# The Test for Determining "Officer" Status Under the Appointments Clause

> Department of Justice Office of Legal Counsel · January 16, 2025

URL: https://www.frixlaw.com/law-library/cases/10783505

## Case

- **Court:** Department of Justice Office of Legal Counsel
- **Decided:** January 16, 2025
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10783505

## How later opinions describe it (automated extraction)

- concluding that administrative patent judges’ power to “adjudicat[e] . . . public rights” by “reconsidering an issued patent” constitutes “significant authority”
- concluding that deputy U.S. Mar- shals were not officers of the United States, despite the coercive power they could exercise
- explaining that the Appointments Clause has “little relevance when[] . . . the entity in question is not a federal one”

## Opinion text

(Slip Opinion)

The Test for Determining “Officer” Status Under
the Appointments Clause
Individuals must be appointed pursuant to the Appointments Clause only if they (1) occupy
a continuing position that is part of the federal government for constitutional purposes,
and (2) exercise significant authority pursuant to the laws of the United States.

January 16, 2025

MEMORANDUM OPINION FOR THE GENERAL COUNSELS
OF THE EXECUTIVE BRANCH

Our Office has periodically provided general guidance to federal agen-
cies regarding the scope of the Appointments Clause and the types of
positions required to be filled according to its procedures. See Officers of
the United States Within the Meaning of the Appointments Clause, 31 Op.
O.L.C. 73 (2007) (“Officers of the United States”); The Constitutional
Separation of Powers Between the President and Congress, 20 Op. O.L.C.
124, 139–65 (1996) (“Separation of Powers”). Since we last did so in
2007, however, the Supreme Court has issued several important decisions
concerning which officials must be appointed as “Officers of the United
States,” including Lucia v. Securities & Exchange Commission, 585 U.S.
237 (2018). See also Free Enter. Fund v. Pub. Co. Acct. Oversight Bd.,
561 U.S. 477 (2010); Fin. Oversight & Mgmt. Bd. for P.R. v. Aurelius
Inv., LLC, 590 U.S. 448 (2020); United States v. Arthrex, Inc., 594 U.S. 1
(2021). This memorandum thus explains our Office’s approach to the
scope of the Appointments Clause in light of the Court’s recent pro-
nouncements and clarifies the relationship between our 1996 and 2007
opinions.
The Appointments Clause provides:
[The President] shall nominate, and by and with the Advice and
Consent of the Senate, shall appoint Ambassadors, other public Min-
isters and Consuls, Judges of the supreme Court, and all other Offic-
ers of the United States, whose Appointments are not herein other-
wise provided for, and which shall be established by Law: but the
Congress may by Law vest the Appointment of such inferior Offic-
ers, as they think proper, in the President alone, in the Courts of
Law, or in the Heads of Departments.

1
49 Op. O.L.C. __ (Jan. 16, 2025)

U.S. Const. art. II, § 2, cl. 2. As laid out in more detail below, we read the
Supreme Court’s recent Appointments Clause decisions—and, in particu-
lar, Lucia—as establishing a “basic framework for distinguishing between
officers and employees” with two “requirement[s]”: to be an officer, an
individual must (1) “occupy a ‘continuing’ position” that is part of the
federal government for constitutional purposes and (2) “exercis[e] signifi-
cant authority pursuant to the laws of the United States.” Lucia, 585 U.S.
at 245 (first quoting United States v. Germaine, 99 U.S. 508, 511 (1879);
and then quoting Buckley v. Valeo, 424 U.S. 1, 126 (1976) (per curiam)).
Moreover, as laid out below, we view the Office’s longstanding Appoint-
ments Clause practice as consistent with these recent decisions. Indeed,
despite certain differences in terminology and framing, we understand our
1996 and 2007 opinions, and the Department’s Appointments Clause
practice over the relevant period, to have taken a largely consistent ap-
proach. See, e.g., Zachary S. Price, Congress’s Power over Military Offic-
es, 99 Tex. L. Rev. 491, 505 & n.64 (2021) (noting the similarity across
Lucia and the Office’s 1996 and 2007 opinions). We stand ready to pro-
vide advice on the application of this general guidance in the context of
specific Appointments Clause matters—which often turn on the particu-
lars of the position in question—as they arise. 1

1 This memorandum addresses only the conditions under which appointment consistent

with the Appointments Clause is required. It does not take on the analytically distinct task
of answering whether appointment consistent with one of the methods set forth in the
Appointments Clause thereby makes an appointee an officer of the United States, a
question that has not been a focus of this Office or the courts. Moreover, this memoran-
dum does not address the distinction between principal and inferior officers, which the
Supreme Court recently examined in United States v. Arthrex, Inc., 594 U.S. 1 (2021),
and which also raises an analytically distinct set of questions. Finally, we note that,
although the Constitution makes several references to the term “office” or “officer”
outside the Appointments Clause, this memorandum does not address whether or to what
extent any such references should be read consistent with the term “Officer[] of the
United States” in the Appointments Clause. See, e.g., Special Government Employee
Serving as Paid Consultant to Saudi Company, 40 Op. O.L.C. 1, 4–5 (2016) (discussing
the relationship between an “Office of Profit or Trust” under the Emoluments Clause and
an “Officer” under the Appointments Clause).

