Bernard L. Silver, Cartwright-Mitchell, Inc., a Delaware Corporation v. United States Postal Service

O’SCANNLAIN, Circuit Judge,

dissenting:

In my view, the Postmaster General and Deputy Postmaster General are not appointed in a manner consistent with the Appointments Clause, art. 2, § 2, cl. 2. Thus, I respectfully dissent from part IIB of the opinion of the court.

I

The Appointments Clause describes two processes for appointments of officers of the United States, and those appointed by the respective processes have come to be known as “principal” or “inferior” officers. Principal, 1 i.e., non-“inferior,” officers must be appointed by the President with the advice and consent of the Senate. For inferior officers, “the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.” Id.

In our scheme of separation of powers the duty to enforce the laws of the United States falls upon the President. The President may delegate his enforcement duties to members of the executive branch, but the Appointments Clause serves as a check on such delegation. See Myers v. United States, 272 U.S. 52, 117-18 , 47 S.Ct. 21, 25-26 , 71 L.Ed. 160 (1926). Executive branch enforcement powers may only be exercised by officers of the United States appointed in accordance with the Appointments Clause. Buckley v. Valeo, 424 U.S. 1, 140 , 96 S.Ct. 612, 691 , 46 L.Ed.2d 659 (1976) (per curiam).

Silver argues that the Postal Service Board of Governors (the “Board”) was not appointed in accordance with the Appointments Clause, and hence may not lawfully exercise executive branch enforcement powers. The eleven-person Board consists of nine Governors, the Postmaster General, and the Deputy Postmaster General. 39 U.S.C. § 202 . The constitutionality of the appointment process set forth in section 202 for each of these Board members shall be examined in turn.

A

Each Governor is appointed to a nine year term by the President, with the advice and consent of the Senate. 39 U.S.C. § 202 (a), (b). This clearly comports with the constitutional requirements for the appointment of principal officers. Buckley, 424 U.S. at 126 , 96 S.Ct. at 685 .

B

The Postmaster General (the “PG”) is appointed by the nine Governors. 39 U.S.C. § 202 (c). Since the PG is not appointed by the President with the advice and consent of the Senate, his appointment manifestly violates the Appointments Clause if he is a principal officer. For purposes of this analysis, however, it can be assumed that the PG is merely an inferi- or officer. 2 The Appointments Clause permits inferior officers to be appointed by “Heads of Departments.” Hence the constitutionality of the PG’s appointment turns on whether the Governors alone, as opposed to the full Board, can be considered a Head of Department.

Silver contends that the term Heads of Departments as used in the Appointments Clause can only apply to those who head executive departments, that is, to members of the Cabinet. The Supreme Court recently declined to address the question of *1044 whether “the head of one of the principal agencies” was a “Head of Department” for purposes of the Appointments Clause. See Freytag v. Commissioner, — U.S. —, 111 S.Ct. 2631 , 2643 n. 4, 115 L.Ed.2d 764 (1991). Justice Scalia, concurring in part and joined by three other Justices, forcefully argued, however, that “there is no reason, in text, judicial decision, history or policy, to limit the phrase ‘the Heads of Departments’ in the Appointments Clause to those officials who are members of the President’s Cabinet.” Id. Ill S.Ct. at 2660 (Scalia, J., concurring in part and concurring in the judgment). Justice Scalia pointed out that the Cabinet did not even exist in the original Constitution, id. at 2658-59 , and that the definition of “department” in an American dictionary roughly contemporaneous with the drafting of the Constitution was stated in terms of having a separate function, and was not dependent on size or status, id. at 2660 .

Thus the mere fact that the Governors do not sit in the President’s Cabinet would not prevent them from collectively 3 constituting a Head of Department. But a closer examination shows that the Governors by themselves, as distinct from the full Board, simply do not function as a Head of Department within the management scheme of the Postal Service.

