Distinguishing Between Inferior and Non-Inferior Officers Under the Appointments Clause: A Question of 'Significance'

Pacific Legal Foundation Research Paper 2021–02

57 Pages Posted: 6 Oct 2021

See all articles by Damien M. Schiff

Damien M. Schiff

Pacific Legal Foundation

Oliver Dunford

Pacific Legal Foundation

Date Written: September 4, 2021

Abstract

An important part of the constitutional design of the federal government is the separation of powers. A key aspect of that design is the Appointments Clause, which governs how officers of the United States are installed in their positions. The clause presumptively requires that all such officers must be appointed by the President with the advice and consent of the Senate. But it authorizes Congress to bypass that procedure and vest the appointment of “inferior Officers” exclusively in the President, the Courts of Law, or the Heads of Department.

How to distinguish between inferior and non-inferior officers, and thus how to determine who among federal officialdom must be appointed by the President with the Senate’s approval, is a task that has bedeviled the Supreme Court for decades. In its 1997 decision, Edmond v. United States, the Court held that the distinction turns on the degree to which an officer is “directed and supervised” by other, non-inferior officers. The Court articulated three factors to guide that assessment, including whether the officer is protected from removal and whether the officer has the power unilaterally to make a final decision. In its ruling this past Term in United States v. Arthrex, the high court signaled a departure from Edmond and embarked on a different analytical path. Effectively eschewing the Edmond direction-and-supervision standard along with its multi-factor analysis, the Court appears to have adopted a straight-forward “significance” standard, such that an officer is non-inferior if the officer wields significant power. The Court’s shift in Arthrex is, however, more implicit than explicit, given the precedential constraints of Edmond and other cases that have employed “significance” as the standard to distinguish officers from non-officers, rather than inferior from non-inferior officers. Consequently, the Court’s analysis in Arthrex is set forth using the terms of Edmond. But Arthrex’s essentially exclusive reliance on the Edmond “final decision” factor, coupled with its emphasis on the importance of maintaining accountability for official action that, like the patent dispute at issue in Arthrex, can have tremendous impact on the property rights and other liberties of private parties, suggests that the Court’s allegiance to Edmond is superficial and strategic.

If, then, the Court is moving towards a plain significance standard—and our review of the Court’s ruling concludes that it is—then this shift should be applauded. It makes the Court’s Appointments Clause case law better cohere with that clause’s original meaning, which does not use significance to distinguish officers from non-officers, but likely does so to distinguish inferior from non-inferior officers. It also better furthers the policy of democratic accountability—a policy that the Court’s recent cases concerning the Appointments Clause (including Arthrex),—as well as those concerning the coordinate issue of the President’s power to remove officers, have stressed, and which animates the Constitution’s rules and checks governing the selection and control of the Executive officer corps.

Keywords: Appointments Clause, Excepting Clause, inferior officer, principal officer, officers of the United States, Buckley v. Valeo, Edmond v. United States, Morrison v. Olson, United States v. Arthrex

Suggested Citation

Schiff, Damien M. and Dunford, Oliver, Distinguishing Between Inferior and Non-Inferior Officers Under the Appointments Clause: A Question of 'Significance' (September 4, 2021). Pacific Legal Foundation Research Paper 2021–02 , Available at SSRN: https://ssrn.com/abstract=3917655 or http://dx.doi.org/10.2139/ssrn.3917655

Damien M. Schiff (Contact Author)

Pacific Legal Foundation ( email )

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Sacramento, CA 95814
United States

Oliver Dunford

Pacific Legal Foundation ( email )

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Suite 307
Palm Beach Gardens, FL 33410
United States
916-503-9060 (Phone)

HOME PAGE: http://https://pacificlegal.org/staff/oliver-dunford/

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