![Case 2:24-cr-00099-MWB
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by either the President, a Department Head, or the courts. 34 Additionally, "Is]ince President Washington's first term, Congress has given the President limited
authority to appoint acting officials to temporarily perform the functions of a vacant
PAS office without first obtaining Senate approval."" This framework is designed
to carefully balance the separation of powers and prevent "one branch's
aggrandizing its power at the expense of another branch" while at the same time
ensuring that the work of Government gets done.'37
The principal and inferior officer definitions of course beg the question "what
is an 'officer?'" In Buckley v. Valeo, the Supreme Court explained that "any
appointee exercising significant authority pursuant to the laws of the United States
is an 'Officer of the United States,' and must, therefore, be appointed in the manner prescribed by s 2, cl. 2, of... Article [I]."3 Officers, which must fall into one of the two classifications above, are distinct from "employees of the United States,"
who are "lesser functionaries subordinate to officers of the United States."39 The
central question is whether the actor exercises "significant authority," for, if he does
134 Edmond, 520 U.S. at 660; Arthrex, 594 U.S. at 12.
135 SW Gen., 580 U.S. at 294.
136 Freytag, 501 U.S. at 878, 882.
1 Everyone agrees that United States Attorneys are inferior officers. See Naviwala Doc. 302 at
123:7-13.
138 424 U.S. 1, 126 (1976).
13 See id. at 126 n.162 (citing Auffmordt v. Hedden, 137 U.S. 310, 327 (1890) and Germaine, 99
U.S. 508).
29](https://cdn.bsky.app/img/feed_thumbnail/plain/did:plc:j22jo3rt2jtdh2nbaemoprcf/bafkreiakyspfivnyvln7vw4o2vnjdaglxocdf3cctrjmzr25r7cwutgpky)
Case 2:24-cr-00099-MWB Document 317 Filed 03/09/26 Page 29 of 130 PagelD: 7252 by either the President, a Department Head, or the courts. 34 Additionally, "Is]ince President Washington's first term, Congress has given the President limited authority to appoint acting officials to temporarily perform the functions of a vacant PAS office without first obtaining Senate approval."" This framework is designed to carefully balance the separation of powers and prevent "one branch's aggrandizing its power at the expense of another branch" while at the same time ensuring that the work of Government gets done.'37 The principal and inferior officer definitions of course beg the question "what is an 'officer?'" In Buckley v. Valeo, the Supreme Court explained that "any appointee exercising significant authority pursuant to the laws of the United States is an 'Officer of the United States,' and must, therefore, be appointed in the manner prescribed by s 2, cl. 2, of... Article [I]."3 Officers, which must fall into one of the two classifications above, are distinct from "employees of the United States," who are "lesser functionaries subordinate to officers of the United States."39 The central question is whether the actor exercises "significant authority," for, if he does 134 Edmond, 520 U.S. at 660; Arthrex, 594 U.S. at 12. 135 SW Gen., 580 U.S. at 294. 136 Freytag, 501 U.S. at 878, 882. 1 Everyone agrees that United States Attorneys are inferior officers. See Naviwala Doc. 302 at 123:7-13. 138 424 U.S. 1, 126 (1976). 13 See id. at 126 n.162 (citing Auffmordt v. Hedden, 137 U.S. 310, 327 (1890) and Germaine, 99 U.S. 508). 29
Case 2:24-cr-00099-MWB Document 317 Filed 03/09/26 Page 30 of 130 PageD: 7253 not, he is not an officer and must, ergo, be an employee. 40 As to employees, "the Appointments Clause cares not a whit about who named them."41 Even more fundamentally, by virtue of the Necessary and Proper and Appointments Clauses, Congress-and only Congress has the Constitutional power to create the offices that the officers will fill.!*2 As a corollary proposition, the Executive may not create offices, principal or inferior.43 This structure 140 Lucia v. Sec. & Exch. Comm'n, 585 U.S. 237, 245 (2018) (citing Buckley, 424 U.S. at 126); Edmond, 520 U.S. at 662 ("The exercise of significant authority pursuant to the laws of the United States' marks, not the line between principal and inferior officer for Appointments Clause purposes, but rather, as we said in Buckley, the line between officer and nonofficer." (citing Buckley, 424 U.S. at 126)). 141 Lucia, 585 U.S. at 245 (citing Germaine, 99 U.S. at 510). 142 Myers v. United States, 272 U.S. 52, 129 (1926) ("To Congress under its legislative power is given the establishment of offices, the determination of their functions and jurisdiction, the prescribing of reasonable and relevant qualifications and rules of eligibility of appointees, and the fixing of the term for which they are to be appointed and their compensationall except as otherwise provided by the Constitution."); Buckley, 424 U.S. at 138-39 (Congress may undoubtedly under the Necessary and Proper Clause create 'offices' in the generic sense and provide such method of appointment to those 'offices' as it chooses. But Congress' power under that Clause is inevitably bounded by the express language of Art. II, s 2, cl. 2, and unless the method it provides comports with the latter, the holders of those offices will not be 'Officers of the United States.""'); Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 499 (2010) ("No one doubts Congress's power to create a vast an…
