Category: Appointments and Removal

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The Purposes of the Recess Appointments Clause

At first blush, the purpose of the Recess Appointments Clause seems rather obvious- it enables the President to fill offices temporarily when the Senate is not available to provide its advice and consent with regard to a permanent appointment. As Professor Michael Herz observes, the RAC’s purpose seems “sensible, straightforward, and unquestioned.” Yet it may be beneficial to spell out its purposes a little more precisely.

One purpose of the RAC is clearly to keep important offices filled when the public good so requires. As Hamilton wrote in Federalist No. 67, “as vacancies might happen in [the Senate’s] recess, which it might be necessary for the public service to fill without delay, [the RAC] is evidently intently intended to authorize the President, singly, to make temporary appointments ‘during the recess of the Senate, by granting commissions which shall expire at the end of their next session.’”

This purpose is the one stressed by those who urge a broad reading of the RAC. It is worth noting, however, that the Framers did not give the President the power to fill any vacancy when there was an urgent need. The President’s power is limited both as to which vacancies he may fill (ie, those that “may happen during the recess of the Senate”) and as to the duration of the commission that he grants (ie, until the expiration of the Senate’s “next session”). The Framers could have given the President the power to fill all vacancies until such time as a permanent appointment was made, but they did not do so.

A second purpose of the RAC appears to be to provide a clear and objective rule as to when the President may fill vacancies. The President might have been given the power to fill vacancies only where “necessary,” or on “extraordinary occasions,” or “where required by the public good.” But the President’s power is not qualified by any such discretionary judgments; instead, it is bounded by objective factors (or factors that would have seemed objective from the Framers’ perspective). In other words, as Professor Dworkin might put it, the RAC provides a rule, rather than a principle, to guide presidential action.

The first and second purposes imply a third purpose of the RAC- namely to supplement, but not supplant, the primary appointment method set forth in the Appointments Clause. The Framers must have anticipated that there would be situations in which the RAC did not authorize the President to fill vacancies, despite an urgent need, yet they chose to rely on advice and consent (or supplemental statutory authority) to address those situations. Perhaps this reflected a naïve assumption that the Senate would always act with dispatch when circumstances warranted, but is seems more likely that the Framers were willing to bear some risk of unfilled offices in order to protect the primacy of the advice and consent process.

However, because advice and consent appointment requires the cooperation of both the President and the Senate, the connection between any particular interpretation of the RAC and advancing this third purpose is somewhat obscure. A broad interpretation of the RAC may encourage the President to circumvent advice and consent altogether, or it may cause him to be less interested in listening to the Senate’s advice or nominating someone who could easily secure the Senate’s consent. On the other hand, a narrow interpretation of the RAC may discourage the Senate from acting promptly on the President’s nominations, or from giving them appropriate deference. But even this isn’t clear- a narrow RAC could arguably force the Senate to act more responsibly.

This calculus is difficult even if one accepts the widespread view that the Constitution mandates a certain code of conduct by the Senate in response to the President’s nominations. Under this view, the Senate ought to give significant deference to the President’s nominees (or possibly just non-judicial nominees) and each nominee is entitled to an up or down vote within a reasonable period of time.

This view may well be correct, but it is not obviously so. The Appointments Clause does not actually say how the Senate is to exercise its advice and consent function. It does not say that the Senate is required to hold a vote in order to signify its consent, nor that such a vote must be by a simple majority. It does not say that the vote must be held within a certain period of time. It does not say that all nominees (executive, judicial and independent agency) need to be treated in the same fashion. Finally, it says nothing about how the Senate is to provide “advice” on nominees and the relationship, if any, between the Senate’s advice and its consent. (For differing perspectives on these issues, see this exchange between Professors Larry Sollum and Michael Rappaport).

In short, interpreting the RAC in accordance with its purposes is not as simple and straightforward as it might seem. But those purposes provide some guidance in evaluating possible interpretations of the RAC, as I shall discuss in future posts.

