Strengthening Constitutional Self-Government

No Left Turns

Appointment of "Inferior Officers"

I hate to disagree with John Eastman on anything, but I think the answer to Alt’s question has to be "no." For those of you who aren’t separation of powers nerds, Alt’s question, and Eastman’s proposal to let the President appoint judges as "inferior officers," raise a constitutional issue under the Appointments Clause, Art. II, sec. 2, cl. 2. That clause requires "Officers" (also known as "principal" officers) to be appointed with the Senate’s advice and consent, but it lets "inferior Officers" be appointed without advice and consent -- directly by the President, "the Courts of Law," or department heads.

Whatever you think of the way in which the federal courts treat other structural provisions in the Constitution, the courts have been pretty sensible when it comes to distinguishing between principal and inferior Officers. An officer isn’t "inferior" simply because Congress and the President pass a bill calling the officer "inferior." Substance has to win out over form when reading a constitution, especially in separation of powers law, or else the government does end-runs around the basic structure very quickly. Once you accept this, a federal district or appellate judge just has to be a principal officer within the judiciary. Federal judges can’t be fired. Even the lowliest district court judge gets to apply the whole of the Article III judicial power in the case before him if there’s no appellate review, and in most cases there isn’t. Same goes for appellate judges, whose decisions are unreviewed 99% of the time, even when one of the parties does ask the Supreme Court for review. Nice work if you can get it.

The Appointments Clause confirms all this in a roundabout way. Whoever the "inferior Officers" are in the judiciary (clerks and bailiffs seem like two good examples), the Clause allows the "Courts of Law" to appoint them without checking with the President or the Senate. (As long as Congress has already established such an appointments process by law.) If the courts of law are appointing inferior officers, it seems like a pretty safe bet that they must be principal officers themselves.

To be sure, Article III, sec. 1 does indeed vest the national judicial power in the Supreme Court "and in such inferior Courts as the Congress may from time to time establish." But it just can’t be the case that inferior courts are automatically inferior officers. Most people, including strict constructionists, would agree that the term "inferior" can mean different things when describing different nouns in different contexts. Especially when the Appointments Clause speaks of the "Courts of Law" in a way that strongly implies that those courts are principal officers. Federal appeals judges, it seems to me, can be "principal" for the purposes of figuring out whether they’re important enough that the President must appoint them, but then "inferior" once they’re appointed, for the purposes of figuring out where they fit in the Article III food chain.

For those of you who are interested, constitutional law professors Steven Calabresi and Gary Lawson treated this issue in an 1992 article in the Yale Law Journal, volume 102, pages 255-77, specifically on page 275 n. 103.

If I’m belaboring the point, it’s really important to get issues right in separation of powers law. Mistakes in this area can have huge unintended consequences. Each year in my administrative law class, I teach Humphrey’s Executor, in which the so-called "conservatives" on the Court declared that separation of powers doctrine didn’t stop Congress from preventing President Roosevelt from firing a commissioner on the Federal Trade Commission. At the time, the decision was seen as a blow to President Roosevelt; it was decided on the same day that the Court handed down a decision declaring unconstitutional the National Industrial Recovery Act, the centerpiece of the first New Deal. But New Dealers quickly seized on Humphrey’s Executor as authority for the principle that there are no constitutional problems with government-by-independent-experts. So understood, the precedent sucked the life out of separation of powers law until the 1970s.

With respect to the standoff on judges now, there’s a simple and constitutional fix -- make the Senate revise its rules to allow for expedited consideration of nominees if there’s a stall. The unconstitutional fix could easily have unintended consequences. If the Appointments Clause lets the President appoint federal judges, it also lets courts of law appoint federal judges. We can all think of at least one federal judge who should not be allowed to pick his replacement.

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