Former Presidents Can’t Appoint Officers

Thomas A. Berry

The Constitution requires, as a default rule, that “Officers of the United States” must be nominated by the president and confirmed by the Senate. The Constitution allows only one potential exception to this default rule: If an officer is merely an “inferior officer,” Congress may waive Senate consent. But even if an officer is inferior, Congress is limited to only three choices for who may appoint that officer: “the President alone,” “the Heads of Departments,” and “the Courts of Law.”

The Federal Vacancies Reform Act (FVRA) is one such statute that vests appointments in “the President alone.” Specifically, it grants the president authority to unilaterally appoint temporary, time‐​limited “acting officers” to fill vacancies in positions that normally require Senate consent.

When President Trump took office in January 2017, the acting commissioner of the Social Security Administration (SSA) resigned. A new acting commissioner, Nancy Berryhill, then purportedly took office. But President Trump did not select Berryhill to be acting commissioner. Rather, Berryhill was elevated pursuant to a Succession Order issued by outgoing President Obama the previous month, which named and ranked positions (not people) within SSA to fill potential future vacancies in the office of commissioner.

Plaintiff Brian Dahle later challenged an action that Berryhill took as acting commissioner, arguing that Berryhill was not validly serving under the terms of the FVRA when she took the action. But the Eighth Circuit rejected Dahle’s statutory arguments, holding that Berryhill was validly appointed by former President Obama as acting commissioner under the terms of the Succession Order.

The panel held that even though Obama was not the president when Berryhill was elevated, “presidential orders without specific time limitations carry over from administration to administration” and “a new president does not have to take affirmative action to keep existing orders in place.”

Dahle is now asking the Supreme Court to take his case, and the Cato Institute has filed an amicus brief supporting his petition. In the brief, we point out that the Eighth Circuit’s statutory holding raises a serious constitutional problem: Berryhill’s elevation via Succession Order was not an “appointment” under the meaning of the Constitution.

In the Federalist Papers, Alexander Hamilton explained that because the president alone would be responsible for choosing nominees, “the blame of a bad nomination would fall upon the President singly and absolutely.” But if an appointment is made by contingency order rather than by name, then the accountability mandated by the Appointments Clause vanishes. The people cannot blame President Obama for Berryhill’s performance, because Obama did not choose Berryhill for the position. Indeed, the people cannot blame any single person for Berryhill’s accession to the position of acting commissioner, because her accession resulted from the combined actions and inactions of no fewer than four people. That is precisely the diffusion of accountability that the Appointments Clause forbids.

The Supreme Court should take this case to review the Eighth Circuit’s decision in light of the Appointments Clause. When there is no clear line of accountability for a nomination, political accountability suffers. Requiring the president to take accountability for federal officers by actually naming those officers is not too much to ask.