{"id":3112,"date":"2020-02-25T22:22:11","date_gmt":"2020-02-26T03:22:11","guid":{"rendered":"https:\/\/journals.law.harvard.edu\/jol\/?p=3112"},"modified":"2021-12-03T18:25:52","modified_gmt":"2021-12-03T23:25:52","slug":"chairpointment-rethinking-the-appointment-of-independent-agency-chairpersons","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/jol\/2020\/02\/25\/chairpointment-rethinking-the-appointment-of-independent-agency-chairpersons\/","title":{"rendered":"Chairpointment: Rethinking the Appointment of Independent Agency Chairpersons"},"content":{"rendered":"

Chairpointment: Rethinking the Appointment of Independent Agency Chairpersons<\/strong><\/p>\n

Samuel Rubinstein*<\/p>\n

The modern independent agency chairperson possesses great executive and administrative power.\u00a0 Among other things, she usually can appoint and supervise officials, preside at meetings, and distribute the work among her fellow commissioners or board members.\u00a0 Given this increased power as the chairperson, she is still just one vote.\u00a0 Despite this, as the \u201chead\u201d of the agency, she is the face of the agency when dealing with other governmental bodies and the public.\u00a0 However, her appointment procedure is inconsistent\u2014sometimes the President can choose an incumbent commissioner without Senate approval, sometimes the President needs to go back to the Senate for approval, and in rare instances, the board members get to choose the chair themselves\u2014and entirely unstudied.<\/em><\/p>\n

This Article examines \u201cchairpointments\u201d in the context of the powers of an independent agency chairperson.\u00a0 In doing so, the Article determines whether chairpersons are principal or inferior officers and the consequences of either result.\u00a0 Finally, the Article addresses how chairpointments should to be reorganized and harmonized. <\/em><\/p>\n

Introduction<\/strong><\/p>\n

On May 7, 2012, the United States Senate confirmed Ajit Pai to be a Federal Communications Commission (FCC) Commissioner.[1] \u00a0Then, when President Trump commenced his presidency, he designated Pai as Chairman without the Senate\u2019s approval.[2]\u00a0 This designation power is a fairly common process that legal scholars and judges have considered to be part of agency design and have taken it for granted.\u00a0 This Article is the first to explore the interaction between chairpersons of independent multimember agencies and the Appointments Clause.\u00a0 In doing so, I seek to answer two questions: (1) are chairpersons of independent multimember agencies \u201cofficers of the United States\u201d; and (2) if so, are they principal or inferior officers?<\/p>\n

The chairperson is considered the chief executive and representative of their respective agency, but unlike the appointment process for Secretaries of executive departments, the appointment process for chairpersons of independent agencies fluctuates.\u00a0 Some chairpersons need to go through senatorial \u201cadvice and consent\u201d after their initial appointment, but many more can be designated as chairperson by the President or their fellow board members immediately upon the initial appointment.[3]<\/p>\n

The process is inconsistent and incohesive.\u00a0 In this Article, I both identify the fundamental problem and challenge the underlying assumption that it is trivial that chairpersons can be appointed without \u201cadvice and consent.\u201d\u00a0 Considering the vast power variations among agency chairpersons, this Article expects that confirmation requirements also vary.\u00a0 For those chairpersons who function as \u201cfirst among equals,\u201d there is no need for further Senate confirmation if the President elevates an agency member to the chair position; however, for other chairs with powers sufficient to establish them as \u201cprincipal officers,\u201d further Senate confirmation is necessary.\u00a0 Although there is a concern that \u201cadvice and consent\u201d burdens government efficiency, especially in a hyper-partisan era where nominees undergo serious vetting, the Appointments Clause is an essential tool drafted by the Framers in ensuring checks and balances.[4]\u00a0 One legislative fix to harmonize the appointment process is to subject all chairperson appointments to \u201cadvice and consent,\u201d but allow a President to confirm a nominee as both chairperson and commissioner, something that Presidents have already adhered to.[5]<\/p>\n