The government contends in its brief that “[t]he nine Governors of the Postal Service are the “head of department in the sense that they are the highest authority within the Postal Service.” In my view, this cannot be correct. The nine-member Governors alone do not manage and govern the Postal Service; only the full eleven-member Board, of which the Governors comprise a part, is granted the authority under statute to “exercise the power of the Postal Service.” 39 U.S.C. § 202 (a). The Board, not the Governors alone, “shall direct and control the expenditures and review the practices and policies of the Postal Service.” 39 U.S.C. § 205 (a). It is the Board that is given plenary power to delegate the authority vested in it to the PG. 39 U.S.C. § 402 . Although the Governors alone vote on rate increases and new classes of mail, 39 U.S.C. § 3621 , all other functions and powers of the Postal Service are directed by the full Board.

Under this statutory scheme, clearly the full Board governs and controls the Postal Service, and I am not persuaded that the Governors, a mere subset of the Board, can be regarded as the Head of Department. Hence the Governors alone cannot be empowered to appoint officers of the United States consistent with the Appointments Clause. The statutory scheme for appointment of the PG is unconstitutional because, in my view, it does not have as its source one of the only three options the Constitution permits: the President alone, the Courts of Law, or the Heads of Departments. Congress could not have intended nine members of the Board to be the head of department for Appointments Clause purposes while intending all eleven members to be head of department for purposes of running the Postal Service.

C

The provision for appointment of the Deputy Postmaster General (the “DPG”) is likewise flawed. The DPG is appointed by the Governors and the PG. By the reasoning applicable to the PG’s selection, appointment of the DPG by the Governors alone would be inconsistent with the Appointments Clause. The additional participation of the PG, arguably an inferior officer, merely compounds the irregularity of the DPG’s appointment process.

The DPG might not be subject to the Appointments Clause if, instead of being an inferior officer, he were a mere employee of the United States. See Buckley, 424 U.S. at 126 , 96 S.Ct. at 685 . All indications point, however, toward the DPG not being a mere employee. In Buckley , the Court *1045 defined employees in the Appointments Clause context as being “lesser functionaries subordinate to officers of the United States.” Buckley, 424 U.S. at 126 n. 162, 96 S.Ct. at 685 n. 162. On the other hand, “any appointee exercising significant authority pursuant to the laws of the United States” must be appointed in the manner prescribed by the Appointments Clause. Id. at 126 , 96 S.Ct. at 685 .

The DPG is clearly not a “lesser functionary.” The DPG by statute and regulation exercises significant authority. 4 He serves as an alternate to the PG when the PG cannot perform his duties. 89 U.S.C. § 203 . He is chief operating officer of the Postal Service, 39 C.F.R. § 225.1 , and the three Postal Service operations departments report to him, 39 C.F.R. § 225.2 . Significantly, the DPG reports to the Board, not to the PG. See 39 C.F.R. § 224 (DPG is not on list of parties reporting to PG). Most important, the DPG serves as a voting member of the Board of the Postal Service. 39 U.S.C. § 202 (d).

Justice Scalia has speculated that the DPG was likely an officer of the United States even as early as the administration of George Washington. Freytag, 111 S.Ct. at 2659 (Scalia, J., concurring in part and concurring in the judgment). And while the Supreme Court has never addressed whether the DPG is an officer of the United States, it has found the postmaster of Portland, Oregon, to be an officer of the United States. Myers v. United States, 272 U.S. 52 , 47 S.Ct. 21 , 71 L.Ed. 160 (1926). See also United States v. McCrory, 91 F. 295 (5th Cir.1899) (letter carrier is officer of United States). Given the important role of the DPG in the statutory scheme of the Postal Service, the DPG cannot be a mere employee immune from the Appointments Clause.