2
Determining “Officer” Status Under the Appointments Clause

I.

Consistent with the Supreme Court’s jurisprudence and our Office’s
longstanding approach, individuals are not required to be appointed pursu-
ant to the Appointments Clause unless they “occupy a ‘continuing’ posi-
tion” that is part of the federal government for constitutional purposes.
Lucia, 585 U.S. at 245 (quoting Germaine, 99 U.S. at 511); see also, e.g.,
Dep’t of Transp. v. Ass’n of Am. R.Rs., 575 U.S. 43, 54–55 (2015) (apply-
ing Lebron v. Nat’l R.R. Passenger Corp., 513 U.S. 374 (1995)); Free
Enter. Fund, 561 U.S. at 486 (same).

A.

In Lucia, the Supreme Court stated that “an individual must occupy a
‘continuing’ position established by law to qualify as an officer.” 585
U.S. at 245 (quoting Germaine, 99 U.S. at 511). 2 Lucia thus follows a
long line of Supreme Court cases that have emphasized the importance of
continuity under the Appointments Clause. See Officers of the United
States, 31 Op. O.L.C. at 100–13 (conducting an extensive survey of the
caselaw and practice concerning this factor). And, as explained below, the
approach the Supreme Court has taken with respect to continuity in Lucia
and other cases is consistent with this Office’s.
In particular, as our prior opinions suggest, the Supreme Court’s ap-
proach to assessing the “continuing” nature of a position has been a holis-
tic one that considers both how long a position lasts as well as other
attributes of the position that bear on continuity. See id. at 111–12; Sepa-
ration of Powers, 20 Op. O.L.C. at 140–42. For instance, in United States
v. Germaine, the Court emphasized “ideas of tenure [and] duration” in
holding that certain civil surgeons hired by the government to perform

2 The Appointments Clause refers to officers “whose Appointments are not herein oth-

erwise provided for, and which shall be established by Law” and also authorizes Con-
gress, “by Law,” to vest the appointment of inferior officers in the President, courts of
law, or heads of departments. U.S. Const. art. II, § 2, cl. 2 (emphasis added). We have
discussed the significance of these phrases in our prior writings. Officers of the United
States, 31 Op. O.L.C. at 118; see also id. at 117–19; Applicability of Appointment Provi-
sions of the Anti-Drug Abuse Act of 1988 to Incumbent Officeholders, 12 Op. O.L.C. 286,
288 n.5 (1988). Because the Supreme Court has not focused on these phrases in the
ensuing years, beyond the passing statement from Lucia quoted in the text, 585 U.S. at
245, we do not discuss them further here.

3
49 Op. O.L.C. __ (Jan. 16, 2025)

periodic physical examinations were employees, not officers, because
their duties were “continuing and permanent, not occasional or tempo-
rary.” 99 U.S. at 511–12. Likewise, in United States v. Hartwell, the
Court explained that the term “office” “embraces the ideas of tenure,
duration, emolument, and duties.” 73 U.S. (6 Wall.) 385, 393 (1867). And
in Auffmordt v. Hedden, the Court held that a merchant appraiser selected
to resolve a particular customs dispute was not subject to the Appoint-
ments Clause because he was “selected for the special case”; his position
was “without tenure, duration, continuing emolument, or continuous
duties”; and he acted “only occasionally and temporarily.” 137 U.S. 310,
326–27 (1890).
More recently, in Freytag v. Commissioner, the Court also engaged in a
holistic review of the tenure and duration of the position in question—in
that case, special trial judges appointed by the Chief Judge of the United
States Tax Court—to determine that the judges were officers. In doing so,
the Court contrasted the special trial judges with special masters, whom it
implied were not officers of the United States because special masters
“are hired . . . on a temporary, episodic basis” and their “duties and func-
tions are not delineated in a statute.” 501 U.S. 868, 881 (1991). And in
Lucia, the Court similarly emphasized multiple factors bearing on conti-
nuity, holding that the Securities and Exchange Commission’s administra-
tive law judges occupied “continuing” positions because, “[f]ar from
serving temporarily or episodically,” the administrative law judges re-
ceived “‘career appointment[s]’” to a position with statutorily enshrined
“‘duties, salary, and means of appointment.’” 585 U.S. at 247–48 (first
quoting 5 C.F.R. § 930.204(a) (2018); and then quoting Freytag, 501
U.S. at 878).
These cases show that, in determining whether an office is considered
“continuing” for constitutional purposes, the Supreme Court has not
looked to any single talismanic factor but has instead considered duration
and other factors—an approach that accords with our Office’s longstand-
ing approach to the scope of the Appointments Clause.
Specifically, we have observed that a position is most clearly “continu-
ing” if it is “permanent”—that is, if it is not “limited by time or by being
of such a nature that it will terminate ‘by the very fact of performance.’”
Officers of the United States, 31 Op. O.L.C. at 100, 111 (quoting Bunn v.
People ex rel. Laflin, 45 Ill. 397, 405 (1867)); see also Separation of

