Inferior or Principal? The Current Appointments Clause Jurisprudence Just Isn’t Enough
June 10, 2021 by Tina Seideman
The United States needs a clearer guiding framework regarding which Officers are principal and which are inferior. Modern Appointments Clause jurisprudence is, at best, confusing and, at worst, incoherent. This is both the result and cause of sloppy legislative crafting and an overexpanded administrative state, and the Court is reluctant to create a firm rule.
The current lack of definition for what makes an Officer principal or inferior leaves us with fact-specific inquiries and burdensome balancing tests implemented on an ad hoc basis. And while conservative legal scholars and practitioners prefer limiting holdings to a case’s specific facts, they often loathe balancing tests; those who favor balancing tests prefer broader-reaching case decisions. Neither method is exclusively used, so no one is happy. There must be something better.
The purpose of this piece is not to voice an opinion of how the Supreme Court should rule in such cases. (I’m a rising 3L with one semester of Administrative Law under my belt.) This piece is also not my final opinion on this subject, especially as the Court releases opinions from the past term in the coming months (related case I’m watching: United States v. Arthrex, discussed further below). Rather, I aim to highlight the need for more sustainable jurisprudence and/or Congressional guidance on this issue, perhaps challenging some fellow policy-minded lawyers and students to grapple with this topic.
THE LAW AS IT STANDS TODAY
Let’s start where we ought: the Constitution. The Appointments Clause reads in relevant part “[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint… all other Officers of the United States… 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.
The dichotomy created by the Appointments Clause thus asks this question: Is the Officer inferior or not? If so, then Congress can determine how she should be appointed within the stated bounds. If not, then she is assumed to be a “principal” Officer who must be nominated by the President and confirmed by the Senate.
But the case law surrounding the definition of “inferior” and “principal” is murky. Each Supreme Court case addressing this issue is largely limited by its facts, which revolve around the unique roles of and the suite of powers statutorily conferred by Congress to the Officers in question. Seila Law (2020) was about an agency director’s removability; Edmond v. United States (1997) was a case on the judges of the Coast Guard Court of Criminal Appeals; Morrison v. Olson (1988) concerned the powers of the Independent Counsel. Edmond likely has the best guidance, stating that “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” are inferior Officers. Edmond v. United States, 520 U.S. 651, 663 (1997). But it also clearly stated that there was no firm test or “exclusive criterion for distinguishing between principal and inferior officers for Appointments Clause purposes.” Id. at 661. And while Edmond adopted Scalia’s dissent from Morrison, it did not overturn Morrison itself, which adopted a roll-down approach through the job description of the Independent Counsel. So the roll-down approach remains good law. Confused yet?
Take, for example, United States v. Arthrex Inc., Docket No. 19-1434 (which was consolidated with cross-petitions Smith & Nephew Inc. v. Arthrex Inc. and Arthrex Inc. v. Smith & Nephew Inc.) The case was heard this past term, and the question presented relevant to this piece was whether Administrative Patent Judges (APJs) of the U.S. Patent and Trademark Office (USPTO) are principal or inferior Officers. SCOTUSblog.com; https://www.scotusblog.com/case-files/cases/united-states-v-arthrex-inc/. Currently, APJs are appointed by the Secretary of Commerce in consultation with the Director of the USPTO. APJs have a variety of powers, but none that quite align with any precedential cases. Most controversial is perhaps their ability to make final case decisions, though there are ways that the Director and Secretary can guide these outcomes or nullify them.
Guided, or—rather—not, by the vague language of inferiority, the Federal Circuit tried to create a guiding three-part test. The factors it considered were an appointed supervisor’s (1) powers of review and reversal, (2) level of supervision and oversight, and (3) power of removal over the officer in question. Arthrex, Inc. v. Smith & Nephew, Inc., 941 F.3d 1329 (Fed. Cir. 2019). But Edmond eschewed such rigid categorization and definition. So while these may be factors that ought to be considered, this tripartite test makes it too easy.
During oral arguments in Arthrex, Justice Alito asked about a “magic divider” between inferiors and principals. Oral arguments at 31:32, https://www.oyez.org/cases/2020/19-1434. But there isn’t one.
If we want clarity on this area of law, either the Supreme Court can provide a better rubric for grading Officers or Congress needs to clarify its intent when creating Officers. (Or both, but I won’t get greedy.) Neither of these solutions will satisfy everyone and lawsuits will still continue: 1) Officers will still be challenged as inferior or principal under the Court’s established criteria and the authority they wield or 2) the United States will be sued over an act’s unconstitutionality based on Congress’s mislabeling of an Officer and the resulting Appointments Clause violation.
