Temporary Officers

19 Pages Posted: 8 Nov 2018

See all articles by James Heilpern

James Heilpern

Brigham Young University - J. Reuben Clark Law School

Date Written: November 8, 2018


In Lucia v. Securities and Exchange Commission, the Supreme Court held that an administrative law judge in the SEC qualifies as an “Officer of the United States” for purposes of the Appointments Clause of the Constitution. Writing for the majority in Lucia, Justice Kagan laid out what appears to be a two part test for making this determination:

Two decisions set out this Court’s basic framework for distinguishing between officers and employees. Germaine held that “civil surgeons” (doctors hired to perform various physical exams) were mere employees because their duties were “occasional or temporary” rather than “continuing and permanent.” Stressing “ideas of tenure [and] duration,” the Court there made clear that an individual must occupy a “continuing” position established by law to qualify as an officer. Buckley then set out another requirement, central to this case. It determined that members of a federal commission were officers only after finding that they “exercise[ed] significant authority pursuant to the laws of the United States.” The inquiry thus focused on the extent of power an individual wields in carrying out his assigned functions.

This article focuses on the meaning and validity of the “continuity” prong. In 2007, the Office of Legal Counsel issued a memorandum opinion which concluded that for a position to be continuous it must be“permanent, meaning that it is not limited by time or by being of such a nature that it will terminate by the very fact of performance.” The opinion alleges that this rule is a reflection of “[e]arly American practice and precedent, particularly with regard to diplomacy.” It asserts that during the Founding era, positions “summoned into existence only for specific temporary purposes” were understood to not be “offices in the sense of the Constitution.”

This could not be further from the truth. This article will demonstrate that during the Washington, Adams, and Jefferson administrations, Presidents routinely sought the advice and consent of the Senate when appointing officials sent on temporary missions. When they did not, it was because they were acting pursuant to the Recess Appointment Clause due to Congress having already adjourned for the year.

The article will also look at early American case law which had a very different understanding of "continuity" than the OLC. At common law, the term office referred to "an institution distinct from the person holding it" and was said to be continuous if it was "capable of persisting beyond [an individual's] incumbency." Chief Justice John Marshall distinguished officers from contractual employees, asking whether "the duties appertaining to [the] station . . . continue[] though the person be changed." Under this metric, even short-term positions qualify as offices so long as the duties and emoluments are defined by the government.

Keywords: originalism, officers, Lucia

Suggested Citation

Heilpern, James, Temporary Officers (November 8, 2018). George Mason Law Review, Forthcoming, BYU Law Research Paper, Available at SSRN: https://ssrn.com/abstract=3281292

James Heilpern (Contact Author)

Brigham Young University - J. Reuben Clark Law School ( email )

430 JRCB
Brigham Young University
Provo, UT 84602
United States

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