Officers of the United States Within the 

Meaning of the Appointments Clause 

A position to which is delegated by legal authority a portion of the sovereign powers of the federal 

government and that is “continuing” is a federal office subject to the Constitution’s Appointments 

Clause. A person who would hold such a position must be properly made an “Officer[] of the United 

States” by being appointed pursuant to the procedures specified in the Appointments Clause.

April 16, 2007 

MEMORANDUM OPINION FOR THE GENERAL COUNSELS 

OF THE EXECUTIVE BRANCH

I. The Safeguards of the Appointments Clause ..................................................... 74

II. The Essential Elements of an Office Subject to the Appointments Clause ...... 76

A. The Position Must Possess Delegated Sovereign Authority of the 

Federal Government.................................................................................. 78

1. The Foundations of This Element....................................................... 78

2. Defining Delegated Sovereign Authority............................................ 87

3. Three Arguably Relevant Characteristics ........................................... 93

a. Discretion..................................................................................... 93

b. Contractors................................................................................... 96

c. State Officers ............................................................................... 99

B. The Position Must Be “Continuing”........................................................ 100

1. The Foundations of This Element..................................................... 101

2. Defining a “Continuing” Position ..................................................... 111

3. A Few Recurring Areas .................................................................... 113

C. Several Additional Criteria Are Incidental, Not Distinct Elements of 

an Office.................................................................................................. 115

1. Method of Appointment.................................................................... 115

2. Established by Law........................................................................... 117

3. Oath of Office ................................................................................... 119

4. Emoluments...................................................................................... 119

5. Commission ...................................................................................... 122

III. Conclusion .................................................................................................... 122

This memorandum addresses the requirements of the Appointments Clause of 

the Constitution, which sets out the exclusive methods of appointing all “Officers 

of the United States” whose appointments are not otherwise provided for in the 

Constitution. U.S. Const. art. II, § 2, cl. 2. In particular, we address which positions are required by that Clause to be filled pursuant to its procedures. We conclude that any position having the two essential characteristics of a federal “office” 

is subject to the Appointments Clause. That is, a position, however labeled, is in 

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fact a federal office if (1) it is invested by legal authority with a portion of the 

sovereign powers of the federal government, and (2) it is “continuing.” A person 

who would hold such a position must be properly made an “Officer[] of the United 

States” by being appointed pursuant to the procedures specified in the Appointments Clause.

I. The Safeguards of the Appointments Clause

The Appointments Clause provides: 

[The President] shall nominate, and by and with the Advice and 

Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but 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.

Id. The Appointments Clause, as the Supreme Court has explained, reflects more 

than a “frivolous” concern for “etiquette or protocol.” Buckley v. Valeo, 424 U.S. 

1, 125 (1976) (per curiam). Rather, the Clause limits the exercise of certain kinds 

of governmental power to those persons appointed pursuant to the specific 

procedures it sets forth for the appointment of “officers.” As the Supreme Court 

explained in Buckley: 

We think that the term “Officers of the United States” as used in Art. 

II, defined to include “all persons who can be said to hold an office 

under the government,” is a term intended to have substantive meaning. We think its fair import is that any appointee exercising significant authority pursuant to the laws of the United States is an “Officer 

of the United States,” and must, therefore, be appointed in the manner prescribed by § 2, cl. 2, of that Article.

Id. at 125–26 (citation omitted; quoting United States v. Germaine, 99 U.S. 508, 

510 (1879)); see also id. at 132 (“Unless their selection is elsewhere provided for, 

all officers of the United States are to be appointed in accordance with the 

Clause. . . . No class or type of officer is excluded because of its special functions.”); id. at 136 (noting that prior cases allowing restrictions on President’s 

removal power had been careful not to suggest that his appointment power could 

be infringed). Applying this understanding, the Court in Buckley unanimously held 

that the Appointments Clause required that the enforcement, regulatory, and other 

administrative powers of the Federal Election Commission could properly “be 

exercised only by ‘Officers of the United States,’ appointed in conformity with” 

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Officers of the United States Within the Meaning of the Appointments Clause 

the Clause. Id. at 143; see id. at 267 (White, J., concurring in part and dissenting in 

part) (agreeing). Because the members of the Commission had not been so 

appointed, the Commission could not constitutionally exercise these powers. Id. at 

141–43 (opinion of Court); see also id. at 126–27 (describing existing appointment 

procedure).

This Office also has long taken the same view of the force of the Appointments 

Clause. We have concluded, for example, that it is not “within Congress’s power 

to exempt federal instrumentalities from the Constitution’s structural requirements, 

such as the Appointments Clause”; that Congress may not, for example, resort to 

the corporate form as an “artifice” to “evade the ‘solemn obligations’ of the 

doctrine of separation of powers,” The Constitutional Separation of Powers 

Between the President and Congress, 20 Op. O.L.C. 124, 148 n.70 (1996) 

(“Separation of Powers”); and that the “methods of appointment” the Appointments Clause specifies “are exclusive,” Common Legislative Encroachments on 

Executive Branch Authority, 13 Op. O.L.C. 248, 249 (1989) (“Legislative Encroachments”). Indeed, the Court’s conclusion in Buckley that the methods of 

appointment in the Appointments Clause are exclusive for anyone who can be said 

to hold an office under the United States was anticipated by a line of Attorney 

General opinions dating back to well before the Civil War. See, e.g., Appointment 

and Removal of Inspectors of Customs, 4 Op. Att’y Gen. 162, 164 (1843); see also 

Civil Service Comm’n, 13 Op. Att’y Gen. 516, 518 (1871) (Appointments Clause 

“must be construed as excluding all other modes of appointment” of executive and 

judicial officers). Moreover, the text of the Appointments Clause emphatically 

applies to “all” officers of the United States, unless their method of appointment is 

“otherwise provided for” in the Constitution.

The requirements of the Appointments Clause are “among the significant structural safeguards of the constitutional scheme” and are “designed to preserve 

political accountability relative to important government assignments.” Edmond v. 

United States, 520 U.S. 651, 659, 663 (1997). The Clause “is a bulwark against 

one branch aggrandizing its power at the expense of another branch,” particularly 

by preventing Congress from taking to itself the appointment power, as was at 

issue in Buckley, or otherwise stripping that power from the other Branches. Ryder 

v. United States, 515 U.S. 177, 182 (1995). By vesting the selection of principal 

officers in the President and of inferior officers in the President or certain other 

officers of the Executive or Judicial Branches, the Clause “prevents congressional 

encroachment upon” those branches, Edmond, 520 U.S. at 659, and supports the 

President’s authority and duty to see to the execution of the laws, Printz v. United 

States, 521 U.S. 898, 922–23 (1997). But the Appointments Clause “is more: it 

preserves another aspect of the Constitution’s structural integrity by preventing the 

diffusion of the appointment power.” Ryder, 515 U.S. at 182 (internal quotation 

marks omitted). Thus, in Ryder the Court held invalid a military court’s affirmance 

of a conviction where, even though the court had been appointed by an Executive 

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Branch officer, the appointing official was not among those specified in the 

Appointments Clause. Id. at 179; see also United States v. Maurice, 26 F. Cas. 

1211, 1216, 1219 (C.C.D. Va. 1823) (No. 15,747) (Marshall, Circuit Justice) 

(finding appointment by cabinet member, rather than President with Senate advice 

and consent, invalid under the Appointments Clause and stating that “the policy of 

the law condemns such appointments,” although illegal appointment did not 

prevent governmental suit to recover money from appointee); cf. Auffmordt v. 

Hedden, 137 U.S. 310, 326–28 (1890) (rejecting Appointments Clause challenge 

to action of appraiser appointed by inferior Executive Branch officer—not because 

Clause did not impose constraints but because position was not an office). By 

preventing diffusion, the Appointments Clause helps to ensure accountability for 

the quality of appointments and the operation of the government—through a 

limited number of publicly known and readily discernible sources of appointing 

authority, and also, ultimately, through the threat of impeachment, by which 

Congress may both remove a person from any civil “Office” and disqualify him 

“to hold and enjoy any Office.” U.S. Const. art. II, § 4; id. art. I, § 3.1

 

II. The Essential Elements of an Office 

Subject to the Appointments Clause 

Although Buckley and subsequent cases confirm that the Appointments Clause 

limits the conferral of certain kinds of governmental authority to properly 

appointed “officers,” the Supreme Court has not articulated the precise scope and 

application of the Clause’s requirements; the Executive Branch, as explained 

below, has adopted differing interpretations since Buckley; and questions about the 

Clause continue to arise regularly both in the operation of the Executive Branch 

and in proposed legislation. We therefore have reconsidered the scope of the 

Clause’s requirements; in doing so, we have focused on relevant constitutional text 

and the earliest authorities that illuminate that text, as well as Supreme Court 

authority. The remainder of this memorandum explains the basis for and contours 

of the two elements of an “office” under the United States whose occupant must 

1 This memorandum does not address other separation of powers principles that might restrict the 

allocation of appointing authority or the exercise of governmental powers, including the “antiaggrandizement” principle, constraints on the delegation of power outside of the federal government, 

and the powers and duties of the President under Article II, such as his duty under the Take Care 

Clause. See, e.g., Separation of Powers, 20 Op. O.L.C. at 131–32, 175–77; Deputization of Members of 

Congress as Special Deputy U.S. Marshals, 18 Op. O.L.C. 125 (1994); Springer v. Philippine Islands, 

277 U.S. 189, 203 (1928) (applying separation of powers principles to interpret statute as barring 

territorial legislature from appointing persons to vote government’s stock in a corporation, regardless of 

whether such persons “are public officers in a strict sense”).

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Officers of the United States Within the Meaning of the Appointments Clause 

be appointed in accordance with the Appointments Clause.2 This memorandum 

discusses and explains the governing principles, which are consistent with and 

expand on Buckley and the precedents on which it relied. But apart from the few 

specific instances that we expressly consider (such as qui tam relators and 

independent counsels, below in Part II.B.3), this memorandum is not intended to 

address whether any particular position would be an office or to call into question 

any particular existing position. Please consult this Office should any particular 

Appointments Clause question arise that you are unable to resolve based on the 

principles we set out.

Subpart A explains that a federal office involves a position to which is delegated by legal authority a portion of the sovereign powers of the federal government. 

Such powers primarily involve binding the government or third parties for the 

benefit of the public, such as by administering, executing, or authoritatively 

interpreting the laws. Delegated sovereign authority also includes other activities 

of the Executive Branch concerning the public that might not necessarily be 

described as the administration, execution, or authoritative interpretation of the 

laws but nevertheless have long been understood to be sovereign functions, 

particularly the authority to represent the United States to foreign nations or to 

command military force on behalf of the government. By contrast, an individual 

who occupies a purely advisory position (one having no legal authority), who is a 

typical contractor (providing goods or services), or who possesses his authority 

from a state does not hold a position with delegated sovereign authority of the 

federal government and therefore does not hold a federal office.

Subpart B explains that, for a position to be a federal office, it also must be 

“continuing,” which means either that the position is permanent or that, even 

though temporary, it is not personal, “transient,” or “incidental.” Thus, special 

diplomatic agents, short-term contractors, qui tam relators, and many others in 

positions that have authority on an ad hoc or temporary basis do not hold offices. 

Persons holding such non-continuing positions need not be appointed in conformity with the Appointments Clause, even if they temporarily exercise delegated 

sovereign authority. Primarily because of this element, our analysis departs from 

that taken in such prior memoranda as Legislative Encroachments, 13 Op. O.L.C. 

at 249, and Constitutionality of the Qui Tam Provisions of the False Claims Act, 

13 Op. O.L.C. 207, 221–24 (1989).

Finally, Subpart C discusses additional criteria that have been considered in 

certain contexts for determining when a position is an office or when an individual 

is an officer. At least for purposes of the Appointments Clause, these criteria are 

2 Even if the Appointments Clause applies to a position, the Clause does permit various means of 

relieving administrative burdens on the appointing officer. See Assignment of Certain Functions 

Related to Military Appointments, 29 Op. O.L.C. 132, 133-38 (2005).

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not essential, even if relevant to determining the presence of the two essential 

elements. In many cases, they are incidental traits that often flow from the 

existence of an office but do not define an office. One such criterion, which this 

Office previously considered essential, is whether a position involves employment 

within the federal government. See Separation of Powers, 20 Op. O.L.C. at 145–

48. As suggested when we formally published Separation of Powers in 2002, this 

prior analysis has been found “inadequate as an expression of the Office’s advice 

on separation of powers.” Id. at 124 (editor’s note). As we explain, federal 

employment is not necessary for the Appointments Clause to apply. In addition, 

we explain that the statutory basis for a position ordinarily will be relevant to 

whether the position involves delegated sovereign authority and is continuing, and 

thus is an “office” subject to the Appointments Clause, although the applicability 

of the Clause does not depend on whether Congress has formally and directly 

created an “office.”

A. The Position Must Possess Delegated Sovereign Authority 

of the Federal Government 

The first essential element of an office under the United States is the delegation 

by legal authority of a portion of the sovereign powers of the federal government. 

A position must have the authority to exercise such power before the Appointments Clause will require that the occupant of the position be made an “Officer[] 

of the United States.” After laying out the authority for this element, we explain its 

contours and then address three arguably special situations.

1. The Foundations of This Element 

The text and structure of the Constitution reveal that officers are persons to

whom the powers “delegated to the United States by the Constitution,” U.S. Const. 

amend. X, are in turn delegated in order to be carried out. The President himself is 

said to “hold [an] Office,” and the Constitution provides that “[t]he executive 

Power shall be vested in” that office. Id. art. II, § 1, cl. 1. The President cannot 

carry out the executive power alone, and so the Constitution further contemplates 

that executive power will be delegated to officers to help the President fulfill this 

duty. The Constitution recognizes that the President would need to delegate 

authority to others in, among other places, the clauses empowering him to “take 

Care that the Laws be faithfully executed,” and then, immediately following, 

providing that the President “shall Commission all the Officers of the United 

States.” Id. § 3 (emphases added). The Constitution also provides that the President “may require the Opinion, in writing, of the principal Officer in each of the 

executive Departments, upon any Subject relating to the Duties of their respective 

Offices.” Id. § 2, cl. 1. See also id. art. I, § 6 (barring members of Congress in 

certain cases from being “appointed to any civil Office under the Authority of the 

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Officers of the United States Within the Meaning of the Appointments Clause 

United States”); id. § 8, cl. 18 (referring to the “Powers vested by this Constitution 

in the Government of the United States, or in any Department or Officer thereof”); 

cf. id. cls. 15–16 (referring to “the Officers” of the militia, who, when called into 

federal service, provide one means of executing federal law).

As the Supreme Court has explained: “The Constitution does not leave to speculation who is to administer the laws enacted by Congress; the President, it says, 

‘shall take Care that the Laws be faithfully executed,’ Art. II, § 3, personally and 

through officers whom he appoints (save for such inferior officers as Congress 

may authorize to be appointed by the ‘Courts of Law’ or by ‘the Heads of 

Departments’ who are themselves Presidential appointees), Art. II, § 2.” Printz, 

521 U.S. at 922; see In re Neagle, 135 U.S. 1, 63 (1890) (President’s authority to 

appoint and commission officers is “the means of fulfilling” his obligation under 

the Take Care Clause); Myers v. United States, 272 U.S. 52, 133 (1926) (same); 

The President and Accounting Officers, 1 Op. Att’y Gen. 624, 625 (1823) 

(similar). Printz was echoing President Washington, who explained in 1789 that 

“[t]he impossibility that one man should be able to perform all the great business 

of the State, I take to have been the reason for instituting the great Departments, 

and appointing officers therein, to assist the supreme Magistrate in discharging the 

duties of his trust.” 30 Writings of George Washington 333, 334 (May 25, 1789) 

(John C. Fitzpatrick ed., 1939).3 Similarly, the Constitution describes the persons 

to whom is delegated the “judicial Power of the United States,” a particular kind of 

power to render binding interpretations of federal law (in the course of deciding 

cases or controversies), as “hold[ing] . . . Offices.” U.S. Const. art. III, § 1. This 

power is primarily delegated to the “Judges of the supreme Court,” id. art. II, § 2, 

cl. 2; and the “Judges . . . of the . . . inferior Courts,” id. art. III, § 1; but also to 

other officers, see Buckley, 424 U.S. at 126 (clerk, citing Ex parte Hennen, 38 U.S. 

3 Regarding the significance of the President’s constitutional status as head of the Executive 

Branch, and his take-care duty, to the nature of an office as a delegation of executive power, see also 

James Madison, Notes of Debates in the Federal Convention of 1787, at 324 (Norton 1987) (Gouverneur Morris, July 19, 1787) (“There must be certain great officers of State; a minister of finance, of 

war, of foreign affairs &c. These he presumes will exercise their functions in subordination to the 

Executive, and will be amenable by impeachment to the public Justice. Without these ministers the 

Executive can do nothing of consequence.”); 1 Annals of Cong. 481 (James Madison, June 16, 1789) 

(“if any power whatsoever is in its nature executive, it is the power of appointing, overseeing, and 

controlling those who execute the laws”); id. at 492 (Fisher Ames, June 16, 1789) (“[I]t was necessary 

to delegate considerable powers . . . . The constitution places all executive power in the hands of the 

President, and could he personally execute all the laws, there would be no occasion for establishing 

auxiliaries; but the circumscribed powers of human nature in one man, demand the aid of others.”); id. 

at 637 (Theodore Sedgwick, June 29, 1789) (stating that Representative Sedgwick “conceived that a 

majority of the House had decided that all officers concerned in executive business should depend upon 

the will of the President for their continuance in office; and with good reason, for they were the eyes 

and arms of the principal Magistrate, the instruments of execution”).

