Confirmation logjam

[Eastman, John]

Some replies to William Rich below.

 

 

-----Original Message-----
From: William D Rich [mailto:rich at UAKRON.EDU] 
Sent: Thursday, October 31, 2002 12:08 PM
To: CONLAWPROF at listserv.ucla.edu
Subject: Re: Confirmation logjam

 

I hesitate to return to the relatively mundane question of the meaning
of the Appointments Clause in the midst of a discussion that has moved
on to lofty questions such as what constitutes authoritarianism, and I
apologize for taking so long to respond, but . . .

At 03:16 PM 10/21/2002, Eastman, John wrote:

1.      Public ministers did not mean heads of departments.   Alan Ides,
William Rich, and David Cruz are right to point out that the parallel
use of the phrase in Article III has been interpreted to be limited to
foreign ministers, and in my haste to reply to the earlier messages I
did not take that into account.  As a pure textual matter, though, that
conclusion is not self-evident.  Public Ministers was often used in both
senses as in foreign minister, but also as in Minister of State, which
referred to the heads of the major departments, and when only one or the
other was meant, often (though not always, see Fed. 84) the additional
adjective was used.   Fed. 20, for example, refers to foreign ministers
.  In Fed. 69, discussing the President s power to receive ambassadors
and other public ministers, the phrase clearly refers only to foreign
ministers, but even then, the word foreign is affixed by Hamilton in the
discussion.  Fed. 16, on the other hand, uses ministers to refer to both
federal and state executive officers.

It's not clear to me from this, and I'd like to know, whether John
Eastman continues to adhere to his positions (1) that the enumeration of
ambassadors, other public ministers, consuls, and judges of the supreme
court was intended to define the set of principal officers; and (2) that
the phrase "other public ministers" was intended to include the heads of
executive departments.

If so, I'd be interested to hear what he makes of the fact that, under
the Articles of Confederation, the power to appoint ambassadors and
judges was vested in the Congress.  Might not those officers have been
mentioned in the Appointments Clause in order to make it clear that
under the new constitution it would be the President, not the Congress,
who would appoint ambassadors and judges?  

Just about everything was vested in Congress under the Articles.  I
don't think this addresses the point at issue here.

As to "other public ministers," I'd be interested in John Eastman's
specific response to Madison's statement in Federalist 42 to the effect
that the "other public ministers" language was inserted to provide for
presidential appointment of lower (than ambassador) grades of embassy
personnel.

I don't read Federalist 42 as standing for the proposition that "other
public ministers" referred exclusively to foreign ministers.  I concede
that the parallel language in Article III has been interpreted that way,
but there may well be good reason for treating the phrase more narrowly
(or differently) for purposes of judicial jurisdiction than for purposes
of Presidential appointment.  We must already interpret the clauses
differently to avoid absurdity.  The "ministers" mentioned in Article II
simply cannot include the foreign ministers covered by Article III - the
President simply doesn't appoint the latter.  Treating the Article II
language to include heads of Departments would no more invoke the
original jurisdiction of the Supreme Court than would U.S.-appointed
foreign ministers.

1.      The appointment of Department Heads is only referred to
elsewhere in the Constitution, not provided for (Rich): Which other
officers are otherwise provided for in the Constitution?  Senators (or
at least Senators being appointed to fill vacancies until they can be
chosen by the state legislature), seem to be the only ones, See Fed. 67,
but we have long not treated Senators and Representatives as Officers of
the United States.  Are there any others?

I agree that Senators and Representatives have long not been treated as
officers of the United States, but I think the term "officer" was not
used in an entirely consistent fashion in the original Constitution.  In
Article I the term "officer" is used to refer to the speaker of the
House of Representatives, who is to be chosen by the members of the
House.  Article I also refers to the Vice President, who presides over
the Senate, as an officer.  Other "officers" of the two houses of
Congress are to be chosen by each house.  "Officers" of the militia are
to be appointed by the states.  In Article II, the term "officer" is
used to refer to members of the executive branch.  In Article VI,
"officer" is used to refer in one instance (the Oath of Office Clause)
to refer to members of the executive and judicial branches, and in
another instance (the No Religious Test Clause) to refer apparently to
the members of all three branches.

