Document Type


Publication Date

Spring 2014

Publication Title

Pittsburgh Tax Review


Appointments Clause, appointment, officer, employee, Officers of the United States, Tucker, significant authority, discretion, final decision-making authority, final decision, Buckley v. Valeo, appeals officer, hearing officer, Internal Revenue Service, IRS, Freytag, special trial judge, Tax Court


Much ink has been spilled, and many keyboards worn, debating the definition of "Officers of the United States" under the Appointments Clause of Article II, Section 2, Clause 2 of the Constitution. The distinction between Officers and employees is constitutionally and practically significant, because the former must be appointed by the President, with or without the advice and consent of the Senate, Courts of Law, or Heads of Departments. In contrast, employees may be hired by anyone in any manner.

Appointments Clause controversies are triggered when a government official who was hired as an employee is accused of unconstitutionally wielding the more "significant authority" of an Officer. If proved, the official's decisions are subject to collateral attack. In the seminal Tucker decisions, the Tax Court and D.C. Circuit held that IRS hearing officers are mere employees and the Supreme Court denied certiorari. This outcome, which upheld the status quo, was unremarkable. But the methodology of the Tucker decisions was a remarkable step forward in clarifying the Appointments Clause jurisprudence of the Supreme Court.

Under the Tucker decisions, an Officer holds a position that is (1) "established by Law," (2) "continuing," and (3) vested with "significant authority." In turn, "significant authority" consists of three "main criteria": (1) power over "significant" or important matters, (2) "discretion," and (3) "final" decision-making authority. This Article adds the observation that each of the three criteria is a necessary element of "significant authority" in all or most cases.

Lastly, this Article cautions against overzealous application of the Appointments Clause. Requiring the appointment of low-level bureaucrats dilutes the scrutiny paid to judges and attorney generals. Appointing everyone is tantamount to appointing no one.


Prepublication version on SSRN