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(13 Pet.) 230 (1839)); 3 Joseph Story, Commentaries on the Constitution of the 

United States § 1530, at 387 (1833) (“Story”) (clerk and reporter).4

The debate on the ratification of the Constitution reinforces both this textual 

understanding of a federal “office” as characterized by the delegated sovereign 

authority of the federal government and the relation of the Appointments Clause to 

such a position. James Madison argued in the Federalist that the Constitution 

would establish a republican government, which he defined as one that “derives all 

its powers directly or indirectly from the great body of the people; and is administered by persons holding their offices during pleasure, for a limited period, or 

during good behavior.” The Federalist No. 39, at 251 (Jacob E. Cooke ed., 1961). 

Alexander Hamilton similarly explained in Federalist No. 72 that the Executive 

Branch would be administered by appointed officers exercising the delegated 

executive power of the President:

The administration of government . . . in its most usual and perhaps 

in its most precise signification . . . falls peculiarly within the province of the executive department. The actual conduct of foreign negotiations, the preparatory plans of finance, the application and disbursement of the public moneys, in conformity to the general 

appropriations of the legislature; the arrangement of the army and 

navy, the direction of the operations of war; these, and other matters 

of a like nature constitute what seems to be most properly understood by the administration of government. The persons therefore, to 

whose immediate management these different matters are committed, 

ought to be considered as the assistants or deputies of the chief magistrate; and, on this account, they ought to derive their offices from 

his appointment, at least from his nomination, and ought to be subject to his superintendence. 

Id. at 486–87 (emphasis added); see also The Federalist No. 29, at 183 (Alexander 

Hamilton) (referring to “the officers who may be entrusted with the execution of 

[the] laws”); cf. The Federalist No. 64, at 436 (John Jay) (referring to Constitution’s allocation of “power to do” each “act of sovereignty by which the citizens 

are to be bound and affected,” such as making laws, making treaties, and entering 

court judgments).

4

 The Constitution specially provides for the election of representatives and senators, for each house 

of Congress to choose its legislative officers (except for the President of the Senate, an office held ex 

officio by the Vice President), and for the election of the President and Vice President. See U.S. Const. 

art. I, § 2, cl. 5; id. art. I, § 3, cl. 5; id. art. II, § 1 & amend. XII. These offices are therefore excluded 

from the Appointments Clause by its terms.

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Officers of the United States Within the Meaning of the Appointments Clause 

The earliest commentators shared and perpetuated the Federalist’s understanding of a federal office as involving the wielding of delegated sovereign authority. 

William Rawle explained in the 1820s in his prominent commentary on the 

Constitution that one of “the means provided to enable the president to perform his 

public duties” is creation of “[s]ubordinate offices,” A View of the Constitution of 

the United States of America 151–52 (2d ed. 1829); described the appointment of 

officers as the means to allow the President “agents . . . for public duties,” id. at 

162; and supported the power to impeach officers because “[t]he delegation of 

important trusts, affecting the higher interests of society, is always from various 

causes liable to abuse,” id. at 211. Joseph Story in the 1830s echoed Madison by 

explaining that “in a republican government[,] offices are established, and are to 

be filled . . . for purposes of the highest public good; to give dignity, strength, 

purity, and energy to the administration of the laws.” 3 Story § 1524, at 376. In his 

view, the Appointments Clause “give[s] to the president a power over the appointments of those, who are in conjunction with himself to execute the laws.” Id. 

Attorney General Cushing in the 1850s, surveying the law and practice regarding 

the operation of the Executive Branch, similarly explained that “the lawful will of 

the President may be announced, and an act in the authority of the President 

performed, not merely by a Head of Department, but, in the second or other degree 

of delegation, by some officer subordinate to such head.” Relation of the President 

to the Executive Departments, 7 Op. Att’y Gen. 453, 473 (1855). See also The 

Jewels of the Princess of Orange, 2 Op. Att’y Gen. 482, 489 (1831) (discussing 

case in which by statute the President “could only act through his subordinate 

officer” but might issue an order to that officer and enforce it through his removal 

power); John N. Pomeroy, An Introduction to the Constitutional Law of the United 

States § 642, at 425 (7th ed. 1883) (“Pomeroy”) (“the officers, in all their various 

subordinate grades, are the means and instruments by which the laws shall be 

executed, and the general functions and duties of the department performed”).

The common law of the time of the Founding also indicates that delegated 

sovereign authority is a key characteristic of an office. In late eighteenth century 

England, “offices” involved a “duty, and in the next place the charge of such 

duty.” Giles Jacob, A New Law Dictionary, tit. Office (9th ed. 1772) (“Jacob”); see 

also 2 T. Cunningham, A New and Complete Law Dictionary, tit. Office (2d ed. 

1771) (same) (“Cunningham”); 3 Matthew Bacon, A New Abridgment of the Law

(4th ed. 1778) (same). “[A]n ‘officer,’” then, “was simply one whom the King had 

charged with a duty.” Edward S. Corwin, The President: Office and Powers 1789–

1948, at 85 (5th ed. 1984). A public officer (as distinct from a private one) was 

someone whom the King had charged with “any duty concerning the publick.” 

Jacob, tit. Office; Cunningham, tit. Office. More particularly, public offices 

involved authority to “affect the people generally,” John Bouvier, A Law Dictionary 203 (1839) (1993 reprint) (“Bouvier”), and “entitle[d] a man to act in the 

affairs of others without their appointment or permission,” P.G. Osborn, A Concise 

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Law Dictionary 223 (2d ed. 1937); 2 Stewart Rapalje & Robert Lawrence, A 

Dictionary of American and English Law 895 (1883) (same).

Thus, the general common law rule for public offices at the Founding was that 

“where one man hath to do with another’s affairs against his will, and without his 

leave, that this is an office, and he who is in it, is an officer.” Jacob, tit. Office; 

Cunningham, tit. Office (same). The dictionaries derived this rule, essentially 

verbatim, from the reported arguments of the Crown in the early case of King v. 

Burnell, Carth. 478 (K.B. 1700). See id. at 478 (so stating the “Rule”). Burnell 

involved the Censor of the College of Physicians, and the Crown contended that 

he was a public officer (and therefore subject to an oath requirement) because (1) 

the King had the duty to take “Care of the Persons of his Subjects, and consequently of their health”; (2) he had “delegated so much of his Office unto those 

Censors”; and (3) “he is an Officer subordinate, who hath any Part of the King’s 

publick care delegated to him by the King.” Id. at 478–79; see also id. at 479 

(argument for doctor, not denying general rule as applied to revenue officers and 

officers of the peace but claiming exception for “particular Powers created for 

particular Purposes”). The Founders, several decades after Burnell, had a similar 

(albeit less favorable) view of the characteristics of a public office: The Declaration of Independence charged that King George III had “erected a Multitude of 

new Offices, and sent hither Swarms of Officers to harass our People, and eat out 

their Substance.” Declaration of Independence ¶ 12 (U.S. 1776). Two years 

before, the First Continental Congress had written of “oppressive officers” who 

needed, by means of the freedom of the press, to be “shamed or intimidated into 

more honorable and just modes of conducting affairs.” Appeal to the Inhabitants of 

Quebec, 1 Journals of the Continental Congress 105, 108 (1774). Officers, thus, 

were persons holding sovereign authority delegated from the King that enabled 

them in conducting the affairs of government to affect the people “against [their] 

will, and without [their] leave.” Burnell, Carth. at 478. So critical to the Founders’ 

thinking was the abuse of power and the corruption surrounding public offices that 

“‘the power of appointment to offices’ was deemed ‘the most insidious and 

powerful weapon of eighteenth century despotism.’” Freytag v. Comm’r, 501 U.S. 

868, 883 (1991) (quoting Gordon Wood, The Creation of the American Republic 

1776–1787, at 143 (1969)); see generally Bernard Bailyn, The Origins of American Politics 63–91 (1970) (discussing the Founders’ complaints about the power 

of royal officials); The Federalist No. 76, at 509–10 (Alexander Hamilton) 

(praising the Appointments Clause as likely “to promote a judicious choice of men 

for filling the offices of the Union,” on which choices “must essentially depend the 

character of [the government’s] administration,” which was, in turn, “‘the true test 

of a good government’”).

Authority from the Nation’s early years addressing the nature of a public office 

confirms this understanding that delegated sovereign authority is a key element. 

Such post-ratification materials can illuminate the original meaning of the 

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Constitution where there is no evidence of a break in the law, and we are aware of 

none here. The Supreme Judicial Court of Maine provided the fullest early 

explication in 1822, addressing a question under Maine’s equivalent of the 

Ineligibility Clause, U.S. Const. art. I, § 6, cl. 2, which bars members of the 

Legislative Branch in certain cases from being appointed to a “civil Office under 

the Authority of the United States”: 

[T]he term “office” implies a delegation of a portion of the sovereign 

power to, and possession of it by the person filling the office;—and 

the exercise of such power within legal limits, constitutes the correct 

discharge of the duties of such office. The power thus delegated and 

possessed, may be a portion belonging sometimes to one of the three 

great departments, and sometimes to another; still it is a legal power, 

which may be rightfully exercised, and in its effects it will bind the 

rights of others . . . . 

Opinion of the Justices, 3 Greenl. (Me.) 481, 482 (1822). The court added that 

“[a]n office [is] a grant and possession of a portion of the sovereign power” and 

that “every ‘office,’ in the constitutional meaning of the term, implies an authority 

to exercise some portion of the sovereign power, either in making, executing or 

administering the laws.” Id. at 483. Applying this understanding, the court 

concluded that an agent for the preservation of timber on public lands was not a 

public officer because he “is to be clothed with no powers, but those of superintending the public lands, and performing certain acts in relation to them under the 

discretionary regulations of the governor.” Id. His duties were “not essentially 

different from” those of the “state printer, or a contractor to build a state house, or 

a state prison.” Id. Other courts treated this early analysis as authoritative. See 

Bunn v. Illinois, 45 Ill. 397, 409 (1867) (“The doctrine of this opinion has not been 

questioned, so far as we are advised, by any court, and it commends itself to our 

unqualified approbation.”); Patton v. Bd. of Health, 59 P. 702, 704, 705 (Cal. 

1899) (describing doctrine of Maine opinion as the one that has “been held by 

most courts,” and Bunn as having “very fully examined” the cases).

Similarly, in Byrne’s Administrators v. Stewart’s Administrators, 3 S.C. Eq. (3 

Des. Eq.) 466 (1812), the South Carolina Court of Appeals held that a solicitor 

was not a public officer because “he does not possess any portion of the public 

authority.” Id. at 478; accord In the Matter of Oaths, 20 Johns. 492, 492 (N.Y. 

Sup. Ct. 1823) (private attorneys do not hold an “office or public trust” under state 

constitution because “they perform no duties on behalf of the government; they 

execute no public trust”). And in Commonwealth v. Binns, 17 Serg. & Rawle 219 

(Pa. 1828), the Pennsylvania Supreme Court concluded, consistent with one of the 

examples given in the Maine opinion, that a person who had contracted to be 

printer of congressional reports was not an officer. Id. at 244 (opinion of Tod, J.). 

A concurring opinion expressly relied on the Maine opinion in describing a public 

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office as including “a delegation of a portion of the sovereign power to, and 

possession of it by, the person filling the office.” Id. (opinion of Smith, J.). See 

also United States v. Hatch, 1 Pin. 182, 190 (Wis. Terr. 1842) (explaining that the 

term “civil officers” in appointment provision of territory’s organic act “was 

intended to embrace such officers as in whom part of the sovereignty or municipal 

regulations, or general interests of society are vested; and that such has been the 

general understanding in the states, under their constitutions,” relying on the 

Maine opinion as quoted in Binns); United States ex rel. Boyd v. Lockwood, 1 Pin. 

359, 363 (Wis. Terr. 1843) (officer has “for the time being, a portion of the 

sovereignty . . . to be exercised for the public benefit”). Finally, in United States v. 

Maurice, 26 F. Cas. 1211 (C.C.D. Va. 1823), Chief Justice Marshall concluded 

that the Army’s position of “agent of fortifications” was a federal office, where it 

essentially had the duties of contracting agent—“those of a purchasing quartermaster, commissary, and paymaster.” Id. at 1214–15. These were “important 

duties,” which, if the President in discharging his duty to erect fortifications did 

not carry out directly through a series of contracts, would be carried out for him by 

officers. Id. at 1214. In general, Marshall explained, “[a]n office is defined to be ‘a 

public charge or employment,’ and he who performs the duties of the office, is an 

officer.” Id. Thus, an office could be said to involve the performance of public 

duties. See also Eliason v. Coleman, 86 N.C. 235, 239–40 (1882) (office is “a 

public position to which a portion of the sovereignty of the country, either 

legislative, executive or judicial, attaches for the time being, and which is 

exercised for the benefit of the public”) (quotation marks omitted); State v. 

Hocker, 22 So. 721, 722–23 (Fla. 1897) (surveying law of public offices beginning 

with 1822 Maine decision and Maurice).

Reflecting the understanding from the first hundred years of American law, 

including pre-Founding English law, a leading treatise summarized and defined a 

public office as follows: 

A public office is the right, authority and duty, created and conferred 

by law, by which for a given period, either fixed by law or enduring 

at the pleasure of the creating power, an individual is invested with 

some portion of the sovereign functions of government, to be exercised by him for the benefit of the public. The individual so invested 

is a public officer.

Floyd R. Mechem, A Treatise on the Law of Public Offices and Officers § 1, at 1–2 

(1890) (footnote omitted) (“Mechem”). Mechem added that the “delegation . . . of 

some of the sovereign functions of government” was the “most important characteristic which distinguishes an office,” such that “[u]nless the powers conferred are 

of this nature, the individual is not a public officer.” Id. § 4, at 5. The “‘nature of 

th[e] duty,’” as “‘concerning the public,’” was the key factor. Id. § 9, at 7 (quoting 

Burnell, Carth. at 479).

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Officers of the United States Within the Meaning of the Appointments Clause 

Mechem’s distillation of the law was quickly and widely accepted. Contemporaneous commentators concurred. See Bruce Wyman, The Principles of the 

Administrative Law Governing the Relations of Public Officers 163 (1903) 

(essentially reiterating Mechem’s definition); James L. High, A Treatise on 

Extraordinary Legal Remedies 581 (3d ed. 1896) (“An office, such as to properly 

come within the legitimate scope of an information in the nature of a quo warranto, may be defined as a public position, to which a portion of the sovereignty of 

the country, either legislative, executive or judicial, attaches for the time being, 

and which is exercised for the benefit of the public.”). So did the Judiciary 

Committee of the House of Representatives in 1899. The House had requested a 

report on whether any member had “accepted any office under the United States” 

and whether “the acceptance of such office under the United States ha[d] vacated 

the seat of the Member” under the Incompatibility Clause, which provides that “no 

Person holding any Office under the United States” may at the same time be a 

member of Congress, U.S. Const. art. I, § 6, cl. 2. The Committee extensively 

surveyed the definition of an “office,” particularly relying on Mechem and the 

1822 Maine decision, and concluded that membership on “a commission created 

by law to investigate and report, but having no legislative, judicial, or executive 

powers,” did not constitute an office under the United States. 1 Asher C. Hinds,

Hinds’ Precedents of the House of Representatives 604, 604 (1907). The Committee reasoned that a public office requires a delegation of sovereign authority, 

which “involves necessarily the power to (1) legislate, or (2) execute law, or (3) 

hear and determine judicially questions submitted.” Id. at 607.5 The commissioners in question, by contrast, “are not to execute any standing laws which are the 

rules of action and the guardians of rights, nor have they the right or power to 

make any such law, nor can they interpret or enforce any existing law.” Id. at 608; 

see id. at 610 (“They neither make law, execute law affecting the rights of the 

people, nor perform judicial functions,” but rather are “mere advisory agents of the 

Congress. . . . They have no power to decide any question or bind the Government 

or do any act affecting the rights of a single individual citizen.”). Similarly, the 

Attorney General at the same time explained that, although “[t]he legal definitions 

of a public office have been many and various,” “[t]he idea seems to prevail that it 

is an employment to exercise some delegated part of the sovereign power.” 

5

 In addition to its conclusion regarding the mere power to investigate and report, the Committee

further concluded that “mere power . . . to negotiate a treaty of peace, or on some commercial subject, 

and report without power to make binding on the Government, does not constitute a person an officer.”

1 Hinds’ Precedents at 607–08. This conclusion is correct, not because, as the report suggests, no

delegation of sovereign power is involved in the authority to represent the federal government in 

foreign relations, but only to the extent that the person exercising that “mere power” does not hold a 

position that is continuing, as discussed below in Part II.B. As discussed in the next subpart, the 

delegated executive power of the federal government is broader than just the power to execute law, and 

Mechem did not state otherwise.

