Principal Officers, Inferior Officers and the Appointments Clause Explained

Quick quiz. Who appointed the judge who fined your company? Not the judge in the federal courthouse downtown, the other kind, the one in a conference room inside an agency. If you do not know, you are in good company. For decades, a good many of those officials did not know either, and the Supreme Court has had to tell them, more than once, that they had been holding power the Constitution never let them hold.

The provision that settles these questions is the Appointments Clause, a single sentence in Article II that most Americans have never read. It deserves better. It is one of the most important accountability devices in the whole document, because it answers two questions every free people should ask about anyone who exercises power over them: who chose this person, and who answers for that choice?

The text, word for word

Article II, Section 2, Clause 2 reads, in its appointments portion:

"and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments."

Read it twice. It sets up a default and an exception.

The default: officers of the United States are nominated by the president and appointed with the Senate's advice and consent. Two signatures, so to speak: the executive chooses, and the senators, who represent the states, approve.

The exception: for inferior officers only, Congress may skip the Senate and give the appointment to the president alone, to the courts of law, or to the heads of departments.

Everyone else in the federal government who is not an officer is an employee, hired under civil-service rules, and the clause does not govern them. So every federal job sorts into three bins: principal officers, inferior officers and employees. The whole body of law in this area is about drawing the lines between the bins.

Why the Framers built it this way

The Framers had two fears pulling in opposite directions.

The first was royal patronage. The British crown had used appointments to buy loyalty in Parliament, filling offices with friends and dependents. Americans called it corruption, and many of the grievances in the Declaration of Independence were about officers sent "to harrass our people, and eat out their substance." Giving the appointing power to the executive alone looked dangerous.

The second fear was diffused responsibility. Several states gave appointments to legislatures or councils, and the results were what you would expect from committees handing out jobs: deals, logrolling and nobody to blame. Hamilton, defending the clause in Federalist 76, argued that one person choosing would feel a stronger sense of duty and a closer attention to the qualities of the office than any assembly.

The answer was to split the act in two. The president nominates, so a single person is responsible for the choice. The Senate consents, which Hamilton called "an excellent check upon a spirit of favoritism in the President". Most of the time, he argued, the Senate's role would operate silently: a president who knew his nominee would have to survive the Senate would be ashamed to propose an unfit one.

Notice the accountability built into the design. When a principal officer fails, the public knows exactly whom to blame: the president who nominated him and the senators who confirmed him. Both face the voters. That is the whole point.

Who counts as an officer at all

The first line the courts had to draw was between officers and employees.

In Buckley v. Valeo (1976), the famous campaign-finance case, the Court also considered the structure of the brand-new Federal Election Commission. Congress had provided that some of the commissioners would be appointed by the President pro tempore of the Senate and the Speaker of the House. That is, congressional leaders were appointing officials who would enforce federal law.

The Court held that this violated the Appointments Clause. It set out the test that still governs: any appointee exercising significant authority pursuant to the laws of the United States is an officer of the United States and must be appointed in one of the ways the clause allows. Congress may create the office, define its duties and fund it. Congress may not fill it with its own people. Officials appointed the wrong way could still perform investigative and informational functions that Congress itself could perform, but not enforce the law. Congress reconstituted the commission.

The principle is clean. If you exercise significant authority under federal law, you are an officer, and someone accountable must have appointed you the way the Constitution provides.

Principal or inferior, the second line

The harder line runs between principal and inferior officers, because the Constitution uses the word "inferior" without defining it.

Morrison v. Olson (1988) took the first serious run at the question. The independent counsel under the Ethics in Government Act was appointed by a special division of federal judges, which is permitted only if she was an inferior officer. The Court held she was, pointing to four features: she could be removed by the attorney general, though only for good cause; her duties were limited to investigating and prosecuting particular crimes; her jurisdiction was limited to the matters referred to her; and her tenure was limited to the single assignment.

Justice Antonin Scalia, dissenting alone, made a powerful point. "Inferior" in ordinary language means subordinate. An officer who cannot be directed by anyone and can be fired only for cause is not anyone's subordinate. He is a free agent. Morrison's four-factor checklist, Scalia argued, missed the only question that matters.

Nine years later Scalia got to write the majority opinion. In Edmond v. United States (1997), the question was whether the civilian judges of the Coast Guard Court of Criminal Appeals, appointed by the Secretary of Transportation, were inferior officers. The Court said yes, and gave a definition that has largely replaced the Morrison checklist:

"Generally speaking, the term 'inferior officer' connotes a relationship with some higher ranking officer or officers below the President: Whether one is an 'inferior' officer depends on whether he has a superior."

And further, inferior officers are those whose work is directed and supervised at some level by others who were appointed by presidential nomination with the Senate's consent. The Coast Guard judges qualified because their decisions could be reviewed by a higher military court and they could be removed by the Judge Advocate General. They had bosses. That made them inferior.

This is the functional test, and it is a good one. An inferior officer is someone with a superior who is himself accountable to the president and the Senate. The chain of command is the chain of accountability.

Lucia v. SEC (2018): the judges nobody appointed

Now we come back to the judge in the conference room.

The Securities and Exchange Commission, like many agencies, uses administrative law judges to hear enforcement cases. They take testimony, rule on evidence, find facts and issue initial decisions that can become final if the commission declines review. For decades, the SEC's administrative law judges were hired by agency staff like ordinary employees, not appointed by the commission itself.

