Chairpointment: Rethinking the Appointment of Independent Agency Chairpersons

Chairpointment: Rethinking the Appointment of Independent Agency Chairpersons

Samuel Rubinstein*

The modern independent agency chairperson possesses great executive and administrative power.  Among other things, she usually can appoint and supervise officials, preside at meetings, and distribute the work among her fellow commissioners or board members.  Given this increased power as the chairperson, she is still just one vote.  Despite this, as the “head” of the agency, she is the face of the agency when dealing with other governmental bodies and the public.  However, her appointment procedure is inconsistent—sometimes the President can choose an incumbent commissioner without Senate approval, sometimes the President needs to go back to the Senate for approval, and in rare instances, the board members get to choose the chair themselves—and entirely unstudied.

This Article examines “chairpointments” in the context of the powers of an independent agency chairperson.  In doing so, the Article determines whether chairpersons are principal or inferior officers and the consequences of either result.  Finally, the Article addresses how chairpointments should to be reorganized and harmonized.

Introduction

On May 7, 2012, the United States Senate confirmed Ajit Pai to be a Federal Communications Commission (FCC) Commissioner.[1]  Then, when President Trump commenced his presidency, he designated Pai as Chairman without the Senate’s approval.[2]  This designation power is a fairly common process that legal scholars and judges have considered to be part of agency design and have taken it for granted.  This Article is the first to explore the interaction between chairpersons of independent multimember agencies and the Appointments Clause.  In doing so, I seek to answer two questions: (1) are chairpersons of independent multimember agencies “officers of the United States”; and (2) if so, are they principal or inferior officers?

The chairperson is considered the chief executive and representative of their respective agency, but unlike the appointment process for Secretaries of executive departments, the appointment process for chairpersons of independent agencies fluctuates.  Some chairpersons need to go through senatorial “advice and consent” after their initial appointment, but many more can be designated as chairperson by the President or their fellow board members immediately upon the initial appointment.[3]

The process is inconsistent and incohesive.  In this Article, I both identify the fundamental problem and challenge the underlying assumption that it is trivial that chairpersons can be appointed without “advice and consent.”  Considering the vast power variations among agency chairpersons, this Article expects that confirmation requirements also vary.  For those chairpersons who function as “first among equals,” there is no need for further Senate confirmation if the President elevates an agency member to the chair position; however, for other chairs with powers sufficient to establish them as “principal officers,” further Senate confirmation is necessary.  Although there is a concern that “advice and consent” burdens government efficiency, especially in a hyper-partisan era where nominees undergo serious vetting, the Appointments Clause is an essential tool drafted by the Framers in ensuring checks and balances.[4]  One legislative fix to harmonize the appointment process is to subject all chairperson appointments to “advice and consent,” but allow a President to confirm a nominee as both chairperson and commissioner, something that Presidents have already adhered to.[5]

If a legislative fix is not possible, litigation is an available tool.  In recent years, there has been a trend of parties using the Appointments Clause as a sword against the government.  In Lucia v. SEC, the recipient of an unfavorable ruling successfully challenged the Administrative Law Judge’s appointment.[6]  Additionally, a group of disgruntled Senators challenged the appointment of an Acting Attorney General.[7]  Therefore, it is not inconceivable to imagine future litigation surrounding the appointment of agency chairpersons, and this Article hopes to provide a resolution to the issue.

The constitutional status of agency chairpersons can impact chairperson succession during vacancies.  Recently, in English v. Trump,[8] a district court had to determine the appropriate acting Director of the Consumer Financial Protection Bureau.[9]  Similarly, future disputes can arise as to who gets to temporarily lead a multimember agency when the Federal Vacancies Reform Act is triggered, thus showing that even acting chairpersons matter.

Part I looks at incumbent elevation and the historical basis surrounding agency chairpersons.  Part II summarizes the Appointments Clause case law.  Part III undergoes an extensive analysis to list all of the powers of chairpersons in different agencies, as well as applying the Appointments Clause doctrine and exploring its consequences.  Part IV concludes with a proposal for fixing the discrepancies in chairperson appointments.

      I. Incumbent Elevation Generally

When the Senate confirms a nominee to serve as Deputy Attorney General, Deputy Secretary of Labor, or Deputy Secretary of Education, it does not imply that the Senate abdicated its advice and consent power should a vacancy arise in the Attorney General, Secretary of Labor, or Secretary of Education.[10]  In other words, the President cannot elevate a Deputy Attorney General to Attorney General without Senate confirmation.[11]  The same is true with the Supreme Court.  An incumbent Supreme Court Associate Justice cannot become Chief Justice without Senate approval.[12]  Both instances allow the Senate to review the nominee’s performance before possibly elevating them.

Accordingly, it begs the question why we treat heads of independent multimember agencies differently.  For the most part, the President is able to designate a chairperson among the various members of the agency without Senate approval.[13]  Although some chairpersons are Presidential Appointments requiring Senate confirmation (PAS) positions, it does not make sense to treat the Federal Deposit Insurance Corporation (FDIC) Chairperson (PAS position) as any different from the FCC Chairperson (a non-PAS position).[14]  Inconsistency among the various independent agencies is common, and much of this inconsistency is due to the way in which Congress chose to structure each agency.[15]  Still, the Supreme Court has been clear: the Appointments Clause always applies even if it less efficient.[16]

One way to avoid an Appointments Clause problem is by simultaneously nominating someone to serve as a member of the body and as its head.  For example, Securities and Exchange Commission Chairperson Jay Clayton was nominated and confirmed by the Senate as both a Commissioner and the Chairperson, even though the current law allows the President to bypass the Senate in designating a Chairperson.[17]  This practice is also seen on the Supreme Court with the appointment of a nominee to serve on the court and as its head (Chief Justice).[18]  Conversely, a nominee cannot be appointed both Deputy Attorney General and Attorney General.

In some ways, the Supreme Court is more closely analogous to independent, multimember agencies: the head has equal voting power to other members, but the head has additional responsibilities and powers.delegates the day-to-day administrative and executive functions of the judiciary branch to the Director and Deputy Director of the Administrative Office of the United States Courts, both of whom are appointed and subject to removal by the Chief Justice.[19]  He also appoints “members of the committees that do much of the initial work in formulating policy for the Article III judiciary” and judges to sit on various specialty courts in the United States.[20]  Both the Chief Justice and chairpersons of independent agencies wield important appointment, executive, and administrative powers.[21]  However, the parameters of the comparison need to be limited considering that the Supreme Court is a substantially different government organ than an independent agency.  Therefore, instead of looking outward, the role of agency chairpersons should be examined at the source.

      a. The Interstate Commerce Commission

The historical practice of independent multimember agencies is relevant.  Similar to how actions of the First Congress are used in statutory and constitutional interpretation, actions of the first independent agency should be used as a source in understanding how to view the role of agency chairpersons.[22]  In 1887, the Interstate Commerce Commission (ICC) was the first multimember independent regulatory agency established in the United States.[23]  The original Interstate Commerce Act allowed the ICC to select its own chairman.[24]  Judge Thomas Cooley headed President Cleveland’s list of appointees to the new agency, but he did not become chairman until he was elected at the ICC’s first meeting.[25]  Then, through 1910, the ICC would elect chairmen who would serve in that role so long as they remained a member of the body.[26]  Starting in 1911, however, the chairmanship was in yearly rotation based on service seniority.[27]  This practice of allowing the ICC to elect its own chairman remained in place for nearly sixty more years, but there were growing political criticism about agency capture.[28]  A common claim was that government became “bloated, fat, and lazy” since many agencies were headed by cronies and not professionals.[29]  As a result, both consumer advocates like Ralph Nader and free-market economists agreed that the ICC was “captured by” the industries it regulated, causing the ICC to become “an elephant’s graveyard of political hacks.”[30]  Many scholars noted that because independent agencies are not accountable to the President as executive departments, they are more susceptible to agency capture.[31]  Congress responded by giving the President the power to designate the chairman, and therefore, making the ICC more accountable to the President.[32]  Over time, political dissatisfaction with the ICC grew so much so that the ICC Termination Act of 1995 abolished the agency altogether and transferred its powers to the Department of Transportation and the new Surface Transportation Board (STB).[33]

      b. The Reorganization Plans

After World War II and the expansion of the federal government during the New Deal, there were calls to organize the Executive Branch.[34]  Critics were concerned due to the increased number of federal agencies and federal workers, coupled with overlap of functions and services of the different agencies.[35]  In 1947, Congress established the Commission on Organization of the Executive Branch of the Government in order to promote “economy, efficiency and improved service” among the federal agencies.[36]  The Commission was tasked with investigating the “present organization and methods of operation of” the Executive Branch, as well submitting a report of its findings and recommendations to Congress.[37]  Former President Herbert Hoover was elected chairperson of this bipartisan commission.[38]  As a result, some saw Hoover’s position on the commission as a way for Presidents to strengthen their managerial abilities over the federal bureaucracy because he “recommended that all administrative responsibility at multi-member agencies be vested in the chairman of the agency.”[39]  These plans “(1) statutorily granted more authority to the chair to appoint and supervise personnel and to oversee agency expenditures, and (2) transferred the power to designate the chair typically from the agency to the President.”[40]

Presidents Truman and Kennedy used Hoover’s recommendations to present a series of reorganization plans to Congress.[41]  While plans were passed for the Federal Trade Commission (FTC), Federal Power Commission (FPC), and Securities and Exchange Commission (SEC) in 1950, they failed for the ICC, FCC, and the National Labor Relations Board (NLRB).[42]  Senator Edwin C. Johnson argued that this would create “one-man agencies” subject to the President’s direct control.[43]  President Kennedy would later submit plans that would “further extend the power of the chair to include the power to delegate work to commission personnel, including other commissioners,” but his plans failed for the FCC and SEC while passing for the FTC and the Civil Aeronautics Board.[44]  Although none of the reorganization plans affected the voting procedures, “something was at stake beyond voting.”[45]  Specifically, chairpersons accumulated alternative power “such as supervisory authority over staff, agenda control, oversight over expenditures, and the power to represent the Commission publicly.”[46]

      II. Independent Agencies within the Constitutional Framework

As an overarching analytical framework, it is valuable to see how chairpersons of independent agencies fit within the constitutional framework established by the Appointments Clause, the Opinion Clause, and the Twenty-Fifth Amendment.[47]  Although this Article focuses primarily on the Appointments Clause, a constitutional discussion of the Opinion Clause and the Twenty-Fifth Amendment is valuable in determining whether chairpersons of independent agencies qualify as heads of executive Departments.

      a. Independent Agencies and the Constitution

While the three constitutional provisions sound similar, the Supreme Court has looked at the interaction between them to establish the constitutional status of agencies and chairpersons.

The Appointments Clause provides:

[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.[48]

 

The Opinion Clause provides:

[The President] may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices[.][49]

 

The Twenty-Fifth Amendment, Section 4 provides:

Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.[50]

The constitutional status of independent agencies relates to the constitutional status of chairpersons.  If the chairperson qualifies as a “head” or the “principal officer” of the executive Department, then that would give her new constitutional powers and responsibilities.  She may be granted the power to exclusively appoint inferior officers and be involved in presidential removal, but at the same time, the President may direct her to provide him opinions on relevant topics.  However, one first needs to establish that an independent agency is a “Department” or “executive Department.”