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Office—Compensation, 22 Op. Att’y Gen. 184, 187 (1898); see also Appointment—Holding of Two Offices—Commissioner of Labor, 26 Op. Att’y Gen. 247, 

249 (1907) (similar, citing 1822 Maine decision). 

It was the same House report’s quotation of Mechem’s definition of a public 

office (along with the Supreme Court’s opinion in United States v. Hartwell, 73 

U.S. 385 (1867)) on which then-Assistant Attorney General Rehnquist relied in 

1969 in concluding that the Staff Assistant to the President did not hold an office 

within the meaning of the Ineligibility Clause. See Letter for Lamar Alexander, 

Staff Assistant to the President, from William H. Rehnquist, Assistant Attorney 

General, Office of Legal Counsel at 2 (Dec. 9, 1969) (“Rehnquist Letter”). Among 

other reasons, Rehnquist noted that the position had no specified duties. Id. at 3. 

Similarly, in 1971 this Office, in addressing the scope of the Appointments Clause 

and the related constitutional provision for the President to commission officers, 

explained that one of the two key “characteristic[s] of an officer of the United 

States in the Constitutional sense is that he must be invested ‘with some portion of 

the sovereign functions of the government.’” Memorandum for John W. Dean, III, 

Counsel to the President, from Leon Ulman, Deputy Assistant Attorney General, 

Office of Legal Counsel, Re: Presidential Commissions at 3 (Dec. 1, 1971) 

(quoting Mechem §§ 1, 2 & 4).

The Supreme Court soon thereafter (joined by then-Justice Rehnquist) followed 

essentially the same analytical path in Buckley v. Valeo, the Court’s first treatment 

of the basic requirements of the Appointments Clause since Auffmordt v. Hedden, 

137 U.S. 310 (1890), see Buckley, 424 U.S. at 125–26 & n.162, and its first 

decision finding a violation of that Clause. In concluding that the commissioners 

of the Federal Election Commission held offices under the United States and 

therefore were required to be appointed in accordance with the Appointments 

Clause, the Court focused on the Commission’s powers and concluded that many 

of those powers involved “the performance of a significant governmental duty 

exercised pursuant to a public law.” 424 U.S. at 141; see id. at 269–70 (White, J., 

concurring in part and dissenting in part) (similar); see also id. at 137–41, 143 

(opinion of Court, surveying powers). Because of their invalid appointments, the 

commissioners were permitted to “perform duties only in aid of those functions 

that Congress may carry out by itself, or in an area sufficiently removed from the 

administration and enforcement of the public law.” Id. at 139.

The Court’s reference in Buckley (and subsequent cases) to the exercise of 

“significant authority,” id. at 126, does vary somewhat from the well-established

historical formulation, but nothing in the Court’s opinion suggests any intention to 

break with the longstanding understanding of a public office or fashion a new term 

of art. On the contrary, the Court favorably discussed and cited several of the cases 

from the 1800s reflecting that understanding, some of them treating arguably 

insignificant positions as offices. See id. at 125–26. The Court also referred simply 

to the administration and enforcement of the public law, see id. at 139 (quoted 

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Officers of the United States Within the Meaning of the Appointments Clause 

above), 141 (same), and explained that “the term ‘Officers of the United 

States,’ . . . since it had first appeared in [the draft Constitution,] had been taken by 

all concerned to embrace all appointed officials exercising responsibility under the 

public laws of the Nation,” id. at 131. We therefore take the phrase “significant 

authority pursuant to the laws of the United States,” id. at 126, and similar phrases, 

see, e.g., id. at 141, to be shorthand for the full historical understanding of the 

essential elements of a public office; this phrase concisely conveys both the 

historical concept of delegated sovereign power and the second historical element 

discussed below—whether the position with such power is “continuing”—which 

was set out in Auffmordt, among much other early authority, and could be 

considered to bear heavily on the “significan[ce]” of the delegation. This Office 

previously has suggested such an understanding of Buckley. See Memorandum for 

Robert P. Bedell, Deputy General Counsel, Office of Management and Budget, 

from Ralph W. Tarr, Deputy Assistant Attorney General, Office of Legal Counsel, 

Re: Executive Director of the Property Review Board at 5–6 (Apr. 1, 1983); see 

also United States ex rel. Stone v. Rockwell Intern. Corp., 282 F.3d 787, 805 (10th 

Cir. 2002) (Buckley “was clear” that its “definition of an officer of the United 

States should be construed in conformity with its prior Germaine and Auffmordt 

opinions, which the Buckley Court extensively quoted with approval.”).

2. Defining Delegated Sovereign Authority 

Although the particulars of what constitutes “delegated sovereign authority” 

will not always be beyond debate, early authorities as well as more recent court 

decisions and opinions of this Office provide extensive guidance illuminating the 

term. As a general matter, based on these authorities, one could define delegated 

sovereign authority as power lawfully conferred by the government to bind third 

parties, or the government itself, for the public benefit. As indicated from much of 

the discussion above, such authority primarily involves the authority to administer, 

execute, or interpret the law. See also Printz, 521 U.S. at 922–23 (Constitution 

provides that President and the officers he appoints are the ones who are “to 

administer the laws enacted by Congress” and “execute its laws”); Bowsher v. 

Synar, 478 U.S. 714, 733 (1986) (“Interpreting a law enacted by Congress to 

implement the legislative mandate is the very essence of ‘execution’ of the law.”); 

Proposed Commission on Deregulation of International Ocean Shipping, 7 Op. 

O.L.C. 202, 202 (1983) (holding that positions of commissioners were not subject 

to the Appointments Clause where they involved “no enforcement authority or 

power to bind the Government”); 1 Hinds’ Precedents at 610 (1898 report 

concluding that certain commissioners were not officers because “[t]hey neither 

make law, execute law affecting the rights of the people, nor perform judicial 

functions”; “They have no power to decide any question or bind the Government 

or do any act affecting the rights of a single individual citizen”).

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For example, the public authority to arrest criminals, impose penalties, enter 

judgments, and seize persons or property constitutes delegated sovereign authority. 

The Supreme Court recognized early that a justice of the peace for the District of 

Columbia was an officer of the United States. See Marbury v. Madison, 5 U.S. 

(1 Cranch) 137, 164 (1803) (justice of peace holds an office); Wise v. Withers, 

7 U.S. (3 Cranch) 331, 336 (1806) (“Deriving all his authority from the legislature 

and president of the United States, he certainly is not the officer of any other 

government,” and “his powers, as defined by law, seem partly judicial, and partly 

executive”). The New Hampshire Supreme Court likewise concluded early that a 

“constable” held an office, given his power “to arrest criminals . . . and by 

execution to seize either the person or property of small debtors,” Town of 

Meredith v. Ladd, 2 N.H. 517, 519 (1823), and the Supreme Court of the Wisconsin Territory concluded that a county probate judge held an office, having “for the 

time being, a portion of the sovereignty . . . to be exercised for the public benefit,” 

Boyd, 1 Pin. at 363; see also Payton v. New York, 445 U.S. 573, 590 n.30 (1980) 

(discussing arrest powers of “a peace officer” at common law) (internal quotation 

marks omitted). 6

Similarly included in delegated sovereign authority is power to issue regulations and authoritative legal opinions on behalf of the government, and other 

powers to execute the law whether considered “executive” or merely “administrative.” Thus, Buckley concluded that both the Federal Election Commission’s 

“primary responsibility for conducting civil litigation in the courts of the United 

States for vindicating public rights” and its “rulemaking, advisory opinions, and 

determinations of eligibility for . . . federal elective office” were authorities that 

rendered the members of the Commission subject to the Appointments Clause. 424 

U.S. at 140; see id. at 137 (discussing agency’s “functions with respect to . . . 

fleshing out the statute” and its “functions necessary to ensure compliance with the 

statute and rules”); id. at 110–11 (explaining that the “advisory opinions” at issue 

6 The same understanding appears in Ex parte Pool, 4 Va. (2 Va. Cas.) 276 (1821). All of the 

judges of the General Court appeared to agree that a justice of the peace exercised delegated sovereign 

authority, even while disagreeing about whether a state justice of the peace could, consistent with 

Article III of the federal Constitution, be authorized by federal law to commit certain persons to jail for 

trial. The dissent argued that the powers of justices of the peace “to grant warrants of arrest against 

persons accused of crimes or offences against the Laws of the United States, to examine, bail, or 

commit the accused, compel the attendance of witnesses, [and] recognize them to appear to give 

evidence under pain of imprisonment” made them officers under the Appointments Clause. Id. at 290–

91 (Semple, J., dissenting). The majority of the court did not dispute the relevance of these powers; 

instead, the majority concluded that the duties were permissible because not “regular and permanent” 

but rather involving “incidental and occasional matters”—thus relying on the second essential element 

of an office, discussed below in Part II.B. Id. at 279–80. In Shepard v. Commonwealth, 1 Serg. & 

Rawle 1 (Pa. 1814), the court concluded for similar reasons that a special commissioner was not an 

officer even though he made binding decisions for the state regarding claims to and compensation for 

certain lands. Id. at 9–10.

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Officers of the United States Within the Meaning of the Appointments Clause 

provided a legal defense to private parties). Likewise, Joseph Story included 

among the “most important civil officers” those “connected with the administration of justice [and] the collection of the revenue.” 3 Story § 1530, at 387.

Apart from matters commonly considered law enforcement or execution, delegated sovereign authority also includes other domestic matters authorized by law 

that could bind or otherwise affect the government or third parties for the public 

benefit. Such matters include legal authority over the contracts and “supplies . . . 

of the nation,” id. (persons with such authority also are among the “most important 

civil officers”); United States v. Tingey, 30 U.S. (5 Pet.) 115, 126 (1831) (discussing officers “for the purpose of making contracts, or for the purchase of supplies”); 

Appointments to the Commission on the Bicentennial of the Constitution, 8 Op. 

O.L.C. 200, 207 (1984) (listing as a “purely executive function[]” the “signing [of] 

legal instruments” on behalf of the government), and “the preparatory plans of 

finance,” The Federalist No. 72, at 486; authority over the granting of governmental licenses, see Leonard D. White, The Federalists: A Study in Administrative 

History 455 (1948), or to determine the rules for public access to or privileges 

regarding governmental property, see In re Corliss, 11 R.I. 638, 640–42 (1876); 

see also Opinion of the Justices, 3 Greenl. at 483 (contrasting the “discretionary 

regulations of the governor” regarding the public lands with the subordinate duties 

of his non-officer agent for the preservation of timber on public lands); and the 

authority to appoint to or remove from other governmental offices, see, e.g., State 

v. Kennon, 7 Ohio St. 546, 562–63 (1857) (these are “important public powers, 

trusts, and duties”). To take one example, a leading early case, Shelby v. Alcorn, 

36 Miss. 273 (1858), concluded that a levee commissioner held an office, where 

the position included authority to set terms for and enter into contracts on behalf of 

the government for construction of levees, authority to sue to enforce those 

contracts, “the duties of treasurer, in which position he is entitled to receive large 

sums of public money,” and the ability essentially to levy taxes to fund construction. Id. at 289. His powers were “extensive and important, and such as no one 

could claim to exercise, except in virtue of a legislative enactment,” and “in the 

discharge of his proper functions, [he] exercises as clearly sovereign power as the 

governor, or a sheriff, or any other executive officer.” Id. at 291–92 (emphasis 

added). See also, e.g., Commonwealth v. Swasey, 133 Mass. 538, 541 (1882) (city 

physician, through his authority as an ex officio member of the board of health, 

has “important powers to be exercised for the safety and health of the people,” and 

so is an officer).

At the same time, the 1822 Maine decision indicates that some functions simply 

involving the management of governmental property may be considered not 

“sovereign” but rather proprietary. See Opinion of the Justices, 3 Greenl. at 483 

(“He is to be clothed with no powers, but those of superintending the public lands, 

and performing certain acts in relation to them under the discretionary regulations 

of the governor.”); cf. Springer v. Philippine Islands, 277 U.S. 189, 203 (1928) 

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(describing authority to vote government-owned shares of a company’s stock as 

“not sovereign but proprietary in its nature,” though declining to give distinction 

significance in separation of powers challenge to statute); Constitutional Limits on 

“Contracting Out” Department of Justice Functions under OMB Circular A-76, 

14 Op. O.L.C. 94, 99 (1990) (“[P]urely ministerial and internal functions, such as 

building security, mail operations, and physical plant maintenance, which neither 

affect the legal rights of third parties outside the Government nor involve the 

exercise of significant policymaking authority, may be performed by persons who 

are not federal officers or employees.”).

As the Shelby case indicates, see 36 Miss. at 277, delegated sovereign authority 

further includes, on the one hand, authority on behalf of the government to receive 

and oversee the public’s funds. See also Corliss, 11 R.I. at 642 (“office” at least 

includes a position with authority for “the handling of public money . . . , or the 

care and oversight of some pecuniary interest of the government”); Commonwealth v. Evans, 74 Pa. 124, 139 (1873) (collection agent is “by authority at 

law, . . . entrusted with the receipt of public moneys” and chargeable with

providing such moneys to the treasury); Tingey, 30 U.S. at 128 (referring to the 

“official duties of a receiver . . . of public moneys”). Correspondingly, it also 

includes authority over the disbursement of those public funds. See Maurice, 26 F. 

Cas. at 1214 (agents of fortifications have duty of “disbursement of the money 

placed in their hands,” consistent with orders of Army engineers); Tingey, 30 U.S. 

at 126–28 (discussing “disbursing officers” and “official duties of . . . an agent for 

disbursery of public moneys”); 3 Story § 1530, at 387 (civil officers have authority 

over the “expenditures of the nation”); Buckley, 424 U.S. at 140 (“determinations 

of eligibility for funds” are among duties implicating Appointments Clause). See 

generally Military Storekeepers, 6 Op. Att’y Gen. 4 (1853) (authority to superintend the receiving, safe-keeping, and distribution of military stores and supplies). 

Alexander Hamilton likewise included within the “administration of government,” 

which ought to be managed by properly appointed officers, “the application and 

disbursement of the public monies.” The Federalist No. 72, at 486–87. The 

President recently implemented this understanding when he avoided Appointments 

Clause concerns with a private corporation’s administration of a fellowship 

program by “instruct[ing] the head of the department to whose agency these funds 

are appropriated to treat the money as a grant” to the corporation. Statement by 

President George W. Bush Upon Signing H.R. 2474, 39 Weekly Comp. Pres. Doc.

917, 918 (July 14, 2003), reprinted in 2003 U.S.C.C.A.N. 1009.

Finally, delegated sovereign authority of the federal government also encompasses functions that are not necessarily domestic and may not precisely involve 

the execution of the laws, but that nevertheless are within the “executive Power” 

that Article II of the Constitution confers, functions in which no mere private party 

would be authorized to engage. The most notable examples are “[t]he actual 

conduct of foreign negotiations, . . . the arrangement of the army and navy, [and] 

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Officers of the United States Within the Meaning of the Appointments Clause 

the direction of the operations of war.” The Federalist No. 72, at 486–87. The 

positions with authority to do these things have authority lawfully granted by the 

government to bind or control in some fashion the government or third parties for 

the public benefit.

Thus, there are military offices. See U.S. Const. amend. XIV, § 3 (referring to 

persons who “hold any office, civil or military, under the United States”); 

Burnell, Carth. at 479 (“Officers are distinguished into Civil and Military, 

according to the Nature of their several Trusts”); West Point Cadets, 7 Op. Att’y 

Gen. 323, 329 (1855) (describing cadets and naval midshipmen, commissioned 

by President, as “persons of the class of the ‘inferior officers’ of the Constitution”); Mechem §§ 22–24, at 10 (recognizing military and naval officers as 

distinct from civil officers). These positions are primarily characterized by the 

authority to command in the Armed Forces—commanding both people and the 

force of the government. See Bouvier, tit. Officer (defining classes of officers, 

including “military officers who have command in the army” and “naval 

officers, who are in command in the navy”); Mechem §§ 22–23, at 10 (reiterating Bouvier’s definitions); West Point Cadets, 7 Op. Att’y Gen. at 336 (describing brevet second lieutenant as a commissioned officer, “capable by law to 

command his company in battle, and, a fortiori . . . capable of any duty less than 

that, which can by law be assigned to a second lieutenant”); People v. Duane, 

121 N.Y. 367, 373 (1890) (“It is difficult to conceive of . . . a military office 

without the power of command, the right of promotion or the obligation to 

perform some duty.”); Separation of Powers, 20 Op. O.L.C. at 144 n.54 (“Even 

the lowest ranking military or naval officer is a potential commander of United 

States armed forces in combat.”). Such offices necessarily involve a delegation 

of authority that is implicit in and subordinate to the President’s authorities as 

“Commander in Chief of the Army and Navy of the United States.” U.S. Const. 

art. II, § 2; compare Relation of the President, 7 Op. Att’y Gen. at 465 (the 

President cannot relinquish his authority as Commander in Chief), with id. at 

479–80 (The President “cannot be substituted in person into all the acts of . . . 

the officers, soldiers, and sailors of the Army and Navy,” and “the actual 

execution of” the “military business of the Government must, of necessity, 

devolve on persons subordinate to the President.”).

