Appointments

The Appointments Clause (Article II, Section 2, Clause 2) says the President "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint" ambassadors, judges and "all other Officers of the United States," but "the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments." The President may also fill vacancies "during the Recess of the Senate." Three questions follow: who is an officer, who is inferior, and what is a recess?

The Appointments Clause.

Why it works

The framers argued at length about who should appoint. Appointment by a legislature, common in the states, scattered responsibility; appointment by the executive alone risked favoritism. The compromise gave the President the choice, for accountability, and the Senate a check. Hamilton defended it in Federalist No. 76: one person chooses better, and the Senate's consent "would be an excellent check upon a spirit of favoritism." The clause also keeps Congress from appointing the officers who carry out its laws.

The Appointments Clause in three questions.
Question	Rule	Case
Who is an "officer"?	Someone who holds a continuing position and exercises significant authority under federal law; ordinary employees are not officers.	Buckley v. Valeo (1976): Congress could not appoint members of the Federal Election Commission. Lucia v. SEC (2018): SEC administrative law judges are officers.
Who is "inferior"?	An officer whose work is directed and supervised by officers appointed by the President with Senate consent.	Edmond v. United States (1997); Morrison v. Olson (1988) looked at removability, limited duties, jurisdiction and tenure.
What is a "recess"?	A break long enough to count: a recess of fewer than ten days is presumptively too short.	NLRB v. Noel Canning (2014): appointments during a three-day break were invalid.

Key idea

Principal officers are appointed by the President with Senate consent; Congress may vest the appointment of inferior officers in the President, the courts or department heads (Edmond, 1997; Lucia v. SEC, 2018). Recess appointments need a recess of at least ten days, presumptively (NLRB v. Noel Canning, 2014).

Worked example: Officer or employee?

A federal agency hires (a) a clerk who files documents and (b) a hearing officer who presides over enforcement cases, takes testimony and issues decisions that become final unless reviewed. Which must be appointed under the clause?

(a) The clerk exercises no significant authority under federal law: an employee.
(b) The hearing officer holds a continuing office and exercises significant discretion in enforcement cases, much like the SEC judges in Lucia.
So (b) is an officer; as an inferior officer, (b) may be appointed by the head of the department if Congress so provides.

Answer: Only (b) must be appointed under the Appointments Clause.

Worked example: Principal or inferior?

Judges of a military appeals court were appointed by the Secretary of Transportation. Their decisions could be reviewed by another court, and a superior officer supervised their administration and could remove them. Were they inferior officers?

Edmond asks whether their work is directed and supervised by Senate-confirmed officers.
Another executive body could review their decisions, and they could be removed from their assignments.
So they had a superior other than the President.

Answer: Inferior officers; appointment by the department head was valid (Edmond, 1997).

Common mistake

Thinking every executive employee is an "officer" needing Senate confirmation. Officers exercise significant authority under federal law; ordinary employees do not, and inferior officers may be appointed without the Senate if Congress so provides. Check: significant authority? Then who supervises?

This is an educational course, not legal advice.

Appointments

Practice

Builds on

Leads to

Sources and further reading