United States v. Germaine was the earliest Supreme Court case that found that “‘department’ in both instances [Appointments Clause and Opinion Clause] clearly means the same thing, and the principal officer in the one case is the equivalent of the head of department in the other.”[51]  Over a century later, in Freytag v. Commissioner, a unanimous Supreme Court looked to Germaine and the then-enacted Twenty-Fifth Amendment for guidance.[52]  Unlike the Appointments Clause and Opinion Clause, the legislative intent behind the Twenty-Fifth Amendment was clear: the drafters meant to include at least the Presidential appointees who direct the executive departments and possibly other cabinet members.[53]

The majority in Freytag held that “Heads of Departments” are “executive divisions like the Cabinet-level departments,” and that Germaine “limited the meaning of ‘Executive Departmen[t]’ to the Cabinet members.”[54]  The four-Justice concurrence, written by Justice Scalia, disagreed that “the Heads of Departments” are Cabinet members.[55]  For them, “‘Heads of Departments’ includes the heads of all agencies immediately below the President in the organizational structure of the Executive Branch.”[56]

Nearly two decades later in Free Enterprise Fund v. Public Company Accounting Oversight Board,[57] the Supreme Court determined that the Securities Exchange Commission (SEC) was a “Department” under the Appointments Clause because it “is a freestanding component of the Executive Branch, not subordinate to or contained within any other such component”.[58]  However, in a footnote, the Free Enterprise Fund Court did not address whether the Securities Exchange Commission was an “executive Department” under the Opinion Clause or the Twenty-Fifth Amendment.[59]  In addition, the majority did not find the Chairman to be the “Head” of the “Department”; rather the Commission as a whole was the “Head.”[60]  Interestingly enough, the majority assumed that the presidential designation of the Chairman was valid, going against the crux of my argument in this Article.[61]  Still, since neither side argued this point, the Court did not have to analyze the issue, thus leaving the designation’s validity unresolved.

A consequence of Free Enterprise Fund is that its rationale can be extrapolated to other independent agencies.  If the SEC is a “Department,” then so should the FCC or the NLRB.  But, by finding the Commission as a whole as the “Head,” and not just the chairperson, this approach limits how we view chairpersons in the constitutional scheme.  Instead, we need a new procedure to determine the constitutional status of chairpersons.

This is where the Appointments Clause comes in.  It is already an available tool for litigants against the government.  Rather than dealing with a case or government action directly on the merits, an Appointments challenge allows a party to delay a proceeding.[62]  The very nature of an Appointments Clause challenge is for the Court to analyze and determine the government official’s constitutional status.

      b. Officers of the United States

In determining the constitutional status of multimember agency chairpersons under the Appointments Clause, the first step is to establish whether chairpersons are “Officers of the United States” or employees that are “lesser functionaries subordinate to officers of the United States.”[63]  If the former, then we need to see if they are principal or inferior officers.  If the latter, then there is no Appointments Clause issue.  As applied to chairpersons, they would likely be classified as officers because of their influence in management and executive matters.[64]

In United States v. Hartwell and United States v. Germaine, the Supreme Court ruled that the term “officer” “embraces the ideas of tenure, duration, emolument, and duties.”[65]  In addition, the Court noted that the duties should be “continuing and permanent, not occasional or temporary.”[66]

Then in Buckley v. Valeo, the Court interpreted “officer” under Article II.[67]  Breaking away from Hartwell and Germaine, the Buckley Court offered the significant authority standard: “any appointee exercising significant authority pursuant to the laws of the United States is an ‘Officer of the United States,’ and must, therefore, be appointed in the manner prescribed by § 2, cl. 2, of that Article.”[68]  In a footnote, the Court tried to differentiate between employees and officers by highlighting that “[e]mployees are lesser functionaries subordinate to officers of the United States . . . whereas the Commissioners, appointed for a statutory term, are not subject to the control or direction of any other executive, judicial, or legislative authority.”[69]

Recently, in Lucia v. SEC, the Supreme Court combined the Germaine and Buckley tests to determine whether SEC Administrative Law Judges (ALJ) were officers.[70]  The court found that (1) “the individual must occupy a ‘continuing’ position established by law”; and (2) they must “exercise[e] significant authority pursuant to the laws of the United States.”[71]  The Court acknowledged that one day it might need to refine the “significant authority” test, but it was not necessary for the present case since it had applicable precedent.[72]  Within the decision, three different views of “significant authority” emerge.

Justice Thomas promotes the broad end of “significant authority.”  His view aligns with Jennifer Mascott’s originalist view that at a minimum, the term “encompass[es] all federal civil officials who perform an ongoing, statutory duty—no matter how important or significant the duty.”[73]

Justices Sotomayor and Ginsburg align with the narrower end of the spectrum.  They believe that one necessary requirement is that the officer has final decision-making authority, which was not present in the case.[74]

The majority opinion, written by Justice Kagan, is in the middle of the two views.  The Court did not hold that final decision-making authority is a prerequisite to being an officer. Rather, its inquiry “focuse[s] on the extent of power an individual wields in carrying out his assigned functions.”[75]  Here, the Supreme Court was persuaded that the ALJs were officers because they have “duties and powers . . . in conducting adversarial inquiries.”[76]  As explained below, chairpersons do not have final decision-making authority on policy positions, but they do have “duties and powers” in management and executive matters that can have an impact on policymaking.[77]  Thus, chairpersons are likely to satisfy Lucia’s middle-view approach.[78]

      c. Principal or Inferior Officers

Even if a chairperson is an officer, the next step in the chairperson’s constitutional status analysis is to determine what type of officer she is.  The Constitution prescribes two types of officers: principal and inferior.[79]  If one is a principal officer, then she is appointed by the President with Senate confirmation.[80]  If one is an inferior officer, then she may still be appointed by the President with Senate confirmation, but Congress may statutorily vest the appointment “in the President alone, in the Courts of Law, or in the Heads of Departments.”[81]  The Constitution does not provide guidance on distinguishing between the two types of officers, and the Supreme Court has “not set forth an exclusive criterion” for differentiating between the two.[82]  As applied to chairpersons, the Court’s current frameworks do not produce a clear answer about whether chairs in general are principal or inferior officers.[83]

In Morrison v. Olson, the Supreme Court wrestled with the question of whether the independent counsel created by the Ethics in Government Act of 1978 was an inferior or principal officer.[84]  Helpful to its argument, the majority relied on four factors: (1) removability by a higher official; (2) scope of duties; (3) scope of jurisdiction; and (4) scope of office’s tenure.[85]  The independent counsel was determined to be an inferior officer because she was subject to removal by the Attorney General, she performed only specific, limited duties, her office was limited in jurisdiction, and her office was limited in tenure.[86]

The dissent, authored by Justice Scalia, attacked the majority’s ruling and proposed a different test.[87]  For one, it appeared that the source of these four factors came from Germaine’s “tenure, duration, emolument, and duties,” which are supposed to determine whether someone is an officer in the first place, and not whether they are inferior or principal.[88]  To Justice Scalia, the real test is whether someone was “subordinate to any officer in the Executive Branch.”[89]  If not, then she is an inferior officer.

Nearly a decade after Morrison, Justice Scalia wrote the majority in Edmond v. United States, which dealt with whether the Secretary of Transportation could constitutionally appoint civilian members to the Coast Guard Court of Criminal Appeals (CCA).[90]  Although the majority referenced Morrison, it quickly noted that “Morrison did not purport to set forth a definitive test for whether an office is ‘inferior’ under the Appointments Clause.”[91]  Instead, “‘inferior officers’ are officers whose work is directed and supervised at some level by others who were appointed by Presidential nomination with the advice and consent of the Senate.”[92]  In addition, the “power to remove officers . . . is a powerful tool for control.”[93]  Critically, it was significant “that the judges of the Court of Criminal Appeals have no power to render a final decision on behalf of the United States unless permitted to do so by other Executive officers.”[94]

Over a decade after Edmond, the Supreme Court in Free Enterprise Fund v. Public Company Accounting Oversight Board was again presented with an inferior officer question, and this time it applied to board members of the Public Company Accounting Oversight Board (PCAOB), a government entity that regulates the accounting industry.[95]  Despite the tension presented by Morrison and Edmond, the Supreme Court reiterated the Edmond holding, but did not overrule Morrison.[96]  Significantly, the majority found that the PCAOB members were inferior officers because the SEC can remove the PCAOB members at will and the SEC had oversight power.[97]  Thus, the Court adopted Edmond’s analysis of the officer’s removability.

Shortly after Free Enterprise Fund, the Office of Legal Counsel (OLC) weighed in on whether the Special Master for Troubled Asset Relief Program Executive Compensation was a principal or inferior officer by applying both Morrison and Edmond frameworks.[98]  While OLC’s opinion-writing function does not have the same relevance or precedential value as Supreme Court or Circuit Court decisions, its importance here is to show how Executive Branch lawyers analyze whether an officer is principal or inferior.[99]  In the Special Master opinion, OLC considered both the Morrison factors and the Edmond inquiry, and in both instances, the Special Master was an inferior officer.[100]  In particular, with the Edmond analysis, OLC highlighted that “the level of direction and supervision exercised by a superior over a subordinate need not be total for the subordinate to qualify as an inferior officer.”[101]  But, it categorized the Edmond inquiry into two factors: (1) removability “by an officer other than the President”; and (2) work subjected to “some level” of “direct[ion] and supervis[ion]” by an official appointed by the President with Senate confirmation.[102]  In a recent decision by the D.C. Circuit upholding the Special Counsel’s appointment, the court viewed Edmond as applying three distinct characteristics: “degree of oversight, final decision-making authority, and removability.”[103]

Moving forward, it is not clear whether Morrison is still good law after Edmond.  Some believe that it is part of the anti-canon.[104]  Justice Thomas, for one, has expressed his doubts about Morrison.[105]  Whereas Morrison focused on authority, Edmond focused on hierarchy.[106]  However, despite the tension between the two, the First Circuit recently applied both Morrison and Edmond in determining whether the Financial Oversight and Management Board Members, a body established by Congress to help Puerto Rico with its financial crisis, were principal officers.[107]  On June 20, 2019, the Supreme Court granted the petition for a writ of certiorari for the First Circuit case, and it may present an opportunity for the Court to formally overturn Morrison.[108]  Until the Supreme Court provides more clarification, any future Appointments Clause litigation should argue that a chairperson is a principal officer under both the Morrison and Edmond inquiries.[109]  As explained below, chairpersons would likely qualify as principal officers under Morrison, but it is indeterminate under Edmond due to the relative weight given to the President’s power to remove chairpersons.  

      III. Analytical Framework of Chairs

Unsurprisingly, not all chairpersons have the same responsibilities and powers, but most of them control “the day-to-day administration of the agency, agency personnel, and the agency’s agenda.”[110]  As compared to other board members or commissioners, the chair has the same regulatory capacities, but she also administers the law in her executive capacity similar to the head of a department.[111]

Generally speaking, “chairs matter” and they are viewed as presidential proxies.[112]  Scholars and former chairpersons have noted that the chair is an important position,[113] but no one has questioned whether Congress can delegate the appointment to the individual members or the President alone.[114]  Chairpersons are generally not only a first among equals: many wield specific authority due to their position and are compensated at a higher level than other members on a board.  As reported in Table 1, nearly 74% of the multimember independent agencies listed do not require the chair to go through further Senate confirmation.[115]

      a. Chairperson versus Board

Table 2 reiterates that not all chairs are equal.  A major distinction is the statutory authority (if any) of chairs.  For example, 46 U.S.C. § 301 elaborates on the Federal Maritime Commission (FMC) chairperson’s general and particular powers.[116]  On the other hand, the NLRB chairperson’s power is not even mentioned in the statute; it only states that the President can designate the chair.[117]  Sometimes, the statute is ambiguous about the extent of the chair’s powers: the Federal Labor Relations Authority (FLRA) chairperson is “the chief executive and administrative officer of the Authority.”[118]  In addition to statutes, there are numerous agency regulations that attempt to fill in any gaps.[119]  Looking back at the NLRB, its rules and regulations do provide slightly more clarity on actual responsibilities,[120] but just as the Board promulgated these regulations, it can revise them as well, subject to any statutes about the Board’s rulemaking authority.

