Amicus Curiae Brief — Raymond J. Lucia, et al., Petitioners v. Securities and Exchange Commission

No. 17-130

In the

Supreme Court of the United States

RAYMOND J. LUCIA AND

RAYMOND J. LUCIA COMPANIES, INC.,

Petitioners,

v.

SECURITIES AND EXCHANGE COMMISSION,

Respondent.

On Writ of Certiorari to the United States Court

of A ppeals for the District of Columbia Circuit

BRIEF OF PROFESSOR JENNIFER L.

MASCOTT AS AMICUS CURIAE

IN SUPPORT OF PETITIONERS

William S. Consovoy

Counsel of Record

J. Michael Connolly

Consovoy McCarthy Park Pllc

George Mason University

A ntonin Scalia Law School

Supreme Court Clinic

3033 Wilson Blvd., Suite 700

Arlington, VA 22201

(703) 243-9423

will@consovoymccarthy.com

Attorneys for Amicus Curiae

February 28, 2018

279261

A

(800) 274-3321 • (800) 359-6859

i

QUESTION PRESENTED

Whether administrative law judges of the Securities

and Exchange Commission are Officers of the United

States within the meaning of the Appointments Clause.

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . . iv

INTEREST OF THE AMICUS CURIAE . . . . . . . . . . . 1

CONSTITUTIONAL PROVISION INVOLVED . . . . . 1

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . 2

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

I.

This Court’s decisions confirm that whether

SEC ALJs are “Officers of the United

States” must be evaluated in accordance

with the phrase’s original public meaning . . . . . 4

II. Substantial evidence proves that the

original public meaning of “Officers of the

United States” encompassed any federal

civil official with ongoing responsibility to

perform a statutory duty . . . . . . . . . . . . . . . . . . . 11

A. The Constitutional Text . . . . . . . . . . . . . . . . 15

B. “Officers of the United States” is not a

term of art . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

iii

Table of Contents

Page

C. Fou nd i ng - e r a d ic t ion a r ie s a nd

commentaries . . . . . . . . . . . . . . . . . . . . . . . . 20

D. Contextual uses of “Officer” and “Officers

of the United States” in Founding-era

sources debating the Constitution . . . . . . . 24

E. Early appointment practices . . . . . . . . . . . . 28

III. The Court should not distort the meaning of

the Appointments Clause based on alleged

practical implementation concerns . . . . . . . . . . . 31

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

iv

TABLE OF CITED AUTHORITIES

Page

CASES

Auffmordt v. Hedden,

137 U.S. 310 (1890) . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 6

Bowsher v. Synar,

478 U.S. 714 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Buckley v. Valeo,

424 U.S. 1 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . passim

Free Enterprise Fund v. Public Company

Accounting Oversight Board,

561 U.S. 477 (2010) . . . . . . . . . . . . . . . . . . . . . . . passim

Freytag v. Commissioner,

501 U.S. 868 (1991) . . . . . . . . . . . . . . . . . . . . . . . passim

Landry v. FDIC,

204 F.3d 1125 (D.C. Cir. 2000) . . . . . . . . . . . . . . 2, 7, 29

NLRB v. Noel Canning,

134 S. Ct. 2550 (2014) . . . . . . . . . . . . . . . . . . . . . . . . . 10

People v. Harris,

885 N.W.2d 832 (Mich. 2016) . . . . . . . . . . . . . . . . . . . 13

Raymond J. Lucia Cos. v. SEC,

832 F.3d 277 (D.C. Cir. 2016) . . . . . . . . . . . . . . 7, 31, 32

v

Cited Authorities

Page

Stern v. Marshall,

564 U.S. 462 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Tucker v. C.I.R.,

676 F.3d 1129 (D.C. Cir. 2012) . . . . . . . . . . . . . . . . . . 12

United States v. Germaine,

99 U.S. 508 (1878) . . . . . . . . . . . . . . . . . . . . . . . . . 3, 6, 7

United States v. Hartwell,

73 U.S. 385 (1867) . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 6

United States v. Maurice,

26 F. Cas. 1211 (C.C.D. Va. 1823) (No. 15,747) . . . . . 21

STATUTES AND OTHER AUTHORITIES

U.S. Const. art. I, § 8, cl. 18 . . . . . . . . . . . . . . . . . . . . . . 16

U.S. Const. art. II, § 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

U.S. Const. art. II, § 2, cl. 1 . . . . . . . . . . . . . . . . . . . . 17, 18

U.S. Const. art. II, § 2, cl. 2 . . . . . . . . . . . . . . . 1, 11, 15, 33

U.S. Const. art. II, § 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

U.S. Const. art. II, § 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

U.S. Const. art. VI, cl. 3 . . . . . . . . . . . . . . . . . . . . . . . . . . 18

vi

Cited Authorities

Page

U.S. Const. art. VI, § 3, Cl. 2 . . . . . . . . . . . . . . . . . . . . . 18

15 U.S.C. § 78d-1(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 6, 32

15 U.S.C. § 78d-1(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

15 U.S.C. § 78d-1(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

17 C.F.R. § 200.14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 6

17 C.F.R. § 200.14(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

17 C.F.R. § 200.30-9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 6

Annals of Cong. 463 (1789) . . . . . . . . . . . . . . . . . . . . . . . . 5

A. Hamilton, The Federalist No. 69 . . . . . . . . . . . . . 23-24

A. Hamilton, The Federalist No. 70 . . . . . . . . . . . . . . . . 12

Act of Apr. 2, 1792 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Act of Aug. 4, 1790 . . . . . . . . . . . . . . . . . . . . . . . . 23, 30-31

Act of July 31, 1789 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Act of Mar. 2, 1799 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Act of Sept. 11, 1789 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

vii

Cited Authorities

Page

A List of the Officers in the Department of

Foreign Affairs and Their Appointments

(1783) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Annals of Cong. 2294, 2306 (1799) . . . . . . . . . . . . . . . . . 20

Appointment & Removal of Inspectors of

Customs, 4 Op. Att’y Gen. 162, 164-65 (1843)

Documentary History of the First Federal

Congress of the United States of America, 4

March 1789-3 March 1791 (William Charles

diGiacomantonio et al. eds., 1995) . . . . . . . . . . . . . . . 19

Documentary History of the First Federal

Congress, 4 March 1789-3 March 1791 (Charlene

Bangs Bickford et al. eds., 2004) . . . . . . . . . . . . . . . . 30

Edward S. Corwin, The President: Office and

Powers, 1787-1948; History and Analysis of

Practice and Opinion (3d ed. 1948) . . . . . . . . . . . . . 33

Gregory E. Maggs, A Concise Guide to Using

Dictionaries from the Founding Era to

Determine the Original Meaning of the

Constitution, 82 Geo. Wash. L. Rev. (2014) . . . . . . . 22

Hanah Matchis Volokh, The Two Appointments

Clauses: Statutory Qualifications for Federal

Officers, 10 U. Pa. J. Const. L. (2008) . . . . . . 11, 24, 33

viii

Cited Authorities

Page

J. Madison, The Federalist No. 51 . . . . . . . . . . . . . . . . . . 5

James C. Phillips et al., Corpus Linguistics & Original

Public Meaning: A New Tool to Make Originalism

More Empirical, 126 Yale L.J.F. 21 (2016) . . . . . . . 14

Je n n i fe r L . M a s c o t t , C o n s t i t u t i o n a l l y

Confor ming Agency Adjudication,

2 Loy. U. Chi. J. Reg. Compliance (2017) . . . . 6, 24, 32

Jennifer L. Mascott, Who Are “Officers of the

United States”?, 70 Stan. L. Rev. 443 (2018) . . passim

Louis McLane, The Following Arrangement of the

Gentlemen Employed, the Distribution of Their

Duties, and Rules for Their Performance, Are

Directed to be Observed in the Department

of State, from and After the 30th June, 1833

(1833) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Matthew Bacon, A New Abridgment of the Law

*718-19 (London, C. Bathurst 4th ed. 1778) . . . . 21, 22

Minutes of Feb. 6, 1778, in 10 Journals of

the Continental Congress ( Worthington

Chauncey Ford ed., 1908) . . . . . . . . . . . . . . . . . . . . . . 26

Minutes of Feb. 9, 1778, in 10 Journals of

the Continental Congress ( Worthington

Chauncey Ford ed., 1908) . . . . . . . . . . . . . . . . . . . . . . 19

ix

Cited Authorities

Page

N. B a i l e y, An Un i v e r s a l E t y m o l o g i c a l

English Dictionary (London, J. Murray

25th ed. 1783) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 23

Nichola s R . Pa r r i l lo, A ga i nst the P rof it

Mot ive: T he Sa la r y Revolut ion i n

American Government (2013) . . . . . . . . . . . . . . . . . . 31

Noah Webst er, An Amer ican Dictionar y

of the English Language (New York, S.

