President or a Department Head—Not a Court of Law.
If the Supreme Court steps in to address the circuit split and determines
that the SEC’s ALJs are officers, either the SEC itself or the President would
need to appoint the ALJs—at least under first principles as set forth in Article
II’s Appointments Clause. The multimember SEC—an Article II
Department Head under Supreme Court precedent54—already has the
statutory authority to appoint its ALJs. 55 The Commission just has chosen
instead to rely on its Chief ALJ to make the ALJ selections. 56 The
Commission would need to correct this practice if the ALJs are found to be
Article II officers.
By the plain text of Article II, “inferior Officers”—the category that
encompasses ALJs—may be appointed by the President alone (or with Senate
consent), department heads, or courts of law. 57 No particular portion of the
text expressly purports to restrict Congress on which of these options it may
choose for the offices it establishes. 58 Rather, the text seems to empower
Congress with a great deal of choice in the matter of how, and even whether,
to establish officer positions. This is by design.
The Constitution explicitly requires officer positions to be “established by
Law.” The British King’s abuse of power by sending “hither Swarms of
Officers to harrass” the colonies was an abuse the Framers wanted to avoid, 59
by cleanly separating the power to appoint officers from the power to create
the offices those officers would fill. 60
Further, in addition to the Article II provision authorizing Congress to
establish offices “by Law,” Article II, Section 2 also gives Congress the
choice either to require presidential appointment with Senate consent or “vest
the Appointment of such inferior Officers, as they think proper, in the
President alone, in the Courts of Law, or in the Heads of Departments.” 61 By
its terms, Section 2 gives Congress the discretion to choose between
subjecting inferior officers to the principal appointment procedure requiring
54. Free Enter. Fund, 561 U.S. at 510– 13.
55. 15 U.S.C. § 78d(b)( 1).
56. Bandimere, 844 F.3d at 1177.
57. U.S. CONST. art. II, § 2, cl. 2.
58. Id. (“[B]ut the Congress may by Law vest the Appointment of such inferior Officers,
as they think proper, in the President alone, in the Courts of Law, or in the Heads of
Departments.” (emphasis added)); see also Hanah Metchis Volokh, The Two Appointments
Clauses: Statutory Qualifications for Federal Officers, 10 U. PA. J. CONST. L. 745, 760– 62
(2008) (relying on the qualifier, “as they think proper,” as support for the constitutionality of
“statutory qualifications” on who may fill inferior officer slots).
59. THE DECLARATION OF INDEPENDENCE para. 12 (U.S. 1776).
60. See Volokh, supra note 58, at 769.