Annotation 13 - Article II

  THE EXECUTIVE ESTABLISHMENT

  Office

''An office is a public station, or employment, conferred by the appointment of government. The term embraces the ideas of tenure, duration, emolument, and duties.'' 450  

  Ambassadors and Other Public Ministers .--The term ''ambassadors and other public ministers,'' comprehends ''all officers having diplomatic functions, whatever their title or designa tion.'' 451 It was originally assumed that such offices were established by the Constitution itself, by reference to the Law of Nations, with the consequence that appointments might be made to them whenever the appointing authority--the President and Senate--deemed desirable. 452 During the first sixty-five years of the Government, Congress passed no act purporting to create any diplomatic rank, the entire question of grades being left with the President. Indeed, during the administrations of Washington, Adams and Jefferson, and the first term of Madison, no mention occurs in any appropriation, even of ministers of a specified rank at this or that place, but the provision for the diplomatic corps consisted of so much money ''for the expenses of foreign intercourse,'' to be expended at the discretion of the President. In Madison's second term, the practice was introduced of allocating special sums to the several foreign missions maintained by the Government, but even then the legislative provisions did not purport to curtail the discretion of the President in any way in the choice of diplomatic agents.

In 1814, however, when President Madison appointed, during a recess of the Senate, the Commissioners who negotiated the Treaty of Ghent the theory on which the above legislation was based was drawn into question. Inasmuch, it was argued, as these offices had never been established by law, no vacancy existed to which the President could constitutionally make a recess appointment. To this argument, it was answered that the Constitution recognizes ''two descriptions of offices altogether different in their nature, authorized by the constitution-- one to be created by law, and the other depending for their existence and continuance upon contingencies. Of the first kind, are judicial, revenue, and similar offices. Of the second, are Ambassadors, other public Ministers, and Consuls. The first descriptions organize the Government and give it efficacy. They form the internal system, and are susceptible of precise enumeration. When and how they are created, and when and how they become vacant, may always be ascertained with perfect precision. Not so with the second description. They depend for their original existence upon the law, but are the offspring of the state of our relations with foreign nations, and must necessarily be governed by distinct rules. As an independent power, the United States have relations with all other independent powers; and the management of those relations is vested in the Executive.'' 453  

By the opening section of the act of March 1, 1855, it was provided that ''from and after the thirtieth day of June next, the President of the United States shall, by and with the advice and consent of the Senate, appoint representatives of the grade of envoys extraordinary and ministers plenipotentiary,'' with a specified annual compensation for each, ''to the following countries. . . .'' In the body of the act was also this provision: ''The President shall appoint no other than citizens of the United States, who are residents thereof, or who shall be abroad in the employment of the Government at the time of their appointment. . . .'' 454 The question of the interpretation of the act having been referred to Attorney General Cushing, he ruled that its total effect, aside from its salary provisions, was recommendatory only. It was ''to say, that if, and whenever, the President shall, by and with the advice and consent of the Senate, appoint an envoy extraordinary and minister plenipotentiary to Great Britain, or to Sweden, the compensation of that minister shall be so much and no more.'' 455  

This line of reasoning is only partially descriptive of the facts. The Foreign Service Act of 1946, 456 pertaining to the organization of the foreign service, diplomatic as well as consular, contains detailed provisions as to grades, salaries, promotions, and, in part, as to duties. Under the terms thereof the President, by and with the advice and consent of the Senate, appoints ambassadors, ministers, foreign service officers, and consuls, but in practice the vast proportion of the selections are made in conformance to recommendations of a Board of the Foreign Service.

  Presidential Diplomatic Agents

What the President may have lost in consequence of the intervention of Congress in this field, he has made good through his early conceded right to employ, in the discharge of his diplomatic function, so-called ''special,'' ''personal,'' or ''secret'' agents without consulting the Senate. When President Jackson's right to resort to this practice was challenged in the Senate in 1831, it was defended by Edward Livingston, Senator from Louisiana, to such good purpose that Jackson made him Secretary of State. ''The practice of appointing secret agents,'' said Livingston, ''is coeval with our exist ence as a nation, and goes beyond our acknowledgement as such by other powers. All those great men who have figured in the history of our diplomacy, began their career, and performed some of their most important services in the capacity of secret agents, with full powers. Franklin, Adams, Lee, were only commissioners; and in negotiating a treaty with the Emperor of Morocco, the selection of the secret agent was left to the Ministers appointed to make the treaty; and, accordingly, in the year 1785, Mr. Adams and Mr. Jefferson appointed Thomas Barclay, who went to Morocco and made a treaty, which was ratified by the Ministers at Paris.

