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S.679 and the appointment of inferior officers

Submitted by Simon on Mon, 05/09/2011 - 10:04pm

There is something of an online fuss underway about S.679, a bill which would waive Senate confirmation for a number of Presidential appointments. The Heritage Foundation has a relatively sober analysis here, but it was Terresa Monroe-Hamilton who really lit a fire under the issue with this post. We are told that the bill appoints Caesar; it does not. We are told that the President’s hand “is quickly forming into a dictatorial fist that is about to smash our Constitution”; it is not. I conclude that with three exceptions and five borderline cases (out of more than a hundred positions affected), the bill does not raise constitutional difficulties.

Unfortunately, it inevitably takes far less time and effort to fling mud than to clean it up, so you should settle in for what will be a lengthy and tedious post.

I.

The two authorities at issue are Article II of the federal Constitution and Edmond v. United States, 520 U.S. 651 (1997).

As we all know, Article II § 2 provides that 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[.]

It continues, however:

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.

Thus, “[t]he prescribed manner of appointment for principal officers is also the default manner of appointment for inferior officers,” Edmond, 520 U.S., at 660.

Edmond takes up where section two leaves off, elucidating the threshold test for whether a position is an inferior office for which Congress may waive Senate confirmation. The test is not the importance of the functions carried out by the officer, id., at 662, but their functional subordination to a principal:

the term "inferior officer" connotes a relationship with some higher ranking officer or officers below the President: Whether one is an "inferior" officer depends on whether he has a superior. … [Thus,] "inferior officers" are 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.

Id., at 662-63; cf id., at 667 (Souter, J., concurring); but see Morrison v. Olson, 487 U.S. 654, 671 (1988) (observing that the distinction has always been somewhat vague). This control need not be “complete,” Edmond, at 664, but it must be in some sense supervisory, id., at 665, 666, and substantive rather than merely formal, id., at 662-63 (“It is not enough that other officers may be identified who formally maintain a higher rank, or possess responsibilities of a greater magnitude”); but see id., at 667-68 (Souter, J., concurring) (noting the possibility that some supervised positions could conceivably be principal officers (citing Morrison, supra, 487 U.S., at 722 (Scalia, J., dissenting))).

II.

Given these precepts, the positions affected by the bill can be broken down into three groups: The obviously fine, the less obviously fine, and the unconstitutional. Of these, the third is by far the smallest.

A.

To begin with, it is obvious that the Assistant Secretaries of Agriculture for Congressional Relations and Administration, the Assistant Secretaries of Commerce for Legislative Affairs and Communications & Information, the Assistant Secretaries of Defense for Legislative Affairs, Public Affairs, and Networks & Information Integration, the Assistant Secretaries of the Army, Navy, and Air Force for Financial Management, the Assistant Secretaries of Education for Management and Legislation & Congressional Affairs, the seven Assistant Secretaries of Energy (see 42 U.S.C. § 7133(a)), the Assistant Secretaries of Health & Human Services for Public Affairs and Legislation, the Assistant Attorneys-General for Legislative Affairs, the eight Assistant Secretaries of HUD (see 42 U.S.C. § 3533(a)), the Assistant Secretaries of Labor for Administration & Management, Congressional Affairs, and Public Affairs, the Assistant Secretaries of State for Legislative & Intergovernmental Affairs, Public Affairs, and Administration, the four Assistant Secretaries of Transportation (see 49 U.S.C. § 102(e)), the Deputy Directors of the Office of National Drug Control Policy, the Assistant Secretaries of the Treasury for Legislative Affairs, Public Affairs, and Management, the (up to) seven Assistant Secretaries of Veteran Affairs (see 38 U.S.C. § 308(a)), and the Assistant Administrators of USAID for Management and Legislative & Public Affairs are inferior officers.* As the title “assistant” implies, they are subordinate to the principal officers whom they assist, and as we have seen, the Edmond test for inferior officer status is functional subordination.

B.

The remainder of the positions require more explanation. We turn first to those which remain clearly fine, but which are not so obviously so as to require no explanation as to why.

1. Administrator of the Rural Utilities Service. The Rural Utilities Service is an instrumentality of the Department of Agriculture, subject to the supervision of the Secretary of Agriculture who “assign[s] to the Service such functions as [he] considers appropriate” and who “carr[ies] out” certain departmental functions through the service. See 7 U.S.C. §§ 6942(a) and (c).

2. Directors of the Community Credit Corporation. The entire corporation, directors included, is within the Department of Agriculture and is explicitly subordinated to the supervision and direction of the Secretary thereof. See 15 U.S.C. 714g(a)).

3. Commissioner, Rehabilitation services administration. At first glance, 29 U.S.C. 702(a) uses the language of departments and principals, declaring that the RSA “shall be [for specified purposes] the principal agency, and the Commissioner shall be the principal officer.” Nevertheless, the same section situates the RSA “in the office of the Secretary,” and continues: “[T]he Commissioner shall be directly responsible to the Secretary or to the Under Secretary or an appropriate Assistant Secretary …, as designated by the Secretary,” and advises that the “duties to be carried out by the Commissioner shall be considered to be … carried out by the Secretary acting through the Commissioner.” Id. (emphasis added).

