In my last post about my paper, The Two Appointments Clauses: Statutory Qualifications for Federal Officers, I discussed the lack of a textual foundation for statutory qualifications within the Confirmation Appointments Clause. The Vested Appointments Clause, however, does appear to permit Congress to enact statutory qualifications. The textual reading here is pretty detailed, so it's important to keep the exact words of the Constitution in mind as you go through this. Recall that the Vested Appointments Clause reads:

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.

One major difference here is that, unlike in the Confirmation Appointments Clause, Congress is given primary authority here. It is Congress that may vest an appointment, whereas only the Senate gives advice and consent for a confirmation appointment. Congress's primary mode of acting is by passing statutes. Thus, if vesting an appointment allows the imposition of job qualifications, it would seem that imposing those qualifications by statutes would be acceptable.

So, does vesting an appointment include the authority to impose job qualifications? To answer that, we need to figure out what that odd phrase, "as they think proper," means.

One possibility is that "as they think proper" just emphasizes that the decision whether to vest an appointment or not is entirely up to Congress. In this reading, "as they think proper" adds nothing to the phrase. It would be identical, if less emphatic, if the Framers had written, "Congress may by Law vest the Appointment of such inferior Officers in the President alone ...." Now, I tend to think that we should try to avoid readings that make a phrase in the Constitution (or a statute) redundant. Scholars disagree on this issue, but I agree with the sizeable number of them that words in legal documents should be given independent meaning whenever it is reasonable to do so.

But even if you fall on the other side of this debate, the reading of this clause with "as they think proper" omitted as being simply for emphasis creates another problem: What does the word "such" refer to in the phrase "such inferior officers"? The only reasonable referent is back in the Confirmation Appointments Clause. A long block quote is necessary here:

[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.

Under this reading, "such inferior officers" has to be the same group as "all other Officers of the United States" — that is, all officers except the few that are specifically named in the Confirmation Appointments Clause. The issue of whose appointment can be vested and who requires confirmation is, shall we say, hotly contested.

A sort of intermediate reading is that "as they think proper" makes Congress's decisions regarding vested appointments a political question that is not subject to judicial review. On this reading, the Vested Appointments Clause allows Congress to determine when to vest appointments, and also in what manner to vest them, including the imposition of statutory qualifications. Congress's power to vest appointments would be subject only to the constraints that certain officers (ambassadors, Supreme Court Justices) cannot have vested appointments, and that only certain officials (the President, department heads, and courts) can do the appointing. Congress may impose additional restrictions on vested appointments, including statutory qualifications, at its discretion.

The final way to read the clause is to treat "as they think proper" as part of the phrase "such as." That is, "such inferior Officers as they think proper" means "those inferior officers that Congress thinks are proper." This reading sees the Vested Appointments Clause as a strong affirmative grant of power to Congress to impose statutory qualifications. Congress can determine what sorts of people would be proper officers to fill the office (for instance, people who are citizens and have a J.D. degree), and then vest the authority to appoint such a type of officer in the President or another actor.

I hope I haven't lost you in the details here, as this is quite a close reading of the text. For a more thorough and footnoted explanation, see Part I.B of my paper. Next time: the Necessary and Proper Clause!