There also are diplomatic offices. They have the delegated sovereign authority 

to speak and act on behalf of the United States toward or in other nations, whether 

executing the laws or otherwise: “Public ministers of every class, are the immediate representatives of their sovereigns,” and consuls likewise, although they “have 

not in strictness a diplomatic character,” are “the public agents of the nations to 

which they belong.” The Federalist No. 81, at 548 (Alexander Hamilton) (emphasis added); see Ambassadors and Other Public Ministers of the United States, 7 

Op. Att’y Gen. 186, 190 (1855) (ambassadors and other public ministers constitute 

the “class of public officers who . . . [are] agents of their respective governments 

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for the transaction of its diplomatic business abroad”); Appointment of Consuls, 7 

Op. Att’y Gen. 242, 248 (1855) (consuls are a “class of public officers . . . 

appointed by their government to reside in foreign countries”); United States 

Judicial Authority in China, 7 Op. Att’y Gen. 495, 512 (1855) (Appointments 

Clause applies to subordinate diplomatic officers and consuls). For this reason, 

President Washington protested upon learning that a private citizen had been 

participating in treaty negotiations: “Who is Mr. Rosencrantz? And under what 

authority has he attended the councils of the Indians at Buffalo Creek? . . . No 

person should presume to speak to the Indians on business of a public nature 

except those who derive their Authority and receive their instructions from the 

War Office for that purpose.” 32 Writings of George Washington 116–17 (John C. 

Fitzpatrick ed., 1939) (quoted in White, Federalists at 33); cf. Opinion on the 

Powers of the Senate Respecting Diplomatic Appointments (1790), in 16 Papers 

of Thomas Jefferson 378, 379 (Julian P. Boyd ed., 1961) (“The transaction of 

business with foreign nations is Executive altogether.”). And federal law since 

1799 has made it a crime for citizens to negotiate with foreign governments 

regarding the United States without the “authority” of the United States government. See Logan Act, 1 Stat. 613, ch. 1 (1799) (codified as amended at 18 U.S.C. 

§ 953 (2000)). 

Indeed, the power of a diplomatic office is peculiarly delegated directly by the 

President, who makes such officers “the unquestionable representatives pro tanto 

of the sovereignty of the United States.” Ambassadors, 7 Op. Att’y Gen. at 211. A 

direct presidential delegation is particularly important when diplomatic officers 

carry out the “most important and solemn act of diplomatic service,” the President’s authority to “negotiate[] and sign[] a treaty.” Id. at 212; see Relation of the 

President to the Executive Departments, 7 Op. Att’y Gen. 453, 465 (1855) (“in 

certain stages of the negotiation of a treaty, anterior to and including its signature, 

[the President] delegates full powers to another person”); see also Act of Feb. 20, 

1792, ch. 7, § 26, 1 Stat. 232, 239 (authorizing Postmaster General to “make 

arrangements” with foreign countries for mail receipt and delivery). Similarly, the 

delegated authority of consuls has included such clearly sovereign areas as 

“executing” the “body of laws for the protection of the rights of citizens of the 

United States in foreign countries.” Appointment of Consuls, 7 Op. Att’y Gen. at 

267. Common powers and duties have included “administrative, and sometimes 

judicial, functions,” and assistance “in the collection of the public revenue” by 

authenticating documents, as well as various duties and rights defined by treaties 

and the law of nations. Id. at 248–49; see also Field v. Clark, 143 U.S. 649, 690 

n.1 (1892) (discussing example of consular judicial powers). To the Founders, the 

proper exercise of such sovereign authority by officers abroad was critical for the 

security of the Nation. Not only does the Appointments Clause ensure accountability for their appointment by expressly mentioning them, U.S. Const. art. II, § 2, 

cl. 2; see also id. art. III, § 2, cls. 1 & 2, but the Emoluments Clause, id. art. I, § 9, 

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Officers of the United States Within the Meaning of the Appointments Clause 

cl. 8, was adopted with particular reference to preventing foreign corruption of 

such officers. See Application of the Emoluments Clause to a Member of the 

President’s Council on Bioethics, 29 Op. O.L.C. 55, 57–58 (2005) (“Emoluments 

Clause”).7

3. Three Arguably Relevant Characteristics 

Having shown that the first element of an “office” for purposes of the Appointments Clause is a delegation of the sovereign authority of the federal 

government, and having given examples of what such sovereign authority 

involves, we will touch on three characteristics arguably relevant to the delegation 

of federal sovereign authority. We conclude that the first of these characteristics 

(having discretion) is not necessary to the existence of such authority, and that the 

other two (being a contractor and being a state officer) ordinarily do not involve 

the exercise of such authority.

a. Discretion

First, “independent discretion” is not a necessary attribute of delegated sovereign authority. Buckley is sometimes read to hold that persons who “do not wield 

independent discretion and [who] act only at the direction of officers” cannot 

themselves be considered officers. Separation of Powers, 20 Op. O.L.C. at 144; 

see Constitutional Limitations on Federal Government Participation in Binding 

Arbitration, 19 Op. O.L.C. 208, 216 (1995) (same). Neither Buckley nor early 

authority supports this restriction on the scope of an “office.”

Buckley did rightly indicate that discretion in administering the laws typically 

will constitute the exercise of delegated sovereign authority, and therefore is of 

course relevant. See 424 U.S. at 138 (discretion to bring civil enforcement suit); id. 

at 140–41 (duties akin to those of regulatory agency); Freytag, 501 U.S. at 881–82 

(noting that special trial judges “perform more than ministerial tasks” and exercise 

“significant discretion” in their tasks); cf. Mechem §§ 567–68, at 368–70 (discussing rules on ability to delegate the performance of official duties, turning on 

whether the duties involve judgment and discretion or instead are mechanical or 

ministerial). But Buckley did not say, nor does it follow, that such discretion is 

necessary. Indeed, as already indicated, Buckley reaffirmed prior decisions that 

had concluded that “a postmaster first class” and “the clerk of a district court” 

7 In the context of the Ineligibility Clause, this Office has assumed, consistent with an 1895 opinion 

of the Attorney General and the text of the Clause, that an ambassador holds a “civil Office” subject to 

the Clause, while also noting arguments to the contrary based on the specific purposes of that Clause. 

See Nomination of Sitting Member of Congress to be Ambassador to Vietnam, 20 Op. O.L.C. 284, 285 

& n.5 (1996).

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were officers of the United States. 424 U.S. at 126 (citing Myers v. United States, 

272 U.S. 52 (1926), and Ex parte Hennen, 38 U.S. 225 (1839)). The Court 

contrasted these officers with the Federal Election Commissioners and concluded 

that if the former were “inferior officers of the United States within the meaning of 

the Appointments Clause, as they are, surely the Commissioners before us are at 

the very least such ‘inferior Officers’ within the meaning of that Clause.” Id.

8

More fundamentally, treating discretion as necessary for the existence of an 

office conflicts with the original understanding of “office,” early practice, and 

early precedents. The Constitution itself repeatedly refers to offices of “Trust” as a 

subset of offices. See U.S. Const. art. I, § 9, cl. 8 (Emoluments Clause); id. § 3, 

cl. 7 (judgments in cases of impeachment); id. art. II, § 1, cl. 2 (qualification for 

presidential electors). And an “office of trust” is “[a]n office whose duties and 

functions require the exercise of discretion, judgment, experience and skill.” 

Mechem § 16, at 9 (emphasis added); see Town of Meredith, 2 N.H. at 519 

(similar). Blackstone contrasted “offices of public trust” with “ministerial offices.” 

2 William Blackstone, Commentaries *36–37. Early legal dictionaries and abridgments, drawing on Burnell, similarly explained that a public officer “is not the less 

a publick officer, where his authority is confined to narrow limits; because it is the 

duty of his office, and the nature of that duty, which makes him a publick officer, 

and not the extent of his authority.” E.g., Jacob, tit. Office. Mechem reaffirmed 

this point. Mechem § 9, at 7 (quoting Burnell, Carth. at 479). Thus, a ministerial 

office—one that “give[s] the officer no power to judge of the matter to be done, 

and require[s] him to obey the mandates of a superior”—was still a public office. 

Bouvier at 203; see also Jacob, tit. Office (referring to ministerial offices); Charles 

Viner, A General Abridgment of Law and Equity 110 (2d ed. 1791) (same); 

Mechem § 21, at 10 (“Ministerial officers are those whose duty it is to execute the 

mandates, lawfully issued, of their superiors.”) (internal quotation marks omitted); 

id. § 657, at 441 (generally defining ministerial functions and officers).

Early congresses and administrations, perhaps remembering the experiences 

that had led to the Declaration of Independence’s protest against British officers, 

confirmed this original meaning of an “office” through their jealousy of discretion, 

which they considered a threat to liberty in the hands of officers. Congress 

originally cabined the number of offices that possessed discretion, so that only the 

President and Cabinet officers would exercise substantial discretion, and most 

8 At the same time, the Court indicated that there may be positions whose duties are “in an area 

sufficiently removed from the administration and enforcement of the public law as to permit their being 

performed by persons not ‘Officers of the United States.’” Buckley, 424 U.S. at 139; see id. at 141 

(essentially same). As noted above, we have no occasion here to consider particular positions or what 

such duties or positions may be, apart from the historical examples we discuss of positions not 

involving delegated sovereign authority. See also id. at 126 n.162 (discussing distinction between 

officers and mere employees); Corwin, President at 91 & n.27 (same).

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officers in the early Republic performed their sovereign functions within strict and 

narrow limits. See White, The Federalists at 448–59. The first federal marshals, 

for example, “were ministerial officers,” required “‘to execute . . . all lawful 

precepts’ directed to them,” and their instructions “dealt normally with a particular 

person or persons and required a specific action to be performed at the direction of 

a court.” Id. at 455. Even within the early Treasury Department, where discretion 

in collectors of customs and the Comptroller could not be avoided, Secretary 

Alexander Hamilton pursued a system in which “little or nothing is left to the 

discretion of the officers of the revenue,” id. at 448 (internal quotation marks 

omitted), and any necessary discretion was lodged “high in the official ranks,” id. 

Thus, it was generally accepted that the “officers of the United States” included 

many particular officers who had authority but little if any discretion in administering the laws; these included officers such as registers of the land offices, 

masters and mates of revenue cutters, inspectors of customs, deputy collectors of 

customs, deputy postmasters, and district court clerks. See Roll of the Officers, 

Civil, Military, and Naval, of the United States, 1 Am. St. Papers, Misc. 260–319 

(1802); Hennen, 38 U.S. at 257–58 (district court clerk); United States v. Morse, 

27 F. Cas. 1 (C.C.D. Me. 1844) (No. 15,820) (Story, Circuit Justice) (inspector of 

customs); United States v. Barton, 24 F. Cas. 1025, 1027 (E.D. Pa. 1833) (No. 

14,534) (deputy collector of customs); 3 Story § 1530, at 387 (court clerks and 

reporters; deputy postmasters). See also Pomeroy §§ 658–59, at 438–39 (1883 

critique of spoils system objecting that “[t]he office holder sees that administration 

of the ministerial functions committed to him, is a thing of no comparative 

importance,” and referring to “the great mass of ministerial officers, whose duties 

are not political”).9

 

If it is not necessary to the existence of delegated sovereign authority (and thus 

to the existence of an office) that a position include the exercise of discretion, all 

the more is it not necessary that a position include some sort of “independent” 

discretion in carrying out sovereign functions. The question for purposes of this 

first element is simply whether a position possesses delegated sovereign authority 

to act in the first instance, whether or not that act may be subject to direction or 

review by superior officers: “[A] delegation of a portion of the sovereign power” 

involves “a legal power, which may be rightfully exercised, and in its effects it 

will bind the rights of others, and be subject to revision and correction only 

according to the standing laws of the State,” in contrast with a person whose acts 

have no “authority and power of a public act or law” absent the “subsequent 

sanction” of an officer or the legislature. Opinion of the Justices, 3 Greenl. at 482; 

9 The term “ministerial” may, however, be used informally in a different sense to indicate that 

certain duties do not involve the exercise of delegated sovereign authority. See Constitutional Limits on 

“Contracting Out,” 14 Op. O.L.C. at 99 (quoted above in Part II.A.2).

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see also White, Federalists at 448 (“Official acts may be either exactly prescribed 

or discretionary. Official authority is obviously enlarged by extension of discretionary power.”). Again, early practice reinforces this understanding: Inferior 

revenue officers, for example, had the delegated sovereign authority to make 

classification decisions, but those decisions could be subjected to two layers of 

appeal, the second being the Treasury Secretary himself. See id. at 455; see also, 

e.g., Act of May 28, 1796, ch. 37, §§ 3, 8 & 9, 1 Stat. 478, 479, 480–81. A revenue 

officer’s decision could, without any “subsequent sanction,” by law “bind the 

rights of others,” even though by law readily “subject to revision and correction” 

on the initiative of the taxpayer.

b. Contractors

Second, although it is true as a general matter that contractors do not hold an 

office under the United States, the reason for that (in most cases) is that they do 

not exercise any delegated sovereign authority. A person’s status as an independent contractor does not per se provide an exemption from the Appointments 

Clause; rather, a typical contractor provides goods or services instead of possessing any executive or judicial authority. (Similar considerations apply to 

analysis of grantees.) As the Maine Supreme Judicial Court explained, a contractor 

merely provides “a species of service performed under the public authority and for 

the public good, but not in the execution of any standing laws, which are considered as the rules of action and the guardians of rights.” Opinion of the Justices, 

3 Greenl. at 482–83. That is why a contract with an agent for the preservation of 

timber on the public lands, like the employment of a “state printer, or a contractor 

to build a state house, or a state prison,” did not constitute an office. Id. at 483. See 

also Maurice, 26 F. Cas. at 1214 (“A man may certainly be employed under a 

contract, express or implied, to do an act, or perform a service, without becoming 

an officer.”); Bache v. Binns, 17 Serg. & Rawle 219, 220 (Pa. 1828) (printer of 

congressional reports “holds merely a contract . . . as printer of a newspaper, 

implying such trust only as is ordinarily implied in contracts for work”); id. at 221 

(printer was “working for the United States government, as he would work for any 

other customer on contract for pay”). Similarly, the Supreme Court of the United 

States held, in Hall v. Wisconsin, 103 U.S. 5 (1880), that “commissioners” hired to 

conduct a survey were contractors rather than officeholders (and therefore were 

protected by the Constitution’s Contract Clause, art. I, § 10, cl. 1); the Court 

compared them to parties who contract “for the erection, alteration, or repair of 

public buildings, or to supply the officers or employees who occupy them with 

fuel, light, stationery, and other things necessary for the public service.” Id. at 10. 

The commissioners lacked any “portion of the sovereignty” or “the enforcement of 

municipal regulations or the control of the general interests of society.” See id. 

at 9. And in United States v. Germaine, 99 U.S. 508 (1878), the Court scoffed at 

the notion that “a law requiring the commissioner [of Pensions] to appoint a man 

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to furnish each agency with fuel at a price per ton fixed by law high enough to 

secure the delivery of the coal” would create an office. Id. at 512; see Auffmordt v. 

Hedden, 137 U.S. 310, 328 (1890) (same).

Many members of Congress took the same view in an early debate. Representative John Randolph proposed in 1806 a resolution providing, among other things, 

that “a contractor under the Government of the United States is an officer within 

the purview and meaning of the Constitution, and, as such, is incapable of holding 

a seat in this House” pursuant to the Incompatibility Clause. 15 Annals of Cong.

880 (1852) (reprinting the 1806 resolution); see generally David P. Currie, The 

Constitution in Congress: The Jeffersonians, 1801–1829, at 82–85 (2001) 

(discussing the resolution and debate). The House of Representatives overwhelmingly rejected the resolution, and many who spoke against it explained that, under 

the accepted definition of an “office,” a contractor was not an officer because he 

possessed no governmental power. As Representative Eppes observed: 

An extensive meaning has been given to the word “office.” . . . That 

all contractors are not officers, I am certain. A man, for instance, 

makes a contract with the Government to furnish supplies. He is certainly not an officer, according to the common and known acceptation of that word. He is, however, a contractor, and, under this resolution, excluded from a seat here. A carrier of mail approaches very 

near an officer. The person takes an oath, is subject to penalties, the 

remission of which depend on the Executive. His duties are fixed and 

prescribed by law. Near, however, as this species of contract approaches to an office, I do not consider that the word “office” in the 

Constitution can include even this species of contract. I consider the 

word “office” in the Constitution ought to be construed according to 

the usual import and meaning of that term.

15 Annals of Cong. at 883. Representative Findley likewise argued that a contractor who “furnished the public with [an] article of supply,” such as “flour for the 

use of the army” or “paper and quills” for the House, did not hold an office 

because “it was an essential attribute of office for a man to possess some power, to 

be exercised on behalf of the Government. Now a mere contractor receives no 

such power; he only enters into an engagement[] to perform certain specified 

duties.” Under Randolph’s view, “Every man who sold anything to the Government must . . . be considered as an officer,” which was absurd. Id. at 885. Representative Kelly also concurred: “A contractor receives no authority from Government.” Id. at 890–91; see also id. at 887 (Rep. Nelson) (persons with whom the 

Postmaster General contracts to carry the mail “are not officers of the United 

States, they are mere hirelings”); id. at 888 (Rep. Bidwell) (“To say that a 

contractor is an officer is giving a new signification to the words contractor or 

officer.”); id. at 890 (Rep. Elmer) (“Both common sense and the Constitution 

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forbade considering a contract in the light of an office, and he had never before 

heard of it contended that they were equivalent terms.”).