Converse 1828) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Officers of the U.S. Within the Meaning of the

Appointments Clause, 31 Op. O.L.C. 73

(2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

O x fo r d En g. D i c ti o n a r y, ht t p s: // p er m a .

cc/F9ZK-XUPF (archived Nov. 13, 2017) . . . . . . . . . 13

S a m u e l Jo h n s o n , A D i c t i o n a r y o f t h e

En gli sh Lan gua ge (London, J.F. & C.

Rivington 6th ed. 1785) . . . . . . . . . . . . . . . . . . . . . 20, 25

Stephen C. Mouritsen, Hard Cases and Hard

D a t a : A s s e s s i n g C o r p u s L i n g ui s ti c s

as an Empirical Path to Plain Meaning,

13 Colum. Sci. & Tech. L. Rev. (2011) . . . . . . . . . . . . 13

Tariff Act of 1789, ch. 2, § 1, 1 Stat. 24 (repealed

1790) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

x

Cited Authorities

Page

The Debates in the Several State Conventions,

on the Adoption of the Federal Constitution

( J o n a t h a n E l l i o t e d . , Wa s h i n g t o n ,

Jonathan Elliot 2d ed. 1836) . . . . . . . . . . . . . . . . .20, 25

The Declaration of Independence (U.S. 1776) . . . . . . . 23

The Federal Farmer, Anti-Federalist No. 41-43 . . 13, 25

The Federalist No. 45 . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

The Federalist No. 77 . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

The Federal Farmer, Anti-Federalist No. 76-77:

An Anti-Federalist View of the Appointing

Power Under the Constitution (1788) . . . . . . . . . 19, 24

T he Pap e r s of G e or g e Wa s h i n g t on 176

(Dorothy Twohig ed., 1989) . . . . . . . . . . . . . . . . . . . . 30

The Records of the Federal Convention of

1787 (Max Farrand ed., 1911) . . . . . . . . . . . . . . . . 17, 25

Thomas Dyche & William Pardon, A New

Gen eral En gli sh Dictio n ar y (London,

Toplis & Bunney 18th ed. 1781) . . . . . . . . . . . . . . . . . 21

War Office, Report (1782), in 23 Journals of the

Continental Congress 1774-1789 (Gaillard

Hunt ed., 1914) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18-19

1

INTEREST OF THE AMICUS CURIAE1

Amicus Jennifer Mascott is an Assistant Professor

of Law at the Antonin Scalia Law School of the George

Mason University. The amicus has an interest in

preservation of the U.S. Constitution’s Appointments

Clause restraints on the exercise of government power.

The academic scholarship of amicus explores the

original public meaning of Article II of the Constitution

and the interrelationship between Article II’s textual

constraints and democratic accountability. In particular,

this brief draws substantially from amicus’s article,

Who Are “Officers of the United States”?, 70 Stan. L.

Rev. 443 (2018), regarding the original meaning of the

Appointments Clause and early federal appointment

practices. This brief discusses that evidence as it relates

to the question whether the Appointments Clause applies

to administrative law judges and the broader question of

which categories of federal officials are “Officers of the

United States.”

CONSTITUTIONAL PROVISION INVOLVED

Article II, Section 2, Clause 2 of the Constitution

provides in relevant part: “[The President] shall nominate,

and by and with the Advice and Consent of the Senate,

shall appoint Ambassadors, other public Ministers and

Consuls, Judges of the supreme Court, and all other

1. Pursuant to this Court’s Rule 37.6, counsel for amicus

curiae certifies that this brief was not authored in whole or in part

by counsel for any party and that no person or entity other than

amicus curiae or her counsel has made a monetary contribution

to the preparation or submission of this brief. The parties have

consented to the filing of this brief.

2

Officers of the United States, whose Appointments are

not herein otherwise provided for, and which shall be

established by Law: but 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.”

SUMMARY OF ARGUMENT

When interpreting the phrase “Officers of the United

States” in the Appointments Clause, this Court has

emphasized the importance of the historical meaning of

the constitutional text. See Buckley v. Valeo, 424 U.S. 1,

127-29 (1976) (per curiam). Substantial evidence suggests

that the original public meaning of “Officers of the United

States” included every federal civil official with ongoing

responsibility to carry out a statutory duty. See generally

Jennifer L. Mascott, Who Are “Officers of the United

States”?, 70 Stan. L. Rev. 443 (2018) (hereinafter Officers).

Under this “statutory duty” standard, administrative

law judges (ALJs) within the Securities and Exchange

Commission (SEC) are “Officers of the United States.”

SEC ALJs carry out tasks that Congress has assigned

to the SEC. See 15 U.S.C. § 78d-1(a); 17 C.F.R. §§ 200.14,

200.30-9. Therefore, the SEC’s ALJs are “officers” under

the “statutory duty” test.

This standard differs from the suggestion in some

cases that Congress can determine Article II “officer”

status by choosing whether to tie responsibility for a

specific statutory task to one particular official. See, e.g.,

Landry v. FDIC, 204 F.3d 1125, 1133 (D.C. Cir. 2000).

Rather, the original meaning of “officer” encompassed

every official who happened to carry out a statutory

3

task—whether Congress had explicitly assigned it to

them or not. See Officers, supra, at 507-08, 513-15. It is the

exercise of the governmental power that makes an official

an “officer”—not Congress’s classification of the position.

The “statutory duty” standard is consistent with the

outcome of most of this Court’s Appointments Clause

cases as well as with numerous pronouncements this

Court has made about the meaning of the Clause. See,

e.g., Buckley, 424 U.S. 1; Freytag v. Commissioner,

501 U.S. 868 (1991). Along with the Court’s widely cited

discussion of “significant authority” in Buckley, the Court

in that case also explained that from its first inclusion in

constitutional drafts, the phrase “Officers of the United

States” has “embrace[d] all appointed officials exercising

responsibility under the public laws of the Nation.”

424 U.S. at 131. Several nineteenth century decisions

accordingly tied the concept of duty to status as an Article

II “officer.” See, e.g., Auffmordt v. Hedden, 137 U.S. 310,

326-29 (1890); United States v. Germaine, 99 U.S. 508,

511-12 (1878); United States v. Hartwell, 73 U.S. 385, 393

(1867).

Evidence from the text of the Constitution, its

drafting history, and Founding-era uses of the phrase

“Officers of the United States” suggests it was not a new

term of art established in the Constitution to set aside an

especially important class of officers. Rather, the modifier

“of the United States” indicated that the Appointments

Clause encompassed federal, rather than state, officers.

Indeed, contextual analysis of thousands of Foundingera uses of “officer(s)” and “office(s)” in dictionaries,

the drafting and ratification debates, the Federalist

Papers and Anti-Federalist essays, the Journals of the

4

Continental Congress, and a database of early newspaper

records suggests that an eighteenth century officer was

anyone with ongoing responsibility for carrying out a

governmental task.

The Court should not permit purported practical

concerns over proper implementation of Appointments

Clause requirements to dissuade it from adhering to

the original meaning of the Constitution. As the Court

explained in response to appointment-related partiality

concerns in Buckley, “fears, however, rational, do not by

themselves warrant a distortion of the Framers’ work.”

