NARRATOR: Thanks for joining this episode of the No. 86 lecture series, which continues the conversation in the 85 Federalist Papers about the power of the Executive branch. Today’s episode features Professor Jennifer Mascott, who recorded these lectures when she was an Assistant Professor of Law at the Antonin Scalia Law School at George Mason University. She writes and teaches in the areas of administrative and constitutional law. Her views are entirely her own. As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker. PUBLIUS: What does the Appointments Clause say? How is it worded? What were our Framers trying to accomplish in that wording? Today we’re speaking with Jennifer Mascott, who explores the meaning of the phrase, ‘Officer of the United States.’ JENNIFER MASCOTT: The Constitution in Article II has a clause called the Appointments Clause. The Appointments Clause is a clause that says that for anybody who is an officer of the United States, that individual needs to be appointed or selected in just one of four ways. Either by the President with Senate consent, if the person is a superior or what we call a principal officer under modern case law, if the person's an inferior officer, meaning they have to report to another officer between them and the President, then that person can be appointed either by the President with Senate consent or by the President alone, a department head, or a court of law. So, that clause in the Constitution essentially limits the people that Congress can authorize to select government officers. So, at the time of the drafting of the Constitution, you can see actually as far back as the Declaration of Independence itself, the drafters of the Declaration of Independence, signers of the Declaration of Independence, one of the abuses they were concerned about is they refer to the King sending swarms of officers to harass them, to harass the founding era colonists. The idea and the concern was that the King at the time had the power to both create new offices and appoint people to fill those offices. The Constitution, the founders split up the appointment power and essentially gave Congress, the legislators, the power to create administrative agencies, executive departments to create and establish by law officer positions. So, it wouldn't just be one person creating or deciding there needed to be a new position, but Congress would have to do that through the challenging procedures of legislation. Then the Appointments Clause limits when Congress creates an office, how Congress can establish that office to be filled. So, the framers did pick specific language for the Appointments Clause. One thing that they did was say that the people who were subject to the Appointments Clause requirements are known as officers of the United States. So, that's a specific phrase and to really know how far the Appointments Clause applies, everybody who falls within its reach, we have to know who an officer of the United States is. So, that involves trying to figure out, was that what we call a new term of art, a new special legal phrase created at the time of the Constitution, that has special meaning? Or can you split up the phrase and were the framers just saying these are officers, anybody who's considered a government officer of the United States, meaning at the federal level as opposed to the state level? The other thing that's specific in the Appointments Clause is that Congress has given specific instructions about the limited number of people who can pick officers. So, again, the President with the Senate consent, the President alone, department heads, or courts of law. So, you have to interpret and figure out who all those different actors are. What's interesting, though, about the specificity of the language here is it differs from some of the language in other constitutional provisions. So, for example, the Fourth Amendment talks about there needing to be reasonable searches. Here in the Appointments Clause, there's more detail, there's more specific instruction. The Supreme Court in interpreting the clause has actually picked up on that and said because of the specificity here that these instructions need to be formally and specifically adhered to and the court over the years has been very disciplined about trying to apply the Appointments Clause by its text and really hold Congress and the executive branch to the letter of the Appointments Clause. The Constitution limits Congress to choosing from just a limited number of actors, most of whom are either the President or the President's department heads such as a cabinet secretary or the top of another commission or agency. By limiting the number of people involved in selecting officers, there's accountability and transparency because the public can see directly who picked the officer. So, there's accountability to pick high qualified officers. There's accountability to make sure that the officers are going to be people who are going to serve the public well because if they don't, we can trace back who put them in office and hold that individual, that decision maker accountable. The President, of course, in turn, is accountable to the people through elections. So, not only is the President held accountable through the Appointments Clause, but really, the people are given power and influence when they can vote up or down at the President's next election. PUBLIUS: Who are “officers of the United States” according to the Appointments Clause? JENNIFER MASCOTT: So, the original public meaning of the officer, and just to talk a little bit about what original public meaning is, is essentially the idea that the Constitution should be interpreted in light of how it was understood at the time that it was ratified or approved. The idea is that the Constitution became law, really, back in 1788, when the states approved the Constitution as the governing law, and so we want to know what the governing law was at the time that it was approved. So, if you're going to apply that methodology to officers of the United States, you might look and figure out what did officers of the United States mean at the time? The first thing that you have to answer is was “officers of the United States” a term of art? The reason it's important to look at that particular phrase is because the Appointments Clause requirements that someone be appointed by the president or a department head or a court of law only apply to officers of the United States. So, if an official is not an officer of the United States, maybe they don't exercise important enough authority, or somehow meet the qualifications, then they don't necessarily ... They don't fall subject to the Appointments Clause limitations. So, we want to figure