As a result, the division of power between chair and the other board members is murky.  In one instance, the NLRB chair issued a directive to the Executive Secretary to publish an internal document regarding which board members have cases pending.[121]  The full Board responded by voting to countermand the directive.[122]  While it did not escalate into a greater legal fight, other occasions required OLC to step in as an adjudicator to resolve these disagreements.[123]  When it comes to intra-agency disputes, OLC opinions have greater relevance because “there is no official forum (such as a court) for regular resolution of intra-agency management questions.”[124]

In one instance, the former chair (but still a current member) of the Chemical Safety and Hazard Investigation Board argued that the chair essentially has “complete authority over all aspects” except for a few matters that the Board must vote on.[125]  OLC refused to adopt the former chair’s view, and generally found that “the day-to-day administration of Board matters and execution of Board policies are the responsibilities of the chairperson, subject to Board oversight, while substantive policymaking and regulatory authority is vested in the Board as a whole.”[126]  Furthermore, when there is a dispute “over the allocation of authority in specific instances, the Board’s decision controls, as long as it is not arbitrary or unreasonable.”  However, the opinion notes the tension present and how hard it is to draw the line between chair and board (or commission) functions:

Some degree of managerial discretion is inherent in the concept of an executive or administrative office, and the statutory assignment of the Board’s executive and administrative functions to the chairperson necessarily vests the chairperson with a degree of managerial autonomy on which the Board, in the proper exercise of its powers, cannot trench. Likewise, some day-to-day aspects of Board affairs may be so unrelated to the Board’s effective execution of its statutory responsibilities that they cannot be said to be proper objects of the full Board’s authority. At the same time, however, any number of Board activities or day-to-day aspects of Board business, while at least in part administrative and even seemingly mundane, may involve or affect the Board’s duties and functions in ways that are of legitimate concern to the Board as a whole. Where that is the case, it is the prerogative of the Board to pass upon such issues in ways appropriate to its function as a policymaking and rule-setting body.[127]

The former chair also tried to make a comparison with the NTSB chair, who allegedly “is the chief moving force on the NTSB and principally responsible for executing its policies,” because the Board’s legislative history indicated that it would be modeled after the NTSB.[128]  OLC rejected this parallel argument, and distinguished NTSB based on the grounds that this “is a matter of the development, through collegial practice and over time, of the NTSB’s own internal policies concerning delegation of authority to the NTSB chairperson, the NTSB’s acquiescence in the chairperson’s assertion of authority over certain substantive areas, and the general evolution of the NTSB’s current allocation of responsibilities.”[129]

In a more recent OLC opinion, a Board member of the Defense Nuclear Facilities Safety Board sought to view written performance appraisals of senior employees.[130]  The agency’s Office of General Counsel believed that this was exclusively in the chairperson’s authority, but OLC rebutted that view.[131]  In a footnote, OLC reiterated that there are some executive and administrative manners that the Board cannot trench, but the opinion did not have to examine the scope of the chair’s autonomy.[132]

The anecdote about the NTSB shows that statutes are only one part of the story.  Inner workings of a body, while rarely on full display, provide more insight on a chair’s role.  For instance, the NLRB chair has no statutory duties, and as a former chair recounted, “the chairmanship—given the authority of the general counsel to appoint regional staff and recommend regional directors to the entire Board (not just to the chairman)—is more like a bully pulpit than a position of authority.”[133]  In contrast, a former FCC commissioner recounted: “From personal experience I can report that the FCC’s Chairman and a handful of staff—usually selected by the chair—can and usually do exercise nearly total control over that agency’s basic policy agenda.”[134]  Except for interviews and future OLC opinions, it is nearly impossible to decipher internal agency policy and how it relates to a chair’s power.

      b. Salary

One form of congressional control over agencies is that Congress can create, design, and even destroy agencies.[135]  More specifically, Congress determines the salary level for a chairperson and her members.  Any difference—or lack of one—sheds light on how Congress perceives the relationship between the chair and individual members.

After each presidential election, the Senate Committee on Homeland Security and Governmental Affairs and the House Committee on Oversight and Government Reform alternately publish the Plum Book, a publication on the major leadership positions in the legislative and executive branches, including their salaries and pay rates.[136]  According to the Plum Book, many, but not all, chairs are classified as PAS positions even if the statute implies that a chair is a non-PAS position.[137]  In addition, many chairpersons are paid under the Executive Schedule (EX), the pay levels reserved to the top federal executives in the government.[138]  For some agencies like the African Development Foundation and the Corporation for National and Community Service, their chairpersons do not receive compensation.[139]  On the other hand, the chairperson of the National Council on Disability receives a per diem salary, while the chairpersons of the United States Postal Service, Federal Retirement Thrift Investment Board, and Tennessee Valley Authority are compensated on another pay plan. [140]  Table 3 looks only at chairpersons compensated under the EX, and how their salaries compare with other members.[141]

Where a chair is paid the same amount, it can indicate that chair is essentially a “first among equals” with no additional substantive responsibilities.  It is understandable that the chairs of the EAC and FEC are paid the same as members because there is an annual rotation of the chairmanship.[142]  It is unclear, however, why the chair of the Defense Nuclear Facilities Safety Board and the chair of the Chemical Safety and Hazard Investigation Board are paid the same as their respective members.[143]  For remaining agencies, the differences in payment schemes can bolster the point that the chairperson is a PAS position.

      c. Comparison with PAS positions

Finally, it is valuable to compare the varying levels of authority for non-PAS and PAS chairs.  If there is no distinguishable difference between the two, then there is no reason why we should have this inconsistency.  As demonstrated above, not all non-PAS chairs are the same, and the best way to have a comparison with PAS chairs is by including only non-PAS chairs that have statutory duties and an EX pay plan that is greater than her fellow members.  Specifically, the chairs of the Federal Energy Regulatory Commission (FERC), FMC, FTC, Nuclear Regulatory Commission (NRC), Occupational Safety and Health Review Commission (OSHRC), Postal Regulatory Commission (PRC), STB, Equal Employment Opportunity Commission (EEOC), Farm Credit Administration (FCA), Federal Communications Commission (FCC), International Trade Commission (ITC), National Credit Union Administration, and SEC are particularly relevant.

From here, it is valuable to see how the varying levels of authority that any of the chairs listed compare with a PAS chair.  Table 4 shows this evaluation by considering the following statutory or regulatory powers of a sample group of non-PAS chairs with a sample of PAS chairs: (1) Appointment and Supervision; (2) Distribution of Business; (3) Expenditure of Funds; (4) Represent the Agency; (5) Debt or Claim Collection/Settlement Authority; (6) Production of Documents; (7) Appeals; and (8) Preside at Meetings.  These parameters are drawn from common chairperson powers found in the different statutes and regulations.  Arguably, the authority conferred by statute is paramount to authority conferred by regulation because unlike the congressionally enacted statute, the independent agency could engage in rulemaking to enlarge or diminish the chairperson’s current authority.  However, this difference does not impact the chairperson’s existing powers, and most of the authority conferred came from statutes.

Table 4 shows that the Appointment and Supervision power is nearly consistent throughout both PAS and non-PAS groups.  As for other powers, distributing the business and representing the agency is the next most common.  After that, no other pattern emerges.

While these eight categories represent common chairperson powers, many non-PAS chairs wield additional unique powers not listed in the table.  For example, the ITC chairperson can fire specific employees and formulate the ITC’s annual budget.[144]  The NRC chairperson can also remove certain officers and has “ultimate authority for all NRC functions pertaining to an emergency involving an NRC Licensee.”[145]  Finally, the FERC chairperson wields power over the procurement of experts and consultants, while the FCC chairperson has authority to take final “actions of routine character” and final “actions of non-routine character which do not involve policy determinations.”[146]  In all, a non-PAS chair could wield significantly more control over executive and administrative matters than a PAS chair.

      d. Application of Officers Analysis

As mentioned, the first step in an Appointments Clause challenge to an action by a chairperson is to determine whether the chairperson is an employee or officer.[147]  There is reason to believe that everyone will agree that chairpersons are officers.  For one, many of the statutes already name the chair as the “chief executive officer” or “chief administrative officer” of the agency.[148]  Thus, by putting “officer” in the description of the chairperson, Congress’s intent was also to make chairs officers.  Although there are several statutes that do not list their chairpersons as “officers,” it still would seem problematic for the government to argue that, for example, the FERC chair is not an officer.[149]  Even so, the Lucia analysis proves that chairpersons are officers.

Under Lucia, chairpersons must have a “continuing” role, and not “occasional or temporary.”[150]  Instead, the chairperson is a permanent position in any executive agency because she is tasked with running the executive and administrative operations of her respective agency.  While not all statutes specify the “duties, salary, and means of appointment” of chairs, this should not disqualify a chair, especially when duties may be prescribed by internal policies.[151]

The chair must also “exercis[e] significant authority pursuant to the laws of the United States.”[152]  Assuming that the phrase “laws of the United States” only applies to statutes and not regulations, chairs normally have some version of these four basic statutory functions: (1) appointment and supervision of employees and/or officers; (2) distribution of business among the agency units; (3) expenditure and supervision of funds; and (4) representation of the agency.[153]  Arguably, the chair’s appointment power should be sufficient since it allows the chair to appoint and oversee staff or officials who would execute the agency’s functions even though the appointment decision is not final.[154]  Moreover, each agency may have specific powers that suggest significant authority.  For example, the FERC and ITC chairs can bind their respective agencies because they have procurement power.[155]  Therefore, chairpersons would satisfy Lucia.

      e. Application of Principal or Inferior Officer Analysis

Once it is established that a chair is an officer, the next step is to determine whether a chair is a principal or inferior officer.  If the chairperson is a principal officer, then she would have to be appointed by the President and confirmed by the Senate.  It appears that Edmond replaced Morrison as the test, but since OLC and the First Circuit recently applied both Edmond and Morrison, both tests will be utilized until the Supreme Court provides further clarification.[156]

Morrison looks at four factors: (1) removability by a higher official; (2) scope of duties; (3) scope of jurisdiction; and (4) scope of office’s tenure.[157]  Only the President remove a chair; she has “administrative duties outside of those necessary to operate her office,” such as hiring staff for the agency as a whole and not just for the chairperson’s office; her jurisdiction is over an entire agency; and her office is not limited in duration like a temporary special counsel.[158]  These factors apply for the non-PAS chairs listed in Table 4 and are sufficient to pass the Morrison test.

