Postmaster General Louis DeJoy has been nothing short of controversial since his appointment in June 2020. During the summer, allegations arose that DeJoy, a close ally of former President Donald Trump, implemented changes to the U.S. Postal Service to deliberately slow down the delivery of mail. The alleged goal of the slowdown was to hamper voting by mail in order to aid President Trump’s re-election chances.
President Joe Biden likely wants to fire DeJoy and appoint a new Postmaster General. The problem? Under current law, Biden does not have the power to either fire the existing Postmaster General or to appoint a new one. Does this mean Biden will be stuck with DeJoy for as long as he wants to remain Postmaster General? Not necessarily. DeJoy’s appointment may be in violation of the Appointments Clause in Article II of the Constitution.
The Role of the Board of Governors
The president used to appoint the Postmaster General as one of his Cabinet members. In 1970, however, Congress enacted the Postal Reorganization Act, transforming the U.S. Postal Department into the U.S. Postal Service, an independent agency to be run like a corporation. As part of reorganization, Congress altered the USPS’s leadership structure. Instead of the Postmaster General serving as the head, Congress placed the Board of Governors, which consists of up to 11 members, in charge. Up to 9 members are appointed by the president and confirmed by the Senate. Those members can be removed by the president only for cause.
Only the Board of Governors has the authority to appoint and fire the Postmaster General. Effectively, the president has no say in who is the Postmaster General, except indirectly through the selection of Board members. Further, once appointed by the Board, the Postmaster General also becomes a voting member of the Board, which is a key constitutional point (as shall be seen).
This is where the Appointments Clause, which lays out the process for appointing federal officials and judges, comes in. It categorizes federal government officers as either principal or inferior. If the officer is a principal officer, only the president can make the appointment, which must be confirmed by the Senate. Principal officers include Cabinet members like the Secretary of State. If the officer is an inferior officer, Congress may authorize judges or department heads to appoint that officer, and Senate confirmation is not required.
DeJoy was appointed by the Board of Governors, not the president, and the Senate had no say in his appointment. That would be perfectly fine if DeJoy were an inferior officer, but is he? The Constitution does not define principal or inferior officers, but the Supreme Court has provided guidance in case law.
Principal Officers and Inferior Officers
In Morrison v. Olson, the Supreme Court laid out several factors to determine if a federal officer is principal or inferior: whether the officer is subject to removal by a higher executive branch official, whether the officer is subject to supervision and control by higher officers, whether the officer’s duties are broad or limited, and whether the officer’s tenure is limited or ongoing.
The Court suggested that greater weight should be given to the fact that the Postmaster General can be fired at the discretion of the Board of Governors, which arguably makes him a subordinate to the Board and thus inferior. However, although Justice David Souter noted that being subject to removal by a higher executive officer was “necessary for inferior officer status,” he argued that “even an officer who is subordinate to a department head can be a principal officer.” Souter’s analysis says that the Postmaster General can, indeed, be a principal officer.
Two other factors also point to the conclusion that the Postmaster General is a principal officer. First, the Postmaster General’s tenure is ongoing and indefinite, subject only to firing by the Board of Governors. Secondly, and more crucially, the very nature and scope of the Postmaster General’s duties and powers means the officer has significant independent authority and broad power. The Postmaster General is in charge of overseeing all aspects of daily USPS operations, which include managing employees, hiring and firing them, and determining the price of stamps. These powers are so vast that DeJoy arguably was able to sabotage the delivery of mail throughout the nation. The Postmaster General is as powerful as any head of a corporation or federal agency.
The Postmaster General
If there is any federal officer who is subordinate to a department head who should be considered a principal officer, it is the Postmaster General. In addition to wielding vast powers and responsibilities, the Postmaster General is unique in being simultaneously subordinate and equal to the other members of the Board of Governors. Recall that the Postmaster General is not only the head of the USPS but a voting member of the Board of Governors. This position is in every way the equal of a Board member except that the others can be fired by the president for cause but the Postmaster General can only be removed by the Board.
The Postmaster General’s status as a Board member may be the clincher for principal officer designation. As Justice Sam Alito argued in a case involving Amtrak, “every member of a multi member body heading an agency must also be a principal officer” because of their equal powers. They each have “unilateral authority to tip a final decision” on a policy matter “one way or another.” Every member means every member, including a member who can be fired by the other members.
Because the Postmaster General could and should be deemed a principal officer, the only person who has the power to appoint him is the president. The statute authorizing the Board of Governors to appoint the Postmaster General, then, violates the Appointment Clause.
The Postmaster General is unconstitutional.
This caricature of Louis DeJoy was adapted from a photo.
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I agree but would go further. Semi-privatizing the Post Office is textually dubious because it’s one of the functions Article I section 8 expressly requires of United States government. If that can be semi-private, what’s next?
But it’s hard to challenge Congress’ action with no proximate victims. We need qui tam for all significant acts of government. This one can affect elections now that absentee ballots have been more broadly adopted. Review is critically needed.
Re. proximate victims: Anyone whose life-saving prescriptions via mail were dangerously delayed by DeJoy’s’ malfeasance. Get a bunch of such persons together as a class for a class-action suit, or whatever remedy might be applicable. Anyone whose ballot was delayed and disqualified, same/same, deprivation of the most fundamental right in a representative democracy.