![Case 2:24-cr-00099-MWB
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dividing the office creating and office filling powers-was intentional: "It]he
Framers' experience with post-revolutionary self-government had taught them that
combining the power to create offices with the power to appoint officers was a recipe
for legislative corruption."44
One final question arises from this discussion: "what is an 'office?'' Of
course, an office usually involves a title, but the true substance of an office comes
from the functions and duties its holder is authorized to exercise. In effect, the terms
"office" and "officer" are merely labels with which to describe one who is authorized
to offices independently of the legislation of Congress, and by such legislation he must be governed, not only in making appointments, but in all that is incident thereto." (quoting United States v. Perkins, 116 U.S. 483, 485 (1886)); Trump v. United States, 603 U.S. 593, 644-45
(2024) (Thomas, J., concurring) ("Before the President or a Department Head can appoint any officer, however, the Constitution requires that the underlying office be 'established by law' ...And 'established by law' refers to an office that Congress creates by statute.'"); id. at 650 ("If Congress has not reached a consensus that a particular office should exist, the Executive lacks the power to unilaterally create and then fill that office."); Seila Law, 591 U.S. at 231 ("Congress's "plenary control over the salary, duties, and even existence of executive offices' makes 'Presidential oversight' more critical." (quoting Free Enter. Fund, 561 U.S. at 500)); id. at 266 (Kagan, J., concurring in part and dissenting in part) (Article II "does not ... give the President authority to decide what kinds of officersin what departments, with what responsibilities—the Executive Branch requires."); Freytag, 501 U.S. at 885 ("The Appointments Clause prevents Congress from distributing power too widely by limiting the actors in w…](https://cdn.bsky.app/img/feed_thumbnail/plain/did:plc:j22jo3rt2jtdh2nbaemoprcf/bafkreiavvlaeafp4retqmdxms5qckt4hwrt5tytqnxj3lrs44rzxzjc5oa)
Case 2:24-cr-00099-MWB Document 317 Filed 03/09/26 Page 31 of 130 PageD: 7254 dividing the office creating and office filling powers-was intentional: "It]he Framers' experience with post-revolutionary self-government had taught them that combining the power to create offices with the power to appoint officers was a recipe for legislative corruption."44 One final question arises from this discussion: "what is an 'office?'' Of course, an office usually involves a title, but the true substance of an office comes from the functions and duties its holder is authorized to exercise. In effect, the terms "office" and "officer" are merely labels with which to describe one who is authorized to offices independently of the legislation of Congress, and by such legislation he must be governed, not only in making appointments, but in all that is incident thereto." (quoting United States v. Perkins, 116 U.S. 483, 485 (1886)); Trump v. United States, 603 U.S. 593, 644-45 (2024) (Thomas, J., concurring) ("Before the President or a Department Head can appoint any officer, however, the Constitution requires that the underlying office be 'established by law' ...And 'established by law' refers to an office that Congress creates by statute.'"); id. at 650 ("If Congress has not reached a consensus that a particular office should exist, the Executive lacks the power to unilaterally create and then fill that office."); Seila Law, 591 U.S. at 231 ("Congress's "plenary control over the salary, duties, and even existence of executive offices' makes 'Presidential oversight' more critical." (quoting Free Enter. Fund, 561 U.S. at 500)); id. at 266 (Kagan, J., concurring in part and dissenting in part) (Article II "does not ... give the President authority to decide what kinds of officersin what departments, with what responsibilities—the Executive Branch requires."); Freytag, 501 U.S. at 885 ("The Appointments Clause prevents Congress from distributing power too widely by limiting the actors in w…
![Case 2:24-cr-00099-MWB
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by law to perform a specific set of functions and duties. '4s As now-Judge Jennifer L.