Edmond looks at whether a chair’s “work is directed and supervised at some level by others who were appointed by Presidential nomination with the advice and consent of the Senate.”[159]  Free Enterprise Fund adopted this view and took into consideration the officer’s removability.[160]  As summarized by OLC, Edmond looks at if a chair is “removable by an officer other than the President and whether the officer’s work is subject to ‘some level’ of “direct[ion] and supervis[ion]’ by an official appointed by the President, with the advice and consent of the Senate.”[161]  In a recent decision by the D.C. Circuit upholding the Special Counsel’s appointment, the court viewed Edmond as evaluating three distinct characteristics: “degree of oversight, final decision-making authority, and removability.”[162]

Applying Edmond to the non-PAS chairs in Table 4 does not produce a clear result because of the unequal weight given to the factors.[163]  The Supreme Court has given special emphasis to the removal power because it is a “powerful tool for control.”[164]  The Board or Commission cannot remove a chair; that power belongs to the President.[165]  However, the multimember body does supervise the chair.[166]  It is possible that the body also controls the chair because there are some instances where the Board can control a chair’s actions.[167]  Besides the President ultimately having control over the chair, another difference from the previous cases is that a chairperson also sits as a member of the body that is supposed to be “directing and supervising” the chairperson.  Although this is not entirely self-regulation, the chairperson does have a vote (and other levers of influence) in determining internal agency policies that affect her own executive and administrative functions.[168]

Finally, it is not clear what final decision-making authority the chair has without looking at the inner workings of each respective agency.  Regardless, as stated, the three factors are not supposed to be weighed “independently and equally.”[169]  Even if degree of oversight and final decision-making go against chairs being considered as principal officers, it does not seem plausible to overcome the President’s removability of the chair as a “powerful tool for control.”[170]  The Edmond factors, unlike the Morrison factors, are not as conclusive; thus, the consequences of whether chairs in general are principal or inferior officers are important for either determination.

      f. Chair as Inferior Officer Consequences

If the result were that the chairs of the FCC, FERC, or NRC (non-PAS chairs) are inferior officers, then there is no reason why that rationale would not extend to the chairs of the Consumer Product Safety Commission (CPSC), Merit Systems Protection Board (MSPB), or National Transportation Safety Board (NTSB).  As shown by Table 4, PAS chairs do not contain any more authority than their non-PAS equivalents such that would elevate them as principal officers.[171]  Thus, should Congress act, it could alter the PAS status of those chairs.[172]

However, the result would be counterintuitive.  The dual designation means that a chair is an inferior officer subject to removal at will by the President, and also a principal officer (as a member of the body) subject to removal for good cause by the President.[173]  There is “a measure of the status and prestige associated with the position of chairperson,” and it seems odd that this promotion to the dominant role of chairman from member would correspondingly demote someone to an inferior officer.[174]  While this may not impact the chairmanship role in agencies, it would cement the President’s influence in being able to select (and remove) the chair.[175]

The only other instance where an Executive branch officer can serve as both a principal and inferior officer is in the cases of Acting Department Heads.  For example, the Deputy Attorney General is a principal officer, but Acting Attorney General is considered an inferior officer under OLC.[176]  The rationale is that because a “subordinate officer is charged with the performance of the duty of the superior for a limited time, and under special and temporary conditions, he is not thereby transformed into the superior and permanent official.”[177]  Even if OLC’s analysis was correct, it would not apply to chairpersons because their duties are not temporary nor are there special circumstances.

A dual designation of chairs would be followed with litigation.  This past term, the Supreme Court heard an Appointments Clause challenge to a judicial officer’s dual service.[178]  A military judge on the Court of Military Commission Review (CMCR), a principal officer, also sat on the Court of Criminal Appeals (CCA), a body composed of inferior officers.[179]  The Court rejected the Clause’s application: “This Court has never read the Appointments Clause to impose rules about dual service, separate and distinct from methods of appointment.”[180]  However, the Court left open the possibility to consider dual service restrictions under the Appointments Clause.[181]  In what was likely dicta, the Court noted that there was no plausible way that the principal officer’s service on the CMCR would “undu[ly] influence” his inferior officer colleagues on the CCA.[182]  Furthermore, the courts did not have any overlapping jurisdiction.[183]  When comparing this to the relationship between chairs and their members, distinctions are present.  A chair does have overlapping jurisdiction with members, and there is nothing stopping members from “undu[ly] influenc[ing]” their chairs.[184]  Thus, when Chairman Pai sits as a FCC Commissioner, he is different from other FCC Commissioners, but it does not appear that the Court would want to entertain a dual service case any time soon.

      g. Chair as Principal Officer Consequences

If the chair is a principal officer then she automatically holds a PAS position under the Constitution, triggering the Federal Vacancies Reform Act (FVRA).[185]  Normally, the FVRA governs how the President chooses an acting head.[186]  Yet, the FVRA does not apply to “any member who is appointed by the President, by and with the advice and consent of the Senate to any board, commission, or similar entity that . . . is composed of multiple members; and governs an independent establishment.”[187]  Many, if not all, of the entities listed in the Tables govern an independent establishment, but it is unclear whether the exclusion applies to chairpersons.[188]

OLC previously held that the chairperson of the Chemical Safety and Hazard Investigation Board does fall under this exclusion.[189]  This determination makes sense because a chair has to be a member of the body.  Moreover, there is no functional difference if the chair was simultaneously appointed as member or whether she was elevated to chair.  However, OLC disregarded the fact that a chair can resign from her position and still be a member of the body, which is exactly what happened when the chairperson of the Chemical Safety and Hazard Investigation Board resigned but was still a Board member.[190]  There is good reason in limiting the exclusion to “any members,” but considering that a vacancy in the chairmanship does not necessarily result in a vacancy in the membership, the FVRA could apply in these limited circumstances where the chair resigns only from the chairmanship.

Assuming the FVRA does apply, it can impact how acting chairpersons are selected.  Currently, OLC holds the position that when the FVRA does not apply and in absence of a specific statutory provision, “it should be assumed that the power to designate an [a]cting [c]hair[person] remains in the President.”[191]  But when the FVRA applies and there is a statutory provision on vacancies, OLC and a recent District Court case adopted the view that depending on the statute, the FVRA allows the President to depart from the statutory succession order.[192]

In English v. Trump, there was a dispute over who was the acting Director of the Consumer Financial Protection Bureau (CFPB).[193]  The President and the outgoing Director both named different acting Directors.[194]  The President cited his authority under the FVRA, but the Deputy Director (who the outgoing Director selected as his successor) cited the Dodd-Frank Act because it entitled her to be acting Director.[195]  In examining the Dodd-Frank Act, the court noted the law was silent on the President’s ability to appoint an acting Director, making it “impossible to conclude that Dodd-Frank expressly makes the FVRA’s appointment mechanisms unavailable.”[196]  The Deputy Director argued that the Act’s use of the word “shall” implies that her appointment is “mandatory” and “unqualified.”[197]  The court acknowledged that “shall” is a semantic mess and that other statutory provisions point to a seemingly required appointment.[198]

Moving to principles of statutory construction, the court relied on the harmonious-reading canon, the presumption against implied repeals, and the canon of constitutional avoidance.[199]  First, “when two statutes are capable of coexistence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective.”[200]  Here, the FVRA and the Dodd-Frank Act were capable of co-existence.[201]  Second, the Deputy Director was effectively seeking a partial repeal of the FVRA, and the repeal is not presumed “unless the `intention of the legislature to repeal [is] clear and manifest.’”[202]  Finally, the Deputy Director’s interpretation of the Act would have likely impaired the President’s obligation to “take care that the laws be faithfully executed” because a “key means” of doing so is “the power of appointing, overseeing, and controlling those who execute the laws.”[203]  Using these canons, the court upheld the President’s use of the FVRA to appoint the acting Director.[204]

Like the CFPB, agencies such as the FCC, FDIC, and NRC have statutory succession provisions in place for chairpersons.  The FCC and NRC provisions are weaker than the CFPB’s: “In the case of a vacancy in the office of the chairman of the [FCC], or the absence or inability of the chairman to serve, the Commission may temporarily designate one of its members to act as chairman until the cause or circumstance requiring such designation shall have been eliminated or corrected”,[205] and “The Chairman may from time to time designate any other member of the [NRC] as Acting Chairman to act in the place and stead of the Chairman during his absence.”[206]  In contrast, the FDIC’s provision is closer in language to the CFPB’s: “In the event of a vacancy in the position of Chairperson of the Board of Directors or during the absence or disability of the Chairperson, the Vice Chairperson shall act as Chairperson.”[207]  In none of these statutes, however, is there a clear congressional intent to displace the FVRA.

Where the FVRA is applicable, even with a statutory succession provision, it would be hard to fight the FVRA’s effect.  Moreover, the FVRA can possibly lead to an unprecedented situation where a non-member serves as acting chair.[208]

      IV. Conclusion

The current appointment process of multimember independent agency chairpersons is inconsistent and incoherent.  Depending on the body, a non-PAS chair wields significantly more control over executive and administrative matters than a PAS chair.  Yet, despite the extensive literature on independent agencies, scholars have failed to focus on whether the presidential designation of chairs is constitutional.  Put simply, if chairs matter, then the Appointments Clause should matter too.

In this Article, I have sought to address the issue head on by taking a historical, comparative, and functional perspective about agency chairs.  To avoid any Appointments Clause concerns, Congress should harmonize the appointment process by subjecting all chairperson appointments to “advice and consent,” but allow a President to confirm a nominee as both chairperson and commissioner.  The option for a simultaneous confirmation would allow the Senate to be involved in the chairperson appointment process and give the President the flexibility to choose who she wants to head an agency.  A legislative fix is encouraging, but the true impetus for Appointments Clause challenges has been through the courts and not the legislature.  For example, shortly after Buckley v. Valeo invalidated the appointments of certain FEC commissioners, the Court encouraged Congress to act, which it did by amending the Federal Election Campaign Act and converted all FEC commissioners into PAS positions.[209]

Considering the reactive nature of Congress, successful Appointments Clause litigation could push Congress to act.  Whether it is an action taken by the chairperson or someone that the chair appointed, a conflict between the chair and the members, or a group of Senators (or the Senate) disappointed that the chairperson bypassed “advice and consent,” the possibilities for litigation are endless.  In bringing a suit, there needs to be special consideration of the specific agency’s impact on Americans and its statutory regime surrounding chairpersons.

Even if the Appointments Clause question is resolved, other legal questions will arise.  More specifically, courts should clarify the relationship between a chairperson and agency members, whether a dual office claim could apply, and how the FVRA fits into this scheme.  This Article cannot address all the concerns raised by the appointment procedure of chairs, but its hope is to awaken scholarly interest in doing so.

Appendix

Table 1 – PAS Chairs versus Non-PAS Chairs

PAS

Non-PAS

Chemical Safety and Hazard Investigation Board; Consumer Product Safety Commission (CPSC); Federal Reserve; Merit Systems Protection Board (MSPB); National Transportation Safety Board (NTSB); Administrative Conference of the United States (ACUS); Advisory Council on Historic Preservation; Commodity Futures Trading Commission (CFTC); Federal Deposit Insurance Corporation (FDIC); Railroad Retirement Board[210]

Commission on Civil Rights; United States Election Assistance Commission (EAC); Federal Election Commission (FEC); Federal Energy Regulatory Commission (FERC); Federal Maritime Commission (FMC); Federal Labor Relations Authority (FLRA); Federal Trade Commission (FTC); Mine Safety and Health Review Commission; National Labor Relations Board (NLRB); National Mediation Board (NMB); Nuclear Regulatory Commission (NRC); Occupational Safety and Health Review Commission (OSHRC); Postal Regulatory Commission (PRC); Surface Transportation Board (STB); Defense Nuclear Facilities Safety Board; Equal Employment Opportunity Commission (EEOC); Farm Credit Administration (FCA); Federal Communications Commission (FCC); United States International Trade Commission (ITC); National Credit Union Administration; National Council on Disability; Securities and Exchange Commission (SEC); United States Postal Service (USPS); African Development Foundation; Corporation for National and Community Service; Federal Retirement Thrift Investment Board; Tennessee Valley Authority (TVA)[211]

 

Table 2 – Chairpersons with Statutory Duties[212]

	PAS	Non-PAS
Chairpersons with specific statutory duties	CPSC; Federal Reserve; MSPB; NTSB; ACUS; Advisory Council on Historic Preservation; CFTC; FDIC[213]	FEC; FERC; FMC; FTC; NRC; OSHRC; PRC; STB; Defense Nuclear Facilities Safety Board; EEOC; FCA; FCC; ITC; National Credit Union Administration; National Council on Disability; SEC; Corporation for National and Community Service; Federal Retirement Thrift Investment Board[214]
Chairpersons with vague or no statutory duties	Chemical Safety and Hazard Investigation Board; Railroad Retirement Board[215]	Commission on Civil Rights; FLRA; Mine Safety and Health Review Commission; NLRB; NMB; EAC; USPS; African Development Foundation; TVA[216]

