[Hanah Metchis Volokh, guest-blogging, November 8, 2007 at 10:07am] Trackbacks
As They Think Proper:

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!

Sasha Volokh (mail) (www):
There are also two different readings: I don't think that "such" refers back to "all other inferior officers." Rather, "such" should be read in conjunction with "as they think proper," in a "such... as they think proper" construction. So in that sense, I'm more on board with the third reading than with the first. I'll call my two proposed readings 3A and 3B.

But your reading of "such... as they think proper" is: "those inferior officers that Congress thinks are proper," where "proper" includes something like the substantive requirements for someone to do a good job, i.e., "a proper U.S. Trade Representative must be loyal to U.S. trade interests."

Whereas reading 3A of "such... as they think proper" is: "whichever inferior officers Congress wants," where "proper" refers to a categorical inquiry of which positions are proper for vesting, i.e., "we think the position of U.S. Trade Representative doesn't need Senate confirmation."

On reading 3A, "as they think proper" doesn't say anything about whether qualifications are acceptable; it only says something about which inferior officers' appointments may be vested: anyone's. Perhaps this makes reading 3A identical to reading 2? (I'm not sure because in your discussion of reading 2, you don't specify what "such" refers to.)

Moreover, on reading 3A, "officers" means not "specific people" (as in your reading 3) but "positions" -- or "offices." Finally, reading 3A is more or less equivalent to striking out BOTH "such" AND "as they think proper" -- I say "more or less" because, like in reading 2, "as they think proper" may still be necessary to establish that this isn't subject to judicial review.

I think the reading I actually prefer, though, is reading 3B, which takes advantage of the comma before "as they think proper." On that reading, "as they think proper" means "in whatever way they like." So Congress may vest the appointment of inferior officers, in whatever way they like. That would provide a strong position in favor of qualifications for vested appointments.
11.8.2007 10:27am
Hanah Volokh (mail) (www):
Sasha: I think your reading 3B is the same as my reading 2. As to your reading 3A, I think it's also plausible, but as it actually reads even one more word out as being redundant ("such ... as they think proper" is now redundant with "may"), I'm against it. But it's probably worth a mention in the paper anyway.
11.8.2007 10:33am
Sasha Volokh (mail) (www):
O.K., I see how reading 3B may be the same as reading 2, but what threw me was that -- as I said above -- you weren't explicit about what "such" referred to in reading 2.

In that case, I'd organize the different readings so they were centered around the meaning of "such":

Reading 1 is where "such" refers back to "all other officers."

All other readings have "such" referring forward to "as they think proper." Then, within those readings, what does "as they think proper" mean?

Reading 2A: "in whichever way they like" (strong support for qualifications). [This is your current reading 2, but I wouldn't characterize it as a "sort of intermediate reading."]

Reading 2B: "such[] as they think proper" means "such officials as they think proper" where "proper" refers to the substantive qualifications for a "proper official" (strong support for qualifications).

Reading 2C: "such[] as they think proper" means "such positions as they think proper" under a categorical analysis of which positions don't need Senate confirmation (no support either way).
11.8.2007 10:39am
Hanah Volokh (mail) (www):
11.8.2007 10:42am
Simon Dodd (mail) (www):
Hanah, this isn't strictly on-topic, but does the work you're doing in this paper suggest any Constitutional implications for Congress' power to provide for temporary appointments to Senate-confirmable posts (5 U.S.C. § 3345 et seq)?
11.8.2007 10:49am
Hanah Volokh (mail) (www):
Simon: That's a terrific question. I've given a little bit of thought to it previously, but I haven't really fleshed out my views on it. My initial reaction is that Congress may provide for temporary appointments for any officer that could be vested entirely. Appointments may be vested for limited times (like a sunset law), and the position can be term-limited as well. But Congress couldn't allow the President to appoint a temporary Supreme Court Justice or ambassador, since those officers may not be appointed through the vested appointments process.

There may be additional restraints on temporary appointments as well. For instance, the temporary appointment of a federal judge is probably in conflict with Article III's requirement of life tenure.
11.8.2007 10:59am
Is this what "scholarship" entails? Taking a topic that nobody cares about and then writing about it exhaustively?

