188
Souter, J., concurring
Second, no branch may abdicate its Appointments Clause duties. Congress, for example, may not authorize the appointment of a principal officer without Senate confirmation; nor may the President allow Congress or a lower level Executive Branch official to select a principal officer.3
To be sure, "power is of an encroaching nature" and more likely to be usurped than surrendered. The Federalist No. 48, at 332 (J. Madison). For this reason, our Appointments Clause cases (like our separation-of-powers cases generally) have typically addressed allegations of aggrandizement rather than abdication. See, e. g., Buckley v. Valeo, supra; Springer v. Philippine Islands, 277 U. S. 189 (1928); Shoemaker v. United States, 147 U. S. 282 (1893).4 Nevertheless,
of his own to encroach, and indeed we have been forced to invalidate Presidential attempts to usurp legislative authority, as the Buckley Court recognized: "The Court has held that the President may not execute and exercise legislative authority belonging only to Congress." Buckley, supra, at 123 (citing Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579 (1952)).
3 In Freytag v. Commissioner, 501 U. S. 868, 884 (1991), we observed that in the Appointments Clause the Framers limited the "diffusion" of the appointment power in order to "ensure that those who wielded it were accountable to political force and the will of the people." Id., at 884. Depending on the means used to circumvent the Appointments Clause, "diffusion" can implicate either the anti-aggrandizement or the anti-abdication principle. If the full Congress creates a principal office and fills it, for example, it has adopted a more diffuse and less accountable mode of appointment than the Constitution requires; and it has violated the bar on aggrandizement. Cf. The Federalist No. 77, at 519 (explaining that the House of Representatives is too numerous a body to be involved in appointments). And if Congress, with the President's approval, authorizes a lower level Executive Branch official to appoint a principal officer, it again has adopted a more diffuse and less accountable mode of appointment than the Constitution requires; this time it has violated the bar on abdication.
4 The theme of abdication has not been entirely absent, however. In Morrison v. Olson, 487 U. S. 654 (1988), the Court considered a challenge to a law authorizing appointment of an independent counsel by a three-judge panel and without Senate confirmation. Though the law was
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