Congressional Power over Office Creation
65 Pages Posted: 30 Apr 2018 Last revised: 28 Oct 2018
Date Written: October 25, 2018
The Constitution leaves the creation of the institutions of government to ordinary political processes. While intricate constitutionalized procedures govern the election of Congress, the President, and the Vice-President, the Constitution anticipated but did not establish a host of other personnel and positions. Instead, it leaves the task of institution-building to Congress. This Note argues that text, structure, and history demonstrate that the Constitution gives Congress exclusive authority over office-creation. Textually, the Appointments Clause and the Necessary and Proper Clause together give Congress exclusive authority to “establish by Law” the government’s offices. Structurally, Congress has the democratic and technical capacity to structure the government. And Congress’s power to “constitute” governmental institutions mimics the original act of Constitution-making: just as “We the People” could “ordain and establish this Constitution,” the Appointments Clause allows Congress to “establish by Law...all other Officers of the United States.”
Congress’s exclusive office-creating power has important implications for the separation of powers. This Note discusses three such issues: First, I discuss the related problems of statutory qualifications clauses and for-cause removal provisions. Perhaps counter-intuitively, qualifications clauses should almost never raise constitutional problems, but for-cause removal provisions almost always will. I argue that the Constitution’s distinction between ex ante office-creation and ex post presidential control explains this distinction. Second, I discuss the constitutionality of temporary appointments that do not meet the strictures of the Recess Appointments Clause. Drawing on Justice Thomas’s concurrence in SW General, I show that, in some circumstances, the Federal Vacancies Reform Act of 1998 makes an unconstitutional “end-run around the Appointments Clause.” Third, I argue that this Note clarifies the employee-officer distinction in Appointments Clause jurisprudence. Together, these three doctrinal issues illustrate how Congress’s exclusive office-creating power ought to inform the analysis in separation-of-powers cases.
Keywords: separation of powers, congress, appointments clause, officers of the united states, for-cause removal, vacancies reform act
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