Id. at 125-26 (emphasis added).16 In contrast, “[e]mployees are lesser functionaries subordinate to officers of the United States.” Id. at 126 n. 162.
16 Select Att’y Gen. 116, 118-19, 122-23 (1911) (official authorized to perform all the duties of the Commissioner of Fisheries, who was appointed by the President and confirmed by the Senate, was an officer; scientists, technicians, and superintendent of mechanical plant in the Bureau of Standards were employees rather than officers); Second Deputy Comptroller of the Currency — Appointment, 26 Op. Att’y Gen. 627, 628 (1908) (“The officer is distinguished from the employee in the greater importance, dignity, and independence of his position”; official authorized to exercise powers of the Comptroller of the Currency in the absence of the Comptroller was clearly an officer).
We hasten to note that the exercise of significant authority alone is not a sufficient condition to characterizing a position as an office within the meaning of the Appointments Clause. To be considered a position that must be filled in conformance with the Appointments Clause, the position must also be one of employment within the federal government. see infra section II. B.
The distinction between constitutional officers and other employees is a long-standing one. Select. elizabeth.g., Burnap v. All of us, 252 U.S. 512, 516-19 (1920) (landscape architect in the Office of Public Buildings and Grounds was an employee, not an officer); Second Deputy Comptroller of the Currency — Appointment, 26 Op. Att’y Gen. 627, 628 (1908) (Deputy Comptroller of the Currency was “manifestly an officer of the United States” rather than an employee). At an early point, the Geelong best hookup apps Court noted the importance of this distinction for Appointments Clause analysis. See Germaine, 99 U.S. at
17 The status of certain officials traditionally appointed in modes identical to those designated by the Appointments Clause is somewhat anomalous. For instance, low-grade military officers have always been appointed by the President and confirmed by the Senate and understood to be “Officers of the United States” in the constitutional sense; in Weiss v. All of us, 114 S. Ct. 752, 757 (1994), the Supreme Court recently indicated its agreement with that understanding. It is at least arguable, however, that the authority exercised by second lieutenants and ensigns is so limited and subordinate that their analogues in the civil sphere clearly would be employees. There are at least three possible explanations. (1) Congress may make anyone in public service an officer simply by requiring appointment in one of the modes designated by the Appointments Clause. The Clause, on this view, mandates officer status for officials with significant governmental authority but does not restrict the status to such officials. This apparently was the nineteenth-century view, select, e.grams., Us v. Perkins, 116 U.S. 483, 484 (1886) (cadet engineer at the Naval Academy was an officer because “Congress has by express enactment vested the appointment of cadet-engineers in the Secretary of the Navy and when thus appointed they become officers and not employees”). (2) Certain officials are constitutional officers because in the early Republic their positions were of greater relative significance in the federal government than they are today. Cf. , 424 U.S. at 126 (postmasters first class and clerks of district courts are officers). (3) Even the lowest ranking military or naval officer is a potential commander of United States armed forces in combat — and, indeed, is in theory a commander of large military or naval units by presidential direction or in the event of catastrophic casualties among his or her superiors.
The Supreme Court relied on the officer/employee distinction in Freytag vmissioner, 501 U.S. 868 (1991). In Freytag, the Court rejected the argument that special trial judges of the Tax Court are employees rather than officers because “they lack authority to enter a final decision” and thus arguably are mere subordinates of the regular Tax Court judges.18 Id. at 881. The Court put some weight on the fact that the position of special trial judge, as well as its duties, salary, and mode of appointment, are specifically established by statute;19 the Court also emphasized that special trial judges “exercise significant discretion” in carrying out various important functions relating to litigation in the Tax Court. Id. at 881-82.