Remember the lawsuit challenging the qualifications of the Deputy Director of the Patent & Trademark Office? As was hinted at in the first two comments to that post a few months ago, Hanah Metchis Volokh, a recent addition to the clan, has just written what is sure to become the definitive piece on the subject, called "The Two Appointments Clauses: Statutory Qualifications for Federal Officers." Here's the abstract:
Congress often exercises control over appointments to federal office by writing job qualifications and putting them directly into the statute creating the office. This practice is best examined by viewing the Appointments Clause not as a single entity, but as two related clauses that set up two very different methods of appointment: presidential nomination and Senate confirmation as the default method, and vesting in one of three authorized positions as an optional alternative method for certain types of officers. When creating an office, Congress must choose one of these methods for appointing the officer, but cannot create a hybrid method combining the two procedures.
In this article, I examine the text, history, and structure of the Constitution to determine what is required by each of the two appointments processes. I conclude that statutory qualifications are consistent with the Constitution's process for vested appointments, but inconsistent with the nomination and confirmation process.
Hanah's article will soon be published in the University of Pennsylvania Journal of Constitutional Law.