b'Officers of the United States Within the\nMeaning of the Appointments Clause\nA position to which is delegated by legal authority a portion of the sovereign powers of the federal\ngovernment and that is \xe2\x80\x9ccontinuing\xe2\x80\x9d is a federal office subject to the Constitution\xe2\x80\x99s Appointments\nClause. A person who would hold such a position must be properly made an \xe2\x80\x9cOfficer[] of the United\nStates\xe2\x80\x9d by being appointed pursuant to the procedures specified in the Appointments Clause.\n\nApril 16, 2007\n\nMEMORANDUM OPINION FOR THE GENERAL COUNSELS\nOF THE EXECUTIVE BRANCH\nI. The Safeguards of the Appointments Clause ..................................................... 74\nII. The Essential Elements of an Office Subject to the Appointments Clause ...... 76\nA. The Position Must Possess Delegated Sovereign Authority of the\nFederal Government .................................................................................. 78\n1. The Foundations of This Element ....................................................... 78\n2. Defining Delegated Sovereign Authority............................................ 87\n3. Three Arguably Relevant Characteristics ........................................... 93\na. Discretion ..................................................................................... 93\nb. Contractors................................................................................... 96\nc. State Officers ............................................................................... 99\nB. The Position Must Be \xe2\x80\x9cContinuing\xe2\x80\x9d ........................................................ 100\n1. The Foundations of This Element ..................................................... 101\n2. Defining a \xe2\x80\x9cContinuing\xe2\x80\x9d Position ..................................................... 111\n3. A Few Recurring Areas .................................................................... 113\nC. Several Additional Criteria Are Incidental, Not Distinct Elements of\nan Office .................................................................................................. 115\n1. Method of Appointment .................................................................... 115\n2. Established by Law ........................................................................... 117\n3. Oath of Office ................................................................................... 119\n4. Emoluments ...................................................................................... 119\n5. Commission ...................................................................................... 122\nIII. Conclusion .................................................................................................... 122\nThis memorandum addresses the requirements of the Appointments Clause of\nthe Constitution, which sets out the exclusive methods of appointing all \xe2\x80\x9cOfficers\nof the United States\xe2\x80\x9d whose appointments are not otherwise provided for in the\nConstitution. U.S. Const. art. II, \xc2\xa7 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 \xe2\x80\x9coffice\xe2\x80\x9d\nis subject to the Appointments Clause. That is, a position, however labeled, is in\n\n73\n\n\x0cOpinions of the Office of Legal Counsel in Volume 31\n\nfact a federal office if (1) it is invested by legal authority with a portion of the\nsovereign powers of the federal government, and (2) it is \xe2\x80\x9ccontinuing.\xe2\x80\x9d A person\nwho would hold such a position must be properly made an \xe2\x80\x9cOfficer[] of the United\nStates\xe2\x80\x9d by being appointed pursuant to the procedures specified in the Appointments Clause.\nI. The Safeguards of the Appointments Clause\nThe Appointments Clause provides:\n[The President] shall nominate, and by and with the Advice and\nConsent 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\nCongress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of\nLaw, or in the Heads of Departments.\nId. The Appointments Clause, as the Supreme Court has explained, reflects more\nthan a \xe2\x80\x9cfrivolous\xe2\x80\x9d concern for \xe2\x80\x9cetiquette or protocol.\xe2\x80\x9d Buckley v. Valeo, 424 U.S.\n1, 125 (1976) (per curiam). Rather, the Clause limits the exercise of certain kinds\nof governmental power to those persons appointed pursuant to the specific\nprocedures it sets forth for the appointment of \xe2\x80\x9cofficers.\xe2\x80\x9d As the Supreme Court\nexplained in Buckley:\nWe think that the term \xe2\x80\x9cOfficers of the United States\xe2\x80\x9d as used in Art.\nII, defined to include \xe2\x80\x9call persons who can be said to hold an office\nunder the government,\xe2\x80\x9d 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 \xe2\x80\x9cOfficer\nof the United States,\xe2\x80\x9d and must, therefore, be appointed in the manner prescribed by \xc2\xa7 2, cl. 2, of that Article.\nId. at 125\xe2\x80\x9326 (citation omitted; quoting United States v. Germaine, 99 U.S. 508,\n510 (1879)); see also id. at 132 (\xe2\x80\x9cUnless their selection is elsewhere provided for,\nall officers of the United States are to be appointed in accordance with the\nClause. . . . No class or type of officer is excluded because of its special functions.\xe2\x80\x9d); id. at 136 (noting that prior cases allowing restrictions on President\xe2\x80\x99s\nremoval power had been careful not to suggest that his appointment power could\nbe infringed). Applying this understanding, the Court in Buckley unanimously held\nthat the Appointments Clause required that the enforcement, regulatory, and other\nadministrative powers of the Federal Election Commission could properly \xe2\x80\x9cbe\nexercised only by \xe2\x80\x98Officers of the United States,\xe2\x80\x99 appointed in conformity with\xe2\x80\x9d\n\n74\n\n\x0cOfficers of the United States Within the Meaning of the Appointments Clause\n\nthe Clause. Id. at 143; see id. at 267 (White, J., concurring in part and dissenting in\npart) (agreeing). Because the members of the Commission had not been so\nappointed, the Commission could not constitutionally exercise these powers. Id. at\n141\xe2\x80\x9343 (opinion of Court); see also id. at 126\xe2\x80\x9327 (describing existing appointment\nprocedure).\nThis Office also has long taken the same view of the force of the Appointments\nClause. We have concluded, for example, that it is not \xe2\x80\x9cwithin Congress\xe2\x80\x99s power\nto exempt federal instrumentalities from the Constitution\xe2\x80\x99s structural requirements,\nsuch as the Appointments Clause\xe2\x80\x9d; that Congress may not, for example, resort to\nthe corporate form as an \xe2\x80\x9cartifice\xe2\x80\x9d to \xe2\x80\x9cevade the \xe2\x80\x98solemn obligations\xe2\x80\x99 of the\ndoctrine of separation of powers,\xe2\x80\x9d The Constitutional Separation of Powers\nBetween the President and Congress, 20 Op. O.L.C. 124, 148 n.70 (1996)\n(\xe2\x80\x9cSeparation of Powers\xe2\x80\x9d); and that the \xe2\x80\x9cmethods of appointment\xe2\x80\x9d the Appointments Clause specifies \xe2\x80\x9care exclusive,\xe2\x80\x9d Common Legislative Encroachments on\nExecutive Branch Authority, 13 Op. O.L.C. 248, 249 (1989) (\xe2\x80\x9cLegislative Encroachments\xe2\x80\x9d). Indeed, the Court\xe2\x80\x99s conclusion in Buckley that the methods of\nappointment in the Appointments Clause are exclusive for anyone who can be said\nto hold an office under the United States was anticipated by a line of Attorney\nGeneral opinions dating back to well before the Civil War. See, e.g., Appointment\nand Removal of Inspectors of Customs, 4 Op. Att\xe2\x80\x99y Gen. 162, 164 (1843); see also\nCivil Service Comm\xe2\x80\x99n, 13 Op. Att\xe2\x80\x99y Gen. 516, 518 (1871) (Appointments Clause\n\xe2\x80\x9cmust be construed as excluding all other modes of appointment\xe2\x80\x9d of executive and\njudicial officers). Moreover, the text of the Appointments Clause emphatically\napplies to \xe2\x80\x9call\xe2\x80\x9d officers of the United States, unless their method of appointment is\n\xe2\x80\x9cotherwise provided for\xe2\x80\x9d in the Constitution.\nThe requirements of the Appointments Clause are \xe2\x80\x9camong the significant structural safeguards of the constitutional scheme\xe2\x80\x9d and are \xe2\x80\x9cdesigned to preserve\npolitical accountability relative to important government assignments.\xe2\x80\x9d Edmond v.\nUnited States, 520 U.S. 651, 659, 663 (1997). The Clause \xe2\x80\x9cis a bulwark against\none branch aggrandizing its power at the expense of another branch,\xe2\x80\x9d particularly\nby preventing Congress from taking to itself the appointment power, as was at\nissue in Buckley, or otherwise stripping that power from the other Branches. Ryder\nv. United States, 515 U.S. 177, 182 (1995). By vesting the selection of principal\nofficers in the President and of inferior officers in the President or certain other\nofficers of the Executive or Judicial Branches, the Clause \xe2\x80\x9cprevents congressional\nencroachment upon\xe2\x80\x9d those branches, Edmond, 520 U.S. at 659, and supports the\nPresident\xe2\x80\x99s authority and duty to see to the execution of the laws, Printz v. United\nStates, 521 U.S. 898, 922\xe2\x80\x9323 (1997). But the Appointments Clause \xe2\x80\x9cis more: it\npreserves another aspect of the Constitution\xe2\x80\x99s structural integrity by preventing the\ndiffusion of the appointment power.\xe2\x80\x9d Ryder, 515 U.S. at 182 (internal quotation\nmarks omitted). Thus, in Ryder the Court held invalid a military court\xe2\x80\x99s affirmance\nof a conviction where, even though the court had been appointed by an Executive\n\n75\n\n\x0cOpinions of the Office of Legal Counsel in Volume 31\n\nBranch officer, the appointing official was not among those specified in the\nAppointments Clause. Id. at 179; see also United States v. Maurice, 26 F. Cas.\n1211, 1216, 1219 (C.C.D. Va. 1823) (No. 15,747) (Marshall, Circuit Justice)\n(finding appointment by cabinet member, rather than President with Senate advice\nand consent, invalid under the Appointments Clause and stating that \xe2\x80\x9cthe policy of\nthe law condemns such appointments,\xe2\x80\x9d although illegal appointment did not\nprevent governmental suit to recover money from appointee); cf. Auffmordt v.\nHedden, 137 U.S. 310, 326\xe2\x80\x9328 (1890) (rejecting Appointments Clause challenge\nto action of appraiser appointed by inferior Executive Branch officer\xe2\x80\x94not because\nClause did not impose constraints but because position was not an office). By\npreventing diffusion, the Appointments Clause helps to ensure accountability for\nthe quality of appointments and the operation of the government\xe2\x80\x94through a\nlimited number of publicly known and readily discernible sources of appointing\nauthority, and also, ultimately, through the threat of impeachment, by which\nCongress may both remove a person from any civil \xe2\x80\x9cOffice\xe2\x80\x9d and disqualify him\n\xe2\x80\x9cto hold and enjoy any Office.\xe2\x80\x9d U.S. Const. art. II, \xc2\xa7 4; id. art. I, \xc2\xa7 3. 1\nII. The Essential Elements of an Office\nSubject to the Appointments Clause\nAlthough Buckley and subsequent cases confirm that the Appointments Clause\nlimits the conferral of certain kinds of governmental authority to properly\nappointed \xe2\x80\x9cofficers,\xe2\x80\x9d the Supreme Court has not articulated the precise scope and\napplication of the Clause\xe2\x80\x99s requirements; the Executive Branch, as explained\nbelow, has adopted differing interpretations since Buckley; and questions about the\nClause continue to arise regularly both in the operation of the Executive Branch\nand in proposed legislation. We therefore have reconsidered the scope of the\nClause\xe2\x80\x99s requirements; in doing so, we have focused on relevant constitutional text\nand the earliest authorities that illuminate that text, as well as Supreme Court\nauthority. The remainder of this memorandum explains the basis for and contours\nof the two elements of an \xe2\x80\x9coffice\xe2\x80\x9d under the United States whose occupant must\n\n1\nThis memorandum does not address other separation of powers principles that might restrict the\nallocation of appointing authority or the exercise of governmental powers, including the \xe2\x80\x9cantiaggrandizement\xe2\x80\x9d principle, constraints on the delegation of power outside of the federal government,\nand the powers and duties of the President under Article II, such as his duty under the Take Care\nClause. See, e.g., Separation of Powers, 20 Op. O.L.C. at 131\xe2\x80\x9332, 175\xe2\x80\x9377; Deputization of Members of\nCongress as Special Deputy U.S. Marshals, 18 Op. O.L.C. 125 (1994); Springer v. Philippine Islands,\n277 U.S. 189, 203 (1928) (applying separation of powers principles to interpret statute as barring\nterritorial legislature from appointing persons to vote government\xe2\x80\x99s stock in a corporation, regardless of\nwhether such persons \xe2\x80\x9care public officers in a strict sense\xe2\x80\x9d).\n\n76\n\n\x0cOfficers of the United States Within the Meaning of the Appointments Clause\n\nbe appointed in accordance with the Appointments Clause. 2 This memorandum\ndiscusses and explains the governing principles, which are consistent with and\nexpand on Buckley and the precedents on which it relied. But apart from the few\nspecific instances that we expressly consider (such as qui tam relators and\nindependent counsels, below in Part II.B.3), this memorandum is not intended to\naddress whether any particular position would be an office or to call into question\nany particular existing position. Please consult this Office should any particular\nAppointments Clause question arise that you are unable to resolve based on the\nprinciples we set out.\nSubpart 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.\nSuch powers primarily involve binding the government or third parties for the\nbenefit of the public, such as by administering, executing, or authoritatively\ninterpreting the laws. Delegated sovereign authority also includes other activities\nof the Executive Branch concerning the public that might not necessarily be\ndescribed as the administration, execution, or authoritative interpretation of the\nlaws but nevertheless have long been understood to be sovereign functions,\nparticularly the authority to represent the United States to foreign nations or to\ncommand military force on behalf of the government. By contrast, an individual\nwho occupies a purely advisory position (one having no legal authority), who is a\ntypical contractor (providing goods or services), or who possesses his authority\nfrom a state does not hold a position with delegated sovereign authority of the\nfederal government and therefore does not hold a federal office.\nSubpart B explains that, for a position to be a federal office, it also must be\n\xe2\x80\x9ccontinuing,\xe2\x80\x9d which means either that the position is permanent or that, even\nthough temporary, it is not personal, \xe2\x80\x9ctransient,\xe2\x80\x9d or \xe2\x80\x9cincidental.\xe2\x80\x9d Thus, special\ndiplomatic agents, short-term contractors, qui tam relators, and many others in\npositions that have authority on an ad hoc or temporary basis do not hold offices.\nPersons holding such non-continuing positions need not be appointed in conformity with the Appointments Clause, even if they temporarily exercise delegated\nsovereign authority. Primarily because of this element, our analysis departs from\nthat taken in such prior memoranda as Legislative Encroachments, 13 Op. O.L.C.\nat 249, and Constitutionality of the Qui Tam Provisions of the False Claims Act,\n13 Op. O.L.C. 207, 221\xe2\x80\x9324 (1989).\nFinally, Subpart C discusses additional criteria that have been considered in\ncertain contexts for determining when a position is an office or when an individual\nis an officer. At least for purposes of the Appointments Clause, these criteria are\n2\n\nEven if the Appointments Clause applies to a position, the Clause does permit various means of\nrelieving administrative burdens on the appointing officer. See Assignment of Certain Functions\nRelated to Military Appointments, 29 Op. O.L.C. 132, 133-38 (2005).\n\n77\n\n\x0cOpinions of the Office of Legal Counsel in Volume 31\n\nnot essential, even if relevant to determining the presence of the two essential\nelements. In many cases, they are incidental traits that often flow from the\nexistence of an office but do not define an office. One such criterion, which this\nOffice previously considered essential, is whether a position involves employment\nwithin the federal government. See Separation of Powers, 20 Op. O.L.C. at 145\xe2\x80\x93\n48. As suggested when we formally published Separation of Powers in 2002, this\nprior analysis has been found \xe2\x80\x9cinadequate as an expression of the Office\xe2\x80\x99s advice\non separation of powers.\xe2\x80\x9d Id. at 124 (editor\xe2\x80\x99s note). As we explain, federal\nemployment is not necessary for the Appointments Clause to apply. In addition,\nwe explain that the statutory basis for a position ordinarily will be relevant to\nwhether the position involves delegated sovereign authority and is continuing, and\nthus is an \xe2\x80\x9coffice\xe2\x80\x9d subject to the Appointments Clause, although the applicability\nof the Clause does not depend on whether Congress has formally and directly\ncreated an \xe2\x80\x9coffice.\xe2\x80\x9d\nA. The Position Must Possess Delegated Sovereign Authority\nof the Federal Government\nThe first essential element of an office under the United States is the delegation\nby legal authority of a portion of the sovereign powers of the federal government.\nA position must have the authority to exercise such power before the Appointments Clause will require that the occupant of the position be made an \xe2\x80\x9cOfficer[]\nof the United States.\xe2\x80\x9d After laying out the authority for this element, we explain its\ncontours and then address three arguably special situations.\n1. The Foundations of This Element\nThe text and structure of the Constitution reveal that officers are persons to\nwhom the powers \xe2\x80\x9cdelegated to the United States by the Constitution,\xe2\x80\x9d U.S. Const.\namend. X, are in turn delegated in order to be carried out. The President himself is\nsaid to \xe2\x80\x9chold [an] Office,\xe2\x80\x9d and the Constitution provides that \xe2\x80\x9c[t]he executive\nPower shall be vested in\xe2\x80\x9d that office. Id. art. II, \xc2\xa7 1, cl. 1. The President cannot\ncarry out the executive power alone, and so the Constitution further contemplates\nthat executive power will be delegated to officers to help the President fulfill this\nduty. The Constitution recognizes that the President would need to delegate\nauthority to others in, among other places, the clauses empowering him to \xe2\x80\x9ctake\nCare that the Laws be faithfully executed,\xe2\x80\x9d and then, immediately following,\nproviding that the President \xe2\x80\x9cshall Commission all the Officers of the United\nStates.\xe2\x80\x9d Id. \xc2\xa7 3 (emphases added). The Constitution also provides that the President \xe2\x80\x9cmay require the Opinion, in writing, of the principal Officer in each of the\nexecutive Departments, upon any Subject relating to the Duties of their respective\nOffices.\xe2\x80\x9d Id. \xc2\xa7 2, cl. 1. See also id. art. I, \xc2\xa7 6 (barring members of Congress in\ncertain cases from being \xe2\x80\x9cappointed to any civil Office under the Authority of the\n\n78\n\n\x0cOfficers of the United States Within the Meaning of the Appointments Clause\n\nUnited States\xe2\x80\x9d); id. \xc2\xa7 8, cl. 18 (referring to the \xe2\x80\x9cPowers vested by this Constitution\nin the Government of the United States, or in any Department or Officer thereof\xe2\x80\x9d);\ncf. id. cls. 15\xe2\x80\x9316 (referring to \xe2\x80\x9cthe Officers\xe2\x80\x9d of the militia, who, when called into\nfederal service, provide one means of executing federal law).\nAs the Supreme Court has explained: \xe2\x80\x9cThe Constitution does not leave to speculation who is to administer the laws enacted by Congress; the President, it says,\n\xe2\x80\x98shall take Care that the Laws be faithfully executed,\xe2\x80\x99 Art. II, \xc2\xa7 3, personally and\nthrough officers whom he appoints (save for such inferior officers as Congress\nmay authorize to be appointed by the \xe2\x80\x98Courts of Law\xe2\x80\x99 or by \xe2\x80\x98the Heads of\nDepartments\xe2\x80\x99 who are themselves Presidential appointees), Art. II, \xc2\xa7 2.\xe2\x80\x9d Printz,\n521 U.S. at 922; see In re Neagle, 135 U.S. 1, 63 (1890) (President\xe2\x80\x99s authority to\nappoint and commission officers is \xe2\x80\x9cthe means of fulfilling\xe2\x80\x9d his obligation under\nthe Take Care Clause); Myers v. United States, 272 U.S. 52, 133 (1926) (same);\nThe President and Accounting Officers, 1 Op. Att\xe2\x80\x99y Gen. 624, 625 (1823)\n(similar). Printz was echoing President Washington, who explained in 1789 that\n\xe2\x80\x9c[t]he impossibility that one man should be able to perform all the great business\nof the State, I take to have been the reason for instituting the great Departments,\nand appointing officers therein, to assist the supreme Magistrate in discharging the\nduties of his trust.\xe2\x80\x9d 30 Writings of George Washington 333, 334 (May 25, 1789)\n(John C. Fitzpatrick ed., 1939). 3 Similarly, the Constitution describes the persons\nto whom is delegated the \xe2\x80\x9cjudicial Power of the United States,\xe2\x80\x9d a particular kind of\npower to render binding interpretations of federal law (in the course of deciding\ncases or controversies), as \xe2\x80\x9chold[ing] . . . Offices.\xe2\x80\x9d U.S. Const. art. III, \xc2\xa7 1. This\npower is primarily delegated to the \xe2\x80\x9cJudges of the supreme Court,\xe2\x80\x9d id. art. II, \xc2\xa7 2,\ncl. 2; and the \xe2\x80\x9cJudges . . . of the . . . inferior Courts,\xe2\x80\x9d id. art. III, \xc2\xa7 1; but also to\nother officers, see Buckley, 424 U.S. at 126 (clerk, citing Ex parte Hennen, 38 U.S.