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Who Are 'Officers of the United States'?

112 Pages Posted: 16 Feb 2017 Last revised: 19 Nov 2017

Jennifer L. Mascott

George Mason University - Antonin Scalia Law School, Faculty

Date Written: November 17, 2017

Abstract

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 proven difficult to apply to major categories of officials, leading to a circuit split over whether certain administrative law judges need Article II appointments. 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 term’s original public meaning, this article uses two distinctive tools: (i) “corpus linguistics”-style analysis of Founding-era documents and (ii) examination of appointments practices in the Continental Congress and the First Federal Congress. Both strongly suggest 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” likely would extend to thousands of officials not currently appointed as Article II “officers,” such as tax collectors, disaster relief officials, federal inspectors, customs officials, and administrative judges. This conclusion might at first seem destructive to the civil service structure as it would involve re-designating these officials as Article II “officers” — not employees outside the scope of Article II 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 candidates and hire them. These feasible but significant changes would restore a critical mechanism for democratic accountability and transparency inherent in the Appointments Clause requirements.

Keywords: Administrative law, constitutional law, interpretation, officers, appointments, Article II, corpus linguistics, original public meaning

Suggested Citation

Mascott, Jennifer L., Who Are 'Officers of the United States'? (November 17, 2017). Stanford Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=2918952 or http://dx.doi.org/10.2139/ssrn.2918952

Jennifer Mascott (Contact Author)

George Mason University - Antonin Scalia Law School, Faculty ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States
(703) 993-8168 (Phone)

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