The Buckley Court’s entire analysis is predicated upon its construction of the appointments clause in the context of its ‘cognate’ separation-of-powers provisions, The decision, as in Germaine and the other appointments clause cases, was concerned with determining the status of an individual who was employed by the United States. The Court’s definition thus was employed to distinguish between classes of federal employees; it was not used to distinguish between federal and nonfederal employees. Since the two questions differ radically, it is hardly surprising that a standard helpful in resolving one leads to absurd results when applied to the other.
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Dale D. Goble, , I J. Envtl. L. Litig. 11, — text at note 172 (1986); get a hold of and Harold J. Krent, Fragmenting this new Unitary Executive: Congressional Delegations away from Management Power Beyond your National, 85 Nw. U. L. Rev. 62, 72-73 n.26 (1990) (whether one who exercises governmental authority is an officer is determined by looking to the factors set out in Hartwell, Germaine, and Auffmordt).
28 It is sometimes asserted that the Supreme Court in Bowsher v. Synar, 478 U. We see no basis for this proposition. That case simply did not involve the Appointments Clause. While the Court makes a passing reference to the Appointments Clause, id. at 722-23, we can find no passage in which the Court even appears to contemplate construing the Appointments Clause. The question in Bowsher pertained to the limits on the authority that the Comptroller General could exercise. The Comptroller General is appointed by the President and confirmed by the Senate, see 31 U.S.C. § 703. This method of Wiccan dating appointment conforms to the letter of the Appointments Clause. Come across U.S. Const. art. II, § 2, cl. 2. We cannot conceive of a reasonable reading of Bowsher as either explicitly or implicitly affirming — or, for that matter, rejecting — the negative inference from the Appointments Clause.
S. 714 (1986), used the negative inference about Appointments Clause
Prior writings of this Office have read Buckley more broadly as standing for the proposition disavowed here — that is, that all persons exercising significant federal authority, by virtue of that fact alone, must be appointed pursuant to the Appointments Clause. We are aware of four instances in which our disagreement with this understanding of Buckley would cause us to reach a different conclusion on the Appointments Clause question presented. See Constitutionality of Subsection 4117(b) of Enrolled Bill H.R. 5835, the “Omnibus Budget Reconciliation Act of 1990,” 14 Op. C. 170, 171 (1990) (preliminary print) (statutory scheme under which congressional delegations and physicians’ organizations of certain states exercise “significant authority” violates Appointments Clause); Constitutionality of the Qui Tam Provisions of the False Claims Act, 13 Op. C. 249, 264-65 (1989) (preliminary print) (provisions of False Claims Act authorizing qui tam suits. by private parties violate Appointments Clause because qui tam relators exercise “significant governmental power”); Representation of the United States Sentencing Commission in Litigation, 12 Op. C. 21, 31-33 (1988) (preliminary print) (private party acting as counsel for United States agency must be appointed pursuant to Appointments Clause); Proposed Legislation to Establish the National Indian Gaming Commission, 11 Op. C. 73, 74 (1987) (Appointments Clause problems raised where state and local officials given authority to waive federal statute). We now disavow the Appointments Clause holdings of those precedents. To the extent that our reading of Buckley is inconsistent with the Appointments Clause reasoning of other prior precedents of this office, that reasoning is superseded. See Common Legislative Encroachments on Executive Branch Constitutional Authority, 13 Op. C. 299, 300 (1989) (preliminary print). We do not disavow these precedents lightly. These more recent citations, however, are inconsistent and in some cases irreconcilable with prior opinions of the Attorneys General. Moreover, the Supreme Court has not overruled but has reaffirmed Auffmordt, Hartwell, and Germaine, and we are bound to follow them.