Option 1: The Supreme Court provides clarity in the form of a framework or list of criteria to consider.
A large part of this work is already done. If we look to Morrison and Edmond, for example, we can derive a list of factors to consider: whether the Officer is subject to removal by a higher Executive Branch official; whether their duties, jurisdiction, and tenure are limited; whether the Officer in question is directed and supervised by a principal Officer. These cases also provide descriptions of inferior Officers which satisfy these factors: the duties of the IG in Morrison were sufficiently limited, the Coast Guard Court of Criminal Appeals judges in Edmond were sufficiently overseen by the Judge Advocate General.
Presently, parties in appointment and removal cases (in the form of Officer-definition squabbles) largely use these and other precedential cases to build a framework which fits their own desired outcome, and then they hope the courts buy it. If the Supreme Court lands on a settled framework for analysis, parties and lower courts will use it.
Of course, the next question that the courts will be asked is “How much (authority, oversight) is too much for an inferior? (Or not enough for a principal?)” But I still think that this course of action will likely result in less ad hoc litigation being brought to Courts of Appeals and the Supreme Court. The cases that are brought will be more consistently decided, since there is a guiding framework through which to analyze Officers. Using whatever guiding principles the Supreme Court can distill from its precedent and the Constitution, courts will interpret the will of Congress in creating an inferior or principal Officer based on this framework and provide the appropriate remedy as necessary.
Option 2: The Congress provides clarity when creating Executive Branch roles.
In contrast, this course of action returns the responsibility of wise legislative crafting to Congress. Using again the Arthrex APJ example, I envision affirmative Congressional action to be something like: “The administrative patent judges shall be persons of competent legal knowledge and scientific ability who are [inferior Officers] appointed by the Secretary, in consultation with the Director.” 35 U.S.C. 6(a), modified. In this example, labeling APJs as inferior Officers may be redundant since they are appointed outside the nomination-confirmation process required for principal Officers. But note that the Appointments Clause allows Congress to vest the appointment of inferior Officers in the President too—a Congressional label up front for such appointments could clarify how Congress views the created role within the Executive Branch.
I also think affirmatively labelling Officers as inferior or principal may result in more thoughtful crafting of legislation, even if such labels appear redundant. If a legislative staffer or Member of Congress drafting the act is not willing to boldly assert that an Officer is inferior or principal, that is likely a signal she should revisit the duties of the Officer in question and revise them. This extra consideration allows immediate fixes in the legislation’s wording before litigation bogs down the legal system and could reduce Appointments Clause litigation simply because Congress is forced to think about these things before passing a bill.
Interestingly, the APJ statute already had an Appointments Clause issue brought to light in 2007. APJs were appointed by the USPTO Director (not a Head of Department and therefore unable to appoint even inferior Officers). After a law professor highlighted this unconstitutional appointment in a law review piece, John F. Duffy, Are Administrative Patent Judges Unconstitutional?, 2007 Patently-O Patent L.J. 21, Congress cured the violation by giving the Secretary of Commerce appointment authority. That appointment issue seems like an easy issue spotter a 1L in a Con Law class could see. Would Congressional affirmation that APJs were inferior Officers have triggered some alarm bells among those drafting the bill? I would like to think so.
Option 2 also does not put entire statutes at jeopardy. While some may be concerned based on the current views of several members of the Court toward the severability doctrine, such concerns are likely overblown. (Even the five conservative members of the 2020 Court upheld severability in Seila Law.) Arthrex’s second question presented, though, directly confronts the severability issue. (Whether severing civil service removal protections was an appropriate remedy if the APJs are principal Officers.) Arthrex argued that the entire statute creating APJs should be summarily stricken as unconstitutional. Depending on how the Supreme Court rules in Arthrex, the risk of entire statutory elimination may need to be reevaluated here. Regardless, any risk of a statute’s invalidation should result in Congress thoughtfully writing legislation so as to avoid such appointments clause challenges where possible.
As promised, I have no answer to the Officer-categorization question. It is a question we should be attempting to answer, however, and we shouldn’t reserve these conversations for when an interesting case makes it to the Supreme Court. If our goal is to find a more coherent and stable framework for the Appointments Clause, we must stop settling for ad hoc decisions that debate the minute differences between the roles and responsibilities of Officers. Congress should reclaim its role in responsibly crafting constitutional legislation, and the Supreme Court should provide a better guiding framework through which to analyze these questions.
Catch me reading Law & Leviathan, a new book out by Cass R. Sunstein and Adrian Vermuele, this summer to see how my perspective on this issue, as it relates to the administrative state, may shift.
For comments, questions, or to continue this conversation with the author, please reach out at firstname.lastname@example.org.