Senate consent or utilizing an alternative appointment method. 62 But does it
also give Congress the unrestrained discretion to choose from among the
three alternative methods whichever alternative it prefers for each office it
establishes? 63 There are several significant reasons—some set forth in
Professor Akhil Amar’s article “Intratextualism,” as well as additional
arguments based on the Appointments Clause drafting history and the
Vesting Clause—to conclude the Constitution’s text and structure indicate
the answer is “no.” 64
1. Interbranch Appointment of ALJs by Courts Likely Is Inconsistent
with the Constitutional Structure and Text.
Professor Barnett in contrast says “yes,” to a degree at least, Congress has
discretion to choose its preferred alternative appointment mode for inferior
officers. 65 Barnett contends Congress should use this discretion to address
potential concerns about impartiality in agency adjudication by giving the
power to appoint ALJs to an Article III “Court of Law” 66 like the D.C.
Circuit. 67 That way, ALJs will not be biased toward ruling in favor of the
agency whose head has appointed them to power and holds at least part of
the power to remove them. 68
62. See id. (“The President . . . shall nominate, and by and with the Advice and Consent
of the Senate, shall appoint . . . Officers of the United States, . . . but the Congress may by Law
vest the Appointment of such inferior Officers, as they think proper . . . .” (emphasis added)
(apparently giving Congress a choice between sticking with the default “Advice and Consent”
procedure or choosing to vest appointment power in an alternative authority)); Volokh, supra
note 58, at 760 (explaining that one possible way to read the phrase “as they think proper” is
as a modification of “the verb ‘vest,’ meaning that Congress has the power, whenever and
however it thinks proper, to vest appointment of an inferior officer in the President”).
63. As a textual matter, one might answer “yes” if one were to read the phrase “as they
think proper” to modify the immediately following list of three alternative inferior
appointments modes, rather than the immediately preceding vesting phrase authorizing
Congress to create inferior offices free from Senate advice and consent. See, e.g., Morrison v.
Olson, 487 U.S. 654, 673 (1988) (relying on this view). But this is not the best reading of the
“inferior Officers” provision, for reasons explained below. See infra Parts I.B. 1.a–c.
64. See infra notes 69–142.
65. See Barnett, supra note 9, at 801–02.
66. Justice Scalia, in his concurring opinion in Freytag, provided strong arguments that
the “Courts of Law” referenced in Article II include only Article III courts vested with “[t]he
Judicial Power of the United States.” 501 U.S. at 901–14. That said, the majority of the
Supreme Court at the time disagreed. Therefore, governing Supreme Court precedent still
defines “Courts of Law” to include any court “exercis[ing] the judicial power of the United
States”—which in the Freytag Court’s view encompasses “non-Article III tribunals” such as
Article I courts. See id. at 888–90. The Supreme Court has since disavowed one facet of the
Freytag opinion—the dictum suggesting the phrase “Heads of Departments” might include
only Cabinet secretaries, see Free Enter. Fund, 561 U.S. at 510– 11, but the Freytag Court’s
expansive interpretation of “Courts of Law” remains on the books.
67. Barnett, supra note 9, at 801–02.