United States v. Baldwin (541 F. Supp. 2d 1184, 2008)

United States District Court for the District of New Mexico 2008-02-26

Judiciary and Judicial Procedure Government Organization and Employees

Citations

Full opinion text

MEMORANDUM OPINION AND ORDER

JAMES 0. BROWNING, District Judge.

THIS MATTER comes before the Court on .the Defendant’s Motion to Dismiss Indictment Without Prejudice on the Basis that the Current United States Attorney has been Unconstitutionally Appointed, filed January 30, 2008 (Doc. 15)(“Motion”). The Court held a hearing on February 19, 2008. The primary issues are: (i) whether the Court should reach the constitutional issues that Defendant Carl Dean Baldwin raises, or dismiss the indictment against Baldwin, given that the indictment was secured during the tenure of a prior, executive-appointed United States Attorney and was signed by an Assistant United States Attorney; (ii) whether the judicial appointment of Gregory Fouratt under 28 U.S.C. § 541(d) violates the Appointments Clause of the United States Constitution; (iii) whether the judicial appointment of Mr. Fouratt under 28 U.S.C. § 541(d) violates the separation-of-powers doctrine; and (iv) whether the judicial appointment of Mr. Fouratt under 28 U.S.C. § 541(d) is unconstitutional as applied to this case. Because the indictment is valid, regardless of how the Court decides the constitutional issues, the Court will deny Baldwin’s request that the Court dismiss the indictment. Because the Court concludes that it should address Baldwin’s constitutional arguments, the Court finds that § 541(d) is not unconstitutional under the specific arguments that Baldwin raises, and bécause the Court finds that Mr. Fburatt’s judicial appointment is not unconstitutional, under Baldwin’s facial or as-applied challenges to 28 U.S.C. § 541(d), pursuant to the Appointments Clause and the separation-of-powers doctrine, the Court will deny Baldwin’s motion.

FACTUAL BACKGROUND

Former United States Attorney David C. Iglesias resigned his position effective February 28, 2007. See United States’ Response to Motion to Dismiss Indictment on the Basis that the Current United States Attorney Has Been Unconstitutionally Appointed at 5, filed February 13, 2008 (Doc. 21)(“Response”). In the immediate wake of Iglesias’ resignation, First Assistant United States Attorney Larry Gomez became Acting United States Attorney under the Vacancies Reform Act, 5 U.S.C. § 3345(a)(1). See Response at 5. On September 26, 2007, Acting Attorney General Peter Keisler appointed Mr. Gomez as United States Attorney pursuant to 28 U.S.C. § 546(a). See Response at 5.

PROCEDURAL BACKGROUND

Baldwin was indicted before Mr. Fouratt was judicially appointed. See Indictment, filed November 6, 2007 (Doc. l)(Court OnlyX'Tndictment”). The indictment was secured under Mr. Gomez’ tenure, and an Assistant United States Attorney signed the indictment. See Indictment at 6. The question is whether Mr. Fouratt should be allowed to participate in the prosecution of this case given the way that he secured his current position.

1. The Background of Baldwin’s Case.

As the changes in the United States Attorney’s Office have occurred, the Assistant United States Attorneys have continued to carry out their duties, including presenting cases to the grand jury. On November 6, 2007, during Mr. Gomez’ term as United States Attorney, a grand jury returned the indictment against Baldwin. See Indictment. An Assistant United States Attorney, Chuck Barth, whom the Attorney General duly appointed to his position, signed the indictment. See id. at 6.

2. Mr. Fouratt’s Appointment as United States Attorney.

By law, Mr. Gomez’ appointment as United States Attorney expired after 120 days. See 28 U.S.C. § 546(c)(2). On January 25, 2008, a majority of the Article III judges of the United States District Court for the District of New Mexico, acting sua sponte, exercised the Court’s authority under 28 U.S.C. § 546(d) and appointed Mr. Fouratt as the United States Attorney for the District of New Mexico. See Administrative Order (dated January 25, 2008), available at http://www.nmcourt.fed.us/ web/DCDOCS/dcindex.html. One active judge abstained from the discretionary appointment and one active judge dissented from the Court’s exercise of its power to appoint. See id. at 1.

3. Motion to Dismiss.

On January 30, 2008, Baldwin filed a motion to dismiss his indictment without prejudice premised on Mr. Fouratt’s appointment. See Motion. Baldwin requests that the Court dismiss the indictment on the basis that a United States Attorney, who has been unconstitutionally appointed, is pursuing the prosecution. See Motion. Baldwin argues that the Court’s recent appointment of Mr. Fouratt under 28 U.S.C. § 546(d) as the United States Attorney for the District of New Mexico is unconstitutional. See id. Specifically, Baldwin contends that Mr. Four-att’s appointment offends the Appointments Clause of the Constitution, Art. II, § 2, cl. 2, see Motion at 2-3, and violates the constitutional principle of separation of powers, both facially and as applied, see id. at 4. As part of his motion, however, Baldwin does not argue that the return of the indictment was in any way invalid.

Baldwin first argues that Mr. Fouratt’s appointment by the district court violated the separation-of-powers doctrine. See Motion at 6. Baldwin contends that under, the test that Justice Scalia articulated in Morrison v. Olson, 487 U.S. 654, 697, 108 S.Ct. 2597, 101 L.Ed.2d 569 (1988)(Scalia, J., dissenting), Mr. Fouratt’s appointment was unconstitutional. See Motion at 7. He argues that Mr. Fouratt is “ultimately accountable to the judiciary, not the president.” Id.

While Baldwin acknowledges that Mr. Fouratt is an “inferior” officer under the United States Constitution, id., he nevertheless argues that Mr. Fouratt’s appointment violates the Appointments Clause of the United States Constitution, see id. at 8. Baldwin “asserts that the Appointments Clause is violated when a collage of Article III judges appoint the individual who has the responsibility to ensure that the laws of the United States are faithfully executed, yet who will keep his job only if he placates the very same supposedly neutral and detached judicial officers.” Id. at 9. Baldwin argues that the district court appointment of Mr. Fouratt is incongruous with the constitutional function of the judiciary. See Defendant’s Reply to the United States’ Response to Motion to Dismiss Indictment on the Basis that the Current United States Attorney Has Been Unconstitutionally Appointed at 1-6, filed February 18, 2008 (Doc. 25)(“Reply”). Baldwin argues that, because Mr. Fouratt has important decisions to make in his case, “including whether to offer a plea or whether to dismiss the case, or whether to seek a superseding indictment,” 28 U.S.C. § 546(d) is constitutionally infirm as applied to his case. Reply at 9-10.

