II. Appointments
The remainder of Paragraphs 2 and 3 of Article II deals with the subject of official appointments. With regard to diplomatic officials, judges and other officers of the United States, Article II lays out four modes of appointment. The default option allows appointment following nomination by the President and the Senate’s “advice and consent.” With regard to “inferior officers,” Congress may, within its discretion, vest their appointment “in the President alone, in the courts of law, or in the heads of departments.” The Supreme Court has not drawn a bright line distinguishing between inferior officers who might be appointed within the executive branch and inferior officers Congress may allow courts to appoint, provided only that, for judicial appointees, there be no “‘incongruity’ between the functions normally performed by the courts and the performance of their duty to appoint.” Morrison v. Olson (1988).
Buckley v. Valeo (1976) confirms that the Article II variations are Congress’s sole options in providing for the appointment of officers of the United States. The text, however, raises the questions: Who counts as an “officer” of the United States, as opposed to a mere employee? And what characterizes an officer’s status as “inferior,” as opposed to “superior” or “principal?”
The Court’s definition of “officer” in Buckley entails a degree of circularity. In general, “any appointee exercising significant authority pursuant to the laws of the United States” is an “officer of the United States.” By contrast, a federal employee is not an “officer” if performing “duties only in aid of those functions that Congress may carry out by itself, or in an area sufficiently removed from the administration and enforcement of the public law as to permit their being performed by persons not ‘Officers of the United States.’” A later case, INS v. Chadha (1983), may implicitly have given the Buckley formulation more substance. Chadha held that the enactment of legislation is Congress’s only permissible means of taking action that has the “purposes and effect of altering the legal rights, duties and relations of persons . . . outside the legislative branch.” Importing Chadha’s holding into the Buckley holding implies that, at a minimum, any administrator Congress vests with authority to alter the legal rights, duties and relations of persons outside the legislative branch would have to be an “officer,” and not an employee, of the United States because that officer would be performing a function forbidden to Congress acting alone.
Distinguishing inferior from principal officers has also sometimes proved puzzling. Morrison v. Olson, which upheld the judicial appointment of independent counsel under the Ethics in Government Act of 1978, applied a balancing test focused on the breadth of the officer’s mandate, length of tenure, and limited independent policymaking. A later decision, however, provided an additional or perhaps substitute bright-line test, defining “inferior officers” as “officers 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.” Edmond v. United States (1997).
Perhaps the greatest source of controversy regarding the Appointments Clause, however, surrounds its implications, if any, for the removal of federal officers. The Supreme Court has held that Congress may not condition the removal of a federal official on Senate “advice and consent,” Myers v. United States (1926), and, indeed, may not reserve for itself any direct role in the removal of officers other than through impeachment, Bowsher v. Synar (1986).
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