“inferior.” 75 The term appears in both the Article III Vesting Clause76 and
Article I, Section 8, 77 each of which indicates that any inferior courts
established by Congress are “‘inferior to’ their superior—the Supreme
Court.” 78 Professor Amar notes that these provisions are symmetrical to the
Appointments Clause’s reference to “inferior Officers,” which “likewise
means ‘inferior to’ their superior—the relevant unilateral appointing
Professor Amar then turns to explain that reading the Clause to permit only
intrabranch appointments is confirmed by three early historical points. 80
First, early congressional statutes authorized department heads to select and
supervise their subordinates. 81 Second, Justice Story’s 1833 treatise reported
that appointing officials selected only their own subordinates. One example
was the courts who had only “the narrow prerogative of appointing their own
clerk, and reporter.” 82 Third, the early 19th-century Supreme Court opinion,
Ex parte Hennen, concluded that the inferior officer appointing power “was
no doubt intended to be exercised by the department of the government to
which the officer to be appointed most appropriately belonged.” 83
b. Appointments Clause Drafting History
The drafting history of the Appointments Clause further supports the
notion that executive branch appointments should be left up to the President
and department heads. Article II, Section 1, begins with a bang84—providing,
“The executive Power shall be vested in a President of the United States of
75. See id. at 806–07.
76. U.S. CONST. art. III, § 1 (“The judicial Power of the United States, shall be vested in
one supreme Court, and in such inferior Courts as the Congress may from time to time ordain
and establish. . . .”).
77. Id. art. I, § 8, cl. 9 (“The Congress shall have Power . . . To constitute Tribunals
inferior to the supreme Court.”).
78. See Amar, supra note 24, at 806.
79. Id. at 806–07.
80. Id. at 808–09.
81. Id. at 808.
82. Id. In the very first Congress, the only “officers” appointed by the “Courts of Law”
were the courts’ own clerks. See Judiciary Act of 1789, ch. 20, § 7, 1 Stat. 73, 76 (1789). The
First Federal Congress also authorized courts to appoint persons to perform tasks such as
executing writs and precepts in “causes wherein the marshal or his deputy shall be a party.” 1
Stat. at 87, § 28. But performance of those occasional discrete tasks did not qualify the
appointees as Article II “officers,” see Mascott, supra note 8, at Part III.E, and their tasks were
closely related to Article III business in any event. See also, e.g., An Act for the Punishment
of Certain Crimes Against the United States, ch. 9, § 4, 1 Stat. 112, 113 (1790) (authorizing
courts to hire surgeons to dissect and take away the bodies of executed federal criminals).
83. Amar, supra note 24, at 808–09 (internal quotation omitted).
84. Cf. Lawson, Rise and Rise, supra note 19, at 1251 (using “the Big Bang” as an analogy
to critique one interpretive theory of the Constitution).