The United States responded to Baldwin’s motion on February 13, 2008. See Response. The United States argues that the appointment of Mr. Fouratt did not violate the Appointments Clause because: (i) United States Attorneys are inferior officers under the Appointments Clause and (ii) the Supreme Court of the United States has already concluded that judicial appointment of prosecutors is not incongruous with judicial functions. See Response at 7 (citing Morrison v. Olson, 487 U.S. at 676-77, 108 S.Ct. 2597). The United States argues that the United States Court of Appeals for the First Circuit provided the proper standard for determining whether the appointment of Mr. Fouratt violated separation of powers in United States v. Hilario, 218 F.3d 19, 26 (1st Cir.2000), cert. denied, 531 U.S. 1014, 121 S.Ct. 572, 148 L.Ed.2d 490 (2000). See Response at 12.

Under the inquiry in United States v. Hilario, the court must: (i) ask whether Congress, in vesting the power to appoint interim United States Attorneys in the district court, conferred upon the judges a power that usurped the prerogatives of another branch of government and, thus, effected an unconstitutional accumulation of power within the Judicial Branch; and (ii) ask whether the exercise of the power to appoint somehow impedes the proper functioning of the Judicial Branch. See United States v. Hilario, 218 F.3d at 27. The United States contends that 28 U.S.C. § 546(d) only “gives the district court a limited power of appointment, [and] ... does not grant the district court any authority to supervise or remove an interim United States Attorney.” Response at 14. The United States argues that the appointment of Mr. Fouratt does not “impugn the judiciary’s institutional integrity.” Response at 16 (internal quotations omitted).

Finally, the United States contends that Baldwin’s “as applied” argument fails because Mr. Fouratt is accountable to the Executive Branch, not the district court. Response at 17-18. The United States also notes that Baldwin does not explain why dismissal of his indictment is a valid remedy for his claimed constitutional injury because he “offers no explanation as to why a validly obtained indictment, filed during the tenure of a duly appointed United States Attorney, should be dismissed if a subsequent United States Attorney is defectively appointed.” Id. at 19.

The Court held a hearing on February 19, 2008. Baldwin conceded that his indictment is valid, because, under rule 7 of the Federal Rules of Criminal Procedure, all that is required is the signature of an attorney for the United States. See Transcript of Hearing at 6:1-16 (taken February 19, 2008)(“Tr.”)(Gorence & Court). Baldwin’s requested remedy, however, is that the Court require the Department of Justice to have the Attorney General personally direct his case, or to have an Assistant Attorney General for the Criminal Division sign all pleadings and have assistants directly accountable to him prosecute this case. See id. at 9:9-16 (Gorence). Baldwin also suggested that his case could be stayed until someone “accountable to the executive” could prosecute his case, but acknowledged that his speedy trial rights might be at issue. Id. at 10:8-15 (Gorence). The United States conceded that it wanted the Court to decide the merits of the constitutional issues that Baldwin raises. See id. at 45:11-13 (Court & Abernathy). The United States acknowledged that the “seminal cases” are Morrison v. Olson and Edmond v. United States, 520 U.S. 651, 117 S.Ct. 1573, 137 L.Ed.2d 917 (1997). Tr. at 52:13 (Abernathy).

LAW REGARDING THE POSITION OF THE UNITED STATES ATTORNEY

While a United States Attorney is important in his or her district, importance does not answer the question whether the position is a principal or inferior office. Rather, the Court must look carefully at the details of the statutory framework that governs the appointment, removal, and supervision of United States Attorneys. While there have been recent changes, certain features of the current statutory framework have remained consistent over the last one hundred years.

1. Role and Powers of United States Attorneys.

Title 28, Section 547 of the United States Code enumerates a United States Attorney’s responsibility to prosecute criminal cases that the United States brings, to prosecute and defend civil cases in which the United States is a party, and to collect debts owed to the United States that cannot be collected through administrative means. See 28 U.S.C. § 547. United States Attorneys serve as the chief federal law enforcement official within each of the nation’s ninety-four judicial districts. See 28 U.S.C. § 541(a) (“The President shall appoint, by and with the advice and consent of the Senate, a United States attorney for each judicial district.”); Nadler v. Mann, 951 F.2d 301, 305 (11th Cir.1992)(“A United States Attorney ... is the chief federal law enforcement official for the judicial district he serves and is responsible for the prosecution, of all offenses against the United States within his district.”)(citing 28 U.S.C. §§ 541, 547). The scope and scale of federal-law enforcement expanded dramatically during the twentieth century. See, e.g., Bonner; The Federalization of Crime: Too Much of a Good Thing?, 32 U. Rich. L.Rev. 905, 920-25 (1998). Accordingly, the United States Attorney has the ability to affect the lives of almost every citizen of his or her district.

With a few exceptions, the United States Attorneys have been delegated the authority to make the important and sensitive decisions that drive criminal prosecutions. See 28 U.S.C. § 547(1) (vesting United States Attorneys with authority to “prosecute for all offenses against the United States”). “With law enforcement comes discretion.... ” Wiener, Inter-Branch Appointments After the' Independent Counsel: Court Appointment of United States Attorneys, 86 Minn. L.Rev. 363, 369 (2001). Federal prosecutors have broad discretion. “For example, U.S. Attorneys routinely decide whether to focus limited investigative and prosecutorial resources on petty criminals, white-collar criminals, loan sharks,- cyberspace pirates, or violent street gangs.” Id. at 366. These judgments are informed by the United States Attorney’s prosecutorial philosophy, and his or her assessment of the particular problems and vulnerabilities. See Wiener, supra at 366 n. 12 (citing Executive Office for the U.S. Attorneys, U.S. Dep’t of Justice, United States Attorneys Annual Statistical Report 1 (2000)(“Each United States Attorney is responsible for establishing law enforcement priorities within his or her district.”)). See also Executive Office for the U.S. Attorneys, U.S. Dep’t of Justice, United States Attorneys Annual Statistical Reports for 2002 through 2006, available at http://www.usdoj.gov/usao/ reading_roonyfoiamanuals.html.

For most cases, “the prosecutorial discretion of the U.S. Attorney is vast and unchecked by any formal, external constraints or regulatory mechanisms.” Frase;- The Decision to File Federal Criminal Charges: A Quantitive Study of Pros-ecutorial Discretion, 47 U. Chi. L.Rev. 246, 303 (1980).

