After Lucia was decided, Seth Barrett Tillman and I recognized that a line draw in Morrison v. Olson may have been destabilized. We analyze this issue on Lawfare: Is Robert Mueller an “Officer of the United States” or an “Employee of the United States”?
Here is the introduction:
Recent debates over the constitutionality of Robert Mueller’s appointment as special counsel turn on whether he is a principal or inferior “officer of the United States.” Steven Calabresi contends that Mueller is in fact a principal officer, who, as a result, must be nominated by the president, and confirmed by the Senate. George Conway, writing for Lawfare, counters that Mueller is an inferior officer, who may be appointed by the assistant attorney general—the relevant department head—without Senate confirmation. There may be a third option.
The Supreme Court’s recent decision in Lucia v. SEC explains that if a federal position is only “temporary,” then such a position is likely not an “office of the United States.” Rather, to frame the issue as the court did in Buckley v. Valeo, the position is a mere “employee of the United States.” This understanding of the distinction between “officer” and “employee” relies on a line of cases stretching back to Reconstruction. As a matter of first impression, it would appear that Mueller’s appointment is “temporary.” Therefore, he may not be an “officer of the United States” under the rule in Lucia. More pressingly, language in Justice Elena Kagan’s recent majority opinion in Lucia may have cast doubt on Morrison v. Olson’s definition of an “officer of the United States.” If Lucia is correct on this point (and we think it is), and if Morrison is now incorrect on this point (and we think it is), then Special Counsel Mueller is merely an “employee of the United States.” This post addresses four important questions that stem from this somewhat unexpected development in the law of office and officer.