 

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The Recess Appointments Clause, the Civil War Congress and Congressional “Acquiescence”

When we left the Recess Appointments Clause in the mid-19th century (for earlier posts, see here, here and here), the executive branch had embraced the proposition that a vacancy “may happen” in the recess of the Senate even though it first arose while the Senate was in session. The legislative branch had not accepted this position, but had not clearly rejected it either.

With regard to original vacancies, the situation was reversed. The Senate was understood to have rejected the use of the RAC to fill original vacancies, while the executive branch, to the extent that it had addressed the issue, seemed to have accepted the Senate’s position.

Neither branch, as far as I know, had directly addressed the lurking issue of whether Congress by legislation could change the baseline RAC rules. Presumably Congress may not regulate (or at least not eliminate) the core RAC power of temporarily filling vacancies that arise during the Senate’s recess. But can Congress legislate around the penumbral edges of the RAC?

For example, can Congress legislatively define the circumstances in which it would be proper for the President to fill a vacancy that arose before the recess in question began? Could it prohibit the President from filling the vacancy if he failed to submit a timely nomination while the Senate was in session? Could it prohibit the President from filling a vacancy that arose before the Senate session that preceded the recess? Could it prohibit successive uses of the RAC for the same vacancy? These questions remained (and still remain) open, but at this point Congress had not attempted to use its legislative power to curtail the President’s use of the RAC.

On the other hand, it seems to have been assumed that Congress could supplement the President’s RAC powers. As had been noted by the Senate Committee on Military Affairs in 1822, there had been “many instances” where Congress had created new offices and expressly delegated to the President the power to fill them during the recess. A statute enacted in 1792 allowed the President to fill vacancies, whether or not during the recess, in the offices of the Secretaries of State, Treasury and War. This clearly gave the President power that he would not have under the RAC. It appears that no one questioned Congress’s authority to bestow such powers on the President.

Such equilibrium as existed, however, was upset in the second half of the 19th century. In 1855, for example, Attorney General Cushing questioned the proposition that newly created statutory offices could not be filled using the RAC. Because he was addressing the issue of filling diplomatic and consular offices, Cushing relied primarily on the idea that these were constitutional offices that could be created by the President, rather than statutory offices (similar to the argument made by Bibb and Horsey in 1814). Nevertheless, Cushing stated that “I . . . cannot allow myself to think that, even if these were statute offices, and the public service should require any one of them to be filled during the recess, it could not constitutionally be done.” 7 Op. Atty Gen. 186, 225 (1855).

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The Recess Appointments Clause, Original Vacancies and Attorney General Wirt

As discussed in my prior post on this subject, it seems to have been the prevailing view in the 1814 Senate that the President could not use the Recess Appointments Clause to fill a newly created statutory office, absent explicit authority in the law to do so. This view could rest on three different grounds. First, it might be argued that a newly created office isn’t “vacant” because the term “vacancy” implies that the office has previously been filled. Second, if a newly created office is considered vacant, the vacancy may be said to happen when the statute creating the office becomes law, which will normally be when Congress is in session. Finally, it may thought that any vacancy in an newly created office doesn’t “happen” at all because it is not caused by accidental circumstances like death or resignation.

Many years before the 1814 debate, Alexander Hamilton stated that the RAC was inapplicable to newly created offices on both the first and third grounds. In 1796, Hamilton advised President Washington that the RAC could not be used to create and fill a new diplomatic position during the recess of the Senate. See David Currie, The Constitution in Congress: The Federalist Period 1789-1801 154 n. 168 (1997). In a 1799 letter to the Secretary of War, Hamilton reiterated his view that “Vacancy is a relative term, and presupposes that the Office has been once filled.” Id. He also argued that “the phrase ‘which may have happened’ serves to confirm this construction” because “it implies casualty- and denotes such Offices as having been once filled, have become vacant by accidental circumstances.” See Michael Rappaport, The Original Meaning of the Recess Appointments Clause 31-32 (2005).

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The Recess Appointments Clause and the War of 1812

To continue our discussion of the Recess Appointments Clause, I would like to revisit a debate that took place on the Senate floor in March 1814. It concerned actions taken by President Madison earlier that year, while the Senate was in recess. Having received an offer from Czar Alexander of Russia to help mediate an end to the War of 1812, Madison used his powers under the RAC to name three envoys (John Quincy Adams, Albert Gallatin and James Bayard) to conduct negotiations on behalf of the United States.