\n\n3\nRegarding the significance of the President\xe2\x80\x99s constitutional status as head of the Executive\nBranch, and his take-care duty, to the nature of an office as a delegation of executive power, see also\nJames Madison, Notes of Debates in the Federal Convention of 1787, at 324 (Norton 1987) (Gouverneur Morris, July 19, 1787) (\xe2\x80\x9cThere must be certain great officers of State; a minister of finance, of\nwar, of foreign affairs &c. These he presumes will exercise their functions in subordination to the\nExecutive, and will be amenable by impeachment to the public Justice. Without these ministers the\nExecutive can do nothing of consequence.\xe2\x80\x9d); 1 Annals of Cong. 481 (James Madison, June 16, 1789)\n(\xe2\x80\x9cif any power whatsoever is in its nature executive, it is the power of appointing, overseeing, and\ncontrolling those who execute the laws\xe2\x80\x9d); id. at 492 (Fisher Ames, June 16, 1789) (\xe2\x80\x9c[I]t was necessary\nto delegate considerable powers . . . . The constitution places all executive power in the hands of the\nPresident, and could he personally execute all the laws, there would be no occasion for establishing\nauxiliaries; but the circumscribed powers of human nature in one man, demand the aid of others.\xe2\x80\x9d); id.\nat 637 (Theodore Sedgwick, June 29, 1789) (stating that Representative Sedgwick \xe2\x80\x9cconceived that a\nmajority of the House had decided that all officers concerned in executive business should depend upon\nthe will of the President for their continuance in office; and with good reason, for they were the eyes\nand arms of the principal Magistrate, the instruments of execution\xe2\x80\x9d).\n\n79\n\n\x0cOpinions of the Office of Legal Counsel in Volume 31\n\n(13 Pet.) 230 (1839)); 3 Joseph Story, Commentaries on the Constitution of the\nUnited States \xc2\xa7 1530, at 387 (1833) (\xe2\x80\x9cStory\xe2\x80\x9d) (clerk and reporter). 4\nThe debate on the ratification of the Constitution reinforces both this textual\nunderstanding of a federal \xe2\x80\x9coffice\xe2\x80\x9d as characterized by the delegated sovereign\nauthority of the federal government and the relation of the Appointments Clause to\nsuch a position. James Madison argued in the Federalist that the Constitution\nwould establish a republican government, which he defined as one that \xe2\x80\x9cderives all\nits 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\nduring good behavior.\xe2\x80\x9d The Federalist No. 39, at 251 (Jacob E. Cooke ed., 1961).\nAlexander Hamilton similarly explained in Federalist No. 72 that the Executive\nBranch would be administered by appointed officers exercising the delegated\nexecutive power of the President:\nThe administration of government . . . in its most usual and perhaps\nin 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\nappropriations of the legislature; the arrangement of the army and\nnavy, the direction of the operations of war; these, and other matters\nof a like nature constitute what seems to be most properly understood by the administration of government. The persons therefore, to\nwhose immediate management these different matters are committed,\nought to be considered as the assistants or deputies of the chief magistrate; and, on this account, they ought to derive their offices from\nhis appointment, at least from his nomination, and ought to be subject to his superintendence.\nId. at 486\xe2\x80\x9387 (emphasis added); see also The Federalist No. 29, at 183 (Alexander\nHamilton) (referring to \xe2\x80\x9cthe officers who may be entrusted with the execution of\n[the] laws\xe2\x80\x9d); cf. The Federalist No. 64, at 436 (John Jay) (referring to Constitution\xe2\x80\x99s allocation of \xe2\x80\x9cpower to do\xe2\x80\x9d each \xe2\x80\x9cact of sovereignty by which the citizens\nare to be bound and affected,\xe2\x80\x9d such as making laws, making treaties, and entering\ncourt judgments).\n\n4\nThe Constitution specially provides for the election of representatives and senators, for each house\nof Congress to choose its legislative officers (except for the President of the Senate, an office held ex\nofficio by the Vice President), and for the election of the President and Vice President. See U.S. Const.\nart. I, \xc2\xa7 2, cl. 5; id. art. I, \xc2\xa7 3, cl. 5; id. art. II, \xc2\xa7 1 & amend. XII. These offices are therefore excluded\nfrom the Appointments Clause by its terms.\n\n80\n\n\x0cOfficers of the United States Within the Meaning of the Appointments Clause\n\nThe earliest commentators shared and perpetuated the Federalist\xe2\x80\x99s understanding of a federal office as involving the wielding of delegated sovereign authority.\nWilliam Rawle explained in the 1820s in his prominent commentary on the\nConstitution that one of \xe2\x80\x9cthe means provided to enable the president to perform his\npublic duties\xe2\x80\x9d is creation of \xe2\x80\x9c[s]ubordinate offices,\xe2\x80\x9d A View of the Constitution of\nthe United States of America 151\xe2\x80\x9352 (2d ed. 1829); described the appointment of\nofficers as the means to allow the President \xe2\x80\x9cagents . . . for public duties,\xe2\x80\x9d id. at\n162; and supported the power to impeach officers because \xe2\x80\x9c[t]he delegation of\nimportant trusts, affecting the higher interests of society, is always from various\ncauses liable to abuse,\xe2\x80\x9d id. at 211. Joseph Story in the 1830s echoed Madison by\nexplaining that \xe2\x80\x9cin a republican government[,] offices are established, and are to\nbe filled . . . for purposes of the highest public good; to give dignity, strength,\npurity, and energy to the administration of the laws.\xe2\x80\x9d 3 Story \xc2\xa7 1524, at 376. In his\nview, the Appointments Clause \xe2\x80\x9cgive[s] to the president a power over the appointments of those, who are in conjunction with himself to execute the laws.\xe2\x80\x9d Id.\nAttorney General Cushing in the 1850s, surveying the law and practice regarding\nthe operation of the Executive Branch, similarly explained that \xe2\x80\x9cthe lawful will of\nthe President may be announced, and an act in the authority of the President\nperformed, not merely by a Head of Department, but, in the second or other degree\nof delegation, by some officer subordinate to such head.\xe2\x80\x9d Relation of the President\nto the Executive Departments, 7 Op. Att\xe2\x80\x99y Gen. 453, 473 (1855). See also The\nJewels of the Princess of Orange, 2 Op. Att\xe2\x80\x99y Gen. 482, 489 (1831) (discussing\ncase in which by statute the President \xe2\x80\x9ccould only act through his subordinate\nofficer\xe2\x80\x9d but might issue an order to that officer and enforce it through his removal\npower); John N. Pomeroy, An Introduction to the Constitutional Law of the United\nStates \xc2\xa7 642, at 425 (7th ed. 1883) (\xe2\x80\x9cPomeroy\xe2\x80\x9d) (\xe2\x80\x9cthe officers, in all their various\nsubordinate grades, are the means and instruments by which the laws shall be\nexecuted, and the general functions and duties of the department performed\xe2\x80\x9d).\nThe common law of the time of the Founding also indicates that delegated\nsovereign authority is a key characteristic of an office. In late eighteenth century\nEngland, \xe2\x80\x9coffices\xe2\x80\x9d involved a \xe2\x80\x9cduty, and in the next place the charge of such\nduty.\xe2\x80\x9d Giles Jacob, A New Law Dictionary, tit. Office (9th ed. 1772) (\xe2\x80\x9cJacob\xe2\x80\x9d); see\nalso 2 T. Cunningham, A New and Complete Law Dictionary, tit. Office (2d ed.\n1771) (same) (\xe2\x80\x9cCunningham\xe2\x80\x9d); 3 Matthew Bacon, A New Abridgment of the Law\n(4th ed. 1778) (same). \xe2\x80\x9c[A]n \xe2\x80\x98officer,\xe2\x80\x99\xe2\x80\x9d then, \xe2\x80\x9cwas simply one whom the King had\ncharged with a duty.\xe2\x80\x9d Edward S. Corwin, The President: Office and Powers 1789\xe2\x80\x93\n1948, at 85 (5th ed. 1984). A public officer (as distinct from a private one) was\nsomeone whom the King had charged with \xe2\x80\x9cany duty concerning the publick.\xe2\x80\x9d\nJacob, tit. Office; Cunningham, tit. Office. More particularly, public offices\ninvolved authority to \xe2\x80\x9caffect the people generally,\xe2\x80\x9d John Bouvier, A Law Dictionary 203 (1839) (1993 reprint) (\xe2\x80\x9cBouvier\xe2\x80\x9d), and \xe2\x80\x9centitle[d] a man to act in the\naffairs of others without their appointment or permission,\xe2\x80\x9d P.G. Osborn, A Concise\n\n81\n\n\x0cOpinions of the Office of Legal Counsel in Volume 31\n\nLaw Dictionary 223 (2d ed. 1937); 2 Stewart Rapalje & Robert Lawrence, A\nDictionary of American and English Law 895 (1883) (same).\nThus, the general common law rule for public offices at the Founding was that\n\xe2\x80\x9cwhere one man hath to do with another\xe2\x80\x99s affairs against his will, and without his\nleave, that this is an office, and he who is in it, is an officer.\xe2\x80\x9d Jacob, tit. Office;\nCunningham, tit. Office (same). The dictionaries derived this rule, essentially\nverbatim, from the reported arguments of the Crown in the early case of King v.\nBurnell, Carth. 478 (K.B. 1700). See id. at 478 (so stating the \xe2\x80\x9cRule\xe2\x80\x9d). Burnell\ninvolved the Censor of the College of Physicians, and the Crown contended that\nhe was a public officer (and therefore subject to an oath requirement) because (1)\nthe King had the duty to take \xe2\x80\x9cCare of the Persons of his Subjects, and consequently of their health\xe2\x80\x9d; (2) he had \xe2\x80\x9cdelegated so much of his Office unto those\nCensors\xe2\x80\x9d; and (3) \xe2\x80\x9che is an Officer subordinate, who hath any Part of the King\xe2\x80\x99s\npublick care delegated to him by the King.\xe2\x80\x9d Id. at 478\xe2\x80\x9379; see also id. at 479\n(argument for doctor, not denying general rule as applied to revenue officers and\nofficers of the peace but claiming exception for \xe2\x80\x9cparticular Powers created for\nparticular Purposes\xe2\x80\x9d). The Founders, several decades after Burnell, had a similar\n(albeit less favorable) view of the characteristics of a public office: The Declaration of Independence charged that King George III had \xe2\x80\x9cerected a Multitude of\nnew Offices, and sent hither Swarms of Officers to harass our People, and eat out\ntheir Substance.\xe2\x80\x9d Declaration of Independence \xc2\xb6 12 (U.S. 1776). Two years\nbefore, the First Continental Congress had written of \xe2\x80\x9coppressive officers\xe2\x80\x9d who\nneeded, by means of the freedom of the press, to be \xe2\x80\x9cshamed or intimidated into\nmore honorable and just modes of conducting affairs.\xe2\x80\x9d Appeal to the Inhabitants of\nQuebec, 1 Journals of the Continental Congress 105, 108 (1774). Officers, thus,\nwere persons holding sovereign authority delegated from the King that enabled\nthem in conducting the affairs of government to affect the people \xe2\x80\x9cagainst [their]\nwill, and without [their] leave.\xe2\x80\x9d Burnell, Carth. at 478. So critical to the Founders\xe2\x80\x99\nthinking was the abuse of power and the corruption surrounding public offices that\n\xe2\x80\x9c\xe2\x80\x98the power of appointment to offices\xe2\x80\x99 was deemed \xe2\x80\x98the most insidious and\npowerful weapon of eighteenth century despotism.\xe2\x80\x99\xe2\x80\x9d Freytag v. Comm\xe2\x80\x99r, 501 U.S.\n868, 883 (1991) (quoting Gordon Wood, The Creation of the American Republic\n1776\xe2\x80\x931787, at 143 (1969)); see generally Bernard Bailyn, The Origins of American Politics 63\xe2\x80\x9391 (1970) (discussing the Founders\xe2\x80\x99 complaints about the power\nof royal officials); The Federalist No. 76, at 509\xe2\x80\x9310 (Alexander Hamilton)\n(praising the Appointments Clause as likely \xe2\x80\x9cto promote a judicious choice of men\nfor filling the offices of the Union,\xe2\x80\x9d on which choices \xe2\x80\x9cmust essentially depend the\ncharacter of [the government\xe2\x80\x99s] administration,\xe2\x80\x9d which was, in turn, \xe2\x80\x9c\xe2\x80\x98the true test\nof a good government\xe2\x80\x99\xe2\x80\x9d).\nAuthority from the Nation\xe2\x80\x99s early years addressing the nature of a public office\nconfirms this understanding that delegated sovereign authority is a key element.\nSuch post-ratification materials can illuminate the original meaning of the\n\n82\n\n\x0cOfficers of the United States Within the Meaning of the Appointments Clause\n\nConstitution where there is no evidence of a break in the law, and we are aware of\nnone here. The Supreme Judicial Court of Maine provided the fullest early\nexplication in 1822, addressing a question under Maine\xe2\x80\x99s equivalent of the\nIneligibility Clause, U.S. Const. art. I, \xc2\xa7 6, cl. 2, which bars members of the\nLegislative Branch in certain cases from being appointed to a \xe2\x80\x9ccivil Office under\nthe Authority of the United States\xe2\x80\x9d:\n[T]he term \xe2\x80\x9coffice\xe2\x80\x9d implies a delegation of a portion of the sovereign\npower to, and possession of it by the person filling the office;\xe2\x80\x94and\nthe exercise of such power within legal limits, constitutes the correct\ndischarge of the duties of such office. The power thus delegated and\npossessed, may be a portion belonging sometimes to one of the three\ngreat departments, and sometimes to another; still it is a legal power,\nwhich may be rightfully exercised, and in its effects it will bind the\nrights of others . . . .\nOpinion of the Justices, 3 Greenl. (Me.) 481, 482 (1822). The court added that\n\xe2\x80\x9c[a]n office [is] a grant and possession of a portion of the sovereign power\xe2\x80\x9d and\nthat \xe2\x80\x9cevery \xe2\x80\x98office,\xe2\x80\x99 in the constitutional meaning of the term, implies an authority\nto exercise some portion of the sovereign power, either in making, executing or\nadministering the laws.\xe2\x80\x9d Id. at 483. Applying this understanding, the court\nconcluded that an agent for the preservation of timber on public lands was not a\npublic officer because he \xe2\x80\x9cis to be clothed with no powers, but those of superintending the public lands, and performing certain acts in relation to them under the\ndiscretionary regulations of the governor.\xe2\x80\x9d Id. His duties were \xe2\x80\x9cnot essentially\ndifferent from\xe2\x80\x9d those of the \xe2\x80\x9cstate printer, or a contractor to build a state house, or\na state prison.\xe2\x80\x9d Id. Other courts treated this early analysis as authoritative. See\nBunn v. Illinois, 45 Ill. 397, 409 (1867) (\xe2\x80\x9cThe doctrine of this opinion has not been\nquestioned, so far as we are advised, by any court, and it commends itself to our\nunqualified approbation.\xe2\x80\x9d); Patton v. Bd. of Health, 59 P. 702, 704, 705 (Cal.\n1899) (describing doctrine of Maine opinion as the one that has \xe2\x80\x9cbeen held by\nmost courts,\xe2\x80\x9d and Bunn as having \xe2\x80\x9cvery fully examined\xe2\x80\x9d the cases).\nSimilarly, in Byrne\xe2\x80\x99s Administrators v. Stewart\xe2\x80\x99s Administrators, 3 S.C. Eq. (3\nDes. Eq.) 466 (1812), the South Carolina Court of Appeals held that a solicitor\nwas not a public officer because \xe2\x80\x9che does not possess any portion of the public\nauthority.\xe2\x80\x9d Id. at 478; accord In the Matter of Oaths, 20 Johns. 492, 492 (N.Y.\nSup. Ct. 1823) (private attorneys do not hold an \xe2\x80\x9coffice or public trust\xe2\x80\x9d under state\nconstitution because \xe2\x80\x9cthey perform no duties on behalf of the government; they\nexecute no public trust\xe2\x80\x9d). And in Commonwealth v. Binns, 17 Serg. & Rawle 219\n(Pa. 1828), the Pennsylvania Supreme Court concluded, consistent with one of the\nexamples given in the Maine opinion, that a person who had contracted to be\nprinter of congressional reports was not an officer. Id. at 244 (opinion of Tod, J.).\nA concurring opinion expressly relied on the Maine opinion in describing a public\n\n83\n\n\x0cOpinions of the Office of Legal Counsel in Volume 31\n\noffice as including \xe2\x80\x9ca delegation of a portion of the sovereign power to, and\npossession of it by, the person filling the office.\xe2\x80\x9d Id. (opinion of Smith, J.). See\nalso United States v. Hatch, 1 Pin. 182, 190 (Wis. Terr. 1842) (explaining that the\nterm \xe2\x80\x9ccivil officers\xe2\x80\x9d in appointment provision of territory\xe2\x80\x99s organic act \xe2\x80\x9cwas\nintended to embrace such officers as in whom part of the sovereignty or municipal\nregulations, or general interests of society are vested; and that such has been the\ngeneral understanding in the states, under their constitutions,\xe2\x80\x9d relying on the\nMaine opinion as quoted in Binns); United States ex rel. Boyd v. Lockwood, 1 Pin.\n359, 363 (Wis. Terr. 1843) (officer has \xe2\x80\x9cfor the time being, a portion of the\nsovereignty . . . to be exercised for the public benefit\xe2\x80\x9d). Finally, in United States v.\nMaurice, 26 F. Cas. 1211 (C.C.D. Va. 1823), Chief Justice Marshall concluded\nthat the Army\xe2\x80\x99s position of \xe2\x80\x9cagent of fortifications\xe2\x80\x9d was a federal office, where it\nessentially had the duties of contracting agent\xe2\x80\x94\xe2\x80\x9cthose of a purchasing quartermaster, commissary, and paymaster.\xe2\x80\x9d Id. at 1214\xe2\x80\x9315. These were \xe2\x80\x9cimportant\nduties,\xe2\x80\x9d which, if the President in discharging his duty to erect fortifications did\nnot carry out directly through a series of contracts, would be carried out for him by\nofficers. Id. at 1214. In general, Marshall explained, \xe2\x80\x9c[a]n office is defined to be \xe2\x80\x98a\npublic charge or employment,\xe2\x80\x99 and he who performs the duties of the office, is an\nofficer.\xe2\x80\x9d Id. Thus, an office could be said to involve the performance of public\nduties. See also Eliason v. Coleman, 86 N.C. 235, 239\xe2\x80\x9340 (1882) (office is \xe2\x80\x9ca\npublic position to which a portion of the sovereignty of the country, either\nlegislative, executive or judicial, attaches for the time being, and which is\nexercised for the benefit of the public\xe2\x80\x9d) (quotation marks omitted); State v.\nHocker, 22 So. 721, 722\xe2\x80\x9323 (Fla. 1897) (surveying law of public offices beginning\nwith 1822 Maine decision and Maurice).\nReflecting the understanding from the first hundred years of American law,\nincluding pre-Founding English law, a leading treatise summarized and defined a\npublic office as follows:\nA public office is the right, authority and duty, created and conferred\nby law, by which for a given period, either fixed by law or enduring\nat the pleasure of the creating power, an individual is invested with\nsome portion of the sovereign functions of government, to be exercised by him for the benefit of the public. The individual so invested\nis a public officer.\nFloyd R. Mechem, A Treatise on the Law of Public Offices and Officers \xc2\xa7 1, at 1\xe2\x80\x932\n(1890) (footnote omitted) (\xe2\x80\x9cMechem\xe2\x80\x9d). Mechem added that the \xe2\x80\x9cdelegation . . . of\nsome of the sovereign functions of government\xe2\x80\x9d was the \xe2\x80\x9cmost important characteristic which distinguishes an office,\xe2\x80\x9d such that \xe2\x80\x9c[u]nless the powers conferred are\nof this nature, the individual is not a public officer.\xe2\x80\x9d Id. \xc2\xa7 4, at 5. The \xe2\x80\x9c\xe2\x80\x98nature of\nth[e] duty,\xe2\x80\x99\xe2\x80\x9d as \xe2\x80\x9c\xe2\x80\x98concerning the public,\xe2\x80\x99\xe2\x80\x9d was the key factor. Id. \xc2\xa7 9, at 7 (quoting\nBurnell, Carth. at 479).\n\n84\n\n\x0cOfficers of the United States Within the Meaning of the Appointments Clause\n\nMechem\xe2\x80\x99s distillation of the law was quickly and widely accepted. Contemporaneous commentators concurred. See Bruce Wyman, The Principles of the\nAdministrative Law Governing the Relations of Public Officers 163 (1903)\n(essentially reiterating Mechem\xe2\x80\x99s definition); James L. High, A Treatise on\nExtraordinary Legal Remedies 581 (3d ed. 1896) (\xe2\x80\x9cAn office, such as to properly\ncome 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\nthe country, either legislative, executive or judicial, attaches for the time being,\nand which is exercised for the benefit of the public.\xe2\x80\x9d). So did the Judiciary\nCommittee of the House of Representatives in 1899. The House had requested a\nreport on whether any member had \xe2\x80\x9caccepted any office under the United States\xe2\x80\x9d\nand whether \xe2\x80\x9cthe acceptance of such office under the United States ha[d] vacated\nthe seat of the Member\xe2\x80\x9d under the Incompatibility Clause, which provides that \xe2\x80\x9cno\nPerson holding any Office under the United States\xe2\x80\x9d may at the same time be a\nmember of Congress, U.S. Const. art. I, \xc2\xa7 6, cl. 2. The Committee extensively\nsurveyed the definition of an \xe2\x80\x9coffice,\xe2\x80\x9d particularly relying on Mechem and the\n1822 Maine decision, and concluded that membership on \xe2\x80\x9ca commission created\nby law to investigate and report, but having no legislative, judicial, or executive\npowers,\xe2\x80\x9d did not constitute an office under the United States. 1 Asher C. Hinds,\nHinds\xe2\x80\x99 Precedents of the House of Representatives 604, 604 (1907). The Committee reasoned that a public office requires a delegation of sovereign authority,\nwhich \xe2\x80\x9cinvolves necessarily the power to (1) legislate, or (2) execute law, or (3)\nhear and determine judicially questions submitted.\xe2\x80\x9d Id. at 607. 5 The commissioners in question, by contrast, \xe2\x80\x9care not to execute any standing laws which are the\nrules of action and the guardians of rights, nor have they the right or power to\nmake any such law, nor can they interpret or enforce any existing law.\xe2\x80\x9d Id. at 608;\nsee id. at 610 (\xe2\x80\x9cThey neither make law, execute law affecting the rights of the\npeople, nor perform judicial functions,\xe2\x80\x9d but rather are \xe2\x80\x9cmere advisory agents of the\nCongress. . . . They have no power to decide any question or bind the Government\nor do any act affecting the rights of a single individual citizen.\xe2\x80\x9d). Similarly, the\nAttorney General at the same time explained that, although \xe2\x80\x9c[t]he legal definitions\nof a public office have been many and various,\xe2\x80\x9d \xe2\x80\x9c[t]he idea seems to prevail that it\nis an employment to exercise some delegated part of the sovereign power.