"and all other Officers of the United States, whose appointments are not herein otherwise provided for"

marty.lederman at comcast.net marty.lederman at comcast.net
Wed Dec 5 19:55:21 PST 2007


I think I might see where the confusion lies (lay?).  A missing word -- "not":

The "shall be established by law" phrase does modify the "all other officers of the United States" phrase -- because the appointments of those "other officers "are *not* herein otherwise provided for."


 -------------- Original message ----------------------
From: "William Funk" <funk at lclark.edu>
> Marty,
> I understand the difference between principal and inferior officers.  And I
> understand that "other officers" generally refers to those established by
> law (whether principal or inferior).  BUT, the phrase in Article II
> referring to "other officers ... which shall be established by law" cannot
> refer to officers whose appointment is "HEREIN otherwise provided for,"
> meaning provided for in the Constitution itself.  
> Again, what "other officers" (that is, other than Ambassadors, other public
> ministers and consuls and judges of the Supreme Court) are there whose
> appointment is provided for in the Constitution itself.  
> Bill Funk
> Lewis & Clark Law School
> 
> > -----Original Message-----
> > From: marty.lederman at comcast.net [mailto:marty.lederman at comcast.net]
> > Sent: Wednesday, December 05, 2007 6:31 PM
> > To: William Funk; CONLAWPROF at lists.ucla.edu
> > Subject: Re: "and all other Officers of the United States, whose
> > appointments are not herein otherwise provided for"
> > 
> > Not sure I understand the question, Bill.  Article II 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.  The Appointments Clause then goes on to say that
> > Congress may vest the appointment of a subset of such officers -- inferior
> > officers -- in the President alone, in the courts of law, or in the heads
> > of departments.
> > 
> > The listed offices, in other words --  ambassadors, other public ministers
> > and consuls, and judges of the Supreme Court -- must be PAS appointments.
> > All other offices "established by law" are PAS unless (i) they are
> > infreior; and (ii) Congress provides for one of the three alternative
> > means of appointment.
> > 
> > Who are the "other officers" referred to?  Those established by statute.
> > "Law" -- i.e., statutes -- creates all the other, nonenumerated officers.
> > 
> > Perhaps you're asking:  Which federal positions established by law are
> > offices (and thus must be filled in conformity with the AC), and which are
> > not?
> > 
> > For the answer to this question, see section II-B-1 of 20 Op. OLC 124
> > (1996)
> > 
> > 
> >  -------------- Original message ----------------------
> > From: "William Funk" <funk at lclark.edu>
> > > Can anyone help me with respect to this part of Article II, Section 2,
> > > clause 2?  What officers does this refer to?  Where else in the
> > Constitution
> > > is the appointment of officers provided for?
> > >
> > > Bill Funk
> > > Lewis & Clark Law School
> > >
> > >
> > >
> > >
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> 



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