He’s no general services, nor any a position that has people years regarding big date, otherwise which extends over people circumstances beyond as he is selected to act in that version of case . . . . He’s no claim or straight to be appointed, or even work but when he is generally appointed . . . . Their condition try in place of period, course, persisted emolument, otherwise continuous responsibilities . . . . For this reason, he is maybe not a keen ‘officer,’ in the concept of the fresh clause.
at 326-27. Not only does Auffmordt compel our conclusion, the contrary position — that an independent contractor or non-federal employee who exercises significant governmental authority must be appointed pursuant to the Appointments Clause — would be inconsistent with the Germaine and Hartwell cases discussed above.22
22 ENRD roads Auffmordt and Germaine as limited to ‘judgments of experts on areas within their expertise, as opposed to policy or legal judgments.” ENRD memorandum at 3. Apparently, ENRD’s position is that the negative inference from the Appointments Clause is to be drawn except where an expert acts within the scope of his or her expertise. In other words, the Appointments Clause prohibits any private actor from exercising significant authority, unless the private actor is an expert who exercises significant authority within the scope of his or her expertise. While there may be strong policy reasons for wishing to restrict Auffmordt and Germaine in this way, there is no basis in the Constitution for doing so. The text of the Appointments Clause makes no reference to, let alone an exception for, expert action. Furthermore, there is nothing in the Auffmordt or Germaine opinions themselves that supports narrowing them in this way.
Our conclusion is consistent with the Supreme Court’s classification of the independent counsel as an inferior officer in Morrison v. Olson, 487 U.S. 654 (1988). There the Court observed that “[i]t is clear that appellant is an ‘officer’ of the United States, not an ’employee. ‘” at 671 n. 12. Significantly, the lone authority the Court cited for this proposition was “Buckley, 424 U.S., at 126, and n. 162.” At the page cited, the Buckley Court quoted and reaffirmed Germaine, and in the footnote cited the Court affirmed both Germaine and Auffmordt. Buckley, 424 U.S. at 126 n. 162. This coupled with Morrison‘s express approval of Germaine, 487 U.S. at 670, strongly counsel against interpreting Morrison to have scuttled the Auffmordt and Germaine definition of office, which treats tenure, duration, emoluments, and continuing duties as necessary conditions.
We believe that the factors that make it “clear” that an independent counsel is an officer of the United States demonstrate that an arbitrator is not. The office of independent counsel is created by statute. Pick 28 U. § 591 et seq. The independent counsel’s compensation is fixed specifically by statute at the rate set forth at 5 U. § 5315 for level IV of the Senior Executive Service. § 594(b). All of the others listed as receiving this compensation are in the full-time employment of the federal government and, insofar as we are aware, are in fact officers within the meaning of the Appointments Clause. See 5 U. § 5315 (setting compensation for, inter alia, assistant attorneys general). The independent counsel’s operating and overhead expenses are fixed23 by statute and appropriation. 28 U. § 594(c). (fixing compensation of attorneys employed by an independent counsel); id. § local hookup near me Lubbock 594(1) (providing for administrative support, office space, and travel expenses). Significantly, Congress is the exclusive source of funding for any operations undertaken by the independent counsel. In this way, Congress takes some part in providing an ongoing definition to the office of independent counsel and may exercise some degree of influence over the independent counsel. Indeed, as the Court noted, Congress expressly retained oversight authority with respect to the activities of independent counsels and provided for submission of reports by independent counsels to congressional oversight committees. 487 U.S. at 664-65. In addition, the independent counsel occupies a position that is formally within the federal government. That position is, according to the Supreme Court, within the executive branch chain of command to at least some extent and subject to oversight and control by the President and guidance of the Attorney General. at 685-92; 28 U. § 594(e). The independent counsel also may request and receive the assistance of the Department of Justice. 28 U. § 594(d). The independent counsel thus clearly occupies a position of employment within the federal government. In fact, this point was so clear that Congress went out of its way expressly to provide that the position of independent counsel would be “separate from and independent of the Department of Justice” for certain purposes. § 594(i).