424 U.S. at 134.

ARGUMENT

I.

This Court’s decisions confirm that whether SEC

ALJs are “Officers of the United States” must be

evaluated in accordance with the phrase’s original

public meaning.

The Court has held that, when evaluating which

government officials are “Officers of the United States”

subject to the Appointments Clause, the phrase must be

interpreted in accordance with the historical meaning

of its terms. See Buckley, 424 U.S. at 128-31, 138-39

(emphasizing the “express language” of the Clause).

Appointments Clause requirements are “well-established

constitutional restrictions stemming from the separation

of powers,” id. at 132, and are “critical to preserving

liberty,” Bowsher v. Synar, 478 U.S. 714, 730 (1986).

An inquiry into the scope of those requirements thus

“of necessity touches upon the fundamental principles

of the Government established by the Framers of the

Constitution.” Buckley, 424 U.S. at 120.

5

To maintain the key “structural protection” of

separated powers, the Framers provided each branch

with “‘the necessary constitutional means, and personal

motives, to resist encroachments’” by the other branches.

Free Enterprise Fund v. Public Company Accounting

Oversight Board, 561 U.S. 477, 501 (2010) (quoting The

Federalist No. 51, at 268 (J. Madison) (George W. Carey

& James McClellan eds., 2001)). One important tool the

Executive retained to counter legislative encroachment

was “‘the power of appointing, overseeing, and controlling

those who execute the laws.’” Free Enterprise Fund,

561 U.S. at 501 (quoting 1 Annals of Cong. 463 (1789) (J.

Madison)).

Due to the essential limitations that the Appointments

Clause imposes, this Court’s leading modern opinion on

the scope of its requirements repeatedly returned to

the Clause’s text and emphasized the “importance of its

language.” Buckley, 424 U.S. at 124-25. In particular, when

considering whether Federal Election Commissioners are

“Officers of the United States,” this Court relied on its

“reading of the language of the Appointments Clause”

as well as interpretive information gleaned from the

drafting history of the Clause, the Federalist Papers, and

Constitutional Convention debate records. Id. at 128-31.

Because the Article II phrase “Officers of the United

States” is a “term intended to have substantive meaning,”

the Court pointedly declined “to read the Appointments

Clause contrary to its plain language.” See id. at 125-27.

Substantial historical evidence derived from thousands

of eighteenth century references to the terms “officer,”

“office,” and “officers of the United States” suggests

that the original meaning of the Appointments Clause

encompassed every federal civil official with “ongoing

6

responsibility to perform a statutory duty.” Officers,

supra, at 454. The SEC ALJs clearly qualify as Article

II officers under this standard. See Jennifer L. Mascott,

Constitutionally Conforming Agency Adjudication, 2

Loy. U. Chi. J. Reg. Compliance 22, 27 (2017) (published

online). The SEC has statutory authority to delegate

Commission functions to its ALJs and has done so via

regulation. 15 U.S.C. § 78d-1(a); 17 C.F.R. §§ 200.14,

200.30-9. Therefore, the SEC’s ALJs are “Officers of

the United States” under the original meaning of the

Appointments Clause.

Although this “statutory duty” standard differs

substantially from Appointments Clause interpretations

in lower courts such as the D.C. Circuit, it is consistent

with the outcome of most of this Court’s cases interpreting

the phrase “Officers of the United States.” See Officers,

supra, at 463-65 & n.99. Further, this Court previously

has articulated a standard for Article II “officer” status

that embraces the concept of duty. See Auffmordt, 137

U.S. at 326-27 (concluding that an appraiser was not an

“officer” because his position lacked “tenure, duration,

continuing emolument, or continuous duties, and he act[ed]

only occasionally and temporarily”); Germaine, 99 U.S. at

511-12 (same, regarding a surgeon with “duties” that were

“occasional and intermittent”); Hartwell, 73 U.S. at 393

(“An office is a public station, or employment, conferred

by the appointment of government. The term embraces

the ideas of tenure, duration, emolument, and duties.”).

Cf. Free Enterprise Fund, 561 U.S. at 506 & n.9 (citing

Germaine in discussing the meaning of “Officers of the

United States”). 2

2. In Free Enterprise Fund, the Court suggests that

Germaine’s characterization of “nine-tenths of the persons

7

A determination that the Appointments Clause

embraces a “statutory duty” standard also would be

consistent with this Court’s recent decisions in Buckley

and Freytag. To be sure, lower courts such as the D.C.

Circuit have interpreted Buckley and Freytag as imposing

a multi-factor set of minimal threshold requirements for

Article II “officer” status. See, e.g., Landry, 204 F.3d

at 1133-34 (suggesting, for example, that “‘significant

discretion’” is “rather a magic phrase under the Buckley

test”); Raymond J. Lucia Cos. v. SEC, 832 F.3d 277, 28485 (D.C. Cir. 2016). But the D.C. Circuit has overread,

and wrongly fossilized, this Court’s Appointments Clause

decisions.

In both Buckley and Freytag, the Court evaluated

positions that it fairly easily concluded were above the

minimal officer-versus-employee threshold. See Buckley,

424 U.S. at 137-38 (stating that “[t]he Commission’s

enforcement power … is authority that cannot possibly be

regarded as merely in aid of the legislative function of the

Congress”—work that the Court had said a non-Article II

officer could perform); Freytag, 501 U.S. at 881-82 (noting

that the two courts to consider the question had found the

special trial judges to be officers and briefly explaining

the Court’s agreement with this conclusion). Consequently,

this Court did not need to, and did not, articulate a detailed

bright-line standard for moving from employee to officer

rendering service to the government” as non-officers may help to

justify the non-officer treatment of many modern civil servants.

See 561 U.S. 506 & n.9 (internal quotation omitted). But this Free

Enterprise Fund discussion misconstrues Germaine, which was

not a case about permanent government employees but rather

surgeons hired for services—similar to government contractors.

See 99 U.S. at 509, 511-12.

8

status as a rule of decision for every future case. Rather,

the Court noted in more general terms the significance

in the level of authority held by the specific officials under

review in those cases.

In the most commonly cited portion of Buckley, the

Court stated that the “fair import” of the phrase “Officers

of the United States” is that it encompasses “any appointee

exercising significant authority pursuant to the laws of

the United States.” 424 U.S. at 126. But the Court also

explained that from the earliest constitutional drafts, the

phrase “Officers of the United States” had “embrace[d]

all appointed officials exercising responsibility under the

public laws of the Nation”—a definition bearing striking

resemblance to the Founding-era meaning of “officer”

as one with “ongoing responsibility for a statutory

duty.” Compare Buckley, 424 U.S. at 131, with Officers,

supra, at 506-07. Further, Buckley left “significant

authority” sufficiently undefined that it may be construed

as consistent with the Founding-era statutory duty

standard. Cf. Officers of the U.S. Within the Meaning of the

Appointments Clause, 31 Op. O.L.C. 73, 86 (2007) (“The

Court’s reference in Buckley (and subsequent cases) to

the exercise of ‘significant authority’ does vary somewhat

from the well-established historical formulation, but

nothing in the Court’s opinion suggests any intention to

break with the longstanding understanding of a public

office or fashion a new term of art.”). In exercising power

over private parties, the federal government inherently

wields so much authority that anyone carrying out a

governmental duty arguably exercises some measure of

“significant authority.” See Officers, supra, at 464 & n.106.

9

In evaluating the “officer” status of the Federal

Election Commissioners before it, Buckley highlighted

that the Commissioners carried out particularly

“significant governmental dut[ies]” like rulemaking. 424

U.S. at 140-41. But the Court did not specify that the

Commissioners’ duties necessarily had to meet that level

of significance for “officer” status—just that the duties

in fact were so significant that “Officers of the United

States” must perform them. See id. Toward the conclusion

of the opinion, the Court observed that governmental

tasks “of an investigative and informative nature” may

be performed without an Article II appointment. See

id. at 137. But the Court suggested these governmental

tasks were suitable for non-Article II officers because

they involved serving as an aid to Congress, not as an

executive officer of the United States. See Free Enterprise

Fund, 561 U.S. at 500 n.5 (explaining that this portion

of the Buckley opinion “describ[ed] legislative positions

that are not really offices at all (at least not under Article

II)”); see also Buckley, 424 U.S. at 137-38 (describing the

non-officer tasks as “falling in the same general category

as those powers which Congress might delegate to one of

its own committees”).