■U.S. Attorneys exercise the entire range of prosecutorial discretion literally'on a daily basis. For example, on behalf of the United States, U.S. Attorneys routinely decide what crimes grand juries will investigate; what evidence and witnesses will be presented to the grand jury; whether to. pursue an investigation, or to close one; what charges will be brought, against whom, and on how many counts; and whether charges will be dropped or reduced in exchange for a guilty plea and cooperation. Further, through the inevitable rationing of limited resources, U.S. Attorneys set the federal law enforcément agenda for their districts by determining which crimes are worth major investigative resources, which crimes are better left to the state criminal justice systems, when justice will be served by leniency, and what magnitude of fraud deserves to be prosecuted.

Wiener, supra at 382-83. See United States v. Luttrell, 923 F.2d 764 (9th Cir.1991)(holding that probable cause or reasonable suspicion are not prerequisites for initiating investigations of individuals); Levenson, Working Outside the Rules: The Undefined Responsibilities of Federal Prosecutors, 26 Fordham Urb: L.J. 553, 560 (1999)(“The law does not pretend to dictate when a prosecutor' may- open an investigation-.”). These discretionary powers led Attorney General, and later Associate Justice, Robert Jackson to conclude that “[t]he prosecutor has more control over life, liberty, and reputation than any other person in America.” Attorney General Robert Jackson, The Federal Prosecutor, Address Delivered at the Second Annual Conference of United States Attorneys (April 1, 1940), reprinted in 24 J. Am. Judicature Soc’y 18 (1940).

One of the greatest difficulties of the position of prosecutor is that he must pick his cases, because no prosecutor can even investigate all of the cases in which he receives complaints.... What every prosecutor is practically required to do is to select the cases for prosecution and to select those in which the offense is the most flagrant, the public harm the greatest, and the.proof the most certain.

Id. at 18.

2. Statutory History and Background of Appointing United States Attorneys.

The Appointments Clause of the United States Constitution .provides:

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

U.S. Const., art. II, § 2, cl. 2 (emphasis added). Since 1789, federal law has mandated that the President of the United States, with the advice and consent of the United States Senate, appoints a United States Attorney. See Parsons v. United States, 167 U.S. 324, 338-39, 32 Ct.Cl. 626, 17 S.Ct. 880, 42 L.Ed. 185 (1897). Congress has vested the appointment of a United States Attorney in the President, with the advice and consent of the Senate. See 28 U.S.C. § 541(a). Congress has, however, provided by statute for appointment of a United States Attorney by the courts for more than half the life of the republic. Congress first authorized the judicial appointment of interim United States Attorneys in 1863, vesting the Circuit Justice with power to fill a vacancy “until an appointment shall be made by the President, and the appointment has duly qualified, and no longer.” Act to Give Greater Efficiency to the Judicial System of the United States of March 3, 1863, 12 Stat. 768. In 1898, Congress transferred this authority to the district courts, because “ ‘the circuit justice is not always to be found in the circuit and time is wasted in ascertaining his whereabouts.’ ” United States v. Sotomayor Vazquez, 69 F.Supp.2d 286, 295 (D.P.R.1999)(quoting H.R.Rep. No. 1317, 55th Cong., 2d Sess. 1 (1898)).

Since the Civil- War, with the exception of a very brief hiatus from 2006 to 2007, Congress has continuously and intentionally vested the federal judiciary with a role in appointment of United States Attorneys. See USA PATRIOT Improvement and Reauthorization Act of 2005, Pub.L. No. 109-177, 120 Stat. 192. For example, in 1985, the Department of Justice requested that Congress authorize the Attorney General to fill vacancies in the Offices of the United States Attorneys, but the statute that Congress adopted the next year permitted the Attorney General to make only a 120-day appointment, while retaining the judiciary’s power to make appointments after this 120-day period had expired. Compare 131 Cong.Rec. S9185-02 (July 9, 1985) with Pub.L. No. 99-646, Sec. 69, 100 Stat. 3592. Thus, before 2006, Title 28, Section 546 of the United States Code delegated appointment power to the Attorney General where a federal district’s United States Attorney’s office remained vacant.

The Attorney General’s appointment power was, however, limited in candidacy and scope. An Attorney General could not appoint an individual whom the United States Senate had previously refused pursuant to its advice and consent responsibilities. See 28 U.S.C. § 546(b). Furthermore, an Attorney General’s appointment lasted only until the President appointed a United States Attorney, but in no case was the Attorney General’s appointee permitted to hold office beyond 120 days. See 28 U.S.C. § 546(c). If the Attorney General’s appointment expired under the 120-day rule, the United States District Court had the power to appoint an interim United States Attorney until an appointment by the President, with presentment to the Senate, could be effected. See 28 U.S.C. § 546(d).

The only brief break in the judiciary’s appointment power since the Civil War came in 2006 with the passage of the USA PATRIOT Improvement and Reauthorization Act of 2005. See Pub.L. No. 109-177, 120 Stat. 192. In 2006, Congress struck the 120-day limitation of § 546(c)(2) and struck § 546(d) altogether. See Pub.L. No. 109-177, 120 Stat. 192. Subsection (d) of § 546 had allowed the United States District Court to appoint an interim United States Attorney upon the expiration of the statutory 120-day period. See 28 U.S.C. § 546(d).

3. The Current Statutory Appointment Process.

In 2007, Congress restored both the 120-day limitation upon the term of the Attorney General’s appointee and the judiciary’s power to make appointments of United States Attorneys in 28 U.S.C. § 546(d). See Preserving United States Attorney Independence Act of 2007, Pub.L. 110-34, 121 Stat. 224. Specifically, Congress amended 28 U.S.C. § 546 to reinstate the statutory language in effect until 2006. See Preserving United States Attorney Independence Act of 2007, Pub.L. 110-34, 121 Stat. 224.

Thus, when a United States Attorney’s position is vacant, an interim United States Attorney may be appointed. Congress has divided the responsibility for making interim appointments between the Attorney General and the district courts. Section 546(d) now provides that district courts may appoint an interim United States Attorney to serve “until the vacancy is filled.” 28 U.S.C. § 546(d). Section 541(d) still confers, however, the power to appoint United States Attorneys on the President. See 28 U.S.C. § 541(d).

Specifically 28 U.S.C. § 546 presently provides that:

(a) Except as provided in subsection (b), the Attorney General may appoint a United States attorney for the district in which the office of United States attorney is vacant.

(b) The Attorney General shall not appoint as United States attorney a person to whose appointment by the President to that office the Senate refused to give advice and consent.

(c) A person appointed as United States attorney under this section may serve until the earlier of—

(1) the qualification of a United States attorney for such district appointed by the President under section 541 of this title; or

(2) the expiration of 120 days after appointment by the Attorney General under this section.

(d)If an appointment expires under subsection (c)(2) of this section, the district court for such district may appoint a United States attorney to serve until the vacancy is filled. The order of appointment by the court shall be filed with the clerk of the court.