When Congress returned, Senator Gore of Massachusetts introduced a resolution that declared Madison’s actions to be unconstitutional. The resolution began:

The President of the United States having by the Constitution power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.

RESOLVED, That, in the opinion of the Senate, no such vacancy can happen in any office not before full.

Gore’s argument focused on the words “which may happen” in the RAC. He acknowledged that a newly created office might be said to be “vacant” and that “[a] vacancy may be said to exist in such office, immediately after its creation.” However, “for a vacancy to happen at any time in an office, that office must have been full at some time previous to the period when it did happen; for a vacancy to happen during the recess of the Senate, the office must have been full during their session prior to, and at the commencement of their recess.” (emphasis added). Since the envoy positions given to Adams, Gallatin and Bayard had never been filled previously, no vacancy could have “happened” in these offices, and thus the RAC was not triggered.

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So About that Recess Appointments Clause

Article II, §2, cl. 3 of the Constitution (the “Recess Appointments Clause” or “RAC”) provides that “[t]he President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the end of their next Session.”

The Constitution requires that Congress “assemble” at least once a year. Under the 20th Amendment, Congress assembles on January 3, unless a different day is established by law. This begins a “session” of Congress, which lasts until it adjourns sine die or until the session expires automatically by the commencement of a new session in the next year. Normally Congress holds one session per year; thus, one would typically refer to a bill or report as having occurred in either the First or Second Session of a particular Congress (eg, 110th Congress, 2d Sess.). However, nothing prohibits holding more than one session per year, and on occasion there have been Congresses that have held more than two sessions (indeed, the first Congress held three sessions).

According to the January 3, 2012 Congressional Daily Digest: “The Senate met in pro forma session to convene the second session of the 112th Congress at 12:01:32 p.m., and adjourned at 12:02:13 p.m. until 11 a.m., on Friday, January 6, 2012.” So after “assembling” for nearly a full second [Update: as an observant reader points out, that should be nearly a full minute- 41 seconds in fact], the Senate adjourned for 2 days, 22 hours, 59 minutes, and 57.87 seconds. (Hope you are taking notes- this could be on the exam).

On January 4, President Obama made four appointments pursuant to the Recess Appointments Clause. Three of them were to the National Labor Relations Board (NLRB), and one was the director of the new Consumer Financial Protection Bureau (CFPB).

Depending on whom you ask, these actions were clearly constitutional, clearly unconstitutional, or somewhere in between. Most commentators have focused on the question of whether the Senate was in “recess” at the time the appointments were made. Sometimes this question gets confused with whether the Senate was “adjourned” or “in session,” but these questions are more easily answered. The Senate was certainly adjourned on January 4 (then, again, the Senate is adjourned for at least part of virtually every day). Whether the Senate was “in session” depends on whether one is using this phrase as simply the converse of being adjourned (as it often colloquially used) or whether one is asking if January 4 was “during the Session of Congress” (the phrase used in Article I, section 5, cl. 4). If one means the former, the answer is no; if the latter, the answer is yes because the second session of the 112th Congress convened on January 3.

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Recess Games

           The Obama administration announced this week that the President will give a recess appointment to Donald Berwick to serve as administrator of the Centers for Medicare and Medicaid Services.  The appointment will come during the Senate’s current eleven and a half day adjournment for the Independence Day holiday. 

            Berwick was nominated for the position in April, but the Senate Finance Committee has yet to schedule a hearing on the nomination.  The recess appointment was denounced not only by Senate Republicans, but by Committee Chair Max Baucus (D-Mont.), who stated: “Senate confirmation of presidential appointees is an essential process prescribed by the Constitution that serves as a check on executive power and protects Montanans and all Americans by ensuring that crucial questions are asked of the nominee — and answered.” 

