Mike Ramsey takes issue with Steve Calabresi’s argument that interbranch appointments of executive officials – for example, judicial appointments of prosecutors – are unconstitutional. Ramsey maintains that the text of the Appointments Clause indicates that interbranch appointments are constitutional. After all, the Clause provides that: “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." Ramsey argues that Calabresi’s interpretation is an example of a structural argument rather than a textual interpretation.
I don’t want to take a position on whether interbranch appointments of executive officials by the judiciary are constitutional. Instead, my point is narrower. One can interpret the Constitution to prohibit such interbranch appointments without reference to structural arguments but instead based on the text.
Here is how the argument works. Suppose there were no Appointments Clause. One might then conclude that the judicial power – in the absence of the Appointments Clause – does not include the power to appoint executive officials but only judicial officials. That argument would need to be supported by historical and other evidence.
Now, the question is whether the Appointments Clause changes that. One possibility is that it does – that would be a version of Ramsey’s argument. But another possibility is that it does not. Instead, one might read the Judicial Power Vesting Clause along with the Appointments Clause. Instead of reading the Appointments Clause as modifying the Judicial Power Vesting Clause, one would read them together. One would then say that the Appointments Clause, when read in conjunction with the Judicial Power Vesting Clause, only recognizes that the judiciary can appoint inferior judicial officers. It does not expand the power of the judiciary to extend to appointing executive officers.
This argument is not a structural one (in the way, at least, that Ramsey normally denominates structural arguments). Instead, it is an interpretation of how two clauses fit together in the Constitution. That is a textual argument.
To repeat, I am not arguing in favor of a constitutional interpretation that forbids certain interbranch appointments. I am merely pointing out that one might be able to get there with solely textual arguments.
Posted at 8:05 AM