Among the structural provisions contained in the Constitution, the Appointments Clause seems at first blush to be the one least susceptible to interpretive confusion. The Clause provides that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . all [ ] Officers of the United States” whose appointments are not otherwise provided for in the Constitution, with the exception of “inferior Officers,” whose appointment Congress may vest “in the President alone, in the Courts of Law, or in the Heads of Departments.” U.S. Const. art. II, § 2, cl. 2. The Clause thus distinguishes between two sets of “officers”—“principals” and “inferiors”—specifying a single person (the President, with Senate consent) who may appoint the former and three bodies (the President, Courts of Law, and Heads of Departments) who may appoint the latter. Nonetheless, the Court and the political branches have long understood the Clause not to apply to another group of government officials—now called “employees”—who may be appointed in ways other than those set forth in the Appointments Clause. The Court has said the dividing line between “inferior officers” and “employees” depends on whether the official exercises “significant authority” under federal law, Buckley v. Valeo, 424 U.S. 1, 126 (1976); Freytag v. Commissioner of Internal Revenue, 501 U.S. 868, 882 (1991); Edmond v. United States, 520 U.S. 651, 662 (1997)—a test that Professor Jennifer Mascott has recently criticized as inconsistent with the original understanding of the Clause.


Aditya Bamzai, The Constitutional Status of “Deputy” Officers, Yale Journal of Regulation: Notice & Comment (2018).