A related reason that contractors in most cases do not hold an office is that, to 

the extent they do assist the government in carrying out its sovereign functions, 

their actions (unlike those of the subordinate officers just discussed with regard to 

discretion) have no legal effect on third parties or the government absent subsequent sanction. They do not actually have delegated sovereign authority, even if 

they assist those who do or must comply with applicable law in carrying out the 

contract; rather, their advisory and other assisting actions are a kind of service. As 

the Maine Supreme Judicial Court explained: “An employment merely has none of 

these distinguishing features” of an office—namely “delegation of the sovereign 

power.” Rather, “[a] public agent acts only on behalf of his principal, the public, 

whose sanction is generally considered as necessary to give the acts performed the 

authority and power of a public act or law.” Opinion of the Justices, 3 Greenl. at 

482. The mere authority to advise or inform is not delegated sovereign authority. 

See, e.g., Buckley, 424 U.S. at 138; Emoluments Clause, 29 Op. O.L.C. at 63–70. 

Even at the time of its broadest prior reading of the Appointments Clause, this 

Office recognized that “advisory, investigative, informative, or ceremonial 

functions” are not subject to the Clause. Legislative Encroachments, 13 Op. 

O.L.C. at 249. More recently, we explained that the President may, without 

creating any issue under the Appointments Clause, “tap advisers . . . to work on his 

behalf,” grant them substantial practical authority to develop and coordinate policy 

among federal agencies, and even formalize the arrangement in an executive order, 

so long as he does not purport to grant such advisers any “legal power” over an 

agency or otherwise “disturb the statutory allocation of authorities.” Centralizing 

Border Control Policy Under the Supervision of the Attorney General, 26 Op. 

O.L.C. 22, 26, 27 (2002) (emphasis added). 

Conversely, in those rare cases where a mere contractor did exercise delegated 

sovereign authority (and did so on a continuing basis), he did hold an office 

subject to the Appointments Clause. See Maurice, 26 F. Cas. at 1216–20; cf. 

Holdover and Removal of Members of Amtrak’s Reform Board, 27 Op. O.L.C. 

163, 166–68 (2003) (holding that, as an incident of his statutory power to appoint 

the board members of a federally created corporation, the President had power to 

remove them at will, notwithstanding statutory provision that the corporation was 

not a department, agency, or instrumentality of the government). As the Attorney 

General explained nearly ninety years ago, “the inquiry must always be into the 

nature of the service to be rendered. If the appointee himself performs any of the 

functions of government, he is an officer. If he merely renders assistance to 

another in the performance of those functions, he is an employee.” Employee’s 

Compensation Act, 31 Op. Att’y Gen. 201, 203–04 (1918).

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c. State Officers

Finally, state officers ordinarily do not possess delegated sovereign authority of 

the federal government, even when they assist in the administration of federal law. 

Thus, the Appointments Clause ordinarily does not apply to them. State officers, 

even when enforcing federal law, generally exercise the sovereign law enforcement authority of their state, ultimately delegated by the people of that state; if 

they hold any office, they are officers of their state or locality, not of the United 

States. They hold authority independently of a delegation from the federal 

government, and they and those who appoint them are accountable for their 

actions to the people of the state.

States and their officers stand in a unique relationship with the federal government and the people under our constitutional system of dual sovereignty. As the 

Tenth Amendment makes express, the Framers “designed a system in which the 

State and Federal Governments would exercise concurrent authority over the 

people.” Printz, 521 U.S. at 919–20; see U.S. Const. amend. X (“The powers not 

delegated to the United States by the Constitution, nor prohibited by it to the 

States, are reserved to the States respectively, or to the people.”); U.S. Term 

Limits, Inc. v. Thornton, 514 U.S. 779, 801 (1995) (“The ‘plan of the convention’ . . . draws a basic distinction between the powers of the newly created 

Federal Government and the powers retained by the pre-existing sovereign 

States.”). The states thus retain inherent sovereign authority within their jurisdictions, and their powers proceed “not from the people of America, but from the 

people of the several States; and remain, after the adoption of the constitution, 

what they were before, except so far as they may be abridged by that instrument.” 

Sturges v. Crowninshield, 17 U.S. (4 Wheat.) 122, 193 (1819); accord The 

Federalist No. 32, at 200 (Hamilton) (“[T]he State Governments would clearly 

retain all the rights of sovereignty which they before had and which were not by 

[the Constitution] exclusively delegated to the United States.”). Recognizing this 

concurrent authority, the Constitution binds state officers, along with federal ones, 

to swear to support the Constitution. U.S. Const. art. VI, cl. 3.

That retained power includes, if a state wishes, some authority to enforce federal law within the state’s jurisdiction, subject to any limits imposed by the Constitution (apart from the Appointments Clause) or by federal law. See generally Currie, 

Jeffersonians at 78 (“the Union may do only what the Constitution permits and the 

states may do whatever it does not forbid,” although “there are implicit constitutional limitations on state power to interfere with federal operations”); cf. supra 

note 1. Indeed, the Founders assumed that “the States would consent to allowing 

their officials to assist the Federal Government.” Printz, 521 U.S. at 911. Madison, 

for example, predicted that “the eventual collection [of internal revenue] under the 

immediate authority of the Union, will generally be made by the officers, and 

according to the rules, appointed by the several States,” and found it “extremely 

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probable that in other instances, particularly in the organisation of the judicial 

power, the officers of the States will be cloathed with the correspondent authority 

of the Union.” The Federalist No. 45, at 313; see Printz, 521 U.S. at 910 (cataloguing other such statements). The early federal government did indeed make 

provision for such action by state officials. See, e.g., Act of March 26, 1790, § 1, 

ch. 3, 1 Stat. 103 (state judicial officers’ duties involving naturalization); Act of 

June 18, 1798, §§ 2, 4, ch. 54, 1 Stat. 566, 567–68 (same); Act of April 14, 1802, 

§ 1, ch. 28, 2 Stat. 153, 153–54 (same); Act of July 20, 1790, ch. 29, 1 Stat. 131 

(proceedings involving merchant ships); Act of Apr. 7, 1798, ch. 26, 1 Stat. 547 

(proceedings involving land claims by refugees); Act of July 6, 1798, ch. 66, 1 

Stat. 577, 577–78 (proceedings involving claims against aliens). And in Houston v. 

Moore, 18 U.S. (5 Wheat.) 1 (1820), the Court upheld Pennsylvania’s power to try 

a militiaman under federal criminal law for failing to report for federal service. 

Similarly, this Office has found it “well-settled that state law enforcement officers 

are permitted to enforce federal statutes where such enforcement activities do not 

impair federal regulatory interests.” Assistance by State and Local Police in 

Apprehending Illegal Aliens, 20 Op. O.L.C. 26, 29 (1996); see also United States 

v. Di Re, 332 U.S. 581, 589 (1948) (looking to state law to determine validity of 

arrest without warrant for federal offense); cf. Separation of Powers, 20 Op. 

O.L.C. at 146 n.63 (“Where state officials do exercise significant authority under 

or with respect to federal law, they do so as state officials, by the decision and 

under the ultimate authority of the state.”). 10

B. The Position Must Be “Continuing”

The second element of a federal “office,” necessary to make a position subject 

to the Appointments Clause, is that the position be “continuing.” As explained 

below, a position is most clearly of this sort where it is permanent. But a temporary position also may be continuing, if it is not personal, “transient,” or “incidental.” Like the first element, this second one emerges from the Constitution’s 

text, extensive early authority (including, after the Civil War, leading decisions of 

the Supreme Court), and the law of public offices. After setting out the authority 

for this element, we describe its contours and then apply it to a few recurring 

areas.

10 If, however, a state officer enforcing federal law depended on affirmative federal authorization—

as opposed to state authorization (subject to any federal limits or regulations) or a mere federal removal 

of a disability (such as preemption)—the constitutional analysis would differ, as suggested by the 

divisions in the early case of Pool discussed above. See supra note 6. At the extreme, Congress may not 

“direct state law enforcement officers to participate . . . in the administration of a federally enacted 

regulatory scheme,” Printz, 521 U.S. at 904 (emphasis added), or “impress[] state police officers into 

federal service,” id. at 923 n.12, in part because of the Appointments Clause, id. at 922–23.

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1. The Foundations of This Element

The Constitution refers to an office as something that one “holds” and “enjoys” 

and in which one “continues,” and these descriptions suggest that an office has 

some duration and ongoing duties. See, e.g., U.S. Const. art. I, § 3, cl. 7 (impeachment leading to “disqualification to hold and enjoy any Office”); art. I, § 6, 

cl. 2 (Incompatibility Clause, referring to a “Person holding any Office” and 

having a “Continuance in Office”); art. I, § 9, cl. 8 (Emoluments Clause, referring 

to a “Person holding any Office”); art. II, § 1, cl. 2 (providing that no “Person 

holding an Office . . . shall be appointed an Elector”). Similarly, the Recess 

Appointments Clause suggests that an office is a position that may be vacant (thus 

not held only by a single person) and will continue beyond a single session of 

Congress. See id. art. II, § 2, cl. 3 (“The President shall have Power to fill up all 

Vacancies that may happen during the recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”). And the Appointments 

Clause itself indicates that most offices are “established by Law.” Id. cl. 2 

(emphasis added). One aspect of an office’s duration is its tenure, the period 

during which a particular incumbent may hold, enjoy, and continue in the office, 

and the tenure also establishes that the existence of the office is not contingent on 

a particular person’s holding it. The Constitution expressly mentions permanent, 

non-personal offices that may be held for a term, such as President or Vice 

President, see id. art. II, § 1, and others that may be held during good behavior, 

namely judgeships, see id. art. III, § 1. Madison during ratification listed three 

possible tenures: He referred to “persons holding their offices during pleasure, for 

a limited period, or during good behavior.” The Federalist No. 39, at 251; see also 

Rehnquist Letter at 3 (“The analysis does not rest simply on the fact that the 

incumbent lacks fixed tenure; such is true of Cabinet members . . . . But the 

position itself, as a position and apart from the particular incumbent, has no fixed 

duration.”).11

11 The permissibility under the Appointments Clause of assigning a person to carry out the duties of 

an office temporarily (on an acting basis) is distinct from, albeit related to, whether an office exists. 

The former question can be understood as whether, if an office exists, a person exercising its duties 

truly “holds” it. See United States v. Eaton, 169 U.S. 331, 343 (1898) (upholding designation of vice 

consul to act as consul: “Because the subordinate officer is charged with the performance of the duty of 

the superior for a limited time and under special and temporary conditions, he is not thereby 

transformed into the superior and permanent official”) (emphases added); U.S. Const. art. II, § 1, cl. 6 

(providing that in cases of removal, death, resignation, or inability of the President, “the Powers and 

Duties of the said Office . . . shall devolve on the Vice President,” and authorizing Congress by law to 

declare, for cases of removal, death, resignation, or inability of both the President and Vice President, 

“what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be 

removed, or a President shall be elected”) (emphases added), amended by id. amend. XXV (providing 

that in cases of removal, death, or resignation of the President, the Vice President “shall become 

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The same meaning of an “office” finds support in the legal dictionaries contemporaneous with the Founding. They distinguished between short-term arrangements, such as an “agreement to make hay, plough land, herd a flock, &c.,” 

and continuing positions, such as “steward of a manor,” that qualified as public or 

private offices. Jacob, tit. Office; see Cunningham, tit. Office (same). Even the 

early case of Burnell suggests the distinction, in the defendant’s attempt to portray 

his position as not an office because it merely involved “particular Powers created 

for particular Purposes.” Carth. at 479. By the time of the Founding, an “office” 

was understood in the common law “as an institution distinct from the person 

holding it and capable of persisting beyond his incumbency,” to which “certain 

frequently recurrent and naturally coherent duties [were] assigned more or less 

permanently.” Corwin, President at 85.

Early American practice and precedent, particularly with regard to diplomacy 

(the conduct of which, as explained above in Part II.A.2, can include delegated 

sovereign authority), strongly support and illuminate this understanding that, to be 

an office, a position must have continuance or duration. From the beginning, 

Presidents repeatedly have “dispatched ‘secret’ agents on diplomatic or semidiplomatic missions without nominating them to the Senate.” Corwin, President at 

86. One of President Washington’s first acts was unilaterally to name Gouverneur 

Morris (a fellow delegate to the Constitutional Convention) as a special agent to

explore a commercial treaty with Britain. David P. Currie, The Constitution in 

Congress: The Federalist Period: 1789–1801, at 44 (1997). Washington also 

unilaterally named “commissioners” to deal with a rebellion in Pennsylvania in 

1794 without appointing them officers. See Corwin, President at 406 n.7. So too 

have Presidents as far back as Washington “designated members of . . . [Congress] 

to represent the United States on international commissions and at diplomatic 

conferences,” id. at 86, notwithstanding that the Constitution’s Ineligibility Clause 

may have barred the members’ appointment to a “civil Office under the Authority 

of the United States” and that the Incompatibility Clause would have required 

them to vacate their seats in Congress if they took “any Office under the United 

States.” U.S. Const. art. I, § 6, cl. 2; see, e.g., Member of Congress—Appointment 

to Office, 21 Op. Att’y Gen. 211, 214 (1895) (finding violation of Ineligibility 

Clause in appointment of senator, because during his senatorial term “the emoluments of the office of minister to Mexico were increased”). In a striking early 

illustration, President Jefferson appointed Senator Daniel Smith as a commissioner 

to negotiate and execute treaties with the Cherokee Indians, yet Jefferson did not 

submit the nomination to the Senate, and Smith did not vacate his seat in the 

Senate. See 1 Am. St. Papers, Indian Affairs 697–98 (1805). Absent contemporaPresident” but that in cases of inability the Vice President shall discharge the powers and duties of the 

office of President “as Acting President”). 

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neous objections on constitutional grounds to such early and consistent practice, 

we presume that it reflects an early consensus of its constitutionality. The rationale 

for this consensus, evident from the early understanding of an “office,” is that 

“such diplomatic assignments are not ‘offices’ in the sense of the Constitution, 

being summoned into existence only for specific temporary purposes.” Corwin, 

President at 86 (emphasis added). Indeed, a House select committee in 1822 found 

no “office as was contemplated by the Constitution” in President Jefferson’s 

dispatching of Senator Smith, also noting a similar example from Madison’s 

administration. 39 Annals of Cong. 1407, 1409–10 (1855); see also Office—

Compensation, 22 Op. Att’y Gen. 184, 188–89 (1898) (noting other appointments 

for “special work of great international importance”).

The most prominent early example is the Jay Treaty of 1794. It established 

tribunals for resolving both a border dispute and claims between creditors and 

merchants of the United States and Great Britain. The tribunals’ commissioners 

were to be appointed in equal numbers by the President (with the advice and 

consent of the Senate) and the British King, with a final commissioner chosen by 

lot. See Treaty of Amity, Commerce and Navigation, U.S.-Gr. Brit., Nov. 19, 

1794, arts. V & VI, 8 Stat. 116, 119–21 (1794); see also 1 Journal of the Executive 

Proceedings of the Senate 204–05 (Apr. 1, 1796) (1828) (confirmation of commissioners). The treaty’s opponents, perhaps spurred by its requirement of Senate 

confirmation, objected that the Appointments Clause prohibited creation of 

commissioners by treaty. Hamilton responded in a series of essays defending the 

treaty: 

[They] are not in a strict sense OFFICERS. They are arbitrators between the two Countries. Though in the Constitutions, both of the U 

States and of most of the Individual states, a particular mode of appointing officers is designated, yet in practice it has not been deemed 

a violation of the provision to appoint Commissioners or special 

Agents for special purposes in a different mode.