out who these limitations, who these requirements apply to. The original public meaning, first of all, suggests, actually, that “officers of the United States” was not a new term of art especially created for the Constitution. The phrase comes into being a few years before the Constitution's ratified, sometimes in reference just to continental officers in the continental army at the time, but there's never, during the drafting debates of the Constitution or the debates in the states about whether to ratify the Constitution, there's never a whole lot of discussion about what the phrase “officers of the United States” specifically means. There's not really an indication that the drafters or the ratifiers thought that this was a new phrase that needed to be explained, or a new phrase that carved out an especially important class of officers. The history, in terms of how the Constitution was drafted, actually suggests that the phrase “officers of the United States” came into being to indicate that it wasn't going to just be officers in the executive department under the president who had to be subject to the Appointments Clause, but also judges who were appointed by the president with Senate consent, various ambassadors, and officials involved in foreign relations. So, the idea seems to be that officers of the United States broadened the category out beyond just officers under the president, and also, that it meant officers at the federal level, rather than at the state level. There are some other times in the Constitution when the description “of the United States” is used in some of the other clauses, and sometimes the phrase is used specifically in contrast to the phrase “of the several states” or “of the states,” again, giving more evidence that “officers of the United States” probably just meant federal or national level officers, as opposed to state level officers. If that is true, then what it would mean is we'd try to figure out the original meaning of the word “officer and what that meant at the time, and then anybody who was that kind of official at the federal level would come under the Appointments Clause. Recently, I did an extensive study in the Stanford Law Review, looking at thousands of uses of the word “officer”, and even uses of the phrase “officers of the United States”, and the time leading up to the ratification or the approval of the Constitution. Those uses tend to suggest that “officer”, at the time, really meant any official who was carrying out an ongoing statutory duty, or an ongoing governmental duty. So, in other words, in contrast to some of the ideas of some of the modern opinions by various courts that you have to have a lot of discretion, or you have to do a job that reaches a certain level of importance, instead it seemed, at the time, that if Congress assigned the government to do something, and you were an ongoing official who was carrying out that duty, even if it was something like recordkeeping -- that at the time you were understood to be an officer and would have, if that's the case, been subject to Appointments Clause requirements. In this study I looked at the word usage which led to the understanding that “officer” was anybody who was carrying out or responsible for an ongoing governmental duty. The early practice tended to confirm this understanding. It's always interesting to know what weight to give to early practice because by early practice, we mean the first members of Congress, how did they carry out these constitutional commands and like us, they were people. They were often people with political agendas, so it's not 100% certain that the early members of Congress necessarily always accurately or completely carried out the precisely right meaning of the Constitution. At the same time, a lot of times people who do practice the interpretative method of originalism, who try to figure out what the Constitution meant early on, will look at early practice at least as relevant evidence because there's a thought that the folks who were the first ones to carry out the Constitution may have a better idea of what it meant at the time than we have today. Or at least they have an important idea. So if we look at the early practice of the Appointments Clause, back then even officials as low level as Clerks who were carrying out records, records like how money was being spent or account ledgers or writing down a record of which ship had authority to unload customs goods, those individuals were treated as constitutional officers. There were some exceptions. People who were, there were a couple of categories of officials known as Deputy Marshalls, Deputy Customs Officials, who were not treated as officers of the United States, but the evidence suggest that that was a fairly narrow category and it was because those particular deputies were seen as acting just on behalf of their lead official. So they weren't necessarily seen as separate officials in and of their own right. There were a lot of other deputy categories of officials who in contrast were appointed as officers. Another area that's kind of an exception is that very early on, there were some very low level customs officials who weighed customs goods or measured customs goods, who initially were not treated as constitutional officers. But within the first 10 years, Congress seemed to correct that practice and actually even made those individuals be subject to appointment by the Treasury Secretary. So by 1799, even people who were just measuring how much liquid is in this package so that we can figure out the right customs charge to put on it, even those people were treated as officers by the time we got to 1800. PUBLIUS: What about more recent interpretations of “officers of the United States”? JENNIFER MASCOTT: So, in modern case law and recent cases, the Supreme Court has broadly said that officers of the United States are essentially federal officials who exercise significant authority. The court said that in the 1976 decision known as Buckley v. Valeo. In a decision a few years later in 1991, the court said significant authority might be evident if an official handles important issues, has a lot of discretion, perhaps if one has final decision making authority. What's tricky, though, to know about the Supreme Court's opinions is whether the Supreme Court in writing those standards meant that every officer has to have a certain level of discretion or significance in the issues that they're handling or whether those are just some guidelines, almost like a threshold requirement or sufficient requirement. So, in Buckley v. Valeo in 1976 when the court talked about significant authority, it was actually looking at the position of commissioners and the federal