In early 2025, the Trump Administration advanced a sweeping new claim about the constitutional status of senior federal officials. In litigation before the Merit Systems Protection Board and in internal executive-branch guidance, the Justice Department argued that all members of the Senior Executive Service (SES) must be treated as “inferior officers” under the Appointments Clause rather than as mere employees. On that view, statutory removal protections for career SES officials are constitutionally suspect because they interfere with the President’s authority to supervise and remove officers who exercise significant executive power.

That position marks a sharp departure from how the SES has traditionally been understood. Congress created the SES as a professional managerial corps within the civil service, designed to promote continuity, expertise, and performance-based accountability across administrations. Career SES officials are selected through merit-based processes, evaluated under uniform performance systems, and—unlike political appointees—shielded from arbitrary or partisan removal. The Trump Administration’s theory collapses that design by treating SES status itself as constitutionally dispositive: if all SES officials are inferior officers, then they must serve at the President’s pleasure.

Whether that conclusion follows, however, depends entirely on how one conceptualizes the officer–employee distinction under Article II. Supreme Court doctrine supplies no single test capable of resolving the question categorically. Instead, existing cases support at least three distinct ways of thinking about constitutional status—each emphasizing different features of authority, supervision, and legal effect.

First is a categorical model. Under this approach, membership in a legally defined class is sufficient to establish officer status. Applied to the SES, the argument is straightforward: Congress defined SES positions as exercising “important policy-making, policy-determining, or other executive functions,” so courts should presume that all SES officials exercise “significant authority” within the meaning of the Appointments Clause. No position-specific inquiry is necessary. This is the logic animating the administration’s position in current litigation. But that simplicity ignores the substantial variation in what SES officials actually do—from issuing binding directives to performing high-level advisory or coordination functions that have no legal effect unless adopted by a superior.

Second is a hierarchical model, which focuses on supervision, reviewability, and chains of command. On this view, constitutional status turns on whether an official’s decisions have legal effect in their own right or instead take effect only through action by a superior officer. Authority that is fully contingent—because it can be revised, reversed, or must be adopted by a Senate-confirmed official—looks less like the execution of law and more like assistance in its administration. Applied to the SES, this model tends to push many roles toward employee status, because senior executives are often embedded in multilayered structures culminating in Cabinet officials who retain ultimate authority.

Third is a duties-based model, which emphasizes the nature and consequences of the functions an official performs rather than the presence of supervision. Under this approach, an official exercises “significant authority” when their duties involve substantial discretion in implementing federal law—such as adjudicating disputes, enforcing statutes, issuing binding directives, or allocating public resources. The fact that such decisions may be reviewable does not, by itself, negate officer status. Put simply, the duties-based model asks what an official does, while the hierarchical model asks how their actions become legally effective.

These three models offer lenses for framing the constitutional stakes of the current dispute. The administration’s categorical theory resolves the question by fiat, treating SES status as a constitutional shortcut. The hierarchical and duties-based models, by contrast, demand a functional inquiry—but they do not always converge. The same SES role may look like an employee under a hierarchy-focused analysis and like an officer when its duties are examined in isolation.

That divergence becomes clear when applied to concrete SES positions. Two civilian roles within the Department of the Navy illustrate the point. Both are career SES positions embedded in military institutions and operate within chains of command led by Senate-confirmed officers. Yet the nature of the authority they exercise differs in constitutionally significant ways. This essay previews a law review note that develops these models in greater depth and applies them across a broader set of positions.

Executive Director, Naval Special Warfare Command

The Executive Director of Naval Special Warfare Command (NSWC) is the senior civilian deputy to the Flag Officer who commands the Navy’s special operations forces. The position is expressly delegated authority to “act for the Commander” in the Commander’s absence and exercises executive direction over NSWC’s policy, programs, and institutional governance. In practice, the Executive Director issues binding directives across logistics, personnel, acquisition, and resource management, and exercises broad discretion over how appropriated funds and operational programs are executed.

