Constitutional Framework

Under the Constitution, the president and the Senate share the power to appoint officers of the United States. The division of authority is laid out in the appointments clause as follows:

[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.2

Under that clause, some specified officers—“ambassadors, other public ministers and consuls, judges of the supreme court,” and, implicitly, all officers who would not be considered “inferior officers”—are subject to a three-stage appointment process: nomination, some process by which the Senate can provide advice and consent, and actual appointment. In the cases of offices that are not specifically identified and that are “inferior,” Congress may either make filling them subject to the same process or allow them to be filled by appointment of one of the other three specified authorities: the president, the courts, or department heads.

For the purposes of the clause, what is an officer? Which are “inferior officers”? Regarding the first question, the Supreme Court held, in Buckley v. Valeo, that “any appointee exercising significant authority pursuant to the laws of the United States is an ‘Officer of the United States,’ and must, therefore, be appointed in the manner prescribed” above.3 Under that definition, an officer of the United States might, for example, be contrasted with an appointee who acts only in an advisory capacity to the president.

2  

Article II, Sec. 2, cl. 2.

3  

Buckley v. Valeo, 424 US 1, 126 (1976).



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