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Recent debates over the constitutionality of Robert Mueller’s appointment as special counsel turn on whether he is a principal or inferior “officer of the United States.” Steven Calabresi contends that Mueller is in fact a principal officer, who, as a result, must be nominated by the president, and confirmed by the Senate. George Conway, writing for Lawfare, counters that Mueller is an inferior officer, who may be appointed by the assistant attorney general—the relevant department head—without Senate confirmation. There may be a third option.
The Supreme Court’s recent decision in Lucia v. SEC explains that if a federal position is only “temporary,” then such a position is likely not an “office of the United States.” Rather, to frame the issue as the court did in Buckley v. Valeo, the position is a mere “employee of the United States.” This understanding of the distinction between “officer” and “employee” relies on a line of cases stretching back to Reconstruction. As a matter of first impression, it would appear that Mueller’s appointment is “temporary.” Therefore, he may not be an “officer of the United States” under the rule in Lucia. More pressingly, language in Justice Elena Kagan’s recent majority opinion in Lucia may have cast doubt on Morrison v. Olson’s definition of an “officer of the United States.” If Lucia is correct on this point (and we think it is), and if Morrison is now incorrect on this point (and we think it is), then Special Counsel Mueller is merely an “employee of the United States.” This post addresses four important questions that stem from this somewhat unexpected development in the law of office and officer.
U.S. v. Hartwell
The modern understanding of the analysis begins with U.S. v. Hartwell. In Hartwell, a clerk in the Treasury Department was charged with embezzlement. The relevant statute applied to an “officer” who was “charged with the safekeeping of the public money.” The defendant claimed that because he was not an “officer,” the indictment was defective. The Supreme Court disagreed and found that he was an “officer.” Justice Noah Swayne, writing for the majority, offered the following definition of an office: “An office is a public station, or employment, conferred by the appointment of government. The term embraces the ideas of tenure, duration, emolument, and duties.”
The court distinguished a “government office” from a “government contract.” “The latter from its nature is necessarily limited in its duration and specific in its objects. The terms agreed upon define the rights and obligations of both parties, and neither may depart from them without the assent of the other.” In Hartwell, the clerk “was appointed by the head of a department within the meaning of the constitutional provision upon the subject of the appointing power.” The court did not expressly connect the term “officer” in the embezzlement statute with the phrase “officer of the United States” in the Appointments Clause. However, the court’s discussion of the appointment being made by the head of the department suggests the two concepts are closely related—rightly so, in our view.
U.S. v. Germaine
The Supreme Court would apply the Hartwell test a decade later in U.S. v. Germaine. In this case, a government surgeon was charged with extortion. Similar to the law at issue in Hartwell, the relevant statute here applied to “[e]very officer of the United States.” This language tracks much more closely with the “officer of the United States” usage in the Appointments Clause. In contrast to Hartwell, which turned on the meaning of “officer,” Germaine turned on whether the surgeon was, in fact, an “officer of the United States.” In his defense, the surgeon contended that because he was not appointed pursuant the Appointments Clause, he could not be an “officer of the United States.” Rather, the argument went, he was merely “an agent or employé working for the government and paid by it.” The Supreme Court agreed with the defendant. Justice Samuel Freeman Miller’s opinion, for a unanimous court, applied Hartwell’s four-factor test:
[T]he term [office] embraces the ideas of tenure, duration, emolument, and duties, and that the latter [that is, the duties] were continuing and permanent, not occasional or temporary. In the case before us, the duties are not continuing and permanent, and they are occasional and intermittent. The surgeon is only to act when called on by the Commissioner of Pensions in some special case, as when some pensioner or claimant of a pension presents himself for examination. He may make fifty of these examinations in a year, or none. He is required to keep no place of business for the public use. He gives no bond and takes no oath, unless by some order of the Commissioner of Pensions of which we are not advised (emphasis added).
Because the position and its duties were not “continuing and permanent,” but rather were “occasional and intermittent,” the surgeon was “not an officer of the United States.” Therefore the indictment was dismissed.
