Andrew Croner · June 2009
77 GEO. WASH. L. REV. 1002 (2009)
The power of appointments under the Constitution is governed by the Appointments Clause. On its face, the Appointments Clause appears to be a model of clarity among the many more vague commands of the Constitution;the procedures used for the appointment of federal officers are clearly spelled out and readily understandable. The Appointments Clause requires that 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.
Notwithstanding the specific appointment procedures outlined in the Clause, there are questions the Clause leaves unanswered. Principally, the Clause provides for two distinct modes of appointment based on whether an officer is classified as a “principal officer” or an “inferior officer,” but fails to provide any guidance for how this delineation should be made. It has largely been left up to the Supreme Court to provide substance to the distinction between principal and inferior officers due to the Constitution’s silence.
The distinction between principal and inferior officers is not a trivial one either. As this Essay explains, the classification of an officer as principal or inferior can have drastic effects on the ease with which they are appointed. An analysis of the principal/inferior distinction is particularly appropriate in the aftermath of the drama surrounding the unsuccessful confirmations of Obama appointees Tom Daschle and Nancy Killefer.
With that in mind, this Essay attempts to shed light on the different approaches the Supreme Court has taken to distinguishing between principal and inferior officers, while also highlighting the importance of this distinction in the area of administrative law. Further, this Essay provides its own view on the best way to determine which officers should be classified as principal and those that should be deemed inferior. Part I briefly recounts the history of the Appointments Clause, focusing specifically on the motivations behind the structure of the Clause. Part II then discusses the importance of the distinction between principal and inferior officers within the realm of administrative law. Part III examines Morrison v. Olson and Edmond v. United States, the two most recent cases in which the Court has grappled with the distinction between principal and inferior officers, highlighting the widely divergent approaches taken by the Court in each case. Finally, Part IV argues that the proper approach the Court should take when addressing this issue is the approach adopted in Edmond, considering heavily its effect in the area of administrative law.
