Let’s start with (1): Do the Reserve Bank presidents qualify as “Officers of the United States” for constitutional purposes? Peter assumes that the answer is yes (p. 108), but I am not so sure. The fact that the Reserve Banks are chartered by Congress does not mean that their presidents are “Officers of the United States”: Congress also has chartered the Society of American Florists and Ornamental Horticulturists, but few would argue that the Society’s president is an “Officer” in the constitutional sense of the term. The list of congressionally chartered organizations is long, ranging from the Agricultural Hall of the Fame to the Women’s Army Corps Veterans’ Association. Something more than a congressional charter is needed to make an organization’s leader an “Officer.”

The Supreme Court has said that an “Officer” is one who exercises “significant authority pursuant to the laws of the United States,” see Buckley v. Valeo, 424 U.S. 1, 126 (1976), but not any type of authority will do. The CEO of Girl Scouts of the USA exercises authority pursuant to 36 U.S.C. §§80301-80307; that does not make her an “Officer” under Article II. As the Buckley court explained, Congress “undoubtedly” may “create ‘offices’ in the generic sense and provide such method of appointment to those ‘offices’ as it chooses” if “the holders of those offices . . . perform duties . . . in an area sufficiently removed from the administration and enforcement of the public law as to permit their being performed by persons not ‘Officers of the United States.’” Id. at 138-39 (emphasis added). The role of the Girl Scouts’ CEO, while significant, is “sufficiently removed” from law enforcement and administration that she is an officer in the “generic sense” and not an “Officer” in the constitutional sense. So the fact that she was appointed by the Girl Scouts’ national board, rather than by the President with the advice and consent of the Senate, creates no constitutional difficulties. Nor do any difficulties arise from the fact that the President can’t fire the Girl Scouts’ CEO.

Are the open market transactions that the FOMC orders “sufficiently removed from the administration and enforcement of the public law as to permit their being performed”—or directed—“by persons not ‘Officers’” in the constitutional sense? These transactions move markets, but one can be a market mover without being an “Officer” under Article II (see, e.g., Warren Buffett). The individuals whom the Supreme Court has deemed to be “Officers” generally wield adjudicatory, investigative, enforcement, or rulemaking functions. See, e.g., Buckley, 424 U.S. at 110-13; Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 506 (2010). The FOMC’s functions—voting on whether to buy/sell securities and enter into swaps—strike me as quite different from the typical “Officer” tasks.

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