Then in Freytag, when considering whether the Tax

Court’s special trial judges are “Officers of the United

States,” the Court began by observing that the only

two courts to previously address the issue held that the

officials were Article II “officers.” See 501 U.S. at 881.

The Court then briefly conducted its own analysis of the

special trial judges’ Article II status. See id. at 881-82.

The Court noted that the officials’ duties and salary were

provided for by statute, in part to distinguish them from

non-officers hired for services “on a temporary, episodic

10

basis.” Id. at 881. The Court took note that the special

trial judges had significant duties and discretion and

recounted their “more than ministerial tasks” like taking

testimony, conducting trials, and enforcing compliance

with discovery orders. See id. at 881-82; see also id. at

882 (explaining that one alternative basis for the special

trial judges’ “officer” status was their authority to reach

final decisions in a certain class of cases). But the Court

did not explicitly state that these tasks are a mandatory

prerequisite for qualifying as an Article II “officer.” See id.

Rather, the Court primarily seems to have been describing

the responsibilities that the officials before it happened

to have and explaining that such tasks must be carried

out by “officers.” In other words, Freytag can be read as

establishing sufficient, but not necessary, conditions for

“officer” status.

Whether the Court agrees, or instead interprets

its precedent to have established mandatory minimum

factors for Article II officer status, the specific question

whether ALJs are “Officers of the United States” is

one of first impression. See Free Enterprise Fund, 561

U.S. at 507 n.10 (noting the dispute). In addressing that

question and the potential reach of the Clause to this

class of agency adjudicators, the original meaning of the

Clause should at a minimum inform the Court’s analysis.

See, e.g., NLRB v. Noel Canning, 134 S. Ct. 2550, 256061 (2014) (considering evidence from the Constitutional

Convention records and early dictionaries relevant to

analysis of the Recess Appointments Clause). Moreover,

the Court may want to consider whether articulating a

clearer standard than “significant authority” would better

serve the lower courts and Congress, which in establishing

new offices “by Law” must evaluate which positions

11

are subject to Article II. Adoption of the historical

standard of “officer” as one responsible for an ongoing

statutory duty would provide much needed clarity, ensure

consistency with the Constitution’s text, and further the

democratic accountability and transparency purposes of

Appointments Clause mandates.

II. Substantial evidence proves that the original

public meaning of “Officers of the United States”

encompassed any federal civil official with ongoing

responsibility to perform a statutory duty.

The Appointments Clause requires that all “Officers

of the United States” be appointed by the President with

Senate advice and consent, the President alone, “Heads

of Departments,” or “Courts of Law.” U.S. Const. art.

II, § 2, cl. 2. By involving a limited set of actors in officer

selection, Article II helps to ensure that the public knows

the identity of the official responsible for the appointment.

See Hanah Matchis Volokh, The Two Appointments

Clauses: Statutory Qualifications for Federal Officers,

10 U. Pa. J. Const. L. 745, 766 (2008); Freytag, 501 U.S.

at 883 (“The ‘manipulation of official appointments’ had

long been one of the American revolutionary generation’s

greatest grievances against executive power …. Those

who framed our Constitution addressed these concerns

by carefully husbanding the appointment power to limit

its diffusion.”).

Concerns about transparency, accountability, and

excellence in government service existed from the

time of the Founding. See Free Enterprise Fund, 561

U.S. at 497-98 (“Without a clear and effective chain of

command, the public cannot ‘determine on whom the

12

blame or the punishment of a pernicious measure …

ought really to fall.’” (quoting The Federalist No. 70, at

366 (A. Hamilton))). The Framers selected the mechanism

of the Appointments Clause to safeguard these core

values—believing that transparency in the appointment

process would hold the democratically elected executive

and his department heads accountable for selecting wellqualified officers. See, e.g., Freytag, 501 U.S. at 884 (“The

Framers understood … that by limiting the appointment

power, they could ensure that those who wielded it

were accountable to political force and the will of the

people.”); The Federalist No. 76, at 392-93 (A. Hamilton)

(concluding that singular responsibility in appointments

“will naturally beget a livelier sense of duty, and a more

exact regard to reputation”). Proper interpretation of

the scope of the phrase “Officers of the United States”

is a fundamental component of correctly, and completely,

implementing the Appointments Clause’s democratic

accountability protections.

Substantial eighteenth century evidence indicates

that the original public meaning of the phrase was broad,

encompassing every federal civil official “with ongoing

responsibility for a federal statutory duty.” Officers, supra,

at 465. An official’s governmental duty did not have to rise

to any minimal level of significance for the official to come

within Appointments Clause requirements. See id. at 454.

Nor did the term “officer” relate to an official’s power to

exercise discretion or engage in final decision-making—

in contrast to modern lower-court opinions making such

factors mandatory elements of Article II officer status.

See, e.g., Tucker v. C.I.R., 676 F.3d 1129, 1133-35 (D.C.

Cir. 2012). Officials with duties as nondiscretionary as

recordkeeping were considered “officers.” See Officers,

supra, at 450.

13

Moreover, in contrast to the modern classification

of federal officials as either employees or officers, see

Buckley, 424 U.S. at 126 n.162, the Founders more likely

would have thought of people below the level of officer as

“attendants” or “servants.” See, e.g., The Federal Farmer,

Anti-Federalist No. 41-43 (Part II): The Quantity of

Power the Union Must Possess is One Thing; The Mode

of Exercising the Powers Given is Quite a Different

Consideration (1788) (hereinafter Federal Farmer XVIII),

in The Anti-Federalist Papers, at 156, 162 (Bill Bailey

ed., n.d.), https:/perma.cc/XM7Q-XV4B (describing the

categories of people who would work in the nation’s capital

under the new federal government as the government’s

“own members, officers, and servants”); see also Officers,

supra, at 503. The Oxford English Dictionary’s first

recorded use of the term “employee” is dated 1814—more

than 25 years after the ratification of the Constitution. See

Oxford Eng. Dictionary, https://perma.cc/F9ZK-XUPF

(archived Nov. 13, 2017).

A recent article by amicus in the Stanford Law

Review uses two distinctive tools to uncover the original

public meaning of the phrase “Officers of the United

States”: (i) corpus linguistics-style analysis of Foundingera documents and (ii) examination of appointment

practices during the First Congress. Corpus linguistics

interpretive analysis involves the adaptation of empirically

based big-data techniques to statutory and constitutional

interpretation. See, e.g., Stephen C. Mouritsen, Hard Cases

and Hard Data: Assessing Corpus Linguistics as an

Empirical Path to Plain Meaning, 13 Colum. Sci. & Tech.

L. Rev. 156, 190 (2011); People v. Harris, 885 N.W.2d 832,

838-39 (Mich. 2016) (using corpus linguistics techniques

in statutory interpretation); see also Officers, supra, at

14

466-70, 494-96 (explaining the article’s methodology). One

key insight from the field is that examination of every

use of a term in a wide variety of documents can yield a

more complete, impartial understanding of a word than

resorting to cherry-picked Founding-era statements and

definitions. See generally James C. Phillips et al., Corpus

Linguistics & Original Public Meaning: A New Tool to

Make Originalism More Empirical, 126 Yale L.J.F. 21

(2016).

