30 Journal of Regulatory Compliance Issue II
But there are reasons to think, based on the text in conjunction with the
structure of Article II, that the Framers would have intended Article III courts
of law to appoint only their own subordinate officers such as court clerks—
not inferior officers within the Executive Branch. As background,
appointment of inferior officers by an entity in a separate branch of
government is referred to as an “interbranch” appointment. 69 Governing
precedent imposes little to no restriction on Congress selecting an interbranch
appointment mechanism for inferior officers. 70 The Supreme Court in
Morrison v. Olson approved the interbranch appointment of the independent
counsel by “a specially created federal court.” 71 And the Court in 1880
suggested interbranch appointments by courts were permissible as long as
there was no “‘incongruity’ between the functions normally performed by the
courts and the performance of their duty to appoint.” 72
a. Early Practice
In contrast, however, as a matter of first principles, Professor Akhil Amar
has contended that only intra-branch appointments are constitutional. In his
article “Intratextualism,” Professor Amar observes that both an “intratextual”
and a “standard clause-bound” interpretation of the Constitution suggest that
“inferior Officer” appointing authorities may select only “their own
respective subordinates.” 73
Professor Amar first makes the intratextual move74 of comparing the
“inferior Officer” provision with the Constitution’s two other uses of the term
may remove ALJs without tenure protections); see also id. at 807 (explaining how under
current law agencies hold at least “a circumscribed ability to discipline and remove ALJs”).
69. See, e.g., Morrison, 487 U.S. at 673.
70. See, e.g., id. at 674–76 (opining that nothing in the recorded debates of the
Constitutional Convention indicated the Framers meant to bar Congress from interbranch
appointments, but such appointments might be “improper if there was some ‘incongruity’
between the functions normally performed by the courts and the performance of their duty to
appoint”); see also Barnett, supra note 9, at 837–38 (noting that in Ex parte Hennen, 38 U.S.
230 (1839), the Court “appeared to condemn interbranch appointments” but subsequently has
limited the dictum in that case and imposed merely “an ambiguous incongruity” limitation on
71. See Morrison, 487 U.S. at 676.
72. See id. at 675–76 (describing Ex parte Siebold, 100 U.S. 371 (1879)); see also Barnett,
supra note 9, at 837–40 (noting the Court has affirmatively supported such appointments in
the past). But see Amar, supra note 24, at 810 n.242 (observing that Siebold “treated the
Appointments clause only in passing and laid down no general doctrinal test” and that the
actual facts in Siebold are consistent with an intrabranch appointments limitation as the case
involved judicial appointments of “special election supervisors whose duties were somewhat
akin to marshals and ministerial clerks”).
73. Amar, supra note 24, at 805–08.
74. See id. at 759 (characterizing as an “intratextual move” the practice of using one
provision of the Constitution to help interpret another similarly phrased, but not necessarily
adjoining, constitutional provision).