{"id":3030,"date":"2024-06-03T09:00:50","date_gmt":"2024-06-03T13:00:50","guid":{"rendered":"https:\/\/journals.law.harvard.edu\/jlpp\/?p=3030"},"modified":"2025-12-20T16:28:50","modified_gmt":"2025-12-20T20:28:50","slug":"distinguishing-administrative-delegations-from-constitutional-offices-yonatan-gelblum","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/jlpp\/distinguishing-administrative-delegations-from-constitutional-offices-yonatan-gelblum\/","title":{"rendered":"Distinguishing Administrative Delegations from Constitutional Offices – Yonatan Gelblum"},"content":{"rendered":"\n
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Distinguishing Administrative Delegations from Constitutional Offices<\/h2>\n\n\n\n

Yonatan Gelblum*<\/a><\/p>\n\n\n\n

Introduction<\/h2>\n\n\n\n

Although the use of administrative delegations to assign caretaking duties at federal agencies in the vacancies context has attracted the attention of courts and commentators,[1]<\/a> the routine reliance by political appointees on delegations to career civil servants of broad authority over rulemaking, adjudication, and enforcement has drawn less attention.  The few contemporary appellate courts and commentators to have touched on the constitutional implications of this practice usually proceed from an assumption that administrative delegations of significant authority by officers create constitutional \u201cOffices\u201d subject to the Appointments Clause.[2]<\/sup><\/a>  In Submerged Independent Agencies<\/em>,[3]<\/a> which recently appeared in the University of Pennsylvania Law Review, Professors Feinstein and Nou provide a wide-ranging and original empirical and policy analysis of this practice, paired with a legal discussion that proceeds from the usual premise that such delegations create constitutional \u201cOffices.\u201d  The article\u2019s comprehensive empirical approach, particularly its analysis of characteristics of thousands of delegations,[4]<\/a> is innovative and helpful to informing debate about the desirability of this practice.  Apart from this detailed empirical discussion, the article assesses advantages and downsides of this practice, and suggests policy options for increasing political awareness of and accountability for delegated action.[5]<\/a>  In this response, I focus on the article\u2019s constitutional arguments concerning appointment and removal of career civil servants to whom officers delegate power.<\/p>\n\n\n\n

In Part I, I address the article\u2019s assertion that delegations to career civil servants violate the Appointments Clause,[6]<\/a> because the delegatees wield the significant authority of constitutional \u201cOfficers\u201d but are hired through a merits-based process regulated by the Office of Personnel Management.[7]<\/a>  I first argue, based on judicial precedents and longstanding historical practice, that if<\/em> the Appointments Clause applied to such officials, the requirement that they be hired in accordance with the civil service laws would not necessarily violate the Clause.  Because they are supervised by an officer, delegatees are not principal officers who require presidential nomination and Senate confirmation, and as long as a head of department vested with appointment authority assents to their appointment, no violation of the Appointments Clause would occur, notwithstanding the constraints placed on that official\u2019s choice by the civil service laws.<\/p>\n\n\n\n

More broadly, though, I argue that administrative delegations generally do not create offices subject to the Appointments Clause in the first place, even when delegatees exercise significant authority.  Rather, originalist and related textualist considerations, as well as longstanding historical practice and early jurisprudence, indicate that delegatees acting as mere agents of properly-appointed incumbent officers authorized by statute to take the same actions are not constitutional \u201cOfficers\u201d subject to the Appointments Clause\u2019s rules for appointments.  It is only when putative \u201cdelegatees\u201d do not act as true agents of another officer, such as when they perform the duties of a vacant office, that they come to occupy de facto<\/em> offices in violation of the Appointments Clause\u2019s rules on office creation and, potentially, appointments.<\/p>\n\n\n\n

In Part II, I address the article\u2019s assertion that administrative delegations to tenured career staff raise the same constitutional concerns as statutory offices at independent agencies vested by statute with removal protections.[8]<\/a>  I first argue on formalist grounds that because the removal jurisprudence only limits Congress\u2019s ability to restrict removal of constitutional \u201cOfficers,\u201d it is as inapplicable as the Appointments Clause is to administrative delegatees.  I also argue on functionalist grounds that because these delegations vest authority that is not tied by statute to the delegatee\u2019s position, this authority is readily revokable even when the delegatee cannot be fired from federal service.  Consequently, presidential control of delegated action is comparable to control over the acts of officers subject to at-will removal.  I therefore conclude that administrative delegations do not raise the constitutional concerns suggested by the article.<\/p>\n\n\n\n

I. Administrative Delegations to Career Civil Servants Do Not Violate the Appointments Clause<\/h2>\n\n\n\n

The article asserts that because administrative delegations may confer authority to engage in tasks implicating the \u201csignificant authority\u201d of a constitutional \u201cOffice,\u201d they violate the Appointments Clause when delegatees are civil servants who must be hired through the competitive merit-based civil service process.[9]<\/a>  But statutes such as the civil service laws may constitutionally limit the discretion that heads of department vested with appointment authority would otherwise have over whom to appoint to office.  More fundamentally, when delegatees are mere agents of a properly appointed incumbent officer, the delegation does not implicate, much less violate, the Appointments Clause in the first place.  It is only when putative \u201cdelegatees\u201d do not act as agents of a responsible officer\u2014a scenario that courts have frequently encountered in recent years in the context of statutory challenges under the Federal Vacancies Reform Act to the official acts of \u201cdelegatees\u201d performing the duties of vacant offices[10]<\/a>\u2014that they occupy de facto <\/em>offices in violation of the Appointments Clause.<\/p>\n\n\n\n