Hanah, perhaps your next paper can address a more relevant issue. Terrorists are trying to kill us, America is torturing people, and the streets are full of mentally unstable homeless Americans. You are talented enough to not be afraid of the bigger themes in American law.
11.8.2007 12:12pm
Joshua Macy:
Have you considered asking a linguist? Someone like Mark Liberman, Arnold Zwicky, or Geoff Pullum over at Language Log might be able to offer some useful insight as to the structure of such phrases as "such X as may" and their frequency.
11.8.2007 12:17pm
Gregory Conen (mail):
Maybe I'm missing something obvious, but how does one distinguish between "other public Ministers and Consuls", which your read states must follow the standard nomination -> confirmation route, and "all other officers of the United States"?

Does this open the vesting process to judicial review (on the grounds that a given office is a public Ministry)?

Also, is that an exclusive "or" in the Vested Appointments clause? Or could Congress, if it so chose, vest the appointments in more than one Body, say, requiring the courts of law to approve appointments of Deputy Solicitors General.
11.8.2007 12:24pm
anym_avey (mail):
Is this what "scholarship" entails? Taking a topic that nobody cares about and then writing about it exhaustively?

Is this what "constructive criticism" entails?

Hanah, perhaps your next paper can address a more relevant issue. Terrorists are trying to kill us, America is torturing people, and the streets are full of mentally unstable homeless Americans. You are talented enough to not be afraid of the bigger themes in American law.

Guess not. That wasn't contsructive at all.

There are plenty enough people addressing these and other topics. Perhaps you could go occupy yourself with some of them, rather than presuming to speak on behalf of everybody's interests.

It seems to me there is plenty enough talent available to go around the legal profession, leaving HMV free to spend time addressing where the balance of congressional and executive power lies in appointing persons to high-level (and highly influential) positions in the federal government.
11.8.2007 1:29pm
Scott Scheule (mail) (www):
<quote>...and the streets are full of mentally unstable homeless Americans.</quote>

Ah, but at least we can be certain some of them still have Internet access.
11.8.2007 3:48pm
Honest Question (mail):
Is it true Sasha is a little ... light in the loafers and you married him just to provide cover, and for the perks like advancing your own career on the Volokh name?

Just askin. I truly think that first one is true even if you deny it. Wives are often the last to know.
11.8.2007 4:15pm
MLS (www):
If I am following this discussion correctly, my reading of the Appointments Clause (which does not include any deep study or thought) has been along the lines of what Sasha identifies as reading 3A. That is to say, there is a default method (advice and consent) for appointing the universe of "officers of the US" but there is a subcategory of "inferior officers" for whom Congress may provide a different appointment method. It is probably true that under this reading the words "such" and "as they think proper" are not strictly necessary, other than serving to emphasize congressional discretion in this matter. I think that this is a fair consideration in interpreting the clause, although there are other parts of the Constitution (eg, the words "in their Judgment" in the Journal Clause, art I, section 5, cl 3) where there is other arguably unnecessary language of emphasis.

In order to avoid this redundancy, Hanah's argument is that "as they think proper" must refer to something other than the simple choices (ie,which inferior officers should get vested appointments and which authority should receive vested appointment power) identified in the text, and therefore must give the Congress some other authority. It strikes me that this would be somewhat peculiar language to achieve such a result. It would seem that something along the lines of "in such manner as they may by law direct" (as used in the Census Clause)would be more likely if this was the intended result. Absent some other structural or historical reason, I would be hesitant to give the words "as they think proper" this additional meaning.

Perhaps I did not get this right, but does the post suggest that "all other officers" and "such inferior officers" are identical sets? I thought that "all other officers" would include, eg, Heads of Departments, lower court judges, etc, who are obviously not inferior officers. Am I missing something here?
11.8.2007 4:34pm
MLS (www):
Honest question- you are a class act. Your wife or girlfriend (or is it gay lover, just askin) must be so proud of you.
11.8.2007 4:44pm
Scott Scheule (mail) (www):
Ridiculous. Sasha's so straight he makes me look gay.
11.8.2007 4:46pm
Bored Lawyer:
Maybe this is too simple, but doesn't "as they think proper" mean that they can make different choices as to different inferior officers, as Congress sees fit.

The clause gives four choices for inferior officers:

1. Appointment as for the public ministers, etc. -- i.e. president nominates with advise and consent of Senate.

or one of the other three choices: the President alone
3. in the Courts of Law
4. in the Heads of Departments

Not all inferior officers have to be the same, some can be nominated one of the four ways, some another. Congress is free to make different choices for different inferior officers ""as they think proper."
11.8.2007 5:15pm
Bored Lawyer: That's how I've always read "as they think proper." But I'm no lawyer, so do take my word for it.
11.8.2007 7:51pm
So is the statutory requirement that the Solicitor General be "learned in the law" constitutional or not?
11.8.2007 9:26pm
Hanah Volokh (mail) (www):
Colucci: I'm getting there. Don't steal my thunder!
11.9.2007 7:55am
Rich Rostrom (mail):
How hard is this to figure out?

