In June of 2023, Special Counsel Jack Smith indicted Donald Trump on multiple charges of improperly retaining and handling documents containing sensitive national security information. On July 15, 2024, Judge Aileen Cannon entered an order dismissing the indictment. Trump’s attorneys had argued that Jack Smith’s selection as Special Counsel violated the Appointments Clause of the Constitution.
In her dismissal order, Judge Cannon concluded that there was no law granting authority to the Attorney General to hire a private citizen to act as a special counsel. Absent such a law, Jack Smith had no authority to prosecute the case, since retaining him as Special Counsel would violate the Appointments Clause. Further, if Jack Smith was not properly in the job, the eleven million or more dollars that he spent on the prosecution from a Special Counsel fund violated the Constitution’s Appropriation Clause.
What is the Appointments Clause? What is the Appropriation Clause? We will look at these. Those interested in Judge Cannon’s analysis can read the 93-page opinion linked above. We will focus not so much on case law about these provisions, but rather the Constitutional language itself and the motivation of the Founders in designing things the way they did.
The Appointments Clause
The Founders crafted the Appointments clause to limit how government offices can be created and filled.
Motivation
The Constitution is a relatively short document. Why would it provide specific requirements on the issue of how to hire government officials? Simply put, in the revolutionary period, the proliferation of royal offices was a significant grievance against British rule.
He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people, and eat out their substance.
Declaration of Independence
In the Revolutionary Period, the King or his royal governors would create offices at will. They would then fill those offices with people loyal to them. From the colonist’s perspective, the King and the royal governors created new offices to interfere with the colonists’ rights under the British Constitution. When the executive creates and fills offices unilaterally, it presents an opportunity for executive abuses of power.
Since the Declaration of Independence, some newly formed states took a radically different approach to selecting government officials. Instead of the executive creating and filling offices, some states gave legislative assemblies the exclusive power of creating and filling offices. This created other problems in further centralizing all power in the legislatures and overwhelming them with these personnel matters.
The Articles of Confederation, which governed the United States prior to the Constitution, generally followed the legislative appointment model. The Articles charged the Continental Congress with appointing officers of the United States. State legislatures could approve military officers below the rank of Colonel.
Constitutional Solution
[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.
U. S. Constitution, Article II, Section 2, Clause 2
The Constitution creates two explicit categories: principal officers and inferior officers. Presumably, there is another category as well, that of regular employees. What makes someone an officer, as opposed to en employee? Courts have held that officers exercise a portion of the sovereign authority of the government. Simply put, officers have significant authority to direct government activities. Employees perform work necessary to carry out decisions of officers.
Unless their selection is elsewhere provided for, all officers of the United States are to be appointed in accordance with the Clause. Principal officers are selected by the President with the advice and consent of the Senate. Inferior officers Congress may allow to be appointed by the President alone, by the heads of departments, or by the Judiciary. No class or type of officer is excluded because of its special functions.
Buckley v. Valeo, 424 U.S. 1 (1976), at 132.
Justification
The Framers rejected the unilateral executive creation and filling of offices and the cumbersome legislative staffing of government offices. In Federalist No. 68, Alexander Hamilton wrote that “the true test of a good government is its aptitude and tendency to produce a good administration.”
Both modes of appointing officials have advantages. In Federalist No. 76, Hamilton suggests that “It ought either to be vested in a single man, or in a SELECT assembly of a moderate number; or in a single man, with the concurrence of such an assembly.” These three choices represent the two we have previously seen and a “compromise” position in which the executive works with the legislative to jointly appoint officers.
A single person, such as the President, might be best able to determine the right qualifications for a position. If the President has the power to select the candidate for the position, the officer so selected will also feel loyalty to the President. This loyalty will further help advance the goals of the executive.
A single well-directed man, by a single understanding, cannot be distracted and warped by that diversity of views, feelings, and interests, which frequently distract and warp the resolutions of a collective body. There is nothing so apt to agitate the passions of mankind as personal considerations whether they relate to ourselves or to others, who are to be the objects of our choice or preference. Hence, in every exercise of the power of appointing to offices, by an assembly of men, we must expect to see a full display of all the private and party likings and dislikes, partialities and antipathies, attachments and animosities, which are felt by those who compose the assembly.
. . .
The truth of the principles here advanced seems to have been felt by the most intelligent of those who have found fault with the provision made, in this respect, by the convention. They contend that the President ought solely to have been authorized to make the appointments under the federal government. But it is easy to show, that every advantage to be expected from such an arrangement would, in substance, be derived from the power of NOMINATION, which is proposed to be conferred upon him; while several disadvantages which might attend the absolute power of appointment in the hands of that officer would be avoided. In the act of nomination, his judgment alone would be exercised; and as it would be his sole duty to point out the man who, with the approbation of the Senate, should fill an office, his responsibility would be as complete as if he were to make the final appointment.
Alexander Hamilton, Federalist No. 76
The abuses of executive power in the colonial period were still fresh in the minds of the Framers. A President acting alone may select the best candidates. We can keep the advantages of this approach by having the President nominate people. Senate confirmation of a President’s nomination provides a check on executive abuses that concerned the colonists.
United States Attorneys – one in each federal judicial district – are officers of the United States. They are subject to Senate confirmation. Trump’s request for dismissal centered on the question of whether a private citizen could be appointed by the Attorney General alone, without Senate confirmation, and exercise power on par with U. S. Attorneys. The decision turned on whether or not there is legislative authorization for such an appointment. We are not going into the statutory analysis here, as our interest is the Constitutional language. Interested readers should review the decision linked above.
The Appropriations Clause
The Constitution requires that Congress must authorize the expenditure of any money.
No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.
U. S. Constitution, Article I, Section 9, Clause 7
Only Congress may spend money. The President, Executive officers, and even the Courts have no independent authority to spend money. The House of Representatives, as the representative body of the people, and the Senate, as the representative body of the states, control spending the money. This is a check primarily on Presidential power, but ultimately also on judicial power. In recent history, the appropriations clause has occasionally been brought to the forefront. Two recent cases are President Trump’s reallocation of defense funds to build a border wall and President Biden’s student loan forgiveness initiatives. In Trump’s documents case, the appropriations clause issue was whether or not the funds being spent for the Special Counsel’s office were appropriately authorized to be spent.
Conclusions
The Appointments and Appropriations Clauses in the Constitution serve key functions in the our governmental systems. Through Congressional oversight of the creation and filling of positions within government, the structure of the government itself is accountable to the people. Through Congressional control of spending money, executive ambition is checked by accountability to the people and the states.