and election commission. So, individuals who sat at the head, essentially, of the body that helps to come up with election regulations. So, the court had quite an important position in front of it and said these commissioners have significant authority, therefore they're officers. So, what's challenging about interpreting that opinion is it's hard to know whether the court is just ... It sounds, sometimes when you read the opinion, more like the court is saying, "These officials are so important, so significant. We know they're officers." But I'm not sure the court necessarily meant that level of authority to be required in every future case of looking at whether someone is an officer. So, what's challenging again about that is significant authority could be read as a broad phrase, a broad term, and the court has not really told us a lot more about what that means. One caveat is that in the June 2018 opinion of Lucia v. The SEC, the court did add a little bit of extra information for us. It did say in addition to exercising significant authority, officers are also those who have what's known as a, or described as a continuing position. By using the phrase "continuing position", the court was actually not creating a new test. The court seemed to be trying to bring some consistency with cases that it had actually decided more than 100 years earlier in the 1800s where the court looked at whether positions that are temporary, where the government is just hiring people to perform services like contractors, whether they are officers of the United States under the Appointments Clause. By saying that a position has to be continuing, the court was really saying if you're a temporary person temporarily hired for services, like to build a building or print a document, or in that case, examine someone as a surgeon, give them a test, give them an examination, then you're not going to come under the Appointments Clause requirements. But a more permanent employee who exercises significant authority or more permanent official, that individual would qualify as an officer of the United States. So, the court in Lucia v. the Securities and Exchange Commission in June 2018 seemed to come back around and say it's significant authority and being in a continuing or ongoing position for the federal government. So, we have this standard significant authority, which could be interpreted a number of different ways. That's really our guideline, and then the other guideline we have from the Supreme Court is a few positions, maybe 10 to 20 positions over the years, and that have been found to be officer positions, and so it can be challenging because your guideline is significant authority, and if the court has found a person to be an officer in the past, that person needs to be considered an officer by the lower courts. There aren't necessarily a lot of clear, bright line factors that the court has given us to be able to find somebody to be an officer of the United States, at least under modern doctrine and how it's been seen by the government. PUBLIUS: A question. What about people who have a career in civil service. They are not appointed by any of the methods laid out in the Appointments Clause - or are they? - Does the Appointments Clause prevent us from having high-level positions in government based on merit? JENNIFER MASCOTT: What's interesting is that it's come to be in our system almost that we think about two competing ideas. One is this idea of officers, who we tend to think of as politically appointed, and they're politically appointed in the sense that they would have to be chosen by either the president, or the president's immediate subordinate, the department head, by people who are responsible to the government through elections. So, there's this idea that these are political appointees, and then, a contrasting idea that we want a lot of civil servants to be hired as non-partisan or independent experts. So, there tends to be this idea that you have to be one or the other, and so ... A lot of the government has been appointed, or has been selected in compliance with these merit-based expert selection procedures. What's interesting to look back at the history is that when the merit-based hiring system first came into being in legislation known as the Pendleton Act in the late 1800s, there wasn't actually necessarily this dichotomy between the two ideas. It almost seemed, at the beginning, that the government was trying to figure out is it possible to have officers be selected in a merit-based way. There was some thought that perhaps even politically appointed officers could be selected with merit-based criteria in mind, as long as the department head was given enough discretion at the end of the day to make the final decision about who would serve in a particular position. So, the real question today in structuring the government is going to be if someone's an officer of the United States, how many people fall under that qualification, and then, if you fall under that qualification, can Congress put any limitation at all on how a department head or the president selects someone who's an officer of the United States, and how many qualifications can there be before the appointing official's power in picking someone is so limited that it no longer qualifies as a constitutional appointment? The government right now is wrestling with these issues, because after the Supreme Court in Lucia versus the Securities and Exchange Commission determined that administrative law judges are officers of the United States, the president issued an executive order altering a little bit the way that ... Actually, altering quite a bit the way that administrative law judges are selected, indicating that the administration is concerned that some of the merit-based selection mechanisms, and certainly, some of the mechanisms for firing or removing administrative law judges might be so restricting that they're inconsistent with the idea that administrative law judges are officers of the United States. So, over the next year or more, it'll be interesting to see if there's more resolution or more litigation or cases in the courts about whether officers of the United States can be forced to be hired in what we call a merit-based hiring system. Also, if there can be any restrictions on how those people are fired, if there's a reason to fire them for mis-performance. PUBLIUS: What if the Supreme Court does give more detailed guidance on how to determine who is an “officer of the United States?” Could they end up concluding that a lot more people are in fact ‘officers of the United States?’ and therefore need to be appointed according to the procedures set out in the Appointments Clause? What challenges could that pose to the merit-based civil service system? JENNIFER MASCOTT: It certainly creates some conflict with the way in which the civil service hiring system is carried out currently, but it might not be 100% in conflict with any notion of bringing objective criteria to hiring in the government. So for example, in the Appointments Clause, Congress has to establish offices by law and there has been some thought that perhaps at least at the lower levels, that means that Congress can impose some qualifications on who can fill an officer position. So for example, even though a Cabinet Secretary might have the authority to pick a lower level officer, Congress might be able to say it has be an officer with a certain number of years of experience, or it has to be an officer who is from a particular background. And if that's the case, perhaps it's also true that Congress could say you can only pick people who meet a certain minimal threshold level of qualifications, or when you're looking at candidates who come before you, you should really evaluate everybody based on these four or five criteria. This is an open question. The Courts have not really stepped in and talked about this a little bit. The Executive Department, Executive Branch itself, seems to- has suggested in prior Executive Branch opinions that it would be permissible for Congress to tell Department Heads to look at a certain set of criteria, as long as the Department Head wasn't limited to picking just one person at the end of the day who scored the highest on a test. As long as there were maybe a range of people to choose from, or the criteria led to recommended hires rather than mandatory hires. So a couple of fixes that would have to happen to the civil service system if we all of a sudden saw everybody as an officer, is the department Head, the Cabinet Secretary, or the Commissioners would have to have the final say in the selection of that officer. And then the Department Head would have to have a certain level of discretion whether that's picking from a certain number of people who score high on a test or whether that's the score on the test just being a recommendation rather than a mandatory selection criteria. PUBLIUS: How does the interpretation of the Appointments Clause relate to executive power exercised by administrative agencies? Are these agencies democratically accountable? JENNIFER MASCOTT: The Appointments Clause cases really get at a central tension in different ideas about how we should go about setting up the Executive Branch and administrative agencies. So for the past 100 years or so, there tends to be this idea that perhaps agencies are staffed best when they're staffed with independent experts, scientific experts, and that the accountability more comes in this independent board objectively picking people to fill administrative agencies. That's a different idea of accountability than the idea that evidence suggests was in place at the time of the ratification of the Constitution. Where at the time it seemed very clear that the Executive power actually by the text of the Constitution is vested in the President. And there's this idea that the President is to oversee the Executive Branch really because if we make the President accountable and responsible for the Executive Branch, that's the way that the public has a say over the public's government. The President is the only official within the Executive Branch that the public has the chance to vote on, and so the public only has power over its government or a say over its government to the extent that the President is really overseeing the Executive Branch. So a contradictory, our conflicting idea of accountability is this idea that the President should be in charge of the Executive Branch, and part of that means the President having a say or the Department Head having a say in who the officers are who staff that Executive Branch. The evidence suggests that that mode of accountability was actually to extend much further down than this idea we have today of expertise, which sounds good in some ways, but at the end of the day, the experts are not necessarily in any direct way accountable back to the people. It was really electoral accountability that formed the backbone of our system of government, and if we're going to carry out an original understanding of the Constitution, that idea of electoral accountability should extend much further down than it does currently, both in the selection of executive officials and then also in the ability that the President has to be able to remove officials who are not carrying out the agenda and the promises that really the President told the public that he or she would carry out when that individual was voted into office. That power to carry out those promises can be restricted if there's a powerful set of people within the government who don't really have to report to the President or do what he or she says. There's a separate and distinct question of once we figure out what executive power is in relation to legislation or judicial power, whenever that is, the Constitution suggests in Article II that all of that executive power, whatever that is, should be vested in the President. So the idea is how is it vested in the President? Can it truly be vested in the President if the President is not selecting a lot of the individuals through the Appointments Clause who are within the Executive Branch? And if officials within the Executive Branch cannot be told by the President what to do or fired by the President, does that restrict the executive power to run the Executive Branch and carry that out that's been vested in the President? So, again, that's a very important question. It's a question of supervision. It's a question of how does the executive head the Executive Branch. It's a separate question from what is executive power? What should the Executive Branch and agencies be doing in comparison or contrast of the policymaking power of Congress and the law interpreting power of the Courts? NARRATOR: Thank you for listening to this episode of the No. 86 Lecture series: Continuing the Conversation in the 85 Federalist Papers about the proper structure of government. The spirit of debate of our Founding Fathers animates all of the No. 86 content, encouraging discussion and critical reflection relative to how each subject is widely understood and taught in law schools and among law students. Subscribe to the No. 86 Lecture series on your favorite podcast platform to have each episode delivered the moment it’s released. You can also go to fedsoc.org/no86 for lectures and videos on Federalism, Separation of Powers, the Judiciary and more. Thanks for listening. See you in class! Transcript [for YouTube - no speaker names/verbatim] Thanks for joining this episode of the No. 86 lecture series, which continues the conversation in the 85 Federalist Papers about the power of the Executive branch. Today’s episode features Professor Jennifer Mascott, who recorded these lectures when she was an Assistant Professor of Law at the Antonin Scalia Law School at George Mason University. She writes and teaches in the areas of administrative and constitutional law. Her views are entirely her own. As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker. What does the Appointments Clause say? How is it worded? What were our Framers trying to accomplish in that wording? Today we’re speaking with Jennifer Mascott, who explores the meaning of the phrase, ‘Officer of the United States.’ The Constitution in Article II has a clause called the Appointments Clause. The Appointments Clause is a clause that says that for anybody who is an officer of the United States, that individual needs to be appointed or selected in just one of four ways. Either by the President with Senate consent, if the person is a superior or what we call a principal officer under modern case law, if the person's an inferior officer, meaning they have to report to another officer between them and the President, then that person can be appointed either by the President with Senate consent or by the President alone, a department head, or a court of law. So, that clause in the Constitution essentially limits the people that Congress can authorize to select government officers. So, at the time of the drafting of the Constitution, you can see actually as far back as the Declaration of Independence itself, the drafters of the Declaration of Independence, signers of the Declaration of Independence, one of the abuses they were concerned about is they refer to the King sending swarms of officers to harass them, to harass the founding era colonists. The idea and the concern was that the King at the time had the power to both create new offices and appoint people to fill those offices. The Constitution, the founders split up the appointment power and essentially gave Congress, the legislators, the power to create administrative agencies, executive departments to create and establish by law officer positions. So, it wouldn't just be one person creating or deciding there needed to be a new position, but Congress would have to do that through the challenging procedures of legislation. Then the Appointments Clause limits when Congress creates an office, how Congress can establish that office to be filled. What does the Appointments Clause say? How is it worded? The wording seems pretty specific. What were our Framers trying to accomplish there? So, the framers did pick specific language for the Appointments Clause. One thing that they did was say that the people who were subject to the Appointments Clause requirements are known as officers of the United States. So, that's a specific phrase and to really know how far the Appointments Clause applies, everybody who falls within its reach, we have to know who an officer of the United States is. So, that involves trying to figure out, was that what we call a new term of art, a new special legal phrase created at the time of the Constitution, that has special meaning? Or can you split up the phrase and were the framers just saying these are officers, anybody who's considered a government officer of the United States, meaning at the federal level as opposed to the state level? The other thing that's specific in the Appointments Clause is that Congress has given specific instructions about the limited number of people who can pick officers. So, again, the President with the Senate consent, the President alone, department heads, or courts of law. So, you have to interpret and figure out who all those different actors are. What's interesting, though, about the specificity of the language here is it differs from some of the language in other constitutional provisions. So, for example, the Fourth Amendment talks about there needing to be reasonable searches. Here in the Appointments Clause, there's more detail, there's more specific instruction. The Supreme Court in interpreting the clause has actually picked up on that and said because of the specificity here that these instructions need to be formally and specifically adhered to and the court over the years has been very disciplined about trying to apply the Appointments Clause by its text and really hold Congress and the executive branch to the letter of the Appointments Clause. The Constitution limits Congress to choosing from just a limited number of actors, most of whom are either the President or the President's department heads such as a cabinet secretary or the top of another commission or agency. By limiting the number of people involved in selecting officers, there's accountability and transparency because the public can see directly who picked the officer. So, there's accountability to pick high qualified officers. There's accountability to make sure that the officers are going to be people who are going to serve the public well because if they don't, we can trace back who put them in office and hold that individual, that decision maker accountable. The President, of course, in turn, is accountable to the people through elections. So, not only is the President held accountable through the Appointments Clause, but really, the people are given power and influence when they can vote up or down at the President's next election. Who are “officers of the United States” according to the Appointments Clause? So, the original public meaning of the officer, and just to talk a little bit about what original public meaning is, is essentially the idea that the Constitution should be interpreted in light of how it was understood at the time that it was ratified or approved. The idea is that the Constitution became law, really, back in 1788, when the states approved the Constitution as the governing law, and so we want to know what the governing law was at the time that it was approved. So, if you're going to apply that methodology to officers of the United States, you might look and figure out what did officers of the United States mean at the time? The first thing that you have to answer is was “officers of the United States” a term of art? The reason it's important to look at that particular phrase is because the Appointments Clause requirements that someone be appointed by the president or a department head or a court of law only apply to officers of the United States. So, if an official is not an officer of the United States, maybe they don't exercise important enough authority, or somehow meet the