Since Alt and Schramm are on the road and our troops are in transit, now’s a good a time to take a short break from war coverage and go back to the federal-courts impasse. On Monday, John Eastman & I had an exchange about whether Congress could constitutionally pass a bill designating federal appeal & district judges as "inferior officers" and giving the President power to appoint them without confirmation by the Senate. After John’s post, I remained convinced that Congress may not short-circuit the confirmation process.

Most important, appellate and district court judges are not "inferior" officers within the meaning of "inferior" in the Appointments Clause, in art. III, sec. 2 of the Constitution. The Appointments Clause requires Senate advice and consent for "Ambassadors, other public Ministers and Consuls, and Judges of the supreme Court, and all other Officers of the United States," but not necessarily for "such inferior Officers, as [Congress] think proper." This is the sharpest point of disagreement between Eastman & me, and I do not think he gives enough consideration to the arguments against his proposal.

As I read John, he equates the phrases "all other Officers" in the first half of the Clause with the phrase "inferior Officers" in the second half. If so, the $64 question is whether or not an "officer" is an ambassador, minister, or Supreme Court Justice. If so, he must be treated as an officer; if not, the choice is presumptively up to Congress whether to designate his office as principal or inferior (and thus subject to advice & consent or not). (John makes an exception for Heads of Departments, which I’ll get to below, but this is the interpretation in his analysis that governs judges.)

This is not the best text--based reading of the Appointments Clause. To borrow a Bushism, it misunderestimates the work that the word "inferior" does in the Appointments Clause. The class of "inferior Officers" is not a backstop for all "officers" who aren’t specifically enumerated as ambassadors, ministers, or Justices (or Cabinet Secretaries). The first half of Appointments Clause requires advice and consent for all officers. The second half makes this requirement a default rule for "inferior officers," which Congress may change in its discretion. But by giving Congress power to change the requirement only for "inferior" officers, the Appointments Clause implicitly reserves from Congress the power to change the rules for appointing "Officers" who are substantively not "inferior" officers.

John cites the Opinion Clause in support of his narrow reading of the Appointments Clause, but it really supports the broader reading. The Opinion Clause describes the heads of "the executive Departments" as "principal Officer[s]." In the Appointments Clause, then, the term "Officers" includes some "officers" who aren’t ambassadors, ministers, or Justices but are still "principal." If the "officers" has such a comprehensive meaning for executive-branch officers, it has to have the same comprehensive meaning for judicial-branch officers in the Appointments Clause, which draws no distinctions between executive- and judicial-branch officers.

Which takes me to my second point of disagreement with John - how to interpret the provision of the Appointments Clause requiring that inferior-officer appointments be vested only "in the President alone, in the Courts of Law, or in the Heads of Department." John & I agree that the "Heads of Department" are principal officers because they correspond to the "principal Officer[s] in each of the executive Department[s]" mentioned in the Opinion Clause. John concludes by implication that the judges in the "Courts of Law" in the Appointments Clause are inferior officers, because there’s no clause like the Opinion Clause saying they’re principal officers. As a matter of structure, I would conclude just the opposite. If the only executive-branch officials who may appoint inferior officers are the President and Heads of Departments, and if the latter are principal executive officers, the "Courts of Law" should be filled with principal judicial officers - on a par with the principal executive officers who serve as the heads of departments.

Also in relation to this provision, I don’t think John responds satisfactorily to my concern about the consequences that would follow if appellate and district judges were inferior officers. "Courts of Law" get to appoint inferior officers. That provision makes sense if one thinks of courts appointing the clerk of the court, special masters, or magistrates with limited responsibilities like approving search warrants. (John tweaks me for my previous examples, but he misunderstood at least one and I hope he’ll agree the jobs I list here all must be filled by inferior judicial officers, not employees.)

The provision starts to look really goofy, though, if the judges on inferior courts are inferior officers. Yes, then the President may appoint them. But so may the Attorney General, the Secretary of Education, or the head of any other department. And the the judges in the "Courts of Law" may appoint their own successors. John disagrees on the ground that judges aren’t courts. I don’t think this is responsive. Maybe the chief judge of the court gets the appointment. Maybe the court makes the appointment upon a vote by a majority of the judges sitting on it. Either way, such an appointments process really seems to upset what we know about the structure of Article III.

So then the last piece of text is the Judiciary Vesting Clause, which calls the lower courts "inferior Courts." As I said in my last post, there’s no textual reason why judges must be inferior officers because they sit on courts inferior to the Supreme Court.

Put all this together, and I think the law needs to follow the approach Supreme Court Appointments Clause precedent has taken. The law needs a substance-over-form test to figure out whether an officer is "inferior" within the broad outlines created by the distinction between "Officers" and "inferior Officers" in the Appointments Clause. So list all the ways in which inferior-court judges are subordinate, list all the ways in which they’re not, compare the two and decide whether they’re "inferior." John objects that appellate and district judges’ decisions are potentially reviewable by the Supreme Court. Point taken. Put that fact on one side of the ledger. On the other side, lower-court judges presumptively get to exercise all of the Article III judicial power, they are actually not reviewed by the Supreme Court 99% of the time, and they can never be fired. Lower-court judges are not inferior enough in their responsibilities and job structure to count as inferior officers.