''These instances show that, even prior to the establishment of the Federal Government, secret plenipotentiaries were known, as well in the practice of our own country as in the general law of nations: and that these secret agents were not on a level with messengers, letter carriers, or spies, to whom it has been found necessary in argument to assimilate them. On the 30th March, 1795, in the recess of the Senate, by letters patent under the great broad seal of the United States, and the signature of their President, (that President being George Washington,) countersigned by the Secretary of State, David Humphreys was appointed commissioner plenipotentiary for negotiating a treaty of peace with Algiers. By instructions from the President, he was afterwards authorized to employ Joseph Donaldson as agent in that business. In May, of the same year, he did appoint Donaldson, who went to Algiers, and in September of the same year concluded a treaty with the Dey and Divan, which was confirmed by Humphreys, at Lisbon, on the 28th November in the same year, and afterwards ratified by the Senate, and an act passed both Houses on 6th May, 1796, appropriating a large sum, twenty-five thousand dollars annually, for carrying it into effect.'' 457  

The precedent afforded by Humphreys' appointment without reference to the Senate has since been multiplied many times, 458 as witness the mission of A. Dudley Mann to Hanover and other German states in 1846, of the same gentleman to Hungary in 1849, of Nicholas Trist to Mexico in 1848, of Commodore Perry to Japan in 1852, of J. H. Blount to Hawaii in 1893. The last named case is perhaps the most extreme of all. Blount, who was appointed while the Senate was in session but without its advice and consent, was given ''paramount authority'' over the American resident minister at Hawaii and was further empowered to employ the military and naval forces of the United States, if necessary to protect Amer ican lives and interests. His mission raised a vigorous storm of protest in the Senate, but the majority report of the committee which was created to investigate the constitutional question vindicated the President in the following terms: ''A question has been made as to the right of the President of the United States to dispatch Mr. Blount to Hawaii as his personal representative for the purpose of seeking the further information which the President believed was necessary in order to arrive at a just conclusion regarding the state of affairs in Hawaii. Many precedents could be quoted to show that such power has been exercised by the President on various occasions, without dissent on the part of Congress or the people of the United States. . . . These precedents also show that the Senate of the United States, though in session, need not be consulted as to the appointment of such agents, . . . .'' 459 The continued vitality of the practice is attested by such names as Colonel House, the late Norman H. Davis, who filled the role of ''ambassador at large'' for a succession of administrations of both parties, Professor Philip Jessup, Mr. Averell Harriman, and other ''ambassadors at large'' of the Truman Administration, and Professor Henry Kissinger of the Nixon Administration.

How is the practice to be squared with the express words of the Constitution? Apparently, by stressing the fact that such appointments or designations are ordinarily merely temporary and for special tasks, and hence do not fulfill the tests of ''office'' in the strict sense. In the same way the not infrequent practice of Presidents of appointing Members of Congress as commissioners to negotiate treaties and agreements with foreign governments may be regularized, notwithstanding the provision of Article I, Sec. 6, clause 2 of the Constitution, which provides that ''no Senator or Representative shall . . . be appointed to any civil Office under the Authority of the United States, which shall have been created,'' during his term; and no officer of the United States, ''shall be a Member of either House during his Continuance in Office.'' 460 The Treaty of Peace with Spain, the treaty to settle the Bering Sea controversy, the treaty establishing the boundary line between Canada and Alaska, were negotiated by commissions containing Senators and Representatives.

  Appointments and Congressional Regulation of Offices

That the Constitution distinguishes between the creation of an office and appointment thereto for the generality of national offices has never been questioned. The former is by law and takes place by virtue of Congress' power to pass all laws necessary and proper for carrying into execution the powers which the Constitution confers upon the government of the United States and its departments and officers. 461 As an incident to the establishment of an office, Congress has also the power to determine the qualifications of the officer and in so doing necessarily limits the range of choice of the appointing power. First and last, it has laid down a great variety of qualifications, depending on citizenship, residence, professional attainments, occupational experience, age, race, property, sound habits, and so on. It has required that appointees be representative of a political party, of an industry, of a geographic region, or of a particular branch of the Government. It has confined the President's selection to a small number of persons to be named by others. 462 Indeed, it has contrived at times to designate a definite eligibility, thereby virtually usurping the appointing power. 463 De spite the record of the past, however, it is not at all clear that Congress may cabin the President's discretion, at least for offices that he considers important, by, for example, requiring him to choose from lists compiled by others. To be sure, there are examples, but they are not free of ambiguity. 464  

But when Congress contrived actually to participate in the appointment and administrative process and provided for selection of the members of the Federal Election Commission, two by the President, two by the Senate, and two by the House, with confirmation of all six members vested in both the House and the Senate, the Court unanimously held the scheme to violate the appointments clause and the principles of separation of powers. The term ''officers of the United States'' is a substantive one requiring that any appointee exercising significant authority pursuant to the laws of the United States be appointed in the manner prescribed by the appointments clause. 465 The Court did hold, however, that the Commission so appointed and confirmed could be delegated the powers Congress itself could exercise, that is, those investigative and informative functions that congressional committees carry out were properly vested in this body.