qualifications, then they don't necessarily ... They don't fall subject to the Appointments Clause limitations. So, we want to figure out who these limitations, who these requirements apply to. The original public meaning, first of all, suggests, actually, that “officers of the United States” was not a new term of art especially created for the Constitution. The phrase comes into being a few years before the Constitution's ratified, sometimes in reference just to continental officers in the continental army at the time, but there's never, during the drafting debates of the Constitution or the debates in the states about whether to ratify the Constitution, there's never a whole lot of discussion about what the phrase “officers of the United States” specifically means. There's not really an indication that the drafters or the ratifiers thought that this was a new phrase that needed to be explained, or a new phrase that carved out an especially important class of officers. The history, in terms of how the Constitution was drafted, actually suggests that the phrase “officers of the United States” came into being to indicate that it wasn't going to just be officers in the executive department under the president who had to be subject to the Appointments Clause, but also judges who were appointed by the president with Senate consent, various ambassadors, and officials involved in foreign relations. So, the idea seems to be that officers of the United States broadened the category out beyond just officers under the president, and also, that it meant officers at the federal level, rather than at the state level. There are some other times in the Constitution when the description “of the United States” is used in some of the other clauses, and sometimes the phrase is used specifically in contrast to the phrase “of the several states” or “of the states,” again, giving more evidence that “officers of the United States” probably just meant federal or national level officers, as opposed to state level officers. If that is true, then what it would mean is we'd try to figure out the original meaning of the word “officer and what that meant at the time, and then anybody who was that kind of official at the federal level would come under the Appointments Clause. Recently, I did an extensive study in the Stanford Law Review, looking at thousands of uses of the word “officer”, and even uses of the phrase “officers of the United States”, and the time leading up to the ratification or the approval of the Constitution. Those uses tend to suggest that “officer”, at the time, really meant any official who was carrying out an ongoing statutory duty, or an ongoing governmental duty. So, in other words, in contrast to some of the ideas of some of the modern opinions by various courts that you have to have a lot of discretion, or you have to do a job that reaches a certain level of importance, instead it seemed, at the time, that if Congress assigned the government to do something, and you were an ongoing official who was carrying out that duty, even if it was something like recordkeeping -- that at the time you were understood to be an officer and would have, if that's the case, been subject to Appointments Clause requirements. In this study I looked at the word usage which led to the understanding that “officer” was anybody who was carrying out or responsible for an ongoing governmental duty. The early practice tended to confirm this understanding. It's always interesting to know what weight to give to early practice because by early practice, we mean the first members of Congress, how did they carry out these constitutional commands and like us, they were people. They were often people with political agendas, so it's not 100% certain that the early members of Congress necessarily always accurately or completely carried out the precisely right meaning of the Constitution. At the same time, a lot of times people who do practice the interpretative method of originalism, who try to figure out what the Constitution meant early on, will look at early practice at least as relevant evidence because there's a thought that the folks who were the first ones to carry out the Constitution may have a better idea of what it meant at the time than we have today. Or at least they have an important idea. So if we look at the early practice of the Appointments Clause, back then even officials as low level as Clerks who were carrying out records, records like how money was being spent or account ledgers or writing down a record of which ship had authority to unload customs goods, those individuals were treated as constitutional officers. There were some exceptions. People who were, there were a couple of categories of officials known as Deputy Marshalls, Deputy Customs Officials, who were not treated as officers of the United States, but the evidence suggest that that was a fairly narrow category and it was because those particular deputies were seen as acting just on behalf of their lead official. So they weren't necessarily seen as separate officials in and of their own right. There were a lot of other deputy categories of officials who in contrast were appointed as officers. Another area that's kind of an exception is that very early on, there were some very low level customs officials who weighed customs goods or measured customs goods, who initially were not treated as constitutional officers. But within the first 10 years, Congress seemed to correct that practice and actually even made those individuals be subject to appointment by the Treasury Secretary. So by 1799, even people who were just measuring how much liquid is in this package so that we can figure out the right customs charge to put on it, even those people were treated as officers by the time we got to 1800. What about more recent interpretations of “officers of the United States?” So, in modern case law and recent cases, the Supreme Court has broadly said that officers of the United States are essentially federal officials who exercise significant authority. The court said that in the 1976 decision known as Buckley v. Valeo. In a decision a few years later in 1991, the court said significant authority might be evident if an official handles important issues, has a lot of discretion, perhaps if one has final decision making authority. What's tricky, though, to know about the Supreme Court's opinions is whether the Supreme Court in writing those standards meant that every officer has to have a certain level of discretion or significance in the issues that they're handling or whether those are just some guidelines, almost like a threshold requirement or sufficient requirement. So, in Buckley v. Valeo in 1976 when the court talked about