 

Table 3 – EX Pay Plan Chairperson Salary Comparison with Members

	PAS	Non-PAS
Chairperson Salary Higher	Advisory Council on Historic Preservation; CPSC; Federal Reserve; MSPB; NTSB; ACUS; CFTC; FDIC; Railroad Retirement Board[217]	FERC; FMC; FLRA; FTC; Mine Safety and Health Review Commission; NLRB; NMB; NRC; OSHRC; PRC; STB; EEOC; FCA; FCC; ITC; National Credit Union Administration; SEC[218]
Chairperson Salary Equal	Chemical Safety and Hazard Investigation Board[219]	Commission on Civil Rights; EAC; FEC; Defense Nuclear Facilities Safety Board[220]

 

Table 4: Comparison of Chairperson Powers from Statutory and Regulatory Authorities[221]

	FCC	FCA	FERC	FMC	NRC	FDIC	CPSC	NTSB	MSPB
PAS position?						X	X	X	X
Appointment and Supervision	S	S	S	S	S		S	S	S
Distribution of Business			S	S	S		S	S
Expenditure of Funds				S	S		S	S
Represent the Agency	S	S		S	S	S
Debt or Claim Collection/Settlement Authority	R	R		R					R
Production of Documents		R
Appeals			R	R			R		R
Preside at Meetings	S		S	R	S

S = Statutory

R = Regulatory

 

* B.B.A., Baruch College, 2016; J.D., Harvard Law School, 2019. The author would like to thank Intisar Rabb, Professor of Law at Harvard Law School, and Shalev Roisman, Associate Professor of Law at James E. Rogers College of Law, for helpful comments and conversations on this Article. The author also thanks the staff and editors at the Harvard Journal on Legislation for their extremely careful and thoughtful edits to the Article.

[1] Ajit Pai FCC Chairman, Fed. Commc’n Comm’n, https://www.fcc.gov/about/leadership/ajit-pai [https://perma.cc/ER2L-GUL2].

[2] Id.

[3] See infra Table 1; see also infra Part I.

[4] See also NLRB v. SW Gen., Inc., 137 S. Ct. 929, 935 (2017) (“The Senate’s advice and consent power is a critical ‘structural safeguard[] of the constitutional scheme.’” (quoting Edmond v. United States, 520 U.S. 651, 659 (1997))).

[5] For example, the Securities and Exchange Commission chairperson was appointed and confirmed as both a Commissioner and the chairperson even though the statute does not mandate it.  See Chairman Jay Clayton, U.S. Sec. & Exch. Comm’n, https://www.sec.gov/biography/jay-clayton [https://perma.cc/CQM5-FNRS]; see also Reorganization Plan No. 10 of 1950 § 3, 64 Stat. 1265.

[6] See generally 138 S. Ct. 2044 (2018).

[7] See Complaint for Declaratory and Injunctive Relief, Blumenthal v. Whitaker, No. 1:18-cv-02664 (D.D.C. Nov. 19, 2018).

[8] 279 F. Supp. 3d 307 (D.D.C. 2018).

[9] Id. at 311.

[10] 28 U.S.C. § 504 (2018) (Deputy Attorney General); 29 U.S.C. § 552 (2018) (Deputy Secretary of Labor); 20 U.S.C. § 3412(a) (2018) (Deputy Secretary of Education).

[11] Current Attorney General William P. Barr served as Deputy Attorney General from 1990 to 1991 before his first tenure as Attorney General from 1991 to 1993.  See Attorney General William Pelham Barr, U.S. Dep’t of Justice, https://www.justice.gov/ag/bio/barr-william-pelham [https://perma.cc/LYW7-ANTX].  Once he was elevated, then-Deputy Attorney General Barr had to testify at his Senate confirmation hearings.  See Ronald J. Ostrow, Barr Opposed to Roe vs. Wade Decision : Justice Dept.: The attorney general-designate tells Senate panel right to privacy does not extend to obtaining an abortion, L.A. Times (Nov. 14, 1991), https://www.latimes.com/archives/la-xpm-1991-11-14-mn-1917-story.html [https://perma.cc/K5ND-CR8Z].

[12] Since the Founding of the country, there have been five incumbent associate justices who went through a separate confirmation hearing for the Chief Justice position.  They include Justices William Cushing, Edward White, Harlan Stone, Abe Fortas, and William Rehnquist. See Supreme Court Nominations: Present-1789, U.S. Senate, https://www.senate.gov/pagelayout/reference/nominations/Nominations.htm#10 [https://perma.cc/FCB6-NUT6].

[13] Infra Table 1.  Members include the other board members or commissioners of an agency.

[14] Arguably, from statutory and regulatory sources, the FCC chairperson wields more power than the FDIC chairperson.  See infra Table 4.

[15] See Kirti Datla & Richard L. Revesz, Deconstructing Independent Agencies (and Executive Agencies), 98 Cornell L. Rev. 769, 797 (2013); see also Marshall J. Breger & Gary J. Edles, Established by Practice: The Theory and Operation of Independent Federal Agencies, 52 Admin. L. Rev. 1111, 1173 (2000).

[16] See, e.g., Lucia v. SEC, 138 S. Ct. 2044, 2053–54 (2018) (invalidating the appointment of SEC Administrative Law Judges); Freytag v. Comm’r, 501 U.S. 868, 880 (1991) (“The structural interests protected by the Appointments Clause are not those of any one branch of Government but of the entire Republic.”); Buckley v. Valeo, 424 U.S. 1, 143 (1976) (invalidating the Federal Election Commission’s structure under the Appointments Clause); see also NLRB v. SW Gen., Inc., 137 S. Ct. 929, 948 (2017) (Thomas, J., concurring) (recognizing that the “Appointments Clause is not an empty formality” even though the “burdens on governmental processes” may “often seem clumsy, inefficient, even unworkable” (quoting INS v. Chadha, 462 U.S. 919, 959 (1983))).

[17] See Chairman Jay Clayton, U.S. Sec. & Exch. Comm’n, https://www.sec.gov/biography/jay-clayton [https://perma.cc/A5H9-F8GL]; see also Reorganization Plan No. 10 of 1950 § 3, 64 Stat. 1265.

[18] Chief Justice Roberts was originally nominated to replace Justice O’Connor, but when then-Chief Justice Rehnquist died, Roberts’ nomination was withdrawn and he was subsequently renominated for the Chief Justice position.  See Barry J. McMillion and Denis S. Rutkus, Supreme Court Nominations, 1789 to 2017: Actions by the Senate, the Judiciary Committee, and the President, Cong. Res. Serv. 11 n.36 (2018), https://fas.org/sgp/crs/misc/RL33225.pdf [https://perma.cc/XQN4-H565].  If he had first been appointed as Associate Justice, a hypothetical Justice Roberts would have needed to go through “advice and consent” again for the Chief Justiceship.  See infra Part I(a).

[19] See U.S. Const. art. I, § 3, cl. 6 (“When the President of the United States is tried, the Chief Justice shall preside”); 28 U.S.C. § 601 (2018).

[20] James E. Pfander, The Chief Justice, the Appointment of Inferior Officers, and the “Court of Law” Requirement, 107 Nw. U. L. Rev. 1125, 1132–34 (2013).

[21] See infra Part III; see also infra Table 4.

[22] See Myers v. United States, 272 U.S. 52, 136 (1926) (explaining why the decisions of the First Congress “must necessarily constitute a precedent”).

[23] Paul S. Dempsey, The Rise and Fall of the Interstate Commerce Commission: The Tortuous Path from Regulation to Deregulation of America’s Infrastructure, 95 Marq. L. Rev. 1151, 1151–52 (2012).

[24] Clarence A. Miller, Interstate Commerce Commissioners: The First Fifty Years: 1887 – 1937, 5 Geo. Wash. L. Rev. 580, 594 (1937).

[25] Id.

[26] Id. at 589–90.

[27] Id. at 590.

[28] See Robert C. Fellmeth, The Interstate Commerce Omission: The Public Interest and the ICC 20–39, 311 (1970); see also Dempsey, supra note 23, at 1174.

[29] Fellmeth, supra note 28, at 311.

[30] Id.

[31] See Susan B. Foote, Independent Agencies Under Attack: A Skeptical View of the Importance of Debate, 1988 Duke L.J. 223, 223 n.5.

[32] See Dempsey, supra note 23, at 1182–83 (noting that independent agencies were still under the influence of the “revolving door”).

[33] ICC Termination Act of 1995, Pub. L. No. 104-88, 109 Stat. 803. At that point, the ICC was showing elements of “de facto deregulation and de jure regulation” to the dissatisfaction of Congress. Dempsey, supra note 23, at 1185.

[34] Henry B. Hogue, Presidential Reorganization Authority: History, Recent Initiatives, and Options for Congress, Cong. Res. Serv. 18 (2012), https://fas.org/sgp/crs/misc/R42852.pdf [https://perma.cc/7RBX-WQ56].

[35] S. Rep. No. 80-344, at 4 (1947).

[36] Act of Jul. 7, 1947, Pub. L. No. 162-80, 61 Stat. 246 (codified in scattered sections of 5 U.S.C.); see also John W. Lederle, The Hoover Commission Reports on Federal Reorganization, 33 Marq. L. Rev. 89, 91 (1949).

[37] For the establishment of the Commission on Organization of the Executive Branch of the Government, 61 Stat. 246, 248 § 10 (1947).

[38] Lederle, supra note 36, at 91.

[39] Breger & Edles, supra note 15, at 1166; see also Hogue, supra note 34, at 19; Commission on Organization of the Executive Branch of the Government, The Independent Regulatory Commissions 5–6 (1949) (“Administration by a plural executive is universally regarded as inefficient. . . . [T]hose cases where administration has been distinctly superior are cases where the administrative as distinguished from the regulatory duties have been vested in the chairman.”).

[40] Daniel E. Ho, Measuring Agency Preferences: Experts, Voting, and the Power of Chairs, 59 DePaul L. Rev. 333, 359 (2010).

[41] Breger & Edles, supra note 15, at 1166.

[42] See Ho, supra note 40, at 359.  Professor Ho notes that at that time the President already had the power to designate the chairs of the FCC and NLRB. Id.

[43] Id.; see also Senate Kills ICC and FCC Revamping, Wash. Post, May 18, 1950, at 1.  For a more detailed look at the Senate’s consideration of the Reorganization Plans, see Authority of the President to Designate Another Member as Chairman of the Federal Power Commission, 1 Op. O.L.C. Supp. 206, 234–36 (1961).

[44] Ho, supra note 40, at 359–60; see also Senate Upholds Kennedy Plans for the F.T.C. and the C.A.B., N.Y. Times, June 30, 1961, at 10.

[45] Ho, supra note 40, at 360.

[46] Id.; see also infra Part III.

[47] Although the Constitution does not mention independent agencies, these are among the few sections that talk about executive Departments.

[48] U.S. Const. art. II, § 2, cl. 2 (emphasis added).

[49] Id. § 2, cl. 1 (emphasis added).

[50] Id. amend. XXV, § 4 (emphasis added).

[51] 99 U.S. 508, 511 (1879).  The Twenty-Fifth Amendment was not adopted then.

[52] 501 U.S. 868, 886–87 (1991).

[53] See id. at 887; see also H.R. Rep. No. 203 at 3, 89th Cong., 1st Sess. (1965) (“[O]nly officials of Cabinet rank should participate in the decision as to whether presidential inability exists . . . . The intent . . . is that the Presidential appointees who direct the 10 executive departments named in 5 U. S. C. 1 [now codified as § 101], or any executive department established in the future, generally considered to comprise the President’s Cabinet, would participate . . . in determining inability.”).  President Trump’s Cabinet includes the Vice President, heads of the fifteen executive departments, the White House Chief of Staff, and heads of the Environmental Protection Agency, Office of Management and Budget, United States Trade Representative, Central Intelligence Agency, Office of the Director of National Intelligence, and Small Business Administration.  The Cabinet, The White House, https://www.whitehouse.gov/the-trump-administration/the-cabinet/ [https://perma.cc/AVV8-WV96].