4
Determining “Officer” Status Under the Appointments Clause

Powers, 20 Op. O.L.C. at 140. But consistent with the Court’s precedents,
this Office has also recognized that a position may still qualify as “con-
tinuing” even if it is nonpermanent—because of, for example, an express
expiration date or the temporary nature of its duties. See Officers of the
United States, 31 Op. O.L.C. at 112–13; cf. Morrison v. Olson, 487 U.S.
654, 671 n.12 (1988) (holding that an “independent counsel” under the
Ethics in Government Act of 1978—though serving only for a finite
period—was “an ‘officer’ of the United States”). And much like the
Court, our Office has not identified a definitive test for how to distinguish
a “continuing” nonpermanent position from one that is not. Officers of the
United States, 31 Op. O.L.C. at 111–12 (noting that “[n]o definition of
‘office’ can be expected to harmonize all of the [Supreme Court and
other] precedent[s] or answer all cases that may arise” concerning whether
a position is “continuing” and that the “line” between a “continuing”
position and one that is not “will not always be bright”).
Rather, in 2007, our office identified three factors that it deemed im-
portant for identifying “continuing” nonpermanent positions: first, wheth-
er the position is non-personal, id. at 112—that is, whether a position’s
“duties continue, though the person [performing the duties] be changed,”
United States v. Maurice, 26 F. Cas. 1211, 1214 (Marshall, Circuit Jus-
tice, C.C.D. Va. 1823) (No. 15,747); second, whether the position is
transient or fleeting—that is, the “more enduring [a position] is (or is
likely to be), the more likely it is to be” a “continuing position” for Ap-
pointments Clause purposes, Officers of the United States, 31 Op. O.L.C.
at 112; and, third, whether the duties of the position are “more than ‘inci-
dental’” to the operations of the federal government, id.
A few words are warranted about this third factor. Although the nine-
teenth century authorities from which our 2007 opinion derived this factor
appear to use “incidental” in a temporal sense, as a synonym for “transi-
ent,” “temporary,” or “occasional,” see Ex parte Pool, 4 Va. (2 Va. Cas.)
276, 279–80 (1821); In re Oaths To Be Taken by Attorneys & Counsel-
lors, 20 Johns. 492, 493 (N.Y. Sup. Ct. 1823); State ex rel. Att’y Gen. v.
Kennon, 7 Ohio St. 546, 556 (1857); Bunn, 45 Ill. at 405; Noah Webster,
An American Dictionary of the English Language (1st ed. 1828), our 2007
opinion viewed the factor differently, as concerned with the “nature” of
the position’s duties, Officers of the United States, 31 Op. O.L.C. at 112–
13 (noting that the factor “does not directly bear on [the] temporal aspect”

5
49 Op. O.L.C. __ (Jan. 16, 2025)

of continuance). In particular, the 2007 opinion explained that this fac-
tor’s purpose was to help “ensure against evasion of the Appointments
Clause,” since “the position of Attorney General presumably still would
be an office if Congress provided for it to expire each year but reauthor-
ized it annually.” Id. at 113. We agree that Congress could not evade the
requirements of the Appointments Clause, under the guise of creating a
“noncontinuous” position, by providing for a longstanding position in the
federal government—particularly one with a historical pedigree of being
treated as an office—to periodically expire and renew. And because
history and practice carry significant weight in appointments matters, see
NLRB v. Noel Canning, 573 U.S. 513, 524 (2014), we think it relevant in
determining whether a newly created, temporary position is “continuing”
to consider if the position’s bundle of duties has historically been per-
formed by an officer and whether such duties, although vested in a new,
temporary position, would continue to be exercised by a single position in
the government in a largely unbroken chain across time. We understand
the “more than ‘incidental’” factor in Officers of the United States to
embody these considerations. 31 Op. O.L.C. at 112.
Further, as described above, we believe that these three factors remain
relevant after Lucia, see United States v. Donziger, 38 F.4th 290, 296–98
(2d Cir. 2022) (citing Officers of the United States and applying these
factors), although we stress that the factors are only guideposts and addi-
tional considerations potentially could be relevant depending on the
particular position at issue. For example, our 2007 opinion stated that an
“emolument” is not essential for officer status and that a position that
otherwise qualifies as a constitutional office does not necessarily cease to
do so because Congress has not provided for pay. Officers of the United
States, 31 Op. O.L.C. at 119–20. While we still adhere to that position,
the Supreme Court has continued to view a statutorily prescribed salary as
relevant to whether a position is an “office” for Appointments Clause
purposes. Lucia, 585 U.S. at 246–47 (quoting Freytag, 501 U.S. at 881).

B.

