Among the structural provisions contained in the Constitution, the Appointments Clause seems at first blush to be the one least susceptible to interpretive confusion. The Clause provides that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . all [ ] Officers of the United States” whose appointments are not otherwise provided for in the Constitution, with the exception of “inferior Officers,” whose appointment Congress may vest “in the President alone, in the Courts of Law, or in the Heads of Departments.” U.S. Const. art. II, § 2, cl. 2. The Clause thus distinguishes between two sets of “officers”—“principals” and “inferiors”—specifying a single person (the President, with Senate consent) who may appoint the former and three bodies (the President, Courts of Law, and Heads of Departments) who may appoint the latter. Nonetheless, the Court and the political branches have long understood the Clause not to apply to another group of government officials—now called “employees”—who may be appointed in ways other than those set forth in the Appointments Clause. The Court has said the dividing line between “inferior officers” and “employees” depends on whether the official exercises “significant authority” under federal law, Buckley v. Valeo, 424 U.S. 1, 126 (1976); Freytag v. Commissioner of Internal Revenue, 501 U.S. 868, 882 (1991); Edmond v. United States, 520 U.S. 651, 662 (1997)—a test that Professor Jennifer Mascott has recently criticized as inconsistent with the original understanding of the Clause.
When Lucia v. SEC reached the Court, it appeared as though the case would revolve around how to apply the appropriate dividing line to the functions of Administrative Law Judges: Do they exercise “significant authority” or, to use another formulation, “delegated sovereign powers”? In his fine brief to the Court, however, the Court-appointed amicus, Anton Metlitsky, has raised a conceptually different argument. (N.B. Metlitsky is a personal friend.) Metlitsky contends that, even where a federal official exercises “significant authority,” the official is not a constitutional “officer” unless she acts “in her own name rather than in the name of a superior officer.” Amicus Br. 22; see also id. at 32 (“Although the authority to bind the government or private parties is a necessary precondition of constitutional officer status . . . it is not sufficient.”). He derives this rule from statutes enacted by the First Congress that “established various deputy positions and vested appointment authority for those positions in the deputies’ principals even though the principals were not department heads.” Id. (referring to deputies of marshals, surveyors, and collectors). And he contends that SEC ALJs are akin to these “non-officer deputies” because “Congress did not delegate [them] any power to issue decisions in their own names.” Id. at 48. By contrast, in her article (and in a related blog post), Professor Mascott contends that the “deputies” whose appointments were authorized by the First Congress were not “officers” because their principals were required to assume personal financial liability for the deputy’s actions.
Like the word “employee,” the word “deputy” cannot be found in the Appointments Clause or, for that matter, the Constitution. With the exception of Mascott’s article, there is little scholarship on the status of “deputy” officers in the constitutional scheme. As an initial matter, it seems obvious that the mere label “deputy” ought not to matter in drawing the line between “inferior officer” and “employee” status. The background principle in administrative law is that functions, not labels, determine the constitutional status of a federal administrative body—and thus the fact that “Administrative Law Judges” are not labelled “deputies” of the SEC is irrelevant to their constitutional status under the Appointments Clause. See, e.g., Lebron v. Nat’l R.R. Passenger Corp., 513 U.S. 374, 392-93 (1995). For the same reason, it seems equally clear that the test for “officer” status (as opposed to non-officer “deputy” status) ought not to turn on whether Congress has labelled an official’s acts as occurring “in her own name rather than in the name of a superior officer.” As with a focus on the label “deputy,” the “in her own name” test would seem to elevate labeling over functions.