Mascott has explained, founding-era "[l]egal dictionaries... mak[e]... clear[] that
the position of 'officer' involve[s] responsibility for a governmental duty."46 That
duty-focused definition has remained consistent since the founding.!47 And this
definition goes hand-in-hand with the Appointments Clause definition of "officer,"
which primarily asks about the "authority" the given "appointee exercis[es] 148
The sum total of these Constitutional rules is that, because Congress's
office-creating power is exclusive, the Executive may not alter or expand the powers
145 See Gomez v. United States, 490 U.S. 858, 864 (1989) ("When a statute creates an office to which it assigns specific duties, those duties outline the attributes of the office."); Lucia, 585 U.S. at 253 (Thomas, J., concurring) ("I would resolve that question based on the original public meaning of "Officers of the United States.' To the Founders, this term encompassed all federal civil officials 'with responsibility for an ongoing statutory duty."").
146 Jennifer L. Mascott, Who Are
"Officers of the United States"?, 70 Stan. L. Rev. 443, 488
(2018) ("Numerous public statements from the 1770s to the 1780s also associated officers with the concept of duty.").
147 Officer, Black's Law Dictionary (Ist ed. 1891) ("The incumbent of an office; one who is lawfully invested with an office. One who is charged by a superior power (and particularly by government) with the power and duty of exercising certain functions." (emphasis added);
Office, Black's Law Dictionary (Ist ed. 1891) ("[A] right to exercise a public or private employment and to take the fees and emoluments thereunto belonging ... The most frequent occasions to use the word arise with reference to a duty and power conferred on an individual by the government; and, when this is the connecti…](https://cdn.bsky.app/img/feed_thumbnail/plain/did:plc:j22jo3rt2jtdh2nbaemoprcf/bafkreigurmkrbuxfm6emjxzsohnpzkntn655bh5os5u3hcrzjyyucb3pba)
Case 2:24-cr-00099-MWB Document 317 Filed 03/09/26 Page 32 of 130 PageD: 7255 by law to perform a specific set of functions and duties. '4s As now-Judge Jennifer L. Mascott has explained, founding-era "[l]egal dictionaries... mak[e]... clear[] that the position of 'officer' involve[s] responsibility for a governmental duty."46 That duty-focused definition has remained consistent since the founding.!47 And this definition goes hand-in-hand with the Appointments Clause definition of "officer," which primarily asks about the "authority" the given "appointee exercis[es] 148 The sum total of these Constitutional rules is that, because Congress's office-creating power is exclusive, the Executive may not alter or expand the powers 145 See Gomez v. United States, 490 U.S. 858, 864 (1989) ("When a statute creates an office to which it assigns specific duties, those duties outline the attributes of the office."); Lucia, 585 U.S. at 253 (Thomas, J., concurring) ("I would resolve that question based on the original public meaning of "Officers of the United States.' To the Founders, this term encompassed all federal civil officials 'with responsibility for an ongoing statutory duty.""). 146 Jennifer L. Mascott, Who Are "Officers of the United States"?, 70 Stan. L. Rev. 443, 488 (2018) ("Numerous public statements from the 1770s to the 1780s also associated officers with the concept of duty."). 147 Officer, Black's Law Dictionary (Ist ed. 1891) ("The incumbent of an office; one who is lawfully invested with an office. One who is charged by a superior power (and particularly by government) with the power and duty of exercising certain functions." (emphasis added); Office, Black's Law Dictionary (Ist ed. 1891) ("[A] right to exercise a public or private employment and to take the fees and emoluments thereunto belonging ... The most frequent occasions to use the word arise with reference to a duty and power conferred on an individual by the government; and, when this is the connecti…
*of course, theres more in the 130 pg opinion on statutory interpretation! just wanted to highlight some on MQD. link to opinion: storage.courtlistener.com/recap/gov.us...
**pg 32 - he sneaks in a citation of the now #ca3 judge mascott (lol 🤭)
***alt text really is a pain in the butt sometimes
![TheGlue:v | ถุงกุ้งจะทรงประสิทธิภาพ [ติดเกม Elden Ring อยู่]](https://cdn.bsky.app/img/avatar/plain/did:plc:o2h3zffj27u34hn2vbxbnngu/bafkreidekdgz2op3pzhqeqsffru3u5nfkbcdbjy5xovgecnrl7i33pxa6m)