By its terms, the Appointments Clause makes clear that it addresses
only the power to fill positions that are offices “of the United States.”
U.S. Const. art. II, § 2, cl. 2. As this language indicates, the Clause only
applies to individuals who occupy positions that are part of the federal

6
Determining “Officer” Status Under the Appointments Clause

government for constitutional purposes. Although Lucia had no occasion
to delve into this aspect of the Appointments Clause, as there was no
dispute that the administrative law judges in that case were part of the
federal government, Lucia’s description of the Appointments Clause test
recognizes that the Clause is directed at the proper appointment of federal
government officials. Prior statements by the Court confirm this view, as
do our prior opinions, see Officers of the United States, 31 Op. O.L.C.
at 99–100, 122; Separation of Powers, 20 Op. O.L.C. at 147–48, 148
n.70, even if we have not always made this factor a point of emphasis or
been clear about its parameters. We therefore restate and clarify our
Office’s views here.

1.

The Supreme Court has had only limited occasion to engage with Ap-
pointments Clause challenges to individuals or entities that are arguably
outside the federal government. Nonetheless, just as the Clause’s text
indicates that it applies only to positions that are part of the government
for constitutional purposes, so too do several of the Court’s decisions.
Hartwell, for example, described an office as a “public station, or em-
ployment, conferred by the appointment of government.” 73 U.S. (6 Wall.)
at 393 (emphasis added). The decision in Aurelius is also consistent with
this description. In Aurelius, the Court affirmed that the Appointments
Clause’s use of the term “of the United States” suggests “a distinction
between federal officers—officers exercising power of the National
Government—and nonfederal officers—officers exercising power of some
other government.” 590 U.S. at 460. Aurelius held that members of a
Puerto Rican financial oversight board were not subject to the Appoint-
ments Clause because they possessed “primarily local powers and duties”
and thus were not officers “of the United States.” Id. at 460, 464. Accord-
ingly, the Court explained that in the case of federal territories like Puerto
Rico, when Congress exercises its power to create structures of local
government pursuant to the Territory Clause, U.S. Const. art. IV, § 3,
cl. 2, or the District Clause, id. art. I, § 8, cl. 17, the officers of such
governments “exercise power of the local government, not the Federal
Government,” and therefore are not officers “of the United States” to
whom the Appointments Clause applies, Aurelius, 590 U.S. at 460.

7
49 Op. O.L.C. __ (Jan. 16, 2025)

The Court has thus made clear that, when a putatively non-federal posi-
tion wields federal authority, the question is whether that position is part
of the federal government for constitutional purposes; if not, then the
position is not one to which the Clause applies. In the latter circumstance,
any structural limitations on the exercise of such authority would turn not
on the Appointments Clause, but whether there has been an unconstitu-
tional delegation of federal authority to a private entity. Specifically, the
Court has held that it is not an unconstitutional delegation of authority for
Congress to assign a purely private entity responsibilities within a statuto-
ry scheme—even significant and continuing responsibilities—so long as
the private entity “function[s] subordinately” to a federal agency. Sun-
shine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 399 (1940). That rule
is at odds with a view of the Appointments Clause that prevents Congress
from assigning a private individual not appointed consistent with the
Clause responsibilities in a statutory scheme subject to appropriate federal
supervision. Indeed, the Fourth Circuit recently rejected—correctly, in our
view—an Appointments Clause challenge to the participation of private
entities in a federal administrative scheme on the ground that the Clause
does not apply to non-federal entities, instead analyzing Congress’s provi-
sion for such a role by private entities under the private-nondelegation
doctrine. See Kerpen v. Metro. Wash. Airports Auth., 907 F.3d 152, 160–
63 (4th Cir. 2018) (explaining that the Appointments Clause has “little
relevance when[] . . . the entity in question is not a federal one”).

2.

We believe that our Office’s 1996 and 2007 writings on this issue are
largely consistent both with each other and with the Supreme Court’s
view that the Appointments Clause only applies to persons and entities
that are part of the federal government for constitutional purposes. To be
sure, our 2007 opinion suggested that the Office had fallen into “error” in
1996 by “concluding that the Appointments Clause does not apply to
persons who are not employees of the federal government,” Officers of the
United States, 31 Op. O.L.C. at 121, and at least one published opinion
has viewed our 2007 and 1996 writings as disagreeing on this point, see
Appointment and Removal of Federal Reserve Bank Members of the Fed-
eral Open Market Committee, 43 Op. O.L.C. __, at *7–8 (Oct. 23, 2019).

