Notice & Comment

The Inferior (Subordinate) Officer Test and the Officer/Non-Officer Line, by Tuan Samahon

I concur with Professor Aaron Nielson’s blog post, “Drawing Two Lines,” that there are two sets of lines to be managed under the Appointments Clause: (i) the line between principal and inferior officer and (ii) the line between officers and non-officers, or to use the nineteenth-century French loan word used to describe that remainder category, “employees.”

Lucia v. SEC properly concerns that second boundary, not the first. That first line, however, illuminates the officer-employee boundary, particularly where the D.C. Circuit’s decision and amicus Metlitsky’s brief conflate the two lines. They describe the SEC administrative law judges (ALJs) in terms consistent with what I would consider to be “inferior officer” status.

Brief background is in order on the meaning of “inferior officer.”

The Appointments Clause provides a default rule for appointments, but it is followed with a congressional opt out provision:

[The President] 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. U.S. Const. art. II, § 2, cl. 2 (emphasis added).

This “opt out” is where the words “inferior officers” appear and is the only place in the Constitution expressly authorizing Congress to legislatively delegate its authority to another branch. The Clause does so by creating the Constitution’s fourth vesting clause (“may by Law vest”) and cabining that vesting carefully. The universe of designated recipients is closed and enumerated. The scope of appointive power is limited. It extends only to appointment of a subset of officers, namely, “inferior” ones.

Who, then, is an “inferior officer” eligible to be appointed under the “Excepting Clause”? In Morrison v. Olson, 487 U.S. 654 (1988), the Court considered whether the independent counsel was really a principal rather than an “inferior” officer, one incapable of constitutionally being constitutionally appointed by the Courts of Law, i.e. the D.C. Circuit’s special division. Chief Justice Rehnquist interpreted “inferior” officer as meaning “‘inferior’ in rank and authority” with limited duties, limited jurisdiction, and limited tenure to characterize Alexia Morrison as an inferior officer. Morrison, 487 U.S. at 671. Justice Scalia, in dissent, interpreted “inferior” officer to mean that the officer was, at least, necessarily “subordinate.” Id. at 716 (Scalia, J., dissenting). As the independent counsel was, well… independent, she was subordinate to no one and, by Scalia’s lights, a principal officer.

Eventually, the Court revisited the principal-inferior officer line drawing and settled on Justice Scalia’s view that an inferior officer is a “subordinate” one. In Edmond v. United States, 520 U.S. 651 (1997), Chief Justice Rehnquist assigned Justice Scalia the task of writing the majority opinion. Justice Scalia explained that, “generally speaking” (an apparent nod to the exceptional circumstance in Morrison):

“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 … in the context of a Clause designed to preserve political accountability relative to important Government assignments, we think it evident that ‘inferior officers’ are officers whose work is directed and supervised at some level by others who were appointed by Presidential nomination with the advice and consent of the Senate.” Edmond, 520 U.S. at 662-63.

 Edmond applied the “directed and supervised at some level” standard and concluded that the civilian judges of the Coast Guard Court of Criminal Appeals were inferior or subordinate officers. Id. at 665. “What is significant is that the judges of the Court of Criminal Appeals have no power to render a final decision on behalf of the United States unless permitted to do so by other Executive officers.” Id. Quasi-judicial positions, even without power to bind the United States absent action by other executive officers, constituted inferior offices.

 Both the D.C. Circuit and Amicus Metlitsky appeal to this subordinate test for inferior officerhood as the test for non-officerhood. In Lucia v. SEC, the D.C. Circuit said that the SEC ALJs were not officers because they had not “been delegated sovereign authority to act independently of the Commission.” 832 F.3d 277, 286 (D.C. Cir. 2016). Metlitsky too says that “[p]ersons whose acts have no force absent the subsequent sanction of a superior officer…are not constitutional officers.” Br. Court-Appointed Amicus Curiae, at 14-15. But both statements resort only to the “subordinate” line between principal officers and inferior officers. The D.C. Circuit and Metlitsky’s reading of a subordinate requirement addresses only the rank of officerhood. Likely, the SEC ALJs are inferior officers supervised and directed at some level by the SEC Commissioners. Non-finality in decisionmaking is not the sine qua non of non-officerhood.

Tuan Samahon is a Professor at Villanova University

This post is part of a symposium on Lucia v. SEC. All of the posts can be read here.

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