\xe2\x80\x9d\n5\nIn addition to its conclusion regarding the mere power to investigate and report, the Committee\nfurther concluded that \xe2\x80\x9cmere power . . . to negotiate a treaty of peace, or on some commercial subject,\nand report without power to make binding on the Government, does not constitute a person an officer.\xe2\x80\x9d\n1 Hinds\xe2\x80\x99 Precedents at 607\xe2\x80\x9308. This conclusion is correct, not because, as the report suggests, no\ndelegation of sovereign power is involved in the authority to represent the federal government in\nforeign relations, but only to the extent that the person exercising that \xe2\x80\x9cmere power\xe2\x80\x9d does not hold a\nposition that is continuing, as discussed below in Part II.B. As discussed in the next subpart, the\ndelegated executive power of the federal government is broader than just the power to execute law, and\nMechem did not state otherwise.\n\n85\n\n\x0cOpinions of the Office of Legal Counsel in Volume 31\n\nOffice\xe2\x80\x94Compensation, 22 Op. Att\xe2\x80\x99y Gen. 184, 187 (1898); see also Appointment\xe2\x80\x94Holding of Two Offices\xe2\x80\x94Commissioner of Labor, 26 Op. Att\xe2\x80\x99y Gen. 247,\n249 (1907) (similar, citing 1822 Maine decision).\nIt was the same House report\xe2\x80\x99s quotation of Mechem\xe2\x80\x99s definition of a public\noffice (along with the Supreme Court\xe2\x80\x99s opinion in United States v. Hartwell, 73\nU.S. 385 (1867)) on which then-Assistant Attorney General Rehnquist relied in\n1969 in concluding that the Staff Assistant to the President did not hold an office\nwithin the meaning of the Ineligibility Clause. See Letter for Lamar Alexander,\nStaff Assistant to the President, from William H. Rehnquist, Assistant Attorney\nGeneral, Office of Legal Counsel at 2 (Dec. 9, 1969) (\xe2\x80\x9cRehnquist Letter\xe2\x80\x9d). Among\nother reasons, Rehnquist noted that the position had no specified duties. Id. at 3.\nSimilarly, in 1971 this Office, in addressing the scope of the Appointments Clause\nand the related constitutional provision for the President to commission officers,\nexplained that one of the two key \xe2\x80\x9ccharacteristic[s] of an officer of the United\nStates in the Constitutional sense is that he must be invested \xe2\x80\x98with some portion of\nthe sovereign functions of the government.\xe2\x80\x99\xe2\x80\x9d Memorandum for John W. Dean, III,\nCounsel to the President, from Leon Ulman, Deputy Assistant Attorney General,\nOffice of Legal Counsel, Re: Presidential Commissions at 3 (Dec. 1, 1971)\n(quoting Mechem \xc2\xa7\xc2\xa7 1, 2 & 4).\nThe Supreme Court soon thereafter (joined by then-Justice Rehnquist) followed\nessentially the same analytical path in Buckley v. Valeo, the Court\xe2\x80\x99s first treatment\nof the basic requirements of the Appointments Clause since Auffmordt v. Hedden,\n137 U.S. 310 (1890), see Buckley, 424 U.S. at 125\xe2\x80\x9326 & n.162, and its first\ndecision finding a violation of that Clause. In concluding that the commissioners\nof the Federal Election Commission held offices under the United States and\ntherefore were required to be appointed in accordance with the Appointments\nClause, the Court focused on the Commission\xe2\x80\x99s powers and concluded that many\nof those powers involved \xe2\x80\x9cthe performance of a significant governmental duty\nexercised pursuant to a public law.\xe2\x80\x9d 424 U.S. at 141; see id. at 269\xe2\x80\x9370 (White, J.,\nconcurring in part and dissenting in part) (similar); see also id. at 137\xe2\x80\x9341, 143\n(opinion of Court, surveying powers). Because of their invalid appointments, the\ncommissioners were permitted to \xe2\x80\x9cperform duties only in aid of those functions\nthat Congress may carry out by itself, or in an area sufficiently removed from the\nadministration and enforcement of the public law.\xe2\x80\x9d Id. at 139.\nThe Court\xe2\x80\x99s reference in Buckley (and subsequent cases) to the exercise of\n\xe2\x80\x9csignificant authority,\xe2\x80\x9d id. at 126, does vary somewhat from the well-established\nhistorical formulation, but nothing in the Court\xe2\x80\x99s opinion suggests any intention to\nbreak with the longstanding understanding of a public office or fashion a new term\nof art. On the contrary, the Court favorably discussed and cited several of the cases\nfrom the 1800s reflecting that understanding, some of them treating arguably\ninsignificant positions as offices. See id. at 125\xe2\x80\x9326. The Court also referred simply\nto the administration and enforcement of the public law, see id. at 139 (quoted\n\n86\n\n\x0cOfficers of the United States Within the Meaning of the Appointments Clause\n\nabove), 141 (same), and explained that \xe2\x80\x9cthe term \xe2\x80\x98Officers of the United\nStates,\xe2\x80\x99 . . . since it had first appeared in [the draft Constitution,] had been taken by\nall concerned to embrace all appointed officials exercising responsibility under the\npublic laws of the Nation,\xe2\x80\x9d id. at 131. We therefore take the phrase \xe2\x80\x9csignificant\nauthority pursuant to the laws of the United States,\xe2\x80\x9d id. at 126, and similar phrases,\nsee, e.g., id. at 141, to be shorthand for the full historical understanding of the\nessential elements of a public office; this phrase concisely conveys both the\nhistorical concept of delegated sovereign power and the second historical element\ndiscussed below\xe2\x80\x94whether the position with such power is \xe2\x80\x9ccontinuing\xe2\x80\x9d\xe2\x80\x94which\nwas set out in Auffmordt, among much other early authority, and could be\nconsidered to bear heavily on the \xe2\x80\x9csignifican[ce]\xe2\x80\x9d of the delegation. This Office\npreviously has suggested such an understanding of Buckley. See Memorandum for\nRobert P. Bedell, Deputy General Counsel, Office of Management and Budget,\nfrom Ralph W. Tarr, Deputy Assistant Attorney General, Office of Legal Counsel,\nRe: Executive Director of the Property Review Board at 5\xe2\x80\x936 (Apr. 1, 1983); see\nalso United States ex rel. Stone v. Rockwell Intern. Corp., 282 F.3d 787, 805 (10th\nCir. 2002) (Buckley \xe2\x80\x9cwas clear\xe2\x80\x9d that its \xe2\x80\x9cdefinition of an officer of the United\nStates should be construed in conformity with its prior Germaine and Auffmordt\nopinions, which the Buckley Court extensively quoted with approval.\xe2\x80\x9d).\n2. Defining Delegated Sovereign Authority\nAlthough the particulars of what constitutes \xe2\x80\x9cdelegated sovereign authority\xe2\x80\x9d\nwill not always be beyond debate, early authorities as well as more recent court\ndecisions and opinions of this Office provide extensive guidance illuminating the\nterm. As a general matter, based on these authorities, one could define delegated\nsovereign authority as power lawfully conferred by the government to bind third\nparties, or the government itself, for the public benefit. As indicated from much of\nthe discussion above, such authority primarily involves the authority to administer,\nexecute, or interpret the law. See also Printz, 521 U.S. at 922\xe2\x80\x9323 (Constitution\nprovides that President and the officers he appoints are the ones who are \xe2\x80\x9cto\nadminister the laws enacted by Congress\xe2\x80\x9d and \xe2\x80\x9cexecute its laws\xe2\x80\x9d); Bowsher v.\nSynar, 478 U.S. 714, 733 (1986) (\xe2\x80\x9cInterpreting a law enacted by Congress to\nimplement the legislative mandate is the very essence of \xe2\x80\x98execution\xe2\x80\x99 of the law.\xe2\x80\x9d);\nProposed Commission on Deregulation of International Ocean Shipping, 7 Op.\nO.L.C. 202, 202 (1983) (holding that positions of commissioners were not subject\nto the Appointments Clause where they involved \xe2\x80\x9cno enforcement authority or\npower to bind the Government\xe2\x80\x9d); 1 Hinds\xe2\x80\x99 Precedents at 610 (1898 report\nconcluding that certain commissioners were not officers because \xe2\x80\x9c[t]hey neither\nmake law, execute law affecting the rights of the people, nor perform judicial\nfunctions\xe2\x80\x9d; \xe2\x80\x9cThey have no power to decide any question or bind the Government\nor do any act affecting the rights of a single individual citizen\xe2\x80\x9d).\n\n87\n\n\x0cOpinions of the Office of Legal Counsel in Volume 31\n\nFor example, the public authority to arrest criminals, impose penalties, enter\njudgments, and seize persons or property constitutes delegated sovereign authority.\nThe Supreme Court recognized early that a justice of the peace for the District of\nColumbia was an officer of the United States. See Marbury v. Madison, 5 U.S.\n(1 Cranch) 137, 164 (1803) (justice of peace holds an office); Wise v. Withers,\n7 U.S. (3 Cranch) 331, 336 (1806) (\xe2\x80\x9cDeriving all his authority from the legislature\nand president of the United States, he certainly is not the officer of any other\ngovernment,\xe2\x80\x9d and \xe2\x80\x9chis powers, as defined by law, seem partly judicial, and partly\nexecutive\xe2\x80\x9d). The New Hampshire Supreme Court likewise concluded early that a\n\xe2\x80\x9cconstable\xe2\x80\x9d held an office, given his power \xe2\x80\x9cto arrest criminals . . . and by\nexecution to seize either the person or property of small debtors,\xe2\x80\x9d Town of\nMeredith 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 \xe2\x80\x9cfor the\ntime being, a portion of the sovereignty . . . to be exercised for the public benefit,\xe2\x80\x9d\nBoyd, 1 Pin. at 363; see also Payton v. New York, 445 U.S. 573, 590 n.30 (1980)\n(discussing arrest powers of \xe2\x80\x9ca peace officer\xe2\x80\x9d at common law) (internal quotation\nmarks omitted). 6\nSimilarly included in delegated sovereign authority is power to issue regulations and authoritative legal opinions on behalf of the government, and other\npowers to execute the law whether considered \xe2\x80\x9cexecutive\xe2\x80\x9d or merely \xe2\x80\x9cadministrative.\xe2\x80\x9d Thus, Buckley concluded that both the Federal Election Commission\xe2\x80\x99s\n\xe2\x80\x9cprimary responsibility for conducting civil litigation in the courts of the United\nStates for vindicating public rights\xe2\x80\x9d and its \xe2\x80\x9crulemaking, advisory opinions, and\ndeterminations of eligibility for . . . federal elective office\xe2\x80\x9d were authorities that\nrendered the members of the Commission subject to the Appointments Clause. 424\nU.S. at 140; see id. at 137 (discussing agency\xe2\x80\x99s \xe2\x80\x9cfunctions with respect to . . .\nfleshing out the statute\xe2\x80\x9d and its \xe2\x80\x9cfunctions necessary to ensure compliance with the\nstatute and rules\xe2\x80\x9d); id. at 110\xe2\x80\x9311 (explaining that the \xe2\x80\x9cadvisory opinions\xe2\x80\x9d at issue\n6\nThe same understanding appears in Ex parte Pool, 4 Va. (2 Va. Cas.) 276 (1821). All of the\njudges of the General Court appeared to agree that a justice of the peace exercised delegated sovereign\nauthority, even while disagreeing about whether a state justice of the peace could, consistent with\nArticle III of the federal Constitution, be authorized by federal law to commit certain persons to jail for\ntrial. The dissent argued that the powers of justices of the peace \xe2\x80\x9cto grant warrants of arrest against\npersons accused of crimes or offences against the Laws of the United States, to examine, bail, or\ncommit the accused, compel the attendance of witnesses, [and] recognize them to appear to give\nevidence under pain of imprisonment\xe2\x80\x9d made them officers under the Appointments Clause. Id. at 290\xe2\x80\x93\n91 (Semple, J., dissenting). The majority of the court did not dispute the relevance of these powers;\ninstead, the majority concluded that the duties were permissible because not \xe2\x80\x9cregular and permanent\xe2\x80\x9d\nbut rather involving \xe2\x80\x9cincidental and occasional matters\xe2\x80\x9d\xe2\x80\x94thus relying on the second essential element\nof an office, discussed below in Part II.B. Id. at 279\xe2\x80\x9380. In Shepard v. Commonwealth, 1 Serg. &\nRawle 1 (Pa. 1814), the court concluded for similar reasons that a special commissioner was not an\nofficer even though he made binding decisions for the state regarding claims to and compensation for\ncertain lands. Id. at 9\xe2\x80\x9310.\n\n88\n\n\x0cOfficers of the United States Within the Meaning of the Appointments Clause\n\nprovided a legal defense to private parties). Likewise, Joseph Story included\namong the \xe2\x80\x9cmost important civil officers\xe2\x80\x9d those \xe2\x80\x9cconnected with the administration of justice [and] the collection of the revenue.\xe2\x80\x9d 3 Story \xc2\xa7 1530, at 387.\nApart from matters commonly considered law enforcement or execution, delegated sovereign authority also includes other domestic matters authorized by law\nthat could bind or otherwise affect the government or third parties for the public\nbenefit. Such matters include legal authority over the contracts and \xe2\x80\x9csupplies . . .\nof the nation,\xe2\x80\x9d id. (persons with such authority also are among the \xe2\x80\x9cmost important\ncivil officers\xe2\x80\x9d); United States v. Tingey, 30 U.S. (5 Pet.) 115, 126 (1831) (discussing officers \xe2\x80\x9cfor the purpose of making contracts, or for the purchase of supplies\xe2\x80\x9d);\nAppointments to the Commission on the Bicentennial of the Constitution, 8 Op.\nO.L.C. 200, 207 (1984) (listing as a \xe2\x80\x9cpurely executive function[]\xe2\x80\x9d the \xe2\x80\x9csigning [of]\nlegal instruments\xe2\x80\x9d on behalf of the government), and \xe2\x80\x9cthe preparatory plans of\nfinance,\xe2\x80\x9d The Federalist No. 72, at 486; authority over the granting of governmental licenses, see Leonard D. White, The Federalists: A Study in Administrative\nHistory 455 (1948), or to determine the rules for public access to or privileges\nregarding governmental property, see In re Corliss, 11 R.I. 638, 640\xe2\x80\x9342 (1876);\nsee also Opinion of the Justices, 3 Greenl. at 483 (contrasting the \xe2\x80\x9cdiscretionary\nregulations of the governor\xe2\x80\x9d regarding the public lands with the subordinate duties\nof his non-officer agent for the preservation of timber on public lands); and the\nauthority to appoint to or remove from other governmental offices, see, e.g., State\nv. Kennon, 7 Ohio St. 546, 562\xe2\x80\x9363 (1857) (these are \xe2\x80\x9cimportant public powers,\ntrusts, and duties\xe2\x80\x9d). To take one example, a leading early case, Shelby v. Alcorn,\n36 Miss. 273 (1858), concluded that a levee commissioner held an office, where\nthe position included authority to set terms for and enter into contracts on behalf of\nthe government for construction of levees, authority to sue to enforce those\ncontracts, \xe2\x80\x9cthe duties of treasurer, in which position he is entitled to receive large\nsums of public money,\xe2\x80\x9d and the ability essentially to levy taxes to fund construction. Id. at 289. His powers were \xe2\x80\x9cextensive and important, and such as no one\ncould claim to exercise, except in virtue of a legislative enactment,\xe2\x80\x9d and \xe2\x80\x9cin the\ndischarge of his proper functions, [he] exercises as clearly sovereign power as the\ngovernor, or a sheriff, or any other executive officer.\xe2\x80\x9d Id. at 291\xe2\x80\x9392 (emphasis\nadded). See also, e.g., Commonwealth v. Swasey, 133 Mass. 538, 541 (1882) (city\nphysician, through his authority as an ex officio member of the board of health,\nhas \xe2\x80\x9cimportant powers to be exercised for the safety and health of the people,\xe2\x80\x9d and\nso is an officer).\nAt the same time, the 1822 Maine decision indicates that some functions simply\ninvolving the management of governmental property may be considered not\n\xe2\x80\x9csovereign\xe2\x80\x9d but rather proprietary. See Opinion of the Justices, 3 Greenl. at 483\n(\xe2\x80\x9cHe is to be clothed with no powers, but those of superintending the public lands,\nand performing certain acts in relation to them under the discretionary regulations\nof the governor.\xe2\x80\x9d); cf. Springer v. Philippine Islands, 277 U.S. 189, 203 (1928)\n\n89\n\n\x0cOpinions of the Office of Legal Counsel in Volume 31\n\n(describing authority to vote government-owned shares of a company\xe2\x80\x99s stock as\n\xe2\x80\x9cnot sovereign but proprietary in its nature,\xe2\x80\x9d though declining to give distinction\nsignificance in separation of powers challenge to statute); Constitutional Limits on\n\xe2\x80\x9cContracting Out\xe2\x80\x9d Department of Justice Functions under OMB Circular A-76,\n14 Op. O.L.C. 94, 99 (1990) (\xe2\x80\x9c[P]urely ministerial and internal functions, such as\nbuilding security, mail operations, and physical plant maintenance, which neither\naffect the legal rights of third parties outside the Government nor involve the\nexercise of significant policymaking authority, may be performed by persons who\nare not federal officers or employees.\xe2\x80\x9d).\nAs the Shelby case indicates, see 36 Miss. at 277, delegated sovereign authority\nfurther includes, on the one hand, authority on behalf of the government to receive\nand oversee the public\xe2\x80\x99s funds. See also Corliss, 11 R.I. at 642 (\xe2\x80\x9coffice\xe2\x80\x9d at least\nincludes a position with authority for \xe2\x80\x9cthe handling of public money . . . , or the\ncare and oversight of some pecuniary interest of the government\xe2\x80\x9d); Commonwealth v. Evans, 74 Pa. 124, 139 (1873) (collection agent is \xe2\x80\x9cby authority at\nlaw, . . . entrusted with the receipt of public moneys\xe2\x80\x9d and chargeable with\nproviding such moneys to the treasury); Tingey, 30 U.S. at 128 (referring to the\n\xe2\x80\x9cofficial duties of a receiver . . . of public moneys\xe2\x80\x9d). Correspondingly, it also\nincludes authority over the disbursement of those public funds. See Maurice, 26 F.\nCas. at 1214 (agents of fortifications have duty of \xe2\x80\x9cdisbursement of the money\nplaced in their hands,\xe2\x80\x9d consistent with orders of Army engineers); Tingey, 30 U.S.\nat 126\xe2\x80\x9328 (discussing \xe2\x80\x9cdisbursing officers\xe2\x80\x9d and \xe2\x80\x9cofficial duties of . . . an agent for\ndisbursery of public moneys\xe2\x80\x9d); 3 Story \xc2\xa7 1530, at 387 (civil officers have authority\nover the \xe2\x80\x9cexpenditures of the nation\xe2\x80\x9d); Buckley, 424 U.S. at 140 (\xe2\x80\x9cdeterminations\nof eligibility for funds\xe2\x80\x9d are among duties implicating Appointments Clause). See\ngenerally Military Storekeepers, 6 Op. Att\xe2\x80\x99y Gen. 4 (1853) (authority to superintend the receiving, safe-keeping, and distribution of military stores and supplies).\nAlexander Hamilton likewise included within the \xe2\x80\x9cadministration of government,\xe2\x80\x9d\nwhich ought to be managed by properly appointed officers, \xe2\x80\x9cthe application and\ndisbursement of the public monies.\xe2\x80\x9d The Federalist No. 72, at 486\xe2\x80\x9387. The\nPresident recently implemented this understanding when he avoided Appointments\nClause concerns with a private corporation\xe2\x80\x99s administration of a fellowship\nprogram by \xe2\x80\x9cinstruct[ing] the head of the department to whose agency these funds\nare appropriated to treat the money as a grant\xe2\x80\x9d to the corporation. Statement by\nPresident George W. Bush Upon Signing H.R. 2474, 39 Weekly Comp. Pres. Doc.\n917, 918 (July 14, 2003), reprinted in 2003 U.S.C.C.A.N. 1009.\nFinally, delegated sovereign authority of the federal government also encompasses functions that are not necessarily domestic and may not precisely involve\nthe execution of the laws, but that nevertheless are within the \xe2\x80\x9cexecutive Power\xe2\x80\x9d\nthat Article II of the Constitution confers, functions in which no mere private party\nwould be authorized to engage. The most notable examples are \xe2\x80\x9c[t]he actual\nconduct of foreign negotiations, . . . the arrangement of the army and navy, [and]\n\n90\n\n\x0cOfficers of the United States Within the Meaning of the Appointments Clause\n\nthe direction of the operations of war.\xe2\x80\x9d The Federalist No. 72, at 486\xe2\x80\x9387. The\npositions with authority to do these things have authority lawfully granted by the\ngovernment to bind or control in some fashion the government or third parties for\nthe public benefit.\nThus, there are military offices. See U.S. Const. amend. XIV, \xc2\xa7 3 (referring to\npersons who \xe2\x80\x9chold any office, civil or military, under the United States\xe2\x80\x9d);\nBurnell, Carth. at 479 (\xe2\x80\x9cOfficers are distinguished into Civil and Military,\naccording to the Nature of their several Trusts\xe2\x80\x9d); West Point Cadets, 7 Op. Att\xe2\x80\x99y\nGen. 323, 329 (1855) (describing cadets and naval midshipmen, commissioned\nby President, as \xe2\x80\x9cpersons of the class of the \xe2\x80\x98inferior officers\xe2\x80\x99 of the Constitution\xe2\x80\x9d); Mechem \xc2\xa7\xc2\xa7 22\xe2\x80\x9324, at 10 (recognizing military and naval officers as\ndistinct from civil officers). These positions are primarily characterized by the\nauthority to command in the Armed Forces\xe2\x80\x94commanding both people and the\nforce of the government. See Bouvier, tit. Officer (defining classes of officers,\nincluding \xe2\x80\x9cmilitary officers who have command in the army\xe2\x80\x9d and \xe2\x80\x9cnaval\nofficers, who are in command in the navy\xe2\x80\x9d); Mechem \xc2\xa7\xc2\xa7 22\xe2\x80\x9323, at 10 (reiterating Bouvier\xe2\x80\x99s definitions); West Point Cadets, 7 Op. Att\xe2\x80\x99y Gen. at 336 (describing brevet second lieutenant as a commissioned officer, \xe2\x80\x9ccapable by law to\ncommand his company in battle, and, a fortiori . . . capable of any duty less than\nthat, which can by law be assigned to a second lieutenant\xe2\x80\x9d); People v. Duane,\n121 N.Y. 367, 373 (1890) (\xe2\x80\x9cIt is difficult to conceive of . . . a military office\nwithout the power of command, the right of promotion or the obligation to\nperform some duty.\xe2\x80\x9d); Separation of Powers, 20 Op. O.L.C. at 144 n.54 (\xe2\x80\x9cEven\nthe lowest ranking military or naval officer is a potential commander of United\nStates armed forces in combat.