Buckley v. Valeo
Almost a century later, the Supreme Court applied Germaine’s framework in Buckley v. Valeo. Members of the Federal Elections Commission (FEC), the court found, were “officers of the United States” and thus were subject to the Appointments Clause:
We think that the term “Officers of the United States,” as used in Art. II, defined to include “all persons who can be said to hold an office under the government” in United States v. Germaine, is a term intended to have substantive meaning. We think its fair import is that any appointee exercising significant authority pursuant to the laws of the United States is an “Officer of the United States,” and must, therefore, be appointed in the manner prescribed by § 2, cl. 2, of that Article. If “all persons who can be said to hold an office under the government about to be established under the Constitution were intended to be included within one or the other of these modes of appointment,” United States v. Germaine, it is difficult to see how the members of the Commission may escape inclusion.
Germaine, and Hartwell before it, were not direct interpretations of Article II’s definition of “officer of the United States.” Rather, those cases interpreted the phrase “officer” and “officer of the United States” in statutes. However, Buckley was a direct interpretation of Article II’s definition of “officer of the United States.” And, it cites the interpretations from Germaine. The Buckley court’s analysis, however, does not focus on the four factors identified in Germaine and Hartwell: “tenure, duration, emolument, and duties.” Instead, it focuses on whether the “appointee exercis[es] significant authority pursuant to the laws of the United States.”
Additionally, in a footnote, Buckley’s per curiam opinion also cites Germaine to highlight the distinction between “officers of the United States” and “employees of the United States.” The latter “are lesser functionaries subordinate to officers of the United States,” whereas the former—that is, FEC members—are “appointed for a statutory term, are not subject to the control or direction of any other executive, judicial, or legislative authority.” Again, this footnote does not expressly refer to Germaine’s four factors, though the phrase “statutory term” suggests some degree of continuity from one office-holder to the next. A temporary position which terminates when that purpose is achieved, would not fit in Buckley’s rubric as to what constitutes an “officer of the United States” per the Appointments Clause.
Morrison v. Olson
Fast-forward another decade to Morrison v. Olson. Chief Justice William Rehnquist’s majority opinion once again cites Germaine for the proposition that “[t]he Constitution for purposes of appointment . . . divides all its officers [of the United States] into two classes.” In the very same paragraph, the Supreme Court states, “[t]he initial question is, accordingly, whether appellant is an ‘inferior’ or a ‘principal’ officer.” However, in a footnote, Chief Justice Rehnquist adds, “It is clear that appellant is an ‘officer’ of the United States, not an ‘employee.’”
The incongruity between Morrison and Buckley becomes apparent when the Morrison court expressly relied on three of the four Germaine factors—“tenure, duration . . . and duties”—to help draw the line “between ‘inferior’ and ‘principal’ officers.” (Much to our chagrin, Chief Justice Rehnquist skips over the third factor, “emoluments,” perhaps because he simply assumed Independent Counsel Alexia Morrison had statutory compensation.) But Germaine’s four-factor test had nothing to do with whether a position was held by an was “inferior” or “principal” officer. Germaine concerned the distinction between an “officer of the United States” and an “employee of the United States.” That’s precisely how Buckley cited it: “‘Officers of the United States’ does not include all employees of the United States, but there is no claim made that the Commissioners are employees of the United States, rather than officers” (emphasis added). Chief Justice Rehnquist appears not to have been troubled by this incongruity: He simply applied Germaine’s factors to find that Morrison was an inferior officer.
First, with respect to tenure, the Morrison court observed that “the fact that [ the Independent Counsel] can be removed by the Attorney General indicates that she is to some degree ‘inferior’ in rank and authority.” Second, with respect to duration, the court noted that “the office of independent counsel is ‘temporary’ in the sense that an independent counsel is appointed essentially to accomplish a single task, and when that task is over the office is terminated, either by the counsel herself or by action of the Special Division.” The chief justice added that “[u]nlike other prosecutors, appellant has no ongoing responsibilities that extend beyond the accomplishment of the mission that she was appointed for and authorized by the Special Division to undertake.” Third, with respect to duties, the court explained that the independent counsel “is empowered by the Act to perform only certain, limited duties.” Specifically, she “can only act within the scope of the jurisdiction that has been granted by the Special Division pursuant to a request by the Attorney General.” The court concluded, “[i]n our view, these factors relating to the ‘ideas of tenure, duration . . . and duties’ of the independent counsel, Germaine, are sufficient to establish that [Morrison] is an ‘inferior’ officer in the constitutional sense.”