            The Recess Appointments Clause (U.S. Const., art. II, sect. 2, cl. 3) provides: “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”  This provision raises two basic interpretative issues: (1) what constitutes “the recess” of the Senate referred to in the clause? and (2) what does it mean for a vacancy to “happen during” such a recess? 

            A number of legal scholars have argued that “the recess” referred to in the clause is the recess between sessions of Congress, which normally occurs only once a year.  The intrasession periods of adjournment are not recesses within the meaning of the clause, they argue, and the President has no constitutional power to recess appoint anyone during those periods.  In addition, some scholars argue that a recess appointment can only be made if the vacancy has arisen during that recess.  A vacancy that has occurred earlier did not “happen during” that recess, and therefore is not eligible for a recess appointment.  Professor Michael Rappaport laid out these two arguments in his article, The Original Meaning of the Recess Appointments Clause, 52 UCLA L. Rev. 1487 (2005).   

            If either of these arguments is correct, President Obama’s appointment of Berwick is unconstitutional.  I will leave consideration of the merits of these arguments for another day.  For present purposes, I would just note that one of the foremost academic supporters of the Rappaport position is Marty Lederman, formerly a law professor at the Georgetown University Law Center.  Lederman was outspoken in criticizing President Bush’s recess appointments on the grounds that they violated the Recess Appointments Clause as properly interpreted.  Lederman, for example, was on the legal team that filed a brief (on behalf of the late Senator Edward Kennedy) challenging the constitutionality of Bush’s recess appointment of Judge William Pryor to the Eleventh Circuit Court of Appeals. 

            In addition, Lederman criticized Bush’s recess appointments on the grounds that, regardless of whether they complied literally with the Clause, they constituted abuses of the recess appointment power because they were designed for no purpose other than to circumvent the Senate’s advice and consent function.  For example, Lederman argued that recess appointments made during an eleven and a half day Senate adjournment were  obviously not for the purposes intended by the Clause, namely to deal with emergencies where the Senate was unavailable to provide its consent.  Instead, he contended that such appointments “make a mockery of the procedure contemplated in the Appointments Clause” and represented “constitutional cynicism of the highest order.” 

            Lederman now serves as Deputy Assistant Attorney General for the Office of Legal Counsel.  Which naturally raises the question—has he advised Obama that Donald Berwick is unconstitutional?

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Is the Pay Czar Unconstitutional?

           Professor (and former judge) Michael McConnell has written this Wall Street Journal op-ed arguing that Kenneth Feinberg, the “pay czar,” is an officer of the United States and therefore subject to the Appointments Clause.   Under the Appointments Clause, all officers must be appointed by the President, with the advice and consent of the Senate, unless Congress has by law provided for a different method of appointment.  Since Congress has not done so, McConnell contends, Feinberg was unconstitutionally appointed and his decisions regarding executive compensation were without legal authority. 

            This appears to be a very powerful argument.  The authority to cap executive compensation, which was given to the Secretary of the Treasury as part of the TARP legislation, would clearly seem to be the type of significant legal authority that can only be exercised by an officer of the United States.  As I have noted before, officers of the United States have included ministerial officials with little, if any, discretionary authority (eg, deputy postmasters or deputy clerks of court),  It is hard to imagine that the authority to limit private sector compensation, even for a limited group of individuals, would not qualify. 

            I can think of only two plausible arguments that the administration might make in response.  First, it might claim that Feinberg has no authority to act on his own and merely makes recommendations to the Secretary of the Treasury.  However, according to McConnell, Feinberg actually signed orders on executive compensation.  If this be true, it would be very hard to argue that his role is purely advisory, even if his orders were subject to review by the Secretary of the Treasury. 

            Second, the administration might argue that Feinberg’s functions are not “continuing” because they only relate to TARP, which is a temporary program.  The Office of Legal Counsel has opined that an officer of the United States must exercise “continuing” legal authority so that being sent on a special diplomatic mission, for example, is not enough to make one an officer.  I tend to doubt that Feinberg’s role is of such a limited and temporary nature so that he would not qualify as an officer, but there is no bright line test that would enable one to make that judgment with complete confidence. 

            This could be the subject of some interesting litigation.    

