Appointments Clause

As Gouverneur Morris stated in the Constitutional Convention, "As the President was to nominate, there would be responsibility, and as the Senate was to concur, there would be security".

The framers of the U.S. Constitution were particularly concerned that Congress might seek to exercise the appointment power and fill offices with their supporters, to the derogation of the President's control over the executive branch.

An earlier proposed draft of the Appointments Clause would have given the President a broader power to "appoint officers in all cases not otherwise provided for by this Constitution", but some delegates of the Philadelphia Constitutional Convention worried that this language would permit the President to create offices as well as to fill them, a classic case of institutional corruption.

[11] One chief question recurs under the "by Law" language: Who are "inferior Officers", not subject to the requirement of advice and consent; and (2) what constitutes a "Department", when Congress seeks to place the appointment power away from the President?

In Buckley v. Valeo, the Supreme Court held that only those appointees "exercising significant authority pursuant to the laws of the United States" are "Officers of the United States", and hence it is only those who exercise such "significant authority" who must be appointed by a mechanism set forth in the Appointments Clause.

Among those officers recognized as "inferior" are district court clerks, federal supervisors of elections, the Watergate Special Prosecutor, and an Independent Counsel appointed under the Ethics in Government Act of 1978.

[11] In Lucia v. SEC, 585 U.S. 237 (2018), the Court held that administrative law judges are inferior officers within the meaning of the Appointments Clause of the United States Constitution.

On the other hand, the Freytag decision itself seemed unclear what it meant by the phrase "like the Cabinet-level departments", and certainly stepped back from any bright-line test.

the phrase "like the Cabinet-level departments" was included in Freytag as an indication that the Court would not necessarily be inflexible about requiring Cabinet status in future cases.

[12] In order to avoid the crisis that would result from new challenges to many BPAI and TTAB decisions made in that period, Congress passed a 2008 amendment to the statute which specifies that the Secretary of Commerce is responsible for such appointments, and permitting the Secretary to retroactively appoint those persons named by the USPTO Director.