To uncover the original public meaning of the term

“officer,” the Stanford Law Review study first implemented

more traditional interpretive techniques like examining

the constitutional text, consulting Founding-era ordinarylanguage and legal dictionary entries on “officers,” and

analyzing the constitutional drafting history. See Officers,

supra, at 470-74, 484-90. Then, incorporating insights

from corpus linguistics, the study examined the context

of every use of the terms “office(s)” and “officer(s)” in

Nathan Bailey’s eighteenth century ordinary-language

dictionary, Max Farrand’s records of the constitutional

drafting debates, the Federalist Papers, and the Borden

collection of Anti-Federalist essays. See id. at 490-94,

498-503. The study also examined the context of every

use of the full phrase “Officers of the United States” in

Jonathan Elliot’s records of the state ratification debates,

the Journals of the Continental Congress, and a database

of early American newspaper records. See id. at 475-79,

494-98.

This analysis suggested first that “Officers of the

United States” was not a term of art setting aside a

particularly important class of officers. See id. at 469.

Rather, the modifier “of the United States” just denotes

15

that the Clause applies to federal, and not state, officers.

As a result, determination of the meaning of the standalone

term “officer” is directly relevant to identifying the class

of federal officials who constitute “Officers of the United

States.” Evidence of the eighteenth century meaning of

“officer” suggests that it encompassed every official “with

ongoing responsibility to perform a statutory duty.” See

id. at 454. Early federal officials carrying out statutory

duties were considered “officers” even where the statute

creating the duty did not specify which officer had to

perform it. See id at 507-08, 512-15 (explaining that clerks

who kept customs-related records required by statute

were “officers,” in contrast to non-“officer” messengers

who engaged only in non-statutory tasks like “‘packing

despatches’” and “‘preserving the newspapers’”).

A.

The Constitutional Text

Even though the Constitution includes no definition of

“Officers of the United States,” the President’s authority

to nominate judges, certain diplomatic officers, and “all

other Officers of the United States” suggests the phrase

encompasses a larger group than just the diplomats and

judges—further confirmed by the Clause’s subsequent

reference to a class of “inferior Officers.” See U.S. Const.

art II, § 2, cl. 2; Officers, supra, at 470. The reference

to “all other” indicates, too, that the Appointments

Clause provides the exclusive mechanism for appointing

“Officers of the United States” whose appointments

are not specifically provided for in other constitutional

provisions. See U.S. Const. art. II, § 2, cl. 2 (providing

that the President “shall nominate … all other Officers

of the United States, whose Appointments are not herein

otherwise provided for, and which shall be established

by Law”).

16

The Constitution’s other references to “Officers of

the United States” merely describe consequences that

derive from officer status—such as the possibility for

impeachment and the requirement of a commissioning.

U.S. Const. art. II, §§ 3, 4; Officers, supra, at 470.

The Constitution uses some formulation of the terms

“officer(s)” and “office(s)” thirty additional times. See

Officers, supra, at 470 n.139 (excluding a reference to

“Post Offices”). Most of these references do not explicitly

indicate what level of authority constitutional officers hold.

See id. The one potential exception is the Necessary and

Proper Clause’s authorization for Congress to “make all

Laws which shall be necessary and proper for carrying

into Execution the foregoing Powers, and all other Powers

vested by this Constitution in the Government of the

United States, or in any Department or Officer thereof.”

U.S. Const. art. I, § 8, cl. 18. This clause could be read as

permitting the exercise of federal power to reside only

in the federal government itself or its departments or

officers—not a lower-level non-officer class. See Officers,

supra, at 470-71 n.139.

B. “Officers of the United States” is not a term of

art.

Not only does the constitutional text itself arguably

suggest that a broad group of officials exercising federal

power is included with the meaning of “officers,” the text—

in conjunction with significant external Founding-era

evidence—indicates that “Officers of the United States”

was not a new term of art setting aside an especially

important class of government officials. See Officers,

supra, at 471-83. Rather, like its use in at least three

other constitutional provisions, the modifier “of the United

17

States” seems just to have indicated that the referenced

officers are federal, rather than state, officials.

As an initial observation, the first reference to

executive “officer[s]” in Article II uses the standalone

word “officer,” not “officer of the United States.” See

U.S. Const. art. II, § 2, cl. 1 (authorizing the President to

“require the Opinion, in writing, of the principal Officer

in each of the executive Departments …”). If the phrase

“Officers of the United States” created a new special class,

presumably Article II’s initial reference to officers in that

class would include the complete term of art.

The Appointments Clause drafting history further

suggests that the modifying phrase “of the United States”

just connotes a broad class of federal officers spanning

multiple branches of the government, versus purely

executive officers or state-level officials. The earliest

drafts of the Constitution suggested that the President

had authority to appoint only executive officers; at that

stage in the drafting process the legislature retained

authority to appoint non-executive officers like judges.

Compare 1 The Records of the Federal Convention of

1787, at 21-22, 62-63 (Max Farrand ed., 1911) (hereinafter

Farrand’s Records), with 2 Farrand’s Records, supra,

at 43-44; see Officers, supra, at 472-74. The President

acquired the authority to appoint non-executive “Judges

of the supreme Court” and ambassadors at the same nearfinal stage of the drafting process that the Appointments

Clause first referenced the full phrase “Officers of the

United States.” See 2 Farrand’s Records, supra, at 49396; Officers, supra, at 472-73 & nn.151-154.

18

Several other constitutional uses of the phrase “of the

United States” similarly provide a descriptive reference

to the federal level of government versus the state level.

Officers, supra, at 471, 473-74 & nn.141, 156. For example,

Article II, Section 2, Clause 1 establishes the President

as “Commander in Chief of the Army and Navy of the

United States, and of the Militia of the several States.”

U.S. Const. art. II, § 2, cl.1 (emphasis added). The Oaths

Clause requires “executive and judicial Officers, both of

the United States and of the several States, [to] be bound

by Oath or Affirmation, to support this Constitution.” Id.

art. VI, cl. 3 (emphasis added). And Article IV, Section 3,

Clause 2 instructs that “nothing in this Constitution shall

be so construed as to Prejudice any Claims of the United

States, or of any particular State.” Id. art. IV, § 3, cl. 2

(emphasis added). Each of these Clauses’ references to “of

the United States” juxtaposed with a parallel reference to

state-level government underscores the phrase’s use as a

modifier setting aside a federal-level category.

The earliest uses of the full phrase “Officers of the

United States” confirm this analysis. Examination of

every use of the phrase in the Journals of the Continental

Congress and a database of early newspaper records

showed the phrase arising as early as 1778 in descriptions

of continental military officers. See Officers, supra, at

475-79. Many of these uses of the phrase do not provide

contextual clarification of its meaning, but two indicate

that the phrase is referencing all continental, i.e., nationalversus state-level, officers. For example, a 1782 War Office

Report suggested that the government should not pay a

military officer “as an officer of the United States” during

the time he served instead as a state military captain.

See War Office, Report (1782), in 23 Journals of the

19

Continental Congress 1774-1789, at 626 (Gaillard Hunt ed.,

1914). And the Minutes from a February 1778 session of

the Continental Congress described continental-level civil

and military officers as “officer[s] of the United States.”

Minutes of Feb. 9, 1778, in 10 Journals of the Continental

Congress, supra, at 138-40 (Worthington Chauncey Ford

ed., 1908); see also generally Officers, supra, at 475-79

(providing more in-depth explanation of evidence from the

Journals of the Continental Congress and Series I of the

Readex Early American Newspapers database containing

340,000 newspaper issues from 1690 to 1876).

In addition, on a number of occasions the Founders

used a variety of distinct phrases to describe Article

II officers—suggesting that the descriptor “Officers of

the United States” was not considered a precise term of

art. See Officers, supra, at 474. For example, Alexander

Hamilton in Federalist No. 77 discussed removal and

appointment procedures for “officers of the government,”

the Anti-Federalist essayist writing as “The Federal

Farmer” described Article II officers as “officers of the

union,” and Representative Roger Sherman used the

phrases “officers of the United States” and “officers

of the Federal Government” interchangeably during a

1790 congressional debate on militia legislation. See The

Federalist No. 77, at 396; The Federal Farmer, AntiFederalist No. 76-77: An Anti-Federalist View of the

Appointing Power Under the Constitution (1788), in The

Anti-Federalist Papers, supra, at 293, 294 (Bill Bailey

ed., n.d.), https://perma.cc/XM7Q-XV4B; 14 Documentary

History of the First Federal Congress of the United

States of America, 4 March 1789-3 March 1791, at 120-21

(William Charles diGiacomantonio et al. eds., 1995).

