THE ATTORNEY GENERAL AND EARLY APPOINTMENTS CLAUSE PRACTICE.

• Author: Bamzai, Aditya
• Position: Symposium: Administrative Lawmaking in the Twenty-First Century

INTRODUCTION

Among the structural provisions of the Constitution are a series of rules specifying the method by which the federal government will be staffed. One of those rules, contained in what is known as the Appointments Clause, establishes the procedures for appointing "all... Officers of the United States, whose Appointments are not... otherwise provided for" in the Constitution-requiring one mechanism (presidential appointment and senate confirmation) for "principal" officers and permitting a set of alternatives (appointment by the "President alone," the "Courts of Law," or the "Heads of Departments") for "officers" who are considered "inferior." (1) The Clause has traditionally been understood to require these appointment procedures for a subset of federal government employees who meet some constitutional threshold that establishes their status as "officers," rather than for all federal employees. (2) In light of that understanding, the Clause naturally raises a question about the precise boundary between constitutional "officers" and other federal "employees"-a question that has recently been the subject of substantial litigation and extensive treatment within the executive branch and the scholarly literature. (3)

The caselaw and the scholarly debate, however, have overlooked a significant source of early interpretations of the Clause: opinions construing the Clause written by the Attorneys General of the United States during the nation's first century. Ever since the Judiciary Act of 1789, the Attorney General has been authorized "to prosecute and conduct all suits in the Supreme Court in which the United States shall be concerned, and to give his advice and opinion upon questions of law when required by the President of the United States." (4) Using this authority, several Attorneys General opined on the Clause's meaning. This Article examines their heretofore-neglected opinions, specifically addressing the opinions' treatment of the constitutional status of the "deputies" of "officers."

There are two reasons to review these sources. First, the opinions of the Attorneys General provide evidence of the appointments and separation-of-powers practices of the United States in its early years. From establishment Virginians, to Jacksonians, Whigs, and Republicans, the Attorneys General created a body of precedent on which each subsequent holder of the office relied and built. In an area of law--namely, interpretation of the Appointments Clause--where early court opinions are hard to come by, executive branch practice furnishes a significant trove of material by which to understand the constitutional text.

Second, the First Congress enacted statutes that envisioned the appointment of certain "deputies" to "officers" in a manner that would be inconsistent with the requirements of the Appointments Clause if those "deputies" were themselves considered "officers." For example, among other statutory provisions, Congress enacted a statute that permitted United States Marshals--who were likely neither "Heads of Departments," nor (needless to say) the "President" or a "Court of Law"--to appoint their own deputies. (5) That statutory provision, and other comparable ones, raise the question whether the deputy marshals, who in certain respects exercised authority similar to the marshals themselves, were constitutional "officers" or "employees." If the "deputies" were "officers," their appointments had to comply with the requirements of the Appointments Clause-which they did not. If the "deputies" were "employees," as opposed to "officers," their appointments would not need to comply with the Appointments Clause's requirements. But classifying the "deputies" as "employees" outside the scope of the Appointments Clause would require some theory to explain why their roles, as opposed to the roles of their superiors, did not qualify for "officer" status under the Constitution.

That question has recently been the subject of discussion at the Supreme Court and within the scholarly literature. In Lucia v. Securities and Exchange Commission, which concerns whether Administrative Law Judges ("ALJs") are "officers" or "employees," the Court may well confront these early practices of the First Congress and address whether a federal official who otherwise meets the threshold for "officer" status should not be treated as an "officer" if she can be classified as a "deputy" to a superior officer. (6) In one of the few articles to address the First Congress's practice, Professor Jennifer Mascott contends that the "deputies" whose appointments were authorized by the First Congress were not "officers" because their principals were required to assume personal financial liability for the deputy's actions. (7) with the exception of Mascott's article, however, there is little scholarship on the status of "deputy" officers in the constitutional scheme.

The cases and scholarship, thus far, have not reviewed the opinions of the Attorneys General. In their opinions, the Attorneys General confronted and explained this practice, thus providing critical evidence on how interpreters of the Constitution understood the position of "deputies" (and the Appointments Clause more broadly) in the nation's early years. Taken together, their opinions establish that an official was a constitutional "deputy" when he exercised his "office in right of another" or was the "shadow" of a principal, in the sense that the "deputy" had no statutory authority distinct from the principal; the principal was financially liable for the deputy's actions; or the deputy held office at the pleasure of the principal-and would even, absent express congressional provision, lose his position when the principal departed. Such a "deputy" did not need to be appointed pursuant to the requirements of the Appointments Clause. But the exception did not swallow the rule: Officials that lacked these attributes, and the resulting close link to a principal, were deemed not to be "deputies," but rather "officers" who had to be appointed pursuant to the Clause.

This Article proceeds as follows. In Part I, I provide an overview of the Appointments Clause and the officer-employee line as it currently stands in caselaw and in executive branch practice. I also summarize the Appointments Clause practices of the First Congress. In Part II, I address the opinions of the Attorneys General, and their attempt to rationalize and to explain the statutes enacted by the First Congress and the appointments practices of the nation. In Part III, I derive some implications and conclusions, generally for the Appointments Clause and specifically for the Administrative Law Judge controversy that is currently the subject of a Supreme Court case in Lucia.

1. THE APPOINTMENTS CLAUSE AND EARLY APPOINTMENTS PRACTICES A. The Constitution and the Leading Cases

   The Constitution establishes specific measures for staffing particular federal offices and, then, in the Appointments Clause a catch-all provision for all other "officers." Article I of the Constitution contains provisions establishing a selection process (as well as qualifications) for the president and Vice president, (8) members of the House of Representatives, (9) and the Senate. (10) With the exception of those offices and the Supreme Court, the creation of offices is generally in the hands of Congress, which may supplement the few positions created by the Constitution with additional "offices" using its authority to enact laws "necessary and proper" for executing the federal government's powers. (11) Once Congress creates those offices, however, the Appointments Clause specifies the mechanism for filling them. It 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; 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. (12)

   The Clause, the Supreme Court has said, is "designed to preserve political accountability relative to important Government assignments," (13) by "preventing the diffusion of the appointment power." (14) On its face, the Clause distinguishes between two sets of "officers"--"principals" and "inferiors"--specifying a single person (the President, with Senate consent) who may appoint the former and three bodies (the President, Courts of Law, and Heads of Departments) who may appoint the latter. Though not readily apparent from the Clause's text, a second distinction--between "officers" who must be appointed pursuant to the Clause's procedures and "employees" who need not be so appointed--is embedded in its terms. As a result, not all workers of the federal government qualify as "officers" and, hence, not all government employees must be appointed according to the process set forth in the Appointments Clause.

   This latter distinction, in turn, raises a question about where to draw the line between constitutional "officers" and "employees." In a series of cases, the Court has said that the way to distinguish "officers" from "employees" is by focusing on the degree of authority that a government official wields. Under modern caselaw, where an official exercises "significant authority pursuant to the laws of the United States," that person is an "Officer of the United States" and "must, therefore, by appointed in the manner prescribed by" the Appointments Clause. (15) Earlier cases, such as Chief Justice Marshall's opinion while riding circuit in United States v. Maurice, defined an officer using a slightly different verbal formulation as anyone performing a "duty" that is a "continuing one, which is defined by rules prescribed by the...