Congress is authorized by the appointments clause to vest the appointment of ''inferior Officers,'' at its discretion, ''in the President alone, in the Courts of Law, or in the Heads of Departments.'' Principal questions arising under this portion of the clause are ''Who are 'inferior officers,''' and ''what are the ''Departments'' whose heads may be given appointing power? 466 ''[A]ny appointee exercising significant authority pursuant to the laws of the United States is an 'Officer of the United States,' and must, therefore, be appointed in the manner prescribed by Sec. 2, cl. 2, of [Article II].'' 467 ''The Constitution for purposes of appointment very clearly divides all its officers into two classes. The primary class requires a nomination by the President and confirmation by the Senate. But foreseeing that when offices became numerous, and sudden removals necessary, this mode might be inconvenient, it was provided that, in regard to officers inferior to those specially mentioned, Congress might by law vest their appointment in the President alone, in the courts of law, or in the heads of departments. That all persons who can be said to hold an office under the government about to be established under the Constitution were intended to be included within one or the other of these modes of appointment there can be but little doubt.'' 468  

Thus, officers who are not ''inferior Officers'' must be appointed by the President with the advice and consent of the Senate in order to make sure that all the business of the Executive will be conducted under the supervision of officers appointed by the President with Senate approval, i.e., principal officers. 469 Further, the Framers intended to limit the ''diffusion'' of the appointing power with respect to inferior officers in order to promote accountability. ''The Framers understood . . . that by limiting the appointment power, they could ensure that those who wielded it were accountable to political force and the will of the people. . . . The Appointments Clause prevents Congress from distributing power too widely by limiting the actors in whom Congress may vest the power to appoint. The Clause reflects our Framers' conclusion that widely distributed appointment power subverts democratic government. given the inexorable presence of the administrative state, a holding that every organ in the executive Branch is a department would multiply the number of actors eligible to appoint.'' 470  

Yet, even agreed on the principle, the Freytag Court split 5-to- 4 on the reason for the permissibility of the Chief Judge of the Tax Court to appoint special trial judges. The entire Court agreed that the Tax Court had to be either a ''department'' or a ''court of law'' in order for the authority to be exercised by the Chief Judge, and it unanimously agreed that the statutory provision was constitutional. But, there, agreement ended. The majority was of the opinion that the Tax Court could not be a department, but it was unclear what those Justices thought a department comprehended. Seemingly, it started from the premise that departments were those parts of the executive establishment called departments and headed by a cabinet officer. 471 Yet, the Court continued immediately to say: ''Confining the term ''Heads of Departments'' in the Appointments Clause to executive divisions like the Cabinet-level departments constrains the distribution of the appointment power just as the [IRS] Commissioner's interpretation, in contrast, would diffuse it. The Cabinet-level departments are limited in number and easily identified. The heads are subject to the exercise of political oversight and share the President's accountability to the people.'' 472 The use of the word ''like'' in this passage suggests that it is not just Cabinet-headed departments that are departments but as well entities that are similar to them in some way, and its reservation of the validity of investing appointing power in the heads of some named entities, as well as its observation that the term ''Heads of Departments'' does not embrace ''inferior commissioners and bureau officers'' all contribute to an amorphous conception of the term. 473 In the end, the Court sustained the challenged provision by holding that the Tax Court as an Article I court was a ''Court of Law'' within the meaning of the appointments clause. 474 The other four Justices concluded that the Tax Court, as an independent establishment in the executive branch, was a ''department'' for purposes of the appointments clause. In their view, in the context of text and practice, the term meant, not Cabinet-level departments, but ''all independent executive establishments,'' so that '''Heads of Departments' includes the heads of all agencies im mediately below the President in the organizational structure of the Executive Branch.'' 475  

The Freytag decision must be considered a tentative rather than a settled construction. The close division of the Court means that new appointments, some of which have already occurred, could change the construction. Further guidance must be awaited.

