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[Hanah Metchis Volokh, guest-blogging, October 24, 2007 at 8:12am] Trackbacks
Statutory Qualifications

This is the second in a series of posts about my paper, The Two Appointments Clauses: Statutory Qualifications for Federal Officers. In my last post, I discussed what I meant by "Two Appointments Clauses." This time, I move on to the second half of the title and explain what a "Statutory Qualification" is.

Both of the two appointments procedures are set up on a straightforward separation of powers principle: I'll cut the cake, and you choose which piece you want. That is, Congress creates the office, but someone else gets to choose who fills it. In procedure 1 (the Confirmation Appointments procedure), Congress creates the office and the President gets to try to fill it, but Congress must consent before the person can actually take office. In procedure 2 (the Vested Appointments procedure), Congress creates the office and the President, a department head, or a court (depending on who Congress chooses) gets to pick the person who fills the office without any more input from Congress.

So basically, for shorthand, we have Congress creating the office and the President hiring someone to fill it. (This avoids all the parentheticals of confirmation, appointers other than the President, and so forth, which will be important later but for now are essentially just embellishments.)

This leaves us with an important line-drawing question. Just what counts as "creating the office," and what counts as "hiring someone to fill it"? The gray area here is job qualifications.

Congress pretty frequently writes job qualifications for the officer into the statute establishing an office. A lot of these are pretty simple: This office must be filled by someone who is a U.S. citizen. This regional office must be filled by someone who is a resident of that region. This office must be filled by someone who is over 18 years old.

Other statutory job qualifications are more complex: This office must be filled by someone who speaks both English and Spanish. This office must be filled by someone who has a J.D. degree. This office must be filled by someone who has five years of emergency-management experience. This office must be filled by someone who has never represented a foreign nation in trade negotiations. This office must be filled by someone who scores higher than X on the civil service exam. This office must be filled by the person who receives the highest score on the civil service exam.

Can Congress do that? Or is this practice of creating statutory qualifications for federal officers an unconstitutional encroachment on the President's power to appoint officers? My answer is that it depends on the method by which the officer is appointed. If Congress has vested the appointment in the President, a department head, or a court, it can attach statutory qualifications. If the appointment is made through the President's nomination and Congress's advice and consent, statutory qualifications may not be imposed. In my next post, I'll begin explaining how the Constitution's text and structure lead to this result.

Aris:
Isn't this basic separation of powers stuff? Officers and inferior officers, Morisson v. Olson and whether it's a purely executive position or not?
10.24.2007 11:07am
Adam J:
If you vest the authority in a department head and then say they need to choose the person who receives the highest score on the civil service, they haven't really received much authority have they? Certainly some qualifications are helpful to prevent cronyism and ensure the person is qualified, but it seems to me some discretion still needs to be left to the individual vested with appointment power.
10.24.2007 11:14am