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More on White House Czars and the Appointments Clause

            As noted in a prior post , WH Counsel Greg Craig maintains that none of the White House or National Security Council “czars” are officers of the United States within the meaning of the Appointments Clause because they “exercise[] [no] independent authority or sovereign power.”  Instead, Craig argues, they perform solely advisory functions.  For example, he asserts that the “sole function” of the Information Sharing, Central Region, Cybersecurity and WMD Policy “czars” on the NSC staff is “to advise the President, often through recommendations that are formulated by NSC principals and deputies committees.” 

 

            The three constitutional law experts who testified last week before the Senate Judiciary  Subcommittee on the Constitution seemed to share Craig’s general views regarding what constitutes an officer of the United States.  T.J. Halstead of CRS noted “the Supreme Court’s determination that the “strictures of the Appointments Clause only apply to persons exercising ‘significant authority pursuant to the laws of the United States</place /></country-region />.’”  Professor John Harrison of UVA</placename /> Law</placename /> School</placetype /></place /> similarly testified that many persons who work for the federal government do not exercise “significant authority” and therefore are not officers, but mere employees.  Professor Tuan Samahon of Villanova</placename /> Law</placename /> School</placetype /></place /> also adverted to the “significant authority” test as marking the line between officer and non-officer and indicated that “purely advisory positions” are not deemed to be offices within the meaning of the Appointments Clause.  

 

These experts rely largely on the Supreme Court’s decision in Buckley v. Valeo, 424 U.S. 1, 125-26 (1976), as well as the 2007 OLC opinion cited by Craig.  But does Buckley really stand for the proposition that only individuals exercising “significant authority” are officers of the United States?

 

Buckley involved the question of whether the members of the Federal Election Commission were required to be appointed in conformity with the Appointments Clause. The FEC was charged by statute with a number of executive and administrative functions of the sort typically found in administrative agencies, such as engaging in rulemaking, issuing advisory opinions, and filing civil suits to enforce the law.

 

There was no contention in Buckley that the FEC commissioners were functioning as mere employees, rather than as officers. The Court’s entire discussion of this possibility is contained in footnote 162, which states: “’Officers of the United States’ does not include all employees of the United States, but there is no claim made that the Commissioners are employees of the United States rather than officers. Employees are lesser functionaries subordinate to officers of the United States, see Auffmordt v. Hedden, 137 U.S. 310, 327 (1890); United States v. Germaine, 99 U.S. 508 (1879), whereas the Commissioners, appointed for a statutory term, are not subject to the control or direction of any other executive, judicial, or legislative authority.”

 

Neither of the cases cited by the Court, however, involved “employees” in the modern sense. Auffmordt held that a merchant appraiser, selected on a temporary basis by the collector of customs to conduct a reappraisal of particular goods, did not hold an office under the Constitution. Germaine held that a civil surgeon, appointed by the Commissioner of Pensions to make occasional and periodic examinations of pensioners (for which he was paid on a per examination basis), was likewise not an officer. These cases stand for little more than the proposition that a contractor who provides goods or services to the government does not thereby become an officer.

 

It is true that the Buckley Court states that any appointee “exercising significant authority pursuant to the laws of the United States” is an officer of the United Statesand must be appointed in accordance with the Appointments Clause, a formulation that it repeats at several points. But nowhere does the Court state that only individuals exercising “significant authority” qualify as officers, nor does it give any explanation or example (other than the two cases cited above) of what would constitute “insignificant authority” for purposes of the Appointments Clause.

 

The Court did does affirm that Congress can create “offices” in the “generic sense” without requiring that those offices be filled in accordance with the Appointments Clause, but only so long as the occupants “perform duties only in aid of those functions that Congress may carry out by itself, or in an area sufficiently removed from the administration and enforcement of the public law as to permit their being performed by persons not ‘Officers of the United States.’” (emphasis added) Moreover, the Court states that the Framers viewed the concept of “officers of the United States” as “embrac[ing] all appointed officials exercising responsibility under the public laws of the Nation.” These broader formulations suggest that the Court’s observations regarding the exercise of “significant authority” were not intended to mark the precise line between officer and non-officer, but merely to establish that the FEC was well on the officer side of that line.

