Appointments Clause, antidiscrimination law, and principal officers

Volokh, Eugene VOLOKH at
Fri Aug 12 19:03:14 PDT 2005

    To focus on a small corner of Sandy's question, would the
Appointments Clause give the President the unconditional right to select
whatever principal officers he prefers, with no interference from
Congressional legislation?  (I set aside any equal-protection
constraints, which I take it wouldn't apply as to age discrimination.)
Naturally, the Senate would also have the right to implement its own
preferences -- including antidiscrimination rules -- through its
advise-and-consent power.  But normal legislation (and its normal
judicial enforcement) would be just inapplicable to the selection of
principal officers.

	-----Original Message-----
	From: conlawprof-bounces at
[mailto:conlawprof-bounces at] On Behalf Of Sanford Levinson
	Sent: Friday, August 12, 2005 5:05 PM
	To: Sanford Levinson; conlawprof at
	Subject: A random thought about age discrimination
	As I was driving home this afternoon, I started thinking some
more about Ted Olson's "ineligibility" to be nominated because he is
"too old" at 64.  If a private company refused to consider him for a job
for which he is obviously well qualified, would they run afoul of the
age discrimination Act?  (Isn't it the case that Olson, from a
non-political perspective, is obviously more qualified than Roberts?)  I
assume that the Act doesn't apply to the President, or, indeed, to
anyone else in a political position, but why exactly not?  And, morally
if not legally, isn't age discrimination as odious when engaged in by a
president as when engaged in by a business?  Or, to reverse the
questoni, if it's perfectly all right for pols (and, sub rosa,
universities) to engage in age discrimination, then why do we care so
much, if at all, if business does it?

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