Power to Appoint Lesser Officers

                    The topic of discussion for this Constitution Monday comes from Article II, Section 2, Clause 2:  "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."  This provision in the Constitution of the United States allows Congress to delegate the responsibility of appointing people to less important governmental positions to the President, judges, or department heads.  This clause is known as the "Appointments Clause" or the "Excepting Clause."

                    "J. Edgar Hoover's appointment as director of the Federal Bureau of Investigation came through the Attorney General because this appointment was considered one of the lesser offices.  However, by the time the next director was appointed, the work of the FBI had become so important that the Congress required a confirmation with the advice and consent of the Senate."  (See The Making of America - The Substance and Meaning of the Constitution, 557.)

                    Douglas Cox at The Heritage Foundation explained that "The appointment power has become one of the chief powers of the President" and this clause "greatly expands the scope of the appointment power beyond the restrictions of Senate consent."  He wrote that this clause "divides constitutional officers into two classes:  principle officers … and inferior officers…. 

                    "Significantly, Congress itself may not exercise the appointment power; its functions are limited to the Senate's role in advice and consent, and to deciding whether to vest a direct appointment power over a given office in the President , a Head of Department, or the Courts of Law.  The Framers were particularly concerned that Congress might seek to exercise the appointment power and fill offices with their supporters, to the derogation of the President's control over the executive branch.  The Appointments Clause thus functions as a restraint on Congress and as an important structural element in the separation of powers.  Attempts by Congress to circumvent the Appointments Clause, either by making appointments directly, or through devices such as `unilaterally appointing an incumbent to a new and distinct office' under the guise of legislating new duties for an existing office, have been rebuffed by the courts….

                    "As an initial matter, most government employees are not officers and thus are not subject to the Appointments Clause.  In Buckley v. Valeo, the Supreme Court held that only those appointees `exercising significant authority pursuant to the laws of the United States' are `Officers of the United States,' and consequently it is only those who exercise such `significant authority' who must be appointed by a mechanism set forth in the Appointments Clause.

                    "The Framers did not define the line between principal officers and inferior officers, and the Court has been content to approach the analysis on a case-by-case basis rather than through a definitive test…."  (See The Heritage Guide to the Constitution, p. 214.)