28 U.S.C. § 546. The statute does not require the district court to appoint a United States Attorney once the 120-day period has run on the Attorney General’s appointment. See Wiener, supra at 399. “Instead, the statute provides that the district court ‘may’ make its own appointment.” Id. (quoting 28 U.S.C. § 546(d)). See United States v. Gantt, 194 F.3d 987, 1000 (9th Cir.1999)(stating that “[t]he judicial branch is not required to appoint a United States Attorney; it is simply empowered to do so.”).

Mr. Ross Wiener, a Trial Attorney with the Department of Justice, points out that ambiguity exists concerning the Attorney General’s appointment authority when no U.S. Attorney has been confirmed by the Senate at the end of the 120-day limit imposed by the statute. See Wiener, supra at 401.

Because the statute limits the Attorney General-appointed U.S. Attorney’s term to 120 days, the position is legally “vacant” after the 120 days have expired. The plain language of the statute appears to vest the Attorney General with the authority to appoint another U.S. Attorney. The paltry legislative history on § 546, however, implies that such a subsequent appointment by the Attorney General was not what Congress intended. As Congressman Ber-man stated on the floor of the House of Representatives, “[o]nce the appointment of an interim United States Attorney expires, the district court appoints a United States Attorney to serve until a presidentially appointed United States Attorney is qualified.” ... The Justice Department has taken the position that a second appointment by the Attorney General would be inappropriate because “[t]he statutory plan discloses a [c]ongressional purpose that after the expiration of the 120-day period further interim appointments are to be made by the court rather than by the Attorney General.” ... [T]he Department of Justice’s Office of Legal Counsel argued that, if the President removed a court-appointed U.S. Attorney, then the Attorney General would have the power to appoint another U.S. Attorney____ These competing interpretations have never been reconciled because this authority has apparently never been tested.

Id. at 401-403 (citing Memorandum from Samuel A. Alito, Jr., Deputy Assistant Attorney General, Office of Legal Counsel, to William P. Tyson, Director, Executive Office for United States Attorneys 3 (Nov. 13, 1986)(on file with Wiener)); 132 Cong. Ree. 32707, 32806 (statement of Rep. Bur-man); Memorandum from Charles J. Cooper, Assistant Attorney General, Office of Legal Counsel, to Arnold I. Burns, Deputy Attorney General 1 (Apr. 15, 1980)(on file with Wiener). Nevertheless, it appears clear that if the judiciary appoints a United States Attorney, the President remains able to appoint another United States Attorney.

It is important to note that, “[s]ince the Independent Counsel Act expired, the U.S. Attorney remains the only executive-branch officer who[m] courts have the power to appoint.” Wiener, supra at 363. For example, Congress has not granted the district court authority to fill vacancies in the office of the United States Marshal. See 28 U.S.C. § 562.

4. How Judicial Appointment Often Works.

Mr. Wiener, in his law review article, provides some information on how the process of filling the United States Attorney vacancies proceeds after the 120-day appointment by the Attorney General expires. See Wiener, supra at 398-99. Mr. Wiener states:

In the usual course, very little changes upon the expiration of the 120-day term of the Attorney General’s appointee. This is because, as a matter of practice, the Department of Justice works behind the scenes to affect smooth transitions. When a vacancy initially arises or is about to arise, where advance notice has been provided, representatives of the Attorney General contact the chief judge of the appropriate district court to explain the provisions dealing with the interim appointment of the U.S. Attorney. The Department of Justice officials inform the chief district court judge of the Attorney General’s likely appointee and solicit the judge’s reaction. The Attorney General almost always selects a career Assistant U.S. Attorney from- the district in which the vacancy arises. Sometimes, though infrequently, the Attorney General selects a career prosecutor from Main Justice. By keeping the chief district court judge “in the loop” during the Attorney General’s selection process and by choosing, in most instances, a career prosecutor with whom the judge is familiar, the Attorney General can reasonably expect that her appointee will continue to serve as U.S. Attorney at the expiration of the 120 days. This may occur either through subsequent .court appointment of the same individual, or through court inaction that leaves the Attorney. General’s appointee, albeit precariously, in place. Near the expiration of the Attorney General’s appointee’s 120-day tenure, representatives of the Attorney General send a letter to the chief district judge reminding the judge of the Court’s authority to appoint another U.S. Attorney. The letter also includes a proposed court order reappointing the Attorney General’s appointee.

Id. at -399-400 (citing an interview with David Margolis and Bernie Delia, Associate Deputy Attorneys General, in Washington, D.C. (December 28, 2000)(on file with Wiener)).

5. History of Removal of United States Attorneys.

The' power to' remove a United States Attorney is vested exclusively in the President, who may exercise that power for any reason. See 28 U.S.C. § 541(c); Parsons v. United States, 167 U.S. 324, 331, 32 Ct.Cl. 626, 17 S.Ct. 880, 42 L.Ed. 185 (1895). Thus, only the President can discharge a United States Attorney! Accordingly, an interim United States Attorney must relinquish the position when a Presidential appointee becomes qualified, either through the nomination and confirmation process or through a recess appointment. See In re: Farrow, 3 F. 112, 116 (C.C.N.D.Ga.1880)(noting that predecessor statute authorizing judicial appointment of interim United States Attorney “was not to enable the circuit justice to oust the power of the president to appoint, but to authorize him to fill the vacancy until the president should act, and no longer”).

6. Supervision of United States Attorneys.

The Attorney General’s supervision of United States Attorneys in the modern era is pervasive. This control began in 1861, when Congress first charged the Attorney General with the “general superintendence and direction of’ United States Attorneys. Act of August 2, 1861, Ch. 37, 12 Stat. 185. Congress consolidated the Attorney General’s control further in 1870 when Congress established the Department of Justice. See An Act to establish the Department of Justice, 16 Stat. 164. By 1888, the Supreme Court had observed that the Attorney General “has the authority, and it is made the duty, to supervise and conduct all suits brought by or against the United States ... and all the district attorneys who do bring them in the various courts in the county are placed under his immediate direction and control.” United States v. San Jacinto Tin, 125 U.S. 273, 278-79, 8 S.Ct. 850, 31 L.Ed. 747 (1888).

The Attorney General continues to exercise control over United States Attorneys, as the First Circuit noted in United States v. Hilario:

Congress has ceded to the Attorney General plenary authority over United States Attorneys. See 28 U.S.C. § 519; see also id. § 516 (reserving litigation on behalf of the United States to officers of the Department of Justice “under the direction of the Attorney General”).... The Attorney General can remove a United States Attorney from participation in particular cases whenever she believes that it would be “in the interests of the United States” to do so. 28 U.S.C. § 518(b). Indeed, she is empowered to determine the location of a United States Attorney’s offices,, see id. § 545(b), to direct that he file reports, see id. § 547(5), to fix his salary, see id. § 548, to authorize his office expenses, see id. § 549, and to approve his staffing decisions, see id. § 550.

