Two Appointments Clauses:
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.
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.
Advice, Consent, and Statutory Qualifications:
This is the third in a series of posts about my paper, The Two Appointments Clauses: Statutory Qualifications for Federal Officers Sorry for the blogging hiatus; I had an unexpected confluence of deadlines. Fortunately, I managed to meet them all, and I can get back to the fun stuff in life, namely blogging.
Our Constitution is one of limited and enumerated powers. Thus, the first question is whether the Constitution grants Congress the power to impose statutory qualifications for federal officers, not whether anything affirmatively prevents Congress from doing so. An obvious first place to look is in the text of the Appointments Clauses themselves.
Let's look first at the Confirmation Appointments Clause. That clause states that the President "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint" officers. One might argue that imposing a statutory qualification is a form of advice and consent. But this is wrong, for several reasons.
A statutory qualification is binding, not advisory. Laws generally tend to be mandatory unless they state otherwise (as in, for instance, a law granting a discretionary power to an executive official). And certainly the language of actual statutory qualification laws looks mandatory, using phrases such as, "shall be a citizen of the United States." Since a statutory qualification imposes a mandatory limit on whom the President may appoint to office, it does not count as "advice."
But wait a minute. "Advice" can't be binding, but "consent" certainly is. Without the consent of the Senate, the President cannot appoint an officer through the Confirmation Appointment method. Maybe statutory qualifications are a form of consent.
This second argument runs into two problems. First, consent is generally understood as occurring after a specific proposal has been floated. That is, the President nominates an individual for office, and then consent is granted or denied. If it's denied, the process starts over: the President proposes another candidate, and the Senate again decides whether to consent or not. It is a bit strange to pass a law in advance that categorically rules out certain potential nominees, and to call that law a form of "consent."
The second problem is that viewing statutory qualifications as a form of consent (or advice, for that matter) under the Advice and Consent power conflates two distinct entities: Congress and the Senate. The Advice and Consent power is given to the Senate. But statutory qualifications, being statutes, must be passed by both houses of Congress (and additionally, must be signed by the President or passed over his veto). The Senate and House often have to compromise to get a statute passed through both houses. Any given statutory qualification might well have been added to a bill at the insistence of the House of Representatives, against the will of the Senate but agreed to reluctantly. Is it really fair to call such a measure the consent of the Senate?
In a later post, I will discuss more of the structural implications of involving the House of Representatives in appointments. But before I get to that, my next posts will examine the text of the Vested Appointments Clause and the Necessary and Proper Clause to search for other textual foundations for the power to impose statutory qualifications.
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!