8
Determining “Officer” Status Under the Appointments Clause

But there is less disagreement than first appears. Our 1996 opinion did
not conclude that the Appointments Clause is inapplicable any time there
is a formal argument that a position is outside the federal government;
rather, the opinion recognized that whether a position is part of the federal
government for constitutional purposes—such that the Appointments
Clause applies—turns not on the label Congress assigns the position but
rather on the functional considerations the Supreme Court identified in
Lebron and its progeny. Separation of Powers, 20 Op. O.L.C. at 147–48.
Our 2007 opinion takes a similar approach to the scope of the federal
government for Appointments Clause purposes, acknowledging that our
1996 opinion “went far toward” adopting the correct approach “when it
recognized the relevance to Appointments Clause analysis of Lebron.”
Officers of the United States, 31 Op. O.L.C. at 121–22. Thus, we view the
overall approach of these opinions as, at bottom, consistent. Further, for
the reasons laid out below, we believe the Supreme Court’s subsequent
decisions in Association of American Railroads and Free Enterprise Fund
indicate that our Office was correct in identifying Lebron and its progeny
as guiding the relevant inquiry.
We begin with Lebron, where the Court considered whether the First
Amendment constrained the ability of Amtrak to limit private speech—
which the Court concluded turned on whether Amtrak was a private
corporation or part of the government. Amtrak is chartered by Congress
and its organic statutes at the relevant time expressly provided that
Amtrak “shall be operated and managed as a for profit corporation,”
45 U.S.C. § 541 (repealed 1994), and “will not be an agency or establish-
ment of the United States Government,” Rail Passenger Service Act of
1970, Pub. L. No. 91-518, § 301, 84 Stat. 1327, 1330. The Court ex-
plained that the statute “is assuredly dispositive of Amtrak’s status as a
Government entity for purposes of matters that are within Congress’s
control.” Lebron, 513 U.S. at 392. But the Court held that “it is not for
Congress to make the final determination of Amtrak’s status as a Gov-
ernment entity for purposes of determining the constitutional rights of
citizens affected by its actions.” Id. Rather, an entity is “what the Consti-
tution regards as the Government” if the entity is government-created and
government-controlled. Id. at 392, 397. And Amtrak, the Court found,
was government-created because it was established “by special law, for
the furtherance of governmental objectives” and government-controlled

9
49 Op. O.L.C. __ (Jan. 16, 2025)

because the government “retains for itself permanent authority to appoint
a majority of [Amtrak’s] directors.” Id. at 400.
Because Lebron concerned a First Amendment challenge, the Court
limited its holding to that context. Id.; see id. at 394. However, in the
years since Lebron our Office has applied Lebron’s test to the Appoint-
ments Clause and other structural provisions, see Separation of Powers,
20 Op. O.L.C. at 147–48, 148 n.70; Officers of the United States, 31 Op.
O.L.C. at 121–22, and the Court has made clear that Lebron applies in the
separation of powers context. Specifically, in Association of American
Railroads, another case concerning Amtrak, the Court held that the sepa-
ration of powers limitations of the Constitution similarly only apply to
entities that qualify as part of the government and endorsed Lebron’s
instruction that “the practical reality of federal control and supervision”
determines an ostensibly private entity’s governmental status under
“‘structural principles secured by the separation of powers.’” 575 U.S.
at 55 (quoting Bond v. United States, 564 U.S. 211, 222 (2011)).
The Court then confirmed Lebron’s specific relevance to the Appoint-
ments Clause in Free Enterprise Fund. There, despite statutory provisions
“specifying that [Public Company Accounting Oversight] Board members
are not Government officials for statutory purposes,” the Court accepted
the parties’ shared contention that “the Board is ‘part of the Government’
for constitutional purposes,” Free Enterprise Fund, 561 U.S. at 485–86
(quoting Lebron, 513 U.S. at 397), and “that its members are ‘Officers of
the United States’ who ‘exercis[e] significant authority pursuant to the
laws of the United States,’” id. at 486 (alteration in original) (quoting
Buckley, 424 U.S. at 125–26); see also id. at 485 (“[T]he Board is a Gov-
ernment-created, Government-appointed entity.”). On that basis, the Court
proceeded to consider whether the Board’s for-cause removal protection
violated the structural constitutional principles embedded in Article II. Id.
at 492–508.
Thus, all three decisions—Lebron, Association of American Railroads,
and Free Enterprise Fund—support the view that the Appointments
Clause applies when, and only when, persons or entities are part of the
federal government for constitutional purposes. 3 Moreover, this under-

3 We note that these three cases address government corporations, and, therefore, the

precise articulation of the test in Lebron may not be appropriate in all circumstances.

10
Determining “Officer” Status Under the Appointments Clause

standing of the Clause aligns with our Office’s longstanding views about
the application of the Clause across a range of domains that the Court has
not addressed.
For example, our Office has long concluded that the Appointments
Clause is not ordinarily a barrier to federal laws providing a role for state
officials. See Officers of the United States, 31 Op. O.L.C. at 99; Separa-
tion of Powers, 20 Op. O.L.C. at 145. We explained in 1996 that part of
the reason is that such laws typically do not “create federal ‘offices,’
which are then filled by (improperly appointed) state officials.” Separa-
tion of Powers, 20 Op. O.L.C. at 145. “Rather, the ‘public station, or
employment’ has been created by state law; the federal statute simply
adds federal authority to a preexisting state office.” Id. (quoting Hartwell,
73 U.S. (6 Wall.) at 393). In 2007, we similarly explained that, “even
when they assist in the administration of federal law,” “if [state officials]
hold any office, they are officers of their state or locality, not of the Unit-
ed States.” Officers of the United States, 31 Op. O.L.C. at 99.
These statements recognize that—although congressional provision of a
role for state officials could implicate other constitutional principles, such
as the anticommandeering doctrine, see Printz v. United States, 521 U.S.
898 (1997)—the Founders assumed that “the States would consent to
allowing their officials to assist the Federal Government,” id. at 911, and
that “[t]he early federal government did indeed make provision for such
action by state officials,” Officers of the United States, 31 Op. O.L.C. at
100. Thus, the Appointments Clause is not a separate barrier to the exer-
cise of federal authority by a state or local official, so long as the provi-
sion for a role under a federal statute does not transform a state or local
official into a primarily federal one. 4