Alexander Hamilton, The Defence No. 37 (Jan. 6, 1796), reprinted in 20 The 

Papers of Alexander Hamilton 13, 20 (Harold C. Syrett ed., 1974) (second 

emphasis added); see Separation of Powers, 20 Op. O.L.C. at 146 n.67 (quoting 

this passage as primary example of the “long historical pedigree” for the argument 

that United States representatives to multinational or international entities “need 

not be appointed in accordance with Article II” where the entities “are created on 

an ad hoc or temporary basis”).12

12 The objection, as stated by Hamilton, was that “[t]he constitution is said to be violated in that 

part, which requires the establishment of Officers of the U. States by law—by those stipulations of the 

Treaty which without the intervention of law provide for the appointment of Commissioners.” 20 

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A century later, Attorney General Griggs twice applied the same understanding 

of an office to “special Agents for special purposes.” In 1898, he opined that a 

commissioner appointed by the President pursuant to a treaty, to arbitrate certain 

claims between the United States and Great Britain arising from the seizure of 

British vessels in the Bering Sea, did not hold an “office” under a particular 

statute, because “the temporary character of the employment, which was to 

consist of and to terminate at the end of the examination of a limited number of 

specified claims, withdraws one of the elements of an office which the Supreme 

Court regards as essential.” Office—Compensation, 22 Op. Att’y Gen. at 188 

(citing Auffmordt, 137 U.S. at 327) (emphases added); see id. at 187 (commissioner is “sent to adjudicate upon certain named claims, listed at the end of the treaty,” 

and his “employment was thus to perform a certain task which might take a month 

or several months”); id. at 188 (referring to “occasional and temporary commissionerships”). Then in Members of the General Board of Arbitration, 23 Op. Att’y 

Gen. 313 (1900), the Attorney General reaffirmed his 1898 opinion and found it 

constitutional for the President alone to appoint, pursuant to a treaty, persons to a 

list from which panels of arbitrators could be drawn to resolve future disputes 

between signatory nations. (Attorney General Griggs was himself one of the first 

so named, in 1901.) Those on the list would not be “in the ordinary acceptation of 

the term, persons holding office,” because they would have no ongoing duties or 

authority: “Nominally they may be appointed for six years, but they may never 

actually exercise any functions at all. Their work is not only occasional, but 

contingent upon what is practically an appointment to act as arbitrators, to be 

received from foreign powers in the future.” Id. at 315.13 Cf. British and American 

Papers of Alexander Hamilton at 14; see Cato, Observations on Mr. Jay’s Treaty No. XIII, in 1 The 

American Remembrancer 244, 250–51 (1795) (arguing that offices not enumerated in Appointments 

Clause may only be established by law, which did not include treaty; adding, “By what authority, then, 

can Mr. Jay and Lord Grenville, or the president and the senate, over-ride the constitution, and assume 

a power to control the rights of congress, to create the office, and to place it in such hands as they think 

proper, under the above limitations?”); id. No. XIV, in 2 The American Remembrancer 3, 3 (1795) 

(“No power is vested in [Congress] to allow the appointment of any officer by lot, and much less to 

admit that his Britannic majesty should exercise the right of appointing judges for the trial of causes in 

which they are themselves to be the parties.”). Hamilton answered the objection indirectly—by denying 

that any offices were being created. An 1802 “Roll of Civil, Military, and Naval Officers,” tracking 

expenses, includes the salaries of the American commissioners, “as they were appointed by the 

President,” and also includes the U.S. contribution of half the salary of the jointly appointed commissioner, but notes that the “commission is not now in a state of activity.” 1 Am. St. Papers, Misc. at 307 

n.*. 13 An alternative ground for Griggs’s 1900 conclusion was that the listed arbitrators, even if called 

to serve, “are not expected to exercise any part of the sovereignty of the United States; they are not 

expected to perform any functions in the Government of the United States.” Rather, they would serve 

“two foreign nations that may select them and authorize them to settle a dispute between two nations.” 

Members of the General Board of Arbitration, 23 Op. Att’y Gen. at 315; cf. Office—Compensation, 22 

Op. Att’y Gen. at 188 (“a person employed solely as a sworn judge of a joint international commission 

would not be spoken of as an officer of either country, although, under a treaty requiring it, selected 

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International Commissioners, 6 Op. Att’y Gen. 65 (1853) (addressing questions 

regarding payment of commissioners appointed to arbitrate claims between Great 

Britain and American citizens pursuant to a treaty, without suggesting any 

constitutional issues).

This second element of an “office” is also well established by the early law of 

public offices. In Maurice, Chief Justice Marshall concluded that the office of 

“agent of fortifications” existed in the Army. He explained that “if a duty be a 

continuing one” and “if those duties continue, though the person be changed; it 

seems very difficult to distinguish such a charge or employment from an office, or 

the person who performs the duties from an officer.” 26 F. Cas. at 1214. Forty 

years later, the Illinois Supreme Court in Bunn used Maurice as the benchmark 

and reasoned that Marshall would have found no office if the agent had “been 

appointed merely to superintend the erection of a single fortification, his duties 

ceasing when the work was accomplished”; the court found no office in a position—commissioner to build the state house—involving “one single special duty,” 

“not of a permanent, but of a transient and incidental character.” 45 Ill. at 404–05. 

Similarly, the court in Pool, see supra note 6, essentially held that a state justice of 

the peace, allowed by federal law to commit to jail for trial any deserting seaman, 

was not a judicial officer of the United States, because he was not exercising the 

“regular and permanent duties” of a federal court but rather handling “incidental 

and occasional matters,” 2 Va. Cas. at 280; the dissent claimed a violation of the 

Appointments Clause by focusing only on delegated authority, quoting Burnell 

and objecting that the “important duties” of enforcing federal criminal laws should 

not be entrusted to “mere agents,” or “persons negotiating occasional business.” 

Id. at 288 (Semple, J., dissenting).

Earlier, the Supreme Court of Pennsylvania in Shepard v. Commonwealth, 1 

Serg. & Rawle 1 (Pa. 1814), held (in the alternative) that a commissioner, paid by 

the day for issuing binding decisions regarding certain claims to, and compensation for, certain lands in a particular county, did not hold an office of profit under 

the state constitution, because the position was “rather the execution of a special 

commission, than the holding of an office.” Id. at 10. The same court also held that 

a person appointed as a city’s port physician, a post with a statutory duration of 

four years, did not hold an office subject to the state constitution’s appointments 

and sent to his post by one of them”). In both decisions, Griggs also addressed the relationship between 

the treaty power and the Appointments Clause, the question that Hamilton had avoided. See 22 Op. 

Att’y. Gen. at 185–87; 23 Op. Att’y Gen. at 315. But whether it is constitutional for a treaty, as 

opposed to a law, to establish an office under the United States or, conversely, whether a position 

created by treaty is not such an office because not created by law (even if otherwise having the 

characteristics of such an office), or may not be for some other reason, is beyond the scope of this 

opinion. See generally infra Part II.C.2 (discussing creation of offices “by law”). In both cases, it was 

otherwise clear that the positions did not have the characteristics of offices of the United States. 

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clause. Commonwealth v. Sutherland, 3 Serg. & Rawle 145 (Pa. 1817). The Chief 

Justice explained that “there are matters of temporary and local concern, which, 

although comprehended in the term office, have not been thought to be embraced 

by the constitution.” Id. at 9. Other early cases are to like effect. See In re Oaths, 

20 Johns. 492, 493 (N.Y. 1823) (dicta, stating that “office” requires a public 

employment “not merely transient, occasional or incidental”); Kennon, 7 Ohio St. 

at 559, 562 (declining to decide “[h]ow far the general assembly may go in 

constituting temporary agencies and commissions for temporary, incidental, 

transient, or occasional purposes” without “creating an office,” where positions at 

issue “exercise continuously, and as a part of the regular and permanent administration of the government, important public powers, trusts, and duties”); Shelby, 

36 Miss. at 289 (declaring it “universally true, that where an employment or duty 

is a continuing one, which is defined by rules prescribed by law and not by 

contract, such a charge or employment is an office”); cf. Barton, 24 F. Cas. at 

1027 (contrasting positions of temporary deputy collector, appointed by collector 

in cases of his “occasional and necessary absence, or [] sickness,” and the 

“permanent office” of deputy collector, appointed by Secretary of the Treasury); 

Boyd, 1 Pin. at 363 (“An office is where, for the time being, a portion of the 

sovereignty, legislative, executive or judicial, attaches, to be exercised for the 

public benefit.”) (emphasis added).

The Attorneys General as well held the same understanding in the domestic 

context from an early date. An 1828 opinion concluded that a statute granting the 

Commandant of the Marine Corps authority to appoint officers when “it shall 

become necessary” did not violate the Appointments Clause so long as it was 

interpreted to permit only “an occasional and transitory appointment” in emergency circumstances “should [the Marines] be detached from the ships to which they 

belonged.” Authority of Lieutenant Colonel Commandant of Marine Corps, 2 Op. 

Att’y Gen. 77, 78–79 (1828). In 1843, Attorney General Legare determined that 

“permanent inspectors” of customs were “officers of the government of the United 

States,” required to be appointed consistent with the Appointments Clause, while 

“occasional inspectors whose services were demanded in extraordinary exigencies 

in the service” were not. Appointment and Removal of Inspectors of Customs, 

4 Op. Att’y Gen. at 163; see also Contract With Architect of Public Buildings, 

5 Op. Att’y Gen. 754, 754–55 (1823) (appendix) (contrasting “offices of a 

permanent nature” with a position involving a “subject-matter . . . of a temporary 

and limited character,” properly characterized as a contract); The Reconstruction 

Acts, 12 Op. Att’y Gen. 141, 155–56 (1867) (relying on Sutherland and invoking 

the “well established” rule that “persons who exercise special public duties rather 

in the nature of occasional employments than general and continuing official duty” 

are not properly considered executive or judicial officers of a state); cf. Mandatory 

Statutes—Appointing Power, 8 Op. Att’y Gen. 41, 44 (1856) (“I can conceive the 

possibility of a provision of law by which a controversy between the Government 

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Officers of the United States Within the Meaning of the Appointments Clause 

and the city of Baltimore shall be submitted to two arbitrators, one to be appointed 

by each party, and in case of disagreement, they to select an umpire.”). And the 

1822 House report, noted above in connection with diplomatic assignments, was 

ultimately concerned with whether the temporary assignment of a senator to 

“examine various land offices of the United States” (that is, to audit their books), 

for which he was paid by the day, made him an officer under the Ineligibility and 

Incompatibility Clauses. The committee concluded that it did not. 39 Annals of 

Cong. at 1408–10; see also id. at 1410–13 (collecting additional examples). The 

committee observed that this “opinion seems to have received the sanction, and 

regulated the practice, of the Government since the adoption of the Constitution, 

by those who bore a principal share in composing it; and must, therefore, be 

supposed to have understood its real import.” Id. at 1409.

In a series of cases after the Civil War, the Supreme Court adhered to and 

applied this longstanding understanding. In Hartwell (1868), the Court held that “a 

clerk” in the office of the “assistant treasurer of the United States . . . at Boston” 

was a “public officer[]” for purposes of an indictment under an embezzlement 

statute. The Court explained:

An office is a public station, or employment, conferred by the appointment of government. The term embraces the ideas of tenure, duration, emolument, and duties.

The employment of the defendant was in the public service of the 

United States. He was appointed pursuant to law, and his compensation was fixed by law. Vacating the office of his superior would not 

have affected the tenure of his place. His duties were continuing and 

permanent, not occasional or temporary. They were to be such as his 

superior in office should prescribe.

73 U.S. (6 Wall.) at 393. Hartwell considers, among other things, whether a 

position’s duties have “duration,” meaning that they are “continuing and permanent” rather than “occasional or temporary,” and whether the position has 

“tenure.” The term “tenure” refers to the ability of an incumbent to hold a position 

for a period of time, not contingent on any particular person, as Madison indicated 

in Federalist No. 39, quoted above. See also Hennen, 38 U.S. at 259 (“All offices, 

the tenure of which is not fixed by the Constitution, or limited by law, must be 

held either during good behavior, or . . . during the life of the incumbent; or must 

be held at the will and discretion of some department.”); Tenure of Office of 

Inspectors of Customs, 2 Op. Att’y Gen. 410, 412 (1831) (“When an office is held 

during the pleasure of any designated officer, it is at the pleasure of the officer, and 

not of the individual.”). The Attorney General has explained the connection 

between “tenure” and this second element of an “office” as follows: “By tenure is 

not meant a holding for a fixed term. . . . The distinction is between those persons 

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whose services are occasional and temporary, fixed by some contract of employment, and those whose services are general and indefinite in a line of duty 

prescribed by law. . . . A deputy clerk has an indefinite tenure given him by law.” 

Deputy Clerks of United States District Courts—Premium on Official Bonds, 29 

Op. Att’y Gen. 593, 595–96 (1912).

The Court applied Hartwell in Germaine (1879) to hold unanimously that a 

civil surgeon appointed by the Commissioner of Pensions to examine pensioners 

and applicants for pensions, and paid per examination, was not an “officer of the 

United States” for purposes of a criminal statute because his “duties are not 

continuing and permanent, and they are occasional and intermittent.” 99 U.S. at 

512. The Court explained that “[t]he surgeon is only to act when called on by the 

Commissioner of Pensions in some special case, as when some pensioner or 

claimant of a pension presents himself for examination.” Id.

14

In Auffmordt (1890), the Court applied these two statutory decisions to the 

Appointments Clause, while also relying on Maurice. Under a customs statute, if 

an importer demanded a reappraisal of the valuation of his goods, the collector of 

customs was to select a “discreet and experienced merchant” as at least one of two 

people to do the reappraisal. If the two agreed, the decision was final. 137 U.S. at 

312. The Court, again unanimously, held that such merchant appraiser need not be 

appointed in accordance with the Appointments Clause, because he did not hold an 

office:

The merchant appraiser is an expert, selected as an emergency arises. . . . He is selected for the special case. He has no general functions, nor any employment which has any duration as to time, or 

which extends over any case further than as he is selected to act in 

that particular case. He is an executive agent, as an expert assistant 

to aid in ascertaining the value of the goods, selected for the particular case on the request of the importer, and selected for his special 

knowledge in regard to the character and value of the particular 

goods in question. He has no claim or right to be designated, or to act 

except as he may be designated. . . . His position is without tenure, 

14 President Cleveland in 1886 demonstrated the same understanding of an office when recommending to Congress a means to resolve labor disputes. He suggested that “instead of arbitrators 

chosen in the heat of conflicting claims, and after each dispute shall arise, for the purpose of 

determining the same, there be created a commission of labor, consisting of three members, who shall 

be regular officers of the Government, charged among other duties with the consideration and 

settlement, when possible, of all controversies between labor and capital.” Letter to the Senate and 

House of Representatives (Apr. 22, 1886), in 11 A Compilation of the Messages and Papers of the 

Presidents 4979, 4980 (James D. Richardson ed., 1897) (emphases added). This commission “would 

have the advantage of being a stable body,” gaining experience and ability, unlike “arbitrators . . . 

chosen for temporary service.” Id. at 4980, 4981. 

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Officers of the United States Within the Meaning of the Appointments Clause 

duration, continuing emolument, or continuous duties, and he acts 

only occasionally and temporarily. Therefore, he is not an ‘officer,’ 

within the meaning of the [Appointments Clause]. 

Id. at 326–27 (emphases added). As already suggested above in Part II.A.1, 

although the question of continuance was not at issue, the Court in Buckley did 

favorably cite Auffmordt and thus at least implicitly endorsed its analysis, such that 

one can consider the element of continuance incorporated in the Court’s references 

to “significant authority.” See 424 U.S. at 126 & n.162.

In the same year as Auffmordt, Mechem (discussed above in Part II.A.1 regarding delegated sovereign authority) also recognized this element. Relying particularly on Maurice, Bunn, and Hartwell, he wrote that “[d]uration or [c]ontinuance” 

is a criterion, Mechem § 8, at 6 (font altered), and explained that “[t]he term 

office . . . embraces the idea of tenure and duration, and certainly a position which 

is merely temporary and local cannot ordinarily be considered an office,” id.; see 

id. at 6–7 n.7 & 7 n.1; see also id. § 1, at 2 (an office is sovereign power invested 

in an individual “for a given period, either fixed by law or enduring at the pleasure 

of the creating power”). Mechem nevertheless declared that “this element of 

continuance can not be considered as indispensable . . . if the other elements are 

present,” id. § 8, at 7, relying primarily on a broad definition of “office” in dicta in 

State v. Stanley, 66 N.C. 59, 63 (1872). He also cited Commonwealth v. Evans, 74 

Pa. 124 (1874), in which the court adopted a broad rule of statutory interpretation 

to reach all persons entrusted by law with collecting money due to the public, 

regardless of whether a person’s service “be special or general, transient or 

permanent,” even while recognizing that, under such a rule, it could be “a difficult 

matter to distinguish between a public officer and a person employed by the 

government to perform some special service by contract.” Id. at 139.15

Other authority from the post-Civil War period likewise could be read to reject 

the necessity of continuance. First, both the Attorney General and the Supreme 

Court of Rhode Island concluded that a commissioner of the United States 

Centennial Commission held an office under the Constitution. The unpaid 

commission, appointed by the President, had been created by Congress in 1871 

and was to continue “until the close of” the 1876 centennial exhibition. See In re 

Corliss, 11 R.I. 638, 640, 642 (1876). The Attorney General, briefly addressing the 

Emoluments Clause, “entertain[ed] no doubt that, though their duties are of a 

15 Mechem also cited Vaughn v. English, 8 Cal. 39 (1857). Although the court did not expressly 

mention the need for continuance, it also did not (unlike Stanley and Evans) disclaim it, and the 

position at issue (clerk in a department of the state) appears to have had continuous, indefinite duties 

with a clearly defined tenure. See id. at 42; see also id. at 41 (argument of prevailing party). Vaughn 

merely established that an office could have its tenure defined by reference to that of a superior office. 

See Patton v. Bd. of Health, 59 P. 702, 705 (Cal. 1899).

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special and temporary character, they may properly be called officers of the 

United States during the continuance of their official functions.” Offices of Trust, 

15 Op. Att’y Gen. 187, 188 (1877) (emphasis added). He reasoned that “[t]he 

Government being interested in the performance of the[ir] duties, they constitute a 

public charge or office.” Id. The court in Corliss answered the question under the 

disqualification rules for presidential electors. See U.S. Const. art. II, § 1, cl. 2. 

