Email: Learning Journey: Executive control day2

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  Today we examine the constitutional origin and case law that governs the appointment power, and the leading arguments over its scope.

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Welcome to the second installment of Ballotpedia’s Learning Journey on executive control of administrative agencies. Today we examine the constitutional origin and case law that governs the appointment power, and the leading arguments over its scope. Let’s get started! What is the appointment power? The term appointment power refers to the president’s authority to appoint “officers” of the United States (subject to Senate confirmation), such as federal judges, ambassadors, and heads of Cabinet-level departments. That authority is granted in the Appointments Clause of the United States Constitution, but the authority is limited. Congress must first approve the president’s nominee before the appointment may occur, which imposes a check on the executive’s power.  The Appointment Clause does allow Congress to authorize (by statute) a direct appointment by the president, a federal court, or agency head of “inferior officers” (e.g., federal attorneys, federal court clerks and special prosecutors).  Read On: Appointment and Removal Power     Case law shaping the scope of appointment power The following United States Supreme Court cases have further delineated the scope of executive appointment power: Buckley v. Valeo (1976): The court distinguished between “significant” officers and “inferior officers” for the first time. The justices determined that the method formulated by Congress under the Federal Election Campaign Act of 1974 to appoint members of the Federal Election Commission violated the Appointments Clause because the commissioners qualified as "significant" officers. As such, the FEC commissioners were subject to executive nomination/appointment and Senate confirmation.   Morrison v. Olson (1988): This case clarified that an independent counsel appointed by the attorney general is considered to be an "inferior officer" and, therefore, is not subject to appointment by the president and confirmation by the Senate. Accordingly, only Cabinet-level department heads, ambassadors, and federal judges qualify as officers of the United States. All other officers, such as federal attorneys, district court clerks, chaplains, and federal election supervisors, qualify as inferior officers.   Lucia v. SEC (2018): The court ruled that administrative law judges (ALJs) are considered to be “inferior officers” rather than agency employees. Thus, ALJs must be appointed by agency heads pursuant to the Appointments Clause. Read On: List of court cases relevant to executive appointment and removal power     Arguments to expand or limit appointment power The degree of exclusivity the Appointment Clause confers on the president has been a matter of debate since the drafting of the clause.  Some scholars assert that the Constitution vests in the president the exclusive authority to nominate and appointment officers without interference from Congress (such as a refusal to hold a confirmation vote or denial of confirmation on the basis of partisanship). They hold that the president is better positioned than the Senate to identify qualified nominees, and exclusivity enhances accountability.  Others contend that the Constitution divides responsibility between the president and the Senate because an appointment cannot proceed without the actions of each. They hold that exclusive appointment power by the president would undermine consideration of merit in appointments in favor of fealty to the president. Sharing the responsibility, they say, also acts as a check on presidential power.   What’s next? Tomorrow we examine the executive removal power   Review Check out the following Ballotpedia pages to dive deeper into today’s key concepts: Appointment and removal power List of court cases relevant to executive appointment and removal power Taxonomy of arguments about the presidential appointment and removal power

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