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Who Is an Officer of the United States?

Is it possible to have officers of the United States selected in a merit-based way? Professor Jennifer Mascott explores the tension between two competing ideas about who is an ‘officer of the United States’ under the Appointments Clause of the US Constitution. Should officers be selected via political appointment, or via a merit-based process? Merit-based hiring system started with the Pendleton Act, in the late 1800s, and over time there have been greater numbers of civil servants hired as ‘independent experts’ in a non-partisan fashion, not as political appointees selected by the President. The Constitutional question comes to a head today: How many merit-based criteria can be used in political appointments before the appointment no longer qualifies as a constitutional appointment? https://youtube.com/watch?v=tx3oV70bAaA


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. Then, a contrasting idea that we want a lot of civil servants to be hired as non-partisan or independent experts. And so, there tends to be this idea that you have to be one or the other. 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. And 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. 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? And the government right now is wrestling with these issues, because 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.

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