 

The 2007 OLC opinion, in fact, notes that the “significant authority” phrase used in Buckley “does vary somewhat from the well established historical formulation, but nothing in the Court’s opinion suggests any intention to break with the longstanding understanding of a public office or fashion a new term of art.” OLC points out that the Buckley Court cites with approval several nineteenth century cases that treated “arguably insignificant positions as offices.” As OLC notes, the original understanding of officer included persons holding ministerial offices such as “registers of land offices, masters and mates of revenue cutters, inspectors of customs, deputy collectors of customs, deputy postmasters, and district court clerks.” Accordingly, OLC opines that Buckley merely adopted a “shorthand for the full historical understanding of the essential elements of a public office.”

 

The problem is that this “historical understanding” does not go very far in establishing whether or not White House or NSC officials are officers for purposes of the Appointments Clause. These officials do not have the types of functions that are most typically and obviously associated with being an officer, such as law enforcement, rulemaking or formal military command, but they are certainly nothing like the independent contractors providing commercially available services as in Auffmordt or Germaine.

 

The OLC opinion notes that “[t]he mere authority to advise or inform” does not constitute “delegated sovereign authority” so as to create an office within the meaning of the Appointments Clause. But this observation is rooted in historical examples of advisory or investigative commissions performing functions analogous to congressional committees. See, e.g., Buckley, 424 U.S. at 137 (“Insofar as the powers confided in the [FEC] are essentially of an investigative and informative nature, falling in the same general category as those powers which Congress may delegate to one of its own committees, there can be no question that . . . [the FEC] may exercise them [without complying with the Appointments Clause]”).

 

While WH and NSC officials, including the various “czars,” clearly have advisory functions, it is a bit of a stretch to say that their roles are “purely advisory” or comparable to a commission established to make a report and recommendations on a particular subject. When the Brownlow committee first proposed an expansion of “presidential assistants” in 1937, it described their roles as follows: “These aides would have no power to make decisions or issue instructions in their own right. They would not be interposed between the Presidents and the heads of his departments. They would not be assistant presidents in any sense. Their function would be, when any matter was presented to the President for action affecting any part of the administrative work of the Government, to assist him in obtaining quickly and without delay all pertinent information possessed by any of the executive departments so as to guide him in making his responsible decision; and then . . . ‘to assist him in [informing departments and agencies of the decision]. . . . They would remain in the background, issue no orders, make no decisions, emit no public statements.”

 

It is questionable whether this modest conception of the role of presidential advisors reflected reality even when the Executive Office of the President was formally organized several years later. Brownlow himself described the newly created office as “the institutional realization of administrative management and ‘the effective coordination of the tremendously wide-spread federal machinery.’” These are functions which go beyond merely providing information, advice and recommendations to the President.

 

In any event, there is a significant gulf between the “purely advisory” conception of presidential advisors and the actual role that they have played over the past 70 years. This legal history of the NSC, for example, describes how it has “evolved from a limited advisory council to a vast network of interagency groups that are deeply involved in integrating national security policy development, oversight of implementation, and crisis management.” While the authority and role of the National Security Advisor has differed depending on the administration, it has never been a purely advisory position.

 

It may be true that the National Security Advisor and other WH aides are not supposed to have operational responsibilities or authority. The line between policy making/coordinating and operations, however, may sometimes be less than clear. For example, the 9/11 Commission (a truly advisory body) described how Richard Clarke, who served on the NSC staff as “national coordinator for security, infrastructure protection and counterterrorism,” became the “manager of the U.S. counterterrorism effort.”

 

Even if it is assumed, however, that WH or NSC officials do not exercise operational authority (or that any authority they do exercise is ultra vires), it is by no means clear that their policymaking and coordinating functions are insufficient to qualify them as officers of the United States. One would have to analyze the actual functions and authorities of each WH or NSC “czar” to make such a determination.