4 Although the Court has never squarely confronted the question of whether the Ap-

pointments Clause applies when federal laws assign authority to state officials, the
Court’s repeated emphasis throughout Aurelius on whether a state or local official exer-
cises “primarily” state or local powers in ascertaining the nature of the individual’s office
implies that some delegation of federal power to state officials is permissible under the
Appointments Clause. See, e.g., 590 U.S. at 453, 460, 464. That is, where authority under
federal law is assigned to a state or local official, but not to the extent that the official
wields primarily federal power—which would effectively transform the nature of the
individual’s office from a state or local position to a federal one—such a conferral of a
role or authority does not require an appointment consistent with the Appointments Clause.

11
49 Op. O.L.C. __ (Jan. 16, 2025)

Similarly, our Office has also concluded that the Appointments Clause
does not prohibit the federal government from assigning a role in a statu-
tory scheme to private individuals who do not occupy positions within a
government entity. Indeed, some such assignments have a long historical
pedigree. See Separation of Powers, 20 Op. O.L.C. at 146 & n.65. Thus,
for example, we have repeatedly determined that individuals who proceed
as qui tam relators under the False Claims Act, 31 U.S.C. § 3730(b), do
not occupy a position within “what the Constitution regards as the Gov-
ernment,” Lebron, 513 U.S. at 392, and therefore are not required to be
appointed consistent with the Appointments Clause, Separation of Pow-
ers, 20 Op. O.L.C. at 146 & n.65. 5

II.

We turn now to the second requirement for an individual to be an of-
ficer who must be appointed consistent with the Appointments Clause,
that the individual “exercis[e] significant authority pursuant to the laws of
the United States.” Lucia, 585 U.S. at 245 (quoting Buckley, 424 U.S. at
126). To that end, the Supreme Court has long recognized that the “broad
swath” of the federal government is composed of “mere employees,” not
officers. Id. at 241, 245 (quoting Buckley, 424 U.S. at 126 n.162). For
example, nearly a century and a half ago, the Court recognized that an
overwhelming percentage of the “persons rendering service to the gov-
ernment” were “agent[s] or employee[s],” not “office[rs].” Free Enter.
Fund, 561 U.S. at 506 n.9 (quoting Germaine, 99 U.S. at 509). And the
Court has more recently observed that, with the federal government’s
growth over time, the “applicable proportion” of employees relative to
officers “has of course increased dramatically since [Germaine was de-
cided in] 1879.” Id.
Against this backdrop, Lucia confirmed that a necessary condition for
distinguishing the limited number of officers in the federal government,
who must be appointed consistent with the Appointments Clause, from the

5 Separate and apart from the fact that qui tam relators do not occupy a “position”

within the federal government, the Appointments Clause would be inapplicable to such
relators for another reason: Even if they did occupy a federal “position,” such a position
would be temporary, occasional, and personal and would extend only to a single case. See
supra Part I.A; see also Officers of the United States, 31 Op. O.L.C. at 114; United States
ex rel. Stone v. Rockwell Int’l Corp., 282 F.3d 787, 805 (10th Cir. 2002).

12
Determining “Officer” Status Under the Appointments Clause

broad swath of federal employees, who do not, is that the position they
hold wields “significant authority.” 585 U.S. at 245 (quoting Buckley, 424
U.S. at 126). We read Lucia’s emphasis on the extent of authority a posi-
tion can properly exercise as confirming our Office’s approach—an
approach that has been largely consistent across time, despite differences
in terminology.

A.

Lucia is the latest in a long line of Supreme Court cases establishing
that officers are distinguished from other individuals in the federal gov-
ernment by the extent of authority they can properly exercise. Since
Buckley v. Valeo, the Court has implemented this distinction by asking
whether a continuing position exercises “significant authority.” See, e.g.,
Freytag, 501 U.S. at 881–82; Edmond v. United States, 520 U.S. 651, 662
(1997); Free Enter. Fund, 561 U.S. at 506; Lucia, 585 U.S. at 245–50;
Arthrex, 594 U.S. at 13. And although the Court has declined to articulate
the precise metes and bounds of “significant authority,” opting instead to
leave the inquiry largely “unadorned,” Lucia, 585 U.S. at 246, judicial
opinions stretching back to the mid-nineteenth century make clear that the
focus of the inquiry is the nature and relative importance of an individu-
al’s functions, see Maurice, 26 F. Cas. at 1214.
The Court’s analysis in Buckley is instructive. Buckley considered
whether the duties exercised by the commissioners of the Federal Election
Commission (“FEC”) required them to be appointed consistent with the
Appointments Clause. 424 U.S. at 118. The Court concluded that the
FEC’s powers “of an investigative and informative nature” did not consti-
tute significant authority, since they “f[ell] into the same general category
as those powers which Congress might delegate to one of its own commit-
tees.” Id. at 137. Such functions, the Court concluded, fell within Con-
gress’s prerogative to create positions to “perform duties only in aid of
those functions that Congress may carry out by itself, or in an area suffi-
ciently removed from the administration and enforcement of the public
law as to permit their being performed by persons not ‘Officers of the
United States.’” Id. at 139.
But the Court reached the opposite conclusion as to the FEC’s “more
substantial powers”—including “functions with respect to the Commis-
sion’s task of fleshing out the statute” and “functions necessary to ensure

