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 empower Congress alone to "establish by Law" federal offices. Structurally, Congress has the democratic and technical capacity to organize the government. And Congress's power to "constitute" federal 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 surprising and important implications for a series of live constitutional controversies. In this Note, I discuss three issues regarding the balance of power between the President and Congress in structuring the administrative state. First, I evaluate the related problems of statutory qualifications clauses and for-cause removal provisions. Perhaps counterintuitively, I conclude that qualifications clauses should almost never raise constitutional issues, but for-cause removal provisions almost always should. The Constitution's distinction between ex ante office creation and ex post presidential control justifies such differential treatment. And it explains why Free Enterprise Fund v. Public Company Accounting Oversight Board was rightly decided, but also articulates a limiting principle on the President's authority to control the executive branch. Second, I discuss the constitutionality of temporary appointments. Drawing on Justice Thomas's concurrence in NLRB v. SW General, Inc., I show that, in some circumstances, the Federal Vacancies Reform Act of 1998 makes an unconstitutional "end-run around the Appointments Clause." But my interpretation of the Clause still gives Congress broad discretion to allow for temporary appointments. Third, this Note clarifies the employee/officer distinction in Appointments Clause jurisprudence. The Court's decision in Lucia v. SEC presents a series of puzzles for the employee/officer distinction that this Note attempts to resolve. Together, these three doctrinal issues illustrate how Congress's exclusive office-creating power ought to inform the constitutional analysis in separation-of-powers cases.
APPOINTMENTS WITHOUT LAW Durling, James; West, E. Garrett
Virginia law review,
11/2019, Letnik:
105, Številka:
7
Journal Article
Recenzirano
Debates about the Appointments Clause tend to turn on drawing the right distinctions. This Article argues that the Appointments Clause draws a little-recognized distinction between the officers ...specifically enumerated by the Clause ("Ambassadors," "other public Ministers and Consuls," and "Judges of the supreme Court") and the officers referred to only as a residual category ("all other officers of the United States"). The basic claim is that enumerated offices need not be "established by Law"—that is, by congressional legislation—but are established instead by the Constitution or the law of nations.
Although the "enumerated-residual distinction" has been essentially ignored by judges and scholars, it raises a basic interpretive puzzle. The Appointments Clause appears to give the President the same authority to appoint each category of enumerated officers. But in practice, we have construed the President's authority to appoint diplomats and Supreme Court Justices quite differently. Since the Founding, the President has appointed diplomats without congressional authorization, but at the same time everyone has assumed that Congress must pass a statute before the President may appoint any Justices.
This Article argues that the President has the authority to appoint both diplomats and Justices without congressional authorization. This view accords with the Constitution's text, suits the unique constitutional status of the Supreme Court, and was advanced by political actors soon after the Constitution's ratification. But even if one rejects the strongest version of this argument, the Article's core insight—that the Appointments Clause requires parallel treatment of diplomats and Justices—has a series of potential implications for constitutional doctrine.
A chorus of “Chevron-skeptics” has emerged in the past few years among right-leaning legal thinkers. These skeptics couch their opposition to the thirty-year-old precedent in Marbury’s conception of ...judicial duty, often referring to it as a “counter-Marbury for the administrative state.” Yet this distrust of Chevron sits uneasily with broader conservative jurisprudence, especially as it has developed since the Reagan years. Early proponents of Chevron justified it as a suitable mode of judicial restraint—that is, a form of judicial deference to the unitary executive. Therefore, this Article offers a qualified response to Chevron-skeptics based on the Court’s broader separation of powers jurisprudence. In particular, I defend Chevron as an analogue to Youngstown and to other doctrines of judicial deference that restrict Article III courts to their appropriate institutional roles. This analogy provides a theoretical justification for Chevron deference within the Court’s separation of powers jurisprudence.
Based on the Reed Lectures from 1967, Smith traces the anti-clerical message that accompanied the frontier religious preaching of Alexander Campbell and Barton Stone. Their hopes were that ...congregations could appoint their own leaders without the undue influence of outsiders. These evangelists were to be first and foremost servants, with no distinction between lay members and ministers. Smith, then traces the development of a professional ministry system within Disciples of Christ into the 1960s as churches called for greater levels of training among their preachers. Chapters include: ▪ A Nineteenth Century Revolution: A Free Ministry in a Free Society ▪ Pastors-Evangelists-Bishops and Sometimes Deacons ▪ Changing Ministries for Changing Times
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