The appointments clause of the US Constitution guards fundamental democratic principles by ensuring that all "officers of the United States" are accountable to the people.1
For principal officers ' such as judges and ambassadors ' it provides that the president shall have nomination power, but the Senate must confirm the nominee.2 For inferior officers, "Congress may by law vest the appointment [power] ... in the President alone, in the courts of law, or in the heads of departments."3 As the U.S. Supreme Court has explained, "the Appointments Clause was designed to ensure public accountability for both the making of a bad appointment and the rejection of a good one."4
In Lucia v. U.S. Securities and Exchange Commission, the US Supreme Court held that administrative law judges, or ALJs, of the SEC qualified as "officers" and, accordingly, needed to be appointed in accordance with the appointments clause.5 Lucia's straightforward holding left a rather large and important question in its wake: If SEC ALJs are officers, what other public servants might be subject to appointments clause requirements as well?
Recent Cases Interpreting Lucia
Lucia created a wave of litigation responding to this question through challenges to the appointment of federal officers, including to the appointment of public servants like administrative patent judges,6 the special counsel investigating Russian interference with U.S. elections,7 ALJs at the Social Security Administration,8 and members of the Benefits Review Board.9
While the federal challenges pile up, two cases decided last month ' one by the U.S. Supreme Court and one by the Missouri Supreme Court ' indicate that state court challenges might soon emerge as the next frontier of appointments clause challenges.
First, on June 1, the US Supreme Court held that the members of the Puerto Rico Oversight and Management Board were not officers of the United States for appointments clause purposes because the board enjoyed "primarily local powers and duties."10 In doing so, the court explained that Lucia's test applied only to officials whose "duties ... were indisputably federal or national in nature."11
In territories like Puerto Rico, which are regulated in large part by federal statutes, the court reasoned that a strict application of the appointments clause would actually harm Congress' flexibility to support local ' rather than federal ' accountability for territorial officers exercising authority under the laws of the United States (such as allowing for the election of governors and mayors in U.S. territories).12
Second, although the federal appointments clause has no binding effect on state officials, the Missouri Supreme Court recently applied Lucia in analyzing whether the composition of the state's clean water commission was constitutional for the purposes of issuing a "swine concentrated animal feeding operation" permit.13
There, the court held that, just as the petitioner in Lucia had standing to challenge the appointment of the SEC ALJ without showing a specific harm, the Missouri petitioner did not have to "prove a differently composed commission" would have acted differently to proceed with its suit.14 Instead, it was permitted to challenge the "constitutional validity of the commission's composition" simply because it was subject to the commission's authority.15
Implications for State Law Constitutional Arguments
These recent cases show that, although Lucia's specific appointments clause holding does not apply to all state officials, its focus on democratic accountability extends beyond the federal setting. And in state constitutions, as in the U.S. Constitution, accountability is often linked to the hiring and firing of officials. In fact, most state constitutions contain appointments clauses of some sort (although there are often state-by-state differences in how officers are appointed under their respective constitutional provisions).16
For example, some states do not distinguish between principal and inferior officers, instead requiring the governor to appoint all state officers.17 Some states allow significant legislative involvement in the appointment process.18 Other states impose residency requirements for officers.19
Notwithstanding these textual differences, all states adhere to the basic appointments clause principle that "officers" ultimately must be accountable to the public and be appointed in accordance with some delineated procedure that can be traced back to an elected official in a constitutional branch of government.20 And because states often look to federal precedent to guide their interpretation of similar state constitutional provisions,21 the discussion of cases interpreting the federal appointments clause can fill in the gaps in state law.
In light of how Lucia has reinvigorated challenges based on the appointments clause, and in view of the recent decisions using Lucia to examine the propriety of local officers, it makes sense to reexamine not only the appointment of federal officials, but also to question the now-common practice of allowing private attorneys to prosecute civil enforcement actions on behalf of state attorneys general, especially when it is done on a contingency-fee basis.
Absent valid appointment of the attorney prosecuting a civil enforcement action, state law may not permit the case to be prosecuted as an action on behalf of the state.
The Rise of Private Attorneys Prosecuting State Civil Enforcement Actions on Contingency
In recent years, state attorneys general have increasingly turned to private attorneys to prosecute civil enforcement actions in their name.22 This practice started with tobacco litigation, but it has expanded to other areas, such as competition law, financial services, products liability and environmental litigation.
The cases frequently seek millions ' if not billions ' of dollars in damages or civil penalties and, in many cases, the private attorneys are compensated on a contingency-fee basis. In one Texas tobacco case, for example, the private attorneys representing the state made a staggering "$3.3 billion in fees ' approximately $92,000 per hour."23
Courts and commentators have documented the policy concerns arising from this practice.24 As the California Supreme Court held more than 35 years ago, the act of a private attorney entering a contingency arrangement for a public nuisance prosecution on behalf of the state "is antithetical to the standard of neutrality that an attorney representing the government must meet."25 In other words, serious concerns arise when private attorneys can wield the full force of the state to achieve personal financial gain.
In an article published by the Institute for Legal Reform, John Beisner, Jessica Davidson Miller and Terrell McSweeny noted that "in many cases, the private attorneys ' not the attorney general ' are the catalysts for these [civil enforcement] suits."26 Moreover, because contingency fee suits do not require an appropriation of public dollars, they...
