Who are “Officers of the United States”?

by Aaron Nielson — Thursday, Feb. 16, 2017@Aaron_L_Nielson

The D.C. Circuit just granted en banc review in Raymond J. Lucia Companies, Inc. v. SEC. I’ve discussed this case before. In short, the full D.C. Circuit (minus Chief Judge Garland) will decide whether the SEC’s administrative law judges are “employees” or “inferior officers.” If the ALJs are mere employees, then the manner of their appointment does not violate Article II. But if they officers, the Appointments Clause was violated — and that would be a very big deal. In so doing, the D.C. Circuit will squarely consider the Tenth Circuit’s analysis, including whether Landry v. FDIC was correctly decided. In other words, this is important.

While the D.C. Circuit is considering these weighty constitutional questions, it may want to read a new article that was just posted to SSRN: Jennifer Mascott’s very timely Who are Officers of the United States?

Here is the abstract:

For decades courts have believed that only officials with “significant authority” are “Officers of the United States” subject to the Constitution’s Article II Appointments Clause requirements. But this standard has proven difficult to apply to major categories of officials, leading to a circuit split this past December over whether certain administrative law judges need Article II appointments. This article challenges whether “significant authority” is even the proper standard, using two distinctive tools: (i) “corpus linguistics”-style analysis of Founding Era documents and (ii) examination of appointments practices in the Continental Congress and the First Federal Congress. Both strongly suggest the original public meaning of “officer” is much broader than modern doctrine assumes—encompassing any government official with responsibility for an ongoing governmental duty.

This historical meaning of “officer” likely would extend to thousands of officials not currently appointed as Article II “officers,” such as tax collectors, disaster relief officials, federal inspectors, customs officials, and administrative judges. This conclusion might at first seem destructive to the civil service structure. But this article suggests that core components of the current federal hiring system might fairly readily be brought into compliance with Article II by amending who exercises final approval to rank candidates and hire them. These feasible but significant changes would restore a critical mechanism for democratic accountability and transparency intended by the Framers.

Talk about perfect timing. Not only does Mascott’s article address a significant constitutional question, but it does so right when the en banc D.C. Circuit — and then potentially the Supreme Court — will address that very question.

About Aaron Nielson

Professor Nielson is an associate professor at Brigham Young University Law School, where he teaches and writes in the areas of administrative law, civil procedure, federal courts, and antitrust. He currently serves as a public member of the Administrative Conference of the United States, a federal agency that studies the administrative process and makes recommendations on ways to improve it. He also co-chairs the Rulemaking Committee of the American Bar Association’s Section of Administrative Law & Regulatory Practice. Previously he chaired the Section's Antitrust & Trade Regulation Committee. Before joining the academy, Professor Nielson was a partner in the Washington, D.C. office of Kirkland & Ellis LLP (where he remains of counsel). He also has served as a law clerk to Justice Samuel A. Alito, Jr. of the U.S. Supreme Court, Judge Janice Rogers Brown of the U.S. Court of Appeals for the D.C. Circuit, and Judge Jerry E. Smith of the U.S. Court of Appeals for the Fifth Circuit. Follow him on Twitter @Aaron_L_Nielson.

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One thought on “Who are “Officers of the United States”?

  1. A civil servant

    This author recognizes that her proposed “definition” would effectively declare the Pendleton Act’s tenure provisions unconstitutional (as it would make basically every employee of the United States an “officer”). Her “analysis” of this issue literally can be summed up as “Jefferson and Jackson didn’t fire all employees of the opposing party when they took power, so therefore this cannot possibly be a problem.” I stopped reading at that point.

    I can’t tell whether this article is deliberate mendacity in service of the Republican project of destroying the professional civil service, or is merely the mind-boggling naivete of someone who has been embalmed so thoroughly in “originalism” that she believes 18th-century modes of government to be Divine Writ. Either way, however, I would not recommend that anyone waste their time on this.

    Reply

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