Posted by Hanah Metchis Volokh, guest-blogging:
Two Appointments Clauses:
http://volokh.com/archives/archive_2007_10_21-2007_10_27.shtml#1193141058
I'm going to lay out the arguments in my paper in a series of posts.
This post provides some background information about the
Constitution's procedures for appointing officers of the federal
government, and explains why I make a distinction between two separate
Appointments Clauses.
Readers who have a bit of familiarity with what is generally called
the Appointments Clause of the U.S. Constitution will somewhat
surprised at the title of my paper, [1]The Two Appointments Clauses:
Statutory Qualifications for Federal Officers. What is this second
appointments clause, and where did it come from?
Those with a more extensive knowledge of that clause, [2]Article II,
Section 2, Clause 2, should be able to guess that I'm talking about
the same old Appointments Clause but am dividing it into two parts.
The Constitution actually sets up two different methods for appointing
federal officers, and it does so in a single, very long sentence.
(Actually, it's just most of a sentence, since the first clause in the
sentence describes the treaty power.) It's worth quoting in full:
[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.
It doesn't take a very close reading to see that this creates two
different processes. In the first one, the President nominates an
officer and, with the advice and consent of the Senate, appoints the
officer. In the second, Congress may allow the President, a court, or
the head of a department to appoint an officer without Senate
confirmation. Both of these processes are frequently used. You read
about and watch confirmation hearings for judges, the Attorney
General, the director of FEMA, and so forth. But you'd never see a
confirmation hearing for, say, [3]the Deputy PTO Director, because
Congress has vested the appointment of the Deputy PTO Director in the
Secretary of Commerce. (If you don't believe me, you can look it up in
35 U.S.C. � 3(b)(1).)
Having these two separate procedures makes a lot of sense. The
question of who counts as an officer and who is just a federal
employee is debated in the literature, but on any definition there are
thousands of officers in the federal bureaucracy and the judiciary. If
the Senate had to confirm each one, they would have little time to do
anything else. But when the officer in question will hold a very
powerful office, or one with lots of political considerations
involved, Senate confirmation is an important check on the President's
power. The publicity of a confirmation hearing (though a hearing is
not actually required for confirmation) also helps to create
accountability.
Two other obvious points. First, the Constitution requires Senate
confirmation for certain very important and politically sensitive
officers: "ambassadors, other public ministers and consuls, [and]
judges of the Supreme Court . . . ." Second, for inferior officers,
Senate confirmation is the default method. To avoid Senate
confirmation, Congress must take the affirmative step of passing a
statute conferring power on one of the constitutionally-recognized
appointers to appoint the officer.
Existing scholarship has assumed that these few considerations
basically exhaust the differences between the two appointments
procedures. When assessing the constitutionality of something having
to do with appointment or removal of officers, few people make any
distinction based on which of the two Appointments Clauses is being
used.
My argument is that the differences go deeper than initially appears.
The text of the Appointments Clauses points to differences, and the
different structures of power created by the two procedures lead to
different constitutional considerations as well. In my paper, I
discuss the phenomenon of statutorily-imposed job qualifications for
federal officers and explain how they should be viewed differently for
officers appointed under each method.
References
1. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1016220
2. http://www.yale.edu/lawweb/avalon/art2.htm
3. http://www.volokh.com/posts/1185468531.shtml
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