Justice Antonin Scalia’s dissent pounces on how the majority opinion applied the Germaine test. First, he questioned why these factors “even if applied correctly to the facts of Morrison—are determinative of the question of inferior officer status.” Justice Scalia dismisses the statements from Germaine (and, by extension, Hartwell) as “dictum in a case where the distinguishing characteristics of inferior officers versus superior officers were in no way relevant, but rather only the distinguishing characteristics of an ‘officer of the United States’ (to which the criminal statute at issue applied) as opposed to a mere employee.” Justice Scalia was absolutely correct that these cases had nothing to do with resolving the debate “of inferior officers versus superior officers.” Yet, he was too hasty in labeling the Germaine and Hartwell tests as dicta: the Supreme Court discussed those four factors to determine whether the surgeon and clerk were in fact “officers,” rather than employees. Albeit, those cases were not interpretations of Article II’s “officer of the United States” language.
Justice Scalia’s more potent argument is his first one: He questioned whether the majority “applied correctly [Germaine] to the facts of” Morrison. The Court did not. (Justice Scalia did not think Germaine was relevant, at all, to the case.) The limited duration and limited duties of Morrison’s office suggest that she was neither a principal nor an inferior “officer of the United States.” Rather, as Justice Scalia pointed out in his dissent, the application of the Germaine factors leads to the conclusion that Morrison was “a mere employee” of the United States.
If Alexia Morrison was an “employee of the United States,” then she was not an “officer of the United States”—principal or inferior. Therefore, the Appointments Clause was in no sense relevant to her position. If this analysis is correct, then much of the Morrison court’s analysis becomes superfluous. Indeed, this implication from Justice Scalia’s dissent raises other unanswered questions about Chief Justice Rehnquist’s majority opinion. First, can the powers of the independent counsel be lodged in someone who is not even an “officer” but merely an “employee”? Second, did the Ethics in Government Act in fact authorize the hiring of an employee, outside the confines of the Appointments Clause? If a person is not an “officer of the United States,” he or she does not need to be appointed pursuant to the Appointments Clause. For example, countless federal employees are appointed pursuant to civil service laws. Here we do not opine on whether Morrison’s appointment satisfied the specifics of non-Article II hiring under federal law. These grounds may have rendered Morrison’s appointment invalid on different, statutory (or other subconstitutional), grounds altogether. (Though, “This wolf comes as a civil servant” lacks Justice Scalia’s usual panache.)
Lucia v. SEC
This criticism of Morrison raised by the dissent remained largely academic until last month, when the court decided Lucia v. SEC. Lucia, unlike Germaine and Hartwell, concerned an Appointments Clause challenge relating to the Constitution’s “officer of the United States” language. Specifically, Lucia presented the question of whether administrative law judges (ALJs) within the Securities and Exchange Commission are “officers of the United States” who are subject to the Appointments Clause or are “instead non-officer employees.” Justice Kagan’s majority opinion neatly summarized the issue:
So if the Commission’s ALJs are constitutional officers, Lucia raises a valid Appointments Clause claim [because the ALJs were not appointed under the aegis of the Appointments Clause]. The only way to defeat his position is to show that those ALJs are not officers at all, but instead non-officer employees—part of the broad swath of “lesser functionaries” in the Government’s workforce. Buckley v. Valeo, 424 U. S. 1, 126, n.162 (1976) (per curiam). For if that is true, the Appointments Clause cares not a whit about who named them. See United States v. Germaine, 99 U. S. 508, 510 (1879).
Next, the court cites “two decisions” that “set out this Court’s basic framework for distinguishing between officers and employees”: Germaine and Buckley.