4. Commissioner, National Center for Education Statistics. The NCES is a division of the Institute of Education Sciences, see 20 U.S.C. 9511(c)(3), and it—and thus its commissioner—is subject to the “administ[ration], overs[ight], and coordinate[ion]” of the IES Director, see 20 U.S.C. § 9514(e).

5. Director of the Mint and Treasurer of the United States. The Mint has been subordinate to the Treasurer of the United States since 1981, and the Treasurer is himself subordinate to the Secretary of the Treasury.

6. Managing Directors of the Corporation for National and Community Service, Associate Directors of the Office of Science and Technology Policy, and Administrator of the St. Lawrence Seaway Development Corporation. Government corporations may be treated as government agencies, see Lebron v. National R.R. Passenger Corp., 513 U.S. 374 (1995), but the managing directors of the CNCS are the subordinates to the Chief Executive Officer thereof. See 42 U.S.C. 12651e(a)(1). Similarly, the principal officer of the OSTP is the director, under whose direction the associate directors work. See 42 U.S.C. § 6612. And although the St. Lawrence SDC Administrator does sit atop the corporation, see 33 U.S.C. § 982(a), the Corporation itself—and thus its director—is expressly “subject[ed] to the direction and supervision of the Secretary of Transportation.” 33 U.S.C. § 981.

7. OMB Controller of the Office of Federal Financial Management. The office and its Controller are “under the direction and control of the Deputy Director for Management of the Office of Management and Budget.” 31 U.S.C. § 504.

8. Director of the Office for Domestic Preparedness and Administrator of the United States Fire Administration. The former “report[s] directly to the Under Secretary for Border and Transportation Security,” 6 U.S.C. § 238, and the latter “report[s to] and [is] responsible to the Director.” 15 U.S.C. § 2204.

9. Public Health Service Commissioned Officer Corps and NOAA Commissioned Officer Corps. These are both paramilitary formations, see generally 42 U.S.C. §204 and 33 U.S.C. § 3001 et seq., and so for most appointments, an officer is the subordinate of his superior officer. Weiss v. United States, 510 U.S. 163, 182 (1994) (Souter, J., concurring). It’s certainly arguable that this provision would be unconstitutional as applied to the upper echelons of the corps, but this provision has a “plainly legitimate sweep,” Washington v. Glucksberg, 521 U.S. 702, 739-740, and n.7 (1997), encompassing the vast majority of its applications.

10. Chief Financial Officers of executive agencies listed by 31 U.S.C. § 901. These CFOs “report directly to the head of the agency regarding financial management matters,” 31 U.S.C. § 902.

C.

Some of these positions raise serious questions about whether they are officers in the first place. As Edmond observed, “[t]he exercise of ‘significant authority pursuant to the laws of the United States’ marks, not the line between principal and inferior officer for Appointments Clause purposes, but rather, as we said in Buckley [v. Valeo, 424 U.S. 1, 126 (1977)], the line between officer and nonofficer.” Edmond, supra, 520 U.S., at 662; see Freytag v. Commissioner, 501 U.S. 868, 881 (1991). The mere fact of an appointment or government paycheque does not an officer make, cf. United States v. Germaine, 99 U.S. 508 (1878); sometimes an appointee is just a government employee or contractor, and sometimes not even that! We shall start with the latter:

11. Governors of the African and Asian Development Banks, the African Development Fund, the IMF, and the International Bank for Reconstruction and Development. These appointments are to international bodies to which the United States belongs, see 22 U.S.C. §§ 285, 286, and 290(i). Their governors are, plainly, not officers of the United States.

12. Federal Co-Chairman of the Appalachian Regional Commission. Similarly, we must wonder whether the co-chairman of the ARC is an officer of the United States. And in any event, while the position lacks a formal supervisor, the Federal CoChairman can do nothing without the concurrence of a majority of the commission, cf. Edmond, 520 U.S., at 656, the other members of which are not appointed by the President. 40 U.S.C. §§ 14301(b) and 14302(a).

In a somewhat different manner, but to the same effect, are a slew of boards and committees, most of which share the same salient features.

13. Members of the Council of Economic Advisers, National Museum & Library Services Board, National Institute for Literacy Advisory Board, and National Council on Disability. We must wonder whether members of these councils and boards are officers of the United States, because the councils have only advisory roles. See 15 U.S.C. § 1023(c), 20 U.S.C. §§ 9105a and 9252(e), and 29 U.S.C. § 781. When a collective body exercises no "significant authority" as a whole, it is hard to see how any individual member could be thought to do so.