The court likewise pointed to the importance of the high-profile international 

exhibition, and noted that the commission received a federal appropriation (to be 

repaid from any profits) and the charge of some federal property. See 11 R.I. at 

641–43. As far as we have determined, neither Corliss nor the Attorney General’s 

opinion has been called into question on this issue. See 1 Hinds’ Precedents at 609 

(1898 report endorsing holding of Corliss).

Second, it was the uniform view of the federal courts in this period that a receiver of an insolvent national bank, appointed (ultimately) by the Secretary of the 

Treasury, was an officer for purposes of a statute authorizing certain suits in 

federal court by “the United States or any officer thereof.” Platt v. Beach, 19 F. 

Cas. 836, 840 (E.D.N.Y. 1868); Stanton v. Wilkeson, 22 F. Cas. 1074, 1075 

(S.D.N.Y. 1876); Frelinghuysen v. Baldwin, 12 F. 395, 396–97 (D.N.J. 1882); 

Price v. Abbott, 17 F. 506, 507–08 (C.C.D. Mass. 1883) (Gray, Circuit Justice); 

United States v. Weitzel, 246 U.S. 533, 541 (1918). A receiver had statutory 

authority to bring suit, through a U.S. Attorney and under the direction of the 

Solicitor of the Treasury, “to take possession of all the property, books, and 

records of the bank, and to collect all debts due to it”; “upon [a court] order . . . to 

sell or compound bad or doubtful debts, and to sell all the . . . property of the 

bank”; and to hold the bank’s stockholders liable if necessary to pay the bank’s 

debts. See Price, 17 F. at 507; Platt, 19 F. Cas. at 841. In the first such case, Platt, 

the district court did not respond to the defendant’s argument from Maurice and 

Shelby that the position of a receiver was “occasional or transitory, depending 

upon fluctuations and exigencies,” appointed to “perform a specific duty,” upon 

the completion of which “his agency or service ceases,” id. at 837; see id. (“there 

is no office of receiver of national banks established by law”); id. at 840 (an office 

requires a “continuing” duty). The plaintiff had responded that a receiver “comes 

within every word of [Maurice’s] definition. His duties continue . . . and they 

would continue though the person of the receiver should be changed.” Id. at 839. 

Stanton was the only case to address the question of continuance. Judge Blatchford 

(later the author of Auffmordt) summarized Hartwell and simply stated: “A 

receiver of a national bank is in the public service of the United States. He is 

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Officers of the United States Within the Meaning of the Appointments Clause 

appointed pursuant to law. Vacation of office by the comptroller does not vacate 

the receivership. His duties are continuing and permanent.” 22 F. Cas. at 1075.16 

We believe it incorrect to treat the element of “continuance” as dispensible, 

given the constitutional text, the extensive practice and precedent (including 

Maurice) before the Civil War, and the Supreme Court’s authoritative opinions in 

Germaine and Auffmordt. The Attorney General was correct in 1907 when he 

affirmed that “the idea runs through all the cases that in order to constitute an 

office the employment must be continuing and not temporary,” relying particularly 

on Maurice, his 1898 opinion on the Bering Sea commission, and Germaine. 

Appointment—Holding of Two Offices—Commissioner of Labor, 26 Op. Att’y 

Gen. 247, 249 (1907). The Supreme Court of Mississippi was likewise correct in 

Shelby in 1858 when, relying particularly on Maurice, it “apprehend[ed] that it 

may be stated as universally true, that where an employment or duty is a continuing one, which is defined by rules prescribed by law and not by contract, such a 

charge or employment is an office.” 36 Miss. at 289. Yet “continuance” is not 

“permanence”; no case of which we are aware before the Civil War indicates that 

permanence is required, and the post-Civil War authority just discussed is best 

read as simply confirming that some temporary, non-personal positions may 

amount to offices. As Mechem himself put it, “certainly a position which is merely 

temporary and local cannot ordinarily be considered an office.” Mechem § 8, at 6 

(emphases added).

2. Defining a “Continuing” Position

No definition of “office” can be expected to harmonize all of the precedent or 

answer all cases that may arise. (Thus, our discussions of early authority should 

not be understood as necessarily endorsing every holding.) But the following two 

general rules encompass and harmonize most of them, particularly the earliest 

ones, with regard to the element of continuance or duration: First, an office exists 

where a position that possesses delegated sovereign authority is permanent, 

meaning that it is not limited by time or by being of such a nature that it will 

terminate “by the very fact of performance.” Bunn, 45 Ill. at 405. This rule is 

particularly laid out in the early Kennon case, which found an office to exist 

because the defendants were “to exercise continuously, and as a part of the regular 

16 Cf. Ex parte Siebold, 100 U.S. 371, 397–98 (1879) (holding that Appointments Clause was not 

violated when Congress authorized courts of law, rather than President or head of a department, to 

appoint election supervisors for a particular local election; not discussing question of continuance or 

citing Germaine or other cases); In re Hathaway, 71 N.Y. 238, 244 (1877) (court divided 4-3 in holding 

that person appointed as surrogate for a particular probate case was not a public officer under state 

constitution, because he performed “transient, occasional or incidental duties” for “special exigencies,” 

having “no general powers . . . to act in respect to all like cases”).

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and permanent administration of the government, important public powers, trusts, 

and duties.” 7 Ohio St. at 562–63; see also Sheboygan v. Parker, 70 U.S. 93, 96 

(1865) (applying this formulation); Patton v. Bd. of Health, 59 P. 702, 706 (Cal. 

1899) (after survey, providing similar summary of the “reasonably well settled” 

rule for positions with “continuing and permanent” duties). The “continuing” 

duties and powers to which these cases refer should not, however, be understood 

as necessarily involving continuous activity, as shown in Kennon itself, which 

involved a standing power to appoint to and remove from specified offices. See 7 

Ohio St. at 557. Similarly, a federal judge holds a permanent position even if he 

has a lull in his docket. His “services are general and indefinite in a line of duty,” 

Deputy Clerks, 29 Op. Att’y Gen. at 596, and he has “general functions” and a 

“claim or right to be designated, or to act” should a case arise, Auffmordt, 137 U.S. 

at 327.

Second, if a position that possesses delegated sovereign authority is temporary 

(because of, for example, an express expiration date or the nature of its duties), 

then whether it qualifies as “continuing,” and thus an office, will depend on the 

presence of three factors that the early authorities discuss in connection with 

temporariness. The line will not always be bright, as Kennon recognized in 

declining to say “[h]ow far the general assembly may go in constituting temporary 

agencies and commissioners for temporary, incidental, transient, or occasional 

purposes . . . without thereby creating an office,” 7 Ohio St. at 559 (emphasis 

added); but it can be discerned. (1) The position’s existence should not be 

personal: The duties should “continue, though the person be changed,” Maurice, 

26 F. Cas. at 1214, and an incumbent’s tenure should not depend on whether “the 

office of his superior” is vacated, Hartwell, 73 U.S. at 393; see also Tenure of 

Office, 2 Op. Att’y Gen. at 412; Corwin, President at 85. (2) The position should 

not be “transient”: The less fleeting and more enduring it is (or is likely to be), the 

more likely it is to be a continuing seat of power and thus an office. (3) The duties 

should be more than “incidental” to the regular operations of government. 

Although these last two factors escape precise definition, and the last of them does 

not directly bear on a temporal aspect, they nevertheless appear throughout the 

early authority—in Pool, In re Oaths, and Kennon, for example; and they capture 

other authority employing similar terms—such as special work; special purposes; 

a special, specific, single, or particular controversy or case; a special commission; 

specified claims; local or limited work; and extraordinary or emergency exigencies. See, e.g., Auffmordt, 137 U.S. at 326–27; Germaine, 99 U.S. at 512; Inspector of Customs, 4 Op. Att’y Gen. at 163; Marine Corps, 2 Op. Att’y Gen. at 78–

79; Hamilton, The Defence No. 37, in 20 Papers of Alexander Hamilton at 20; see 

also Eliason, 86 N.C. at 241 (“The true test of a public office seems to be that it is 

parcel of the administration of government.”); Corwin, President at 85 (an “office” 

at common law was an “institution” to which “certain frequently recurrent and 

naturally coherent duties [were] assigned more or less permanently”). Thus, the 

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Officers of the United States Within the Meaning of the Appointments Clause 

nature of the delegated sovereign authority will affect whether a temporary 

position is an office, even though a person holding a permanent position “is not 

the less a publick Officer where his Authority is confined to narrow Limits.” 

Burnell, Carth. at 479; see also Shelby, 36 Miss. at 277 (similar). One reason for 

considering whether a position is “incidental” is to ensure against evasion of the 

Appointments Clause: For example, the position of Attorney General presumably 

still would be an office if Congress provided for it to expire each year but reauthorized it annually.

3. A Few Recurring Areas

The element of continuance provides an additional reason why a typical contractor does not, and need not, hold an office for purposes of the Appointments 

Clause. Maurice focused on continuance in explaining the distinction between an 

office and a contract (even while recognizing that one might contract to carry out 

an office). See 26 F. Cas. at 1214–15. Hartwell explained that a “government 

contract . . . from its nature is necessarily limited in its duration and specific in its 

objects,” unlike a government office. 73 U.S. at 393. And the Court held in Hall, 

discussed above in Part II.A.3, that certain persons did not hold offices because 

they were analogous to “parties who, pursuant to law, enter into stipulations 

limited in point of time, with a State, for the erection, alteration, or repair of public 

buildings, or to supply the officers or employees who occupy them with fuel, light, 

stationery, and other things necessary for the public service.” 103 U.S. at 10 

(emphasis added). Similarly, Attorney General Wirt determined that “an engagement with a gentleman of the bar, whereby, for a valuable consideration, he is to 

render his professional services in a given case, is a contract, a bargain, an 

agreement, in the legal sense of these terms,” not an appointment to an office, and 

therefore was covered by a statute barring contracts between members of Congress 

and federal officers. Contracts With Members of Congress, 2 Op. Att’y Gen. 38, 

40 (1826) (emphases altered); see id. (referring to contracts “for the service of a 

lawyer, a physician, or a mail carrier, an army purveyor, or a turnpike road 

maker”). He also interpreted the “office” of architect of the public buildings to be

a contractual position rather than an office, where the architect had been hired to 

complete “specified work” of “a temporary and limited character,” rather than to 

occupy a position “of a permanent nature.” Contract With Architect, 5 Op. Att’y 

Gen. at 754, 756; see id. at 755–56 (recognizing the frequency of annual contracts). Finally, as discussed above in Part II.A.3, the House of Representatives in 

1806 resoundingly rejected the claim that a contractor held an office within the 

meaning of the Incompatibility Clause. Mail carriers provided a recurring example 

of contractors, see 15 Annals of Cong. at 880, 883, 885, 887, 890, and contracts to 

carry the mail were limited to one year, see White, Federalists at 182; see also 15 

Annals of Cong. at 882 (statement of Rep. Randolph, in favor of resolution, that “a 

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contractor is an officer pro tempore—it is not an office in perpetuity, but created 

for a time, and for a particular purpose”).

The element of continuance also justifies our previous conclusion that authorizing a private plaintiff to bring a qui tam suit on behalf of the United States under 

the False Claims Act, see 31 U.S.C. § 3730 (2000), does not violate the Appointments Clause, because a qui tam relator does not hold an office. Our current 

reasoning does, however, differ some from that previously given, under which it 

was sufficient that the relator was not employed by the federal government. See 

Separation of Powers, 20 Op. O.L.C. at 146 & n.65. A qui tam relator does at least 

present a question under the Appointments Clause, see Vt. Agency of Natural Res. 

v. United States, 529 U.S. 765, 778 n.8 (2000) (raising and reserving the question), 

because Congress has allowed him essentially to appoint himself to act as a civil 

prosecutor for the United States in a case. But such an “appointment” is a temporary and personal one, likely involving only occasional duties, and extending only 

to a single case; and the relator’s authority even over that case is confined in 

certain ways. See id. at 769–70, 772–73; see also United States ex rel. Stone v. 

Rockwell Int’l Corp., 282 F.3d 787, 805 (10th Cir. 2002) (finding no Appointments Clause violation, where relators “are not subject to the requirement . . . that 

the definition of an officer ‘embraces the ideas of tenure, duration, emolument, 

and duties, and the latter were continuing and permanent, not occasional or 

temporary’”) (quoting Germaine, 99 U.S. at 511–12, citing Auffmordt, 137 U.S. at 

327, and concluding that Buckley must be “construed in conformity” with them). 

In this respect, the qui tam relator is similar to the contractors discussed above; 

and thus, whatever the relevance of his “appointing” himself (in contrast to a 

person who contracts with the government), the distinction does not pose a 

problem under the Appointments Clause. For similar reasons, we reaffirm our 

prior conclusion (but not all of its reasoning) that the federal government’s 

participation in binding arbitration ordinarily does not raise an Appointments 

Clause problem. See, e.g., Separation of Powers, 20 Op. O.L.C. at 148–49; see 

also supra note 14 (discussing dispute-resolution proposal by President Cleveland).

At the same time, the element of continuance, properly understood, also explains why an “independent counsel” under the Ethics in Government Act of 1978, 

28 U.S.C. §§ 591–599 (1982 ed., Supp V), undoubtedly was an officer, even 

though the position was, by the nature of its duties, temporary and largely casespecific. The Court in Morrison v. Olson, 487 U.S. 654 (1988), thought it “clear 

that appellant is an ‘officer’ of the United States, not an ‘employee,’” citing 

Buckley’s discussion of this distinction based on Auffmordt and Germaine. Id. at 

671 n.12. Justice Scalia in dissent agreed, adding that none of the parties disputed 

this, the only question being whether the counsel was a principal or inferior 

officer. Id. at 715. Although the position of a particular independent counsel was 

temporary, the position was non-personal; it was not “transient,” but rather 

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indefinite and expected to last for multiple years, with ongoing duties, the hiring of 

a staff, and termination only by an affirmative determination that all matters within 

the counsel’s jurisdiction were at least substantially complete; and it was not 

“incidental,” but rather possessed core and largely unchecked federal prosecutorial 

powers, effectively displacing the Attorney General and the Justice Department 

within the counsel’s court-defined jurisdiction, which was not necessarily limited 

to the specific matter that had prompted his appointment. See id. at 660–64 

(opinion of Court), 667–68, 671; id. at 718 (Scalia, J., dissenting).

C. Several Additional Criteria Are Incidental, 

Not Distinct Elements of an Office 

Courts and others have sometimes discussed several additional criteria, beyond 

the two elements of delegated sovereign authority and continuance detailed above, 

as relevant to whether a position is a public office and when an individual is an 

officer. We discuss five of these, explaining that they are incidents that commonly 

follow from the existence of a properly constituted office, not essential elements of 

an office. They may provide evidence of whether an office exists under the two 

essential elements, but, depending on the circumstances, an office subject to the 

Appointments Clause may exist without them.

1. Method of Appointment

First, courts sometimes have considered a person’s status as an officer by reference to his method of appointment. The Supreme Court has considered an 

individual’s appointment pursuant to the procedures of the Clause in determining 

that he was an “officer” for certain statutory purposes. For example, the Court in 

Wise v. Withers, 7 U.S. (3 Cranch) 331 (1806), held that a justice of the peace was 

an officer under a militia-exemption statute given that he was appointed by the 

President: “Under the sanction of a law, he is appointed, by the president. . . . We 

know not by what terms an officer can be defined, which would not embrace this 

description of persons.” Id. at 336. In Hartwell, one reason the Court held that a 

Treasury clerk was an officer of the United States under an embezzlement statute 

was that he “was appointed by the head of a department within the meaning of the 

constitutional provision upon the subject of the appointing power.” 73 U.S. at 

393–94. The statutory cases on receivers of national banks discussed above in Part 

II.B.1 employed some of the same reasoning. Conversely, courts also have 

concluded that an individual who is not appointed in accordance with the Appointments Clause is not technically an “Officer of the United States.” Maurice 

concluded that an agent not appointed in accordance with the Appointments 

Clause was “not legally an officer” (even though he had carried out the duties of a 

duly constituted office). 26 F. Cas. at 1216. In United States v. Smith, 124 U.S. 

525 (1888), the Court held that a clerk in the office of a collector of customs was 

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not a “public officer” under an embezzlement statute because he was not appointed 

consistent with the Clause: “An officer of the United States can only be appointed 

by the President, by and with the advice and consent of the Senate, or by a court of 

law, or the head of a department. A person in the service of the government who 

does not derive his position from one of these sources is not an officer of the 

United States in the sense of the constitution.” Id. at 531–32; see also Germaine, 

99 U.S. at 509–10 (similar); Burnap v. United States, 252 U.S. 512, 516 (1920) 

(“Whether the incumbent is an officer or an employee is determined by the manner 

in which Congress has specifically provided for the creation of the several 

positions, their duties and appointment thereto.”).

