The Yale Law Journal

VOLUME
128
2018
NUMBER
1
October 2018
1-253

Congressional Power over Office Creation

Constitutional LawSeparation of PowersAdministrative Law

abstract. The Constitution leaves the creation of the institutions of government to ordinary political processes. While intricate constitutionalized procedures govern the election of Congress, the President, and the Vice President, the Constitution anticipated but did not establish a host of other personnel and positions. Instead, it leaves the task of institution building to Congress. This Note argues that text, structure, and history demonstrate that the Constitution gives Congress exclusive authority over office creation. Textually, the Appointments Clause and the Necessary and Proper Clause together empower Congress alone to “establish[] by Law” federal offices. Structurally, Congress has the democratic and technical capacity to organize the government. And Congress’s power to “constitute” federal institutions mimics the original act of Constitution making: just as “We the People” could “ordain and establish this Constitution,” the Appointments Clause allows Congress to “establish[] by Law . . . all other Officers of the United States.”

Congress’s exclusive office-creating power has surprising and important implications for a series of live constitutional controversies. In this Note, I discuss three issues regarding the balance of power between the President and Congress in structuring the administrative state. First, I evaluate the related problems of statutory qualifications clauses and for-cause removal provisions. Perhaps counterintuitively, I conclude that qualifications clauses should almost never raise constitutional issues, but for-cause removal provisions almost always should. The Constitution’s distinction between ex ante office creation and ex post presidential control justifies such differential treatment. And it explains why Free Enterprise Fund v. Public Company Accounting Oversight Board was rightly decided, but also articulates a limiting principle on the President’s authority to control the executive branch. Second, I discuss the constitutionality of temporary appointments. Drawing on Justice Thomas’s concurrence in NLRB v. SW General, Inc., I show that, in some circumstances, the Federal Vacancies Reform Act of 1998 makes an unconstitutional “end-run around the Appointments Clause.” But my interpretation of the Clause still gives Congress broad discretion to allow for temporary appointments. Third, this Note clarifies the employee/officer distinction in Appointments Clause jurisprudence. The Court’s decision in Lucia v. SEC presents a series of puzzles for the employee/officer distinction that this Note attempts to resolve. Together, these three doctrinal issues illustrate how Congress’s exclusive office-creating power ought to inform the constitutional analysis in separation-of-powers cases.

author. Yale Law School, J.D. 2018. I am deeply grateful to Akhil Amar for supervising this project. Thanks also to Jimmy Brewer, Samir Doshi, Jamie Durling, Jordan Goldberg, Zoe Jacoby, Nina Mendelson, Anne Joseph O’Connell, Eliza Pan, and Christine Smith for conversations or suggestions that greatly improved this Note, and to all the members of the Yale Law Journal for their meticulous editing. All views and errors expressed in this Note are entirely my own.