652
Syllabus
tioners' assertion that § 323(a) is a default statute superseded by express language in Article 66(a) of the UCMJ giving the Judge Advocate General of each military branch exclusive authority to appoint Court of Criminal Appeals judges. Conspicuously absent from Article 66(a) is any mention of "appointment." Instead, the statute refers only to judges "who are assigned to a Court of Criminal Appeals" (emphasis added). The fact that this Court found the distinction to be significant in Weiss v. United States, 510 U. S. 163, 171-172, suggests that Article 66(a) concerns not the appointment of judges, but only their assignment. A contrary interpretation of Article 66(a) would render it unconstitutional, for under the Appointments Clause Congress could not give Judge Advocates General power to "appoint" even inferior officers of the United States. Pp. 655-658. (b) The Secretary's authorization to appoint civilian Court of Criminal Appeals judges is constitutional. The Appointments Clause gives the President the exclusive power to select principal officers by and with the advice and consent of the Senate, but authorizes Congress to "vest the Appointment of . . . inferior Officers . . . in the Heads of Departments." Despite the importance of the responsibilities the judges in question bear, they are "inferior Officers" under the Clause. Generally speaking, "inferior officers" are officers whose work is directed and supervised at some level by others who were appointed by Presidential nomination with the Senate's advice and consent. See, e. g., ch. 4, §§ 1, 2, 1 Stat. 28. Supervision of the work of Coast Guard Court of Criminal Appeals judges is divided between the General Counsel of the Department of Transportation (who is subordinate to the Secretary) and the Court of Appeals for the Armed Forces. See Arts. 66(f), 67(a), UCMJ. Significantly, these judges have no power to render a final decision on behalf of the United States unless permitted to do so by other Executive officers, and hence they are inferior within the meaning of Article II. Morrison v. Olson, 487 U. S. 654, 671-672, and Freytag v. Commissioner, 501 U. S. 868, distinguished. Pp. 658-666. 45 M. J. 19 (first judgment), 44 M. J. 273 (second, third, fifth, and sixth judgments), and 44 M. J. 272 (fourth judgment), affirmed.
Scalia, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Stevens, O'Connor, Kennedy, Thomas, Ginsburg, and Breyer, JJ., joined, and in which Souter, J., joined as to Parts I and II. Souter, J., filed an opinion concurring in part and concurring in the judgment, post, p. 666.
Alan B. Morrison argued the cause for petitioners. With him on the briefs was Allen Lotz.
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