[54] Freytag, 501 U.S. at 886.  The Freytag Court also relied on Burnap v. United States, 252 U.S. 512, 515 (1920), to support the view that “head of a Department means . . . the Secretary in charge of a great division of the executive branch of the Government, like the State, Treasury, and War, who is a member of the Cabinet.”  501 U.S. at 886.

[55] Freytag, 501 U.S. at 916 (Scalia, J., concurring).  Justices O’Connor, Kennedy, and Souter also joined in the concurrence.

[56] Id. at 918.

[57] 561 U.S. 477 (2010).

[58] Id. at 511.

[59] Id. at 511 n.11.

[60] Id. at 512–13.

[61] Id. at 512 (citing Reorganization Plan No. 10 of 1950, § 1(b)(1)).

[62] In Lucia v. SEC, the petitioner successfully challenged his administrative proceeding because the ALJ was not properly appointed.  See 138 S. Ct. 2044, 2055–56 (2018).  In NLRB v. Noel Canning, the respondents successfully challenged an NLRB order because three members were not properly appointed under the Recess Appointments Clause, a qualified exception to the Appointments Clause.  See 573 U.S. 513 (2014).  After Matthew Whitaker was appointed Acting Attorney General, a series of lawsuits were filed by different parties affected by his actions contending that the appointment was not constitutional.  Victoria Clark, What’s Happening in the Litigation Over Matthew Whitaker’s Appointment?, Lawfare (Dec. 7, 2018), https://www.lawfareblog.com/whats-happening-litigation-over-matthew-whitakers-appointment [https://perma.cc/QRL2-9A52].

[63] Buckley v. Valeo, 424 U.S. 1, 126 n.162 (1976).

[64] See infra Part III(a).

[65] United States v. Germaine, 99 U.S. 508, 511 (1878); United States v. Hartwell, 73 U.S. 385, 393 (1867).  In both Hartwell and Germaine, the Court defined “officer” under the respective statutes.

[66] Germaine, 99 U.S. at 511–12.

[67] Buckley, 424 U.S. at 125.

[68] Id. at 126.

[69] Id. at 126 n.162.

[70] 138 S. Ct. 2044, 2051 (2018).

[71] Id.  Both parties had agreed that the ALJs “hold a continuing office.”  Id. at 2053.

[72] Id. at 2051–52.  One view of “significant authority” is “(i) the power to bind the government or private parties (ii) in her own name rather than in the name of a superior officer.”  Id. (citations omitted).  Another view is “‘the power to bind the government or third parties on significant matters’ or to undertake other ‘important and distinctively sovereign functions.’”  Id. (citations omitted).

[73] Id. at 2056 (Thomas, J., concurring); see also Jennifer Mascott, Who Are “Officers of the United States”?, 70 Stan. L. Rev. 443, 564 (2018); NLRB v. SW Gen., Inc., 137 S. Ct. 929, 946 (2017) (Thomas, J., concurring).

[74] Lucia, 138 S. Ct. at 2065 (Sotomayor, J., dissenting).

[75] Id. at 2051.

[76] Id. at 2053.

[77] See infra Part III; see also infra notes 106, 130.

[78] See infra Part III(c).

[79] U.S. Const. art. II, § 2, cl. 2.

[80] Id.; see also Buckley v. Valeo, 424 U.S. 1, 132 (1976).

[81] U.S. Const. art. II, § 2, cl. 2.

[82] Edmond v. United States, 520 U.S. 651, 661 (1997).

[83] See infra Part III(e).

[84] 487 U.S. 654 (1988).

[85] Id. at 671–72.

[86] Id.

[87] Id. at 719 (Scalia, J., dissenting).

[88] Id.

[89] Id.

[90] 520 U.S. 651, 653 (1997).

[91] Id. at 661–62.

[92] Id. at 663.

[93] Id. at 664.

[94] Id. at 665.

[95] 561 U.S. 477, 479 (2010).

[96] Id. at 510.

[97] Id.

[98] Whether the Special Master for Troubled Asset Relief Program Executive Compensation is a Principal Officer Under the Appointments Clause, 34 Op. O.L.C. 1, 1 (2010) [hereinafter Special Master].

[99] For a scholarly analysis of OLC, see Daphna Renan, The Law Presidents Make, 103 Va. L. Rev. 805, 810 (2017) (“Rather than OLC supremacy, legal views are developed by a collection of administrative actors. OLC usually has a seat at the table. But it is no longer the decider.”); Harold H. Koh, Protecting the Office of Legal Counsel from Itself, 15 Cardozo L. Rev. 513, 514 (1993) (“OLC has developed its own informal procedural norms both to protect its independence and to ensure that the Office will pursue what Professor McGinnis dubs a ‘court-centered’ or ‘independent authority’ model of government lawyering instead of the ‘opportunistic’ model of a private lawyer.” (internal citations omitted)).

[100] Special Master, supra note 98, at 10.

[101] Id. at 9.

[102] Id. at 8–9.

[103] In re: Grand Jury Investigation, 916 F.3d 1047, 1052 (D.C. Cir. 2019).

[104] Adrian Vermeule, Morrison v. Olson Is Bad Law, Lawfare (June 9, 2017), https://www.lawfareblog.com/morrison-v-olson-bad-law [https://perma.cc/345M-ZPVM].

[105] NLRB v. SW Gen., Inc., 137 S. Ct. 929, 947 n.2 (2017) (Thomas, J., concurring) (“Although we did not explicitly overrule Morrison in Edmond, it is difficult to see how Morrison’s nebulous approach survived our opinion in Edmond.”).

[106] See Stephen G. Breyer, et. al, Administrative Law and Regulatory Policy 111 (8th ed. 2017).

[107] See Aurelius Inv., LLC v. Puerto Rico., 915 F.3d 838, 861 (1st Cir. 2019).

[108] Aurelius Inv., LLC v. Puerto Rico, 139 S. Ct. 2736 (2019).

[109] See infra Part III(e).

[110] Datla & Revesz, supra note 15, at 796; see also Rachel E. Barkow, Insulating Agencies: Avoiding Capture Through Institutional Design, 89 Tex. L. Rev. 15, 38–39 (2010) (equating the chair’s administrative responsibilities with policymaking); Breger & Edles, supra note 15, at 1168 (same); Peter L. Strauss, The Place of Agencies in Government: Separation of Powers and the Fourth Branch, 84 Colum. L. Rev. 573, 590–91 (1984) (same).

[111] See Authority of the President to Reassign the Chairmanship of the Federal Power Commission, 1 Op. O.L.C. 206, 238–39 (1961).  But see Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 512–13 (2010) (“[W]e see no reason why a multimember body may not be the “Hea[d]” of a “Departmen[t]” that it governs.”).  For the purposes of this Article, a “board member” of an agency is synonymous with a “commissioner” of a commission.

[112] See Ho, supra note 40, at 358; Datla & Revesz, supra note 15, at 796, 819, 820 (noting that chairs are removable at the will of the President and that there are political rewards for chairs).

[113] See Breger & Edles, supra note 15, at 1164 (“There is no doubt that the chair of a multi-member agency is ordinarily its most dominant figure.”); Breyer et. al, supra note 106, at 147; see also Glen O. Robinson, Independent Agencies: Form and Substance in Executive Prerogative, 1988 Duke L.J. 238, 245.

[114] See Strauss, supra note 110, at 591 (“These administrative responsibilities, corresponding to presidential responsibilities for the government as a whole, doubtless underlie Congress’s general recognition of the President’s special claim to have his own choice as chairman.”); Datla & Revesz, supra note 15, at 797 (assuming that Congress can delegate the selection of a chair to the President alone or other members of the agency).

[115] Many of the agencies used in the Tables were the same ones used by Datla and Revesz. See Datla & Revesz, supra note 15, at 793 (Multimember Structure Column of Table 3).

[116] See 46 U.S.C. § 301(c)(2)–(3) (2018).

[117] See 29 U.S.C. § 153(a) (2018) (“The President shall designate one member to serve as Chairman of the Board.”).

[118] 5 U.S.C. § 7104(b) (2018).

[119] 29 C.F.R. § 2201.10(c) (2019) (allowing the OSHRC chair to decide a FOIA appeal); 49 C.F.R. § 800.22(b) (2019) (allowing the NTSB chair to delegate her functions to the Managing Director); 47 C.F.R. § 0.211(d) (2018) (allowing the FCC chair to act “upon tort claims directed against the Commission where the amount of damages does not exceed $5,000”).

[120] 29 C.F.R. § 102.119(f)(1)(iv) (2019) (allowing the NLRB chair to review the request of documents in a limited situation); 29 C.F.R. § 102.118(b) (2019) (allowing the NLRB chair or the Board to consent to testimony from a present or former employee where the knowledge came from their capacity).

[121] Interview with Marshall B. Babson, former Member, NLRB (Nov. 29, 2018).

[122] Id.

[123] Authority of the Chairman of the Defense Nuclear Facilities Safety Board to Disclose Performance Appraisals of Senior Executive Service Employees, 39 Op. O.L.C. 1, 2 n.1 (2015) [hereinafter Defense Nuclear Facilities Safety Board] (“The Board has agreed to be bound by our decision.”); Division of Powers and Responsibilities Between the Chairperson of the Chemical Safety and Hazard Investigation Board and the Board as a Whole, 24 Op. O.L.C. 102, 103 n.1 (2000) [hereinafter Division of Powers and Responsibilities] (“Both have agreed to be bound by our opinion.”).

[124] Breger & Edles, supra note 15, at 1176.  Although agencies are not required to solicit advice from OLC, they will seek advice if it “otherwise might expose them to subsequent legal risk or embarrassment.”  Id. at 1180 n.343.  For inter-agency disputes, see Jody Freeman & Jim Rossi, Agency Coordination in Shared Regulatory Space, 125 Harv. L. Rev. 1131, 1176 (2012) (“In this way, OLC likely helps to resolve interagency conflicts on a regular basis by providing opinions, both formally and informally.”).

[125] Division of Powers and Responsibilities, supra note 123, at 107.

[126] Id. at 103.

[127] Id. at 105.

[128] Id. at 108.

[129] Id.  For an earlier analysis of the division of power between a chair and her board, see a 1974 opinion (and an amendment issued months later) by the Comptroller General dealing with the EEOC.  Breger & Edles, supra note 15, at 1168–70.

[130] Authority of the Chairman of the Defense Nuclear Facilities Safety Board to Disclose Performance Appraisals of Senior Executive Service Employees, 39 Op. O.L.C. 1, 1 (2015).

[131] Id. at 2–3.

[132] Id. at 3 n.2.

[133] William B. Gould, Labored Relations: Law, Politics, and the NLRB–A Memoir 52 (MIT Press 2001).

[134] Robinson, supra note 113, at 245 n.24; see also Miles W. Kirkpatrick, Nineteenth Annual Antitrust Spring Dinner Address, 40 Antitrust L.J. 328, 332 (1971) (former FTC chair observing that “[m]anagement of the Commission, save for the appointment of the top policy making positions and policy decisions having to do with the allocation of major resources, is placed squarely in the Chairman”).

[135] Todd Garvey & Daniel J. Sheffner, Congress’s Authority to Influence and Control Executive Branch Agencies, Cong. Res. Serv., at 4–5 (2018), https://fas.org/sgp/crs/misc/R45442.pdf [https://perma.cc/3WKN-DUKE]; see generally Jack M. Beermann, Congressional Administration, 43 San Diego L. Rev. 61 (2006).