significant authority, it was actually looking at the position of commissioners and the federal and election commission. So, individuals who sat at the head, essentially, of the body that helps to come up with election regulations. So, the court had quite an important position in front of it and said these commissioners have significant authority, therefore they're officers. So, what's challenging about interpreting that opinion is it's hard to know whether the court is just ... It sounds, sometimes when you read the opinion, more like the court is saying, "These officials are so important, so significant. We know they're officers." But I'm not sure the court necessarily meant that level of authority to be required in every future case of looking at whether someone is an officer. So, what's challenging again about that is significant authority could be read as a broad phrase, a broad term, and the court has not really told us a lot more about what that means. One caveat is that in the June 2018 opinion of Lucia v. The SEC, the court did add a little bit of extra information for us. It did say in addition to exercising significant authority, officers are also those who have what's known as a, or described as a continuing position. By using the phrase "continuing position", the court was actually not creating a new test. The court seemed to be trying to bring some consistency with cases that it had actually decided more than 100 years earlier in the 1800s where the court looked at whether positions that are temporary, where the government is just hiring people to perform services like contractors, whether they are officers of the United States under the Appointments Clause. By saying that a position has to be continuing, the court was really saying if you're a temporary person temporarily hired for services, like to build a building or print a document, or in that case, examine someone as a surgeon, give them a test, give them an examination, then you're not going to come under the Appointments Clause requirements. But a more permanent employee who exercises significant authority or more permanent official, that individual would qualify as an officer of the United States. So, the court in Lucia v. the Securities and Exchange Commission in June 2018 seemed to come back around and say it's significant authority and being in a continuing or ongoing position for the federal government. So, we have this standard significant authority, which could be interpreted a number of different ways. That's really our guideline, and then the other guideline we have from the Supreme Court is a few positions, maybe 10 to 20 positions over the years, and that have been found to be officer positions, and so it can be challenging because your guideline is significant authority, and if the court has found a person to be an officer in the past, that person needs to be considered an officer by the lower courts. There aren't necessarily a lot of clear, bright line factors that the court has given us to be able to find somebody to be an officer of the United States, at least under modern doctrine and how it's been seen by the government. A question. What about people who have a career in civil service. They are not appointed by any of the methods laid out in the Appointments Clause - or are they? - Does the Appointments Clause prevent us from having high-level positions in government based on merit? What's interesting is that it's come to be in our system almost that we think about two competing ideas. One is this idea of officers, who we tend to think of as politically appointed, and they're politically appointed in the sense that they would have to be chosen by either the president, or the president's immediate subordinate, the department head, by people who are responsible to the government through elections. So, there's this idea that these are political appointees, and then, a contrasting idea that we want a lot of civil servants to be hired as non-partisan or independent experts. So, there tends to be this idea that you have to be one or the other, and so ... A lot of the government has been appointed, or has been selected in compliance with these merit-based expert selection procedures. What's interesting to look back at the history is that when the merit-based hiring system first came into being in legislation known as the Pendleton Act in the late 1800s, there wasn't actually necessarily this dichotomy between the two ideas. It almost seemed, at the beginning, that the government was trying to figure out is it possible to have officers be selected in a merit-based way. There was some thought that perhaps even politically appointed officers could be selected with merit-based criteria in mind, as long as the department head was given enough discretion at the end of the day to make the final decision about who would serve in a particular position. So, the real question today in structuring the government is going to be if someone's an officer of the United States, how many people fall under that qualification, and then, if you fall under that qualification, can Congress put any limitation at all on how a department head or the president selects someone who's an officer of the United States, and how many qualifications can there be before the appointing official's power in picking someone is so limited that it no longer qualifies as a constitutional appointment? The government right now is wrestling with these issues, because after the Supreme Court in Lucia versus the Securities and Exchange Commission determined that administrative law judges are officers of the United States, the president issued an executive order altering a little bit the way that ... Actually, altering quite a bit the way that administrative law judges are selected, indicating that the administration is concerned that some of the merit-based selection mechanisms, and certainly, some of the mechanisms for firing or removing administrative law judges might be so restricting that they're inconsistent with the idea that administrative law judges are officers of the United States. So, over the next year or more, it'll be interesting to see if there's more resolution or more litigation or cases in the courts about whether officers of the United States can be forced to be hired in what we call a merit-based hiring system. Also, if there can be any restrictions on how those people are fired, if there's a reason to fire them for mis-performance. What if the Supreme Court does give more detailed guidance on how to determine who is an “officer of the United States?” Could they end up concluding that a lot more people are in fact ‘officers of the United States?’ and therefore need to be appointed according to the procedures set out in the Appointments Clause? What challenges could that pose to the merit-based civil service system? It certainly creates some conflict with the way in which the civil service hiring system is carried out currently, but it might not be 100% in conflict with any notion of bringing objective criteria to hiring in the government. So for example, in the Appointments Clause, Congress has to establish offices by law and there has been some thought that perhaps at least at the lower levels, that means that Congress can impose some qualifications on who can fill an officer position. So for example, even though a Cabinet Secretary might have the authority to pick a lower level officer, Congress might be able to say it has be an officer with a certain number of years of experience, or it has to be an officer who is from a particular background. And if that's the case, perhaps it's also true that Congress could say you can only pick people who meet a certain minimal threshold level of qualifications, or when you're looking at candidates who come before you, you should really evaluate everybody based on these four or five criteria. This is an open question. The Courts have not really stepped in and talked about this a little bit. The Executive Department, Executive Branch itself, seems to- has suggested in prior Executive Branch opinions that it would be permissible for Congress to tell Department Heads to look at a certain set of criteria, as long as the Department Head wasn't limited to picking just one person at the end of the day who scored the highest on a test. As long as there were maybe a range of people to choose from, or the criteria led to recommended hires rather than mandatory hires. So a couple of fixes that would have to happen to the civil service system if we all of a sudden saw everybody as an officer, is the department Head, the Cabinet Secretary, or the Commissioners would have to have the final say in the selection of that officer. And then the Department Head would have to have a certain level of discretion whether that's picking from a certain number of people who score high on a test or whether that's the score on the test just being a recommendation rather than a mandatory selection criteria. How does the interpretation of the Appointments Clause relate to executive power exercised by administrative agencies? Are these agencies democratically accountable? The Appointments Clause cases really get at a central tension in different ideas about how we should go about setting up the Executive Branch and administrative agencies. So for the past 100 years or so, there tends to be this idea that perhaps agencies are staffed best when they're staffed with independent experts, scientific experts, and that the accountability more comes in this independent board objectively picking people to fill administrative agencies. That's a different idea of accountability than the idea that evidence suggests was in place at the time of the ratification of the Constitution. Where at the time it seemed very clear that the Executive power actually by the text of the Constitution is vested in the President. And there's this idea that the President is to oversee the Executive Branch really because if we make the President accountable and responsible for the Executive Branch, that's the way that the public has a say over the public's government. The President is the only official within the Executive Branch that the public has the chance to vote on, and so the public only has power over its government or a say over its government to the extent that the President is really overseeing the Executive Branch. So a contradictory, our conflicting idea of accountability is this idea that the President should be in charge of the Executive Branch, and part of that means the President having a say or the Department Head having a say in who the officers are who staff that Executive Branch. The evidence suggests that that mode of accountability was actually to extend much further down than this idea we have today of expertise, which sounds good in some ways, but at the end of the day, the experts are not necessarily in any direct way accountable back to the people. It was really electoral accountability that formed the backbone of our system of government, and if we're going to carry out an original understanding of the Constitution, that idea of electoral accountability should extend much further down than it does currently, both in the selection of executive officials and then also in the ability that the President has to be able to remove officials who are not carrying out the agenda and the promises that really the President told the public that he or she would carry out when that individual was voted into office. That power to carry out those promises can be restricted if there's a powerful set of people within the government who don't really have to report to the President or do what he or she says. There's a separate and distinct question of once we figure out what executive power is in relation to legislation or judicial power, whenever that is, the Constitution suggests in Article II that all of that executive power, whatever that is, should be vested in the President. So the idea is how is it vested in the President? Can it truly be vested in the President if the President is not selecting a lot of the individuals through the Appointments Clause who are within the Executive Branch? And if officials within the Executive Branch cannot be told by the President what to do or fired by the President, does that restrict the executive power to run the Executive Branch and carry that out that's been vested in the President? So, again, that's a very important question. It's a question of supervision. It's a question of how does the executive head the Executive Branch. It's a separate question from what is executive power? What should the Executive Branch and agencies be doing in comparison or contrast of the policymaking power of Congress and the law interpreting power of the Courts? Thank you for listening to this episode of the No. 86 Lecture series: Continuing the Conversation in the 85 Federalist Papers about the proper structure of government. The spirit of debate of our Founding Fathers animates all of the No. 86 content, encouraging discussion and critical reflection relative to how each subject is widely understood and taught in law schools and among law students. Subscribe to the No. 86 Lecture series on your favorite podcast platform to have each episode delivered the moment it’s released. You can also go to fedsoc.org/no86 for lectures and videos on Federalism, Separation of Powers, the Judiciary and more. Thanks for listening. See you in class!