As an initial matter, if<\/em> the Appointments Clause applied to delegations, the relevant jurisprudence and longstanding historical practice indicate that no constitutional violation would result from hiring limitations like those in the civil service laws, as long as a head of department with appointment authority ultimately approves a delegatee\u2019s selection made pursuant to these laws.[11]<\/a>  Professors Feinstein and Nou argue that delegatees subject to civil service tenure protections are principal officers requiring presidential nomination and Senate confirmation.[12]<\/a>  But the courts have held that an ability to withdraw administratively vested power, including a delegating official\u2019s inherent authority to revoke regulations purporting to limit such withdrawals, effectively subjects officials vested with such power to supervision by another officer, and they therefore are not principal officers.[13]<\/a><\/p>\n\n\n\n

More fundamentally, the Appointments Clause simply does not apply to administrative delegations because they are not constitutional \u201cOffices\u201d as long as delegatees act as mere agents of properly appointed incumbent officers.  An administrative delegation is not an appointment to a constitutional \u201cOffice\u201d because executive branch action cannot create an office in the first place, rather than because of a defect in the delegatee\u2019s appointment.  As I have argued elsewhere on textualist, originalist, and structuralist grounds, the Appointments Clause\u2019s mandate that offices \u201cshall be established by Law\u201d bars Congress from delegating its power to create offices.[14]<\/a>  So if executive branch delegations created \u201cOffices\u201d in the constitutional sense, these delegations would be categorically unconstitutional, regardless of how the delegatees\u2019 positions were filled.<\/p>\n\n\n\n

However, such administrative delegations generally do not create offices implicating the Appointments Clause.  Rather, originalist, textual, historical, and early judicial authorities treat them differently from offices, indicating that they can be filled without conforming to the Appointments Clause, even when officers delegate \u201csignificant authority.\u201d  At the time of the Founding, \u201cdeputies\u201d acting in the name of an officer formally accountable for their actions were viewed as the officer\u2019s alter egos rather than officers in their own right formally charged with official duties.[15]<\/a>  Gouverneur Morris\u2019 assertion at the Constitutional Convention that heads of department could delegate authority to appoint inferior officers[16]<\/a> reflects this understanding that agents can wield authority on behalf of a delegating officer that they could not exercise in their own name.  This view also shaped First Congress statutes allowing officers to \u201cdepute\u201d duties to others or appoint \u201cdeputies\u201d to fulfill official duties in the officer\u2019s name with binding effect, without referring to these agents as officers or providing for their appointment in conformity with the Appointments Clause.[17]<\/a><\/p>\n\n\n\n

Constitutional text, read in light of this original understanding that administrative delegations do not create \u201coffices,\u201d provides ready support for such delegations.  Congress\u2019s power \u201c[t]o make all Laws which shall be necessary and proper for carrying into Execution the .\u2009.\u2009. Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof\u201d[18]<\/a> should logically allow statutes to authorize officers to delegate to agents.[19]<\/a>  This reading does not conflict with Appointments Clause restrictions on how \u201cOfficers\u201d can be appointed and their offices established, because that term was understood to refer to officials directly responsible for fulfilling official duties, as opposed to deputies acting in such officers\u2019 names whose responsibilities derived from the officers\u2019 own official duties.<\/p>\n\n\n\n

Longstanding historical practice also reflects an understanding that agents to whom officers delegate authority do not themselves become officers as a result.  Various nineteenth century statutes, like earlier First Congress acts, allowed officers to broadly delegate to agents not referred to as officers or appointed pursuant to the Appointments Clause, who could act in the delegating officer\u2019s name with binding effect.[20]<\/a>  For example, statutes allowed tax collectors and shipping commissioners who were not heads of department to appoint \u201cdeput[ies]\u201d who acted as their alter egos, or to \u201cdepute\u201d duties to others, for whose conduct the delegating officer remained \u201cresponsible.\u201d[21]<\/a>  Another statute allowed the Secretary of War to \u201cdelegate\u201d authority to remove or destroy vessels blocking waterways to an \u201cagent of the United States,\u201d who was termed \u201can officer or agent,\u201d[22]<\/a> implying that delegation to a nonofficer \u201cagent\u201d did not effect an appointment to office.  Nineteenth-century Attorney General opinions deemed such persons performing a delegating officer\u2019s duties nonofficers and indicated that the Appointments Clause did not govern their appointments.[23]<\/a><\/p>\n\n\n\n

Nineteenth-century jurisprudence similarly distinguished officers responsible for performing duties directly vested in their positions by statute from agents delegated comparable authority by a responsible officer, and indicated that this difference mattered for constitutional purposes.[24]<\/a>  Thus, for example, United States v. Smith<\/em>[25]<\/a> held that a clerk was not an officer requiring appointment by a head of department because he was not \u201ccharged by some act of congress with duties,\u201d but instead performed tasks \u201cassigned to him by [an officer].\u201d[26]<\/a>  And United States v. Eaton<\/em>[27]<\/a> similarly indicated that officers can delegate responsibilities to others acting on their behalf, even when the delegatees could not constitutionally exercise the same authority in their own name.  Specifically, it held that Congress had properly authorized the President to delegate authority to appoint an inferior officer to subordinates who were not themselves heads of department in whom Congress could directly vest such power.[28]<\/a><\/p>\n\n\n\n

