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

(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.

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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).

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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.

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

periodic physical examinations were employees, not officers, because

their duties were not “continuing and permanent,” but “occasional or

temporary.” 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.

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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

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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