\xe2\x80\x9d). Such offices necessarily involve a delegation\nof authority that is implicit in and subordinate to the President\xe2\x80\x99s authorities as\n\xe2\x80\x9cCommander in Chief of the Army and Navy of the United States.\xe2\x80\x9d U.S. Const.\nart. II, \xc2\xa7 2; compare Relation of the President, 7 Op. Att\xe2\x80\x99y Gen. at 465 (the\nPresident cannot relinquish his authority as Commander in Chief), with id. at\n479\xe2\x80\x9380 (The President \xe2\x80\x9ccannot be substituted in person into all the acts of . . .\nthe officers, soldiers, and sailors of the Army and Navy,\xe2\x80\x9d and \xe2\x80\x9cthe actual\nexecution of\xe2\x80\x9d the \xe2\x80\x9cmilitary business of the Government must, of necessity,\ndevolve on persons subordinate to the President.\xe2\x80\x9d).\nThere also are diplomatic offices. They have the delegated sovereign authority\nto speak and act on behalf of the United States toward or in other nations, whether\nexecuting the laws or otherwise: \xe2\x80\x9cPublic ministers of every class, are the immediate representatives of their sovereigns,\xe2\x80\x9d and consuls likewise, although they \xe2\x80\x9chave\nnot in strictness a diplomatic character,\xe2\x80\x9d are \xe2\x80\x9cthe public agents of the nations to\nwhich they belong.\xe2\x80\x9d The Federalist No. 81, at 548 (Alexander Hamilton) (emphasis added); see Ambassadors and Other Public Ministers of the United States, 7\nOp. Att\xe2\x80\x99y Gen. 186, 190 (1855) (ambassadors and other public ministers constitute\nthe \xe2\x80\x9cclass of public officers who . . . [are] agents of their respective governments\n\n91\n\n\x0cOpinions of the Office of Legal Counsel in Volume 31\n\nfor the transaction of its diplomatic business abroad\xe2\x80\x9d); Appointment of Consuls, 7\nOp. Att\xe2\x80\x99y Gen. 242, 248 (1855) (consuls are a \xe2\x80\x9cclass of public officers . . .\nappointed by their government to reside in foreign countries\xe2\x80\x9d); United States\nJudicial Authority in China, 7 Op. Att\xe2\x80\x99y Gen. 495, 512 (1855) (Appointments\nClause applies to subordinate diplomatic officers and consuls). For this reason,\nPresident Washington protested upon learning that a private citizen had been\nparticipating in treaty negotiations: \xe2\x80\x9cWho is Mr. Rosencrantz? And under what\nauthority has he attended the councils of the Indians at Buffalo Creek? . . . No\nperson should presume to speak to the Indians on business of a public nature\nexcept those who derive their Authority and receive their instructions from the\nWar Office for that purpose.\xe2\x80\x9d 32 Writings of George Washington 116\xe2\x80\x9317 (John C.\nFitzpatrick ed., 1939) (quoted in White, Federalists at 33); cf. Opinion on the\nPowers of the Senate Respecting Diplomatic Appointments (1790), in 16 Papers\nof Thomas Jefferson 378, 379 (Julian P. Boyd ed., 1961) (\xe2\x80\x9cThe transaction of\nbusiness with foreign nations is Executive altogether.\xe2\x80\x9d). And federal law since\n1799 has made it a crime for citizens to negotiate with foreign governments\nregarding the United States without the \xe2\x80\x9cauthority\xe2\x80\x9d of the United States government. See Logan Act, 1 Stat. 613, ch. 1 (1799) (codified as amended at 18 U.S.C.\n\xc2\xa7 953 (2000)).\nIndeed, the power of a diplomatic office is peculiarly delegated directly by the\nPresident, who makes such officers \xe2\x80\x9cthe unquestionable representatives pro tanto\nof the sovereignty of the United States.\xe2\x80\x9d Ambassadors, 7 Op. Att\xe2\x80\x99y Gen. at 211. A\ndirect presidential delegation is particularly important when diplomatic officers\ncarry out the \xe2\x80\x9cmost important and solemn act of diplomatic service,\xe2\x80\x9d the President\xe2\x80\x99s authority to \xe2\x80\x9cnegotiate[] and sign[] a treaty.\xe2\x80\x9d Id. at 212; see Relation of the\nPresident to the Executive Departments, 7 Op. Att\xe2\x80\x99y Gen. 453, 465 (1855) (\xe2\x80\x9cin\ncertain stages of the negotiation of a treaty, anterior to and including its signature,\n[the President] delegates full powers to another person\xe2\x80\x9d); see also Act of Feb. 20,\n1792, ch. 7, \xc2\xa7 26, 1 Stat. 232, 239 (authorizing Postmaster General to \xe2\x80\x9cmake\narrangements\xe2\x80\x9d with foreign countries for mail receipt and delivery). Similarly, the\ndelegated authority of consuls has included such clearly sovereign areas as\n\xe2\x80\x9cexecuting\xe2\x80\x9d the \xe2\x80\x9cbody of laws for the protection of the rights of citizens of the\nUnited States in foreign countries.\xe2\x80\x9d Appointment of Consuls, 7 Op. Att\xe2\x80\x99y Gen. at\n267. Common powers and duties have included \xe2\x80\x9cadministrative, and sometimes\njudicial, functions,\xe2\x80\x9d and assistance \xe2\x80\x9cin the collection of the public revenue\xe2\x80\x9d by\nauthenticating documents, as well as various duties and rights defined by treaties\nand the law of nations. Id. at 248\xe2\x80\x9349; see also Field v. Clark, 143 U.S. 649, 690\nn.1 (1892) (discussing example of consular judicial powers). To the Founders, the\nproper exercise of such sovereign authority by officers abroad was critical for the\nsecurity of the Nation. Not only does the Appointments Clause ensure accountability for their appointment by expressly mentioning them, U.S. Const. art. II, \xc2\xa7 2,\ncl. 2; see also id. art. III, \xc2\xa7 2, cls. 1 & 2, but the Emoluments Clause, id. art. I, \xc2\xa7 9,\n\n92\n\n\x0cOfficers of the United States Within the Meaning of the Appointments Clause\n\ncl. 8, was adopted with particular reference to preventing foreign corruption of\nsuch officers. See Application of the Emoluments Clause to a Member of the\nPresident\xe2\x80\x99s Council on Bioethics, 29 Op. O.L.C. 55, 57\xe2\x80\x9358 (2005) (\xe2\x80\x9cEmoluments\nClause\xe2\x80\x9d). 7\n3. Three Arguably Relevant Characteristics\nHaving shown that the first element of an \xe2\x80\x9coffice\xe2\x80\x9d for purposes of the Appointments Clause is a delegation of the sovereign authority of the federal\ngovernment, and having given examples of what such sovereign authority\ninvolves, we will touch on three characteristics arguably relevant to the delegation\nof federal sovereign authority. We conclude that the first of these characteristics\n(having discretion) is not necessary to the existence of such authority, and that the\nother two (being a contractor and being a state officer) ordinarily do not involve\nthe exercise of such authority.\na. Discretion\nFirst, \xe2\x80\x9cindependent discretion\xe2\x80\x9d is not a necessary attribute of delegated sovereign authority. Buckley is sometimes read to hold that persons who \xe2\x80\x9cdo not wield\nindependent discretion and [who] act only at the direction of officers\xe2\x80\x9d cannot\nthemselves be considered officers. Separation of Powers, 20 Op. O.L.C. at 144;\nsee Constitutional Limitations on Federal Government Participation in Binding\nArbitration, 19 Op. O.L.C. 208, 216 (1995) (same). Neither Buckley nor early\nauthority supports this restriction on the scope of an \xe2\x80\x9coffice.\xe2\x80\x9d\nBuckley did rightly indicate that discretion in administering the laws typically\nwill constitute the exercise of delegated sovereign authority, and therefore is of\ncourse relevant. See 424 U.S. at 138 (discretion to bring civil enforcement suit); id.\nat 140\xe2\x80\x9341 (duties akin to those of regulatory agency); Freytag, 501 U.S. at 881\xe2\x80\x9382\n(noting that special trial judges \xe2\x80\x9cperform more than ministerial tasks\xe2\x80\x9d and exercise\n\xe2\x80\x9csignificant discretion\xe2\x80\x9d in their tasks); cf. Mechem \xc2\xa7\xc2\xa7 567\xe2\x80\x9368, at 368\xe2\x80\x9370 (discussing rules on ability to delegate the performance of official duties, turning on\nwhether the duties involve judgment and discretion or instead are mechanical or\nministerial). But Buckley did not say, nor does it follow, that such discretion is\nnecessary. Indeed, as already indicated, Buckley reaffirmed prior decisions that\nhad concluded that \xe2\x80\x9ca postmaster first class\xe2\x80\x9d and \xe2\x80\x9cthe clerk of a district court\xe2\x80\x9d\n\n7\nIn the context of the Ineligibility Clause, this Office has assumed, consistent with an 1895 opinion\nof the Attorney General and the text of the Clause, that an ambassador holds a \xe2\x80\x9ccivil Office\xe2\x80\x9d subject to\nthe Clause, while also noting arguments to the contrary based on the specific purposes of that Clause.\nSee Nomination of Sitting Member of Congress to be Ambassador to Vietnam, 20 Op. O.L.C. 284, 285\n& n.5 (1996).\n\n93\n\n\x0cOpinions of the Office of Legal Counsel in Volume 31\n\nwere officers of the United States. 424 U.S. at 126 (citing Myers v. United States,\n272 U.S. 52 (1926), and Ex parte Hennen, 38 U.S. 225 (1839)). The Court\ncontrasted these officers with the Federal Election Commissioners and concluded\nthat if the former were \xe2\x80\x9cinferior officers of the United States within the meaning of\nthe Appointments Clause, as they are, surely the Commissioners before us are at\nthe very least such \xe2\x80\x98inferior Officers\xe2\x80\x99 within the meaning of that Clause.\xe2\x80\x9d Id. 8\nMore fundamentally, treating discretion as necessary for the existence of an\noffice conflicts with the original understanding of \xe2\x80\x9coffice,\xe2\x80\x9d early practice, and\nearly precedents. The Constitution itself repeatedly refers to offices of \xe2\x80\x9cTrust\xe2\x80\x9d as a\nsubset of offices. See U.S. Const. art. I, \xc2\xa7 9, cl. 8 (Emoluments Clause); id. \xc2\xa7 3,\ncl. 7 (judgments in cases of impeachment); id. art. II, \xc2\xa7 1, cl. 2 (qualification for\npresidential electors). And an \xe2\x80\x9coffice of trust\xe2\x80\x9d is \xe2\x80\x9c[a]n office whose duties and\nfunctions require the exercise of discretion, judgment, experience and skill.\xe2\x80\x9d\nMechem \xc2\xa7 16, at 9 (emphasis added); see Town of Meredith, 2 N.H. at 519\n(similar). Blackstone contrasted \xe2\x80\x9coffices of public trust\xe2\x80\x9d with \xe2\x80\x9cministerial offices.\xe2\x80\x9d\n2 William Blackstone, Commentaries *36\xe2\x80\x9337. Early legal dictionaries and abridgments, drawing on Burnell, similarly explained that a public officer \xe2\x80\x9cis not the less\na publick officer, where his authority is confined to narrow limits; because it is the\nduty of his office, and the nature of that duty, which makes him a publick officer,\nand not the extent of his authority.\xe2\x80\x9d E.g., Jacob, tit. Office. Mechem reaffirmed\nthis point. Mechem \xc2\xa7 9, at 7 (quoting Burnell, Carth. at 479). Thus, a ministerial\noffice\xe2\x80\x94one that \xe2\x80\x9cgive[s] the officer no power to judge of the matter to be done,\nand require[s] him to obey the mandates of a superior\xe2\x80\x9d\xe2\x80\x94was still a public office.\nBouvier at 203; see also Jacob, tit. Office (referring to ministerial offices); Charles\nViner, A General Abridgment of Law and Equity 110 (2d ed. 1791) (same);\nMechem \xc2\xa7 21, at 10 (\xe2\x80\x9cMinisterial officers are those whose duty it is to execute the\nmandates, lawfully issued, of their superiors.\xe2\x80\x9d) (internal quotation marks omitted);\nid. \xc2\xa7 657, at 441 (generally defining ministerial functions and officers).\nEarly congresses and administrations, perhaps remembering the experiences\nthat had led to the Declaration of Independence\xe2\x80\x99s protest against British officers,\nconfirmed this original meaning of an \xe2\x80\x9coffice\xe2\x80\x9d through their jealousy of discretion,\nwhich they considered a threat to liberty in the hands of officers. Congress\noriginally cabined the number of offices that possessed discretion, so that only the\nPresident and Cabinet officers would exercise substantial discretion, and most\n8\nAt the same time, the Court indicated that there may be positions whose duties are \xe2\x80\x9cin an area\nsufficiently removed from the administration and enforcement of the public law as to permit their being\nperformed by persons not \xe2\x80\x98Officers of the United States.\xe2\x80\x99\xe2\x80\x9d Buckley, 424 U.S. at 139; see id. at 141\n(essentially same). As noted above, we have no occasion here to consider particular positions or what\nsuch duties or positions may be, apart from the historical examples we discuss of positions not\ninvolving delegated sovereign authority. See also id. at 126 n.162 (discussing distinction between\nofficers and mere employees); Corwin, President at 91 & n.27 (same).\n\n94\n\n\x0cOfficers of the United States Within the Meaning of the Appointments Clause\n\nofficers in the early Republic performed their sovereign functions within strict and\nnarrow limits. See White, The Federalists at 448\xe2\x80\x9359. The first federal marshals,\nfor example, \xe2\x80\x9cwere ministerial officers,\xe2\x80\x9d required \xe2\x80\x9c\xe2\x80\x98to execute . . . all lawful\nprecepts\xe2\x80\x99 directed to them,\xe2\x80\x9d and their instructions \xe2\x80\x9cdealt normally with a particular\nperson or persons and required a specific action to be performed at the direction of\na court.\xe2\x80\x9d Id. at 455. Even within the early Treasury Department, where discretion\nin collectors of customs and the Comptroller could not be avoided, Secretary\nAlexander Hamilton pursued a system in which \xe2\x80\x9clittle or nothing is left to the\ndiscretion of the officers of the revenue,\xe2\x80\x9d id. at 448 (internal quotation marks\nomitted), and any necessary discretion was lodged \xe2\x80\x9chigh in the official ranks,\xe2\x80\x9d id.\nThus, it was generally accepted that the \xe2\x80\x9cofficers of the United States\xe2\x80\x9d included\nmany particular officers who had authority but little if any discretion in administering the laws; these included officers such as registers of the land offices,\nmasters and mates of revenue cutters, inspectors of customs, deputy collectors of\ncustoms, deputy postmasters, and district court clerks. See Roll of the Officers,\nCivil, Military, and Naval, of the United States, 1 Am. St. Papers, Misc. 260\xe2\x80\x93319\n(1802); Hennen, 38 U.S. at 257\xe2\x80\x9358 (district court clerk); United States v. Morse,\n27 F. Cas. 1 (C.C.D. Me. 1844) (No. 15,820) (Story, Circuit Justice) (inspector of\ncustoms); United States v. Barton, 24 F. Cas. 1025, 1027 (E.D. Pa. 1833) (No.\n14,534) (deputy collector of customs); 3 Story \xc2\xa7 1530, at 387 (court clerks and\nreporters; deputy postmasters). See also Pomeroy \xc2\xa7\xc2\xa7 658\xe2\x80\x9359, at 438\xe2\x80\x9339 (1883\ncritique of spoils system objecting that \xe2\x80\x9c[t]he office holder sees that administration\nof the ministerial functions committed to him, is a thing of no comparative\nimportance,\xe2\x80\x9d and referring to \xe2\x80\x9cthe great mass of ministerial officers, whose duties\nare not political\xe2\x80\x9d). 9\nIf it is not necessary to the existence of delegated sovereign authority (and thus\nto the existence of an office) that a position include the exercise of discretion, all\nthe more is it not necessary that a position include some sort of \xe2\x80\x9cindependent\xe2\x80\x9d\ndiscretion in carrying out sovereign functions. The question for purposes of this\nfirst element is simply whether a position possesses delegated sovereign authority\nto act in the first instance, whether or not that act may be subject to direction or\nreview by superior officers: \xe2\x80\x9c[A] delegation of a portion of the sovereign power\xe2\x80\x9d\ninvolves \xe2\x80\x9ca legal power, which may be rightfully exercised, and in its effects it\nwill bind the rights of others, and be subject to revision and correction only\naccording to the standing laws of the State,\xe2\x80\x9d in contrast with a person whose acts\nhave no \xe2\x80\x9cauthority and power of a public act or law\xe2\x80\x9d absent the \xe2\x80\x9csubsequent\nsanction\xe2\x80\x9d of an officer or the legislature. Opinion of the Justices, 3 Greenl. at 482;\n\n9\n\nThe term \xe2\x80\x9cministerial\xe2\x80\x9d may, however, be used informally in a different sense to indicate that\ncertain duties do not involve the exercise of delegated sovereign authority. See Constitutional Limits on\n\xe2\x80\x9cContracting Out,\xe2\x80\x9d 14 Op. O.L.C. at 99 (quoted above in Part II.A.2).\n\n95\n\n\x0cOpinions of the Office of Legal Counsel in Volume 31\n\nsee also White, Federalists at 448 (\xe2\x80\x9cOfficial acts may be either exactly prescribed\nor discretionary. Official authority is obviously enlarged by extension of discretionary power.\xe2\x80\x9d). Again, early practice reinforces this understanding: Inferior\nrevenue officers, for example, had the delegated sovereign authority to make\nclassification decisions, but those decisions could be subjected to two layers of\nappeal, the second being the Treasury Secretary himself. See id. at 455; see also,\ne.g., Act of May 28, 1796, ch. 37, \xc2\xa7\xc2\xa7 3, 8 & 9, 1 Stat. 478, 479, 480\xe2\x80\x9381. A revenue\nofficer\xe2\x80\x99s decision could, without any \xe2\x80\x9csubsequent sanction,\xe2\x80\x9d by law \xe2\x80\x9cbind the\nrights of others,\xe2\x80\x9d even though by law readily \xe2\x80\x9csubject to revision and correction\xe2\x80\x9d\non the initiative of the taxpayer.\nb. Contractors\nSecond, although it is true as a general matter that contractors do not hold an\noffice under the United States, the reason for that (in most cases) is that they do\nnot exercise any delegated sovereign authority. A person\xe2\x80\x99s status as an independent contractor does not per se provide an exemption from the Appointments\nClause; rather, a typical contractor provides goods or services instead of possessing any executive or judicial authority. (Similar considerations apply to\nanalysis of grantees.) As the Maine Supreme Judicial Court explained, a contractor\nmerely provides \xe2\x80\x9ca species of service performed under the public authority and for\nthe public good, but not in the execution of any standing laws, which are considered as the rules of action and the guardians of rights.\xe2\x80\x9d Opinion of the Justices,\n3 Greenl. at 482\xe2\x80\x9383. That is why a contract with an agent for the preservation of\ntimber on the public lands, like the employment of a \xe2\x80\x9cstate printer, or a contractor\nto build a state house, or a state prison,\xe2\x80\x9d did not constitute an office. Id. at 483. See\nalso Maurice, 26 F. Cas. at 1214 (\xe2\x80\x9cA man may certainly be employed under a\ncontract, express or implied, to do an act, or perform a service, without becoming\nan officer.\xe2\x80\x9d); Bache v. Binns, 17 Serg. & Rawle 219, 220 (Pa. 1828) (printer of\ncongressional reports \xe2\x80\x9cholds merely a contract . . . as printer of a newspaper,\nimplying such trust only as is ordinarily implied in contracts for work\xe2\x80\x9d); id. at 221\n(printer was \xe2\x80\x9cworking for the United States government, as he would work for any\nother customer on contract for pay\xe2\x80\x9d). Similarly, the Supreme Court of the United\nStates held, in Hall v. Wisconsin, 103 U.S. 5 (1880), that \xe2\x80\x9ccommissioners\xe2\x80\x9d hired to\nconduct a survey were contractors rather than officeholders (and therefore were\nprotected by the Constitution\xe2\x80\x99s Contract Clause, art. I, \xc2\xa7 10, cl. 1); the Court\ncompared them to parties who contract \xe2\x80\x9cfor the erection, alteration, or repair of\npublic buildings, or to supply the officers or employees who occupy them with\nfuel, light, stationery, and other things necessary for the public service.\xe2\x80\x9d Id. at 10.\nThe commissioners lacked any \xe2\x80\x9cportion of the sovereignty\xe2\x80\x9d or \xe2\x80\x9cthe enforcement of\nmunicipal regulations or the control of the general interests of society.\xe2\x80\x9d See id.\nat 9. And in United States v. Germaine, 99 U.S. 508 (1878), the Court scoffed at\nthe notion that \xe2\x80\x9ca law requiring the commissioner [of Pensions] to appoint a man\n\n96\n\n\x0cOfficers of the United States Within the Meaning of the Appointments Clause\n\nto furnish each agency with fuel at a price per ton fixed by law high enough to\nsecure the delivery of the coal\xe2\x80\x9d would create an office. Id. at 512; see Auffmordt v.\nHedden, 137 U.S. 310, 328 (1890) (same).\nMany members of Congress took the same view in an early debate. Representative John Randolph proposed in 1806 a resolution providing, among other things,\nthat \xe2\x80\x9ca contractor under the Government of the United States is an officer within\nthe purview and meaning of the Constitution, and, as such, is incapable of holding\na seat in this House\xe2\x80\x9d pursuant to the Incompatibility Clause. 15 Annals of Cong.\n880 (1852) (reprinting the 1806 resolution); see generally David P. Currie, The\nConstitution in Congress: The Jeffersonians, 1801\xe2\x80\x931829, at 82\xe2\x80\x9385 (2001)\n(discussing the resolution and debate). The House of Representatives overwhelmingly rejected the resolution, and many who spoke against it explained that, under\nthe accepted definition of an \xe2\x80\x9coffice,\xe2\x80\x9d a contractor was not an officer because he\npossessed no governmental power. As Representative Eppes observed:\nAn extensive meaning has been given to the word \xe2\x80\x9coffice.\xe2\x80\x9d . . . That\nall contractors are not officers, I am certain. A man, for instance,\nmakes 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\nnear an officer. The person takes an oath, is subject to penalties, the\nremission of which depend on the Executive. His duties are fixed and\nprescribed by law. Near, however, as this species of contract approaches to an office, I do not consider that the word \xe2\x80\x9coffice\xe2\x80\x9d in the\nConstitution can include even this species of contract. I consider the\nword \xe2\x80\x9coffice\xe2\x80\x9d in the Constitution ought to be construed according to\nthe usual import and meaning of that term.\n15 Annals of Cong. at 883. Representative Findley likewise argued that a contractor who \xe2\x80\x9cfurnished the public with [an] article of supply,\xe2\x80\x9d such as \xe2\x80\x9cflour for the\nuse of the army\xe2\x80\x9d or \xe2\x80\x9cpaper and quills\xe2\x80\x9d for the House, did not hold an office\nbecause \xe2\x80\x9cit was an essential attribute of office for a man to possess some power, to\nbe exercised on behalf of the Government. Now a mere contractor receives no\nsuch power; he only enters into an engagement[] to perform certain specified\nduties.