If a legislative fix is not possible, litigation is an available tool.\u00a0 In recent years, there has been a trend of parties using the Appointments Clause as a sword against the government.\u00a0 In Lucia v. SEC<\/em>, the recipient of an unfavorable ruling successfully challenged the Administrative Law Judge\u2019s appointment.[6]\u00a0 Additionally, a group of disgruntled Senators challenged the appointment of an Acting Attorney General.[7]\u00a0 Therefore, it is not inconceivable to imagine future litigation surrounding the appointment of agency chairpersons, and this Article hopes to provide a resolution to the issue.<\/p>\n

The constitutional status of agency chairpersons can impact chairperson succession during vacancies.\u00a0 Recently, in English v. Trump<\/em>,[8] a district court had to determine the appropriate acting Director of the Consumer Financial Protection Bureau.[9]\u00a0 Similarly, future disputes can arise as to who gets to temporarily lead a multimember agency when the Federal Vacancies Reform Act is triggered, thus showing that even acting chairpersons matter.<\/p>\n

Part I looks at incumbent elevation and the historical basis surrounding agency chairpersons.\u00a0 Part II summarizes the Appointments Clause case law.\u00a0 Part III undergoes an extensive analysis to list all of the powers of chairpersons in different agencies, as well as applying the Appointments Clause doctrine and exploring its consequences.\u00a0 Part IV concludes with a proposal for fixing the discrepancies in chairperson appointments.<\/p>\n

\u00a0 \u00a0 \u00a0 I. Incumbent Elevation Generally<\/strong><\/p>\n

When the Senate confirms a nominee to serve as Deputy Attorney General, Deputy Secretary of Labor, or Deputy Secretary of Education, it does not imply that the Senate abdicated its advice and consent power should a vacancy arise in the Attorney General, Secretary of Labor, or Secretary of Education.[10]\u00a0 In other words, the President cannot elevate a Deputy Attorney General to Attorney General without Senate confirmation.[11]\u00a0 The same is true with the Supreme Court.\u00a0 An incumbent Supreme Court Associate Justice cannot become Chief Justice without Senate approval.[12]\u00a0 Both instances allow the Senate to review the nominee\u2019s performance before possibly elevating them.<\/p>\n

Accordingly, it begs the question why we treat heads of independent multimember agencies differently.\u00a0 For the most part, the President is able to designate a chairperson among the various members of the agency without Senate approval.[13]\u00a0 Although some chairpersons are Presidential Appointments requiring Senate confirmation (PAS) positions, it does not make sense to treat the Federal Deposit Insurance Corporation (FDIC) Chairperson (PAS position) as any different from the FCC Chairperson (a non-PAS position).[14]\u00a0 Inconsistency among the various independent agencies is common, and much of this inconsistency is due to the way in which Congress chose to structure each agency.[15]\u00a0 Still, the Supreme Court has been clear: the Appointments Clause always applies even if it less efficient.[16]<\/p>\n

One way to avoid an Appointments Clause problem is by simultaneously nominating someone to serve as a member of the body and as its head.\u00a0 For example, Securities and Exchange Commission Chairperson Jay Clayton was nominated and confirmed by the Senate as both a Commissioner and the Chairperson, even though the current law allows the President to bypass the Senate in designating a Chairperson.[17]\u00a0 This practice is also seen on the Supreme Court with the appointment of a nominee to serve on the court and as its head (Chief Justice).[18]\u00a0 Conversely, a nominee cannot be appointed both Deputy Attorney General and Attorney General.<\/p>\n

In some ways, the Supreme Court is more closely analogous to independent, multimember agencies: the head has equal voting power to other members, but the head has additional responsibilities and powers.delegates the day-to-day administrative and executive functions of the judiciary branch to the Director and Deputy Director of the Administrative Office of the United States Courts, both of whom are appointed and subject to removal by the Chief Justice.[19]\u00a0 He also appoints \u201cmembers of the committees that do much of the initial work in formulating policy for the Article III judiciary\u201d and judges to sit on various specialty courts in the United States.[20]\u00a0 Both the Chief Justice and chairpersons of independent agencies wield important appointment, executive, and administrative powers.[21]\u00a0 <\/strong>However, the parameters of the comparison need to be limited considering that the Supreme Court is a substantially different government organ than an independent agency.\u00a0 Therefore, instead of looking outward, the role of agency chairpersons should be examined at the source.<\/p>\n

