Who Are "Officers of the United States"?

• Author: Mascott, Jennifer L.

For decades courts have believed that only officials with "significant authority are "Officers of the United States" subject to the Constitution's Article II Appointments Clause requirements. But this standard has proved difficult to apply to major categories of officials. This Article examines whether "significant authority" is even the proper standard, at least as that standard has been applied in modern practice. To uncover whether the modern understanding of the term "officer" is consistent with the terms original public meaning, this Article uses two distinctive tools: (i) corpus linguistics-style analysis of Founding-era documents and (ii) examination of appointment practices during the First Congress following constitutional ratification. Both suggest that the original public meaning of "officer" is much broader than modern doctrine assumes--encompassing any government official with responsibility for an ongoing governmental duty.

This historic meaning of "officer" would likely extend to thousands of officials not currently appointed as Article II officers, such as tax collectors, disaster relief officials, customs officials, and administrative judges. This conclusion might at first seem destructive to the civil service structure because it would involve redesignating these officials as Article II officers--not employees outside the scope of Article II's requirements. But this Article suggests that core components of the current federal hiring system might fairly readily be brought into compliance with Article II by amending who exercises final approval to rank and hire candidates. These feasible but significant changes would restore a critical mechanism for democratic accountability and transparency inherent in the Appointments Clause.

Table of Contents Introduction I. Article II's Role Within the Constitutional System and Current Doctrine II. Corpus Linguistics and the Original Public Meaning Analysis A. Orienting the Appointments Clause Within the Constitutional Text 1. Evidence of meaning within the Constitution 2. Is "Officer[] of the United States" an indivisible term of art? a. Clues within the constitutional text b. Drafting history c. Founding-era debates d. Continental Congress-era uses of "Officers of the United States" e. Early American newspapers f. Evidence to the contrary? B. Dictionaries and Commentaries as Both a Standard Interpretive Tool and a Corpus 1. Standard interpretive use of Founding-era dictionaries and commentaries a. Dictionaries b. Legal dictionaries and commentaries 2. Nathan Bailey's eighteenth century dictionary as a corpus C. Elliot's Debates and Farrand's Records 1. Elliot's Debates 2. Farrand's Records D. The Federalist Papers and the Anti-Federalist Essays E. Correspondence and Writings from Founding-Era Figures F. Is Corpus Analysis Relevant for Widely Used, Open-Ended Constitutional Terms? III. Confirmatory Evidence from Practice During the First Congress A. Typical Executive Departmental Structure B. Deputies 1. Deputy customs officials 2. Deputy marshals 3. Other "deputy" references in statutes enacted by the First Congress C. Officers of the Customs D. Officials in other contexts 1. The military 2. Revenue cutters 3. The national bank 4. Various commissions 5. Internal revenue 6. The State Department E. Contractors and the Ongoing Nature of Officer Positions F. Preconstitutional Officers Under the Continental Congress 1. Handwritten "officer" lists at the National Archives 2. Military hospital officials 3. Board of Treasury clerks 4. Post office officials IV. The Historic Officer Definition in Modern Administration A. Present-Day "Officers" Under Article II's Original Meaning 1. The Federal Emergency Management Agency 2. The competitive service a. The IRS's Office of Chief Counsel and non-department head appointing authority b. Customs officials and the competitive service ranking system. 3. Other potential instances of present-day noncompliance with the original public meaning of Article II B. Promoting Article II Values 1. Accountability 2. Efficiency 3. Tenure Conclusion Introduction

Article II, Section 2, Clause 2 of the U.S. Constitution, known as the Appointments Clause, is an important yet insufficiently studied provision governing how federal officers must be selected. It states:

[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. (1) The Appointments Clause empowers only three entities to select officers: the President, department heads, and courts of law. (2) By involving a limited number of entities in officer selection, Article II aims to ensure that the identity of the nominating official is clear. (3) This provides a direct line of accountability for any poorly performing officers back to the actor who selected them. (4)

The Appointments Clause requirements apply only to "Officers of the United States." (5) Current Supreme Court doctrine defines these officers as appointees who wield "significant authority." (6) Because this definition by its terms is vague, subsequent Supreme Court and lower court opinions have attempted to flesh out a more detailed test that examines several factors. Under current law, courts evaluating whether a particular official (7) is an Article II officer examine factors like (i) the importance of the issues in the official's portfolio, (ii) the finality of the official's actions, and (iii) the degree of discretion the official has in reaching her determinations. (8)

Proper application of this multifactor standard is fraught with uncertainty. Recently, for example, the application of the standard to administrative law judges (ALJs) within the Securities and Exchange Commission (SEC) has resulted in a circuit split. In December 2016, the Tenth Circuit issued an opinion creating a split with the D.C. Circuit, which had held in an August 2016 panel opinion that the category of Article II officers excludes these ALJs. (9) In particular, the Tenth Circuit disagreed with the D.C. Circuit's reliance on final decisionmaking authority as an essential factor for officer status. (10) The Tenth Circuit concluded instead that SEC ALJs are officers merely because their positions and "duties, salary, and means of appointment" are established by statute and because they "'exercise significant discretion' in 'carrying out ... important functions.'" (11) In May 2017 the D.C. Circuit sat en banc to reconsider its 2016 panel decision and evaluate whether it properly relied on final decisionmaking authority as a factor relevant to the Article II officer analysis. (12) In June 2017 an evenly divided D.C. Circuit issued a judgment denying the petition for review of the SEC order originally before the court and affirming the earlier August 2016 panel decision. (13) The two circuits consequently resumed their direct conflict, and on January 12, 2018, the Supreme Court granted certiorari in the D.C. Circuit case. (14)

Although the two federal courts of appeals examined a somewhat different set of factors leading to contradictory results, both courts nonetheless attempted to apply the Supreme Court's general "significant authority benchmark--at least as that benchmark has been fleshed out in recent cases. (15) In light of evidence about the broad meaning of the word officer when the Constitution was adopted in the late eighteenth century, however, both courts were likely applying the wrong benchmark--at least as a historical matter.

This Article is not primarily a theoretical piece contending that originalism is the best interpretive theory or that one type of originalism should be favored over another. (16) Rather, the research set forth in this Article reflects an awareness that many judges and scholars consider the Constitution's original meaning relevant to constitutional questions. (17) In cases involving the Appointments Clause in particular, the Supreme Court has indicated that the historical understanding of the Clause is key to its contemporary interpretation and application. (18)

An accurate historical understanding of the meaning of the word "officer" in the Appointments Clause consequently provides a relevant data point for properly applying the Clause to our modern administrative governmental structure. In that vein, extensive evidence suggests that the original public meaning of the Article II term "officer" related to neither discretion nor final decisionmaking authority. Rather, historical evidence suggests that the most likely eighteenth century meaning of "officer" was significantly broader than the modern "significant authority" test implies. In the Founding era, the term "officer" was commonly understood to encompass any individual who had ongoing responsibility for a governmental duty. (19) This included even individuals with more ministerial duties like recordkeeping. (20) The only continuing positions excluded from the category of "officer" were (i) positions more like those of "servants" or "attendants" (21) and (ii) "deputies" acting as agents in place of an officer, where the officer was subject to personal legal liability for the deputy's actions. (22)

The phrase "Officers of the United States" predates the drafting of the Constitution. (23) Evidence of early usage indicates that it was not a special legal term of art, (24) unlike other constitutional phrases such as "the Writ of Habeas Corpus" (25)--at least not with respect to the level of authority an official must have. (26) The qualifier "of the United States" clarifies that Article II refers to federal officers (27)...