13
49 Op. O.L.C. __ (Jan. 16, 2025)

compliance with the statute and rules.” Id. at 137–38. With respect to the
FEC’s enforcement powers—“exemplified by its discretionary power to
seek judicial relief”—the Court held that “primary responsibility for
conducting civil litigation in the courts of the United States for vindicat-
ing public rights” represents the exercise of significant authority. Id. at
138, 140. Likewise, the Court concluded that “the Commission’s broad
administrative powers”—“rulemaking, advisory opinions, and determina-
tions of eligibility for funds and even for federal elective office itself”—
represented “the performance of a significant governmental duty exer-
cised pursuant to a public law.” Id. at 140–41.
Buckley’s approach of weighing the nature and importance of a posi-
tion’s duties to distinguish officers from employees, without laying down
a precise line, has a long pedigree in judicial opinions. As early as 1823,
Chief Justice Marshall held, while riding circuit, that the position of
“agent of fortifications” in the United States Army qualified as an office
because it exercised “important duties.” Maurice, 26 F. Cas. at 1214. And
in the years since Buckley, the Court has repeatedly held that agency
adjudicators who oversee adversarial proceedings governing important
rights are officers. See Freytag, 501 U.S. at 881–82 (characterizing spe-
cial tax judges’ power to “take testimony,” “conduct trials,” “rule on the
admissibility of evidence,” and “enforce compliance with discovery
orders,” as “important functions” that involve the exercise of “significant
discretion”); Lucia, 585 U.S. at 249 (identifying Securities and Exchange
Commission administrative law judges’ ability to “issue decisions con-
taining factual findings, legal conclusions, and appropriate remedies” as
the exercise of significant authority); Arthrex, 594 U.S. at 13 (concluding
that administrative patent judges’ power to “adjudicat[e] . . . public rights”
by “reconsidering an issued patent” constitutes “significant authority”).

B.

Lucia’s emphasis on “significant authority” is consistent with not only
the Supreme Court’s traditional approach to the Appointments Clause, but
also the Executive Branch’s longstanding practice. Indeed, well over a
century ago the Attorney General issued an opinion recognizing that an
“officer is distinguished from [an] employee in the greater importance,
dignity, and independence of his position.” Second Deputy Comptroller of
the Currency—Appointment, 26 Op. Att’y Gen. 627, 628 (1908) (quoting

14
Determining “Officer” Status Under the Appointments Clause

People ex rel. Throop v. Langdon, 40 Mich. 673, 682 (1879) (Cooley, J.)).
Since then, our Office has continued to emphasize the importance of an
official’s functions as a key consideration in determining officer status,
specifically referencing the Supreme Court’s focus on “significant author-
ity.” For example, our 1996 opinion explicitly stated that “[a]n officer is
distinguished from other full-time employees of the federal government
by the extent of authority he or she can properly exercise.” Separation of
Powers, 20 Op. O.L.C. at 143.
Our 2007 opinion is consistent with this longstanding position. We
acknowledge that terminology in that opinion could be understood as
deviating from the 1996 opinion in how the nature and importance of a
position’s duties affect the application of the Appointments Clause. Spe-
cifically, our 2007 opinion, drawing principally on certain historical
writings and nineteenth century state court decisions and treatises, con-
cluded that the Clause applies when a position has been “delegate[ed] . . .
a portion of the sovereign powers of the federal government” and noted
that “one could define delegated sovereign authority as power lawfully
conferred by the government to bind third parties, or the government
itself, for the public benefit.” Officers of the United States, 31 Op. O.L.C.
at 78, 87. In isolation, this formulation could be read as deemphasizing
the importance of an official’s duties for Appointments Clause purposes
and therefore deviating from the “significant authority” approach reflect-
ed in the Court’s jurisprudence and our 1996 opinion.
But we do not think this is how our 2007 opinion should be understood.
The 2007 opinion reaffirmed that the “significant authority” criterion is a
“shorthand for the full historical understanding of the essential elements
of a public office,” id. at 87, and then indicated through the sources it
cited that the importance of a particular position’s authority may be rele-
vant to whether the person occupying that position is an officer, see, e.g.,
id. at 81 (citing William Rawle, A View of the Constitution of the United
States of America 211 (2d ed. 1829)); id. at 84 (citing Maurice, 26 F. Cas.
at 1214); id. at 89 (citing Kennon, 7 Ohio St. at 562–63; Shelby v. Alcorn,
36 Miss. 273, 291–92 (1858); and Commonwealth v. Swasey, 133 Mass.
538, 541 (1882)); id. at 106, 111–12 (again citing Kennon, 7 Ohio St. at
562–63). Accordingly, we understand the term “delegated sovereign
authority,” as used in our 2007 opinion, to denote the importance of a

