Congressional Power over Office Creation.

Author:West, E. Garrett
 
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NOTE CONTENTS INTRODUCTION 169 I. CONGRESS AND THE APPOINTMENTS CLAUSE 176 A. Text and Structure 177 1. Drafting History 183 2. United States v. Maurice 185 B. Early Constitutional Practice 187 C. Preconstitutional History 192 D. Some Exceptions to the Rule 196 II. IMPLICATIONS OF CONGRESS'S EXCLUSIVE POWER OF OFFICE 199 CREATION A. Qualifications and Control 200 1. Statutory Qualifications 201 2. Removal and Control 205 B. Temporary Appointments 209 1. Inherent Power 210 2. Vacancies Acts 212 a. The History of the Vacancies Acts 213 b. Constitutional Concerns 214 c. Theories of Constitutionality 216 i. Appointment to Temporary Inferior Offices 216 ii. Contingent Duties 219 C. Officers and Employees 220 1. Advisors and Czars 222 2. "Ongoing Statutory Duty" Test 225 3. Subdelegating to Contingent Offices 227 CONCLUSION 229 INTRODUCTION

The Constitution of 1789 left the creation of the institutions of government to ordinary political processes. The document included an intricate set of procedures that would allow Congress, the President, and the Vice President to take their positions in the new national government. (1) Yet it anticipated, but did not establish, a host of other personnel and positions--including "Heads of Departments," "Ambassadors," "Judges of the supreme Court," a "Chief Justice," and "principal Officer[s]." (2)

Between 1789 and 1791, the First Congress--often aware that its precedents would clarify and settle the Constitution's meaning (3)--outlined many of the institutions that remain a part of the fabric of America's constitutional order. (4) By September of 1789, for instance, Congress had established the Department of Foreign Affairs, the Department of War, the Department of the Treasury, the Office of the Attorney General, and the federal judiciary. (5) With these framework statutes, Congress asserted its vast power to create, alter, define, and limit the scope and powers of federal institutions. Since then, Congress's predominance as institution-builder-in-chief has remained a basic feature of the Constitution's separation-of-powers framework. (6)

Drawing on this theme of creation and construction, this Note explores Congress's role in the creation of executive-branch offices. In particular, I ask what is meant by the Constitution's mandate that "all other Officers of the United States, whose Appointments are not herein otherwise provided for,... shall be established by Law." (7) One could imagine limitless other approaches to this allocation of responsibility. For example, the Constitution could have created more Article II offices besides those of the President and Vice President, listing, for instance, the Departments of War, Treasury, or State (8)--and maybe going so far as to allow the electoral college to select them directly. (9)

By contrast, the Founders also could have taken their cue from the British, vesting the authority both to create offices and to appoint officers in the executive. Indeed, the Constitution pursues this approach elsewhere, as it collapses the office-creation and officer-appointment powers for "Ambassadors," "Consuls," and "other public Ministers." (10) Tacking in another direction, the Founders could have followed New York's model by vesting office creation and officer appointment in a Council of Appointment. (11) Or finally, the Founders might have followed the model of the Articles of Confederation by vesting these powers entirely in Congress. (12)

Although these alternatives may seem fanciful possibilities today, their prevalence at the Founding offers an opportunity to reflect on the Constitution's conscious allocation of responsibility: Congress creates and defines offices "by Law," and the President "nominates" and "appoints" the officers that will fill those offices (usually subject to the Senate's approval). (13) Textually, the Appointments Clause and the Necessary and Proper Clause together give Congress exclusive power over office creation. What's more, this interpretation accords with Congress's position as the first among equals and with the Constitution's origins in an act of popular sovereignty. Congress's power to "constitute" governmental institutions mimics the act of Constitution making: just as "We the People... ordain[ed] and establish[ed] this Constitution," the Appointments Clause allows Congress to "establish[] by Law" "all other Officers of the United States, whose Appointments are not herein otherwise provided for." (14)