As noted, the appointments clause also authorizes Congress to vest the power in ''Courts of Law.'' Must the power to appoint when lodged in courts be limited to those officers acting in the judicial branch, as the Court first suggested? 476 But in Ex parte Siebold, 477 the Court sustained Congress' decision to vest the appointment of federal election supervisors, charged with preventing fraud and rights violations in congressional elections in the South, in courts and disavowed any thought that interbranch appointments could not be authorized under the clause. A special judicial division was authorized to appoint independent counsels to investigate and, if necessary, prosecute charges of corruption in the executive, and the Court, in near unanimity, sustained the law, denying that interbranch appointments, in and of themselves, and leaving aside more precise separation-of-powers claims, were improper under the clause. 478  

  Congressional Regulation of Conduct in Office .--Congress has very broad powers in regulating the conduct in office of officers and employees of the United States, especially regarding their political activities. By an act passed in 1876, it prohibited ''all executive officers or employees of the United States not appointed by the President, with the advice and consent of the Senate, . . . from requesting, giving to, or receiving from, any other officer or employee of the Government, any money or property or other thing of value for political purposes.'' 479 The validity of this measure having been sustained, 480 the substance of it, with some elaborations, was in corporated in the Civil Service Act of 1883. 481 The Lloyd-La Follette Act in 1912 began the process of protecting civil servants from unwarranted or abusive removal by codifying ''just cause'' standards previously embodied in presidential orders, defining ''just causes'' as those that would promote the ''efficiency of the service.'' 482 Substantial changes in the civil service system were instituted by the Civil Service Reform Act of 1978, which abolished the Civil Service Commission, and divided its responsibilities, its management and administrative duties to the Office of Personnel Management and its review and protective functions to the Merit Systems Protection Board. 483  

By the Hatch Act, 484 all persons in the executive branch of the Government, or any department or agency thereof, except the President and Vice President and certain ''policy determining'' officers, were forbidden to ''take an active part in political management or political campaigns,'' although they were still permitted to ''express their opinions on all political subjects and candidates.'' In United Public Workers v. Mitchell, 485 these provisions were upheld as ''reasonable'' against objections based on the First, Fifth, Ninth, and Tenth Amendments.

  The Loyalty Issue .--By Sec. 9A of the Hatch Act of 1939, federal employees were disqualified from accepting or holding any position in the Government or the District of Columbia, if they belonged to an organization that he knew advocated, the overthrow of our constitutional form of government. 486 The 79th Congress followed up this provision with a rider to its appropriation acts forbidding the use of any appropriated funds to pay the salary of any person who advocated, or belonged to an organization which advocated, the overthrow of the Government by force, or of any person who engaged in a strike or who belonged to an organization which asserted the right to strike against the Government. 487 These provisos ultimately wound up in permanent law requiring all government employees to take oaths disclaiming either disloyalty or strikes as a device for dealing with the Government as an employer. 488 Along with the loyalty-security programs initiated by President Truman 489 and carried forward by President Eisenhower, 490 these measures reflected the Cold War era and the fear of subversion and espionage following the disclosures of several such instances here and abroad. 491  

  Financial Disclosure and Limitations .--By the Ethics in Government Act of 1978, 492 Congress required high-level federal personnel to make detailed, annual disclosures of their personal financial affairs. 493 The aims of the legislation are to enhance public confidence in government, to demonstrate the high level of integrity of government employees, to deter and detect conflicts and interests, to discourage individuals with questionable sources of income from entering government, and to facilitate public appraisal of government employees' performance in light of their personal financial interests. 494 Despite the assertions of some that employee privacy interests are needlessly invaded by the breadth of disclosures, to date judicial challenges have been unsuccessful, absent even a Supreme Court review. 495 One provision, however, has generated much opposition and invalidation, so far, in the courts. Under Sec. 501(b) of the Ethics in Government Act, 496 there is imposed a ban on Members of Congress or any officer or employee of the Government, regardless of salary level, taking any ''honorarium,'' which is defined as ''a payment of money or anything of value for an appearance, speech or article (including a series of appearances, speeches, or articles if the subject matter is directly related to the individual's official duties or the payment is made because of the individual's status with the Government) . . . .'' 497 The statute, even interpreted in accordance with the standards applicable to speech restrictions on government employees, has been held to be overbroad and not sufficiently tailored to serve the governmental interest to be promoted by it. 498 Only a Supreme Court review, of course, will finally resolve the matter.