This judicial distinction between officers subject to the Appointments Clause and non-officer delegatees carried into the early twentieth century and has not been repudiated by the Supreme Court.  Just under a century ago, in its last opinion discussing delegatees\u2019 constitutional status, the Court explained that an officer\u2019s deputy \u201cis not in the constitutional sense an officer of the United States\u201d despite being \u201ccalled upon to exercise great responsibility and discretion .\u2009.\u2009. .\u201d[29]<\/a>  It thus implied that delegation of even significant authority does not render a delegatee an officer.  And since the Court adopted its \u201csignificant authority\u201d test for constitutional \u201cOfficer\u201d status fifty years later,[30]<\/a> all cases in which it has applied this test concerned positions assigned official duties by statute, rather than positions assigned significant authority solely by means of administrative delegations from officers.[31]<\/a>  The Court has thus not repudiated earlier jurisprudence differentiating between administrative delegations of derivative responsibility for an officer\u2019s statutory duties, which do not create offices, from offices to which statutes assign direct responsibility for such duties.  This jurisprudence therefore remains good law,[32]<\/a> and adds an additional gloss to the \u201csignificant authority\u201d test for officer status.<\/p>\n\n\n\n

Such delegations do raise constitutional concerns when \u201cdelegatees\u201d do not act as mere agents, but instead act as officers in their own right by exercising significant authority not derivative of the authority of a properly-appointed incumbent officer in whose name the delegatee acts.  And given Congress\u2019s exclusive power to establish offices, delegations by officers also raise concerns if Congress has not \u201cby Law\u201d permitted the delegation.[33]<\/a>  Early authorities indicated that a delegatee\u2019s ability to act was coextensive with the statutory authority of the delegating officer[34]<\/a> and thus, for example, terminated if the officer\u2019s position was vacant.[35]<\/a>  It follows that to avoid being subject to the Appointments Clause, delegatees may only exercise authority (1) vested by statute in an existing office that is (2) presently occupied (3) by a properly-appointed officer.[36]<\/a>  Consequently, practices such as multimember agencies\u2019 reliance on staff purportedly acting under delegated authority to take action that the agency heads cannot themselves take due to statutory quorum requirements,[37]<\/a> or having \u201cdelegatees\u201d exercise the powers of an office that is vacant,[38]<\/a> which the article\u2019s empirical findings suggest is a common occurrence,[39]<\/a> do <\/em>violate the Appointments Clause.  Apart from any potential defects in the delegatee\u2019s appointment, they administratively create de facto<\/em> offices, violating the mandate that offices \u201cshall be established by Law.\u201d[40]<\/a>  Moreover, Congress\u2019s control over the establishment of offices allows it to determine whether and on what terms officers may delegate, rendering administrative delegations ultra vires<\/em> if not authorized by statute.[41]<\/a>  But setting aside such scenarios, when administrative delegatees act on behalf of properly appointed incumbent officers authorized by statute to take the same actions and delegate to others, they are not constitutional \u201cOfficers,\u201d and their appointment need not conform to the Appointments Clause, as the article argues.<\/p>\n\n\n\n

Consequently, the article\u2019s assertion that executive branch delegations to career civil servants violate the Appointments Clause\u2019s rules for filling offices errs in light of clear precedent and well vetted history.  Indeed, the question of internal executive branch delegation touches not so much on the Appointments Clause\u2019s rules for filling offices as on its rules for creating offices, because the Constitution only vests in Congress the power to establish \u201cOffices.\u201d  Thus, although administrative delegations raise Article II concerns in specific circumstances, such as during a vacancy in the principal\u2019s office or when a statute does not authorize the delegation, no such concerns arise when statutorily authorized delegations permit career civil servants to exercise authority vested by statute in a properly appointed incumbent officer.<\/p>\n\n\n\n

II. Administrative Delegations Do Not Raise the Constitutional Concerns Associated with Offices Vested with Statutory Removal Protections<\/h2>\n\n\n\n

Professors Feinstein and Nou also assert that administrative delegations to career staff with tenure protections create \u201csubmerged independent agencies,\u201d analogous to independent agencies whose heads are protected from removal by statutory for-cause removal restrictions.[42]<\/a>  They argue that these arrangements may raise the same constitutional concerns implicated by single-headed independent agencies and by statutes conferring dual for-cause removal protection, which preclude independent agency heads who themselves enjoy for-cause removal protection from freely removing subordinate officers.[43]<\/a>  But because administrative delegations are formally and functionally distinguishable from offices assigned duties and for-cause removal protections by statute, they do not raise the same constitutional concerns.<\/p>\n\n\n\n

As a formal matter, the Supreme Court has expressly limited its holding that at least some dual \u201cfor-cause\u201d removal protections are unconstitutional to officials who are constitutional \u201cOfficers,\u201d[44]<\/a> and has similarly indicated that its holding prohibiting removal protections for single-member agency heads concerned \u201cprincipal officers.\u201d[45]<\/a>  As previously explained in Part I, administrative delegatees do not ordinarily become officers by virtue of the powers delegated to them and thus do not fall within the express scope of these holdings.<\/p>\n\n\n\n

From a functional perspective, because administrative delegatees are assigned duties administratively rather than by statute, and because statutes do not impose for-cause restrictions on terminating these delegations, these arrangements are legally distinct from offices that Congress has vested with removal protections.  Independent agency heads and other officers enjoying removal protection hold offices that are assigned authority by a statute that also limits the reasons for which the President or a superior officer can remove them from office and thereby deprive them of this authority.[46]<\/a>  Because statutes tie these officers\u2019 authority to their positions, depriving these officers of their authority typically requires firing them from these positions based on the specific grounds that Congress has permitted for removal.<\/p>\n\n\n\n