\xe2\x80\x9d Under Randolph\xe2\x80\x99s view, \xe2\x80\x9cEvery man who sold anything to the Government must . . . be considered as an officer,\xe2\x80\x9d which was absurd. Id. at 885. Representative Kelly also concurred: \xe2\x80\x9cA contractor receives no authority from Government.\xe2\x80\x9d Id. at 890\xe2\x80\x9391; see also id. at 887 (Rep. Nelson) (persons with whom the\nPostmaster General contracts to carry the mail \xe2\x80\x9care not officers of the United\nStates, they are mere hirelings\xe2\x80\x9d); id. at 888 (Rep. Bidwell) (\xe2\x80\x9cTo say that a\ncontractor is an officer is giving a new signification to the words contractor or\nofficer.\xe2\x80\x9d); id. at 890 (Rep. Elmer) (\xe2\x80\x9cBoth common sense and the Constitution\n\n97\n\n\x0cOpinions of the Office of Legal Counsel in Volume 31\n\nforbade considering a contract in the light of an office, and he had never before\nheard of it contended that they were equivalent terms.\xe2\x80\x9d).\nA related reason that contractors in most cases do not hold an office is that, to\nthe extent they do assist the government in carrying out its sovereign functions,\ntheir actions (unlike those of the subordinate officers just discussed with regard to\ndiscretion) have no legal effect on third parties or the government absent subsequent sanction. They do not actually have delegated sovereign authority, even if\nthey assist those who do or must comply with applicable law in carrying out the\ncontract; rather, their advisory and other assisting actions are a kind of service. As\nthe Maine Supreme Judicial Court explained: \xe2\x80\x9cAn employment merely has none of\nthese distinguishing features\xe2\x80\x9d of an office\xe2\x80\x94namely \xe2\x80\x9cdelegation of the sovereign\npower.\xe2\x80\x9d Rather, \xe2\x80\x9c[a] public agent acts only on behalf of his principal, the public,\nwhose sanction is generally considered as necessary to give the acts performed the\nauthority and power of a public act or law.\xe2\x80\x9d Opinion of the Justices, 3 Greenl. at\n482. The mere authority to advise or inform is not delegated sovereign authority.\nSee, e.g., Buckley, 424 U.S. at 138; Emoluments Clause, 29 Op. O.L.C. at 63\xe2\x80\x9370.\nEven at the time of its broadest prior reading of the Appointments Clause, this\nOffice recognized that \xe2\x80\x9cadvisory, investigative, informative, or ceremonial\nfunctions\xe2\x80\x9d are not subject to the Clause. Legislative Encroachments, 13 Op.\nO.L.C. at 249. More recently, we explained that the President may, without\ncreating any issue under the Appointments Clause, \xe2\x80\x9ctap advisers . . . to work on his\nbehalf,\xe2\x80\x9d grant them substantial practical authority to develop and coordinate policy\namong federal agencies, and even formalize the arrangement in an executive order,\nso long as he does not purport to grant such advisers any \xe2\x80\x9clegal power\xe2\x80\x9d over an\nagency or otherwise \xe2\x80\x9cdisturb the statutory allocation of authorities.\xe2\x80\x9d Centralizing\nBorder Control Policy Under the Supervision of the Attorney General, 26 Op.\nO.L.C. 22, 26, 27 (2002) (emphasis added).\nConversely, in those rare cases where a mere contractor did exercise delegated\nsovereign authority (and did so on a continuing basis), he did hold an office\nsubject to the Appointments Clause. See Maurice, 26 F. Cas. at 1216\xe2\x80\x9320; cf.\nHoldover and Removal of Members of Amtrak\xe2\x80\x99s Reform Board, 27 Op. O.L.C.\n163, 166\xe2\x80\x9368 (2003) (holding that, as an incident of his statutory power to appoint\nthe board members of a federally created corporation, the President had power to\nremove them at will, notwithstanding statutory provision that the corporation was\nnot a department, agency, or instrumentality of the government). As the Attorney\nGeneral explained nearly ninety years ago, \xe2\x80\x9cthe inquiry must always be into the\nnature of the service to be rendered. If the appointee himself performs any of the\nfunctions of government, he is an officer. If he merely renders assistance to\nanother in the performance of those functions, he is an employee.\xe2\x80\x9d Employee\xe2\x80\x99s\nCompensation Act, 31 Op. Att\xe2\x80\x99y Gen. 201, 203\xe2\x80\x9304 (1918).\n\n98\n\n\x0cOfficers of the United States Within the Meaning of the Appointments Clause\n\nc. State Officers\nFinally, state officers ordinarily do not possess delegated sovereign authority of\nthe federal government, even when they assist in the administration of federal law.\nThus, the Appointments Clause ordinarily does not apply to them. State officers,\neven when enforcing federal law, generally exercise the sovereign law enforcement authority of their state, ultimately delegated by the people of that state; if\nthey hold any office, they are officers of their state or locality, not of the United\nStates. They hold authority independently of a delegation from the federal\ngovernment, and they and those who appoint them are accountable for their\nactions to the people of the state.\nStates and their officers stand in a unique relationship with the federal government and the people under our constitutional system of dual sovereignty. As the\nTenth Amendment makes express, the Framers \xe2\x80\x9cdesigned a system in which the\nState and Federal Governments would exercise concurrent authority over the\npeople.\xe2\x80\x9d Printz, 521 U.S. at 919\xe2\x80\x9320; see U.S. Const. amend. X (\xe2\x80\x9cThe powers not\ndelegated to the United States by the Constitution, nor prohibited by it to the\nStates, are reserved to the States respectively, or to the people.\xe2\x80\x9d); U.S. Term\nLimits, Inc. v. Thornton, 514 U.S. 779, 801 (1995) (\xe2\x80\x9cThe \xe2\x80\x98plan of the convention\xe2\x80\x99 . . . draws a basic distinction between the powers of the newly created\nFederal Government and the powers retained by the pre-existing sovereign\nStates.\xe2\x80\x9d). The states thus retain inherent sovereign authority within their jurisdictions, and their powers proceed \xe2\x80\x9cnot from the people of America, but from the\npeople of the several States; and remain, after the adoption of the constitution,\nwhat they were before, except so far as they may be abridged by that instrument.\xe2\x80\x9d\nSturges v. Crowninshield, 17 U.S. (4 Wheat.) 122, 193 (1819); accord The\nFederalist No. 32, at 200 (Hamilton) (\xe2\x80\x9c[T]he State Governments would clearly\nretain all the rights of sovereignty which they before had and which were not by\n[the Constitution] exclusively delegated to the United States.\xe2\x80\x9d). Recognizing this\nconcurrent authority, the Constitution binds state officers, along with federal ones,\nto swear to support the Constitution. U.S. Const. art. VI, cl. 3.\nThat retained power includes, if a state wishes, some authority to enforce federal law within the state\xe2\x80\x99s jurisdiction, subject to any limits imposed by the Constitution (apart from the Appointments Clause) or by federal law. See generally Currie,\nJeffersonians at 78 (\xe2\x80\x9cthe Union may do only what the Constitution permits and the\nstates may do whatever it does not forbid,\xe2\x80\x9d although \xe2\x80\x9cthere are implicit constitutional limitations on state power to interfere with federal operations\xe2\x80\x9d); cf. supra\nnote 1. Indeed, the Founders assumed that \xe2\x80\x9cthe States would consent to allowing\ntheir officials to assist the Federal Government.\xe2\x80\x9d Printz, 521 U.S. at 911. Madison,\nfor example, predicted that \xe2\x80\x9cthe eventual collection [of internal revenue] under the\nimmediate authority of the Union, will generally be made by the officers, and\naccording to the rules, appointed by the several States,\xe2\x80\x9d and found it \xe2\x80\x9cextremely\n\n99\n\n\x0cOpinions of the Office of Legal Counsel in Volume 31\n\nprobable that in other instances, particularly in the organisation of the judicial\npower, the officers of the States will be cloathed with the correspondent authority\nof the Union.\xe2\x80\x9d The Federalist No. 45, at 313; see Printz, 521 U.S. at 910 (cataloguing other such statements). The early federal government did indeed make\nprovision for such action by state officials. See, e.g., Act of March 26, 1790, \xc2\xa7 1,\nch. 3, 1 Stat. 103 (state judicial officers\xe2\x80\x99 duties involving naturalization); Act of\nJune 18, 1798, \xc2\xa7\xc2\xa7 2, 4, ch. 54, 1 Stat. 566, 567\xe2\x80\x9368 (same); Act of April 14, 1802,\n\xc2\xa7 1, ch. 28, 2 Stat. 153, 153\xe2\x80\x9354 (same); Act of July 20, 1790, ch. 29, 1 Stat. 131\n(proceedings involving merchant ships); Act of Apr. 7, 1798, ch. 26, 1 Stat. 547\n(proceedings involving land claims by refugees); Act of July 6, 1798, ch. 66, 1\nStat. 577, 577\xe2\x80\x9378 (proceedings involving claims against aliens). And in Houston v.\nMoore, 18 U.S. (5 Wheat.) 1 (1820), the Court upheld Pennsylvania\xe2\x80\x99s power to try\na militiaman under federal criminal law for failing to report for federal service.\nSimilarly, this Office has found it \xe2\x80\x9cwell-settled that state law enforcement officers\nare permitted to enforce federal statutes where such enforcement activities do not\nimpair federal regulatory interests.\xe2\x80\x9d Assistance by State and Local Police in\nApprehending Illegal Aliens, 20 Op. O.L.C. 26, 29 (1996); see also United States\nv. Di Re, 332 U.S. 581, 589 (1948) (looking to state law to determine validity of\narrest without warrant for federal offense); cf. Separation of Powers, 20 Op.\nO.L.C. at 146 n.63 (\xe2\x80\x9cWhere state officials do exercise significant authority under\nor with respect to federal law, they do so as state officials, by the decision and\nunder the ultimate authority of the state.\xe2\x80\x9d). 10\nB. The Position Must Be \xe2\x80\x9cContinuing\xe2\x80\x9d\nThe second element of a federal \xe2\x80\x9coffice,\xe2\x80\x9d necessary to make a position subject\nto the Appointments Clause, is that the position be \xe2\x80\x9ccontinuing.\xe2\x80\x9d As explained\nbelow, 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, \xe2\x80\x9ctransient,\xe2\x80\x9d or \xe2\x80\x9cincidental.\xe2\x80\x9d Like the first element, this second one emerges from the Constitution\xe2\x80\x99s\ntext, extensive early authority (including, after the Civil War, leading decisions of\nthe Supreme Court), and the law of public offices. After setting out the authority\nfor this element, we describe its contours and then apply it to a few recurring\nareas.\n\n10\nIf, however, a state officer enforcing federal law depended on affirmative federal authorization\xe2\x80\x94\nas opposed to state authorization (subject to any federal limits or regulations) or a mere federal removal\nof a disability (such as preemption)\xe2\x80\x94the constitutional analysis would differ, as suggested by the\ndivisions in the early case of Pool discussed above. See supra note 6. At the extreme, Congress may not\n\xe2\x80\x9cdirect state law enforcement officers to participate . . . in the administration of a federally enacted\nregulatory scheme,\xe2\x80\x9d Printz, 521 U.S. at 904 (emphasis added), or \xe2\x80\x9cimpress[] state police officers into\nfederal service,\xe2\x80\x9d id. at 923 n.12, in part because of the Appointments Clause, id. at 922\xe2\x80\x9323.\n\n100\n\n\x0cOfficers of the United States Within the Meaning of the Appointments Clause\n\n1. The Foundations of This Element\nThe Constitution refers to an office as something that one \xe2\x80\x9cholds\xe2\x80\x9d and \xe2\x80\x9cenjoys\xe2\x80\x9d\nand in which one \xe2\x80\x9ccontinues,\xe2\x80\x9d and these descriptions suggest that an office has\nsome duration and ongoing duties. See, e.g., U.S. Const. art. I, \xc2\xa7 3, cl. 7 (impeachment leading to \xe2\x80\x9cdisqualification to hold and enjoy any Office\xe2\x80\x9d); art. I, \xc2\xa7 6,\ncl. 2 (Incompatibility Clause, referring to a \xe2\x80\x9cPerson holding any Office\xe2\x80\x9d and\nhaving a \xe2\x80\x9cContinuance in Office\xe2\x80\x9d); art. I, \xc2\xa7 9, cl. 8 (Emoluments Clause, referring\nto a \xe2\x80\x9cPerson holding any Office\xe2\x80\x9d); art. II, \xc2\xa7 1, cl. 2 (providing that no \xe2\x80\x9cPerson\nholding an Office . . . shall be appointed an Elector\xe2\x80\x9d). Similarly, the Recess\nAppointments Clause suggests that an office is a position that may be vacant (thus\nnot held only by a single person) and will continue beyond a single session of\nCongress. See id. art. II, \xc2\xa7 2, cl. 3 (\xe2\x80\x9cThe President shall have Power to fill up all\nVacancies that may happen during the recess of the Senate, by granting Commissions which shall expire at the End of their next Session.\xe2\x80\x9d). And the Appointments\nClause itself indicates that most offices are \xe2\x80\x9cestablished by Law.\xe2\x80\x9d Id. cl. 2\n(emphasis added). One aspect of an office\xe2\x80\x99s duration is its tenure, the period\nduring which a particular incumbent may hold, enjoy, and continue in the office,\nand the tenure also establishes that the existence of the office is not contingent on\na particular person\xe2\x80\x99s holding it. The Constitution expressly mentions permanent,\nnon-personal offices that may be held for a term, such as President or Vice\nPresident, see id. art. II, \xc2\xa7 1, and others that may be held during good behavior,\nnamely judgeships, see id. art. III, \xc2\xa7 1. Madison during ratification listed three\npossible tenures: He referred to \xe2\x80\x9cpersons holding their offices during pleasure, for\na limited period, or during good behavior.\xe2\x80\x9d The Federalist No. 39, at 251; see also\nRehnquist Letter at 3 (\xe2\x80\x9cThe analysis does not rest simply on the fact that the\nincumbent lacks fixed tenure; such is true of Cabinet members . . . . But the\nposition itself, as a position and apart from the particular incumbent, has no fixed\nduration.\xe2\x80\x9d). 11\n\n11\nThe permissibility under the Appointments Clause of assigning a person to carry out the duties of\nan office temporarily (on an acting basis) is distinct from, albeit related to, whether an office exists.\nThe former question can be understood as whether, if an office exists, a person exercising its duties\ntruly \xe2\x80\x9cholds\xe2\x80\x9d it. See United States v. Eaton, 169 U.S. 331, 343 (1898) (upholding designation of vice\nconsul to act as consul: \xe2\x80\x9cBecause the subordinate officer is charged with the performance of the duty of\nthe superior for a limited time and under special and temporary conditions, he is not thereby\ntransformed into the superior and permanent official\xe2\x80\x9d) (emphases added); U.S. Const. art. II, \xc2\xa7 1, cl. 6\n(providing that in cases of removal, death, resignation, or inability of the President, \xe2\x80\x9cthe Powers and\nDuties of the said Office . . . shall devolve on the Vice President,\xe2\x80\x9d and authorizing Congress by law to\ndeclare, for cases of removal, death, resignation, or inability of both the President and Vice President,\n\xe2\x80\x9cwhat Officer shall then act as President, and such Officer shall act accordingly, until the Disability be\nremoved, or a President shall be elected\xe2\x80\x9d) (emphases added), amended by id. amend. XXV (providing\nthat in cases of removal, death, or resignation of the President, the Vice President \xe2\x80\x9cshall become\n\n101\n\n\x0cOpinions of the Office of Legal Counsel in Volume 31\n\nThe same meaning of an \xe2\x80\x9coffice\xe2\x80\x9d finds support in the legal dictionaries contemporaneous with the Founding. They distinguished between short-term arrangements, such as an \xe2\x80\x9cagreement to make hay, plough land, herd a flock, &c.,\xe2\x80\x9d\nand continuing positions, such as \xe2\x80\x9csteward of a manor,\xe2\x80\x9d that qualified as public or\nprivate offices. Jacob, tit. Office; see Cunningham, tit. Office (same). Even the\nearly case of Burnell suggests the distinction, in the defendant\xe2\x80\x99s attempt to portray\nhis position as not an office because it merely involved \xe2\x80\x9cparticular Powers created\nfor particular Purposes.\xe2\x80\x9d Carth. at 479. By the time of the Founding, an \xe2\x80\x9coffice\xe2\x80\x9d\nwas understood in the common law \xe2\x80\x9cas an institution distinct from the person\nholding it and capable of persisting beyond his incumbency,\xe2\x80\x9d to which \xe2\x80\x9ccertain\nfrequently recurrent and naturally coherent duties [were] assigned more or less\npermanently.\xe2\x80\x9d Corwin, President at 85.\nEarly American practice and precedent, particularly with regard to diplomacy\n(the conduct of which, as explained above in Part II.A.2, can include delegated\nsovereign authority), strongly support and illuminate this understanding that, to be\nan office, a position must have continuance or duration. From the beginning,\nPresidents repeatedly have \xe2\x80\x9cdispatched \xe2\x80\x98secret\xe2\x80\x99 agents on diplomatic or semidiplomatic missions without nominating them to the Senate.\xe2\x80\x9d Corwin, President at\n86. One of President Washington\xe2\x80\x99s first acts was unilaterally to name Gouverneur\nMorris (a fellow delegate to the Constitutional Convention) as a special agent to\nexplore a commercial treaty with Britain. David P. Currie, The Constitution in\nCongress: The Federalist Period: 1789\xe2\x80\x931801, at 44 (1997). Washington also\nunilaterally named \xe2\x80\x9ccommissioners\xe2\x80\x9d to deal with a rebellion in Pennsylvania in\n1794 without appointing them officers. See Corwin, President at 406 n.7. So too\nhave Presidents as far back as Washington \xe2\x80\x9cdesignated members of . . . [Congress]\nto represent the United States on international commissions and at diplomatic\nconferences,\xe2\x80\x9d id. at 86, notwithstanding that the Constitution\xe2\x80\x99s Ineligibility Clause\nmay have barred the members\xe2\x80\x99 appointment to a \xe2\x80\x9ccivil Office under the Authority\nof the United States\xe2\x80\x9d and that the Incompatibility Clause would have required\nthem to vacate their seats in Congress if they took \xe2\x80\x9cany Office under the United\nStates.\xe2\x80\x9d U.S. Const. art. I, \xc2\xa7 6, cl. 2; see, e.g., Member of Congress\xe2\x80\x94Appointment\nto Office, 21 Op. Att\xe2\x80\x99y Gen. 211, 214 (1895) (finding violation of Ineligibility\nClause in appointment of senator, because during his senatorial term \xe2\x80\x9cthe emoluments of the office of minister to Mexico were increased\xe2\x80\x9d). In a striking early\nillustration, President Jefferson appointed Senator Daniel Smith as a commissioner\nto negotiate and execute treaties with the Cherokee Indians, yet Jefferson did not\nsubmit the nomination to the Senate, and Smith did not vacate his seat in the\nSenate. See 1 Am. St. Papers, Indian Affairs 697\xe2\x80\x9398 (1805). Absent contemporaPresident\xe2\x80\x9d but that in cases of inability the Vice President shall discharge the powers and duties of the\noffice of President \xe2\x80\x9cas Acting President\xe2\x80\x9d).\n\n102\n\n\x0cOfficers of the United States Within the Meaning of the Appointments Clause\n\nneous objections on constitutional grounds to such early and consistent practice,\nwe presume that it reflects an early consensus of its constitutionality. The rationale\nfor this consensus, evident from the early understanding of an \xe2\x80\x9coffice,\xe2\x80\x9d is that\n\xe2\x80\x9csuch diplomatic assignments are not \xe2\x80\x98offices\xe2\x80\x99 in the sense of the Constitution,\nbeing summoned into existence only for specific temporary purposes.\xe2\x80\x9d Corwin,\nPresident at 86 (emphasis added). Indeed, a House select committee in 1822 found\nno \xe2\x80\x9coffice as was contemplated by the Constitution\xe2\x80\x9d in President Jefferson\xe2\x80\x99s\ndispatching of Senator Smith, also noting a similar example from Madison\xe2\x80\x99s\nadministration. 39 Annals of Cong. 1407, 1409\xe2\x80\x9310 (1855); see also Office\xe2\x80\x94\nCompensation, 22 Op. Att\xe2\x80\x99y Gen. 184, 188\xe2\x80\x9389 (1898) (noting other appointments\nfor \xe2\x80\x9cspecial work of great international importance\xe2\x80\x9d).\nThe most prominent early example is the Jay Treaty of 1794. It established\ntribunals for resolving both a border dispute and claims between creditors and\nmerchants of the United States and Great Britain. The tribunals\xe2\x80\x99 commissioners\nwere to be appointed in equal numbers by the President (with the advice and\nconsent of the Senate) and the British King, with a final commissioner chosen by\nlot. See Treaty of Amity, Commerce and Navigation, U.S.-Gr. Brit., Nov. 19,\n1794, arts. V & VI, 8 Stat. 116, 119\xe2\x80\x9321 (1794); see also 1 Journal of the Executive\nProceedings of the Senate 204\xe2\x80\x9305 (Apr. 1, 1796) (1828) (confirmation of commissioners). The treaty\xe2\x80\x99s opponents, perhaps spurred by its requirement of Senate\nconfirmation, objected that the Appointments Clause prohibited creation of\ncommissioners by treaty. Hamilton responded in a series of essays defending the\ntreaty:\n[They] are not in a strict sense OFFICERS. They are arbitrators between the two Countries. Though in the Constitutions, both of the U\nStates and of most of the Individual states, a particular mode of appointing officers is designated, yet in practice it has not been deemed\na violation of the provision to appoint Commissioners or special\nAgents for special purposes in a different mode.\nAlexander Hamilton, The Defence No. 37 (Jan. 6, 1796), reprinted in 20 The\nPapers of Alexander Hamilton 13, 20 (Harold C. Syrett ed., 1974) (second\nemphasis added); see Separation of Powers, 20 Op. O.L.C. at 146 n.67 (quoting\nthis passage as primary example of the \xe2\x80\x9clong historical pedigree\xe2\x80\x9d for the argument\nthat United States representatives to multinational or international entities \xe2\x80\x9cneed\nnot be appointed in accordance with Article II\xe2\x80\x9d where the entities \xe2\x80\x9care created on\nan ad hoc or temporary basis\xe2\x80\x9d). 