\u00a0 \u00a0 \u00a0 a. The Interstate Commerce Commission<\/strong><\/p>\n

The historical practice of independent multimember agencies is relevant.\u00a0 Similar to how actions of the First Congress are used in statutory and constitutional interpretation, actions of the first independent agency should be used as a source in understanding how to view the role of agency chairpersons.[22] \u00a0<\/strong>In 1887, the Interstate Commerce Commission (ICC) was the first multimember independent regulatory agency established in the United States.[23]\u00a0 The original Interstate Commerce Act allowed the ICC to select its own chairman.[24]\u00a0 Judge Thomas Cooley headed President Cleveland\u2019s list of appointees to the new agency, but he did not become chairman until he was elected at the ICC\u2019s first meeting.[25]\u00a0 Then, through 1910, the ICC would elect chairmen who would serve in that role so long as they remained a member of the body.[26] \u00a0Starting in 1911, however, the chairmanship was in yearly rotation based on service seniority.[27]\u00a0 This practice of allowing the ICC to elect its own chairman remained in place for nearly sixty more years, but there were growing political criticism about agency capture.[28]\u00a0 A common claim was that government became \u201cbloated, fat, and lazy\u201d since many agencies were headed by cronies and not professionals.[29]\u00a0 As a result, both consumer advocates like Ralph Nader and free-market economists agreed that the ICC was \u201ccaptured by\u201d the industries it regulated, causing the ICC to become \u201can elephant\u2019s graveyard of political hacks.\u201d[30]\u00a0 Many scholars noted that because independent agencies are not accountable to the President as executive departments, they are more susceptible to agency capture.[31]\u00a0 Congress responded by giving the President the power to designate the chairman, and therefore, making the ICC more accountable to the President.[32]\u00a0 Over time, political dissatisfaction with the ICC grew so much so that the ICC Termination Act of 1995 abolished the agency altogether and transferred its powers to the Department of Transportation and the new Surface Transportation Board (STB).[33]<\/p>\n

\u00a0 \u00a0 \u00a0 b. The Reorganization Plans<\/strong><\/p>\n

After World War II and the expansion of the federal government during the New Deal, there were calls to organize the Executive Branch.[34]\u00a0 Critics were concerned due to the increased number of federal agencies and federal workers, coupled with overlap of functions and services of the different agencies.[35]\u00a0 In 1947, Congress established the Commission on Organization of the Executive Branch of the Government in order to promote \u201ceconomy, efficiency and improved service\u201d among the federal agencies.[36]\u00a0 The Commission was tasked with investigating the \u201cpresent organization and methods of operation of\u201d the Executive Branch, as well submitting a report of its findings and recommendations to Congress.[37]\u00a0 Former President Herbert Hoover was elected chairperson of this bipartisan commission.[38]\u00a0 As a result, some saw Hoover\u2019s position on the commission as a way for Presidents to strengthen their managerial abilities over the federal bureaucracy because he \u201crecommended that all administrative responsibility at multi-member agencies be vested in the chairman of the agency.\u201d[39]\u00a0 These plans \u201c(1) statutorily granted more authority to the chair to appoint and supervise personnel and to oversee agency expenditures, and (2) transferred the power to designate the chair typically from the agency to the President.\u201d[40]<\/p>\n

Presidents Truman and Kennedy used Hoover\u2019s recommendations to present a series of reorganization plans to Congress.[41]\u00a0 While plans were passed for the Federal Trade Commission (FTC), Federal Power Commission (FPC), and Securities and Exchange Commission (SEC) in 1950, they failed for the ICC, FCC, and the National Labor Relations Board (NLRB).[42] \u00a0Senator Edwin C. Johnson argued that this would create \u201cone-man agencies\u201d subject to the President\u2019s direct control.[43]\u00a0 President Kennedy would later submit plans that would \u201cfurther extend the power of the chair to include the power to delegate work to commission personnel, including other commissioners,\u201d but his plans failed for the FCC and SEC while passing for the FTC and the Civil Aeronautics Board.[44]\u00a0 Although none of the reorganization plans affected the voting procedures, \u201csomething was at stake beyond voting.\u201d[45]\u00a0 Specifically, chairpersons accumulated alternative power \u201csuch as supervisory authority over staff, agenda control, oversight over expenditures, and the power to represent the Commission publicly.\u201d[46]<\/p>\n