Germaine held that “civil surgeons” (doctors hired to perform various physical exams) were mere employees because their duties were “occasional or temporary” rather than “continuing and permanent.” Stressing “ideas of tenure [and] duration,” the Court there made clear that an individual must occupy a “continuing” position established by law to qualify as an officer. Buckley then set out another requirement, central to this case. It determined that members of a federal commission were officers only after finding that they “exercis[ed] significant authority pursuant to the laws of the United States.” The inquiry thus focused on the extent of power an individual wields in carrying out his assigned functions (emphasis added).
Without question, Morrison endorsed the latter rationale from Buckley. Chief Justice Rehnquist found that Alexia Morrison was an “inferior officer” who “lack[ed] policymaking or significant administrative authority.” However, the Morrison court did not endorse the former rationale from Germaine. To the contrary, Chief Justice Rehnquist concluded that Morrison was an “inferior officer,” in part, because her position was “temporary.” Thus, the chief justice flipped Germaine on its head. Under a proper reading of Germaine, a “temporary” position is likely neither a principal nor an inferior “officer of the United States” at all. Rather, one who holds a mere temporary position is a mere “employee of the United States.”
Justice Kagan’s opinion for the court in Lucia explains, correctly, that the Germaine court “made clear that an individual must occupy a ‘continuing’ position established by law to qualify as an officer.” We believe that Justice Kagan and the Lucia court (along with Justice Scalia’s Morrison dissent) correctly applied the four-factor test in Germaine, and that Chief Justice Rehnquist and the Morrison court applied that test incorrectly. Indeed, Justice Kagan elaborated on the temporal requirement of “officers of the United States.” She noted that Tax Court judges—whose appointments were challenged in Freytag v. Commissioner—held an “ongoing” and “continuing office established by law.” In other words, the office was not a “temporary” one, and the duties were not executed on an “episodic[,] basis.”
Again, in Lucia, Justice Kagan correctly read Germaine in the way Chief Justice Rehnquist did not. The only open question from her opinion is whether a “temporary” position can ever be an “officer of the United States.” Stated differently, is permanence a necessary factor, or might a temporary position still be an “officer of the United States” if other indicia compensate for the lack of duration? In other words, under Lucia, can a “temporary” position ever be an “officer of the United States”?
The majority opinion hedges a bit. However, Justice Sonia Sotomayor’s dissent answers this question unequivocally: “[T]his Court’s decisions,” she writes, “currently set forth at least two prerequisites to officer status”(emphasis added). Justice Sotomayor explains that the first of these “prerequisites” is that the “individual must hold a ‘continuing’ office established by law” (emphasis added). Not may—must. We agree with Justice Sotomayor’s reading of the majority opinion and long-standing precedent. Both the majority’s opinion and Sotomayor’s dissent illustrate why the Morrison court flubbed its application of Germaine.
In this essay, we take no position on whether the varying definitions of “officer of the United States” advanced in Hartwell, Germaine, Buckley, Morrison and Lucia are consistent with the original public meaning of the Constitution. As did Justice Clarence Thomas in his Lucia concurring opinion, we “express no view on the meaning of ‘Office’ or ‘Officer’ in any other provision of the Constitution,” such as the Foreign Emoluments Clause. We discussed the Constitution’s taxonomy of “officers” and “offices” on the Volokh Conspiracy, and in a series of amicus briefs filed in the three federal cases litigating the Foreign Emoluments Clause and the Presidential (or Domestic) Emoluments Clause.
Four Questions After Lucia
Why does this analysis matter? If Justice Kagan is correct (and we think she is) that a “temporary” position is not an “officer of the United States” under Germaine and Lucia, then the Supreme Court has cast some doubt on the line drawn by Morrison v. Olson. We have no reason to believe that this shift was deliberate, but future litigants are likely to seize on language in Justice Kagan’s opinion to challenge the appointment of the special counsel.
