Congressional Power over Office Creation

The Constitution leaves the creation of the institutions of government to ordinary political processes. While intricate constitutionalized procedures govern the election of Congress, the President, and the Vice President, the Constitution anticipated but did not establish a host of other personnel and positions. Instead, it leaves the task of institution building to Congress. This Note argues that text, structure, and history demonstrate that the Constitution gives Congress exclusive authority over office creation.

Textually, the Appointments Clause and the Necessary and Proper Clause together empower Congress alone to “establish[] by Law” federal offices. Structurally, Congress has the democratic and technical capacity to organize the government. And Congress’s power to “constitute” federal institutions mimics the original act of Constitution making: just as “We the People” could “ordain and establish this Constitution,” the Appointments Clause allows Congress to “establish[] by Law . . . all other Officers of the United States.”