But if not labels, what explains the treatment of “deputy” officers by the First Congress? This post addresses the constitutional position of “deputy” officers, as it was understood by important early interpreters of the Constitution—namely, the Attorneys General. As explained below, a series of Attorney General opinions addressed the status of “deputies.” Their conception of “deputy” officers (as well as the actual opinions of the Attorneys General) have, thus far, been mostly absent from the briefing in and commentary about Lucia and from the scholarship on the subject. But the opinions are highly relevant to the “deputy” question. Taken together, they establish that an official was a constitutional “deputy” when he exercised his “office in right of another” or was the “shadow” of a principal, in the sense that the “deputy” had no statutory authority distinct from the principal; the principal was financially liable for the deputy’s actions; or the deputy held office at the pleasure of the principal—and would even, absent express congressional provision, lose his position when the principal departed.
1. The Opinions of the Attorneys General. Five Attorneys General opined on the question of the constitutional status of “deputy” officers” during the course of the Nation’s first century. One other Attorney General presented the executive branch position to the Supreme Court, which accepted it while interpreting a statute in United States v. Hartwell, 73 U.S. 385 (1867).
1.a. Wirt. In 1821, William Wirt, who served as Attorney General under both James Monroe and John Quincy Adams, considered the meaning of a statute authorizing a collector of customs “with the approbation of the principal officer of the Treasury Department, to employ proper persons as weighers, gaugers, measurers, and inspectors, at the several ports within his district.” Tenure of Office of Inspectors of Customs, 1 Op. Att’y Gen. 459, 459 (1821) (quoting Act of Mar. 3, 1815, § 3, 3 Stat. 155) (emphasis added by Wirt). Wirt understood that the provision was “susceptible of two constructions.” Id. Under one construction, the Treasury Secretary’s “approbation” was required only “generally” as to whether the officials could “be employed at such and such ports, leaving the selection of the individuals to the collectors alone.” Id. Alternatively, the provision could be interpreted to mean that “no one shall be appointed who shall not be approved” by the Treasury Secretary. Id. Wirt held that the Treasury Secretary had to approve each individual selection, reasoning that the customs laws established “inspectors” as “permanent officers of the customs” with “important duties,” who did “not hold their appointments at the mere pleasure of the collector” but rather could not “be put out of [office] without the [ ] approbation” of the Secretary of the Treasury. Id.; see Hartwell, 73 U.S. at 393-94 (holding that a clerk appointed by the Assistant Treasurer, with the approbation of the Secretary of the Treasury, was “appointed by the head of the Department” under the Appointments Clause).
1.b. Berrien. A decade later, in 1831, John Berrien, who served as Attorney General under President Andrew Jackson, addressed the question whether an inspector of customs continued in office after the death, resignation, or removal of the collector by whom he was appointed. Tenure of Office of Inspectors of Customs, &c., 2 Op. Att’y Gen. 410 (1831). The question was no small matter because Justice Story in United States v. Wood, 28 F. Cas. 752 (C.C.D. Mass. 1815), had held that an inspector of customs ceased to be an officeholder on the collector’s departure given that he held his office during the pleasure of the collector. Contrary to Wood, Berrien concluded that inspectors continued in office. As he explained, “[w]hen an office is held during the pleasure of any designated officer, it is at the pleasure of the officer, and not of the individual.” 2 Op. Att’y Gen. at 412.
In reaching that conclusion, Berrien observed that there was a provision in the “revenue law for the continuance of the functions of the deputy collector after the death or disability of the collector.” Id. at 413. According to Berrien, Congress’s decision to enact a specific provision allowing for a continuance of the deputy collector did not mean (under the expressio unius maxim) that Congress’s failure to enact a like provision for continuance of the inspector of customs made continuance in office unlawful. As Berrien explained:
[T]o maintain this argument, it is necessary to show that the analogy between these subordinate officers is complete. And herein, as I respectfully conceive, the error lies. The deputy (as his name imports, and as it is expressly laid down by law writers) exercises his office in right of another. He is, as they express it, the shadow of his principal—having no authority distinct from him, nor to act otherwise than in his name, nor to perform any other duties but such as the collector himself may perform. These things cannot be affirmed of the other subordinates. The duties of the inspector, for example, are prescribed by law, and to be performed by him alone. They are not the duties of another, which he performs in right of, and by deputation from, that other. But though he holds his office at the pleasure of the collector so long as he continues in office, the duties which he performs are emphatically his own, specified by law, performed by him in his own right, under the authority of the law, and incapable of being performed by another. There is, then, an entire want of analogy between these offices for all the purposes of this inquiry; and they are not, therefore, necessarily liable to the application of the same rule.
