                                                                 February 28, 1978


78-13      MEMORANDUM OPINION FOR THE
           ASSISTANT ATTORNEY GENERAL,
           OFFICE FOR IMPROVEMENTS IN THE
           ADMINISTRATION OF JUSTICE

           United States Attorneys— Suggested
           Appointment Power of the Attorney
           General— Constitutional Law (Article II,
           § 2, cl. 2)


   This responds to your request for our opinion on whether U.S. Attorneys are
inferior officers within the meaning o f Art. II, § 2, cl. 2, o f the Constitution, so
that Congress could by law provide for their appointment by the Attorney
General.
   This question has arisen in connection with a proposal to provide for the
appointment and removal of U.S. Attorneys by the Attorney General alone, in
contrast to the present law pursuant to which U.S. Attorneys are appointed by
the President by and with the consent of the Senate and removed solely by
Presidential authority.
   Art. II, § 2, cl. 2, provides generally that the President shall have power to
appoint the officers o f the United States
      . . . but the Congress may by Law vest the Appointment of such
     inferior Officers, as they think proper, in the President alone, in the
     Courts o f Law, or in the Heads of Departments.
The question therefore is whether the U .S. Attorney is an inferior officer within
the meaning of that constitutional provision.
   The Constitution does not define the term “ inferior officer.” Earlier
commentators point to the vagueness and the absence of exact lines drawn in
this aspect o f the Constitution. Rawle, Constitution o f the United States, p.
164; Story, Commentaries on the Constitution o f the United States, § 1536. In
Collins v. United States, 14 Ct. Cl. 568, 574 (1878), the court defined the
term “ inferior” not in the “ sense o f petty or unim portant” but in the sense of
subordinate or inferior to the officer in whom the power of appointment is
vested. This definition appears to have been generally accepted. Constitution o f

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the United States o f America, Analysis and Interpretation (1973 ed.) S. Doc.
92-82, pp. 526-527.
   In light of this interpretation the U .S. Attorneys can be considered to be
inferior officers, since 28 U .S.C . § 519 authorizes the Attorney General to
direct all U.S. Attorneys in the discharge of their duties. In this context the
Supreme Court suggested nearly 100 years ago in Ex Parte Siebold, 100 U.S.
371, 397 (1879), that Congress could vest the authority to appoint U.S.
Marshals in the Attorney General. The status of the U .S. Marshals is quite
closely related to that o f the U.S. Attorneys. See 28 U.S.C. § 569(c).
   Since the beginning of the Republic, Congress has not exercised its
discretionary power to vest the appointment of U .S. Attorneys in the Attorney
General. This failure to exercise that discretionary power, however, does not
create customary constitutional law precluding Congress from exercising that
authority. As Justice Story stated (id ., § 1535):
       In one age the appointment might be most proper in the President;
     and in another age, in a department.

                                                Leon   ulm an

                                     D eputy Assistant Attorney General
                                                    Office o f Legal Counsel




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