Smithsonian, Appointments Clause, and Incompatibility Clause

[J. Noble]

At 3:08 PM -0700 4/7/06, Volokh, Eugene wrote:
>	John raises a very interesting First Amendment question, but I
>wanted to ask a different constitutional question (and it is sincerely a
>question, to which there may well be a settled and obvious answer that I
>just don't know, since I haven't studied these issues much):  If the
>Smithsonian is indeed a governmental or governmentalish organization,
>then wouldn't the Board of Regents staffing violate the provision that
>"no Person holding any Office under the United States, shall be a Member
>of either House during his Continuance in Office"?

I think the short answer is that "Each house shall be the judge of 
the ... qualifications of its own members," and there are 
Congressional precedents for exempting positions that are unpaid, or 
at least not paid out of funds appropriated by Congress.

>Also, would a
>statutory provision mandating that certain offices on the Board of
>Regents be held by particular statutorily designated officials violate
>the Appointments Clause, since it would be tantamount to a Congressional
>appointment of executive officers?

If Congress can establish qualifications for the offices that it 
creates, I suppose the issue is how tightly Congress can define the 
qualifications before it intrudes on the appointment authority. But 
consider:

Congress establishes an office -- Commissioner for the Investigation 
of Obscure Constitutional Concerns, who shall be appointed by the 
President and confirmed by the Senate and "shall be a professor at 
UCLA named Eugene Volokh." Who has standing to challenge the law if 
the President goes along and the Senate confirms? For that matter, 
what if the President nominates me instead, and the Senate overlooks 
my obvious lack of qualifications and confirms the appointment. Who 
has standing to challenge the appointment as long as I don't do 
anything except sit around thinking about obscure constitutional 
issues?

The other way out is simply definitional. If you aren't appointed by 
the President, you aren't an "officer of the United States." How do 
we identify an officer of the United States other than by his 
presidential appointment? Are there any duties other than those 
specifically given to the President in Article II (and they're 
precious few -- commander-in-chief, granting pardons, making 
treaties, assessing the state of union), that are necessarily within 
the "executive power [that] shall be vested in a President." What is 
the signal nature of "executive power"?  If I recall correctly, 
Buckley v. Valeo struck down a violation of the appointments clause 
that gave the House, Senate, and President, each the right to name 
two people to the FEC. But is there a reason Congress can't create a 
commission to regulate campaign financing, at least if you exclude 
presidential campaigns, that is appointed/hired/elected, or whatever, 
by the House and Senate.

John Noble