Id. at 413-14.
The notion that a “deputy” would lose his position on the departure of an “officer” may sound peculiar to us today. But Berrien’s argument was an accepted understanding of the officer-deputy relationship. In the argument in the Hartwell case (which was decided in 1867), for example, Attorney General Henry Stanbery, who served under Andrew Johnson, repeated Berrien’s logic, contending that the defendant in the case was an “officer” because he did “not stand in the relation of a deputy with a tenure of office depending on the principal who appointed him; but he remains in office notwithstanding his principal may retire.” Hartwell, 73 U.S. at 389-90 (argument of the United States). The Court accepted this argument, holding that the defendant was an officer in part because “[v]acating the office of his superior would not have affected the tenure of his place.” Id. at 393 (opinion of the Court).
1.c. Legaré. A dozen years after Berrien’s opinion, in 1843, Hugh Legaré, who served as Attorney General under President John Tyler, addressed the validity of a grant of land near the city of Mobile recognized by a survey conducted by a surveyor general. Confirmation of Spanish Grants of Land in Mobile, 4 Op. Att’y Gen. 156 (1843). In the course of his opinion—and relying on Wirt’s and Berrien’s precedents—Legaré observed that “all permanent inspectors, are, to all intents and purposes, officers of the government of the United States, not mere occasional deputies, employés, or agents of the collectors.” Id. at 163 (emphasis added). Legaré understood an earlier act as authorizing the appointment by collectors of the customs of “occasional inspectors whose services were demanded by extraordinary exigencies in the service.” Id. He distinguished between these “occasional inspectors” and the “permanent inspectors expressly recognised as public officers.” Id. And he reasoned that Congress had “no power to vest [the power to appoint inspectors] in collectors” and, indeed, the appointment must be by “the Secretary, or it is null and void under the constitution.” Id. at 164; see id. (“Congress has no power whatever to vest the appointment of any employé coming fairly within the definition of an inferior officer of the Government in any other public authority but the President, the heads of Departments, or the judicial tribunals.”); see also Appointment and Removal of Inspectors of Customs, 4 Op. Att’y Gen 165 (1843) (Attorney General Legaré); Power of the Secretary of the Treasury to Remove Inspectors of Hulls and Bollers, 10 Op. Att’y Gen. 204, 206, 208-09 (1862) (Attorney General Bates) (relying on Wirt’s and Legaré’s opinions to interpret a comparable statute and holding that “any act of Congress which attempted to vest [the appointing] power elsewhere would be in direct violation of the Constitution.”).
1.d. Speed. In 1865, Abraham Lincoln’s Attorney General and good friend James Speed (who also served briefly under Andrew Johnson) concluded that an act vesting in assessors the appointment of assistant assessors of the internal revenue was unconstitutional. Appointment of Assistant Assessors of Internal Revenue, 11 Op. Att’y Gen. 209 (1865); see Act of Mar. 3, 1865, § 1, 13 Stat. 469 (providing that the “assessor, whenever there shall be a vacancy, shall appoint, with the approval of said Commissioner, one or more assistant assessors”). (Speed’s opinion is dated April 25, 1865, eleven days after Lincoln was shot.) Because the assessors were not “heads of departments,” Speed observed that “[m]anifestly, the statute is in violation of the constitutional provision, if the assistant assessors are, within the meaning of the Constitution, ‘officers’ of the United States.” 11 Op. Att’y Gen. at 210; see id. at 210-11 (observing that “Congress is not competent to confer the power of appointing officers of the United States on any public authority, save the President, the courts, or the heads of departments” and relying on Chief Justice Marshall’s opinion in United States v. Maurice, 26 F. Cas. 1211 (C.C.D. Va. 1823), which defined an officer as anyone performing a “duty” that is a “continuing one, which is defined by rules prescribed by the Government and not by contract, which an individual is appointed by Government to perform”).