United States v. Hilario, 218 F.3d at 25. The United States Attorney’s Manual (“USAM”) further outlines specific activities of the United States Attorneys that require approval from the Attorney General or his subordinates. A few examples include: (i) recusal of a United States Attorney from a case, see USAM § 3-2.170; (ii) accepting or rejecting settlement offers in many civil cases, see 28 C.F.R. §§ 0.160 to 0.Í66; USAM § 5-7.620; (iii) initiating a grand jury investigation limited to tax violations, see USAM § 6^4.120; (iv) bringing a RICO prosecution, see USAM § 9-110.101; (v) obtaining immunity to compel a witness to testify, see USAM §§ 9-23.130, 9-90.020; (vi) obtaining search warrants in specified -circumstances, see USAM §§ 9-13.420, 9-19.220, 9-90.210; (vii) bringing a federal prosecution based on acts involved in a prior state or federal proceeding, see USAM § 9-2.031; and (viii) seeking the death penalty in a criminal case, see USAM § 9-10.020.

Department of Justice policy sets forth numerous other actions that require United States Attorneys and Assistant United States Attorneys to consult with Department of Justice officials. See USAM § 3-1.200 (Prior Approvals Requirement Chart regarding Executive Office for United States Attorneys); USAM § 4-1.600 (Pri- or Approvals Chart regarding Assignment of Responsibilities in Civil. Matters); USAM § 5-2.000 (Prior Approvals Chart regarding Environment and Natural Resources Matters); USAM § 6-2.000 (Prior Approvals Chart regarding Tax Matters); USAM § 7-2.000 (Prior Approvals Chart regarding Antitrust Matters); USAM § 9-2.400 (Prior Approvals Chart regarding Criminal Matters). Furthermore, with respect to appellate matters, the. Solicitor General exercises substantial control over United States Attorneys. For example, no United States Attorney may prosecute an appeal without obtaining the Solicitor General’s permission. See 28 C.F.R. § 0.20; USAM § 2-1.000. In Supreme Court matters, the Solicitor General must either conduct the litigation on behalf of the United States, or assign and supervise the matter. See 28 C.F.R. § 0.20(a). In addition, the Tax Division, the Civil Rights Division, and the Civil Division of the Department of Justice possess substantial authority to handle appellate litigation in civil matters that fall within their respective areas of responsibility. See USAM §§ 2-3.200, 2-3.210, and 2-3.220.

7. The Nature of a Judicially Appointed United States Attorney.

Both Baldwin and the United States, at numerous places in their briefing, refer to Mr. Fouratt as an “interim” United States Attorney, but that characterization does not fully capture the uniqueness of his position. In one sense, all United States Attorneys are interim; there will always be some replacement down the road. In that sense, the word “interim” gives little meaning. The Court also does not think “interim” has much meaning when applied to judicially appointed United States Attorneys. While a judicially appointed United States Attorney serves until the President appoints, and the Senate confirms, a replacement, some judicially appointed United States Attorneys serve for years, and the reality is that Mr. Fouratt may serve at least until the ' new President is sworn in 2009. Moreover, an appointment under § 546(d) confers upon the appointee all the powers of a United States Attorney. See In re: Grand Jury Proceedings, 673 F.Supp. 1138, 1142 (D.Mass.1987)(explaining that appointment under § 546(d) results in an “actual, fully empowered United States Attorney”). Accordingly, the Court will refer to Mr. Fouratt as a judicially appointed United States Attorney rather than an “interim” United States Attorney.

8. Indictments and Role of Assistant United States Attorneys.

Indictments only need be signed by “an attorney for the government.” Fed. R.Crim.P. 7(c)(1). Rule 54(c) of the Federal Rules of Criminal Procedure goes on to define the phrase “attorney for the government” as “the Attorney General, an authorized assistant of the Attorney General, a United States Attorney, [or] an authorized assistant of -a United States Attorney_” Fed.R.Crim.P. 54(c).

While 28 U.S.C. § 547(1) authorizes the United States Attorney to “prosecute for all offenses against the United States” in his or her district, this authority is not exclusive. Id. All the functions of the United States Attorney, including the power to prosecute, are also vested in the Attorney General, and the Attorney General has the power to supervise and direct United States Attorneys and Assistant United States Attorneys in the discharge of their duties. See 28 U.S.C. §§ 509, 515, and 519. Moreover, the Attorney General, not the United States Attorney, appoints and removes Assistant United States Attorneys. See 28 U.S.C. § 542(a) (“The Attorney General may appoint one or more assistant United States attorneys in any district where the public interest so requires.”).

Accordingly, Assistant United States Attorneys derive their power to prosecute directly from the Attorney General, not from a United States Attorney. While United States Attorneys supervise and direct the Assistant United States Attorneys assigned to their offices, it does not follow that Assistant United States Attorneys lack the power to prosecute in the absence of a duly-appointed United States Attorney. Indeed, in the event of a vacancy in the office of the United States Attorney, Assistant United States Attorneys retain prosecutorial authority, as originally delegated to them by the Attorney General, subject to the supervision of the Attorney General and the Department of Justice. See 28 U.S.C. § 519 (granting Attorney General the power to supervise Assistant United States Attorneys in the discharge of their duties).

9. Federal Public Defender.

The United States Courts of Appeals appoint the Federal Public Defenders even though the Federal Public Defender and his or her subordinates regularly represent clients in appellate cases. See 18 U.S.C. § 3006A(g)(2)(A). Moreover, unlike United States Attorneys appointed under § 546(d), who are supervised exclusively by the Executive Branch, Federal Public Defenders are subject to oversight by the Court of Appeals after their appointment. The Courts of Appeals set their salaries, direct how many attorneys work in their offices, and determine whether ' they will be reappointed after their four-year term expires. See 18 U.S.C. § 3006A(g)(2)(A). The Courts of Appeals may remove the Federal Public Defenders from office for “incompetency, misconduct in office or neglect of duty.” Id.

The District Court’s Order Adopting Criminal Justice Act Plan, Mise. No. 1426, provides that the Court determines membership on the CJA Panel and retains removal power. See CJA Order at 10-11 (dated May 10, 2004) (“The court shall approve attorneys for membership on the CJA Panel.... Membership on the CJA Panel is a privilege and not a right and members of the CJA Panel serve at the pleasure of the court”), available at http:// cms/metadot/index.pl?iid=4367&isa= Item. The Court exercises its discretion whether to appoint CJA counsel in individual cases. See id. at 7. The Court reviews and approves CJA panel attorneys’ billings for legal services, permitting in camera hearings whether a claim for payment “should be cut or reduced.” Id. at 25-26.