If the office is an "advice and consent" position, then the Senate passes directly on each appointee and can assess his qualifications individually.

If Congress vests the office, then it seems quite reasonable for Congress also to include restrictions. Vesting of appointments is a delegation of power.

The Senate can deny confirmation for any reason on a-&-c offices. The power of the Congress to delegate appointments is to unburden itself of petty business, with the understanding that the business will be conducted in accordance with Congress's general wishes.

Congress can enforce any restriction it likes on appointees to an office by unvesting the office and then voting down any nominees that don't meet its requirements. Statutory qualifications are simply a convenient way to accomplish the same goal.

There is one area of possible conflict.

Vesting is "by law". Suppose that a majority of the Senate would reject the appointment of X to an office, but the office is vested, and the House refuses to repeal the law vesting that appointment?

Or, in a more extreme case, the entire Senate and 2/3 - 1 of the House oppose appointment of X - but cannot override the President's veto of repeal of the vesting statute.

Does the "by law" clause mean that an office cannot be vested or unvested without the President's approval, or a veto override? I can imagine a Congressional majority, rendered lame-duck in a mid-term election, vesting a host of offices for the benefit of a same-party President.

Alternatively, suppose the Xist Party, holding both Houses and the Presidency, loses the Senate and Presidency. Can the Xists, in the lame-duck period, vest more offices, and impose onerous and perhaps crypto-partisan qualifications, which the incoming Zists can't repeal?
11.9.2007 1:33pm
Seth Barrett Tillman (www):
Two queries for you …

As I understand your position, you are suggesting that a preferred reading in regard to “as they think proper” should account for the meaning of “such” in the immediately proceeding phrase. There is no reason to prefer such a reading unless you already have some textual, independent, or extrinsic evidence indicating that the former (“as they think proper”) modifies or was meant to modify or would have been understood by the 1787-public as modifying or explaining the latter (“such inferior officers”). But that is the whole question under discussion, isn’t it? If you do not have that evidence or argument, isn’t your position circular or nearly entirely so?

Couldn’t “as they think proper” merely indicate (as some posts here suggested) that Congress may commit an appointment to “the President alone, [or to] the Courts of Law, or [to] the Heads of Departments,” notwithstanding concerns relating to cross-branch appointments (i.e., vesting judicial appointments in the executive and vice versa)? Concerns about cross-branch appointments have been noted in scholarship and in federal court opinions too, right? Generally, I do not believe constitutional meaning should entirely turn on punctuation. But that said, do not the commas immediately before and after “as they think proper” undermine any position suggesting that that phrase was meant to modify the immediately proceeding phrase, i.e., “such inferior officers”? Might not the commas suggest that “as they think proper” is an appositive rather than a modifier of the prior phrase (i.e., “such inferior Officers”)? Admittedly, this reading leaves the meaning of “such” unexplained … but so what … that might require some independent explanation as a textual or as an originalist matter anyway.

Secondly, you also suggest that the joint exercise by the House and Senate of a power committed by the Constitution to the Senate (advice and consent) is troubling on structural grounds. That might very well be true under post-18th century understandings of constitutional structure, but what evidence do you have that that was the understanding (or would have been the understanding had the question been considered) of constitutional structure circa 1787-1789? A very similar question was adjudicated circa 1782 – The Case of the Prisoners – in the Supreme Court of Appeals in Virginia, where the bicameral legislature by bicameral resolution exercised a power committed to the lower house under the Constitution of Virginia. In one of a number of ad seriatim opinions, Chief Justice Edmund Pendleton upheld the exercise of the power by bicameral action and noted that although the power was committed to the lower house under the Constitution of Virginia, it was not expressly committed “solely” to the lower house, and that permitted the legislature to act bicamerally notwithstanding the terms of the constitutional provision. Now you might disagree with Chief Justice Pendleton, as did some of his colleagues, including Chancellor Wythe, but that still leaves me wondering why your position as to constitutional structure is the preferred one for us today or might have been the preferred one circa 1787-1789.

11.11.2007 4:19pm