  Legislation Increasing Duties of an Officer .--Finally, Congress may devolve upon one already in office additional duties which are germane to his office without thereby ''rendering it necessary that the incumbent should be again nominated and appointed.'' Such legislation does not constitute an attempt by Congress to seize the appointing power. 499  

  Stages of Appointment Process

  Nomination .--The Constitution appears to distinguish three stages in appointments by the President with the advice and consent of the Senate. The first is the ''nomination'' of the candidate by the President alone; the second is the assent of the Senate to the candidate's ''appointment;'' and the third is the final appointment and commissioning of the appointee, by the President. 500  

  Senate Approval .--The fact that the power of nomination belongs to the President alone prevents the Senate from attaching conditions to its approval of an appointment, such as it may do to its approval of a treaty. In the words of an early opinion of the Attorney General: ''The Senate cannot originate an appointment. Its constitutional action is confined to the simple affirmation or rejection of the President's nominations, and such nominations fail whenever it rejects them. The Senate may suggest conditions and limitations to the President, but it cannot vary those submitted by him, for no appointment can be made except on his nomination, agreed to without qualifications or alteration.'' 501 This view is borne out by early opinion, 502 as well as by the record of practice under the Constitution.

  When Senate Consent Is Complete .--Early in January, 1931, the Senate requested President Hoover to return its resolution notifying him that it advised and consented to certain nominations to the Federal Power Commission. In support of its action the Senate invoked a long- standing rule permitting a motion to reconsider a resolution confirming a nomination within ''the next two days of actual executive session of the Senate'' and the recall of the notification to the President of the confirmation. The nominees involved having meantime taken the oath of office and entered upon the discharge of their duties, the President responded with a refusal, saying: ''I cannot admit the power in the Senate to encroach upon the executive functions by removal of a duly appointed executive officer under the guise of reconsideration of his nomination.'' The Senate thereupon voted to reconsider the nominations in question, again approving two of the nominees, but rejecting the third, against whom it instructed the District Attorney of the District of Columbia to institute quo warranto proceedings in the Supreme Court of the District. In United States v. Smith, 503 the Supreme Court overruled the proceedings on the ground that the Senate had never before attempted to apply its rule in the case of an appointee who had already been installed in office on the faith of the Senate's initial consent and notification to the President. In 1939, the late President Roosevelt rejected a similar demand by the Senate, an action that was unchallenged. 504  

Section 3. The President * * * shall Commission all the Officers of the United States.

  Commissioning the Officer .--This, as applied in practice, does not mean that he is under constitutional obligation to commission those whose appointments have reached that stage but merely that it is he and no one else who has the power to commission them, which he may do at his discretion. The sealing and delivery of the commission is, on the other hand, by the doctrine of Marbury v. Madison, in the case both of appointee by the President and Senate and by the President alone, a purely ministerial act which has been lodged by statute with the Secretary of State and the performance of which may be compelled by mandamus unless the appointee has been in the meantime validly removed. 505 By an opinion of the Attorney General many years later, however, the President, even after he has signed a commission, still has a locus poenitentiae and may withhold it; nor is the appointee in office till he has this commission. 506 This is probably the correct doctrine. 507  

Footnotes

[Footnote 450] United States v. Hartwell, 73 U.S. (6 Wall.) 385, 393 (1868).

[Footnote 451] 7 Ops. Atty. Gen. 168 (1855).

[Footnote 452] It was so assumed by Senator William Maclay. The Journal of William Maclay, E. Maclay ed. (New York: 1890), 109-110.

[Footnote 453] 26 Annals of Congress 694-722 (1814) (quotation appearing at 699); 4 Letters and Other Writings of James Madison (Philadelphia: 1865), 350-353.

[Footnote 454] 10 Stat. 619, 623.

[Footnote 455] 7 Ops. Atty. Gen. 186, 220 (1855).

[Footnote 456] 60 Stat. 999, superseded by the Foreign Service Act of 1980, P. L. 96-465, 94 Stat. 2071, 22 U.S.C. Sec. 3901 et seq.

[Footnote 457] 11 T. Benton, Abridgement of the Debates of Congress (Washington: 1860), 221.

[Footnote 458] S. Misc. Doc, 109, 50th Congress, 1st Sess. (1888), 104.

[Footnote 459] S. Rept. No. 227, 53d Congress, 2d Sess. (1894), 25. At the outset of our entrance into World War I President Wilson dispatched a mission to ''Petrograd,'' as it was then called, without nominating the Members of it to the Senate. It was headed by Mr. Elihu Root, with ''the rank of ambassador,'' while some of his associates bore ''the rank of envoy extraordinary.''

[Footnote 460] See 2 G. Hoar, Autobiography of Seventy Years (New York: 1903), 48-51.