LAW REGARDING THE APPOINTMENTS CLAUSE

The United States Constitution provides that the President appoints principal officers and that Congress may decide who appoints “inferior” officers. U.S. Const. Art. II, § 2, cl. 2. While the Constitution has given the President power to appoint many officers, the Constitution gives Congress great discretion to decide how inferi- or officers are appointed. The debate has thus largely focused on what offices are superior and what offices are inferior.

LAW REGARDING CONSTRUCTION OF CONGRESSIONAL STATUTES IN CASES CHALLENGING THEIR CONSTITUTIONALITY

“[I]t is the duty of federal courts to construe a statute in order to save it from constitutional infirmities.” Morrison v. Olson, 487 U.S. at 682, 108 S.Ct. 2597 (citations omitted). “[T]he constitutional avoidance doctrine counsels us to adopt constructions of statutes to avoid decision of constitutional questions, not to deliberately create constitutional questions.” McConnell v. Federal Election Comm’n, 540 U.S. 93, 280 n. 12, 124 S.Ct. 619, 157 L.Ed.2d 491 (2003)(internal quotations omitted). “[T]he elementary rule is that every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.” Gonzales v. Carhart, — U.S. -, 127 S.Ct. 1610, 1631, 167 L.Ed.2d 480 (2007)(internal quotations omitted). “The canon of constitutional avoidance ... comes into play only when, after the application of ordinary textual analysis, the statute is found to be susceptible of more than one construction; and the canon functions as a means of choosing between them.” Spector v. Norwegian Cruise Line Ltd., 545 U.S. 119, 140, 125 S.Ct. 2169, 162 L.Ed.2d 97 (2005)(internal quotations omitted).

1. The Appointments Clause.

The Appointments Clause is designed to use the checks and balances of the constitutional structure to ensuré a “higher quality of appointments.” Edmond v. United States, 520 U.S. at 659, 117 S.Ct. 1573. The Appointments Clause makes nomination and confirmation the requisite appointment protocol ■ for what have come to be known as “principal officers” of the United States by allowing Congress to permit a limited class of officials to appoint “inferior officers” without the' need for confirmation. Edmond v. United States, 520 U.S. 651, 659-61, 117 S.Ct. 1573, 137 L.Ed.2d 917 (1997). Congress thus cannot delegate the appointment of “principal” officers to anyone other than the Executive Branch, but can validly delegate the appointment of “inferi- or” officers.

The Appointment Clause “is a bulwark against one branch aggrandizing its power at the expense of another branch ... by preventing the diffusion of the appointment power.” Ryder v. United States, 515 U.S. 177, 182, 115 S.Ct. 2031, 132 L.Ed.2d 136 (1995)(internal quotations omitted). The Appointments Clause dictates that the President, with the advice and consent of the Senate, possesses the sole authority to appoint “principal” officers of the United States. Buckley v. Valeo, 424 U.S. 1, 132, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976)(per curiam); United States v. Germaine, 99 U.S. 508, 509, 25 L.Ed. 482 (1878)(“[The Clause] declares that the President shall nominate, and by and with the advice and consent of the Senate shall appoint, ambassadors, other public ministers .and consuls, judges of the Supreme Court, and all other officers of the United States, • whose appointments are not herein otherwise provided for and which shall be established by law.”)(internal quotations omitted). On the other hand, Congress is empowered to authorize the appointment of “inferior” officers “in the President alone, in the Courts of Law, or in the Heads of Departments.” U.S. Const. Art. II, § 2, cl. 2.

“On its face, the language of this excepting clause admits of no limitation on inter-branch appointments [of inferior officers]. Indeed, the inclusion of as ‘they think proper’ seems clearly to give Congress significant discretion to determine whether it is proper to vest appointment of, for example, executive officials in the ‘courts of Law.’ ” Morrison v. Olson, 487 U.S. at 678, 108 S.Ct. 2597 (quoting U.S. Const. Art. II, § 2, cl. 2.). Thus, if the position is characterized as an inferior position, Congress has considerable discretion in how the position will be filled.

2. Caselaw Defining Principal and Inferior Offices.

The Supreme Court has had relatively few occasions to define the difference between principal and inferior officers. Most decisions have proceeded on an ad hoc analysis.

In Ex parte Siebold, 100 U.S. 371, 25 L.Ed. 717 (1870), the Supreme Court examined the court appointment of “judges of election,” who watched the polls for congressional elections. Id. at 373. The defendants, including Siebold, had been convicted of engaging in election fraud. See id. at 377-79. The defendants appealed their convictions and challenged their own interbranch appointments as violative of the Appointment Clause. See id. at 397.

The Supreme Court recognized, in Ex Parte Siebold, the validity of interbranch appointments and introduced the incongruity analysis to limit such appointments. See id. at 398 (“[T]he duty to appoint inferior officers, when required thereto by law, is a constitutional duty of the courts; and in the present case there is no such incongruity in the duty required as to excuse the courts from its performance, or to render their acts void.”). The Supreme Court rejected the contention that appointment of supervisors of election by the Circuit Courts is an entirely executive function, and also rejected the contention “that no power can be conferred upon the courts of the United States to appoint officers whose duties are not connected with the judicial department of the government.” Id. at 397. The Supreme Court noted that the Constitution explicitly authorized courts to exercise appointive power. See id. at 397-98. Thus, where the law conferred appointive authority on the courts, it became a constitutional duty of the courts to make appointments unless there was “such an incongruity in the duty required as to excuse the courts from its performance, or to render their acts void.” Id. at 398. The Supreme Court determined that appointment of the election supervisors by the district court was not incongruous with appropriate judicial activity. See id.

Two Supreme Court cases decided within ten years of each other — Morrison v. Olson and Edmond v. United States — illustrate the ad hoc nature of Appointments Clause jurisprudence and offer divergent approaches to distinguishing between principal and inferior officers.

