Supreme Court Justice Clarence Thomas: Why The U.S. President Deserves Immunity

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The Constitution sets forth how an office may be created and how it may be filled. 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 Department.” Art. II, §2, cl. 2.

The constitutional process for filling an office is plain from this text. The default manner for appointing “Officers of the United States” is nomination by the President and confirmation by the Senate. Ibid. “But the Clause provides a limited exception for the appointment of inferior officers: Congress may ‘by Law’ authorize” one of three specified actors “to appoint inferior officers without the advice and consent of the Senate.” NLRB v. SW General, Inc., 580 U. S. 288, 312 (2017) (THOMAS, J., concurring). As relevant here, a “Hea[d] of Department”—such as the Attorney General— is one such actor that Congress may authorize “by Law” to appoint inferior officers without senatorial confirmation. Art. II, §2, cl. 2.

Before the President or a Department Head can appoint any officer, however, the Constitution requires that the underlying office be “established by Law.”[1] The Constitution itself creates some offices, most obviously that of the President and Vice President. See §1. Although the Constitution contemplates that there will be “other Officers of the United States, whose Appointments are not herein otherwise provided for,” it clearly requires that those offices “shall be established by Law.” §2, cl. 2. And, “established by law” refers to an office that Congress creates “by statute.” Lucia v. SEC, 585 U. S. 237, 254 (2018) (THOMAS, J., concurring); see also United States v. Maurice, 26 F. Cas. 1211, 1213 (No. 15,747) (CC Va. 1823) (Marshall, C. J.).

The limitation on the President’s power to create offices grew out of the Founders’ experience with the English monarchy. The King could wield significant power by both creating and filling offices as he saw fit. He was “emphatically and truly styled the fountain of honor. He not only appoint[ed] to all offices, but [could] create offices.”

The Federalist No. 69, p. 421 (C. Rossiter ed. 1961); see also 1 W. Blackstone, Commentaries on the Laws of England 271 (T. Cooley ed. 1871) (“[A]s the king may create new titles, so may he create new offices”). That ability to create offices raised many “concerns about the King’s ability to amass too much power”; the King could both create a multitude of offices and then fill them with his supporters. J. Mascott, Who Are “Officers of the United States”? 70 Stan. L. Rev. 443, 492 (2018) (Mascott); see also G. Wood, The Creation of the American Republic 1776–1787, p. 143 (1969) (describing “the power of appointment to offices” as “the most insidious and powerful weapon of eighteenth-century despotism”); T. Paine, Common Sense (1776), reprinted in The Great Works of Thomas Paine 11 (1877) (explaining that “the crown . . . derives its whole consequence merely from being the giver of places and pensions”). In fact, one of the grievances raised by the American colonists in declaring their independence was that the King “ha[d] erected a multitude of New Offices, and sent hither swarms of Officers to harass our people and eat out their substance.”

Declaration of Independence ¶12. The Founders thus drafted the Constitution with “evidently a great inferiority in the power of the President, in this particular, to that of the British king.” The Federalist No. 69, at 421.

The Founders broke from the monarchial model by giving the President the power to fill offices (with the Senate’s approval), but not the power to create offices. They did so by “imposing the constitutional requirement that new officer positions be ‘established by Law’ rather than through a King-like custom of the head magistrate unilaterally creating new offices.”

Mascott 492–493 (footnote omitted); see also 1 Annals of Cong. 581–582 (1789) (“The powers relative to offices are partly Legislative and partly Executive. The Legislature creates the office, defines the powers, limits its duration, and annexes a compensation”); see also ibid. (describing the power to “designat[e] the man to fill the office” as “of an Executive nature”). The Constitution thus “giv[es] Congress broad authority to establish and organize the Executive Branch.” Seila Law LLC v. Consumer Financial Protection Bureau, 591 U. S. 197, 266 (2020) (KAGAN, J., concurring in judgment in part and dissenting in part).

By keeping the ability to create offices out of the President’s hands, the Founders ensured that no President could unilaterally create an army of officer positions to then fill with his supporters. Instead, our Constitution leaves it in the hands of the people’s elected representatives to determine whether new executive offices should exist.

Longstanding practice from the founding to today comports with this original understanding that Congress must create offices by law. The First Congress, for instance, routinely and explicitly created offices by statute. See, e.g., §35, 1 Stat. 92–93 (creating the offices of Attorney General and U. S. Attorney for each district); see also §§1–2, id., at 50 (creating offices of Secretary of War and his Chief Clerk); ch. 12, §1, id., at 65 (creating offices within the Department of Treasury for Secretary of the Treasury, a Comptroller, Auditor, Treasurer, Register, and Assistant to the Secretary).

Still today, Congress creates the offices that the Executive Branch may fill. For example, Congress has created several offices within the Department of Justice, including the offices of the Attorney General, Deputy Attorney General, Associate Attorney General, Solicitor General, and Assistant Attorneys General. See 28 U. S. C. §§503–506. For some agencies, Congress has also granted the agency head the power to “appoint such officers and employees . . . as are necessary to execute the functions vested in him.” 7 U. S. C. §610(a) (Department of Agriculture); see also, e.g., 20 U. S. C. §3461 (Department of Education); 42 U. S. C. §913 (Department of Health and Human Services).

In the past, Congress has at times expressly created offices similar to the position now occupied by the Special Counsel. Congress created an office for a “special counsel” to investigate the Teapot Dome Scandal and pursue prosecutions. See ch. 16, 43 Stat. 6. And, a statute provided for “the appointment of an independent counsel” that we addressed in Morrison v. Olson. See 28 U. S. C. §592. That statute lapsed, and Congress has not since reauthorized the appointment of an independent counsel. See §599.[2]

We cannot ignore the importance that the Constitution places on who creates a federal office. To guard against tyranny, the Founders required that a federal office be “established by Law.” As James Madison cautioned, “[i]f there is any point in which the separation of the Legislative and Executive powers ought to be maintained with greater caution, it is that which relates to officers and offices.” 1 Annals of Cong. 581. If Congress has not reached a consensus that a particular office should exist, the Executive lacks the power to create and fill an office of his own accord.

[1] Although a Government official may also be a “nonofficer employe[e],” I set aside that category because it is difficult to see how an official exercising the Department of Justice’s duties to enforce the criminal law by leading a prosecution could be anything but an officer. Lucia v. SEC, 585 U. S. 237, 253, n. 1 (2018) (THOMAS, J., concurring); see SW General, 580 U. S., at 314 (opinion of THOMAS, J.). If the Special Counsel were a nonofficer employee, the constitutional problems with this prosecution would only be more serious. For now, I assume without deciding that the Special Counsel is an officer.

[2] To be sure, a few Presidents have appointed “special prosecutors” without pointing to any express statutory authorization. See generally T. Eastland, Ethics, Politics and the Independent Counsel 8–9 (1989) (describing past uses of special prosecutors). But, this Court had no occasion to review the constitutionality of those prosecutors’ authority.