20

Also, examination of every use of the phrase “officers

of the United States” in the drafting and ratification

debates, the Federalist Papers, and the Borden collection

of Anti-Federalist essays revealed no direct definition

of the precise scope of the phrase. See Officers, supra,

at 468 & n.131, 474-75. But see id. at 475 & n.164 (noting

one contradictory use of the phrase during the first

congressional debates). This may be because the term

“officer” had a “common and known acceptation” at the

time. See 4 The Debates in the Several State Conventions,

on the Adoption of the Federal Constitution 454-55

(Jonathan Elliot ed., Washington, Jonathan Elliot 2d

ed. 1836) (hereinafter Elliot’s Debates) (recording an

1806 congressional debate statement); see also 8 Annals

of Cong. 2294, 2306 (1799) (recording Rep. Harper’s

reference to the “universally received signification of the

term ‘office’”).

C.

Founding-era dictionaries and commentaries

Because the phrase “Officers of the United States” is

not a term of art for especially important officials, it makes

sense to turn to the late eighteenth century meaning of

the standalone term “officer” to determine the scope of

federal officials under the Appointments Clause.

The majority of the ten Founding-era dictionaries

that amicus surveyed defined a civil “officer” to be

a “man employed by the public(k)” and described an

“office” as a “public employment” or a “public charge.”

See, e.g., 2 Samuel Johnson, A Dictionary of the English

Language (London, J.F. & C. Rivington 6th ed. 1785)

(“Officer”: “1. A man employed by the publick”; “2. A

commander in the army;” “3. One who has the power

21

of apprehending criminals, or man accountable to the

law”); see also Officers, supra, at 486-88 (cataloguing the

dictionary definitions). The only one of the ten Foundingera dictionaries with a materially different definition

explained that the word “officer” “in general signifies any

person that has a peculiar post or business appointed him.”

See Thomas Dyche & William Pardon, A New General

English Dictionary (London, Toplis & Bunney 18th

ed. 1781); Officers, supra, at 486 & n.226. Chief Justice

Marshall recounted a similar definition several decades

later in an 1823 circuit court opinion, explaining: “An

office is defined to be ‘a public charge or employment,’

and he who performs the duties of the office, is an officer.

If employed on the part of the United States, he is an

officer of the United States.” United States v. Maurice, 26

F. Cas. 1211, 1214 (C.C.D. Va. 1823) (No. 15,747); see also

Noah Webster, An American Dictionary of the English

Language (New York, S. Converse 1828) (“officer”: a

“person commissioned or authorized to perform any

public duty”).

The ordinary-language dictionary definitions and

Chief Justice Marshall’s explanation are consistent with

eighteenth century legal dictionary definitions of “officer,”

which similarly incorporate the concept of a public charge

or duty. See Officers, supra, at 488-90. For example,

Matthew Bacon states that “the Word Officium principally

implies a Duty, and ... the Charge of such Duty.” 3 Matthew

Bacon, A New Abridgment of the Law *718-19 (London, C.

Bathurst 4th ed. 1778). He then observes that officer status

is not dependent on the significance or level of importance

of one’s duty: An officer “is not the less a Public Officer,

where his Authority is confined to narrow Limits; because

it is the Duty of his Office, and the Nature of that Duty,

22

which makes him a Public Officer, and not the Extent of his

Authority.” Id. at *719. Further underscoring that one’s

eighteenth century status as an “officer” was unrelated to

discretion or final decisionmaking, Bacon also describes

a class of “Ministerial Offices.” See id. This group

included positions like the “Office of Register of Policies

of Assurance,” which “required only the Skill of Writing

after a Copy,” and recordkeepers like chirographers who

kept records of court-imposed fines. See id. at *734; Dyche

& Pardon, supra (defining “Chirographer”).

The bestselling eighteenth century dictionary by

Nathan Bailey used the words “officer(s)” and “office(s)”

more than 500 times to define other terms. See Officers,

supra, at 485 (discussing the “officer” and “office”

references); Gregory E. Maggs, A Concise Guide to Using

Dictionaries from the Founding Era to Determine the

Original Meaning of the Constitution, 82 Geo. Wash. L.

Rev. 358, 361, 367-81 (2014) (discussing Bailey’s dictionary).

Treating Bailey’s dictionary as a self-contained corpus,

amicus examined the context of each of those references.

See Officers, supra, at 485. The dictionary characterized

as “officers” numerous assistants, recordkeepers, and

other public officials engaged in menial tasks. See id. at

490; see generally N. Bailey, An Universal Etymological

English Dictionary (London, J. Murray 25th ed. 1783).

For example, “Messengers [of the Exchequer]” were

“officers belonging to that Court, who attend the Lord

Treasurer, and carry his letters and orders.” Bailey,

supra, (Messengers). A sword-bearer was “an officer

who carries the sword of state before a magistrate.” See

id. (Sword). Satellites were “Life-Guards, or Officers

attending upon a Prince.” Id. (Satellites). A “Swabber” was

23

“an inferior officer on board a ship of war, whose office it

is to take care that the ship be kept clean.” Id. (Swabber).

A “sewer” was “an officer who comes in before the meat

for a King or Nobleman, and places it upon the table.” Id.

(Sewer). A “Gauger” was “an officer employed in gaging,”

or measuring the contents of a vessel. Id. (Gager/Gauger;

Gage/Gauge). A Chafe-Wax was “an Officer belonging to

the Lord Chancellor, who fits the wax for [the] sealing of

writs.” Id. (Chafe). An “Assay-Master” was “an officer of

the Mint, who weighs the bullion, and takes care that it

be according to the national standard.” Id. (Assay). And

a butler was “an officer that provides the king’s wines.”

Id. (Botiler/Butler). See also Officers, supra, at 490-94

(detailing a lengthier list).

The dictionary’s characterization of these officials

as “officers” would have influenced the late eighteenth

century American understanding of the term even though

the new constitutional system embraced few of these

specific positions. See Officers, supra, at 492. But see Act

of Aug. 4, 1790, ch. 5, § 6, 1 Stat. 145, 154 (1790) (repealed

1799) (providing for gaugers); Act of Apr. 2, 1792, ch. 16,

§ 1, 1 Stat. 246, 246 (1792) (providing for an Assayer). The

Framers intentionally rejected the British approach for

creating offices and appointing officers, but no evidence

suggests the Constitution imported an altered meaning of

the word “officer” itself. See Officers, supra, at 493-94. One

complaint underlying the colonists’ war for independence

was that the King had “erected a multitude of New

Offices, and sent hither swarms of Officers to harrass

our people.” The Declaration of Independence para. 12

(U.S. 1776). Under British practice the King had power

to both create and fill public offices. See The Federalist

No. 69, at 360-61 (A. Hamilton); Officers, supra, at 492-

24

93 (further describing British practice). The Framers

rejected this potential for abuse, cleanly separating the

power to create offices from the power to appoint officers

to fill them. See Mascott, Constitutionally Conforming

Agency Adjudication, supra, at 28; Volokh, supra, at 769.

The Court should not acquiesce in resisting this safeguard

by ratifying the lower courts’ expansive creation of a

non-officer “employee” class free from separation-ofpowers limits that preserve accountable and transparent

governance.

D.

