There is much to say about the Supreme Court's decision in Kennedy v. Braidwood Management, Inc. The majority opinion by Justice Kavanaugh and the dissent by Justice Thomas disagree on just about every point. But one area where there is substantial agreement concerns the line between an "Officer of the United States" and a mere employee. Indeed, I think the majority and dissent state this issue with more clarity than in previous cases.
Justice Kavanaugh's majority opinion explains:
The Appointments Clause in Article II of the Constitution specifies how "Officers of the United States," as distinct from employees, must be appointed. §2, cl. 2.
Here, the Court draws a bright line between an "Officer of the United States" and a mere employee. And what is that line?
Quoting Lucia, Justice Kavanaugh explains the line turns on whether the individual exercises "significant governmental authority."
An officer exercises "'significant authority pursuant to the lawsof the United States.'" Lucia v. SEC, 585 U. S. 237, 245 (2018). An employee, by contrast, does not exercise significant governmental authority. See ibid.
Justice Kavanaugh does not quite say that employees cannot exercise "significant authority." He says they do not exercise such authority. Still, I think a plausible reading of Justice Kavanaugh dissent is that an employee cannot exercise "significant authority." If an employee could exercise "significant" authority, then there would not be a distinct line between "Officer of the United States" and an "employee." Indeed, without this line, Congress could vest unaccountable employees--who are not subject to the Appointments Clause--with this great power. And with great power, comes great responsibility. Stated differently, great power requires great accountability. (I tried to get this line out during oral argument, but couldn't quite finish.)
Further, Justice Kavanaugh reinforces this distinction with his summary of the facts:
Before 2010, members of the Preventive Services Task Force were not officers at all. The Task Force was an advisory body, and the Task Force members made only non-binding recommendations. As a result of the 2010 Affordable Care Act, however, the Task Force's "A" and "B" recommended preventive services now must be covered by health insurers at no cost to the insured. For that reason, the parties here agree that the Task Force members exercise significant governmental authority and qualify as "officers" of the United States. They disagree, however, over whether Task Force members are principal or inferior officers.
In other words, because the Task Force members exercise "significant authority," they cannot be employees; they must be "Officers of the United States" who are appointed pursuant to the Appointments Clause. The majority ultimately holds that the Task Force members are inferior officers. I don't quibble with that holding here.
Justice Thomas's dissent draws the same distinction between "Officers of the United States" and employees:
The Clause prescribes the exclusive means of appointing "'Officers of the United States.'" Lucia v. SEC, 585 U. S. 237, 244 (2018). Officers are Government officials who exercise "'significant'" federal authority on an "ongoing" basis. Id., at 245–246. Those who do not exercise such authority are mere nonofficer employees and are not subject to the Clause's requirements. Id., at 245. [FN1]
[FN1] The parties agree that the exercise of "significant authority" marks the dividing line between officers and nonofficer employees. Brief for Petitioners 2 (internal quotation marks omitted); Brief for Respondents 4–5. I will assume that this view is correct for purposes of this opinion.But see Lucia, 585 U. S., at 254 (THOMAS, J., concurring) ("The Founders likely understood the term 'Officers of the United States' to encompass all federal civil officials who perform an ongoing, statutory duty—no matter how important or significant the duty").
Again, I would read the Thomas dissent to support the proposition that employees cannot exercise "significant authority." Were Congress to vest a position with such power, that position must be filled under the auspices of the Appointments Clause.
After the Court called for supplemental briefing in Braidwood, Seth Barrett Tillman and I offered this analysis:
If the positions of Task Force members are not filled consistent with the Appointments Clause and Inferior Office Appointments Clause, that is, if members are not appointed under the authority of a statute, then the purported office-holders are not officers of the United States of any stripe, principal or inferior. At most, they would be "employees." And, as a general matter, we do not think employees can exercise the "significant authority" of an officer of the United States. (We made this point during the Special Counsel litigation.) Such employees certainly cannot be vested with any sort of "independence" vis-a-vis principal officers and the President Here, and elsewhere, so much turns on whether a person is or is not an officer of the United States.
I think that both the majority opinion and the dissent provide some support for our position.
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