[Footnote 461] However, ''Congress' power . . . is inevitably bounded by the express language of Article II, cl. 2, and unless the method it provides comports with the latter, the holders of those offices will not be 'Officers of the United States.' '' Buckley v. Valeo, 424 U.S. 1, 138 - 139 (1976) (quoted in Freytag v. CIR, 501 U.S. 868, 883 (1991). The designation or appointment of military judges, who are ''officers of the United States,'' does not violate the appointments clause. The judges are selected by the Judge Advocate General of their respective branch of the Armed Forces. These military judges, however, were already commissioned officers who had been appointed by the President with the advice and consent of the Senate, so that their designation simply and permissibly was an assignment to them of additional duties that did not need a second formal appointment. Weiss v. United States, 510 U.S. 163 (1994). However, the appointment of civilian judges to the Coast Guard Court of Military Review was impermissible and their actions were not salvageable under the de facto officer doctrine. Ryder v. United States, 515 U.S. 177 (1995).

[Footnote 462] See Myers v. United States, 272 U.S. 52, 264 -274 (1926) (Justice Brandeis dissenting). Chief Justice Taft in the opinion of the Court in Myers readily recognized the legislative power of Congress to establish offices, determine their functions and jurisdiction, fix the terms of office, and prescribe reasonable and relevant qualifications and rules of eligibility of appointees, always provided ''that the qualifications do not so limit selection and so trench upon executive choice as to be in effect legislative designation.'' Id., 128-129. For reiteration of Congress' general powers, see Buckley v. Valeo, 424 U.S. 1, 134 -135 (1976); Morrison v. Olson, 487 U.S. 654, 673 -677 (1988). And see United States v. Ferriera, 54 U.S. (13 How.) 40, 51 (1851).

[Footnote 463] See data in E. Corwin, op. cit., n.44, 363-365. Congress has repeatedly designated individuals, sometimes by name, more frequently by reference to a particular office, for the performance of specified acts or for posts of a nongovernmental character; e.g., to paint a picture (Jonathan Trumbull), to lay out a town, to act as Regents of Smithsonian Institution, to be managers of Howard Institute, to select a site for a post office or a prison, to restore the manuscript of the Declaration of Independence, to erect a monument at Yorktown, to erect a statue of Hamilton, and so on and so forth. Note, Power of Appointment to Public Office under the Federal Constitution, 42 Harv. L. Rev. 426, 430-431 (1929). In his message of April 13, 1822, President Monroe stated the thesis that, ''as a general principle, . . . Congress have no right under the Constitution to impose any restraint by law on the power granted to the President so as to prevent his making a free selection of proper persons for these [newly created] offices from the whole body of his fellow-citizens.'' 2 J. Richardson, op. cit., n.42, 698, 701. The statement is ambiguous, but its apparent intention is to claim for the President unrestricted power in determining who are proper persons to fill newly created offices. See the distinction drawn in Myers v. United States, 272 U.S. 52, 128 -129 (1926), quoted, op. cit., n.462. And note that in Public Citizen v. U. S. Dept. of Justice, 491 U.S. 440, 482 -489 (1989) (concurring), Justice Kennedy suggested the President has sole and unconfined discretion in appointing).

[Footnote 464] The Sentencing Commission, upheld in Mistretta v. United States, 488 U.S. 361 (1989), numbered among its members three federal judges; the President was to select them ''after considering a list of six judges recommended to the President by the Judicial Conference of the United States.'' Id., 397 (quoting 28 U.S.C. Sec. 991(a)). The Comptroller General is nominated by the President from a list of three individuals recommended by the Speaker of the House of Representatives and the President pro tempore of the Senate. Bowsher v. Synar, 478 U.S. 714, 727 (1986) (citing 31 U.S.C. Sec. 703(a)(2)). In Metropolitan Washington Airports Authority v. Citizens for the Abatement of Aircraft Noise, Inc., 501 U.S. 252, 268 -269 (1991), the Court carefully distinguished these examples from the particular situation before it that it condemned, but see id., 288 (Justice White dissenting), and in any event it never actually passed on the list devices in Mistretta and Synar. The fault in Airports Authority was not the validity of lists generally, the Court condemning the device there as giving Congress control of the process, in violation of Buckley v. Valeo.

[Footnote 465] Buckley v. Valeo, 424 U.S. 1, 109 -143 (1976). The Court took pains to observe that the clause was violated not only by the appointing process but by the confirming process, inclusion of the House of Representatives, as well. Id., 137. See also Metropolitan Washington Airports Auth. v. Citizens for the Abatement of Aircraft Noise, Inc., 501 U.S. 252 (1991).

[Footnote 466] Concurrently, of course, although it may seem odd, the question of what is a ''Court[] of Law'' for purposes of the appointments clause is unsettled. See Freytag v. CIR, 501 U.S. 868 (1991) (Court divides 5-to-4 whether an Article I court is a court of law under the clause).

[Footnote 467] Freytag v. CIR, 501 U.S.868, 881 (1991) (quoting Buckley v. Valeo, 424 U.S. 1, 126 (1976)).

