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11/11/2018

Garrett West: Congressional Power over Office Creation
Michael Ramsey

Apologies for missing this one earlier, but it's suddenly very timely.

E. Garrett West (Independent; Yale Law School J.D. '18) has posted Congressional Power over Office Creation (128 Yale Law Journal 166 (2018)) on SSRN.  Here is the abstract: 

The Constitution leaves the creation of the institutions of government to ordinary political processes. While intricate constitutionalized procedures govern the election of Congress, the President, and the Vice-President, the Constitution anticipated but did not establish a host of other personnel and positions. Instead, it leaves the task of institution-building to Congress. This Note argues that text, structure, and history demonstrate that the Constitution gives Congress exclusive authority over office-creation. Textually, the Appointments Clause and the Necessary and Proper Clause together give Congress exclusive authority to “establish[] by Law” the government’s offices. Structurally, Congress has the democratic and technical capacity to structure the government. And Congress’s power to “constitute” governmental institutions mimics the original act of Constitution-making: just as “We the People” could “ordain and establish this Constitution,” the Appointments Clause allows Congress to “establish[] by Law...all other Officers of the United States.”

Congress’s exclusive office-creating power has important implications for the separation of powers. This Note discusses three such issues: First, I discuss the related problems of statutory qualifications clauses and for-cause removal provisions. Perhaps counter-intuitively, qualifications clauses should almost never raise constitutional problems, but for-cause removal provisions almost always will. I argue that the Constitution’s distinction between ex ante office-creation and ex post presidential control explains this distinction. Second, I discuss the constitutionality of temporary appointments that do not meet the strictures of the Recess Appointments Clause. Drawing on Justice Thomas’s concurrence in SW General, I show that, in some circumstances, the Federal Vacancies Reform Act of 1998 makes an unconstitutional “end-run around the Appointments Clause.” Third, I argue that this Note clarifies the employee-officer distinction in Appointments Clause jurisprudence. Together, these three doctrinal issues illustrate how Congress’s exclusive office-creating power ought to inform the analysis in separation-of-powers cases.

(Emphasis added).

RELATED: At Volokh Conspiracy, Will Baude has this post, which is pretty much in line with my thinking: Who Is Lawfully the Attorney General Right Now? Why first principles suggest that Matthew Whitaker's acting appointment is invalid, but precedent and practice might suggest the opposite.

COMMENT (by Andrew Hyman):  I’d just like to mention a few further resources.  The following Attorney General’s opinion says the president has appointment power not just under Art. 2 Sec. 2, but additionally has interim appointment power under the Take Care Clause:

https://books.google.com/books?id=lowFAAAAQAAJ&pg=PA1633

Here is a list of acting Secretaries of State:

https://history.state.gov/departmenthistory/people/principalofficers/secretary-ad-interim

And here is a list of acting Secretaries of War:

https://books.google.com/books?id=MQJLO96t2RIC&pg=PA171

FURTHER COMMENT (by Michael Ramsey):  I eyeballed the list of acting Secretaries of State.  It appears to me that only one of them (James Hamilton in 1829) had not been confirmed by the Senate to another office.  Early on, the acting Secretaries were usually heads of other departments.  Later, they were Chief Clerks, deputy Secretaries of State or similar titles.  But as far as I can tell no one objected to Hamilton's appointment.  I'm still not sure how this all cuts.