II

Although in my view the statute setting forth the appointment process for the PG and the DPG violates the Appointments Clause, the effect of this unconstitutionality on the enforcement action against Silver is initially unclear. 5 The PG and DPG were not personally involved in Silver’s enforcement action. The PG and the DPG are, however, voting members of the Postal Service Board of Governors ( 39 U.S.C. § 202 (d)) and thus the question remains what effect the existence of unconstitutionally appointed members has on that. Board and therefore the Postal Service. As previously discussed, the power to execute the laws of the United States is lodged in the President. U.S. Const, art. II, § 3. In postal matters, that power is delegated to the Board. 39 U.S.C. § 202 (a). They in turn are authorized to delegate their authority to the PG “as [the Board] deems desirable.” 39 U.S.C. § 402 . In the final link in the chain of delegation, the PG is permitted under Postal Service regulations to delegate “any function vested in the Postal Service, [or] in the [PG]” to “any employee or agent” of the Postal Service. 39 C.F.R. § 222.1 .

Hence the constitutional power to execute the laws of the United States, if it is to be effective, must flow from the President through the Board and PG to the Judicial Officer and the ALJ involved in the Silver enforcement action. The Appointments Clause serves as a “limiting principle” on this flow of power, however. See Freytag, 111 S.Ct. at 2639 . Executive authority cannot be handed down to those who hold office in violation of the Appointments Clause. Buckley, 424 U.S. at 140 , 96 S.Ct. at 691 .

Because the Board has members whose appointment violates the Appointments *1046 Clause, in my view, the Board cannot exercise executive authority. The fact that the PG and the DPG are just two of the eleven members of the Board does not eliminate the constitutional infirmity. As a practical matter, the actions of the Board may be dependent on the PG and the DPG, as when they are needed to form a quorum, or where they cast the deciding votes. More fundamentally, the command of the Appointments Clause is not mere “etiquette or protocol,” Buckley, 424 U.S. at 125 , 96 S.Ct. at 685 , and to allow powerful boards or commissions to be composed, even in part, by members appointed in an unconstitutional manner would vitiate the Appointments Clause.

This constitutional infirmity of the Board interrupts the chain of enforcement authority from the President to the Judicial Officer and AU. Because of its unconstitutional composition, the Board is bereft of any executive enforcement authority to delegate to the PG, let alone to the Judicial Officer and AU. Moreover, even if the Board were thought not to be undermined by the unconstitutionality of two of its members, the constitutional infirmity of the PG himself would still break the chain of authority from the President to the Postal Service Judicial Officer and AU.

The Appointments Clause speaks to “the fundamental principles of the Government established by the Framers of the Constitution, ... [to] the intent of the Framers that the powers of the three great branches of the National Government be largely separate from one another.” Buckley, 424 U.S. at 120 , 96 S.Ct. at 682 . “The Appointments Clause prevents Congress from dispensing power too freely; it limits the universe of eligible recipients of the power to appoint. * * * The structural interests protected by the Appointments Clause are not those of any one Branch of government but of the entire Republic.” Freytag, 111 S.Ct. at 2639 . Given the profound interests at stake, even seemingly minor violations of the Appointments Clause cannot be ignored. I would reverse.

. The term "principal officer” is found nowhere in the text of the Constitution, but has been adopted by the Supreme Court in its Appointments Clause jurisprudence. See, e.g., Freytag v. Commissioner, — U.S. —, 111 S.Ct. 2631 , 115 L.Ed.2d 764 (1991).

. As the chief executive officer of the Postal Service ( 39 C.F.R. § 225.1 ), it can hardly be doubted that the PG is at least an "inferior" officer of the United States.

. Although the Supreme Court has never addressed the question of whether a group, as opposed to an individual, could be a department head, many independent regulatory agencies are headed by groups with no apparent constitutional infirmity, and the Attorney General determined as early as 1933 that groups could be “Heads of Departments.” See 37 Op. Att'y Gen. 227 , 229-30 (1933).

. In its determination that the appointee in question in Freytag was an inferior officer, the Court found it significant that the appointee’s "duties, salary, and means of appointment ... are specified by statute." Freytag, 111 S.Ct. at 2640 .

. I adhere to the principle of finding unconstitutional as narrow and discrete a part of a statute as possible. In my view, only those parts of section 202 concerning the appointment of the PG and the DPG, and not those parts concerning the appointment of the Governors, are unconstitutional. Even with this narrow conclusion, however, the implications of the flawed appointment of the PG and DPG on the Board as a whole must be explored.