Posted by Sasha Volokh:
More growth of the Conspiracy:
http://volokh.com/archives/archive_2007_09_30-2007_10_06.shtml#1191453704
Remember the [1]lawsuit challenging the qualifications of the Deputy
Director of the Patent & Trademark Office? As was hinted at in the
first two comments to that post a few months ago, [2]a recent Volokh
has just written [3]what is sure to become the definitive piece on the
subject, called "The Two Appointments Clauses: Statutory
Qualifications for Federal Officers." Here's the abstract:
Congress often exercises control over appointments to federal
office by writing job qualifications and putting them directly into
the statute creating the office. This practice is best examined by
viewing the Appointments Clause not as a single entity, but as two
related clauses that set up two very different methods of
appointment: presidential nomination and Senate confirmation as the
default method, and vesting in one of three authorized positions as
an optional alternative method for certain types of officers. When
creating an office, Congress must choose one of these methods for
appointing the officer, but cannot create a hybrid method combining
the two procedures.
In this article, I examine the text, history, and structure of the
Constitution to determine what is required by each of the two
appointments processes. I conclude that statutory qualifications
are consistent with the Constitution's process for vested
appointments, but inconsistent with the nomination and confirmation
process.
Hanah's article will soon be published in the [4]University of
Pennsylvania Journal of Constitutional Law.
References
1. http://www.volokh.com/posts/1185468531.shtml
2. http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=617594
3. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1016220
4. http://www.law.upenn.edu/conlaw/
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