15
49 Op. O.L.C. __ (Jan. 16, 2025)

position, not as an attempt to expand the definition of officer beyond
those who exercise “significant authority.”
Consistent with this understanding, our Office has not, since 2007, tak-
en the position that every individual who may exercise a portion of the
federal government’s sovereign authority must be appointed consistent
with the Appointments Clause. Our 2007 opinion thus did not result in a
substantial change in our Appointments Clause approach—to the contrary,
there has instead been significant continuity in our Appointments Clause
practice across time.
As just one example, consistent with Supreme Court precedent, the Ex-
ecutive Branch has long recognized that employees occupying subordi-
nate positions within the federal government who have not been directly
vested with statutory or regulatory responsibilities, but who merely assist
or act as the agents of superior officers vested with such responsibilities,
need not be appointed as officers of the United States. See Steele v. United
States, 267 U.S. 505, 507–08 (1925) (concluding that deputy U.S. Mar-
shals were not officers of the United States, despite the coercive power
they could exercise); Civ.-Serv. Comm’n, 13 Op. Att’y Gen. 516, 521
(1871) (discussing the early congressional practice of not requiring ap-
pointment consistent with the Appointments Clause for certain subordi-
nate employees who were “representatives of the officers who appoint
them” because, “perhaps, it was considered by Congress that the office
was substantially in the principal”). Thus, notwithstanding the 2007
opinion’s statement that “matters commonly considered law enforcement
or execution” constitute “delegated sovereign authority,” Officers of the
United States, 31 Op. O.L.C. at 89, the Executive Branch has continued to
understand after 2007 that line federal law enforcement agents and line
attorneys who assist superior officials in conducting litigation on behalf of
the federal government need not be appointed consistent with the Ap-
pointments Clause, see Transcript of Oral Argument at 27, Lucia, 585
U.S. 237 (No. 17-130). The authority exercised by these individuals is not
sufficiently significant for Appointments Clause purposes because of the
ways in which their discretion is constrained and because it is the superior
officials, not the line employees assisting them, in whom the powers are
vested. Id.
Indeed, in Lucia itself, the Department of Justice made clear that it un-
derstood our 2007 opinion as consistent with an inquiry into the im-

16
Determining “Officer” Status Under the Appointments Clause

portance of an official’s authority. See, e.g., Reply Brief for Respondent
Supporting Petitioners at 2, Lucia, 585 U.S. 237 (No. 17-130) (“[T]he
power to bind the government or third parties on significant matters is
sufficient for officer status when the official occupies a continuing posi-
tion.” (emphasis added)); Brief for Respondent Supporting Petitioners
at 24–25, Lucia, 585 U.S. 237 (No. 17-130) (rejecting an approach that
would compel the conclusion that “comparatively unimportant positions
are ‘offices’” and asking “whether the functions of the position were so
significant that the Constitution required that the position be held by an
officer appointed pursuant to the Appointments Clause” (emphasis omit-
ted) (footnote omitted)). These statements by the Department comport
with our Office’s advice, and Lucia is consistent with that approach. 6

III.

For these reasons, consistent with the Supreme Court’s jurisprudence
and our Office’s longstanding approach, individuals must be appointed
pursuant to the Appointments Clause only if they (1) occupy a continuing
position that is part of the federal government for constitutional purposes,
and (2) exercise significant authority pursuant to the laws of the United
States.

CHRISTOPHER C. FONZONE
Assistant Attorney General
Office of Legal Counsel

6 We note that two Supreme Court Justices have recently suggested that the term “Of-

ficers of the United States” in the Appointments Clause should be read expansively to
refer to “all federal civil officials ‘“with responsibility for an ongoing statutory duty.”’”
Lucia, 585 U.S. at 252–53 (Thomas, J., concurring, joined by Gorsuch, J.) (quoting NLRB
v. Sw. Gen., Inc., 580 U.S. 288, 314 (2017) (Thomas, J., concurring) (quoting the forth-
coming manuscript of Jennifer L. Mascott, Who Are “Officers of the United States”?,
70 Stan. L. Rev. 443, 564 (2018))). We decline to adopt this approach, as, for reasons
recounted in the text, it appears to be inconsistent with both the Supreme Court’s and the
Executive Branch’s longstanding view of the Appointments Clause: Not only would the
approach deem irrelevant the importance of an official’s duties, but it could require
significant portions of the federal workforce to be hired in a manner that complies with
the Appointments Clause, contrary to the settled understanding that “the broad swath” of
the government’s workforce consists of “non-officer employees.” Lucia, 585 U.S. at 245.

17

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10783505. Public record. Not legal advice.