In contrast, administrative delegatees wield authority because executive branch officers chose to delegate it to them.  And the same officers can freely withdraw this authority,[47]<\/a> even when they cannot separate the delegatee from federal service, thereby making a delegatee\u2019s status as a career-tenured employee largely immaterial.  The Supreme Court has treated such administrative withdrawal of authority that may fall short of complete separation from federal service as a form of removal in the constitutional sense that helps ensure control of subordinates.[48]<\/a>  Given the absence of statutory for-cause limitations on such removal of authority from delegatees, and the delegating officer\u2019s power to revoke even those regulations purporting to restrict discretion to deprive an administrative delegatee of authority,[49]<\/a> courts deem delegatees to be serving qua<\/em> delegatees at the will of the delegating officer for constitutional purposes.[50]<\/a><\/p>\n\n\n\n

In fact, it may be easier in one respect to remove tenure-protected civil servants serving as delegatees from their role qua <\/em>delegatees than to remove officers holding at-will positions that require Senate confirmation.  The executive branch can unilaterally reassign the delegatee\u2019s responsibilities without obtaining Senate confirmation of a successor delegatee, and thus does not face a potential disincentive to exercise its removal power due to uncertainty over whether a more desirable replacement would win Senate approval.  In contrast, since the Founding Era, the requirement of Senate confirmation of a successor has been viewed as a powerful political <\/em>constraint on the President\u2019s power to remove officers enjoying no legal<\/em> removal protections.[51]<\/a>  This constraint does not apply to the withdrawal or reassignment of administrative delegations.<\/p>\n\n\n\n

These differences make administrative delegations readily distinguishable from offices with statutory for-cause removal protections that the Supreme Court has struck down.  The Court held that these statutes interfered with presidential accountability and control over subordinates,[52]<\/a> and were thus an improper congressional encroachment on presidential power.[53]<\/a>  In contrast, Professors Feinstein and Nou acknowledge that in the context of administrative delegations, \u201cthe potential removal issue arises in this context only because of an executive branch actor\u2019s decision to subdelegate authority.  The President, through control over that actor, could always revoke the subdelegation if exercised in an undesirable way.\u201d[54]<\/a>  The absence of any cause requirement to terminate the delegation makes the arrangement at-will, ensuring the continued accountability of the delegating officer and ultimately the President for a delegatee\u2019s actions.[55]<\/a>  And since statutes do not impose the arrangement or limit its termination, it does not raise the same concerns about congressional encroachment on presidential power.[56]<\/a><\/p>\n\n\n\n

The article does flag a possible procedural hurdle to terminating delegations: the potential requirement to give notice in the Federal Register when revoking delegations that had been effected by published rule.[57]<\/a>  But courts treat such minor procedural requirements applicable to nonsubstantive rulemaking[58]<\/a> as negligible,[59]<\/a> and agencies can in any event immediately revoke a delegatee\u2019s authority through actual notice to the delegatee regardless of whether and when publication occurs.[60]<\/a>  Moreover, the Supreme Court has distinguished such minor procedural hurdles from the for-cause removal protections that it has held unconstitutional.[61]<\/a>  Congress therefore can\u2014and does\u2014make removal of officers serving at will more difficult as a practical matter,[62]<\/a> and even when it does not expressly restrict removal, firing an officer may still be associated with residual legal hazards because of the risk that courts will read an implied removal protection into a statute.[63]<\/a>  Minor procedural burdens on revoking administrative delegations therefore do not make these arrangements comparable to independent agencies.<\/p>\n\n\n\n

Lastly, the article asserts that the Accardi <\/em>doctrine, by barring delegating officers from denying legal effect to the prior acts of delegatees after revoking a delegation,[64]<\/a> makes delegatees comparable to officers enjoying for-cause removal protections.[65]<\/a>  But the same limitation applies to the acts of officials removeable at will.  When such officers lose their position, their prior acts remain valid, and continue to bind their successors and the Government as a whole.[66]<\/a><\/p>\n\n\n\n

Thus, from a constitutional perspective, administrative delegations to tenured career staff are not analogous to independent agencies.  They do not raise the same constitutional concerns as statutory assignments of duties to officers whom Congress has protected from at-will removal.<\/p>\n\n\n\n

Conclusion<\/h2>\n\n\n\n

The practice by political appointees of delegating broad authority to career civil servants has become pervasive in the modern administrative state and has drawn significant scholarly attention when used to assign \u201cacting\u201d duties in the vacancies context, but has otherwise not been examined in depth.  The few contemporary courts and scholars to have touched on the constitutional implications of the practice have usually assumed that such delegations create constitutional \u201cOffices\u201d subject to the constitutional strictures applicable to offices created by statute.   Professors Feinstein and Nou\u2019s Submerged Independent Agencies <\/em>offers an unprecedented and innovative empirical analysis of this practice and raises important policy questions about its desirability.  It also includes a legal discussion that proceeds from the usual premise that administrative delegations of significant authority create constitutional \u201cOffices.\u201d<\/p>\n\n\n\n

The article\u2019s resulting claim that the practice violates the Appointments Clause, due to the manner in which the civil service laws regulate hiring, overlooks contemporary and historical authorities indicating that similar laws regulating appointments to comparable positions do not violate the Clause.  More fundamentally, this assertion does not account for originalist and textual authorities, as well as longstanding historical practice and early jurisprudence, which indicate that agents administratively delegated power to act in the name of properly appointed incumbent officers do not hold an office subject to the Appointments Clause in the first place.<\/p>\n\n\n\n