As for the assistant assessors, Speed argued that their duties were not “the duties of another, which he performs in right of, and by deputation from that other.” 11 Op. Att’y Gen. at 211 (emphasis added). That was because “[t]he statute carefully prescribes the sphere of the [assistant assessor’s] authority, but within that sphere he performs the duties and exercises the powers devolving upon him in subordination and under responsibility only to the law, whose agent, in truth, he is.” Id. In this regard, “[t]he assessor may re-examine and rectify [the assistant assessor’s] assessments, but only as a court of error may revise and correct the decisions of inferior tribunals on appeal.” Id. As a result, Speed concluded that he had “no difficulty . . . in determining that an assistant assessor is an ‘officer,’ in the meaning of the Constitution.” Id. at 211-212; see id. at 212 (relying on the test applied by Speed’s “predecessors, Mr. Wirt, Mr. Berrien, and Mr. Legaré”). That determination, according to Speed, meant that the 1865 statute “vesting the power of appointing assistant assessors in the respective assessors, is clearly unconstitutional.” Id.
The very next year, Congress authorized the Secretary of the Treasury, who was undeniably the head of a department, “to appoint any assistant assessors of internal revenue now provided by law,” Act of Jan. 15, 1866, 14 Stat. 2, thereby acquiescing in Speed’s constitutional determination.
(Remarkably, there exists an 1868 letter in Walt Whitman’s hand conveying Speed’s opinion to Attorney General Stanbery, who had at that time recently argued Hartwell.)
1.e. Akerman. Finally, in 1871, Amos Akerman, who served as Attorney General under Ulysses Grant, addressed the question whether Congress could constitutionally require “that a vacant civil office must be given to the person who is found to stand foremost in a competitive examination,” thus effectively making “the judges in that examination the appointing power to that office.” Civil-Service Commission, 13 Op. Att’y Gen. 516, 517 (1871). Akerman concluded that, “[i]f the President in appointing a marshal . . . must take the individual whom a civil-service board adjudge to have proved himself the fittest by the test of a competitive examination, the will and judgment which determine that appointment are not the will and judgment of the President . . . but are the will and judgment of the civil-service board, and that board is virtually the appointing power.” Id. at 518-19; see id. at 520 (“A legal obligation to follow the judgment of [an examining] board is inconsistent with the constitutional independence of the appointing power.”). Akerman observed that Congress had “at various times, authorized appointments . . . in the customs service, in the internal-revenue service, in the land-offices, and in some other branches of the civil service.” Id. at 521. With respect to these pieces of legislation, Akerman contended:
First, that in some of these cases, such as those of deputy marshals and deputy clerks, the persons appointed are representatives of the officers who appoint them, and who, in some particulars, are responsible for their conduct, and, perhaps, it was considered by Congress that the office was substantially in the principal. Second, that it was, no doubt, considered by Congress that some of the persons whose appointments were thus provided for were not officers in the constitutional sense of the term. . . .
Id. at 521 (relying on Legaré’s and Speed’s opinions).
2. Implications. These five opinions lead to two fundamental conclusions about the constitutional status of “deputy” officers.
First, through the course of the Nineteenth Century—in opinions by establishment Virginians like Wirt, Jacksonians like Berrien, Whigs like Legaré, and Republicans like Speed and Akerman—the Attorney General consistently understood the Appointments Clause. Indeed, each Attorney General referred to and built on the opinions of his predecessors, thus indicating that, well before the modern Supreme Court constructed a test for constitutional “officer” status, there was a settled understanding in the Executive Branch on its meaning.