Contextual uses of “Officer” and “Officers of

the United States” in Founding-era sources

debating the Constitution

The Federalist Papers, the Borden collection of

Anti-Federalist essays, and the drafting debates contain

hundreds of references to the terms “officer(s)” and

“office(s).” See Officers, supra, at 468 n.131. Examining

their context, as well as every reference to “Officers of

the United States” in the ratification debates, strongly

suggests that “officer” had a very broad scope in the

late eighteenth century. See Officers, supra, at 494-504

(detailing this analysis and explaining any potential

counter-examples). The Framers and ratifiers believed

that thousands of officials would qualify as “officers.” In

fact, their statements do not appear to account for any

class of ongoing non-officer positions other than a class of

“servants” and “attendants.” See Officers, supra, at 450,

503; see also, e.g., Federal Farmer XVIII, supra, in The

Anti-Federalist Papers, supra, at 162 (referring to the

parties who would work in the capital city as the federal

government’s “own members, officers, and servants”).

25

Following are several illustrative examples. During

the North Carolina ratification debate, Mr. Maclaine

described “inferior officers of the United States” as

“petty officers” who maintained “trifling” duties. 4

Elliot’s Debates, supra, at 43-44; see also Officers, supra,

at 496-97. Mr. Taylor observed that if the Constitution

were adopted, “we shall have a large number of officers

in North Carolina under the appointment of Congress”

because, for example, there would be “a great number of

tax-gatherers.” See 4 Elliot’s Debates, supra, at 36. During

the drafting debates, Gouverneur Morris observed that

the executive would have the duty to appoint “ministeral

officers of the administration of public affairs.” 2 Farrand’s

Records, supra, at 52. Later in the drafting process,

James Wilson observed that the appointing power would

encompass even “tide-waiter[s],” a position that Samuel

Johnson’s dictionary described as an “officer who watches

the landing of goods at the customhouse.” See Johnson,

supra (Tidewaiter).

The Anti-Federalist essayist known as the “Federal

Farmer” expressed concern that federal taxation powers

would lead to “many thousand officers solely created by,

and dependent upon the union.” The Federal Farmer, AntiFederalist No. 41-43 (Part I): The Quantity of Power the

Union Must Possess Is One Thing; The Mode of Exercising

the Powers Given is Quite a Different Consideration (1788),

in The Anti-Federalist Papers, supra, at 148, 149. James

Madison disagreed and believed the federal government

would have relatively few officers. See Officers, supra,

at 501-02 (discussing these various positions). But this is

because Madison believed that the federal government’s

“few and defined” powers would require it to have only one

officer for every “thirty or forty, or even more, officers” in

26

the states, which had “numerous and indefinite” powers.

The Federalist No. 45, at 241. In particular, Madison

concluded that state officers would exceed federal officers

“beyond all proportion, both in number and influence,” see

id. at 240, because he believed that state officers would

collect taxes on behalf of the federal government if it ever

imposed a federal internal revenue tax, see id. at 241.

Madison clearly believed, however, that the term

“officer” itself had a broad scope, embracing many

officials. See Officers, supra, at 502. In describing state

and local officers, he referred to “the justices of peace,

officers of militia, ministerial officers of justice, with

all the county, corporation, and town officers … having

particular acquaintance with every class and circle of

people.” See The Federalist No. 45, at 240. Tellingly,

despite the strong disagreements between Federalists and

Anti-Federalists over whether the Constitution permitted

too strong a concentration of centralized power, writers

on both sides shared the same understanding of the broad

meaning of the term “officer.”

This understanding of “officer” also extended back

to the time of the Continental Congress. See generally

Officers, supra, at 537-45. For example, a 1778 resolution

regarding military hospitals characterized “apothecaries,

mates, stewards, [and] matrons” as “officers.” See

Minutes of Feb. 6, 1778, in 10 Journals of the Continental

Congress, supra, at 127, 130 (Worthington Chauncey

Ford ed., 1908). These individuals had nondiscretionary

duties far below the level that contemporary courts

have considered mandatory for “officer” status. A 1775

Continental Congress committee report indicated that the

role of mates and apothecaries was to “visit and attend

27

the sick.” See Minutes of July 27, 1775, in 2 Journals of

the Continental Congress, supra, at 210. The 1775 report

also characterized clerks and storekeepers as “officers,”

observing that storekeepers were “[t]o receive and

deliver the bedding and other necessaries by order of the

[hospital] director” and clerks were “[t]o keep accounts

for the director and store keepers.” See id. at 210-11

(discussing “the choice of officers”). But see Officers,

supra, at 539-40, 542 & nn.589, 599 (explaining that

the actual appointment methods used to fill a number of

these positions appeared to be in some tension with the

description of them as “office[s]”).

Several Continental Congress-Era handwritten lists

of “officers” on file at the National Archives also suggest

that officials with relatively insignificant responsibilities

were considered officers at that time. See Officers, supra,

at 540-41. A 1783 document titled “A List of the Officers”

listed positions as low-level as clerk and clerk/interpreter.

See A List of the Officers in the Department of Foreign

Affairs and Their Appointments (1783), microformed on

Microcopy No. 247, Roll 22 (Nat’l Archives & Records

Serv.). A 1775-76 document titled “Officers appointed”

listed an engineer, a storekeeper, and a surgeon along

with colonels, majors, and brigadier generals. See Officers

Appointed (n.d.), microformed on Microcopy No. 247,

Roll 195, Item No. 178 (Nat’l Archives & Records Serv.).

The reference to just “officers” in the titles of these two

records appears deliberate as several other archives

records instead used the label “officers & c.” when listing

lower-level non-officers like messengers. See Officers,

supra, at 540-41; see also id. at 513-15 (explaining that

Founding-era messengers and office-keepers likely were

not considered “officers” because their responsibilities

did not include any governmental tasks imposed by law).

28

E. Early appointment practices

Early appointment practices during the First

Congress confirm the understanding of Article II “officers”

as officials responsible for an ongoing statutory duty.

The only categories of civil executive officials in ongoing

positions cleanly excluded from Article II appointment

practices were “(i) positions more like those of ‘servants’

or ‘attendants’ and (ii) ‘deputies’ acting as agents in place

of an officer, where the officer was subject to personal legal

liability for the deputy’s actions.” 3 Officers, supra, at 450.

Clerks maintaining legislatively required records

were appointed by department heads in conformity with

Article II. See, e.g., Act of Sept. 11, 1789, § 2, 1 Stat.

67, 68 (authorizing the heads of the three executive

departments to appoint clerks); see also Officers, supra,

at 508, 511-15. Officials as varied as internal revenue

inspectors and supervisors, lighthouse keepers and

superintendents, ship masters and first, second, and third

mates on revenue cutters (although not “mariners” and

“boys”), customs collectors, naval officers, and surveyors

also were selected in compliance with the Appointments

Clause. See Officers, supra, at 507-37 (further discussing

the First Congress’s appointment practices). But see id.

(noting possible counter-examples like certain officials in

3. These deputy marshals, collectors, surveyors, and naval

officers constituted a relatively small category who carried out the

duties of their primary officer as his representative. Consequently,

they were not considered officers in their own right. See id. at 509,

515-20. Other early-level positions bearing the moniker “deputy”

were appointed in compliance with Article II where they did not

have the same agent-principal liability relationship with a higherlevel officer. See id. at 520-22 (discussing, among other positions,

deputy apothecary generals charged with safekeeping medical

equipment and deputy postmasters).

29

the Territories, id. at 528 n.508, and the National Bank,

id. at 531). Contrary to the suggestion of some modern

judicial opinions that Congress can determine “officer”

status based on whether it chooses to directly tie statutory

duties to a particular official, see, e.g., Landry, 204 F.3d

at 1133, the original meaning of “officer” encompassed

every official who happened to carry out a statutory

task—whether Congress had explicitly assigned it to

them or not. For example, clerks who kept statutory

records were considered “officers” even where statutes

just generally required executive recordkeeping without

assigning clerks to the job. See Officers, supra, at 507-08,

513-15. Analogously, today if Congress were to authorize

an agency to promulgate rules, every official participating

in that task would be an “officer” under the statutory duty

standard.

