of the federal government, and explains why I make a distinction between two separate Appointments Clauses.

Readers who have a bit of familiarity with what is generally called the Appointments Clause of the U.S. Constitution will somewhat surprised at the title of my paper, The Two Appointments Clauses: Statutory Qualifications for Federal Officers. What is this second appointments clause, and where did it come from?

Those with a more extensive knowledge of that clause, Article II, Section 2, Clause 2, should be able to guess that I'm talking about the same old Appointments Clause but am dividing it into two parts. The Constitution actually sets up two different methods for appointing federal officers, and it does so in a single, very long sentence. (Actually, it's just most of a sentence, since the first clause in the sentence describes the treaty power.) It's worth quoting in full:

[The President] shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.

It doesn't take a very close reading to see that this creates two different processes. In the first one, the President nominates an officer and, with the advice and consent of the Senate, appoints the officer. In the second, Congress may allow the President, a court, or the head of a department to appoint an officer without Senate confirmation. Both of these processes are frequently used. You read about and watch confirmation hearings for judges, the Attorney General, the director of FEMA, and so forth. But you'd never see a confirmation hearing for, say, the Deputy PTO Director, because Congress has vested the appointment of the Deputy PTO Director in the Secretary of Commerce. (If you don't believe me, you can look it up in 35 U.S.C. § 3(b)(1).)

Having these two separate procedures makes a lot of sense. The question of who counts as an officer and who is just a federal employee is debated in the literature, but on any definition there are thousands of officers in the federal bureaucracy and the judiciary. If the Senate had to confirm each one, they would have little time to do anything else. But when the officer in question will hold a very powerful office, or one with lots of political considerations involved, Senate confirmation is an important check on the President's power. The publicity of a confirmation hearing (though a hearing is not actually required for confirmation) also helps to create accountability.

Two other obvious points. First, the Constitution requires Senate confirmation for certain very important and politically sensitive officers: "ambassadors, other public ministers and consuls, [and] judges of the Supreme Court . . . ." Second, for inferior officers, Senate confirmation is the default method. To avoid Senate confirmation, Congress must take the affirmative step of passing a statute conferring power on one of the constitutionally-recognized appointers to appoint the officer.

Existing scholarship has assumed that these few considerations basically exhaust the differences between the two appointments procedures. When assessing the constitutionality of something having to do with appointment or removal of officers, few people make any distinction based on which of the two Appointments Clauses is being used.

My argument is that the differences go deeper than initially appears. The text of the Appointments Clauses points to differences, and the different structures of power created by the two procedures lead to different constitutional considerations as well. In my paper, I discuss the phenomenon of statutorily-imposed job qualifications for federal officers and explain how they should be viewed differently for officers appointed under each method.