12\n12\nThe objection, as stated by Hamilton, was that \xe2\x80\x9c[t]he constitution is said to be violated in that\npart, which requires the establishment of Officers of the U. States by law\xe2\x80\x94by those stipulations of the\nTreaty which without the intervention of law provide for the appointment of Commissioners.\xe2\x80\x9d 20\n\n103\n\n\x0cOpinions of the Office of Legal Counsel in Volume 31\n\nA century later, Attorney General Griggs twice applied the same understanding\nof an office to \xe2\x80\x9cspecial Agents for special purposes.\xe2\x80\x9d In 1898, he opined that a\ncommissioner appointed by the President pursuant to a treaty, to arbitrate certain\nclaims between the United States and Great Britain arising from the seizure of\nBritish vessels in the Bering Sea, did not hold an \xe2\x80\x9coffice\xe2\x80\x9d under a particular\nstatute, because \xe2\x80\x9cthe temporary character of the employment, which was to\nconsist of and to terminate at the end of the examination of a limited number of\nspecified claims, withdraws one of the elements of an office which the Supreme\nCourt regards as essential.\xe2\x80\x9d Office\xe2\x80\x94Compensation, 22 Op. Att\xe2\x80\x99y Gen. at 188\n(citing Auffmordt, 137 U.S. at 327) (emphases added); see id. at 187 (commissioner is \xe2\x80\x9csent to adjudicate upon certain named claims, listed at the end of the treaty,\xe2\x80\x9d\nand his \xe2\x80\x9cemployment was thus to perform a certain task which might take a month\nor several months\xe2\x80\x9d); id. at 188 (referring to \xe2\x80\x9coccasional and temporary commissionerships\xe2\x80\x9d). Then in Members of the General Board of Arbitration, 23 Op. Att\xe2\x80\x99y\nGen. 313 (1900), the Attorney General reaffirmed his 1898 opinion and found it\nconstitutional for the President alone to appoint, pursuant to a treaty, persons to a\nlist from which panels of arbitrators could be drawn to resolve future disputes\nbetween signatory nations. (Attorney General Griggs was himself one of the first\nso named, in 1901.) Those on the list would not be \xe2\x80\x9cin the ordinary acceptation of\nthe term, persons holding office,\xe2\x80\x9d because they would have no ongoing duties or\nauthority: \xe2\x80\x9cNominally they may be appointed for six years, but they may never\nactually exercise any functions at all. Their work is not only occasional, but\ncontingent upon what is practically an appointment to act as arbitrators, to be\nreceived from foreign powers in the future.\xe2\x80\x9d Id. at 315. 13 Cf. British and American\nPapers of Alexander Hamilton at 14; see Cato, Observations on Mr. Jay\xe2\x80\x99s Treaty No. XIII, in 1 The\nAmerican Remembrancer 244, 250\xe2\x80\x9351 (1795) (arguing that offices not enumerated in Appointments\nClause may only be established by law, which did not include treaty; adding, \xe2\x80\x9cBy what authority, then,\ncan Mr. Jay and Lord Grenville, or the president and the senate, over-ride the constitution, and assume\na power to control the rights of congress, to create the office, and to place it in such hands as they think\nproper, under the above limitations?\xe2\x80\x9d); id. No. XIV, in 2 The American Remembrancer 3, 3 (1795)\n(\xe2\x80\x9cNo power is vested in [Congress] to allow the appointment of any officer by lot, and much less to\nadmit that his Britannic majesty should exercise the right of appointing judges for the trial of causes in\nwhich they are themselves to be the parties.\xe2\x80\x9d). Hamilton answered the objection indirectly\xe2\x80\x94by denying\nthat any offices were being created. An 1802 \xe2\x80\x9cRoll of Civil, Military, and Naval Officers,\xe2\x80\x9d tracking\nexpenses, includes the salaries of the American commissioners, \xe2\x80\x9cas they were appointed by the\nPresident,\xe2\x80\x9d and also includes the U.S. contribution of half the salary of the jointly appointed commissioner, but notes that the \xe2\x80\x9ccommission is not now in a state of activity.\xe2\x80\x9d 1 Am. St. Papers, Misc. at 307\nn.*.\n13\nAn alternative ground for Griggs\xe2\x80\x99s 1900 conclusion was that the listed arbitrators, even if called\nto serve, \xe2\x80\x9care not expected to exercise any part of the sovereignty of the United States; they are not\nexpected to perform any functions in the Government of the United States.\xe2\x80\x9d Rather, they would serve\n\xe2\x80\x9ctwo foreign nations that may select them and authorize them to settle a dispute between two nations.\xe2\x80\x9d\nMembers of the General Board of Arbitration, 23 Op. Att\xe2\x80\x99y Gen. at 315; cf. Office\xe2\x80\x94Compensation, 22\nOp. Att\xe2\x80\x99y Gen. at 188 (\xe2\x80\x9ca person employed solely as a sworn judge of a joint international commission\nwould not be spoken of as an officer of either country, although, under a treaty requiring it, selected\n\n104\n\n\x0cOfficers of the United States Within the Meaning of the Appointments Clause\n\nInternational Commissioners, 6 Op. Att\xe2\x80\x99y Gen. 65 (1853) (addressing questions\nregarding payment of commissioners appointed to arbitrate claims between Great\nBritain and American citizens pursuant to a treaty, without suggesting any\nconstitutional issues).\nThis second element of an \xe2\x80\x9coffice\xe2\x80\x9d is also well established by the early law of\npublic offices. In Maurice, Chief Justice Marshall concluded that the office of\n\xe2\x80\x9cagent of fortifications\xe2\x80\x9d existed in the Army. He explained that \xe2\x80\x9cif a duty be a\ncontinuing one\xe2\x80\x9d and \xe2\x80\x9cif those duties continue, though the person be changed; it\nseems very difficult to distinguish such a charge or employment from an office, or\nthe person who performs the duties from an officer.\xe2\x80\x9d 26 F. Cas. at 1214. Forty\nyears later, the Illinois Supreme Court in Bunn used Maurice as the benchmark\nand reasoned that Marshall would have found no office if the agent had \xe2\x80\x9cbeen\nappointed merely to superintend the erection of a single fortification, his duties\nceasing when the work was accomplished\xe2\x80\x9d; the court found no office in a position\xe2\x80\x94commissioner to build the state house\xe2\x80\x94involving \xe2\x80\x9cone single special duty,\xe2\x80\x9d\n\xe2\x80\x9cnot of a permanent, but of a transient and incidental character.\xe2\x80\x9d 45 Ill. at 404\xe2\x80\x9305.\nSimilarly, the court in Pool, see supra note 6, essentially held that a state justice of\nthe peace, allowed by federal law to commit to jail for trial any deserting seaman,\nwas not a judicial officer of the United States, because he was not exercising the\n\xe2\x80\x9cregular and permanent duties\xe2\x80\x9d of a federal court but rather handling \xe2\x80\x9cincidental\nand occasional matters,\xe2\x80\x9d 2 Va. Cas. at 280; the dissent claimed a violation of the\nAppointments Clause by focusing only on delegated authority, quoting Burnell\nand objecting that the \xe2\x80\x9cimportant duties\xe2\x80\x9d of enforcing federal criminal laws should\nnot be entrusted to \xe2\x80\x9cmere agents,\xe2\x80\x9d or \xe2\x80\x9cpersons negotiating occasional business.\xe2\x80\x9d\nId. at 288 (Semple, J., dissenting).\nEarlier, the Supreme Court of Pennsylvania in Shepard v. Commonwealth, 1\nSerg. & Rawle 1 (Pa. 1814), held (in the alternative) that a commissioner, paid by\nthe 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\nthe state constitution, because the position was \xe2\x80\x9crather the execution of a special\ncommission, than the holding of an office.\xe2\x80\x9d Id. at 10. The same court also held that\na person appointed as a city\xe2\x80\x99s port physician, a post with a statutory duration of\nfour years, did not hold an office subject to the state constitution\xe2\x80\x99s appointments\n\nand sent to his post by one of them\xe2\x80\x9d). In both decisions, Griggs also addressed the relationship between\nthe treaty power and the Appointments Clause, the question that Hamilton had avoided. See 22 Op.\nAtt\xe2\x80\x99y. Gen. at 185\xe2\x80\x9387; 23 Op. Att\xe2\x80\x99y Gen. at 315. But whether it is constitutional for a treaty, as\nopposed to a law, to establish an office under the United States or, conversely, whether a position\ncreated by treaty is not such an office because not created by law (even if otherwise having the\ncharacteristics of such an office), or may not be for some other reason, is beyond the scope of this\nopinion. See generally infra Part II.C.2 (discussing creation of offices \xe2\x80\x9cby law\xe2\x80\x9d). In both cases, it was\notherwise clear that the positions did not have the characteristics of offices of the United States.\n\n105\n\n\x0cOpinions of the Office of Legal Counsel in Volume 31\n\nclause. Commonwealth v. Sutherland, 3 Serg. & Rawle 145 (Pa. 1817). The Chief\nJustice explained that \xe2\x80\x9cthere are matters of temporary and local concern, which,\nalthough comprehended in the term office, have not been thought to be embraced\nby the constitution.\xe2\x80\x9d Id. at 9. Other early cases are to like effect. See In re Oaths,\n20 Johns. 492, 493 (N.Y. 1823) (dicta, stating that \xe2\x80\x9coffice\xe2\x80\x9d requires a public\nemployment \xe2\x80\x9cnot merely transient, occasional or incidental\xe2\x80\x9d); Kennon, 7 Ohio St.\nat 559, 562 (declining to decide \xe2\x80\x9c[h]ow far the general assembly may go in\nconstituting temporary agencies and commissions for temporary, incidental,\ntransient, or occasional purposes\xe2\x80\x9d without \xe2\x80\x9ccreating an office,\xe2\x80\x9d where positions at\nissue \xe2\x80\x9cexercise continuously, and as a part of the regular and permanent administration of the government, important public powers, trusts, and duties\xe2\x80\x9d); Shelby,\n36 Miss. at 289 (declaring it \xe2\x80\x9cuniversally true, that where an employment or duty\nis a continuing one, which is defined by rules prescribed by law and not by\ncontract, such a charge or employment is an office\xe2\x80\x9d); cf. Barton, 24 F. Cas. at\n1027 (contrasting positions of temporary deputy collector, appointed by collector\nin cases of his \xe2\x80\x9coccasional and necessary absence, or [] sickness,\xe2\x80\x9d and the\n\xe2\x80\x9cpermanent office\xe2\x80\x9d of deputy collector, appointed by Secretary of the Treasury);\nBoyd, 1 Pin. at 363 (\xe2\x80\x9cAn office is where, for the time being, a portion of the\nsovereignty, legislative, executive or judicial, attaches, to be exercised for the\npublic benefit.\xe2\x80\x9d) (emphasis added).\nThe Attorneys General as well held the same understanding in the domestic\ncontext from an early date. An 1828 opinion concluded that a statute granting the\nCommandant of the Marine Corps authority to appoint officers when \xe2\x80\x9cit shall\nbecome necessary\xe2\x80\x9d did not violate the Appointments Clause so long as it was\ninterpreted to permit only \xe2\x80\x9can occasional and transitory appointment\xe2\x80\x9d in emergency circumstances \xe2\x80\x9cshould [the Marines] be detached from the ships to which they\nbelonged.\xe2\x80\x9d Authority of Lieutenant Colonel Commandant of Marine Corps, 2 Op.\nAtt\xe2\x80\x99y Gen. 77, 78\xe2\x80\x9379 (1828). In 1843, Attorney General Legare determined that\n\xe2\x80\x9cpermanent inspectors\xe2\x80\x9d of customs were \xe2\x80\x9cofficers of the government of the United\nStates,\xe2\x80\x9d required to be appointed consistent with the Appointments Clause, while\n\xe2\x80\x9coccasional inspectors whose services were demanded in extraordinary exigencies\nin the service\xe2\x80\x9d were not. Appointment and Removal of Inspectors of Customs,\n4 Op. Att\xe2\x80\x99y Gen. at 163; see also Contract With Architect of Public Buildings,\n5 Op. Att\xe2\x80\x99y Gen. 754, 754\xe2\x80\x9355 (1823) (appendix) (contrasting \xe2\x80\x9coffices of a\npermanent nature\xe2\x80\x9d with a position involving a \xe2\x80\x9csubject-matter . . . of a temporary\nand limited character,\xe2\x80\x9d properly characterized as a contract); The Reconstruction\nActs, 12 Op. Att\xe2\x80\x99y Gen. 141, 155\xe2\x80\x9356 (1867) (relying on Sutherland and invoking\nthe \xe2\x80\x9cwell established\xe2\x80\x9d rule that \xe2\x80\x9cpersons who exercise special public duties rather\nin the nature of occasional employments than general and continuing official duty\xe2\x80\x9d\nare not properly considered executive or judicial officers of a state); cf. Mandatory\nStatutes\xe2\x80\x94Appointing Power, 8 Op. Att\xe2\x80\x99y Gen. 41, 44 (1856) (\xe2\x80\x9cI can conceive the\npossibility of a provision of law by which a controversy between the Government\n\n106\n\n\x0cOfficers of the United States Within the Meaning of the Appointments Clause\n\nand the city of Baltimore shall be submitted to two arbitrators, one to be appointed\nby each party, and in case of disagreement, they to select an umpire.\xe2\x80\x9d). And the\n1822 House report, noted above in connection with diplomatic assignments, was\nultimately concerned with whether the temporary assignment of a senator to\n\xe2\x80\x9cexamine various land offices of the United States\xe2\x80\x9d (that is, to audit their books),\nfor which he was paid by the day, made him an officer under the Ineligibility and\nIncompatibility Clauses. The committee concluded that it did not. 39 Annals of\nCong. at 1408\xe2\x80\x9310; see also id. at 1410\xe2\x80\x9313 (collecting additional examples). The\ncommittee observed that this \xe2\x80\x9copinion seems to have received the sanction, and\nregulated the practice, of the Government since the adoption of the Constitution,\nby those who bore a principal share in composing it; and must, therefore, be\nsupposed to have understood its real import.\xe2\x80\x9d Id. at 1409.\nIn a series of cases after the Civil War, the Supreme Court adhered to and\napplied this longstanding understanding. In Hartwell (1868), the Court held that \xe2\x80\x9ca\nclerk\xe2\x80\x9d in the office of the \xe2\x80\x9cassistant treasurer of the United States . . . at Boston\xe2\x80\x9d\nwas a \xe2\x80\x9cpublic officer[]\xe2\x80\x9d for purposes of an indictment under an embezzlement\nstatute. The Court explained:\nAn office is a public station, or employment, conferred by the appointment of government. The term embraces the ideas of tenure, duration, emolument, and duties.\nThe employment of the defendant was in the public service of the\nUnited States. He was appointed pursuant to law, and his compensation was fixed by law. Vacating the office of his superior would not\nhave affected the tenure of his place. His duties were continuing and\npermanent, not occasional or temporary. They were to be such as his\nsuperior in office should prescribe.\n73 U.S. (6 Wall.) at 393. Hartwell considers, among other things, whether a\nposition\xe2\x80\x99s duties have \xe2\x80\x9cduration,\xe2\x80\x9d meaning that they are \xe2\x80\x9ccontinuing and permanent\xe2\x80\x9d rather than \xe2\x80\x9coccasional or temporary,\xe2\x80\x9d and whether the position has\n\xe2\x80\x9ctenure.\xe2\x80\x9d The term \xe2\x80\x9ctenure\xe2\x80\x9d refers to the ability of an incumbent to hold a position\nfor a period of time, not contingent on any particular person, as Madison indicated\nin Federalist No. 39, quoted above. See also Hennen, 38 U.S. at 259 (\xe2\x80\x9cAll offices,\nthe tenure of which is not fixed by the Constitution, or limited by law, must be\nheld either during good behavior, or . . . during the life of the incumbent; or must\nbe held at the will and discretion of some department.\xe2\x80\x9d); Tenure of Office of\nInspectors of Customs, 2 Op. Att\xe2\x80\x99y Gen. 410, 412 (1831) (\xe2\x80\x9cWhen an office is held\nduring the pleasure of any designated officer, it is at the pleasure of the officer, and\nnot of the individual.\xe2\x80\x9d). The Attorney General has explained the connection\nbetween \xe2\x80\x9ctenure\xe2\x80\x9d and this second element of an \xe2\x80\x9coffice\xe2\x80\x9d as follows: \xe2\x80\x9cBy tenure is\nnot meant a holding for a fixed term. . . . The distinction is between those persons\n\n107\n\n\x0cOpinions of the Office of Legal Counsel in Volume 31\n\nwhose services are occasional and temporary, fixed by some contract of employment, and those whose services are general and indefinite in a line of duty\nprescribed by law. . . . A deputy clerk has an indefinite tenure given him by law.\xe2\x80\x9d\nDeputy Clerks of United States District Courts\xe2\x80\x94Premium on Official Bonds, 29\nOp. Att\xe2\x80\x99y Gen. 593, 595\xe2\x80\x9396 (1912).\nThe Court applied Hartwell in Germaine (1879) to hold unanimously that a\ncivil surgeon appointed by the Commissioner of Pensions to examine pensioners\nand applicants for pensions, and paid per examination, was not an \xe2\x80\x9cofficer of the\nUnited States\xe2\x80\x9d for purposes of a criminal statute because his \xe2\x80\x9cduties are not\ncontinuing and permanent, and they are occasional and intermittent.\xe2\x80\x9d 99 U.S. at\n512. The Court explained that \xe2\x80\x9c[t]he surgeon is only to act when called on by the\nCommissioner of Pensions in some special case, as when some pensioner or\nclaimant of a pension presents himself for examination.\xe2\x80\x9d Id. 14\nIn Auffmordt (1890), the Court applied these two statutory decisions to the\nAppointments Clause, while also relying on Maurice. Under a customs statute, if\nan importer demanded a reappraisal of the valuation of his goods, the collector of\ncustoms was to select a \xe2\x80\x9cdiscreet and experienced merchant\xe2\x80\x9d as at least one of two\npeople to do the reappraisal. If the two agreed, the decision was final. 137 U.S. at\n312. The Court, again unanimously, held that such merchant appraiser need not be\nappointed in accordance with the Appointments Clause, because he did not hold an\noffice:\nThe 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\nwhich extends over any case further than as he is selected to act in\nthat particular case. He is an executive agent, as an expert assistant\nto aid in ascertaining the value of the goods, selected for the particular case on the request of the importer, and selected for his special\nknowledge in regard to the character and value of the particular\ngoods in question. He has no claim or right to be designated, or to act\nexcept as he may be designated. . . . His position is without tenure,\n14\n\nPresident Cleveland in 1886 demonstrated the same understanding of an office when recommending to Congress a means to resolve labor disputes. He suggested that \xe2\x80\x9cinstead of arbitrators\nchosen in the heat of conflicting claims, and after each dispute shall arise, for the purpose of\ndetermining the same, there be created a commission of labor, consisting of three members, who shall\nbe regular officers of the Government, charged among other duties with the consideration and\nsettlement, when possible, of all controversies between labor and capital.\xe2\x80\x9d Letter to the Senate and\nHouse of Representatives (Apr. 22, 1886), in 11 A Compilation of the Messages and Papers of the\nPresidents 4979, 4980 (James D. Richardson ed., 1897) (emphases added). This commission \xe2\x80\x9cwould\nhave the advantage of being a stable body,\xe2\x80\x9d gaining experience and ability, unlike \xe2\x80\x9carbitrators . . .\nchosen for temporary service.\xe2\x80\x9d Id. at 4980, 4981.\n\n108\n\n\x0cOfficers of the United States Within the Meaning of the Appointments Clause\n\nduration, continuing emolument, or continuous duties, and he acts\nonly occasionally and temporarily. Therefore, he is not an \xe2\x80\x98officer,\xe2\x80\x99\nwithin the meaning of the [Appointments Clause].\nId. at 326\xe2\x80\x9327 (emphases added). As already suggested above in Part II.A.1,\nalthough the question of continuance was not at issue, the Court in Buckley did\nfavorably cite Auffmordt and thus at least implicitly endorsed its analysis, such that\none can consider the element of continuance incorporated in the Court\xe2\x80\x99s references\nto \xe2\x80\x9csignificant authority.\xe2\x80\x9d See 424 U.S. at 126 & n.162.\nIn 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 \xe2\x80\x9c[d]uration or [c]ontinuance\xe2\x80\x9d\nis a criterion, Mechem \xc2\xa7 8, at 6 (font altered), and explained that \xe2\x80\x9c[t]he term\noffice . . . embraces the idea of tenure and duration, and certainly a position which\nis merely temporary and local cannot ordinarily be considered an office,\xe2\x80\x9d id.; see\nid. at 6\xe2\x80\x937 n.7 & 7 n.1; see also id. \xc2\xa7 1, at 2 (an office is sovereign power invested\nin an individual \xe2\x80\x9cfor a given period, either fixed by law or enduring at the pleasure\nof the creating power\xe2\x80\x9d). Mechem nevertheless declared that \xe2\x80\x9cthis element of\ncontinuance can not be considered as indispensable . . . if the other elements are\npresent,\xe2\x80\x9d id. \xc2\xa7 8, at 7, relying primarily on a broad definition of \xe2\x80\x9coffice\xe2\x80\x9d in dicta in\nState v. Stanley, 66 N.C. 59, 63 (1872). He also cited Commonwealth v. Evans, 74\nPa. 124 (1874), in which the court adopted a broad rule of statutory interpretation\nto reach all persons entrusted by law with collecting money due to the public,\nregardless of whether a person\xe2\x80\x99s service \xe2\x80\x9cbe special or general, transient or\npermanent,\xe2\x80\x9d even while recognizing that, under such a rule, it could be \xe2\x80\x9ca difficult\nmatter to distinguish between a public officer and a person employed by the\ngovernment to perform some special service by contract.\xe2\x80\x9d Id. at 139. 15\nOther authority from the post-Civil War period likewise could be read to reject\nthe necessity of continuance. First, both the Attorney General and the Supreme\nCourt of Rhode Island concluded that a commissioner of the United States\nCentennial Commission held an office under the Constitution. The unpaid\ncommission, appointed by the President, had been created by Congress in 1871\nand was to continue \xe2\x80\x9cuntil the close of\xe2\x80\x9d the 1876 centennial exhibition. See In re\nCorliss, 11 R.I. 638, 640, 642 (1876). The Attorney General, briefly addressing the\nEmoluments Clause, \xe2\x80\x9centertain[ed] no doubt that, though their duties are of a\n15\nMechem also cited Vaughn v. English, 8 Cal. 39 (1857). Although the court did not expressly\nmention the need for continuance, it also did not (unlike Stanley and Evans) disclaim it, and the\nposition at issue (clerk in a department of the state) appears to have had continuous, indefinite duties\nwith a clearly defined tenure. See id. at 42; see also id. at 41 (argument of prevailing party). Vaughn\nmerely established that an office could have its tenure defined by reference to that of a superior office.