[136] U.S. Gov’t Policy & Supporting Positions, Staff of S. Comm. on Homeland Sec’y & Governmental Affairs 114–26, 114th Cong. (2016) (“Plum Book”).

[137] See id. at 162 (listing the FCA and FCC chairs as “PAS” appointments).  But see id. at 164 (not listing the position of chair for the FEC); id. at 208 (same with EAC); id. at 167 (listing the Mine Safety and Health Review Commission chair as a non-PAS appointment).

[138] 5 U.S.C. §§ 5311–5318 (2018).

[139] See Plum Book, supra note 136, at 147 (African Development Foundation); id. at 152–53 (Corporation for National and Community Service).

[140] Id. at 178 (National Council on Disability); id. at 211 (USPS); id. at 168 (Federal Retirement Thrift Investment Board); id. at 205 (TVA).

[141] See infra Table 3. A chairperson’s pay plan by no means serves as proxy for whether someone is a principal officer.  In Aurelius Inv., LLC v. Puerto Rico, the First Circuit held that the Financial Oversight and Management Board Members were principal officers even though they did not receive compensation for their service.  915 F.3d 838, 861 (1st Cir. 2019), cert. granted, 139 S. Ct. 2736 (2019); see also 49 U.S.C. § 2121(h) (2018).

[142] See 52 U.S.C. §§ 20923(c), 30106(a)(5) (2018).

[143] See infra Table 3.  Even the NLRB chair, a position with little statutory duties, is paid more than the individual board members.  Id.

[144] 19 U.S.C. § 1331(a)(2)(A)–(B) (2018).  Both of these powers are still subject to approval by the other commissioners.  Id.  However, it is worth noting that most of the ITC chairperson’s statutory powers are only “subject to disapproval by a majority vote,” in stark contrast to other agency chairpersons. Id. § 1331(a)(1)(A)–(C).

[145] 10 C.F.R. § 1.11(a) (2019); see also Reorganization Plan No. 1 of 1980 §§ 1(b)(1)–(2), 2(a), 3(a)–(d), 94 Stat. 3585.  While this is beyond the scope of the Article, the chairperson’s power to remove employees or officers who have “good cause” protection is likely constitutional because the chairperson serves at the will of the President. See Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 492 (2010) (“We hold that the dual for-cause limitations on the removal of Board members contravene the Constitution’s separation of powers.”).  Post-Free Enterprise Fund, there is an incentive for a chairperson to be granted removal power.

[146] 42 U.S.C. § 7171(c) (2018) (“The [FERC] Chairman shall be responsible . . . with respect to . . . the procurement of services of experts and consultants in accordance with section 3109 of Title 5”); see also 47 C.F.R. § 0.211(a)–(b) (2019).  As for “[a]ctions of an important character or those which involve policy determinations . . . the Chairman will develop proposals for presentation to the Commission.”  Id. § 0.211(c).  Unfortunately, there is no information present that defines what counts as an action of “routine character” or “non-routine character.”

[147] See Lucia v. SEC, 138 S. Ct. 2044, 2051 (2018).

[148] See, e.g., 42 U.S.C. § 7412(r)(6)(B) (2018) (“The Chairperson shall be the Chief Executive Officer of the [Chemical Safety and Hazard Investigation] Board and shall exercise the executive and administrative functions of the Board”); 15 U.S.C. § 2053(f)(1) (2018) (“The Chairman of the Commission shall be the principal executive officer of the [Consumer Product Safety] Commission, and he shall exercise all of the executive and administrative functions of the Commission”); 46 U.S.C. § 301(b)(1) (2018) (“The Chairman is the chief executive and administrative officer of the [Federal Maritime] Commission”); 5 U.S.C. § 7104(b) (2018) (“The Chairman is the chief executive and administrative officer of the [Federal Labor Relations] Authority.”).

[149] See 42 U.S.C. § 7171(c) (2018) (not using “officer” to describe the FERC chairperson); 12 U.S.C. § 1812(b)(1) (2018) (same with the FDIC chairperson); 49 U.C.C. § 1301(c) (2018) (same with the Surface Transportation Board chairperson).  In Estes v. Department of the Treasury, 219 F. Supp. 3d 17 (D.D.C. 2016), the government did not argue that the Fiscal Assistant Secretary was an employee; instead it went into the principal versus inferior officer analysis, id. at 36–39.  Likewise, it would appear difficult to argue that the FERC chair is an employee, and it would make more sense to argue the principal versus inferior officer distinction.

[150] Lucia, 138 S. Ct. at 2051.

[151] Compare 47 U.S.C. §§ 154(a), 155(c)(2) (2018) (listing the “[specific] duties, salary, and means of appointment” of the FCC chair) and 54 U.S.C. §§ 304101(e), 304105(a),(c) (2018) (same with the chair of the Advisory Council on Historic Preservation), with 42 U.S.C. § 7412(r)(6)(B) (2018) (not listing specific duties, but only the “means of appointment” of the Chemical Safety and Hazard Investigation Board), and 42 U.S.C. § 2000e-4(a) (2018) (only not listing the salary of the EEOC chair). The Executive Schedule, however, lists the pay levels of the agency chairs. 5 U.S.C. §§ 5311–17 (2018).

[152] Buckley v. Valeo, 424 U.S. 1, 126 (1976).

[153] There is some reason to doubt that the phrase only applies to statutes. In Lucia, the Court referred to both statutes and regulations that governed ALJs.  See Lucia, 138 S. Ct. at 2053. As seen in Table 4 below, there are regulations that give chairpersons the power to collect claims or decide appeals, which could show further sign of “exercising significant authority.”  See infra Table 4; see also Buckley, 424 U.S. at 126.

[154] Most appointments by the chairperson are subject to approval by the Board or Commission.  See 47 U.S.C. § 155(e) (2018) (“The Commission shall have a Managing Director who shall be appointed by the Chairman subject to the approval of the Commission.”).

[155] 42 U.S.C. § 7171(c) (2018) (“The [FERC] Chairman shall be responsible . . . with respect to . . . the procurement of services of experts and consultants in accordance with section 3109 of Title 5.”); 19 U.S.C. § 1331(a)(1)(A)(ii) (2018) (“[T]he chairman of the [ITC] shall . . . procure the services of experts and consultants in accordance with the provisions of section 3109 of title 5.”).

[156] In Aurelius Inv., LLC v. Puerto Rico, the First Circuit applied both the Morrison and Edmond tests.  915 F.3d 838, 861 (1st Cir. 2019), cert. granted, 139 S. Ct. 2736 (2019).

[157] 487 U.S. 654, 671–72 (1988).

[158] Datla & Revesz, supra note 15, at 819 (“The chair of a multimember agency usually holds the position of chair—but not as a member of the agency—at the will of the President.”).

[159] 520 U.S. 651, 663 (1997).

[160] 561 U.S. 477, 510 (2010).

[161] Special Master, supra note 98, at 10.

[162] In re Grand Jury Investigation, 916 F.3d 1047, 1052 (D.C. Cir. 2019).

[163] In Estes, the court found that the plaintiffs erred in “presuming that all three of the Intercollegiate factors are to be weighed independently and equally.”  Estes v. U.S. Department of Treasury, 219 F. Supp. 3d 17, 38 (D.D.C. 2016); see also Intercollegiate Broad. Sys., Inc. v. Copyright Royalty Bd., 684 F.3d 1332, 1338 (D.C. Cir. 2012) (summarizing the Edmond factors).

[164] Edmond, 520 U.S. at 664.

[165] Datla & Revesz, supra note 15, at 796.

[166] Many of the statutes that give chairs specific powers are “frequently subject to some form of agency approval.” Breger & Edles, supra note 15, at 1173.

[167] Within the OLC opinion on the Defense Nuclear Facilities Safety Board, the memorandum cites to this reply by the agency’s Office of General: “[b]y stating that the Chairman exercises his administrative duties subject to the Board’s policies, Congress maintained some level of Board control over the Chairman.”  Defense Nuclear Facilities Safety Board, supra note 123, at 4.

[168] Ho, supra note 40, at 360 (“Chairs may exercise power via alternative channels to voting, such as supervisory authority over staff, agenda control, oversight over expenditures, and the power to represent the Commission publicly.”).

[169] Estes, 219 F. Supp. 3d at 38.  Estes v. U.S. Department of Treasury, 219 F. Supp. 3d 17, 38 (D.D.C. 2016).

[170] While beyond the scope of the Article, if a Board’s control over its chair is greater than the President’s control, then it could implicate the President’s “take care” obligations.  See U.S. Const. art. II, § 3 (“[H]e shall take care that the laws be faithfully executed.”).

[171] See infra Table 4.

[172] It is not mandatory for inferior officers to be PAS positions.  See U.S. Const. art. II, § 2, cl. 2.

[173] See Datla & Revesz, supra note 15, at 796 (“Chairs are typically seen as a presidential proxy because they usually hold their position as chair (but not as members of the agency) at the will of the President.”).  While removal from the chairperson position is at will, the removal as a member from the agency is usually for “good cause.”  Id. at 788.

[174] Authority of the Chemical Safety and Hazard Investigation Board to Delegate Power, 26 Op. O.L.C. 29, 31 (2002) (“The title would suggest a measure of the status and prestige associated with the position of chairperson.”). But see Edmond v. United States, 520 U.S. 651, 662–63 (1997) (“Whether one is an ‘inferior’ officer depends on whether he has a superior. It is not enough that other officers may be identified who formally maintain a higher rank, or possess responsibilities of a greater magnitude.”).

[175] See Datla & Revesz, supra note 15, at 787.

[176] See Designating an Acting Attorney General, 42 Op. O.L.C. 1, 9 (2018) [hereinafter Acting Attorney General]; see also Designation of Acting Director of the Office of Management and Budget, 27 Op. O.L.C. 121 (2003).

[177] Acting Attorney General, supra note 176, at 20 (quoting United States v. Eaton, 169 U.S. 331, 343 (1898)).

[178] See Ortiz v. United States, 138 S. Ct. 2165, 2170 (2018).

[179] Id. at 2171.

[180] Id. at 2183.

[181] Id. (“And if we were ever to apply the [Appointments] Clause to dual office-holding, we would not start here.”).

[182] Id.

[183] Id.

[184] The Board or Commission can limit the chairperson’s appointment power.  See 42 U.S.C. § 5841(a)(4) (2018) (“The appointment by the Chairman of the heads of major administrative units under the Commission shall be subject to the approval of the Commission.”).  A chairperson’s power can also be limited by internal agency policies that the Board or Commission establishes.  See Division of Powers and Responsibilities, supra note 123, at 108 (comparing the NTSB chairperson with the Chemical Safety and Hazard Investigation Board chairperson).

[185] See U.S. Const. art. II, § 2, cl. 2.; 5 U.S.C. §§ 3345–3349 (2018).

[186] Id. § 3345(a).

[187] Id. § 3349(c)(1).

[188] The FVRA also excludes commissioners of the FERC because FERC is organized part of the Department of Energy.  Id. § 3349(c)(1); Organizational Chart, U.S. Dep’t of Energy, https://www.energy.gov/leadership/organization-chart [https://perma.cc/M666-AVK5].

[189] See Division of Powers and Responsibilities, supra note 123, at 102; Authority of the Chemical Safety and Hazard Investigation Board to Delegate Power, supra note 174, at 29.

[190] See Authority of the Chemical Safety and Hazard Investigation Board to Delegate Power, supra note 174, at 29.