3. Morrison v. Olson.

Congress passed the Ethics in Government Act in 1978 as a reaction to the Watergate scandal in an “attempt to remove discretion over criminal investigations and prosecutions of high-level government officials from the political arena....” Wiener, supra at 406. The Ethics in Government Act of 1978 gave power to the Special Division, a court that the Congress created, to appoint an independent counsel. The Supreme Court in Morrison v. Olson noted that the appointing judges were “ineligible to participate in any matters relating to an independent counsel they have appointed.” 487 U.S. at 677, 108 S.Ct. 2597. See 28 U.S.C. § 49(f)(“[N]o member of such division of the court who participated in a function conferred on the division under chapter 40 of this title involving an independent counsel shall be eligible to participate in any judicial proceeding concerning a matter which involves such independent counsel while such independent counsel is serving in that office or which involves the exercise of such independent counsel’s official duties, regardless of . whether such independent counsel is still serving in that office.”). The Supreme Court also explained that independent counsel were “subject to removal by a higher Executive Branch official.” Morrison v. Olson, 487 U.S. at 671, 108 S.Ct. 2597. The Supreme Court further stated that, “[u]nlike other prosecutors, [the Independent Counsel had] no ongoing responsibilities that extend beyond the accomplishment of the mission that she was appointed for and authorized by the Special Division to undertake.” Id. at 672, 108 S.Ct. 2597.

In Morrison v. Olson, the Supreme Court considered and reviewed, among other issues, the constitutionality of the independent counsel provisions of the Ethics in Government Act of 1978. In Morrison v. Olson, three former government officials challenged the authority of independent counsel appointed under provisions of the Ethics and Government Reform Act to issue subpoenas to compel their testimony. See 487 U.S. at 654, 108 S.Ct. 2597. The former officials challenged the subpoenas as unconstitutional under the Appointments Clause of the United States Constitution. See id. at 670-77, 108 S.Ct. 2597. The Supreme Court’s decision in Morrison v. Olson ultimately rested on the distinction between “principal” and “inferior” officers of the United States. The Supreme Court noted that the Appointments Clause divides all officers into two classes: inferior and principal. See id. at 670-71, 108 S.Ct. 2597. “The line between ‘inferior’ and ‘principal’ officers is one that is far from clear, and the Framers provided little guidance into where it should be drawn.” Id. at 671, 108 S.Ct. 2597.

The Supreme Court in Morrison v. Olson emphasized the independent counsel’s authority to perform certain limited duties, that the independent counsel’s office is limited in jurisdiction, and that the office is limited in tenure. See id. at 671-72, 108 S.Ct. 2597. The Supreme Court held that independent counsel are inferior officers. See id. at 673, 108 S.Ct. 2597. It held the appointment of an independent counsel as that of an “inferior” officer and ultimately upheld the constitutionality of the Act’s appointment provisions. Id. at 677, 108 S.Ct. 2597.

The Supreme Court in Morrison v. Olson noted: “Lower courts have also upheld interim judicial appointments of United States Attorneys ... and Congress itself has vested the power to make these interim appointments in the district courts.” 487 U.S. at 677, 108 S.Ct. 2597 (citing 28 U.S.C. § 546(d) and United States v. Solomon, 216 F.Supp. 835 (S.D.N.Y.1963)). In holding the independent counsel to be an “inferior” officer, however, the Supreme Court demurred on delineating any specific test for “deciding] exactly where the line falls between” principal' and inferior officers. Morrison v. Olson, 487 U.S. at 671, 108 S.Ct. 2597.

4. Justice Scalia’s Dissenting Opinion in Morrison v. Olson.

Justice Kennedy took no part in the Morrison v. Olson decision. See Morrison v. Olson, 487 U.S. at 697, 108 S.Ct. 2597. Justice Scalia was the sole justice to dissent. See id. ' (Scalia, J., dissenting). Justice Scalia concluded that the level of independence conferred on the Independent Counsel would demand the accountability ensured through presidential control. See id. at 707, 108 S.Ct. 2597.

Starting from the proposition that law enforcement — the power to prosecute individuals for legal transgressions — is a “quintessentially executive function,” id. at 706, 108 S.Ct. 2597, Justice Scalia recognized that “the balancing of various legal, practical, and political considerations, none of which is absolute, is the very essence of prosecutorial discretion,” id. at 708, 108 S.Ct. 2597. In a significant recognition for determining the status of United States Attorneys, Justice Scalia stated that “[e]ven an officer who is subordinate to a department head can be a principal officer.” Id. at 722, 108 S.Ct. 2597 (referring to debates at the Constitutional Convention). Justice Scalia argued there is nothing “unusually limited about the independent’s counsel’s tenure” because “unlike most high-ranking Executive Branch officials, she continues to serve until she (or the Special Division) decides that her work is substantially completed.” Id. at 718, 108 S.Ct. 2597. Justice Scalia also did not agree with the majority that the independent counsel's scope of jurisdiction was small. See id. He stated:

If the mere fragmentation of executive responsibilities into small departments suffices to render the heads of each of those compartments inferior officers, then Congress could deprive the President of the right to appoint his chief law enforcement officer by dividing up the Attorney General’s responsibilities among a number of “lesser” functionaries.

Id. In Justice Scalia’s opinion, the pertinent analysis for whether an appointee is an “inferior” officer is whether that appointee is “subordinate.” Id. at 719-20, 108 S.Ct. 2597. “That ‘inferior’ means ‘subordinate’ is also consistent with what little we know about the evolution of the Appointments Clause.” Id. at 720, 108 S.Ct. 2597. Justice Scalia explained:

As originally reported to the Committee on Style, the Appointments Clause provided no “exception” from the standard manner of appointment (President with the advice and consent of the Senate) for inferior officers. On September 15, 1787, the last day of the Convention before the proposed Constitution was signed, in the midst of a host of minor changes that were being considered, Gouverneur Morris moved to add the exceptions clause. No great debate ensured; the only disagreement was over whether it was necessary at all. Nobody thought it was a fundamental change, excluding from the President’s appointment power and the Senate’s confirmation power a category of officers who might function on their own, outside the supervision of those appointed in the more cumbersome fashion. And it is significant that in the very brief discussion Madison mentions (as in apparent contrast to the “inferior officers” covered by the provision) “Superi- or Officers.” Of course one is not a “superior officer” without some supervisory responsibility, just as, I suggest, one is not an “inferior officer” within the meaning of the provision under discussion unless one is subject to supervision by a “superior officer.”

Id. at 720, 108 S.Ct. 2597 (internal citations omitted). Justice Scalia argued “it is surely a necessary condition for inferior officer status that the officer be subordinate to another officer.” Id. at 722, 108 S.Ct. 2597 (emphasis in original). An appointee is not an inferior officer if she is not subordinate to another officer. See id. at 728, 108 S.Ct. 2597.