\nSee Patton v. Bd. of Health, 59 P. 702, 705 (Cal. 1899).\n\n109\n\n\x0cOpinions of the Office of Legal Counsel in Volume 31\n\nspecial and temporary character, they may properly be called officers of the\nUnited States during the continuance of their official functions.\xe2\x80\x9d Offices of Trust,\n15 Op. Att\xe2\x80\x99y Gen. 187, 188 (1877) (emphasis added). He reasoned that \xe2\x80\x9c[t]he\nGovernment being interested in the performance of the[ir] duties, they constitute a\npublic charge or office.\xe2\x80\x9d Id. The court in Corliss answered the question under the\ndisqualification rules for presidential electors. See U.S. Const. art. II, \xc2\xa7 1, cl. 2.\nThe court likewise pointed to the importance of the high-profile international\nexhibition, and noted that the commission received a federal appropriation (to be\nrepaid from any profits) and the charge of some federal property. See 11 R.I. at\n641\xe2\x80\x9343. As far as we have determined, neither Corliss nor the Attorney General\xe2\x80\x99s\nopinion has been called into question on this issue. See 1 Hinds\xe2\x80\x99 Precedents at 609\n(1898 report endorsing holding of Corliss).\nSecond, 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\nTreasury, was an officer for purposes of a statute authorizing certain suits in\nfederal court by \xe2\x80\x9cthe United States or any officer thereof.\xe2\x80\x9d Platt v. Beach, 19 F.\nCas. 836, 840 (E.D.N.Y. 1868); Stanton v. Wilkeson, 22 F. Cas. 1074, 1075\n(S.D.N.Y. 1876); Frelinghuysen v. Baldwin, 12 F. 395, 396\xe2\x80\x9397 (D.N.J. 1882);\nPrice v. Abbott, 17 F. 506, 507\xe2\x80\x9308 (C.C.D. Mass. 1883) (Gray, Circuit Justice);\nUnited States v. Weitzel, 246 U.S. 533, 541 (1918). A receiver had statutory\nauthority to bring suit, through a U.S. Attorney and under the direction of the\nSolicitor of the Treasury, \xe2\x80\x9cto take possession of all the property, books, and\nrecords of the bank, and to collect all debts due to it\xe2\x80\x9d; \xe2\x80\x9cupon [a court] order . . . to\nsell or compound bad or doubtful debts, and to sell all the . . . property of the\nbank\xe2\x80\x9d; and to hold the bank\xe2\x80\x99s stockholders liable if necessary to pay the bank\xe2\x80\x99s\ndebts. See Price, 17 F. at 507; Platt, 19 F. Cas. at 841. In the first such case, Platt,\nthe district court did not respond to the defendant\xe2\x80\x99s argument from Maurice and\nShelby that the position of a receiver was \xe2\x80\x9coccasional or transitory, depending\nupon fluctuations and exigencies,\xe2\x80\x9d appointed to \xe2\x80\x9cperform a specific duty,\xe2\x80\x9d upon\nthe completion of which \xe2\x80\x9chis agency or service ceases,\xe2\x80\x9d id. at 837; see id. (\xe2\x80\x9cthere\nis no office of receiver of national banks established by law\xe2\x80\x9d); id. at 840 (an office\nrequires a \xe2\x80\x9ccontinuing\xe2\x80\x9d duty). The plaintiff had responded that a receiver \xe2\x80\x9ccomes\nwithin every word of [Maurice\xe2\x80\x99s] definition. His duties continue . . . and they\nwould continue though the person of the receiver should be changed.\xe2\x80\x9d Id. at 839.\nStanton was the only case to address the question of continuance. Judge Blatchford\n(later the author of Auffmordt) summarized Hartwell and simply stated: \xe2\x80\x9cA\nreceiver of a national bank is in the public service of the United States. He is\n\n110\n\n\x0cOfficers of the United States Within the Meaning of the Appointments Clause\n\nappointed pursuant to law. Vacation of office by the comptroller does not vacate\nthe receivership. His duties are continuing and permanent.\xe2\x80\x9d 22 F. Cas. at 1075. 16\nWe believe it incorrect to treat the element of \xe2\x80\x9ccontinuance\xe2\x80\x9d as dispensible,\ngiven the constitutional text, the extensive practice and precedent (including\nMaurice) before the Civil War, and the Supreme Court\xe2\x80\x99s authoritative opinions in\nGermaine and Auffmordt. The Attorney General was correct in 1907 when he\naffirmed that \xe2\x80\x9cthe idea runs through all the cases that in order to constitute an\noffice the employment must be continuing and not temporary,\xe2\x80\x9d relying particularly\non Maurice, his 1898 opinion on the Bering Sea commission, and Germaine.\nAppointment\xe2\x80\x94Holding of Two Offices\xe2\x80\x94Commissioner of Labor, 26 Op. Att\xe2\x80\x99y\nGen. 247, 249 (1907). The Supreme Court of Mississippi was likewise correct in\nShelby in 1858 when, relying particularly on Maurice, it \xe2\x80\x9capprehend[ed] that it\nmay 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\ncharge or employment is an office.\xe2\x80\x9d 36 Miss. at 289. Yet \xe2\x80\x9ccontinuance\xe2\x80\x9d is not\n\xe2\x80\x9cpermanence\xe2\x80\x9d; no case of which we are aware before the Civil War indicates that\npermanence is required, and the post-Civil War authority just discussed is best\nread as simply confirming that some temporary, non-personal positions may\namount to offices. As Mechem himself put it, \xe2\x80\x9ccertainly a position which is merely\ntemporary and local cannot ordinarily be considered an office.\xe2\x80\x9d Mechem \xc2\xa7 8, at 6\n(emphases added).\n2. Defining a \xe2\x80\x9cContinuing\xe2\x80\x9d Position\nNo definition of \xe2\x80\x9coffice\xe2\x80\x9d can be expected to harmonize all of the precedent or\nanswer all cases that may arise. (Thus, our discussions of early authority should\nnot be understood as necessarily endorsing every holding.) But the following two\ngeneral rules encompass and harmonize most of them, particularly the earliest\nones, with regard to the element of continuance or duration: First, an office exists\nwhere a position that possesses delegated sovereign authority is permanent,\nmeaning that it is not limited by time or by being of such a nature that it will\nterminate \xe2\x80\x9cby the very fact of performance.\xe2\x80\x9d Bunn, 45 Ill. at 405. This rule is\nparticularly laid out in the early Kennon case, which found an office to exist\nbecause the defendants were \xe2\x80\x9cto exercise continuously, and as a part of the regular\n\n16\nCf. Ex parte Siebold, 100 U.S. 371, 397\xe2\x80\x9398 (1879) (holding that Appointments Clause was not\nviolated when Congress authorized courts of law, rather than President or head of a department, to\nappoint election supervisors for a particular local election; not discussing question of continuance or\nciting Germaine or other cases); In re Hathaway, 71 N.Y. 238, 244 (1877) (court divided 4-3 in holding\nthat person appointed as surrogate for a particular probate case was not a public officer under state\nconstitution, because he performed \xe2\x80\x9ctransient, occasional or incidental duties\xe2\x80\x9d for \xe2\x80\x9cspecial exigencies,\xe2\x80\x9d\nhaving \xe2\x80\x9cno general powers . . . to act in respect to all like cases\xe2\x80\x9d).\n\n111\n\n\x0cOpinions of the Office of Legal Counsel in Volume 31\n\nand permanent administration of the government, important public powers, trusts,\nand duties.\xe2\x80\x9d 7 Ohio St. at 562\xe2\x80\x9363; see also Sheboygan v. Parker, 70 U.S. 93, 96\n(1865) (applying this formulation); Patton v. Bd. of Health, 59 P. 702, 706 (Cal.\n1899) (after survey, providing similar summary of the \xe2\x80\x9creasonably well settled\xe2\x80\x9d\nrule for positions with \xe2\x80\x9ccontinuing and permanent\xe2\x80\x9d duties). The \xe2\x80\x9ccontinuing\xe2\x80\x9d\nduties and powers to which these cases refer should not, however, be understood\nas necessarily involving continuous activity, as shown in Kennon itself, which\ninvolved a standing power to appoint to and remove from specified offices. See 7\nOhio St. at 557. Similarly, a federal judge holds a permanent position even if he\nhas a lull in his docket. His \xe2\x80\x9cservices are general and indefinite in a line of duty,\xe2\x80\x9d\nDeputy Clerks, 29 Op. Att\xe2\x80\x99y Gen. at 596, and he has \xe2\x80\x9cgeneral functions\xe2\x80\x9d and a\n\xe2\x80\x9cclaim or right to be designated, or to act\xe2\x80\x9d should a case arise, Auffmordt, 137 U.S.\nat 327.\nSecond, if a position that possesses delegated sovereign authority is temporary\n(because of, for example, an express expiration date or the nature of its duties),\nthen whether it qualifies as \xe2\x80\x9ccontinuing,\xe2\x80\x9d and thus an office, will depend on the\npresence of three factors that the early authorities discuss in connection with\ntemporariness. The line will not always be bright, as Kennon recognized in\ndeclining to say \xe2\x80\x9c[h]ow far the general assembly may go in constituting temporary\nagencies and commissioners for temporary, incidental, transient, or occasional\npurposes . . . without thereby creating an office,\xe2\x80\x9d 7 Ohio St. at 559 (emphasis\nadded); but it can be discerned. (1) The position\xe2\x80\x99s existence should not be\npersonal: The duties should \xe2\x80\x9ccontinue, though the person be changed,\xe2\x80\x9d Maurice,\n26 F. Cas. at 1214, and an incumbent\xe2\x80\x99s tenure should not depend on whether \xe2\x80\x9cthe\noffice of his superior\xe2\x80\x9d is vacated, Hartwell, 73 U.S. at 393; see also Tenure of\nOffice, 2 Op. Att\xe2\x80\x99y Gen. at 412; Corwin, President at 85. (2) The position should\nnot be \xe2\x80\x9ctransient\xe2\x80\x9d: The less fleeting and more enduring it is (or is likely to be), the\nmore likely it is to be a continuing seat of power and thus an office. (3) The duties\nshould be more than \xe2\x80\x9cincidental\xe2\x80\x9d to the regular operations of government.\nAlthough these last two factors escape precise definition, and the last of them does\nnot directly bear on a temporal aspect, they nevertheless appear throughout the\nearly authority\xe2\x80\x94in Pool, In re Oaths, and Kennon, for example; and they capture\nother authority employing similar terms\xe2\x80\x94such as special work; special purposes;\na special, specific, single, or particular controversy or case; a special commission;\nspecified claims; local or limited work; and extraordinary or emergency exigencies. See, e.g., Auffmordt, 137 U.S. at 326\xe2\x80\x9327; Germaine, 99 U.S. at 512; Inspector of Customs, 4 Op. Att\xe2\x80\x99y Gen. at 163; Marine Corps, 2 Op. Att\xe2\x80\x99y Gen. at 78\xe2\x80\x93\n79; Hamilton, The Defence No. 37, in 20 Papers of Alexander Hamilton at 20; see\nalso Eliason, 86 N.C. at 241 (\xe2\x80\x9cThe true test of a public office seems to be that it is\nparcel of the administration of government.\xe2\x80\x9d); Corwin, President at 85 (an \xe2\x80\x9coffice\xe2\x80\x9d\nat common law was an \xe2\x80\x9cinstitution\xe2\x80\x9d to which \xe2\x80\x9ccertain frequently recurrent and\nnaturally coherent duties [were] assigned more or less permanently\xe2\x80\x9d). Thus, the\n\n112\n\n\x0cOfficers of the United States Within the Meaning of the Appointments Clause\n\nnature of the delegated sovereign authority will affect whether a temporary\nposition is an office, even though a person holding a permanent position \xe2\x80\x9cis not\nthe less a publick Officer where his Authority is confined to narrow Limits.\xe2\x80\x9d\nBurnell, Carth. at 479; see also Shelby, 36 Miss. at 277 (similar). One reason for\nconsidering whether a position is \xe2\x80\x9cincidental\xe2\x80\x9d is to ensure against evasion of the\nAppointments Clause: For example, the position of Attorney General presumably\nstill would be an office if Congress provided for it to expire each year but reauthorized it annually.\n3. A Few Recurring Areas\nThe element of continuance provides an additional reason why a typical contractor does not, and need not, hold an office for purposes of the Appointments\nClause. Maurice focused on continuance in explaining the distinction between an\noffice and a contract (even while recognizing that one might contract to carry out\nan office). See 26 F. Cas. at 1214\xe2\x80\x9315. Hartwell explained that a \xe2\x80\x9cgovernment\ncontract . . . from its nature is necessarily limited in its duration and specific in its\nobjects,\xe2\x80\x9d unlike a government office. 73 U.S. at 393. And the Court held in Hall,\ndiscussed above in Part II.A.3, that certain persons did not hold offices because\nthey were analogous to \xe2\x80\x9cparties who, pursuant to law, enter into stipulations\nlimited in point of time, with a State, for the erection, alteration, or repair of public\nbuildings, or to supply the officers or employees who occupy them with fuel, light,\nstationery, and other things necessary for the public service.\xe2\x80\x9d 103 U.S. at 10\n(emphasis added). Similarly, Attorney General Wirt determined that \xe2\x80\x9can engagement with a gentleman of the bar, whereby, for a valuable consideration, he is to\nrender his professional services in a given case, is a contract, a bargain, an\nagreement, in the legal sense of these terms,\xe2\x80\x9d not an appointment to an office, and\ntherefore was covered by a statute barring contracts between members of Congress\nand federal officers. Contracts With Members of Congress, 2 Op. Att\xe2\x80\x99y Gen. 38,\n40 (1826) (emphases altered); see id. (referring to contracts \xe2\x80\x9cfor the service of a\nlawyer, a physician, or a mail carrier, an army purveyor, or a turnpike road\nmaker\xe2\x80\x9d). He also interpreted the \xe2\x80\x9coffice\xe2\x80\x9d of architect of the public buildings to be\na contractual position rather than an office, where the architect had been hired to\ncomplete \xe2\x80\x9cspecified work\xe2\x80\x9d of \xe2\x80\x9ca temporary and limited character,\xe2\x80\x9d rather than to\noccupy a position \xe2\x80\x9cof a permanent nature.\xe2\x80\x9d Contract With Architect, 5 Op. Att\xe2\x80\x99y\nGen. at 754, 756; see id. at 755\xe2\x80\x9356 (recognizing the frequency of annual contracts). Finally, as discussed above in Part II.A.3, the House of Representatives in\n1806 resoundingly rejected the claim that a contractor held an office within the\nmeaning of the Incompatibility Clause. Mail carriers provided a recurring example\nof contractors, see 15 Annals of Cong. at 880, 883, 885, 887, 890, and contracts to\ncarry the mail were limited to one year, see White, Federalists at 182; see also 15\nAnnals of Cong. at 882 (statement of Rep. Randolph, in favor of resolution, that \xe2\x80\x9ca\n\n113\n\n\x0cOpinions of the Office of Legal Counsel in Volume 31\n\ncontractor is an officer pro tempore\xe2\x80\x94it is not an office in perpetuity, but created\nfor a time, and for a particular purpose\xe2\x80\x9d).\nThe 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\nthe False Claims Act, see 31 U.S.C. \xc2\xa7 3730 (2000), does not violate the Appointments Clause, because a qui tam relator does not hold an office. Our current\nreasoning does, however, differ some from that previously given, under which it\nwas sufficient that the relator was not employed by the federal government. See\nSeparation of Powers, 20 Op. O.L.C. at 146 & n.65. A qui tam relator does at least\npresent a question under the Appointments Clause, see Vt. Agency of Natural Res.\nv. United States, 529 U.S. 765, 778 n.8 (2000) (raising and reserving the question),\nbecause Congress has allowed him essentially to appoint himself to act as a civil\nprosecutor for the United States in a case. But such an \xe2\x80\x9cappointment\xe2\x80\x9d is a temporary and personal one, likely involving only occasional duties, and extending only\nto a single case; and the relator\xe2\x80\x99s authority even over that case is confined in\ncertain ways. See id. at 769\xe2\x80\x9370, 772\xe2\x80\x9373; see also United States ex rel. Stone v.\nRockwell Int\xe2\x80\x99l Corp., 282 F.3d 787, 805 (10th Cir. 2002) (finding no Appointments Clause violation, where relators \xe2\x80\x9care not subject to the requirement . . . that\nthe definition of an officer \xe2\x80\x98embraces the ideas of tenure, duration, emolument,\nand duties, and the latter were continuing and permanent, not occasional or\ntemporary\xe2\x80\x99\xe2\x80\x9d) (quoting Germaine, 99 U.S. at 511\xe2\x80\x9312, citing Auffmordt, 137 U.S. at\n327, and concluding that Buckley must be \xe2\x80\x9cconstrued in conformity\xe2\x80\x9d with them).\nIn this respect, the qui tam relator is similar to the contractors discussed above;\nand thus, whatever the relevance of his \xe2\x80\x9cappointing\xe2\x80\x9d himself (in contrast to a\nperson who contracts with the government), the distinction does not pose a\nproblem under the Appointments Clause. For similar reasons, we reaffirm our\nprior conclusion (but not all of its reasoning) that the federal government\xe2\x80\x99s\nparticipation in binding arbitration ordinarily does not raise an Appointments\nClause problem. See, e.g., Separation of Powers, 20 Op. O.L.C. at 148\xe2\x80\x9349; see\nalso supra note 14 (discussing dispute-resolution proposal by President Cleveland).\nAt the same time, the element of continuance, properly understood, also explains why an \xe2\x80\x9cindependent counsel\xe2\x80\x9d under the Ethics in Government Act of 1978,\n28 U.S.C. \xc2\xa7\xc2\xa7 591\xe2\x80\x93599 (1982 ed., Supp V), undoubtedly was an officer, even\nthough 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 \xe2\x80\x9cclear\nthat appellant is an \xe2\x80\x98officer\xe2\x80\x99 of the United States, not an \xe2\x80\x98employee,\xe2\x80\x99\xe2\x80\x9d citing\nBuckley\xe2\x80\x99s discussion of this distinction based on Auffmordt and Germaine. Id. at\n671 n.12. Justice Scalia in dissent agreed, adding that none of the parties disputed\nthis, the only question being whether the counsel was a principal or inferior\nofficer. Id. at 715. Although the position of a particular independent counsel was\ntemporary, the position was non-personal; it was not \xe2\x80\x9ctransient,\xe2\x80\x9d but rather\n\n114\n\n\x0cOfficers of the United States Within the Meaning of the Appointments Clause\n\nindefinite and expected to last for multiple years, with ongoing duties, the hiring of\na staff, and termination only by an affirmative determination that all matters within\nthe counsel\xe2\x80\x99s jurisdiction were at least substantially complete; and it was not\n\xe2\x80\x9cincidental,\xe2\x80\x9d but rather possessed core and largely unchecked federal prosecutorial\npowers, effectively displacing the Attorney General and the Justice Department\nwithin the counsel\xe2\x80\x99s court-defined jurisdiction, which was not necessarily limited\nto the specific matter that had prompted his appointment. See id. at 660\xe2\x80\x9364\n(opinion of Court), 667\xe2\x80\x9368, 671; id. at 718 (Scalia, J., dissenting).\nC. Several Additional Criteria Are Incidental,\nNot Distinct Elements of an Office\nCourts and others have sometimes discussed several additional criteria, beyond\nthe two elements of delegated sovereign authority and continuance detailed above,\nas relevant to whether a position is a public office and when an individual is an\nofficer. We discuss five of these, explaining that they are incidents that commonly\nfollow from the existence of a properly constituted office, not essential elements of\nan office. They may provide evidence of whether an office exists under the two\nessential elements, but, depending on the circumstances, an office subject to the\nAppointments Clause may exist without them.\n1. Method of Appointment\nFirst, courts sometimes have considered a person\xe2\x80\x99s status as an officer by reference to his method of appointment. The Supreme Court has considered an\nindividual\xe2\x80\x99s appointment pursuant to the procedures of the Clause in determining\nthat he was an \xe2\x80\x9cofficer\xe2\x80\x9d for certain statutory purposes. For example, the Court in\nWise v. Withers, 7 U.S. (3 Cranch) 331 (1806), held that a justice of the peace was\nan officer under a militia-exemption statute given that he was appointed by the\nPresident: \xe2\x80\x9cUnder the sanction of a law, he is appointed, by the president. . . . We\nknow not by what terms an officer can be defined, which would not embrace this\ndescription of persons.\xe2\x80\x9d Id. at 336. In Hartwell, one reason the Court held that a\nTreasury clerk was an officer of the United States under an embezzlement statute\nwas that he \xe2\x80\x9cwas appointed by the head of a department within the meaning of the\nconstitutional provision upon the subject of the appointing power.\xe2\x80\x9d 73 U.S. at\n393\xe2\x80\x9394. The statutory cases on receivers of national banks discussed above in Part\nII.B.1 employed some of the same reasoning. Conversely, courts also have\nconcluded that an individual who is not appointed in accordance with the Appointments Clause is not technically an \xe2\x80\x9cOfficer of the United States.\xe2\x80\x9d Maurice\nconcluded that an agent not appointed in accordance with the Appointments\nClause was \xe2\x80\x9cnot legally an officer\xe2\x80\x9d (even though he had carried out the duties of a\nduly constituted office). 26 F. Cas. at 1216. In United States v. Smith, 124 U.S.\n525 (1888), the Court held that a clerk in the office of a collector of customs was\n\n115\n\n\x0cOpinions of the Office of Legal Counsel in Volume 31\n\nnot a \xe2\x80\x9cpublic officer\xe2\x80\x9d under an embezzlement statute because he was not appointed\nconsistent with the Clause: \xe2\x80\x9cAn officer of the United States can only be appointed\nby the President, by and with the advice and consent of the Senate, or by a court of\nlaw, or the head of a department. A person in the service of the government who\ndoes not derive his position from one of these sources is not an officer of the\nUnited States in the sense of the constitution.\xe2\x80\x9d Id. at 531\xe2\x80\x9332; see also Germaine,\n99 U.S. at 509\xe2\x80\x9310 (similar); Burnap v. United States, 252 U.S. 512, 516 (1920)\n(\xe2\x80\x9cWhether the incumbent is an officer or an employee is determined by the manner\nin which Congress has specifically provided for the creation of the several\npositions, their duties and appointment thereto.\xe2\x80\x9d).