It is true that an individual not properly appointed under the Appointments 

Clause cannot technically be an officer of the United States: “Unless a person in 

the service of the Government, therefore, holds his place by virtue of an appointment by the President, or of one of the courts of justice or heads of Departments 

authorized by law to make such an appointment, he is not, strictly speaking, an 

officer of the United States.” United States v. Mouat, 124 U.S. 303, 307 (1888) 

(emphasis added). But such a person may nevertheless be required to be appointed 

as prescribed by the Clause in order constitutionally to exercise his authority. A 

contrary conclusion would render the Appointments Clause a matter of etiquette or 

protocol, see Buckley, 424 U.S. at 125, rather than one of the “significant structural safeguards of the constitutional scheme,” Edmond, 520 U.S. at 659. See supra

Part I; cf. Kennon, 7 Ohio St. at 557–58 (“The official or unofficial character of 

the defendants is to be determined, not by their name, nor by the presence or 

absence of an official designation, but by the nature of the functions devolved 

upon them.”). Under such a (tautological) reading, the Clause would require a 

certain means of appointment only for persons appointed by that means. As early 

as Maurice it was recognized that a person might in fact perform the duties of an 

office under the United States and yet have been unconstitutionally appointed to it. 

This truth also is recognized in the common law doctrine of de facto officers, by 

which the acts of a person not properly appointed to office might nevertheless be 

held valid. See Mechem § 26, at 10 (summarizing doctrine); id. §§ 315–345, at 

211 et seq. (chapter concerning “officers de facto”); see also Inspectors of 

Customs, 4 Op. Att’y Gen. at 165 (apparently assuming applicability of doctrine in 

event of constitutional challenge to appointment); Ryder v. United States, 515 U.S. 

177, 180–84 (1995) (discussing doctrine but declining to apply it in a “timely 

challenge to the constitutional validity of the appointment of an officer who 

adjudicate[d]” a court-martial). At the same time, the Appointments Clause does 

not prevent Congress from treating a position that is not, in the constitutional 

sense, an office under the United States as nevertheless subject to statutory 

restrictions on offices or officers. See Corwin, President at 91 (noting that 

Congress often has done this); Steele v. United States, 267 U.S. 505, 506–08 

(1925) (in dicta, construing statutory reference to “a civil officer” as not limited to 

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“an officer in the constitutional sense” and including a general prohibition agent 

appointed by the Commissioner of Internal Revenue and a deputy marshal 

appointed by a marshal); see also supra Part II.B.1 (discussing Senate-confirmed 

commissioners under Jay Treaty); cf. Employee’s Compensation Act—Assistant 

United States Attorney, 31 Op. Att’y Gen. 201, 202–04 (1918) (recognizing that 

Congress might provide for appointment to position by President or head of 

department even though position was not an office, in which case one must 

analyze duties to determine position’s nature).

2. Established by Law

Second, other authorities have stated that an office is created by law. This 

statement, like the proposition that a person must be appointed consistent with the 

Appointments Clause to be an officer, is true in one sense, and “law” can be highly 

relevant to whether an office exists, but the statement also can confuse the analysis 

if not properly understood. The Appointments Clause does provide that offices not 

recognized by the Constitution itself “shall be established by Law,” thus lodging in 

Congress ultimate authority over the creation of most offices. U.S. Const. art. II, 

§ 2, cl. 2; see Maurice, 26 F. Cas. at 1213–14; Limitations on Presidential Power 

to Create a New Executive Branch Entity to Receive and Administer Funds Under 

Foreign Aid Legislation, 9 Op. O.L.C. 76, 77–78 (1985).17 The Ineligibility Clause 

reinforces this view, by providing that “[n]o Senator or Representative shall, 

during the Time for which he was elected, be appointed to any civil Office under 

the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time,” thereby contemplating that Congress will authorize offices, and reducing the incentive for members of 

Congress to do so in hopes of being appointed to them. U.S. Const. art. I, § 6 

(emphasis added). Thus, an office subject to the Appointments Clause will 

ordinarily be a position that has been “established by Law”—by or under authority 

of a statute. But the rule for which sorts of positions have been “established by 

Law” such that they amount to offices subject to the Appointments Clause cannot 

be whether a position was formally and directly created as an “office” by law. 

Such a view would conflict with the substantive requirements of the Appointments 

Clause. Congress could not evade the Appointments Clause by, for example, the 

artifice of authorizing a contract for the supervision of the Justice Department, on 

the ground that no “office” of Attorney General would be created by law—even 

17 The President has authority to appoint to diplomatic offices without an authorizing act of Congress, because the Constitution itself expressly recognizes such offices under the law of nations. See, 

e.g., Ambassadors, 7 Op. Att’y Gen. at 192–93; Nomination of Sitting Member of Congress to be 

Ambassador to Vietnam, 20 Op. O.L.C. 284, 286–92 (1996). Regarding the time at which such an 

office is considered created, see id. at 292–93.

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where the statutory authorization for the contract were to delegate sovereign 

authority and establish the continuance of the contractual position. Cf. Maurice, 26 

F. Cas. at 1214, 1219 (recognizing that the government might enter into “a 

contract to perform the duties of” a properly established office, but that such a 

contract would be an “irregular” appointment that would violate the Appointments 

Clause). Conversely, a contract or other mere employment “may be created by 

law,” Mechem § 5, at 5, and governmental contracts long have been highly 

regulated, see, e.g., Validity of Executive Order Prohibiting Government Contractors From Discriminating in Employment Practices on Grounds of Race, Color, 

Religion, or National Origin, 42 Op. Att’y Gen. 97, 98–103 (1961) (collecting 

examples). Contracts do not, simply because created or regulated by law, create an 

office.

Thus, whether an office has been established by law does not turn on whether 

Congress has formally created an “office” by law, but rather on whether the two 

necessary elements of an office discussed above in Parts II.A and II.B are present 

“by law.” The Constitution requires an examination of “the nature of the functions 

devolved upon” a position by legal authority, Kennon, 7 Ohio St. at 558, not the 

way or form in which they are devolved. Any position that is an office in the 

constitutional sense under the two elements we have described, and has not been 

created ultra vires, will have been created by law in some fashion, regardless of 

how labeled. It necessarily follows that “the fact that the powers in question are 

created and conferred by law, is an important criterion,” and that an office “finds 

its source and limitations in some act or expression of the governmental power.” 

Mechem § 5, at 5 (emphasis added); see id. § 1, at 1 (powers of an office are 

“created and conferred by law”). To be subject to the Appointments Clause, a 

position must include some continuing legal authority, as opposed to simply 

existing to assist someone who does have legal authority or having duties defined 

and existing only at the whim of its superior: There must be some sort of “line of 

duty prescribed by law,” Deputy Clerks, 29 Op. Att’y Gen. at 595–96, and power 

“defined by rules prescribed by law,” Shelby, 36 Miss. at 289. As Buckley and 

many other authorities thus recognize, the source of any such authority, and 

particularly any statutory delineation by Congress, will unavoidably help to 

determine whether an office exists. See, e.g., Buckley, 424 U.S. at 131, 141 

(referring, respectively, to “responsibility under the public laws” and duties 

“exercised pursuant to a public law”); Freytag, 501 U.S. at 881 (noting that duties 

of a special trial judge were “specified by statute,” and contrasting special masters, 

hired “on a temporary, episodic basis, whose positions are not established by law, 

and whose duties and functions are not delineated in a statute”); id. at 901 (opinion 

of Scalia, J.) (agreeing with this analysis); Applicability of Appointment Provisions 

of the Anti-Drug Abuse Act of 1988 to Incumbent Officeholders, 12 Op. O.L.C. 

286, 288 n.5 (1988) (noting that Congress had by statute authorized Attorney 

General to create subordinate offices, which he had done by order); Maurice, 26 F. 

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Cas. at 1213–15 (concluding that, at least for purposes of a suit to enforce a 

purported officeholder’s bond, the office of agent of fortifications had been created 

by congressionally approved and authorized Army regulations); Barton, 24 F. Cas. 

at 1027 (explaining background rule that, where no law specifies otherwise, a 

deputy has “the same powers and duties” as his principal); Mechem § 570, at 373 

(same); Ambassadors and Other Public Ministers, 7 Op. Att’y Gen. at 193, 196–

97, 202, 212 (discussing sources of authority of diplomatic offices, even though 

not created by statute). As Mechem put it: “The authority of a public officer in any 

given case consists of those powers which are expressly conferred upon him by the 

act appointing him, or which are expressly annexed to the office by the law 

creating it or some other law referring to it, or which are attached to the office by 

common law as incidents to it.” Mechem § 507, at 332.

3. Oath of Office

Third, although “[p]ublic officers are usually required by law to take the oath of 

office,” doing so “is not an indispensable criterion and the office may exist 

without it, for . . . the oath is a mere incident and constitutes no part of the office.” 

Mechem § 6, at 6; see also Oath of Clerks in Executive Departments, 12 Op. Att’y 

Gen. 521, 521–22 (1868) (similar). Article VI, Clause 3, of the Constitution 

requires that “all executive and judicial Officers, both of the United States and of 

the several States” take an oath or affirmation to support the Constitution. Only 

after separately knowing whether an office exists could one apply this requirement. Burnell demonstrates this, as the applicability of an oath requirement turned 

on whether the Censor of the College of Physicians held an office. See Carth. at 

478; see also Opinion of the Justices, 3 Greenl. (Me.) at 483 (similar). Similar 

reasoning applies to a bond, which is “usually required” of officers “to whom are 

entrusted the collection and custody of public money, and public ministerial 

officers whose actions may affect the rights and interests of individuals.” Mechem

§ 263, at 165; see id. §§ 253–254, at 162 (oath and bond requirements are common 

for persons appointed to a public office); see also 1 Hinds’ Precedents at 608 

(1898 report, concluding that certain commissioners were not officers, in part 

because “they give no bond and take no oath”).

4. Emoluments

Fourth, an emolument is also a common characteristic of an office, as Hartwell 

indicates, 73 U.S. at 393, but it too is not essential: “Like the requirement of an 

oath,” provision for pay “may aid in determining the nature of the position, but it 

is not conclusive. . . . As in the case of the oath, the salary or fees are mere 

incidents and form no part of the office.” Mechem § 7, at 6; see id. at 6 n.3 (“it is 

not a sine qua non”); Kennon, 7 Ohio St. at 559 (“That compensation or emolument is a usual incident to office, is well known; but that it is a necessary element 

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in the constitution of an office, is not true.”). Confirming this, the law of public 

offices recognized offices of profit, “to which salary, compensation or fees are 

attached,” Mechem § 13, at 8, and offices of honor, “to which no compensation 

attaches,” id. § 15, at 9. See also Emoluments Clause, 29 Op. O.L.C. at 61

(discussing offices of profit). The Constitution recognizes both types of offices. 

See, e.g., U.S. Const. art. I, § 3, cl. 7 (punishment for impeachment may include 

“disqualification to hold and enjoy any Office of honor, Trust or Profit under the 

United States”). In addition, it separately creates the office of President, id. art. II, 

§ 1, cl. 1, and provides for its compensation, id. cl. 7. If Presidents were to serve 

without pay, as Benjamin Franklin had proposed, see James Madison, Notes of 

Debates in the Federal Convention of 1787, at 51–55 (June 2, 1787) (1987), they 

would no less hold an office.

Furthermore, any understanding of an “office” that would require an “emolument” akin to the compensation that a person on the regular payroll of the federal 

government receives would conflict with the original meaning of the Appointments Clause as revealed by earliest practice. In the first decade under the 

Constitution, most federal officers, particularly those outside the capital, received 

no compensation from the government, much less a regular one. Instead, they 

received authority to collect fees:

By far the larger number of federal officials were compensated by 

fees for services rendered. Nearly the whole of the field service was 

paid on this basis, including the collectors, naval officers, and surveyors; the supervisors and inspectors of revenue; the attorneys and 

marshals; the deputy postmasters; and the consuls. . . . Officials were 

compensated if there was a demand for their services; otherwise the 

government expended nothing. They were paid on the spot, by those 

whom the law required to deal with them. There was no problem of 

collection—the self-interest of the official was sufficient. Public 

posting of the schedule of fees and stern laws against taking excessive amounts were relied upon to protect the public. English precedent and contemporary convenience spread the system far and wide.

White, Federalists at 298. To take one example, many consuls were compensated 

through the following schedule of fees: two dollars from a U.S. citizen for 

authenticating a protest, declaration, or deposition; five percent of a citizen’s estate 

for taking it into possession and settling it; twenty-five cents for administering 

oaths and affirmations; and a dollar for certifying the delivery of merchandise. See 

1 Am. St. Papers, Misc. at 307. Officials so compensated were no less officers of 

the United States. At the same time, where a temporary position does include 

emoluments provided by the government, the nature of the pay may provide some 

evidence of whether the position is an office under the factors discussed in Part 

II.B.2. In cases holding that temporary positions were not offices, courts have 

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remarked that the pay provided was per diem or otherwise based on the amount of 

work done, rather than involving a salary. See, e.g., Bunn, 45 Ill. at 409; Germaine, 99 U.S. at 512; see also Shepherd v. Commonwealth, 1 Serg. & Rawle 1 

(Pa. 1814) (commissioner regarding land claims, paid by the day); 39 Annals of 

Cong. at 1408–10 (examiner of land offices, paid by the day).

Recognizing the various kinds of emoluments that may attach to an office, and 

the incidental nature of having any emolument, demonstrates the error of some of 

our prior opinions in concluding that the Appointments Clause does not apply to 

persons who are not employees of the federal government, even if they are 

delegated permanent federal authority to enforce federal law. See, e.g., Separation 

of Powers, 20 Op. O.L.C. at 145–48. The primary cases on which we relied for 

this view—Maurice, Hartwell, Germaine, and Auffmordt, all discussed above—do 

not resolve this question, and to the extent they speak to it do not clearly point in 

the direction that our prior opinions took. Only Auffmordt directly confronted the 

requirements of the Appointments Clause, but its holding does not turn on whether 

a person is an employee (as opposed to the nature of his duties), nor did the Court 

hold or state that a private actor cannot be an officer, which would have been at 

odds with Maurice’s recognition that a contractor might hold a position in 

violation of the Appointments Clause.

In addition, the general language of these cases allows for an office that does 

not involve government employment in the modern sense. Maurice, for example, 

said that an office is “a public charge or employment,” 26 F. Cas. at 1214 

(internal quotation marks omitted; emphasis added), and Hartwell defined an 

office as “a public station, or employment,” 73 U.S. at 393 (emphasis added). 

Maurice, among others, also does state that an “office is ‘an employment,’” 26 F. 

Cas. at 1214, but such a statement must be read in a contemporaneous rather than 

anachronistic sense, broadly to include anyone engaged by the government, 

whether an independent contractor, “employee,” or other agent. The pertinent 

definition of “employ” is: 

To engage in one’s service; to use as an agent or substitute in transacting business; to commission and entrust with the management of 

one’s affairs. The president employed an envoy to negotiate a treaty. 

Kings and States employ ambassadors at foreign courts. 

Noah Webster, An American Dictionary of the English Language, tit. Employ 

(1828). Thus, even an “agreement” to provide services (such as “to make hay” or 

“plough land”) was an “employment.” Jacob, tit. Office; Cunningham, tit. Office. 

As detailed above regarding contractors (see supra Parts II.A.3.b & II.B.3) and the 

creation of offices “by law” (see supra Part II.C.2), what matters is the nature of a 

position—its authority and continuance—not its label, and thus not whether 

Congress placed it within the federal service. Our prior analysis, notwithstanding 

its conclusion, went far toward acknowledging this when it recognized the 

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relevance to Appointments Clause analysis of Lebron v. National Railroad 

Passenger Corp., 513 U.S. 374 (1995), in which the Court held that the First 

Amendment applied to a federally created corporation notwithstanding a statute 

providing that the corporation was not a department, agency, or instrumentality of 

the government. See Separation of Powers, 20 Op. O.L.C. at 147–48 & n.70.18 

5. Commission

Finally, although the holder of an office usually receives a commission, that 

characteristic too, like an oath or pay, is incidental rather than essential. See 

Mechem § 12, at 8. The Constitution, in Article II, Section 3, requires that the 

President “shall Commission all the Officers of the United States.” As with the 

oath requirement, as well as the recognition that offices are created by law, one 

must know who the officers are before being able to apply this provision. That a 

person has a commission may no doubt provide evidence that he holds an office. 

See, e.g., 15 Annals of Cong. at 888–89 (“There is a Constitutional definition of 

the word officer in the third section of the second article of the Constitution, which 

provides that the President ‘shall commission all the officers of the United States.’ 

Here then is a Constitutional definition of what is meant by a person holding an 

office, viz., a person commissioned by the President.”) (Rep. Bidwell). But it does 

not follow that a person not commissioned does not hold an office, or, conversely, 

that only officers have commissions.

III. Conclusion

For all of these reasons, we conclude that an individual who will occupy a 

position to which has been delegated by legal authority a portion of the sovereign 

powers of the federal government, and which is “continuing,” must be appointed 

pursuant to the Appointments clause. Conversely, a position that does not satisfy 

one of these two elements need not be filled pursuant to that Clause.

STEVEN G. BRADBURY 

Acting Assistant Attorney General 

Office of Legal Counsel 

18 Similarly, whether for constitutional purposes a person within the federal government is a mere 

“employee” or rather holds an office subject to the Appointments Clause will turn on the applicability 

of the two essential elements we have set out. See generally Buckley, 424 U.S. at 126 n.162.

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