Written by: Charles Dresser

With a new presidential administration, one may be curious to know how to distinguish between non-officer employees, inferior officers, and superior officers, all of which must be appointed differently?

Appointments Clause

The Appointments Clause, Art. II, § 2, cl. 2 of the Constitution, authorizes the President to “nominate, and by and with the Advice and Consent of the Senate, . . . appoint . . . all other Officers of the United States, whose Appointments are not herein otherwise provided for”; Art. II, § 2, cl. 2 allows Congress to “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.”

Employees, Inferior Officers, and Superior Officers

As shown above, the Constitution mentions two types of officers of the United States, (1) inferior officers, which the President, the Judiciary, or Heads of Departments (within the Executive branch) may appoint; and (2) superior officers, which must be appointed by the President with the consent of the Senate. A third type of government official is an employee.

Employees

An employee must either (1) have a temporary position; or (2) have a position that lacks significant authority. An officer requires the position be permanent rather than temporary; for instance, in U.S. v. Germaine, the Supreme Court held that doctors hired to perform physical exams were not officers but employees because of the temporary nature of their duties. Conversely, the Supreme Court held, in Freytag v. Commissioner, that special trial judges, who were appointed for life, were (inferior) officers. Additionally, officers, when compared to employees, will possess “significant authority.” The significant authority test is rooted, in Buckley v. Valeo, where members of Federal Elections Commission (initially) appointed by Congress were found to be officers and, as a result, were unconstitutionally appointed, in view of the Appointments Clause. In deciding that the commissioners were officers the court considered their discretion in administering and enforcing the law. The court held that the commissioners, thus, possess significant authority beyond that of an employee.

Inferior Officers

Unlike an employee, an inferior officer must have (1) a permanent position; and (2) significant authority; the inferior officer must also have a superior officer, other than the President; “inferior” denotes a relationship with a superior.[1] Other factors that weigh in favor of a finding of inferior officer include (1) a constrained role which lacks the capacity to make policy decisions; (2) a limited jurisdiction; (3) a limited tenure; (4) the lack of authority to render final decisions; and (5) removability from office.[2]

Superior Officers

Finally, a superior officer must lack a superior other than the President. In his concurrence in the judgment in Edmund v. U.S., Justice Soutermade the helpful (if tautological) assertion that “one who has no superior is not an inferior officer.” Factors that weigh in favor of a finding of superior officer include (1) a role which includes the capacity to make policy decisions, see Myers v. U.S. (C.J. Taft “as part of his executive powers [the President] should select those who were to act for him under his direction”); (2) a general jurisdiction; (3) an unlimited tenure; (4) the authority to render final decisions; and (5) removability from office only by the President or through impeachment.[3]

The final issue is how are administrative law judges classified according to Appointments Clause jurisprudence?

In Lucia v. Securities & Exchange Commission, the Supreme Court held that administrative law judges are inferior officers, citing their holding in Freytag v. Commissioner where the court found a similar judge, special trial judge for Tax Court, to be an inferior officer.[4] In Lucia, the court found that administrative law judges have a permanent position and significant authority, like the special trial judges of Freytag, which includes all of the powers required to conduct a trial.[5] Furthermore, in Lucia, administrative law judges were also considered as potentially able to render a final opinion, where the SEC declines to review their decision.[6]

Accordingly, administrative law judges are inferior officers.

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[1] Edmund v. U.S.

[2] Morrison v. Olson, (quoting Edmund v. U.S.).

[3] Id.

[4] Id. at 199.

[5] Id. at 201–02.

[6] Id. at 203.