196
Opinion of Scalia, J.
Shoemaker (though the Court proceeds to conduct it anyway, ante, at 174-176).
Germaneness analysis must be conducted, it seems to me, whenever that is necessary to assure that the conferring of new duties does not violate the Appointments Clause. Violation of the Appointments Clause occurs not only when (as in Shoemaker) Congress may be aggrandizing itself (by effectively appropriating the appointment power over the officer exercising the new duties), but also when Congress, without aggrandizing itself, effectively lodges appointment power in any person other than those whom the Constitution specifies. Thus, "germaneness" is relevant whenever Congress gives power to confer new duties to anyone other than the few potential recipients of the appointment power specified in the Appointments Clause—i. e., the President, the Courts of Law, and Heads of Departments.
The Judge Advocates General are none of these. Therefore, if acting as a military judge under the Military Justice Act of 1968 is nongermane to serving as a military officer, giving Judge Advocates General the power to appoint military officers to serve as military judges would violate the Appointments Clause, even if there were "hundreds or perhaps thousands" of individuals from whom the selections could be made. For taking on the nongermane duties of military judge would amount to assuming a new "Offic[e]" within the meaning of Article II, and the appointment to that office would have to comply with the strictures of Article II. I find the Appointments Clause not to have been violated in the present case, only because I agree with the Court's dictum that the new duties are germane.*
*The further issues perceptively discussed in Justice Souterís concurrence—namely, whether the Appointments Clause permits conferring principal-officer responsibilities upon an inferior officer in a manner other than that required for the appointment of a principal officer (and, if not, whether the responsibilities of a military judge are those of a principal officer)—were in my view wisely avoided by the Court, since they were
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