Raymond Lucia, an investment adviser, was found by one of those judges to have misled clients and was sanctioned, including a lifetime industry bar. He argued that the judge was an officer who had not been properly appointed.

The Supreme Court agreed in 2018. Justice Elena Kagan's majority opinion relied on an earlier case, Freytag v. Commissioner (1991), which had held that special trial judges of the Tax Court were officers. The SEC's judges, the Court said, held a continuing office established by law and exercised significant discretion in carrying out important functions, just like the Tax Court judges. They were officers. Because they had not been appointed by the President, a court of law or a head of department, their appointments were invalid.

The remedy matters as much as the holding. Lucia got a new hearing before a different, properly appointed official. The SEC had already moved to have the commission itself ratify its judges' appointments. Cases had been heard for years by officials whose appointments did not satisfy the Constitution. It took the Supreme Court to say so.

United States v. Arthrex (2021): power without a boss

The newest chapter came from the Patent and Trademark Office. Under the America Invents Act of 2011, administrative patent judges sit on the Patent Trial and Appeal Board and can cancel already issued patents. They are appointed by the Secretary of Commerce, which is fine for inferior officers. But under the statute, their decisions in these proceedings could not be reviewed by anyone in the executive branch. The board's decision was the final word of the executive.

Chief Justice John Roberts wrote for the Court that this combination was unconstitutional. An inferior officer appointed without Senate confirmation cannot exercise unreviewable authority to issue final decisions binding the executive branch. That power belongs only to a principal officer, appointed by the president with the Senate's consent. The administrative patent judges had the appointment of inferior officers and the power of principal ones.

The remedy was surgical. The Court held that the Director of the Patent and Trademark Office, a presidentially appointed and Senate-confirmed officer, must be able to review the board's decisions. Arthrex returned to the office to ask the Director for review.

Put Edmond and Arthrex together and the rule is clear. If you have no boss, you had better have been confirmed by the Senate.

The best argument against all this, and the answer

The strongest objection runs this way. These cases are formalism. An administrative judge is a technical role, the argument goes, and whether the commission signs his appointment papers or a personnel officer does changes nothing about the quality of his decisions. The Lucia remedy forced redoing cases on a technicality. Arthrex added a layer of review that may be political. Why should courts disrupt functioning agencies over paperwork?

Here is the answer, point by point.

1. The paperwork is the accountability. The question "who appointed this person?" is not trivia. It determines who answers to the public for the person's conduct. If a staffer hires the judge, no one accountable to the voters made the choice.
2. Form protects liberty because power hides in function. Every concentration of unaccountable power can be described as merely technical. That is how it accumulates. The Framers wrote rules of form precisely because they did not trust officials to police themselves by vague standards of good function.
3. Review by an accountable officer is not "political" in a bad sense. It means someone the president answers for can correct an error. If that review is sometimes political, so is the whole system of elected government, and that is by design.
4. The disruption is the price of past violations, not of the ruling. Agencies that ignored the clause for decades created the problem. A ruling that requires them to follow the Constitution going forward is not the cause of the mess. It is the end of it.

What it means for the separation of powers

The Appointments Clause belongs with the removal power and the Take Care Clause as one of the three main ways the Constitution makes the executive answer to the people. The removal question is explained in The Executive Power Shall Be Vested in a President, and Every Word Counts, and the duty of enforcement in The Take Care Clause Was Written Against Kings Who Suspended the Laws.

The clause also gives the Senate one of its most important jobs. Confirmation is where the states' representatives get a say in who runs the government. The ways it is evaded matter too: acting officials who serve for long periods without confirmation, covered in The Acting Officials Who Run Agencies Without the Senate's Consent, and the procedural tools a single senator can use to slow a nominee, covered in The Senate Hold Explained, How One Senator Can Slow a Nominee for Months. Recess appointments, which let a president fill vacancies temporarily while the Senate is away, were narrowed in NLRB v. Noel Canning (2014), where all nine justices agreed the appointments at issue were invalid and the majority held that a Senate break of less than ten days is presumptively too short to count.

There is a related story about agency judges and the right to a jury, told in SEC v. Jarkesy Put the Jury Back Between Citizens and Agency Courts. Together these cases mark a quiet restoration: the Court reminding Washington that the Constitution's rules about who may exercise federal power are not suggestions.

The case in brief

1. The Appointments Clause requires principal officers to be nominated by the president and confirmed by the Senate, and lets Congress vest inferior officers' appointments only in the president, the courts or department heads.
2. Buckley v. Valeo (1976) held that anyone exercising significant authority under federal law is an officer, so Congress cannot appoint its own enforcers.
3. Edmond v. United States (1997) defined an inferior officer as one who has a superior, a better rule than Morrison's checklist.
4. Lucia v. SEC (2018) and United States v. Arthrex (2021) applied the clause to agency judges: they must be properly appointed, and if no one reviews them, they must be Senate-confirmed.
5. The clause's purpose is accountability; the paperwork tells the public whom to blame.

What you can do: read Article II, Section 2 on our Constitution page, then ask your senators' offices, through our representatives page, how many senior posts in the agencies they oversee are filled by acting officials.