us-constitution us-senate us-federal-government
Who are the &quot;inferior officers&quot; of the federal government?
<p>A part of Article II, Section 2, Clause 2 of the Constitution of the United States says this:</p>

<blockquote>
  <p>He [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 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.</p>
</blockquote>

<p>News reports recently suggest that the director of the FBI, although "inferior" to the attorney general, is not one of those "inferior officers" who do not need to get confirmed by the Senate. I suspect maybe the head of the Federal Aviation Administration or the Postmaster General or the Director of the Census is one of those. (For some decades before the late '60s -- maybe the Nixon administration -- the Postmaster General was a member of the Cabinet.)</p>

<p>If I'm not mistaken, all members of the Cabinet and all ambassadors and all federal judges need to get confirmed by the Senate.</p>

<p>What is the current list of those officers who need to get confirmed by the Senate and those "inferior officers" who are appointed by the President without the need for confirmation, and those "inferior officers" who are appointed by department heads, and those "inferior officers" who are appointed by the judiciary? Would this list be on the web somewhere?</p>

<p>I conclude (contrary to an earlier expression) that there is no such list, nor can there be, because the term "officer" is not well enough defined.</p>

<p>The inferior officers are those officers who are not principal officers (as specified in the Constitution, e.g. ambassadors, cabinet members, judges), since there are only two kinds of officers. There is no constitutional or statutory definition of "Officer of the United States", so we have to figure it out from case law. As noted in <a href="https://supreme.justia.com/cases/federal/us/487/654/case.html" rel="nofollow noreferrer">Morrison v. Olson</a> 487 U.S. 654</p>

<blockquote>
  <p>The line between "inferior" and "principal" officers is one that is
  far from clear, and the Framers provided little guidance into where it
  should be drawn.</p>
</blockquote>

<p>Officers of the US cannot be appointed by Congress (<a href="https://supreme.justia.com/cases/federal/us/424/1/case.html" rel="nofollow noreferrer">Buckley v. Valeo</a> 424 U.S. 1 (1976), so that narrows down the possibilities – if in fact an appointment can be made by Congress, that is not an inferior office (since Congress has no such authority). That court also said that</p>

<blockquote>
  <p>We think that the term "Officers of the United States," as used in
  Art. II, defined to include "all persons who can be said to hold an
  office under the government" in United States v. Germaine, supra, is a
  term intended to have substantive meaning. We think its fair import is
  that <em>any appointee exercising significant authority pursuant to the
  laws of the United States is an "Officer of the United States,</em>" and
  must, therefore, be appointed in the manner prescribed by § 2, cl. 2,
  of that Article.</p>
</blockquote>

<p>To take a specific example, "special trial judges", authorized in <a href="https://www.law.cornell.edu/uscode/text/26/7443A" rel="nofollow noreferrer">26 USC 7443a</a> are an example of an officer. We know they are officers, because <a href="https://supreme.justia.com/cases/federal/us/501/868/case.html" rel="nofollow noreferrer">Freytag v. Commissioner</a> 501 U.S. 868 says so (since they read Buckley):</p>

<blockquote>
  <p>A special trial judge is an "inferior Office[r]" whose appointment
  must conform to the Appointments Clause. Such a judge acts as an
  inferior officer who exercises independent authority in cases governed
  by subsections (b)(1), (2), and (3). The fact that in subsection
  (b)(4) cases he performs duties that may be performed by an employee
  not subject to the Appointments Clause does not transform his status.</p>
</blockquote>

<p>The Dept. of Justice offers <a href="https://www.justice.gov/sites/default/files/olc/opinions/attachments/2015/05/29/op-olc-v031-p0083.pdf" rel="nofollow noreferrer">an analysis</a> of "Officer of the United States". The main elements in their opinion are that the position must possess delegated sovereign authority of the Federal government, and the position must be continuing. There are other criteria possibly applicable (things that were  invokes at some time) including method of appointment, having been established by law, taking an oath of office, an emolument (not a volunteer), and receiving a commission. Still, Congress authorizes (by law) the hiring of federal employees, and not all employees are "officers".</p>

<p>An earlier memorandum on the topic is <a href="https://www.justice.gov/sites/default/files/olc/opinions/1996/05/31/op-olc-v020-p0124_0.pdf" rel="nofollow noreferrer">here</a>. Footnote 54 notes that </p>

<blockquote>
  <p>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.</p>
</blockquote>

<p>Warrant officers and non-commisioned officers would likewise have quite limited authority.</p>

<p>Since the definition of "Officer of the United States" is up for grabs, there can't be a complete list of inferior officers, especially if all military officers are included. There is a long list of civilian officers under the executive branch published in <a href="https://en.wikipedia.org/wiki/United_States_Government_Policy_and_Supporting_Positions" rel="nofollow noreferrer">United States Government Policy and Supporting Positions</a>, after each presidential election. The so-called Plum Book is <a href="https://www.gpo.gov/fdsys/pkg/GPO-PLUMBOOK-2012/pdf/GPO-PLUMBOOK-2012.pdf" rel="nofollow noreferrer">on a government web page here</a> in the 2012 version, and <a href="https://www.govinfo.gov/content/pkg/GPO-PLUMBOOK-2016/pdf/GPO-PLUMBOOK-2016.pdf" rel="nofollow noreferrer">here</a> for 2016. However, you will not find special trial judges of the tax court in the Plum Book, which were held in Freytag to be officers, and are civilians in the executive branch. The special trial judges are apparently listed <a href="https://en.wikipedia.org/wiki/List_of_Judges_of_the_United_States_Tax_Court" rel="nofollow noreferrer">here</a>, as are the sitting judges (who are also not in the Plum book).</p>

<p><a href="https://www.justice.gov/sites/default/files/olc/opinions/attachments/2015/05/29/op-olc-v031-p0083.pdf" rel="nofollow noreferrer">https://www.justice.gov/sites/default/files/olc/opinions/attachments/2015/05/29/op-olc-v031-p0083.pdf</a></p>

<p>A rebuttal to the comment above referring to the limited “limited” authority of “second lieutenants and ensigns” is found on page 91 on the linked memorandum from 2008.</p>

<blockquote>
  <p>The delegated sovereign authority granted every commissioned military
  officer necessarily includes not only the capacity to command military
  forces and execute all manner of public actions to plan, organize,
  equip and sustain, and carry out operations of a military nature, and
  occasionally of a civil nature, but also the very real possibility of
  rising unexpectedly to command military forces in the field at
  echelons normally reserved to more experienced officers of the United
  States.</p>
</blockquote>