\u00a0 \u00a0 \u00a0 II. Independent Agencies within the Constitutional Framework <\/strong><\/p>\n

As an overarching analytical framework, it is valuable to see how chairpersons of independent agencies fit within the constitutional framework established by the Appointments Clause, the Opinion Clause, and the Twenty-Fifth Amendment.[47] \u00a0Although this Article focuses primarily on the Appointments Clause, a constitutional discussion of the Opinion Clause and the Twenty-Fifth Amendment is valuable in determining whether chairpersons of independent agencies qualify as heads of executive Departments.<\/p>\n

\u00a0 \u00a0 \u00a0 a. Independent Agencies and the Constitution <\/strong><\/p>\n

While the three constitutional provisions sound similar, the Supreme Court has looked at the interaction between them to establish the constitutional status of agencies and chairpersons.<\/p>\n

The Appointments Clause provides:<\/p>\n

[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments<\/em>.[48]<\/p><\/blockquote>\n

 <\/p>\n

The Opinion Clause provides:<\/p>\n

[The President] may require the Opinion, in writing, of the principal Officer in each of the executive Departments<\/em>, upon any Subject relating to the Duties of their respective Offices[.][49]<\/p><\/blockquote>\n

 <\/p>\n

The Twenty-Fifth Amendment, Section 4 provides:<\/p>\n

Whenever the Vice President and a majority of either the principal officers of the executive departments<\/em> or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.[50]<\/p><\/blockquote>\n

The constitutional status of independent agencies relates to the constitutional status of chairpersons.\u00a0 If the chairperson qualifies as a \u201chead\u201d or the \u201cprincipal officer\u201d of the executive Department, then that would give her new constitutional powers and responsibilities.\u00a0 She may be granted the power to exclusively appoint inferior officers and be involved in presidential removal, but at the same time, the President may direct her to provide him opinions on relevant topics.\u00a0 However, one first needs to establish that an independent agency is a \u201cDepartment\u201d or \u201cexecutive Department.\u201d<\/p>\n

United States v. Germaine<\/em> was the earliest Supreme Court case that found that \u201c\u2018department\u2019 in both instances [Appointments Clause and Opinion Clause] clearly means the same thing, and the principal officer in the one case is the equivalent of the head of department in the other.\u201d[51] \u00a0Over a century later, in Freytag v. Commissioner<\/em>, a unanimous Supreme Court looked to Germaine<\/em> and the then-enacted Twenty-Fifth Amendment for guidance.[52]\u00a0 Unlike the Appointments Clause and Opinion Clause, the legislative intent behind the Twenty-Fifth Amendment was clear: the drafters meant to include at least the Presidential appointees who direct the executive departments and possibly other cabinet members.[53]<\/p>\n

The majority in Freytag<\/em> held that \u201cHeads of Departments\u201d are \u201cexecutive divisions like the Cabinet-level departments,\u201d and that Germaine<\/em> \u201climited the meaning of \u2018Executive Departmen[t]\u2019 to the Cabinet members.\u201d[54] \u00a0The four-Justice concurrence, written by Justice Scalia, disagreed that \u201cthe Heads of Departments\u201d are Cabinet members.[55]\u00a0 For them, \u201c\u2018Heads of Departments\u2019 includes the heads of all agencies immediately below the President in the organizational structure of the Executive Branch.\u201d[56]<\/p>\n