The article\u2019s assertions about removal protections also overlook this formal distinction between officers and delegatees.  And they overlook important functional differences between administrative delegations created and revokable at will by the executive branch, and offices vested with official duties and removal protections by statute.  Contrary to the article\u2019s assertions, these distinctions make administrative delegatees constitutionally distinct from independent agency heads or others who hold offices vested with for-cause removal protections, and therefore do not raise the same constitutional concerns as these statutory arrangements.  In the absence of such constitutional concerns, the propriety of administrative delegations is a policy issue that should be assessed based on the valid policy concerns identified by the authors.<\/p>\n\n\n\n

*<\/a> Senior Counsel (Litigation), Board of Governors of the Federal Reserve System. J.D., Georgetown; M.P.P., Harvard.  All opinions expressed herein are my own and do not necessarily reflect the views of the Board or the United States.  I am grateful for helpful suggestions by Professor Harold J. Krent on a prior draft.<\/p>\n\n\n\n

[1]<\/a> See, e.g.<\/em>, Valerie C. Brannon, Cong. Rsch. Serv., R44997, The Vacancies Act: A Legal Overview 6\u20137 (2022) (citing cases); Anne Joseph O\u2019Connell, Actings<\/em>, 120 Colum. L. Rev. 613, 633\u201334 (2020) (discussing use of delegations in lieu of statutory acting positions); Nina A. Mendelson, The Permissibility of Acting Officials: May the President Work Around Senate Confirmation?,<\/em> 72 Admin L. Rev. 533, 559\u201363 (2020) (discussing reliance on \u201cunsupervised delegation[s]\u201d to address vacancies).<\/p>\n\n\n\n

[2]<\/a> See, e.g.<\/em>, In re<\/em> Grand Jury Investigation, 916 F.3d 1047, 1049, 1051, 1052 (D.C. Cir. 2019) (holding that a Special Counsel delegated authority by the Attorney General was an \u201cinferior officer\u201d); Willy v. Admin. Review Bd., 423 F.3d 483, 491\u201392 (5th Cir. 2005) (describing statutes allowing a department head to administratively delegate duties as authorizing \u201ccreat[ion]\u201d of offices); see also, e.g.<\/em>, O\u2019Connell, supra<\/em> note 1, at 683 (\u201c[P]rofessionals who exercise delegated authority may be considered officers for Appointments Clause Purposes.\u201d); E. Garrett West, Note, Congressional Power over Office Creation<\/em>, 128 Yale L.J. 166, 226 (2018) (\u201c[D]elegated responsibilities .\u2009.\u2009. can trigger officer status.\u201d).<\/p>\n\n\n\n

[3]<\/a> Brian D. Feinstein & Jennifer Nou, Submerged Independent Agencies<\/em>, 171 U. Pa. L. Rev. 945 (2023).<\/p>\n\n\n\n

[4]<\/a> Id.<\/em> at 971\u201372.<\/p>\n\n\n\n

[5]<\/a> Id.<\/em> at 1009\u201316.<\/p>\n\n\n\n

[6]<\/a> U.S. Const. art. II, \u00a7 2, cl. 2.<\/p>\n\n\n\n

[7]<\/a> Feinstein & Nou, supra <\/em>note 3, at 999\u20131001.<\/p>\n\n\n\n

[8]<\/a> Id.<\/em> at 1003\u201306.<\/p>\n\n\n\n

[9]<\/a> Id.<\/em> at 999\u20131001.<\/p>\n\n\n\n

[10]<\/a> Brannon, supra <\/em>note 1, at 6\u20137 (citations omitted).<\/p>\n\n\n\n

[11]<\/a> Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 512 n.13 (2010) (citing United States v. Smith, 124 U.S. 525, 532 (1888); United States v. Germane, 99 U.S. 508, 511 (1879); United States v. Hartwell, 73 U.S. (6 Wall.) 385, 393\u201394 (1867)) (department head approval of another official\u2019s hiring decision satisfies the Appointments Clause); Jennifer L. Mascott, Who Are \u201cOfficers of the United States\u201d?, <\/em>70 Stan. L. Rev. 443, 526, 551, 560\u201361 (2018) (citations omitted) (discussing longstanding acceptance by the political branches of statutes requiring appointing officials to select from candidates nominated by others or having specified qualifications).<\/p>\n\n\n\n

[12]<\/a> Feinstein & Nou, supra <\/em>note 3, at 1001 (citing U.S. Const. art. II, \u00a7 2, cl. 2).<\/p>\n\n\n\n

[13]<\/a> See, e.g.<\/em>, Edmond v. United States, 520 U.S. 651, 664, 666 (1997) (ability to \u201cremov[e]\u201d administrative assignments to military judgeships was a factor that supported holding that military judges were inferior officers); In re<\/em> Palo Alto Networks, 44 F.4th 1369, 1375 (Fed. Cir. 2022) (revocability of agency head\u2019s delegation to tenure-protected officials rendered them inferior officers); In re<\/em> Grand Jury Investigation, 916 F.3d 1047, 1052\u201353 (D.C. Cir. 2019) (even regulations requiring \u201ccause\u201d to terminate delegations are rescindable at will and thus do not render delegatees principal officers).<\/p>\n\n\n\n