 

To take just one example, the report recommending the establishment of a WH “cybersecurity policy official” (popularly referred to as the “cyberczar”) describes that official’s functions “to coordinate the Nation’s cybersecurity-related policies and activities.” Although the cyberczar should have no operational responsibility or authority, the report says, he or she “should harmonize cybersecurity-related policy and technology efforts across the Federal government, ensure that the President’s budget reflects federal priorities for cybersecurity, and develop a legislative agenda.” Moreover, the cyberczar is to serve “as the White House action officer for cyber incident response.”

 

These do not seem like “purely advisory” duties. Indeed, one might argue that the cyberczar’s budgetary responsibilities sound a lot like the “preparatory plans of finance,” described in Federalist No. 72 as one of the key functions of an executive officer.

 

Are these functions nonetheless “sufficiently removed from the administration and enforcement of the public law” to be performed by a non-officer under Buckley? Perhaps. But there is nothing in Buckley or any other controlling precedent to answer the question, which appears to be far murkier than suggested by Craig’s letter.

 

 

 

 

 

 

 

 

 

 

 

 

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Obama’s Czars and the Appointments Clause

           Gregory Craig, counsel to the President, sent a letter to Senator Feingold last week regarding the various “czars” employed by the Obama administration.  Among other things, Craig responds to concerns raised by Senator Collins (my former boss) that some of the positions may violate the Appointments Clause, which provides that 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.” 

            Only “principal” officers of the United States need be appointed with advice and consent of the Senate.  However, all “officers of the United States” need to be appointed in accordance with the Appointments Clause.  Craig, however, evidently denies that any of the czars are officers at all.  This is what he says: 

Moreover, none of the new White House or NSC positions violates the Appointments Clause.  The Constitution requires that “Officers of the United States” be nominated by the President “by and with the Advice and Consent of the Senate.”  U.S. Const. art. II, § 2, cl. 2.  The Department of Justice has concluded, in an opinion drafted during the prior Administration, that a position is a “federal office” if it is “invested by legal authority with a portion of the sovereign powers of the federal government.”  Officers of the United States within the Meaning of the Appointments Clause, 2007 WL 1405459 (Apr. 16, 2007).  As described above, none of the White House or NSC positions identified by Senator Collins exercises any independent authority or sovereign power.  Their one and only role is to advise the President.  Similarly, I am confident that none of the agency positions identified exercises any authority or sovereign power independent of their respective Senate-confirmed officials.  In order to resolve the issue definitively, however, I have asked the general counsels of the various agencies at issue—the Departments of State, Treasury, Homeland Security, and Labor, as well as the EPA—to respond directly to this concern. 

            Craig’s position that the White House and National Security czars are not officers raises some difficult and unsettled issues (about which more in a future post).  His claim that none of the agency czars are officers, however, seems untenable.  For example, the     OLC opinion on which Craig relies makes clear that individuals engaging in diplomatic functions, such as “[t]he actual conduct of foreign negotiations,” hold federal offices within the meaning of the Appointments Clause.  See OLC Opinion at 15-17.  The OLC notes that “the power of a diplomatic office is peculiarly delegated directly by the President, who makes such officers ‘the unquestionable representatives pro tanto of the sovereignty of the United States.’”  In fact, it points out that ‘[t]o the Founders, the proper exercise of such sovereign authority by officers abroad was critical for the security of the Nation,” as illustrated by the fact that the Foreign Emoluments Clause (art. I, § 9, cl. 8-) “was adopted with particular reference to preventing foreign corruption of such officers.” 

            These views would seem to contradict Craig’s contention that certain diplomatic czars are not officers subject to the Appointments Clause.  For example, Craig mentions Todd Stern (no relation), who serves as the “Special Envoy for Climate Change.”  According to the State Department’s website, in this position Stern “plays a central role in developing the U.S. international policy on climate and is the Administration’s chief climate negotiator, representing the United States internationally at the Ministerial level in all bilateral and multilateral negotiations regarding climate change.”  This position would seem to fall squarely within OLC’s definition of a federal office subject to the Appointments Clause. 

            It will be interesting to hear whether the State Department Legal Adviser agrees that Stern is not an officer of the United States.  One would also expect that OLC would be asked for its views on this matter.