Nearly two decades later in Free Enterprise Fund v. Public Company Accounting Oversight Board<\/em>,[57] the Supreme Court determined that the Securities Exchange Commission (SEC) was a \u201cDepartment\u201d under the Appointments Clause because it \u201cis a freestanding component of the Executive Branch, not subordinate to or contained within any other such component\u201d.[58]\u00a0 However, in a footnote, the Free Enterprise Fund<\/em> Court did not address whether the Securities Exchange Commission was an \u201cexecutive Department\u201d under the Opinion Clause or the Twenty-Fifth Amendment.[59] \u00a0In addition, the majority did not find the Chairman to be the \u201cHead\u201d of the \u201cDepartment\u201d; rather the Commission as a whole was the \u201cHead.\u201d[60]\u00a0 Interestingly enough, the majority assumed that the presidential designation of the Chairman was valid, going against the crux of my argument in this Article.[61]\u00a0 Still, since neither side argued this point, the Court did not have to analyze the issue, thus leaving the designation\u2019s validity unresolved.<\/p>\n

A consequence of Free Enterprise Fund<\/em> is that its rationale can be extrapolated to other independent agencies.\u00a0 If the SEC is a \u201cDepartment,\u201d then so should the FCC or the NLRB.\u00a0 But, by finding the Commission as a whole as the \u201cHead,\u201d and not just the chairperson, this approach limits how we view chairpersons in the constitutional scheme.\u00a0 Instead, we need a new procedure to determine the constitutional status of chairpersons.<\/p>\n

This is where the Appointments Clause comes in.\u00a0 It is already an available tool for litigants against the government. \u00a0Rather than dealing with a case or government action directly on the merits, an Appointments challenge allows a party to delay a proceeding.[62]\u00a0 The very nature of an Appointments Clause challenge is for the Court to analyze and determine the government official\u2019s constitutional status.<\/p>\n

\u00a0 \u00a0 \u00a0 b. Officers of the United States<\/strong><\/p>\n

In determining the constitutional status of multimember agency chairpersons under the Appointments Clause, the first step is to establish whether chairpersons are \u201cOfficers of the United States\u201d or employees that are \u201clesser functionaries subordinate to officers of the United States.\u201d[63]\u00a0 If the former, then we need to see if they are principal or inferior officers.\u00a0 If the latter, then there is no Appointments Clause issue.\u00a0 As applied to chairpersons, they would likely be classified as officers because of their influence in management and executive matters.[64]<\/p>\n

In United States v. Hartwell<\/em> and United States v. Germaine<\/em>, the Supreme Court ruled that the term \u201cofficer\u201d \u201cembraces the ideas of tenure, duration, emolument, and duties.\u201d[65]\u00a0 In addition, the Court noted that the duties should be \u201ccontinuing and permanent, not occasional or temporary.\u201d[66]<\/p>\n

Then in Buckley v. Valeo<\/em>, the Court interpreted \u201cofficer\u201d under Article II.[67]\u00a0 Breaking away from Hartwell <\/em>and Germaine<\/em>, the Buckley <\/em>Court offered the significant authority standard: \u201cany appointee exercising significant authority pursuant to the laws of the United States is an \u2018Officer of the United States,\u2019 and must, therefore, be appointed in the manner prescribed by \u00a7 2, cl. 2, of that Article.\u201d[68]\u00a0 In a footnote, the Court tried to differentiate between employees and officers by highlighting that \u201c[e]mployees are lesser functionaries subordinate to officers of the United States . . . whereas the Commissioners, appointed for a statutory term, are not subject to the control or direction of any other executive, judicial, or legislative authority.\u201d[69]<\/p>\n

Recently, in Lucia v. SEC<\/em>, the Supreme Court combined the Germaine <\/em>and Buckley<\/em> tests to determine whether SEC Administrative Law Judges (ALJ) were officers.[70]\u00a0 The court found that (1) \u201cthe individual must occupy a \u2018continuing\u2019 position established by law\u201d; and<\/em> (2) they must \u201cexercise[e] significant authority pursuant to the laws of the United States.\u201d[71]\u00a0 The Court acknowledged that one day it might need to refine the \u201csignificant authority\u201d test, but it was not necessary for the present case since it had applicable precedent.[72]\u00a0 Within the decision, three different views of \u201csignificant authority\u201d emerge.<\/p>\n

Justice Thomas promotes the broad end of \u201csignificant authority.\u201d\u00a0 His view aligns with Jennifer Mascott\u2019s originalist view that at a minimum, the term \u201cencompass[es] all federal civil officials who perform an ongoing, statutory duty\u2014no matter how important or significant the duty.\u201d[73]<\/p>\n