[14]<\/a> Yonatan Gelblum, Why Congress Cannot Delegate Authority to Create Offices, but Can Authorize Administrative Delegations from Offices<\/em>, 69 Wayne L. Rev. 385, 399\u2013407 (2024); accord<\/em> Steven G. Calabresi & Gary Lawson, Why Robert Mueller\u2019s Appointment as Special Counsel Was Unlawful<\/em>, 95 Notre Dame L. Rev. 87, 101\u201302 (2019) (citations omitted) (\u201c[A] regulation .\u2009.\u2009. does not constitute the kind of \u2018law\u2019 that can create an office .\u2009.\u2009. .\u201d); Seth B. Tillman, Why Our Next President May Keep His or Her Senate Seat: A Conjecture on the Constitution’s Incompatibility Clause<\/em>, 4 Duke J. Const. L. & Pub. Pol\u2019y 107, 140 n.48 (2009) (summarizing authorities).<\/p>\n\n\n\n

[15]<\/a> See, e.g.<\/em>, Mascott, supra <\/em>note 11, at 542\u201345 (citations omitted) (discussing enactments by the Continental Congress, which allowed officers to directly appoint \u201cdeputies\u201d for whose acts they were accountable, although the Articles of Confederation only permitted the Congress to appoint officers).  Compare also,<\/em> e.g.<\/em>, 1 Samuel Johnson, A Dictionary of the English Language (London, J.F. & C. Rivington et al. 6th ed. 1785) (defining \u201cdeputy\u201d as \u201c[In law.]  One that exercises any office .\u2009.\u2009. in another man\u2019s right, whose forfeiture or misdemeanour shall cause the officer .\u2009.\u2009. to lose his office\u201d), with <\/em>2 Samuel Johnson, A Dictionary of the English Language (London, J.F. & C. Rivington et al. 6th ed. 1785) (defining \u201coffice\u201d as \u201c[a] publick charge\u201d).<\/p>\n\n\n\n

[16]<\/a> During debate on inferior officer appointments, James Madison suggested that \u201cOfficers below Heads of Departments ought in some cases to have the appointment of the lesser offices,\u201d to which Morris responded \u201c[t]here is no necessity.  Blank Commissions can be sent.\u201d 2 Records of the Federal Convention of 1787 627\u201328 (Max Farrand ed., 1911).<\/p>\n\n\n\n

[17]<\/a> See, e.g.<\/em>, Act of July 31, 1789, ch. 5, \u00a7\u00a7 5, 6, 9, 27, 1 Stat. 29, 36\u201338, 44 (allowing a customs collector, who was not a head of department, to appoint deputies not referred to as \u201cofficers\u201d to \u201cexecute and perform on his behalf, all and singular the powers, functions and duties of collector\u201d); Mascott, supra <\/em>note 11, at 515\u201320 (citations omitted) (giving additional examples); Gelblum, supra <\/em>note 14, at 416\u201318 (citations omitted) (same).<\/p>\n\n\n\n

[18]<\/a> U.S. Const. art. I, \u00a7 8, cl. 18.<\/p>\n\n\n\n

[19]<\/a> Accord <\/em>Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 500 (2010) (citation omitted) (\u201cCongress has plenary control over .\u2009.\u2009. executive offices.\u201d).<\/p>\n\n\n\n

[20]<\/a> Gelblum, supra <\/em>note 14, at 419\u201320, id.<\/em> nn. 245\u2013250 (citations omitted).<\/p>\n\n\n\n

[21]<\/a> Act of June 7, 1872, ch. 322, \u00a7 3, 17 Stat. 262; Act of July 22, 1813, ch. 16, \u00a7 20, 3 Stat. 22, 30.<\/p>\n\n\n\n

[22]<\/a> Act of March 3, 1899, ch. 425, \u00a7 20, 30 Stat. 1121, 1154\u201355.<\/p>\n\n\n\n

[23]<\/a> Gelblum, supra <\/em>note 14, at 420 (citations omitted); Aditya Bamzai, Symposium, The Attorney General and Early Appointments Clause Practice<\/em>, 93 Notre Dame L. Rev. 1501, 1510\u201314 (2018) (citations omitted).<\/p>\n\n\n\n

[24]<\/a> Gelblum, supra <\/em>note 14, at 410\u201311, id.<\/em> at 410 n.175.<\/p>\n\n\n\n

[25]<\/a> 124 U.S. 525 (1888).<\/p>\n\n\n\n

[26]<\/a> Id.<\/em> at 532.<\/p>\n\n\n\n

[27]<\/a> 169 U.S. 331 (1898).<\/p>\n\n\n\n

[28]<\/a> Id.<\/em> at 336\u201337 (quoting 18 Rev. Stat. \u00a7 1695, which authorized the President to issue regulations governing vice-consul appointments), 339 (\u201cIt is plain that the [rulemaking provisions] confer upon the President full power, in his discretion, to appoint vice-consuls and [t]he regulations [authorizing appointment by consuls] come clearly within the power thus delegated.\u201d), 343; Gelblum, supra <\/em>note 14, at 411 (analyzing Eaton<\/em>\u2019s holding).<\/p>\n\n\n\n

[29]<\/a> Steele v. United States, 267 U.S. 505, 508 (1926).<\/p>\n\n\n\n

[30]<\/a> Buckley v. Valeo, 424 U.S. 1, 126 (1976) (per curiam); superseded in part by statute on other grounds<\/em>, Bipartisan Campaign Reform Act of 2002, Pub. L. No. 107-155, 116 Stat. 81, as recognized in<\/em> McConnell v. Fed. Election Comm\u2019n, 540 U.S. 93 (2003).<\/p>\n\n\n\n