\nIt is true that an individual not properly appointed under the Appointments\nClause cannot technically be an officer of the United States: \xe2\x80\x9cUnless a person in\nthe 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\nauthorized by law to make such an appointment, he is not, strictly speaking, an\nofficer of the United States.\xe2\x80\x9d United States v. Mouat, 124 U.S. 303, 307 (1888)\n(emphasis added). But such a person may nevertheless be required to be appointed\nas prescribed by the Clause in order constitutionally to exercise his authority. A\ncontrary conclusion would render the Appointments Clause a matter of etiquette or\nprotocol, see Buckley, 424 U.S. at 125, rather than one of the \xe2\x80\x9csignificant structural safeguards of the constitutional scheme,\xe2\x80\x9d Edmond, 520 U.S. at 659. See supra\nPart I; cf. Kennon, 7 Ohio St. at 557\xe2\x80\x9358 (\xe2\x80\x9cThe official or unofficial character of\nthe defendants is to be determined, not by their name, nor by the presence or\nabsence of an official designation, but by the nature of the functions devolved\nupon them.\xe2\x80\x9d). Under such a (tautological) reading, the Clause would require a\ncertain means of appointment only for persons appointed by that means. As early\nas Maurice it was recognized that a person might in fact perform the duties of an\noffice under the United States and yet have been unconstitutionally appointed to it.\nThis truth also is recognized in the common law doctrine of de facto officers, by\nwhich the acts of a person not properly appointed to office might nevertheless be\nheld valid. See Mechem \xc2\xa7 26, at 10 (summarizing doctrine); id. \xc2\xa7\xc2\xa7 315\xe2\x80\x93345, at\n211 et seq. (chapter concerning \xe2\x80\x9cofficers de facto\xe2\x80\x9d); see also Inspectors of\nCustoms, 4 Op. Att\xe2\x80\x99y Gen. at 165 (apparently assuming applicability of doctrine in\nevent of constitutional challenge to appointment); Ryder v. United States, 515 U.S.\n177, 180\xe2\x80\x9384 (1995) (discussing doctrine but declining to apply it in a \xe2\x80\x9ctimely\nchallenge to the constitutional validity of the appointment of an officer who\nadjudicate[d]\xe2\x80\x9d a court-martial). At the same time, the Appointments Clause does\nnot prevent Congress from treating a position that is not, in the constitutional\nsense, an office under the United States as nevertheless subject to statutory\nrestrictions on offices or officers. See Corwin, President at 91 (noting that\nCongress often has done this); Steele v. United States, 267 U.S. 505, 506\xe2\x80\x9308\n(1925) (in dicta, construing statutory reference to \xe2\x80\x9ca civil officer\xe2\x80\x9d as not limited to\n\n116\n\n\x0cOfficers of the United States Within the Meaning of the Appointments Clause\n\n\xe2\x80\x9can officer in the constitutional sense\xe2\x80\x9d and including a general prohibition agent\nappointed by the Commissioner of Internal Revenue and a deputy marshal\nappointed by a marshal); see also supra Part II.B.1 (discussing Senate-confirmed\ncommissioners under Jay Treaty); cf. Employee\xe2\x80\x99s Compensation Act\xe2\x80\x94Assistant\nUnited States Attorney, 31 Op. Att\xe2\x80\x99y Gen. 201, 202\xe2\x80\x9304 (1918) (recognizing that\nCongress might provide for appointment to position by President or head of\ndepartment even though position was not an office, in which case one must\nanalyze duties to determine position\xe2\x80\x99s nature).\n2. Established by Law\nSecond, other authorities have stated that an office is created by law. This\nstatement, like the proposition that a person must be appointed consistent with the\nAppointments Clause to be an officer, is true in one sense, and \xe2\x80\x9claw\xe2\x80\x9d can be highly\nrelevant to whether an office exists, but the statement also can confuse the analysis\nif not properly understood. The Appointments Clause does provide that offices not\nrecognized by the Constitution itself \xe2\x80\x9cshall be established by Law,\xe2\x80\x9d thus lodging in\nCongress ultimate authority over the creation of most offices. U.S. Const. art. II,\n\xc2\xa7 2, cl. 2; see Maurice, 26 F. Cas. at 1213\xe2\x80\x9314; Limitations on Presidential Power\nto Create a New Executive Branch Entity to Receive and Administer Funds Under\nForeign Aid Legislation, 9 Op. O.L.C. 76, 77\xe2\x80\x9378 (1985). 17 The Ineligibility Clause\nreinforces this view, by providing that \xe2\x80\x9c[n]o Senator or Representative shall,\nduring the Time for which he was elected, be appointed to any civil Office under\nthe Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time,\xe2\x80\x9d thereby contemplating that Congress will authorize offices, and reducing the incentive for members of\nCongress to do so in hopes of being appointed to them. U.S. Const. art. I, \xc2\xa7 6\n(emphasis added). Thus, an office subject to the Appointments Clause will\nordinarily be a position that has been \xe2\x80\x9cestablished by Law\xe2\x80\x9d\xe2\x80\x94by or under authority\nof a statute. But the rule for which sorts of positions have been \xe2\x80\x9cestablished by\nLaw\xe2\x80\x9d such that they amount to offices subject to the Appointments Clause cannot\nbe whether a position was formally and directly created as an \xe2\x80\x9coffice\xe2\x80\x9d by law.\nSuch a view would conflict with the substantive requirements of the Appointments\nClause. Congress could not evade the Appointments Clause by, for example, the\nartifice of authorizing a contract for the supervision of the Justice Department, on\nthe ground that no \xe2\x80\x9coffice\xe2\x80\x9d of Attorney General would be created by law\xe2\x80\x94even\n17\nThe 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,\ne.g., Ambassadors, 7 Op. Att\xe2\x80\x99y Gen. at 192\xe2\x80\x9393; Nomination of Sitting Member of Congress to be\nAmbassador to Vietnam, 20 Op. O.L.C. 284, 286\xe2\x80\x9392 (1996). Regarding the time at which such an\noffice is considered created, see id. at 292\xe2\x80\x9393.\n\n117\n\n\x0cOpinions of the Office of Legal Counsel in Volume 31\n\nwhere the statutory authorization for the contract were to delegate sovereign\nauthority and establish the continuance of the contractual position. Cf. Maurice, 26\nF. Cas. at 1214, 1219 (recognizing that the government might enter into \xe2\x80\x9ca\ncontract to perform the duties of\xe2\x80\x9d a properly established office, but that such a\ncontract would be an \xe2\x80\x9cirregular\xe2\x80\x9d appointment that would violate the Appointments\nClause). Conversely, a contract or other mere employment \xe2\x80\x9cmay be created by\nlaw,\xe2\x80\x9d Mechem \xc2\xa7 5, at 5, and governmental contracts long have been highly\nregulated, see, e.g., Validity of Executive Order Prohibiting Government Contractors From Discriminating in Employment Practices on Grounds of Race, Color,\nReligion, or National Origin, 42 Op. Att\xe2\x80\x99y Gen. 97, 98\xe2\x80\x93103 (1961) (collecting\nexamples). Contracts do not, simply because created or regulated by law, create an\noffice.\nThus, whether an office has been established by law does not turn on whether\nCongress has formally created an \xe2\x80\x9coffice\xe2\x80\x9d by law, but rather on whether the two\nnecessary elements of an office discussed above in Parts II.A and II.B are present\n\xe2\x80\x9cby law.\xe2\x80\x9d The Constitution requires an examination of \xe2\x80\x9cthe nature of the functions\ndevolved upon\xe2\x80\x9d a position by legal authority, Kennon, 7 Ohio St. at 558, not the\nway or form in which they are devolved. Any position that is an office in the\nconstitutional sense under the two elements we have described, and has not been\ncreated ultra vires, will have been created by law in some fashion, regardless of\nhow labeled. It necessarily follows that \xe2\x80\x9cthe fact that the powers in question are\ncreated and conferred by law, is an important criterion,\xe2\x80\x9d and that an office \xe2\x80\x9cfinds\nits source and limitations in some act or expression of the governmental power.\xe2\x80\x9d\nMechem \xc2\xa7 5, at 5 (emphasis added); see id. \xc2\xa7 1, at 1 (powers of an office are\n\xe2\x80\x9ccreated and conferred by law\xe2\x80\x9d). To be subject to the Appointments Clause, a\nposition must include some continuing legal authority, as opposed to simply\nexisting to assist someone who does have legal authority or having duties defined\nand existing only at the whim of its superior: There must be some sort of \xe2\x80\x9cline of\nduty prescribed by law,\xe2\x80\x9d Deputy Clerks, 29 Op. Att\xe2\x80\x99y Gen. at 595\xe2\x80\x9396, and power\n\xe2\x80\x9cdefined by rules prescribed by law,\xe2\x80\x9d Shelby, 36 Miss. at 289. As Buckley and\nmany other authorities thus recognize, the source of any such authority, and\nparticularly any statutory delineation by Congress, will unavoidably help to\ndetermine whether an office exists. See, e.g., Buckley, 424 U.S. at 131, 141\n(referring, respectively, to \xe2\x80\x9cresponsibility under the public laws\xe2\x80\x9d and duties\n\xe2\x80\x9cexercised pursuant to a public law\xe2\x80\x9d); Freytag, 501 U.S. at 881 (noting that duties\nof a special trial judge were \xe2\x80\x9cspecified by statute,\xe2\x80\x9d and contrasting special masters,\nhired \xe2\x80\x9con a temporary, episodic basis, whose positions are not established by law,\nand whose duties and functions are not delineated in a statute\xe2\x80\x9d); id. at 901 (opinion\nof Scalia, J.) (agreeing with this analysis); Applicability of Appointment Provisions\nof the Anti-Drug Abuse Act of 1988 to Incumbent Officeholders, 12 Op. O.L.C.\n286, 288 n.5 (1988) (noting that Congress had by statute authorized Attorney\nGeneral to create subordinate offices, which he had done by order); Maurice, 26 F.\n\n118\n\n\x0cOfficers of the United States Within the Meaning of the Appointments Clause\n\nCas. at 1213\xe2\x80\x9315 (concluding that, at least for purposes of a suit to enforce a\npurported officeholder\xe2\x80\x99s bond, the office of agent of fortifications had been created\nby congressionally approved and authorized Army regulations); Barton, 24 F. Cas.\nat 1027 (explaining background rule that, where no law specifies otherwise, a\ndeputy has \xe2\x80\x9cthe same powers and duties\xe2\x80\x9d as his principal); Mechem \xc2\xa7 570, at 373\n(same); Ambassadors and Other Public Ministers, 7 Op. Att\xe2\x80\x99y Gen. at 193, 196\xe2\x80\x93\n97, 202, 212 (discussing sources of authority of diplomatic offices, even though\nnot created by statute). As Mechem put it: \xe2\x80\x9cThe authority of a public officer in any\ngiven case consists of those powers which are expressly conferred upon him by the\nact appointing him, or which are expressly annexed to the office by the law\ncreating it or some other law referring to it, or which are attached to the office by\ncommon law as incidents to it.\xe2\x80\x9d Mechem \xc2\xa7 507, at 332.\n3. Oath of Office\nThird, although \xe2\x80\x9c[p]ublic officers are usually required by law to take the oath of\noffice,\xe2\x80\x9d doing so \xe2\x80\x9cis not an indispensable criterion and the office may exist\nwithout it, for . . . the oath is a mere incident and constitutes no part of the office.\xe2\x80\x9d\nMechem \xc2\xa7 6, at 6; see also Oath of Clerks in Executive Departments, 12 Op. Att\xe2\x80\x99y\nGen. 521, 521\xe2\x80\x9322 (1868) (similar). Article VI, Clause 3, of the Constitution\nrequires that \xe2\x80\x9call executive and judicial Officers, both of the United States and of\nthe several States\xe2\x80\x9d take an oath or affirmation to support the Constitution. Only\nafter separately knowing whether an office exists could one apply this requirement. Burnell demonstrates this, as the applicability of an oath requirement turned\non whether the Censor of the College of Physicians held an office. See Carth. at\n478; see also Opinion of the Justices, 3 Greenl. (Me.) at 483 (similar). Similar\nreasoning applies to a bond, which is \xe2\x80\x9cusually required\xe2\x80\x9d of officers \xe2\x80\x9cto whom are\nentrusted the collection and custody of public money, and public ministerial\nofficers whose actions may affect the rights and interests of individuals.\xe2\x80\x9d Mechem\n\xc2\xa7 263, at 165; see id. \xc2\xa7\xc2\xa7 253\xe2\x80\x93254, at 162 (oath and bond requirements are common\nfor persons appointed to a public office); see also 1 Hinds\xe2\x80\x99 Precedents at 608\n(1898 report, concluding that certain commissioners were not officers, in part\nbecause \xe2\x80\x9cthey give no bond and take no oath\xe2\x80\x9d).\n4. Emoluments\nFourth, an emolument is also a common characteristic of an office, as Hartwell\nindicates, 73 U.S. at 393, but it too is not essential: \xe2\x80\x9cLike the requirement of an\noath,\xe2\x80\x9d provision for pay \xe2\x80\x9cmay aid in determining the nature of the position, but it\nis not conclusive. . . . As in the case of the oath, the salary or fees are mere\nincidents and form no part of the office.\xe2\x80\x9d Mechem \xc2\xa7 7, at 6; see id. at 6 n.3 (\xe2\x80\x9cit is\nnot a sine qua non\xe2\x80\x9d); Kennon, 7 Ohio St. at 559 (\xe2\x80\x9cThat compensation or emolument is a usual incident to office, is well known; but that it is a necessary element\n\n119\n\n\x0cOpinions of the Office of Legal Counsel in Volume 31\n\nin the constitution of an office, is not true.\xe2\x80\x9d). Confirming this, the law of public\noffices recognized offices of profit, \xe2\x80\x9cto which salary, compensation or fees are\nattached,\xe2\x80\x9d Mechem \xc2\xa7 13, at 8, and offices of honor, \xe2\x80\x9cto which no compensation\nattaches,\xe2\x80\x9d id. \xc2\xa7 15, at 9. See also Emoluments Clause, 29 Op. O.L.C. at 61\n(discussing offices of profit). The Constitution recognizes both types of offices.\nSee, e.g., U.S. Const. art. I, \xc2\xa7 3, cl. 7 (punishment for impeachment may include\n\xe2\x80\x9cdisqualification to hold and enjoy any Office of honor, Trust or Profit under the\nUnited States\xe2\x80\x9d). In addition, it separately creates the office of President, id. art. II,\n\xc2\xa7 1, cl. 1, and provides for its compensation, id. cl. 7. If Presidents were to serve\nwithout pay, as Benjamin Franklin had proposed, see James Madison, Notes of\nDebates in the Federal Convention of 1787, at 51\xe2\x80\x9355 (June 2, 1787) (1987), they\nwould no less hold an office.\nFurthermore, any understanding of an \xe2\x80\x9coffice\xe2\x80\x9d that would require an \xe2\x80\x9cemolument\xe2\x80\x9d akin to the compensation that a person on the regular payroll of the federal\ngovernment receives would conflict with the original meaning of the Appointments Clause as revealed by earliest practice. In the first decade under the\nConstitution, most federal officers, particularly those outside the capital, received\nno compensation from the government, much less a regular one. Instead, they\nreceived authority to collect fees:\nBy far the larger number of federal officials were compensated by\nfees for services rendered. Nearly the whole of the field service was\npaid on this basis, including the collectors, naval officers, and surveyors; the supervisors and inspectors of revenue; the attorneys and\nmarshals; the deputy postmasters; and the consuls. . . . Officials were\ncompensated if there was a demand for their services; otherwise the\ngovernment expended nothing. They were paid on the spot, by those\nwhom the law required to deal with them. There was no problem of\ncollection\xe2\x80\x94the self-interest of the official was sufficient. Public\nposting 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.\nWhite, Federalists at 298. To take one example, many consuls were compensated\nthrough the following schedule of fees: two dollars from a U.S. citizen for\nauthenticating a protest, declaration, or deposition; five percent of a citizen\xe2\x80\x99s estate\nfor taking it into possession and settling it; twenty-five cents for administering\noaths and affirmations; and a dollar for certifying the delivery of merchandise. See\n1 Am. St. Papers, Misc. at 307. Officials so compensated were no less officers of\nthe United States. At the same time, where a temporary position does include\nemoluments provided by the government, the nature of the pay may provide some\nevidence of whether the position is an office under the factors discussed in Part\nII.B.2. In cases holding that temporary positions were not offices, courts have\n\n120\n\n\x0cOfficers of the United States Within the Meaning of the Appointments Clause\n\nremarked that the pay provided was per diem or otherwise based on the amount of\nwork 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\n(Pa. 1814) (commissioner regarding land claims, paid by the day); 39 Annals of\nCong. at 1408\xe2\x80\x9310 (examiner of land offices, paid by the day).\nRecognizing the various kinds of emoluments that may attach to an office, and\nthe incidental nature of having any emolument, demonstrates the error of some of\nour prior opinions in concluding that the Appointments Clause does not apply to\npersons who are not employees of the federal government, even if they are\ndelegated permanent federal authority to enforce federal law. See, e.g., Separation\nof Powers, 20 Op. O.L.C. at 145\xe2\x80\x9348. The primary cases on which we relied for\nthis view\xe2\x80\x94Maurice, Hartwell, Germaine, and Auffmordt, all discussed above\xe2\x80\x94do\nnot resolve this question, and to the extent they speak to it do not clearly point in\nthe direction that our prior opinions took. Only Auffmordt directly confronted the\nrequirements of the Appointments Clause, but its holding does not turn on whether\na person is an employee (as opposed to the nature of his duties), nor did the Court\nhold or state that a private actor cannot be an officer, which would have been at\nodds with Maurice\xe2\x80\x99s recognition that a contractor might hold a position in\nviolation of the Appointments Clause.\nIn addition, the general language of these cases allows for an office that does\nnot involve government employment in the modern sense. Maurice, for example,\nsaid that an office is \xe2\x80\x9ca public charge or employment,\xe2\x80\x9d 26 F. Cas. at 1214\n(internal quotation marks omitted; emphasis added), and Hartwell defined an\noffice as \xe2\x80\x9ca public station, or employment,\xe2\x80\x9d 73 U.S. at 393 (emphasis added).\nMaurice, among others, also does state that an \xe2\x80\x9coffice is \xe2\x80\x98an employment,\xe2\x80\x99\xe2\x80\x9d 26 F.\nCas. at 1214, but such a statement must be read in a contemporaneous rather than\nanachronistic sense, broadly to include anyone engaged by the government,\nwhether an independent contractor, \xe2\x80\x9cemployee,\xe2\x80\x9d or other agent. The pertinent\ndefinition of \xe2\x80\x9cemploy\xe2\x80\x9d is:\nTo engage in one\xe2\x80\x99s service; to use as an agent or substitute in transacting business; to commission and entrust with the management of\none\xe2\x80\x99s affairs. The president employed an envoy to negotiate a treaty.\nKings and States employ ambassadors at foreign courts.\nNoah Webster, An American Dictionary of the English Language, tit. Employ\n(1828). Thus, even an \xe2\x80\x9cagreement\xe2\x80\x9d to provide services (such as \xe2\x80\x9cto make hay\xe2\x80\x9d or\n\xe2\x80\x9cplough land\xe2\x80\x9d) was an \xe2\x80\x9cemployment.\xe2\x80\x9d Jacob, tit. Office; Cunningham, tit. Office.\nAs detailed above regarding contractors (see supra Parts II.A.3.b & II.B.3) and the\ncreation of offices \xe2\x80\x9cby law\xe2\x80\x9d (see supra Part II.C.2), what matters is the nature of a\nposition\xe2\x80\x94its authority and continuance\xe2\x80\x94not its label, and thus not whether\nCongress placed it within the federal service. Our prior analysis, notwithstanding\nits conclusion, went far toward acknowledging this when it recognized the\n\n121\n\n\x0cOpinions of the Office of Legal Counsel in Volume 31\n\nrelevance to Appointments Clause analysis of Lebron v. National Railroad\nPassenger Corp., 513 U.S. 374 (1995), in which the Court held that the First\nAmendment applied to a federally created corporation notwithstanding a statute\nproviding that the corporation was not a department, agency, or instrumentality of\nthe government. See Separation of Powers, 20 Op. O.L.C. at 147\xe2\x80\x9348 & n.70. 18\n5. Commission\nFinally, although the holder of an office usually receives a commission, that\ncharacteristic too, like an oath or pay, is incidental rather than essential. See\nMechem \xc2\xa7 12, at 8. The Constitution, in Article II, Section 3, requires that the\nPresident \xe2\x80\x9cshall Commission all the Officers of the United States.\xe2\x80\x9d As with the\noath requirement, as well as the recognition that offices are created by law, one\nmust know who the officers are before being able to apply this provision. That a\nperson has a commission may no doubt provide evidence that he holds an office.\nSee, e.g., 15 Annals of Cong. at 888\xe2\x80\x9389 (\xe2\x80\x9cThere is a Constitutional definition of\nthe word officer in the third section of the second article of the Constitution, which\nprovides that the President \xe2\x80\x98shall commission all the officers of the United States.\xe2\x80\x99\nHere then is a Constitutional definition of what is meant by a person holding an\noffice, viz., a person commissioned by the President.\xe2\x80\x9d) (Rep. Bidwell). But it does\nnot follow that a person not commissioned does not hold an office, or, conversely,\nthat only officers have commissions.\nIII. Conclusion\nFor all of these reasons, we conclude that an individual who will occupy a\nposition to which has been delegated by legal authority a portion of the sovereign\npowers of the federal government, and which is \xe2\x80\x9ccontinuing,\xe2\x80\x9d must be appointed\npursuant to the Appointments clause. Conversely, a position that does not satisfy\none of these two elements need not be filled pursuant to that Clause.\nSTEVEN G. BRADBURY\nActing Assistant Attorney General\nOffice of Legal Counsel\n\n18\n\nSimilarly, whether for constitutional purposes a person within the federal government is a mere\n\xe2\x80\x9cemployee\xe2\x80\x9d or rather holds an office subject to the Appointments Clause will turn on the applicability\nof the two essential elements we have set out. See generally Buckley, 424 U.S. at 126 n.162.\n\n122\n\n\x0c'