[191] Id.  The Board can name someone to exercise the functions of a chair, but they cannot name an acting chair. Id. at 31.  Currently, the Chemical Safety and Hazard Investigation Board has an Interim Executive Authority who serves as de facto chair.  Interim Executive Authority Kristen Kulinowski, The Chemical Safety & Hazard Investigation Bd., https://www.csb.gov/about-the-csb/board-members/board-member-kristen-kulinowski-/ [https://perma.cc/H9DZ-EDZZ].

[192] See Acting Attorney General, supra note 176, at 1. However, if the FVRA does not apply and there is a specific statute on successions, then the statute trumps the FVRA.

[193] 279 F. Supp. 3d 307, 311–12 (D.D.C. 2018).

[194] Id. at 314–15.

[195] Id. at 312–13.

[196] Id. at 322 (internal quotation omitted).

[197] Id. at 323.

[198] Id.

[199] Id. at 324–29. The Court relied primarily on the first two principles.

[200] Id. at 324 (quoting J.E.M. Ag Supply, Inc. v. Pioneer Hi-Bred Int’l, Inc., 534 U.S. 124, 143–44 (2001)).

[201] Id.

[202] Id. (quoting Nat’l Ass’n of Home Builders v. Defs. of Wildlife, 551 U.S. 644, 662 (2007)).

[203] Id. at 327 (internal citations omitted); U.S. Const. art. II, § 3.

[204] See English, 279 F. Supp. 3d at 329.

[205] 47 U.S.C. § 155(a) (2018) (emphasis added).

[206] 42 U.S.C. § 5841(a)(1) (2018) (emphasis added).

[207] 12 U.S.C. § 1812(b)(3) (2018) (emphasis added).

[208] 5 U.S.C. § 3345(a)(1)–(3) (2018) provide options for who a President can appoint on an acting basis. Besides employees, the President can appoint anyone outside of the agency who has a PAS position to be acting chair.  That is exactly what happened in English v. Trump because the President appointed the Office of Management and Budget Director to be acting chairperson of the Consumer Financial Protection Bureau.

[209] See generally Federal Elections Campaign Act Amendments of 1976, Pub. L. No. 94–283, 90 Stat. 475 (1976).

[210] 42 U.S.C. § 7412(r)(6)(B) (2018) (Chemical Safety and Hazard Investigation Board); 15 U.S.C. § 2053(a) (2018) (CPSC); 12 U.S.C. § 242 (2018) (Federal Reserve); 5 U.S.C. § 1203(a) (2018) (MSPB); 49 U.S.C. § 1111(d) (2018) (NTSB); 5 U.S.C. § 593(b)(1) (2018) (ACUS); 54 U.S.C. § 304101(e)(1)(A) (2018) (Advisory Council on Historic Preservation); 7 U.S.C. § 2(a)(2)(B) (2018) (CFTC); 12 U.S.C. § 1812(b)(1) (2018) (FDIC); 45 U.S.C. § 231f(a) (2018) (Railroad Retirement Board).

[211] 42 U.S.C. § 1975(d)(2) (2018) (Commission on Civil Rights); 52 U.S.C. § 20923(c)(1) (2018) (EAC); 52 U.S.C. § 30106(a)(5) (2018) (FEC); 42 U.S.C. § 7171(b)(1) (2018) (FERC); 46 U.S.C. § 301(c)(1) (2018) (FMC); 5 U.S.C. § 7104(b) (2018) (FLRA); 15 U.S.C. § 41 (2018) (FTC); 30 U.S.C. § 823(a) (2018) (Mine Safety and Health Review Commission); 29 U.S.C. § 153(a) (2018) (NLRB); 45 U.S.C. § 154 (2018) (NMB); 42 U.S.C. § 5841(a)(1) (2018) (NRC); 29 U.S.C. § 661(a) (2018) (OSHRC); 39 U.S.C. § 502(d) (2018) (PRC); 49 U.S.C. § 1301(c)(1) (2018) (STB); 42 U.S.C. § 2286(c)(1) (2018) (Defense Nuclear Facilities Safety Board); 42 U.S.C. § 2000e-4(a) (2018) (EEOC); 12 U.S.C. § 2241(a) (2018) (FCA); 47 U.S.C. § 155(a) (2018) (FCC); 19 U.S.C. § 1330(c)(1) (2018) (ITC); 12 U.S.C. § 1752a(b)(1) (2018) (National Credit Union Administration); 29 U.S.C. § 780(c) (2018) (National Council on Disability); 15 U.S.C. § 78d (2018) (SEC); 39 U.S.C. § 202(a)(1) (2018) (USPS); 22 U.S.C § 290h–5(a)(1) (2018) (African Development Foundation); 42 U.S.C § 12651a(b)(1) (2018) (Corporation for National and Community Service); 5 U.S.C. § 8472(b)(1) (2018) (Federal Retirement Thrift Investment Board); 16 U.S.C. § 831a(2) (2018) (TVA).

[212] “Statutory duties” is a broad term, but the goal of this Table is to identify agency chairs that have specific statutory duties, no matter how significant, as opposed to broad or no language.  For example, the only reference to the chair of the Chemical Safety and Hazard Investigation Board is vague language that the chair “shall be the Chief Executive Officer of the Board and shall exercise the executive and administrative functions of the Board.”  42 U.S.C. § 7412(r)(6)(B) (2018).  Although regulations may provide more clarity, the fact that OLC only looked at the statute is instructive. See Division of Powers and Responsibilities Between the Chairperson of the Chemical Safety and Hazard Investigation Board and the Board as a Whole, 24 Op. O.L.C. 102, 103 (2000).

[213] 15 U.S.C. § 2053(f) (2018) (СPSC); 12 U.S.C. §§ 225b(a), 347b(b)(2)(A)(ii) (2018) (Federal Reserve); 5 U.S.C. § 1204(i)–(j) (2018) (MSPB); 49 U.S.C. § 1111(e) (2018) (NTSB); 5 U.S.C. § 595(c) (2018) (ACUS); 54 U.S.C. § 304105(a) (2018) (Advisory Council on Historic Preservation); 7 U.S.C. § 2(a)(6) (CFTC); 12 U.S.C. § 1831z(b) (2018) (FDIC).

[214] 52 U.S.C. § 30107(a)(3) (2018) (FEC); 42 U.S.C. § 7171(c) (2018) (FERC); 46 U.S.C. § 301(c)(3) (2018) (FMC); Reorg. Plan No. 8 of 1950, §1(a), 64 Stat. 1264, reprinted in 5 U.S.C. app. at 127 (2018) (FTC); 42 U.S.C. § 5841(a)(1)–(4) (2018) (NRC); 29 U.S.C. § 661(e) (2018) (OSHRC); 39 U.S.C. § 504(a) (2018) (PRC); 49 U.S.C. § 1301(c)(2) (2018) (STB); 42 U.S.C. §§ 2286(c)(2)–(3), (7)(A)–(B) (2018) (Defense Nuclear Facilities Safety Board); 42 U.S.C. § 2000e-4(a) (2018) (EEOC); 12 U.S.C. § 2244(a)–(c) (2018) (FCA); 47 U.S.C. § 155(a),(e) (2018) (FCC); 19 U.S.C. § 1331(a) (2018) (ITC); 12 U.S.C. § 1752a(e) (2018) (National Credit Union Administration);  29 U.S.C. § 783(a)(1) (2018) (National Council on Disability); Reorg. Plan No. 10 of 1950, §1(a), 64 Stat. 1264, reprinted in 5 U.S.C. app. at 127 (2018) (SEC); 42 U.S.C. § 12651b(c)(1) (2018) (Corporation for National and Community Service); 5 U.S.C. § 8476(a)(2) (2018) (Federal Retirement Thrift Investment Board);

[215] 42 U.S.C. § 7412(r)(6)(B) (2018) (Chemical Safety and Hazard Investigation Board); 45 U.S.C. § 231f(a) (2018) (Railroad Retirement Board).

[216] 42 U.S.C. § 1975(d)(2) (2018) (Commission on Civil Rights); 5 U.S.C. § 7104(b) (2018) (FLRA); 30 U.S.C. § 823(b)(2) (2018) (Mine Safety and Health Review Commission); 29 U.S.C. § 153(a) (2018) (NLRB); 45 U.S.C. § 154 (2018) (NMB); 52 U.S.C. § 20923(c)(1) (2018) (EAC); 39 U.S.C. § 202(a)(1) (2018) (USPS); 22 U.S.C § 290h–5(a)(1) (2018) (African Development Foundation); 16 U.S.C. § 831a(2) (2018) (TVA).

[217] While the law explicitly changed the pay plan of the Chairperson of the Advisory Council on Historical Preservation, current Council Members are presumed to still be compensated under the PD pay plan.  54 U.S.C. § 304101(e)(1)(D) (2018); Plum Book, at 147; id. at 152 (CPSC, higher EX level than members); id. at 168 (Federal Reserve, higher EX level than members); id. at 175 (MSPB, higher EX level than members); id. at 186 (NTSB, higher EX level than members); id. at 147 (ACUS, only chair gets a salary); id. at 151 (CFTC, higher EX level than members); id. at 164 (FDIC, higher EX level than members); id. at 195 (Railroad Retirement Board, higher EX level than members).

[218] Id. (FERC, higher EX level than members); id. at 167 (FMC, higher EX level than members); id. at 166 (FLRA, higher EX level than members); id. at 168 (FTC, higher EX level than members); id. at 167 (Mine Safety and Health Review Commission, higher EX level than members); id. at 180 (NLRB, higher EX level than members); id. at 181 (NMB, higher EX level than members); id. at 187 (NRC, higher EX level than members); id. at 189 (OSHRC, higher EX level than members); id. at 194 (PRC, higher EX level than members); id. at 126 (STB, higher EX level than members); id. at 160 (EEOC, higher EX level than members); id. at 162 (FCA, higher EX level than members); id. (FCC, higher EX level than members); id. at 210 (ITC, higher EX level than members); id. at 178 (National Credit Union Administration, higher EX level than members); id. at 195 (SEC, higher EX level than members).

[219] Id. at 150 (Chemical Safety and Hazard Investigation Board, same EX level as members).

[220] Id. (Commission on Civil Rights, same EX level as members); id. at 208 (EAC, same EX level as members); id. at 164 (FEC, same EX level as members); id. at 154 (Defense Nuclear Facilities Safety Board, same EX level as members).

[221] For the FCC Chairperson, see 47 U.S.C. §§ 155(a),(e) (2018) and 47 C.F.R. §§ 0.211(d),(f) (2019).  For the FCA Chairperson, see 12 U.S.C. §§ 2244(a)(3), 2245(b), 2270 (2018) and 12 C.F.R. §§ 602.23(b) (2019), 12 C.F.R. § 608.805(b)–(c) (2019), 12 C.F.R. § 608.839(a) (2019).  For the FERC Chairperson, see 42 U.S.C. §§ 7171(c), (e) (2018) and 18 C.F.R. §§ 3b.224(e), 3b.221(e) (2019).  For the FMC Chairperson, see 46 U.S.C. § 301(c)(3)(A) (2018) and 46 C.F.R. §§ 501.5(a), 503.67(c)–(d), 505.3(a)–(c) (2019).  For the NRC Chairperson, see 42 U.S.C. § 5841(a)(1)–(2) (2018).  For the FDIC Chairperson, see 12 U.S.C. § 1831z(b) (2018).  For the CSPC Chairperson, see 15 U.S.C. § 2053(f)(1) (2018) and 16 C.F.R. §§ 1014.8(c)–(d), 1052.4(a) (2019). For the NTSB Chairperson, see 49 U.S.C. § 1111(e) (2018).  For the MSPB Chairperson, see 5 U.S.C. § 1204(j) (2018) and 5 C.F.R. §§ 1205.32(a), 1207.170(c)(6), 1215.32(a), 1215.7(a)(1), 1215.23 (2019).