[31]<\/a> Gelblum, supra <\/em>note 14, at 397\u201399, 411 n.189 (citations omitted).<\/p>\n\n\n\n

[32]<\/a> Cf.<\/em> Hohn v. United States, 524 U.S. 236, 252\u201353 (1998) (citation omitted) (\u201cOur decisions remain binding precedent until we see fit to reconsider them, regardless of whether subsequent cases have raised doubts about their continuing vitality.\u201d).<\/p>\n\n\n\n

[33]<\/a> Gelblum, supra <\/em>note 14, at 420\u201324.<\/p>\n\n\n\n

[34]<\/a> The article notes that under the Accardi<\/em> doctrine, delegation regulations bind delegating officers, Feinstein & Nou, supra <\/em>note 3, at 962 (citing United States ex rel.<\/em> Accardi v. Saughnessy, 347 U.S. 260, 268 (1954)); Thomas W. Merrill, The <\/em>Accardi Principle<\/em>, 74 Geo. Wash. L. Rev. 569 (2006)), and such delegations may therefore appear to diminish these officers\u2019 power.  But the doctrine does not preclude these officers from freely reclaiming full authority by simply revoking these regulations, see <\/em>United States v. Nixon, 418 U.S. 683, 696 (1974), and thus does not grant delegatees more power than the delegating officers can wield.<\/p>\n\n\n\n

[35]<\/a> See, e.g.<\/em>, Dudley v. James, 83 F. 345, 346\u201347 (C.C.D. Ky. 1897); Taylor v. Kercheval, 82 F. 497, 501 (C.C.D. Ind. 1897); accord<\/em> United States v. Hartwell, 73 U.S. (6 Wall.) 385, 389 (1867) (referencing the Government\u2019s argument that an officer \u201cdoes not stand in the relation of a deputy with a tenure of office depending on the principal who appointed him; but he remains in office notwithstanding his principal may retire\u201d); id.<\/em> at 393 (where official was an officer, \u201c[v]acating the office of his superior would not have affected the tenure of his place\u201d); Tenure of the Off. of Deputy Collectors, 4 Op. Att\u2019ys Gen. 26, 27 (1842) (\u201c[I]n the case of a removal of the collector from office, his deputy has no authority to act; .\u2009.\u2009. the powers of the deputy expire with those of the principal.\u201d).<\/p>\n\n\n\n

[36]<\/a> See <\/em>Gelblum, supra <\/em>note 14, at 424\u201326, 430\u201332; accord<\/em> Bamzai, supra <\/em>note 23, at 1510\u201311.<\/p>\n\n\n\n

[37]<\/a> Gelblum, supra <\/em>note 14, at 425\u201326.<\/p>\n\n\n\n

[38]<\/a> See<\/em>, e.g.<\/em>, Mendelson, supra<\/em> note 1, at 559\u201363 (giving examples).<\/p>\n\n\n\n

[39]<\/a> Feinstein & Nou, supra <\/em>note 3, at 988\u201391 (noting numerous \u201cmidnight delegations\u201d by outgoing administrations).<\/p>\n\n\n\n

[40]<\/a> U.S. Const. art. II, \u00a7 2, cl. 2; Gelblum, supra <\/em>note 14, at 424\u201326, 431\u201332.<\/p>\n\n\n\n

[41]<\/a> Gelblum, supra <\/em>note 14, at 420\u201322; Stephen Migala, Delegation Inside the Executive Branch<\/em>, 24 Nev. L.J. 147, 220\u201321 (2023); see also <\/em>United States v. Giordano, 416 U.S. 505, 513\u201314 (1974).<\/p>\n\n\n\n

[42]<\/a> Feinstein & Nou, supra <\/em>note 3, at 953.<\/p>\n\n\n\n

[43]<\/a> Id.<\/em> at 1003\u201307.  But see id.<\/em> at 1005\u201306 (noting that the ubiquity of delegations may lend them constitutional legitimacy).<\/p>\n\n\n\n

[44]<\/a> Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 506 (2010).<\/p>\n\n\n\n

[45]<\/a> Seila Law LLC v. CFPB, 591 U.S. 197, 238 (2020).<\/p>\n\n\n\n

[46]<\/a> See, e.g.,<\/em> 38 U.S.C. \u00a7 7306(a)(5)\u2013(10), (d)(3) (establishing authority and tenure protections of Veterans Health Administration officers); see also, e.g.<\/em>, 49 U.S.C. \u00a7\u00a7 1111(c), 1131 (establishing authority and tenure protections of National Transportation Safety Board members).<\/p>\n\n\n\n

[47]<\/a> Although the article notes that under the Accardi<\/em> doctrine, regulations delegating authority bind delegating officers, Feinstein & Nou, supra <\/em>note 3, at 962, the doctrine does not preclude them from simply revoking these regulations.  United States v. Nixon, 418 U.S. 683, 696 (1974); see also<\/em> In re<\/em> Grand Jury Investigation, 916 F.3d 1047, 1052\u201353 (D.C. Cir. 2019) (officer could freely revoke regulations requiring cause to remove a delegatee and thereby dismiss the incumbent at will).<\/p>\n\n\n\n

[48]<\/a> Edmond v. United States, 520 U.S. 651, 664 (1997) (a superior\u2019s ability to withdraw an administrative assignment to serve as a military judge was a form of \u201cremov[al]\u201d serving as \u201ca powerful tool for control\u201d).<\/p>\n\n\n\n

[49]<\/a> In re<\/em> Grand Jury Investigation<\/em>, 916 F.3d at 1052.<\/p>\n\n\n\n