Congress's exclusive office-creating power has surprising and important implications for a host of live constitutional controversies. This Note addresses three such issues. First, a perennial debate in separation-of-powers scholarship concerns the President's power to remove executive-branch officials--or, phrased differently, the limit on Congress's power to insulate those officials from presidential control. Most recently, this debate arose during the now-concluded litigation over the constitutionality of the Consumer Financial Protection Bureau (CFPB). (15) Yet the framing of the constitutional question in the CFPB litigation--whether the CFPB's structure "attenuate[s] presidential control over core executive functions" (16)--invites a problematic functional analysis. Scholars have noted, for instance, that for-cause removal provisions are just one way to insulate agencies from presidential control. (17) But if the Constitution forbids Congress from weakening the President's hold, then the Court will have to scrutinize a whole host of now-permissible administrative structures. (18) What should the Court do, for instance, about technical or professional qualifications, partisan-balance requirements, interagency consultation procedures, and other substantive statutes that structurally limit the President's control over law execution? (19) This Note's analysis of Congress's office-establishing power offers a sensible bright-line rule rooted in the text and structure of the Constitution. (20) Put simply, the Constitution disaggregates the power to create offices from the power to appoint and control them, vesting the former with Congress and the latter with the President. Because of this distinction, I shall argue, ex ante limitations on the President's appointment power (i.e., qualifications clauses, partisan balance requirements, and so on) satisfy the structural constitutional requirements, while ex post or ongoing limitations on the President's control of his subordinates (i.e., for-cause removal requirements) are unconstitutional.

Second, I discuss an undertheorized (though practically important) bureaucratic practice: ensuring administrative continuity through acting officials or temporary appointees. (21) Once again, a CFPB-related controversy has raised this issue in the public's attention. Richard Cordray's resignation as Director led to a flurry of controversy and litigation over who was his legitimate successor. (22) Pursuant to the Federal Vacancies Reform Act of 1998 (FVRA), President Trump appointed Office of Management and Budget (OMB) Director Mick Mulvaney to serve as acting Director. (23) Cordray's Deputy Director, Leandra English, sued President Trump, arguing that she had become acting Director "by operation of the Dodd-Frank Act." (24) The district court denied English's request for a preliminary injunction, and she has since resigned and terminated her appeal in the D.C. Circuit. (25)

Lurking beneath the statutory dispute is a constitutional one: how can these sorts of vacancies acts be squared with the text of the Appointments Clause? After all, the Director of the CFPB is a principal officer who must be appointed with the advice and consent of the Senate. (26) In this case, then, the CFPB controversy casts doubt on both the Dodd-Frank Act's automatic-promotion provision (27) (which English claimed automatically promoted her to acting Director) and the FVRA's temporary-appointment provisions (28) (which President Trump used to elevate Mulvaney). Worse, the Constitution's Recess Appointments Clause provides a constitutional mechanism for filling up vacancies which the FVRA seems to have circumvented. Therefore, in a concurring opinion in NLRB v. SW General, Inc. last term, Justice Thomas argued that the FVRA makes an impermissible "end-run around the Appointments Clause." (29)

But this Note's emphasis on Congress's office-establishing authority can resolve this apparent constitutional problem. In particular, I articulate two mutually reinforcing theories of the Appointments Clause that justify statutorily authorized vacancies acts. (30) First, because acting officers perform only "special and temporary" duties, they might be inferior officers under the Appointments Clause. If so, Congress "may by Law vest the[ir] Appointment... in the President alone, in the Courts of Law, or in the Heads of Departments." (31) Second, because Congress's office-creating authority allows it to specify what I will call contingent duties (i.e., duties that become actual only upon the satisfaction of some condition precedent), the Constitution also generally allows automatic-promotion provisions like the one in the Dodd-Frank Act. Put differently, Congress| can condition an officer's duties on the vacancy of another office.

Generally, careful application of one or both of these theories should justify a particular vacancies act. But I also attempt to articulate a limiting principle. Congress cannot pass statutes that allow acting officers to indefinitely perform the functions of principal officers without Senate approval. The ongoing controversy surrounding the CFPB raises just this issue. Critics of President Trump's next appointee, for instance, "accused the administration of making a placeholder nomination to keep Mick Mulvaney... in power longer." (32) Following Justice Thomas, I suggest that the prolonged tenure of temporary appointees can be constitutionally impermissible.

Third, this Note's...

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