In contrast, messengers and office-keepers did not

carry out legislative tasks authorized or required by

Congress, so they were not “officers” and Congress

consequently did not need to establish their positions

“by Law.” See U.S. Const. art. II, § 2 (requiring that

Congress establish the appointments for officers “by

Law”). Individuals in these positions served more as

assistants and carried out nonstatutorily required

tasks like “arranging and preserving the newspapers,

and the printed copies of the laws and documents of

Congress,” as well as “putting up and packing despatches

and other papers for transmission by mail.” See Louis

McLane, The Following Arrangement of the Gentlemen

Employed, the Distribution of Their Duties, and Rules

for Their Performance, Are Directed to be Observed in

the Department of State, from and After the 30th June,

1833 (1833), microformed on M800, Roll 1, Vol. 1A (Nat’l

Archives & Records Serv.).

30

In apparent contrast to the clerk/messenger dividing

line, one set of positions that at least initially did not

conform with the statutory-duty “officer” construct is

lower-level customs officials like weighers, measurers,

gaugers, and inspectors. See Officers, supra, at 523-27.

Numerous Founding-era writings described them as

“officers,” but they were not selected in compliance with

the Appointments Clause in 1789. They were instead

subject to hiring by customs collectors who did not head a

department. Compare, e.g., Letter from Nathaniel Smith

to George Washington (July 10, 1789), in 3 The Papers

of George Washington 176 (Dorothy Twohig ed., 1989)

(requesting to be considered for the “office” of gauger),

and Notes on the Collection Bill (HR-11) (n.d.), in 16

Documentary History of the First Federal Congress,

4 March 1789-3 March 1791, at 1052 (Charlene Bangs

Bickford et al. eds., 2004) (describing an inspector as

an “officer” in notes on draft legislation), with Act of

July 31, 1789, ch. 5, § 5, 1 Stat. 29, 36-37 (repealed 1790)

(authorizing appointment by collectors); see also Officers,

supra, at 523-27. But Congress addressed this situation in

1799, requiring the “approbation” of the Secretary of the

Treasury for the appointment of these customs officials.

See Act of Mar. 2, 1799, ch. 22, § 21, 1 Stat. 627, 642

(amended 1811). And, an Attorney General opinion issued

in 1843 concluded that customs inspectors are Article II

officers, observing that any statute permitting customs

collectors to appoint inspectors would be “null and void

under the constitution.” See Appointment & Removal of

Inspectors of Customs, 4 Op. Att’y Gen. 162, 164-65 (1843).

Measurers, gaugers, and weighers carried out the

statutory duties of measuring imported goods for the

purposes of calculating customs duties. See Tariff Act of

1789, ch. 2, § 1, 1 Stat. 24, 24-26 (repealed 1790); Act of Aug.

31

4, 1790, § 53, 1 Stat. 145, 172 (repealed 1799). Inspectors

carried out the statutory duties of preventing ships from

unloading goods without a permit and searching ships

suspected of smuggling. See Act of Aug. 4, 1790, §§ 30-31,

1 Stat. at 164-65; Officers, supra, at 524 & n.178. Perhaps

Congress did not initially provide for these positions by

statute because their payment-for-service compensation

structures mimicked aspects of non-officer government

contracting positions, a category involving irregular

government work existing at the time of the Founding

just like today. See Act of Aug. 4, 1790, § 53, 1 Stat.

at 172 (providing for payment in accordance with the

amount of goods measured); Officers, supra, at 534-37.

But see Nicholas R. Parrillo, Against the Profit Motive:

The Salary Revolution in American Government 1-48

(2013) (explaining that fees for services were a routine

compensation mechanism for many governmental officials

in the eighteenth century).

III. The Court should not distort the meaning of the

Appointments Clause based on alleged practical

implementation concerns.

In its decision here, the D.C. Circuit suggested that

keeping ALJs from the reach of the Appointments Clause

is a necessary protection to maintain independence in

agency adjudicative proceedings. See Lucia, 832 F.3d at

288-89 (discussing “independence” through “tenure and

compensation” and declining to “cast aside a carefully

devised scheme” by concluding that ALJs are “officers”).

But when considering the Appointments Clause in

Buckley, this Court clearly instructed that practical

fears such as the potential partiality of government

decisionmakers “do not by themselves warrant a distortion

of the Framers’ work.” See 424 U.S. at 134 (refusing to

32

reject constitutional appointment requirements based

on the fear that presidential appointment would unduly

influence federal election commissioners who administer

presidential campaign rules).

In any event , the pol itica lly appoint ed SEC

Commissioners have the last word on whether an ALJ’s

initial decision stands as the agency’s final determination,

or whether the Commissioners will instead review the

decision. See 15 U.S.C. § 78d-1(b). But see id. (giving

a party a right to Commission review in certain

circumstances). When choosing to review, the SEC may

consider the matter de novo. See Lucia, 832 F.3d at 286.

Further, the SEC Commissioners have statutory authority

to adjudicate matters in the first instance if they so choose.

See 15 U.S.C. § 78d-1(a).

To be sure, an ALJ’s initial determination, as a

practical matter, often is the last word from the agency in

adjudication. See 15 U.S.C. § 78d-1(c) (providing for ALJ

decisions to be deemed “the action of the Commission” if

there is no review). And when presiding over cases, ALJs

have the power to take final action with respect to many

matters that impact private rights like issuing subpoenas

and ruling on offers of proof. See 17 C.F.R. § 200.14(a). But

at the end of the day, whether ALJs meet a theoretical nonArticle III standard of independence is immaterial in the

sense that the politically appointed Commissioners have

the final say over adjudication. If this Court believes that

democratically accountable, constitutional appointment

of adjudicative officials raises independence concerns,

the Court should revisit the proper scope of matters that

can be resolved by non-Article III adjudication in the first

place. See Stern v. Marshall, 564 U.S. 462, 482-83 (2011);

see also Mascott, Constitutionally Conforming Agency

Adjudication, supra, at 42-51. The Court should not

33

compound any potential concerns over agency adjudicators

lacking impartiality and improperly exercising judicial

power with the additional error of insulating executive

branch adjudicators from the Appointments Clause.

The Framers instituted the Appointments Clause

as the mechanism to ensure excellence in government

service and democratic accountability in the exercise

of government power. See Freytag, 501 U.S. at 883-84.

Permitting agency staff to hire ALJs enables department

heads to distance themselves from public responsibility

for adjudicative decisions issued from their agency. Cf.

Free Enterprise Fund, 561 U.S. at 497-98 (tying public

accountability to “a clear and effective chain of command”).

Commissioners and department heads have the power to

issue adjudicative decisions in line with their priorities.

They should also bear the public responsibility—and, if

necessary, the blame—for decisions issued by adjudicators

appointed under their headship.

If this Court concludes consistent with Article II’s

original meaning that ALJs are “officers,” aspects of

the competitive-based selection of ALJs may remain

permissible, at least in some form. See Officers, supra, at

550-56 (explaining potential constitutional concerns with

aspects of the competitive service system as currently

structured). Article II assigns Congress the power of

establishing offices “by Law.” U.S. Const. art. II, § 2, cl. 2.

Since the Founding, that power to create offices has been

interpreted to carry with it the authority to stipulate at

least some credentials that must be held by the inferior

officers filling those posts. See, e.g., Volokh, supra, at 747;

Officers, supra, at 551; see also Edward S. Corwin, The

President: Office and Powers, 1787-1948; History and

Analysis of Practice and Opinion 88-89 (3d ed. 1948).

34

These issues are multi-faceted and should be further

briefed and vetted in an appropriate case. Here, a finding

that the SEC’s ALJs are “Officers of the United States”

under the historical “statutory duty” standard—and thus,

department head appointment is required—would answer

the appointments-related aspect of the specific question

presented to the Court.

CONCLUSION

For the reasons stated, this Court should reverse the

D.C. Circuit’s judgment.

Respectfully submitted,

William S. Consovoy

Counsel of Record

J. Michael Connolly

Consovoy McCarthy Park Pllc

George Mason University

A ntonin Scalia Law School

Supreme Court Clinic

3033 Wilson Blvd., Suite 700

Arlington, VA 22201

(703) 243-9423

will@consovoymccarthy.com

Attorneys for Amicus Curiae

February 28, 2018