14. Members of National Security Education Board. The problem is even more acute with the NSEB, which comprises five ex officio members who happen to be principal officers, one who is arguably so (the NEH chairman), and six “experts in the fields of international, language, area, and counterproliferation studies education[,] … who may not be officers or employees of the Federal Government,” appointed to the board directly by the President. See 50 U.S.C. § 1903(b). An instructive comparison is Auffmordt v. Hedden, which held that a person chosen as an ad hoc government expert is not an officer because “[h]e has no general functions, nor any employment which has any duration as to time, or which extends over any case further than as he is selected to act in that particular case … His position is without tenure, duration, continuing emolument, or continuous duties, and he acts only occasionally and temporarily.” See 137 U.S. 310, 326-27 (1890). That is not a perfect fit for the lay members of the NSEB board, but they, too, are unpaid (save expenses), lack general functions, and while they serve a fixed term, that duration is determined ad hoc by the appointing President. See 50 U.S.C. § 1903(c) et seq.

D.

There are a few dubious or borderline cases, and four on which I must beg a pass because I don't feel that I have a good enough grasp on the nature of the office to comment. The latter group are: Members of the National Science Foundation Board, members of the National Board for Education Sciences members, Members of the Board of Trustees of the Institute of American Indian and Alaska Native Culture and Arts Development, and the Commissioners of the Mississippi River Commission. As to the former:

15. Commissioners, Administrations for Children and Native Americans, Director of the Office of Counternarcotics Enforcement, and Chief Medical Officer. Since the administrations are within the Departments of Health and Human Services and Homeland Security, 42 U.S.C. §§ 12311(a) and 2991b–2(a); 6 U.S.C. §§ 458 and 321e, it stands to reason that their heads are organizationally subject to the principal officers of those departments, the Secretaries. Nevertheless, it is not established law that "principal officers" are only those "Secretar[ies] in charge of a great division of the executive branch of the Government like the State, Treasury, and War, who is a member of the Cabinet." Freytag, supra, 501 U.S., at 886 (quoting Burnap v. United States, 252 U.S. 512, 515 (1920); but see id., at 884 (listing "ambassadors, ministers, heads of departments, and judges" as "the" principal federal officers); cf. id., at 917-18 (Scalia, J., concurring). If it was, then presumably cases like Edmond would have been easy to decide, and the observation of Morrison (and of Justice Story) that the line is fuzzy would be difficult to understand. Thus, it does not follow from the fact that "the term 'Heads of Departments' does not embrace 'inferior commissioners and bureau officers,'" Freytag, at 886 (quoting Germaine, supra, 99 U.S., at 511), that those petty fiefdoms may not have principal officers of their own, as Edmond's focus on substantive supervision implies. The structural argument I have made these officers being inferior is thus relatively flimsy. And a fortiori, we turn to:

16. Director of the women’s bureau. On its face, this seems unlikely, because it’s just a bureau “in the Department of Labor.” 29 U.S.C. § 11. To see the problem, compare 28 U.S.C. § 531 et seq.: On paper, the FBI is also just a bureau “in the Department of Justice,” but I think most people would say that the Director of the FBI is a principal officer. And as I pointed out in part one, the Edmond test turns on oversight, not importance.

E.

Finally—at long last—we conclude our survey with three changes that do appear to be unconstitutional.

17. Commissioner of the Office of Navajo and Hopi Relocation and Federal Coordinator for Alaska Natural Gas Transportation Projects. The Office of Navajo and Hopi Indian Relocation is “an independent entity in the executive branch … under the direction of the Commissioner on Navajo and Hopi Relocation.” 25 U.S.C. § 640d–11(a). Likewise, the Federal Coordinator is “an independent office in the executive branch.” 15 U.S.C. § 720(d). This independence is decisive; the Commissioner and Federal Coordinator report directly to the President and are thus themselves the principal officers of their bailiwicks.

18. Administrator of the Community Development Financial Institution Fund. The Community Development Financial Institutions Fund is, for all intents and purposes, an agency of the United States, and the Administrator appears to be its principal officer. 12 U.S.C. 4703(a)(2) and (b)(1)

* * *

In conclusion, the bill is for the most part unexceptional—certainly from a Constitutional perspective, and I think also from a policy standpoint. A few of the changes it makes appear to be unconstitutional and should be removed from the bill, but it should be readily apparent that this is hardly the stuff of dictatorship in ovo. While the fact that “a congressional cession of power is voluntary does not make it innocuous,” Clinton v. New York, 524 U.S. 417, 452 (1998) (Kennedy, J., concurring), I doubt that the Republic will end if the Senate cedes its veto power over the Administrator of the St. Lawrence Seaway Development Corporation.

___________
* I include the Associate Administrator of the National Oceanic and Atmospheric Administration in this "obviously fine" category, with this word of explanation. The bill mentions the Chief Scientist of the NOAA, but amends section 2(d) of the Reorganization Plan No. 4 of 1970, 5 U.S.C. App. 1, 35 Fed. Reg. 15627 (1970), which deals with the appointment of the associate administrator.

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