[Footnote 468] United States v. Germaine, 99 U.S. 508, 509 -510 (1879) (quoted in Buckley v. Valeo, 424 U.S. 1, 125 (1976)). The constitutional definition of an ''inferior'' officer is wondrously imprecise. See Freytag v. CIR, 501 U.S. 868, 880 -882 (1991); Morrison v. Olson, 487 U.S. 654, 670 -673 (1988). And see United States v. Eaton, 169 U.S. 331 (1898). There is another category, of course, employees, but these are lesser functionaries subordinate to officers of the United States. Ordinarily, the term ''employee'' denotes one who stands in a contractual relationship to her employer, but here it signifies all subordinate officials of the Federal Government receiving their appointments at the hands of officials who are not specifically recognized by the Constitution as capable of being vested by Congress with the appointing power. Auffmordt v. Hedden, 137 U.S. 310, 327 (1890). See Go-Bart Importing Co. v. United States, 282 U.S. 344, 352 - 353 (1931); Burnap v. United States, 252 U.S. 512, 516 -517 (1920); Germaine, supra, 511-512.

[Footnote 469] Freytag v. CIR, 501 U.S. 868, 919 (1991) (Justice Scalia concurring).

[Footnote 470] Freytag v. CIR, 501 U.S. 868, 884 -885 (1991).

[Footnote 471] Id., 886 (citing Germaine and Burnap, the opinion clause, Article II, Sec. 2, and the 25th Amendment, which, in its Sec. 4, referred to ''executive departments'' in a manner that reached only cabinet-level entities). But compare id., 915-922 (Justice Scalia concurring).

[Footnote 472] Id., 886(emphasis supplied).

[Footnote 473] Id., 886-888. Compare id., 915-919 (Justice Scalia concurring).

[Footnote 474] Id., 888-892. This holding was vigorously controverted by the other four Justices. Id., 901-914(Justice Scalia concurring).

[Footnote 475] Id., 918, 919 (Justice Scalia concurring).

[Footnote 476] Ex parte Hennen, 38 U.S. (13 Pet.) 230 (1839). The suggestion was that inferior officers are intended to be subordinate to those in whom their appointment is vested. Id., 257-258; United States v. Germaine, 99 U.S. 508, 509 (1879).

[Footnote 477]   100 U.S. 371 (1880).

[Footnote 478] Morrison v. Olson, 487 U.S. 654, 673 -677 (1988). See also Young v. United States ex rel. Vuitton et Fils S. A., 481 U.S. 787 (1987) (appointment of private attorneys to act as prosecutors for judicial contempt judgments); Freytag v. CIR, 501 U.S. 868, 888 -892 (1991) (appointment of special judges by Chief Judge of Tax Court).

[Footnote 479] 19 Stat. 143, 169 (1876).

[Footnote 480] Ex parte Curtis, 106 U.S. 371 (1882). Chief Justice Waite's opinion extensively reviews early congressional legislation regulative of conduct in office. Id., 372-373.

[Footnote 481] 22 Stat. 403 (the Pendleton Act). On this law and subsequent enactments that created the civil service as a professional cadre of bureaucrats insulated from politics, see Developments in the Law - Public Employment, 97 Harv. L. Rev. 1611, 1619-1676 (1984).

[Footnote 482] Act of Aug. 24, 1912, Sec. 6, 37 Stat. 539, 555, codified as amended at 5 U.S.C. Sec. 7513. The protection was circumscribed by the limited enforcement mechanisms under the Civil Service Commission, which were gradually strengthened. See id., n.481, 97 Harv. L. Rev., 1630-1631.

[Footnote 483] 92 Stat. 1111 (codified in scattered sections of titles 5, 10, 15, 28, 31, 38, 39, and 42 U.S.C.). For the long development, see id., n.481, 97 Harv. L. Rev., 1632-1650.

[Footnote 484] 54 Stat. 767 (1940), then 5 U.S.C. Sec. 7324(a). By P. L. 103-94, Sec. Sec. 2(a), 12, 107 Stat. 1001, 1011, to be codified at 5 U.S.C. Sec. Sec. 7321-7325, Congress liberalized the restrictions of the Act, allowing employees to take an active part in political management or in political campaigns, subject to specific exceptions. The 1940 law, Sec. 12(a), 54 Stat. 767-768, also applied the same broad ban to employees of federally funded state and local agencies, but this provision was amended in 1974 to bar state and local government employees only from running for public office in partisan elections. Act of Oct. 15, 1974, P. L. 93-443, Sec. 401(a), 88 Stat. 1290, 5 U.S.C. Sec. 1502.