Under the rule in Morrison, Mueller is an inferior officer because his position “is ‘temporary’ in the sense that [he] is appointed essentially to accomplish a single task, and when that task is over the office is terminated.” That his tenure has already stretched more than a year does not make it permanent or continuing: Once his job is complete, the office dissolves. However, under Lucia, Mueller’s ephemeral position is likely not an “officer” at all, because it fails one of the two factors put forth by Justice Kagan. Indeed, per Justice Sotomayor’s dissent, Mueller flunks one of the two “prerequisites.” Is this fact enough to characterize Mueller as a mere “employee of the United States,” rather than an “officer of the United States”? If the answer is yes, then any Appointments Clause challenges to Mueller’s prosecution are without merit.
However, the analysis does not end with the Appointments Clause. If we are correct, then there are at least four other grounds to question the legality of Mueller’s investigation. First, did Deputy Attorney General Rod Rosenstein’s appointment of Mueller comport with the relevant statutory framework concerning the appointment of mere employees within the Department of Justice? Because Mueller is not an “officer of the United States,” Rosenstein cannot rely on his conventional authority as a department head (or, in this instance, an acting department head) to appoint an inferior officer of the United States. The relevant statute, 28 U.S.C. § 515, references the commissioning of a “special assistant to the Attorney General or special attorney,” but it does not specify if that person must be an inferior officer, or can also be a mere employee.
We have not studied whether the relevant statutory framework and regulations allow the attorney general to unilaterally hire the equivalent of a civil servant without jumping through the usual civil service hoops. Recall that Mueller was in private practice when he was appointed and was not already holding a federal position to which further duties might be appended. Therefore, his appointment differs from that of former special counsel Patrick Fitzgerald, who in 2003 was effectively detailed from his position as U.S. attorney for the Northern District of Illinois to investigate the Valerie Plame scandal. Fitzgerald, unlike Mueller, was already an “officer of the United States” at the time he was appointed special counsel.
Second, can a mere “employee of the United States,” who is not a principal or even an inferior “officer of the United States,” exercise the breadth of power that Mueller does? Justice Scalia’s Morrison dissent suggested that only a principal “officer of the United States,” i.e. an appointee subject to the president’s removal power, could exercise the sort of power the independent counsel exercised.. The Morrison majority concluded that an “inferior officer” could exercise such power, even though Morrison herself was insulated from at-will removal. Both opinions accepted the general premise that there is a hierarchy of responsibilities: Principal officers can exercise the widest scope of authorities, and inferior officers can exercise a narrower scope of authorities. Neither opinion resolved where a mere “employee” falls on that hierarchy. Specifically, it is an open question whether a “lesser functionar[y],” as Buckley described it, who is shielded from at-will removal by the president, can wield such broad prosecutorial power. This issue presents a novel separation-of-powers dispute.
Third, if Mueller’s appointment is not valid, would the work he performed and the work performed by his purported subordinates—including any indictments or subpoenas—be saved by virtue of the de facto officer doctrine? The Supreme Court’s decision in Nguyen v. U.S. (quoting Ryder v. U.S.) explained that the “de facto officer doctrine . . . ‘confers validity upon acts performed by a person acting under the color of official title even though it is later discovered that the legality of that person’s appointment or election to office is deficient.” The cases cited in Nguyen and Ryder concerned challenges to purported “officers of the United States”—all federal judges—whose appointments under the Appointments Clause were in some way defective. It is unclear whether the de facto officer doctrine would be extended to defects involving the hiring of a temporary prosecutorial “employee.”
Fourth, and most importantly, Lucia may afford a potentially soon-to-be-more-conservative Supreme Court the opportunity to do what Judge Brett Kavanaugh speculated about in 2016: make Justice Scalia’s Morrison dissent into a majority opinion. It would not be difficult for a future Supreme Court to find, as we did, that Lucia called Morrison into question—whether in high-profile litigation challenging the special counsel’s appointment or otherwise. Of course, in any case concerning Mueller, the high court might avoid this much larger constitutional question by finding Mueller’s appointment is defective for failure to comply with relevant statutes and regulations governing the appointment of lesser functionaries, as we discussed above.
In sum, Lucia has unsettled what was previously settled case law. We expect challenges concerning Mueller’s and his subordinates’ appointments to incorporate new arguments based on Lucia and on whether the special counsel is an “officer of the United States” or an “employee of the United States.”