5. The Implied Congruity Requirement or Incongruity Limitation.

In Morrison v. Olson, the Supreme Court stated: “We do not mean to say that Congress’ power to provide for inter-branch appointment of ‘inferior offices’ is unlimited.” 487 U.S. at 675, 108 S.Ct. 2597. Notwithstanding the sweeping constitutional language in the excepting provision of the Appointments Clause, the Supreme Court has stated that even the Appointments Clause has limits if Congress decides to vest the appointment power of an “inferior” officer in a branch which creates an “incongruity” between the functions normally performed by that branch and its interbranch appointment power. Id. at 675-76, 108 S.Ct. 2597 (citing Ex parte Siebold, 100 U.S. 371, 398, 25 L.Ed. 717 (1880)).

The Supreme Court has, however, already concluded that there is no “inherent incongruity about a court having the power to appoint prosecutorial officers.” Morrison v. Olson, 487 U.S. at 676, 108 S.Ct. 2597. “Indeed,” the Supreme Court declared, “in light of judicial experience with prosecutors in criminal cases, it could be said that courts are especially well-qualified to appoint prosecutors.” Id. at 676 n. 13, 108 S.Ct. 2597. The Supreme Court held that, because independent counsel are inferior officers, their appointment by a congressionally created federal court was not unconstitutional, because it did not create any “incongruity between the functions normally performed by the courts and the performance of their duty to appoint.” Id. at 676, 108 S.Ct. 2597 (citing Ex parte Siebold, 100 U.S. at 398).

In Morrison v. Olson, the Supreme Court cited the district court’s authority to appoint United States Attorneys under § 546(d) in rejecting the contention that judicial appointment of prosecutors was “incongruous” with court functions:

We have recognized that courts may appoint private attorneys to act as prosecutor for judicial contempt judgments ... we approved court appointment of United States commissioners, who exercised certain limited prosecutorial powers .... In Siebold, as well, we indicated that judicial appointment of federal marshals, who are “executive officer[s],” would not be inappropriate. Lower courts have also upheld interim judicial appointments of United States Attorneys, and Congress itself has vested the power to make these interim appointments in the district courts....

Morrison v. Olson, 487 U.S. at 676-77, 108 S.Ct. 2597 (internal citations omitted). The Supreme Court further acknowledged “the longstanding judicial practice of appointing defense attorneys for individuals who are unable to afford representation.” Id. at 677 n. 14, 108 S.Ct. 2597. See 18 U.S.C. § 3006A(g)(2)(A) (providing for appointment of Federal Public Defender by the Court of Appeals of the Circuit).

The Supreme Court also rejected the contention that exercise of appointment power by the congressionally created federal court was in conflict with Article III of the United States Constitution. See Morrison v. Olson, 487 U.S. at 679 n. 16, 108 S.Ct. 2597 (“We do not think that judicial exercise of the power to appoint, per se, is in any way inconsistent as a functional matter with the courts’ exercise of their Article III powers.”)(emphasis in original).

6. Edmond v. United States.

Subsequently, in Edmond v. United States, the Supreme Court considered whether the Secretary of Transportation constitutionally appointed judges on the military’s Coast Guard Court of Criminal Appeals (“CGCCA”). See 520 U.S. at 660-61, 117 S.Ct. 1573. Justice Scalia wrote the majority opinion. See id. at 653, 117 S.Ct. 1573. The constitutionality of the appointments hinged on whether the appointees were principal or inferior officers. See at 660-61, 117 S.Ct. 1573.

The Supreme Court first acknowledged that its “cases have not set forth an exclusive criterion for distinguishing between principal and inferior officers for Appointments Clause purposes.” Id. at 661, 117 S.Ct. 1573. It noted that “[ajmong the offices [it has] found to be inferior are that of a district court clerk, an election supervisor, a vice consul charged temporarily with the duties of the consul, and a United States commissioner in a district court proceeding ... [and] the independent counsel created by the provisions of the Ethics in Government Act of 1978.Id. (internal citations and quotations omitted). The Supreme Court explained:

Generally speaking, the term “inferior officer” connotes a relationship with some higher ranking officer or officers below the President: Whether one is an “inferior” officer depends on whether he has a supervisor. It is not enough that other officers may be identified who formally maintain a higher rank, or possess responsibilities of a greater magnitude .... Rather, in the context of a Clause designed to preserve political accountability relative to important Government assignments, we think it evident that “inferior officers” are officers whose work is directed and supervised at some level by others who were appointed by Presidential nomination with the advice and consent of the Senate.

Id. at 662-63, 117 S.Ct. 1573. The Supreme Court concluded in Edmond v. United States that the appointed judges were inferior officers “by reason of the supervision over their work exercised by the General Counsel of the Department of Transportation in his capacity as Judge Advocate General and the Court of Appeals for the Armed Forces.” Id. at 666, 117 S.Ct. 1573. The Supreme Court held the appointments constitutional. See id.

Justice Souter filed a concurrence in Edmond v. United States, repeating Justice Scalia’s admonition in Morrison v. Olson: “Having a superior officer is necessary for inferior officer status, but not sufficient to establish it.” 520 U.S. at 667, 117 S.Ct. 1573 (Souter, J., concurring)(citing Morrison v. Olson, 487 U.S. at 722, 108 S.Ct. 2597 (Scalia, J., dissenting)). After suggesting, in passing, that the Solicitor General may be a principal officer despite his statutory “inferiority” to the Attorney General, Justice Souter’s approach to the principal-versus-inferior dilemma reverted to the Court’s functional balancing test: “What is needed ... is a detailed look at the powers and duties of these judges to see whether reasons favoring their inferior status within the constitutional scheme weigh more heavily than those to the contrary.” Id. at 668, 117 S.Ct. 1573. Justice Souter explained that a court should review a number of factors to determine if an officer is “inferior” “including tenure, jurisdiction, duties, and removal.” Id. at 669, 117 S.Ct. 1573.

Thus, while the Constitution gives Congress great discretion to decide how inferi- or officers are appointed, the ad hoc nature of Appointments Clause jurisprudence offers disparate approaches to distinguishing between principal and inferior officers.

LAW REGARDING SEPARATION OF POWERS

The separation-of-powers doctrine is a separate limitation that the Supreme Court has recognized on Congress’ ability to delegate appointment powers to entities other than the President. The doctrine’s parameters, however, are imprecise. Accordingly, the lower courts must compare them cases with care to the few precedents that the Supreme Court has provided.

1. The Separation-of-Powers Doctrine.

Separation of powers is one of the foundations of the United States’ federalist system. “The Constitution [seeks] to divide the delegated powers of the new Federal Government into three defined categories, Legislative, Executive, and Judicial.” Bowsher v. Synar, 478 U.S. 714, 721, 106 S.Ct. 3181, 92 L.Ed.2d 583 (1986). The Supreme Court has, accordingly, given both voice and importance to the doctrine. See Mistretta v. United States, 48