Second, the Attorneys General understood the “deputy”-“officer” relationship in a technical sense as requiring a particular sort of close link between the two officials. For example, the Attorneys General relied on whether the deputy exercised his “office in right of another” or was the “shadow” of a principal, in the sense that the “deputy” had no statutory authority distinct from the principal; the principal was financially liable for the deputy’s actions; and the deputy held office at the pleasure of the principal—and would even, absent express congressional provision, lose his position when the principal departed. As Attorney General Speed made clear, an official did not become a “deputy” simply because some officer might “re-examine and rectify” the official’s decisions.
That understanding was mirrored by at least one early treatise on the subject. As Professor Floyd Mechem explained “deputy” status:
Where [a deputy’s] appointment is provided for by law, and a fortiori where it is required by law, which fixes the powers and duties of such deputies, and where such deputies are required to take the oath of office and to give bonds for the performance of their duties, the deputies are usually regarded as public officers. . . . But where the deputy is appointed merely at the will and pleasure of his principal to serve some purpose of the latter, he is not a public officer but a mere servant or agent.
Floyd R. Mechem, A Treatise on the Law of Public Offices and Officers § 38 (1890). And it was reiterated in opinions of the Supreme Court, like Hartwell, which found officer status in part because “[v]acating the office of [a] superior would not have affected the [officer’s] tenure.” 73 U.S. at 393; cf. United States v. Germaine, 99 U.S. 508, 512 (1878) (“He is but an agent of the commissioner, appointed by him, and removable by him at his pleasure, to procure information needed to aid in the performance of his own official duties.”).
3. Conclusion. The Court in Lucia should understand the treatment of “deputies” under the Appointments Clause consistent with these Attorney General opinions and Mechem’s treatise. That approach—relying on longstanding practice within the political branches to understand the meaning of constitutional provisions—fits with the Court’s approach in other recent cases involving the separation of powers. See NLRB v. Noel Canning, 134 S. Ct. 2550, 2562-63, 2568-73 (2014) (relying on opinions by Wirt, among other Attorneys General, to understand the meaning of the Recess Appointments Clause).
The approach makes sense of the Clause’s text and structure, as well as historical practice. It also makes good sense of the functional justifications for the Appointments Clause. A government official who meets the constitutional line for “inferior officer” status (say, for the sake of argument, “significant authority”) would have to be appointed pursuant to the rules of the Appointments Clause or to be sufficiently closely connected to and monitored by those officers. A government official who did not meet that standard, because she did not exercise “significant authority,” would not have to be appointed pursuant to the Clause. In this fashion, the Appointments Clause would ensure political accountability, by requiring officers exercising the federal government’s sovereign authority to be constitutionally appointed under the Clause or to be closely tied (in historic “deputy” fashion) to properly appointed officers.
As a result, in Lucia, my approach would foreclose the possibility that ALJs can be deemed “deputies” of the SEC, because the ALJs undeniably hold their offices in their own name (and, indeed, have a form of tenure protection); the ALJs exercise statutorily conferred duties; and the SEC Commissioners are not personally liable for ALJ actions. The ALJs thus lack the marks that would allow them to claim “deputy” status for constitutional purposes. This conclusion, however, does not answer whether the SEC’s Administrative Law Judges exercise “significant authority” (or, more broadly, whether the “significant authority” test is the right one)—questions that this post has not confronted. I have addressed solely the treatment of “deputies” of “officers” and argued that the traditional executive branch understanding of this issue should prevail in Lucia. In contrast to my argument, the alternative approach to the constitutional status of “deputy” officers would render the Appointments Clause all but a dead letter—a labelling requirement, at best—and it would be inconsistent with a century’s worth of early Attorney General opinions, to boot.
Aditya Bamzai is an Associate Professor at University of Virginia School of Law.
This post is part of a symposium on Lucia v. SEC. All of the posts can be read here.