Under the hierarchical model, this authority appears tightly supervised. The Commander retains ultimate operational control, and higher civilian officials—including the Secretary of the Navy—possess authority to review, revise, or countermand decisions. From that perspective, the Executive Director’s actions are embedded within a multilayered chain of command culminating in Senate-confirmed principal officers, suggesting employee status.

The duties-based model yields a different conclusion. Acting “for the Commander” is not merely advisory. When a civilian official directs military subordinates, those directives carry legal force backed by the Uniform Code of Military Justice. The Executive Director’s authority to issue binding operational and administrative decisions, allocate resources, and manage programs with immediate effect reflects the exercise of sovereign power. Even if subject to later review, those decisions presumptively bind the government in the first instance. Under a duties-focused analysis, the Executive Director exercises “significant authority pursuant to the laws of the United States” and therefore looks like an inferior officer.

Assistant Deputy Commandant for Installations & Logistics

The Assistant Deputy Commandant for Installations & Logistics (ADC I&L) serves as the senior civilian advisor within Headquarters Marine Corps for facilities, sustainment, and logistics policy. The position participates in policy development, analyzes program proposals, coordinates across offices, and advises the Deputy Commandant on resource allocation and priorities. But it does not issue binding directives, execute contracts, or commit funds independently.

Here, both models point in the same direction. Under the hierarchical model, the ADC I&L’s work is fully subordinate to review and approval by the Deputy Commandant, the Commandant of the Marine Corps, and civilian leadership within the Department of the Navy. The ADC I&L’s responsibilities—analyzing, recommending, and coordinating—have no legal effect unless adopted by a superior officer. Under the duties-based model, the character of the role is dispositive. The position performs high-level staff work “in aid of” others who execute the law, rather than exercising executive authority in its own right. On either account, the ADC I&L is properly classified as an employee.

What the Comparison Shows

These two positions share the same statutory classification. Both satisfy the definition of an SES role. Both are occupied by senior civilians working at the intersection of policy and execution. Yet they diverge sharply in how authority is exercised. The Executive Director wields delegated power that binds the government and military subordinates in real time. The ADC I&L provides expertise and coordination without independent legal effect.

A categorical rule treating all SES officials as inferior officers cannot account for that difference. Nor can hierarchy alone resolve it. Only by examining what authority an official actually exercises—and how that authority operates within a structure of supervision—can courts make sense of the officer–employee line in this context.

The Trump Administration’s claim that all Senior Executive Service officials are inferior officers offers a clean answer to a messy constitutional question. But the Navy examples show why that categorical move is unstable. SES positions are not constitutionally uniform. Some involve the exercise of delegated authority that binds the government and alters legal obligations in real time. Others involve senior advisory or coordination functions whose outputs carry no legal effect unless adopted by a superior officer. Treating both alike collapses distinctions that Article II doctrine has repeatedly insisted upon.

If courts accept SES status as constitutionally dispositive, disputes over appointment and removal will turn on personnel labels rather than on how executive power is actually exercised. If courts reject the categorical approach, they will be forced into fact-intensive, position-by-position litigation that invites uncertainty and politicization.

The deeper problem is structural. Congress designed the SES as a managerial personnel system, not as a constitutional category calibrated to the Appointments Clause. Existing doctrine—whether framed in hierarchical or duties-based terms—was never built to sort senior executives whose authority varies so widely within a single statutory class.

The full note argues that this mismatch calls for institutional solutions rather than categorical assertions or perpetual litigation. By structuring appointment and supervision to ensure that any exercise of significant authority remains anchored in politically accountable officers—and by narrowing the range of roles classified within the SES—Congress can preserve Article II accountability without dismantling the professional civil service. The current controversy illustrates why that alignment matters, and why treating the SES itself as a constitutional shortcut is unlikely to hold.

Peyton Baker is a J.D. candidate at the University of Minnesota Law School (Class of 2027). He received his B.A. in economics from the University of Wisconsin–Madison and previously served as an infantry specialist in the U.S. Army National Guard.