Who Are "Officers of the United States"?

122 Pages Posted: 16 Feb 2017 Last revised: 4 May 2018

Jennifer Mascott

George Mason University - Antonin Scalia Law School, Faculty

Date Written: February 2018

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 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 term’s 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.

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

Suggested Citation

Mascott, Jennifer, Who Are "Officers of the United States"? (February 2018). 70 Stanford Law Review 443 (2018); George Mason Legal Studies Research Paper No. LS 17-21. 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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