[Footnote 485]   330 U.S. 75 (1947). See also CSC. v. National Assn. of Letter Carriers, 413 U.S. 548 (1973), in which the constitutional attack was renewed, in large part based on the Court's expanding jurisprudence of First Amendment speech, but the Act was again sustained. A ''little Hatch Act'' of a State, applying to its employees, was sustained in Broadrick v. Oklahoma, 413 U.S. 601 (1973).

[Footnote 486] 53 Stat. 1147, 5 U.S.C. Sec. 7311.

[Footnote 487] See Report of the Special Committee on The Federal Loyalty- Security Program, The Association of the Bar of the City of New York (New York: 1956), 60.

[Footnote 488] 5 U.S.C. Sec. 3333. The loyalty disclaimer oath was declared unconstitutional in Stewart v. Washington, 301 F. Supp. 610 (D.C.D.C. 1969), and the Government elected not to appeal. The strike disclaimer oath was voided in National Association of Letter Carriers v. Blount, 305 F. Supp, 546 (D.C.D.C. 1969); after noting probable jurisdiction, 397 U.S. 1062 (1970), the Court dismissed the appeal on the Government's motion. 400 U.S. 801 (1970). The actual prohibition on strikes, however, has been sustained. United Federation of Postal Clerks v. Blount, 325 F. Supp. 879 (D.C.D.C. 1971), affd. per curiam, 404 U.S. 802 (1971).

[Footnote 489] E.O. 9835, 12 Fed. Reg. 1935 (1947).

[Footnote 490] E.O. 10450, 18 Fed. Reg. 2489 (1953).

[Footnote 491] See generally, Report of the Special Committee on The Federal Loyalty-Security Program, The Association of the Bar of the City of New York (New York: 1956).

[Footnote 492] P. L. 95-521, tits. I-III, 92 Stat. 1824-1861. The Act was originally codified in three different titles, 2, 5, and 28, corresponding to legislative, executive, and judicial branch personnel, but by P. L. 101-194, title II, 103 Stat. 1725 (1989), one comprehensive title, as amended, applying to all covered federal personnel was enacted. 5 U.S.C.App. Sec. Sec. 101-111.

[Footnote 493] See op. cit., n.481, 97 Harv. L. Rev., 1660-1669.

[Footnote 494] Id., 1661 (citing S. Rept. 170, 95th Cong., 2d sess. (1978), 21-22).

[Footnote 495] Id., 1664-1669. The Ethics Act also expanded restrictions on postemployment by imposing bans on employment, varying from a brief period to an out-and-out lifetime ban in certain cases. Id., 1669-1676. The 1989 revision enlarged and expanded on these provisions. 103 Stat. 1716-1724, amending 18 U.S.C. Sec. 207.

[Footnote 496] 92 Stat. 1864 (1978), as amended, 103 Stat. 1760 (1989), as amended, 5 U.S.C.App. Sec. Sec. 501-505.

[Footnote 497] 5 U.S.C.App. Sec. 505(3).

[Footnote 498] NTEU v. United States, 990 F.2d 1271 (D.C.Cir.), pet. for reh. en banc den., 3 F.3d 1555 (D.C.Cir. 1993). The Supreme Court held this provision unconstitutional in United States v. NTEU, 513 U.S. 454 (1995).

[Footnote 499] Shoemaker v. United States, 147 U.S. 282, 301 (1893).

[Footnote 500] Marbury v. Madison, 5 U.S. (1 Cr.) 137, 155 -156 (1803) (Chief Justice Marshall). Marshall's statement that the appointment ''is the act of the President,'' conflicts with the more generally held and sensible view that when an appointment is made with its consent, the Senate shares the appointing power. 3 J. Story, Commentaries on the Constitution of the United States (Boston: 1833), 1525; Matter of Hennen, 38 U.S. (13 Pet.) 230, 259 (1839).

[Footnote 501] 3 Ops. Atty. Gen. 188 (1837).

[Footnote 502] 3 J. Story, Commentaries on the Constitution of the United States (Boston: 1833), 1525-1526; 5 Works of Thomas Jefferson, P. Ford ed., (New York: 1904), 161-162; 9 Writings of James Madison, G. Hunt ed. (New York: 1910), 111-113.

[Footnote 503]   286 U.S. 6 (1932).

[Footnote 504] E. Corwin, op. cit., n.44, 77.

[Footnote 505] Marbury v. Madison, 5 U.S. (1 Cr.) 137, 157 -158, 173 (1803).

[Footnote 506] 12 Ops. Atty. Gen. 306 (1867).

[Footnote 507] It should be remembered that, for various reasons, Marbury got neither commission nor office. The case assumes, in fact, the necessity of possession of his commission by the appointee.


 

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Annotations p. 13