DOJ Argues That Agency Head Cannot Delegate Power To Appoint Inferior Officers

The Constitution allows Congress to vest the appointment power of inferior officers in the heads of departments. Can the department head then delegate that power to someone else in the department?

In 2005, the Office of Legal Counsel stated that the issue was unsettled:

Third, you have asked whether the prohibition in the draft order that prevents the Secretary of Defense from reassigning appointment authority to a subordinate is constitutionally compelled. The question whether Congress may permit the President or the head of a department to delegate appointment authority to an officer below the head of a department is a difficult one, and we cannot provide a definitive answer at this time. As noted, delegation clearly is not to be permitted for officers requiring Senate confirmation. Ho