Summary
This January 2025 Office of Legal Counsel memorandum provides guidance on the constitutional test for determining whether an individual qualifies as an "officer" under the Appointments Clause. Drawing primarily on recent Supreme Court precedent, particularly Lucia v. SEC, the memorandum establishes a two-part framework requiring that an officer must occupy a continuing position within the federal government and exercise significant authority pursuant to U.S. law. The document clarifies the Office's longstanding interpretation, reconciles its 1996 and 2007 opinions, and addresses the application of the Clause to non-federal entities and state officials.
Topics
Practice areas
Questions Presented
- What are the requirements for determining officer status under the Appointments Clause?
Holdings
- An individual must (1) occupy a continuing position that is part of the federal government for constitutional purposes, and (2) exercise significant authority pursuant to the laws of the United States.
Key quotations
“Individuals must be appointed pursuant to the Appointments Clause only if they (1) occupy a continuing position that is part of the federal government for constitutional purposes, and (2) exercise significant authority pursuant to the laws of the United States.” (at 1)
Factual background
The Office of Legal Counsel provides guidance to federal agencies on the scope of the Appointments Clause, summarizing Supreme Court decisions such as Lucia v. SEC and related case law.