[50]<\/a> Id. <\/em>at 1052\u201353; accord<\/em> In re<\/em> Palo Alto Networks, 44 F.4th 1369, 1375 (Fed. Cir. 2022).<\/p>\n\n\n\n

[51]<\/a> Aaron L. Nielson & Christopher J. Walker, Congress\u2019s Anti-Removal Power<\/em>, 76 Vand. L. Rev. 1, 5 (2023) (citing The Federalist No. 76, at 457 (Alexander Hamilton) (C. Rossiter ed., 1961)); accord<\/em> Michael B. Rappaport, The Original Meaning of the Recess Appointments Clause<\/em>, 52 UCLA L. Rev. 1487, 1516 n.81 (2005) (restricting the President\u2019s ability to appoint acting officials to Senate-confirmed positions limits presidential removal powers).<\/p>\n\n\n\n

[52]<\/a> See, e.g.<\/em>, Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 496 (2010).<\/p>\n\n\n\n

[53]<\/a> Id. <\/em>at 502 (\u201cCongress cannot reduce the Chief Magistrate to a cajoler-in-chief.\u201d).<\/p>\n\n\n\n

[54]<\/a> Feinstein & Nou, supra <\/em>note 3, at 1007.<\/p>\n\n\n\n

[55]<\/a> Gelblum, supra <\/em>note 14, at 414; see also<\/em> In re Grand Jury Investigation<\/em>, 916 F.3d at 1052\u201353; accord Free Enter. Fund<\/em>, 561 U.S. at 483 (citation omitted).<\/p>\n\n\n\n

[56]<\/a> Cf. <\/em>Decker Coal Co. v. Pehringer, 8 F.4th 1123, 1133\u201334 (9th Cir. 2021) (when an agency could elect not to use tenure-protected adjudicators, their tenure protections did not unconstitutionally diminish the President\u2019s authority).<\/p>\n\n\n\n

[57]<\/a> Feinstein & Nou, supra <\/em>note 3, at 986 (citing 5 U.S.C. \u00a7\u00a7 551(5), 552, 552(a)(3)).<\/p>\n\n\n\n

[58]<\/a> The Administrative Procedure Act exempts \u201cmatter[s] relating to agency management\u201d and \u201crules of agency organization, procedure, or practice\u201d from its elaborate notice-and-comment mandates for substantive rules.  5 U.S.C. \u00a7 553(a)(2), (b)(A).<\/p>\n\n\n\n

[59]<\/a> See, e.g.<\/em>, Hoctor v. U.S. Dep\u2019t of Agric., 82 F.3d 165, 167 (7th Cir. 1996) (\u201cThere are no formalities attendant upon the promulgation of an interpretive rule\u201d exempted from notice-and-comment by 5 U.S.C. \u00a7 553(b)(A)); accord<\/em> In re Grand Jury Investigation<\/em>, 916 F.3d at 1052\u201353 (a delegatee purportedly granted tenure protections by agency regulations \u201ceffectively serves at the pleasure of an Executive Branch officer\u201d due to the delegating officer\u2019s ability to revoke the regulation).<\/p>\n\n\n\n

[60]<\/a> 5 U.S.C. \u00a7 552(a), (a)(1)(B)\u2013(C) (agency\u2019s \u201cstatements of the general course and method by which its functions are channeled\u201d and \u201crules of procedure\u201d bind persons with \u201cactual and timely notice\u201d regardless of publication in the Federal Register).<\/p>\n\n\n\n

[61]<\/a> Collins v. Yellen, 141 S. Ct. 1761, 1785 n.19 (2021) (describing the Comptroller of the Currency as \u201cremovable at will\u201d despite a requirement that the President \u201ccommunicate the reasons for\u201d removal to Congress).<\/p>\n\n\n\n

[62]<\/a> See <\/em>Nielson & Walker, supra <\/em>note 51, at 52\u201354.<\/p>\n\n\n\n

[63]<\/a> See <\/em>Severino v. Biden, 71 F.4th 1038, 1047\u201348 (D.C. Cir. 2023).<\/p>\n\n\n\n

[64]<\/a> Cf. <\/em>United States ex. rel. <\/em>Accardi v. Shaughnessy, 347 U.S. 260, 266\u201367 (1954) (holding that an agency must comply with its delegation regulations).<\/p>\n\n\n\n

[65]<\/a> Feinstein & Nou, supra <\/em>note 3, at 1007.<\/p>\n\n\n\n

[66]<\/a> See, e.g.<\/em>, Marbury v. Madison, 5 U.S. (1 Cranch) 137, 167\u201368 (1803) (act of prior President\u2019s Secretary of State bound the subsequent administration); see also <\/em>Gary Lawson, Command and Control: Operationalizing the Unitary Executive<\/em>, 91 Fordham L. Rev. 441 (2023) (\u201c[U]nlimitable presidential removal power .\u2009.\u2009. would not actually result in full presidential control .\u2009.\u2009. as the actions of now-fired subordinates would still exist as law .\u2009.\u2009. .\u201d).<\/p>\n","protected":false},"excerpt":{"rendered":"

Distinguishing Administrative Delegations from Constitutional Offices Yonatan Gelblum* Introduction Although the use of administrative delegations to assign caretaking duties at federal agencies in the vacancies context has attracted the attention of courts and commentators,[1] the routine reliance by political appointees on delegations to career civil servants of broad authority over rulemaking, adjudication, and enforcement has drawn less attention.  The few contemporary appellate courts and commentators to have touched on the constitutional implications of this practice 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