DOJ Argues That Agency Head Cannot Delegate Power To Appoint Inferior Officers

In 2005, the Office of Legal Counsel said this issue was unsettled. But a brief in the Alina Habba litigation takes a firm position.

The Constitution allows Congress to vest the appointment power of inferior officers in the heads of departments. Can the department head then delegate that power to someone else in the department?

In 2005, the Office of Legal Counsel stated that the issue was unsettled:

Third, you have asked whether the prohibition in the draft order that prevents the Secretary of Defense from reassigning appointment authority to a subordinate is constitutionally compelled. The question whether Congress may permit the President or the head of a department to delegate appointment authority to an officer below the head of a department is a difficult one, and we cannot provide a definitive answer at this time. As noted, delegation clearly is not to be permitted for officers requiring Senate confirmation. However, neither the Attorney General nor this Office has definitively answered the question with respect to inferior officers who do not require Senate consent.

The Department of Justice has now provided a definitive answer. In the Third Circuit, there is ongoing litigation about whether Alina Habba can properly serve as Attorney General. Yesterday, a brief was filed by the Attorney General, the Deputy Attorney General, and others. I think this brief clearly represents the institutional position of the Department of Justice.

The brief squarely settles that the power to appoint inferior officers cannot be delegated:

The difference between acting service and delegated functions would still have significance for many other PAS officials under the FVRA. For example, because the power to appoint inferior officers is a non-delegable function constitutionally vested in an agency head, Lucia v. Securities and Exchange Commission, 585 U.S. 237, 244 (2018), an Acting Attorney General may appoint inferior officers under the FVRA, but an individual who has merely been delegated the Attorney General's powers under 28 U.S.C. § 510 may not; it would make no sense, however, to leap from that proposition to the defendants' conclusion that the FVRA also atextually preempts delegations that are valid under § 510.

Under 28 CFR §§ 0.15(b)(1)(ii), the Attorney General has delegated to the Deputy Attorney General, as well as the Associate Attorney Generals, the power to appoint certain positions. In light of the brief, these positions could not be considered inferior officers. Rather, at most, they must be "employees" of the United States. And per Buckley, these employees could not exercise "significant authority."

I'll need to chew on this matter a bit more.