Most of these involve the "election" of officers, not the appointment of
officers.  I do agree that Article II's reference to Department Heads as
"principal" officers does not provide for their appointment, but I also
think it significant that they are referred to as "principal" officers,
in contrast to the "inferior" courts reference in Article III.

1.      The mere reference in Article III to inferior courts does not
dispose of the issue, lest department heads also be considered inferior
officers because they are subordinate to the President (Rich):  Well,
Article III specifically uses the word inferior when referring to lower
court judges; Article II specifically uses the word principal when
referring to Department Heads.  In other words, the Constitution itself
has designated some subordinate officers as themselves principal
officers.  I think the textual difference here matters a great deal.

Article III doesn't exactly refer to lower court judges as inferior.  It
refers to lower courts as inferior.  Lower courts are inferior (solely)
in the sense that their decisions are subject to review by the Supreme
Court.  This doesn't necessarily mean that the judges of lower federal
courts are inferior officers within the meaning of the Appointments
Clause.



You're right - Article III refers to "inferior courts," but I presume
that the judges who make up those courts are likewise "inferior"
officers.  Indeed, so closely aligned is court and judge that we often
use the words interchangeably.


As I think about this, I am starting to wonder about the contemporary
usage of the term "principal" to refer to all those officers who are not
"inferior" within the meaning of the Appointments Clause.  It does seem
to me that according to Article II, each executive department can have
only one principal officer.  ("The President . . . may require the
opinion, in writing, of the principal officer in each of the executive
departments. . . ."  (emphasis added))  If all officers are either
principal or inferior, then only the head of a department, not any of
his or her subordinates, is a principal officer.  This doesn't square
with the Supreme Court's interpretation of the Appointments Clause in
Morrison v. Olson, under which I assume that a U.S. Attorney is a
principal (that is, not an inferior) officer.  Surely the Solicitor
General is not an inferior officer under the reasoning of the Court in
Morrison v. Olson.  The word "principal," however, is not used in the
Appointments Clause.  As a textual matter, it is entirely possible that
an officer could be neither the principal officer of a department (i.e.,
it's head) nor an inferior officer for purposes of the Appointments
Clause.



As a purely textual matter, I think the opposite is true.  The list of
principal officers, for whom the default mechanism of Presidential
appointment and Senate confirmation is mandated, is small.  That the
default has been kept in place for a significant number of other
officers because of their importance does not render them anything other
than "inferior" officers, in the Constitutional sense.  Morrison
suggests otherwise, of course, but the actual holding of the case is
certainly consistent with a more narrow list of "principal" officers.


I would also be interested in John Eastman's response to what I take to
be Jeff Renz's point:  that interpreting "inferior officers" in the
Appointments Clause to include lower federal court judges would result
in the seeming anomaly of an inferior officer (a lower federal court
judge) having the power (if Congress so legislates) to appoint another
inferior officer.  The Appointments Clause, after all, authorizes the
Congress to vest the power to appoint inferior officers in "the courts
of law" (plural), which must include the lower federal courts.



I don't see why this is an anomaly.  Appellate courts could appoint
district court judges, who in turn could appoint bankruptcy judges or
magistrate judges, etc.  Department Secretaries could appoint their
deputies and assistants.  The whole matter is still subject to a strong
political check - Congress delegating this power in the first place, and
not re-taking it should its exercise be abused.  I do think there might
be a problem should Congress vest the appointment of, say, the Secretary
of Defense in the Eastern District of Virginia, but on structural
separation of powers grounds, not based on the text of the appointments
clause itself.

--John Eastman


Bill Rich
University of Akron Law School

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