Peyton C. Baker (University of Minnesota Law School) has posted Significant Authority and the Senior Executive Service on SSRN. Here is the abstract:
Recent executive-branch litigation has brought an unsettled constitutional question to the surface: whether all members of the Senior Executive Service (SES) must be treated as inferior officers under the Appointments Clause. The Trump administration has argued that all career SES officials exercise significant executive authority and therefore cannot be insulated from presidential removal by statute. If accepted, that claim would unsettle longstanding assumptions about the constitutional status of senior career officials and the design of the federal civil service.
The difficulty lies in institutional design. The SES was never constructed to track the officer-employee distinction. Its statutory criteria emphasize program oversight and executive management rather than whether an official exercises “significant authority pursuant to the laws of the United States.” As a result, the SES encompasses a wide range of positions that differ sharply in the nature and scope of the authority they exercise.
To illustrate this variation, the Note develops three competing models for applying Appointments Clause doctrine to the SES. A categorical model treats SES status itself as dispositive of officer status. A hierarchical model emphasizes supervision, reviewability, and chains of command. A duties-based model focuses on the substance and significance of the functions an official performs, even where those functions are subject to superior oversight. Drawing on Supreme Court precedent and qualitative case studies of SES positions, the Note shows that existing doctrine does not compel a categorical resolution and instead supports a functional inquiry that can yield different classifications across positions.
Applying these models, the Note demonstrates that the SES includes officials who exercise authority comparable to that of acknowledged inferior officers alongside officials whose work, though senior and consequential, remains advisory or managerial in character.
The Note concludes that Appointments Clause uncertainty in the SES context is best addressed through institutional design rather than after-the-fact classification. Drawing on the Supreme Court’s remedial approach in United States v. Arthrex, Inc., it argues that Congress should restructure SES appointment and supervision to ensure Article II accountability while narrowing SES eligibility to reduce constitutional ambiguity.