Justices Sotomayor and Ginsburg align with the narrower end of the spectrum.\u00a0 They believe that one necessary requirement is that the officer has final decision-making authority, which was not present in the case.[74]<\/p>\n

The majority opinion, written by Justice Kagan, is in the middle of the two views.\u00a0 The Court did not hold that final decision-making authority is a prerequisite to being an officer. Rather, its inquiry \u201cfocuse[s] on the extent of power an individual wields in carrying out his assigned functions.\u201d[75] \u00a0Here, the Supreme Court was persuaded that the ALJs were officers because they have \u201cduties and powers . . . in conducting adversarial inquiries.\u201d[76]\u00a0 As explained below, chairpersons do not have final decision-making authority on policy positions, but they do have \u201cduties and powers\u201d in management and executive matters that can have an impact on policymaking.[77]\u00a0 Thus, chairpersons are likely to satisfy Lucia<\/em>\u2019s middle-view approach.[78]<\/p>\n

\u00a0 \u00a0 \u00a0 c. Principal or Inferior Officers<\/strong><\/p>\n

Even if a chairperson is an officer, the next step in the chairperson\u2019s constitutional status analysis is to determine what type of officer she is.\u00a0 The Constitution prescribes two types of officers: principal and inferior.[79]\u00a0 If one is a principal officer, then she is appointed by the President with Senate confirmation.[80]\u00a0 If one is an inferior officer, then she may still be appointed by the President with Senate confirmation, but Congress may statutorily vest the appointment \u201cin the President alone, in the Courts of Law, or in the Heads of Departments.\u201d[81]\u00a0 The Constitution does not provide guidance on distinguishing between the two types of officers, and the Supreme Court has \u201cnot set forth an exclusive criterion\u201d for differentiating between the two.[82]\u00a0 As applied to chairpersons, the Court\u2019s current frameworks do not produce a clear answer about whether chairs in general are principal or inferior officers.[83]<\/p>\n

In Morrison v. Olson<\/em>, the Supreme Court wrestled with the question of whether the independent counsel created by the Ethics in Government Act of 1978 was an inferior or principal officer.[84]\u00a0 Helpful to its argument, the majority relied on four factors: (1) removability by a higher official; (2) scope of duties; (3) scope of jurisdiction; and (4) scope of office\u2019s tenure.[85]\u00a0 The independent counsel was determined to be an inferior officer because she was subject to removal by the Attorney General, she performed only specific, limited duties, her office was limited in jurisdiction, and her office was limited in tenure.[86]<\/p>\n

The dissent, authored by Justice Scalia, attacked the majority\u2019s ruling and proposed a different test.[87]\u00a0 For one, it appeared that the source of these four factors came from Germaine<\/em>\u2019s \u201ctenure, duration, emolument, and duties,\u201d which are supposed to determine whether someone is an officer in the first place, and not whether they are inferior or principal.[88]\u00a0 To Justice Scalia, the real test is whether someone was \u201csubordinate <\/em>to any officer in the Executive Branch.\u201d[89]\u00a0 If not, then she is an inferior officer.<\/p>\n

Nearly a decade after Morrison<\/em>, Justice Scalia wrote the majority in Edmond v. United States<\/em>, which dealt with whether the Secretary of Transportation could constitutionally appoint civilian members to the Coast Guard Court of Criminal Appeals (CCA).[90]\u00a0 Although the majority referenced Morrison<\/em>, it quickly noted that \u201cMorrison<\/em> did not purport to set forth a definitive test for whether an office is \u2018inferior\u2019 under the Appointments Clause.\u201d[91]\u00a0 Instead, \u201c\u2018inferior officers\u2019 are officers whose work is directed and supervised at some level by others who were appointed by Presidential nomination with the advice and consent of the Senate.\u201d[92]\u00a0 In addition, the \u201cpower to remove officers . . . is a powerful tool for control.\u201d[93]\u00a0 Critically, it was significant \u201cthat the judges of the Court of Criminal Appeals have no power to render a final decision on behalf of the United States unless permitted to do so by other Executive officers.\u201d[94]<\/p>\n

Over a decade after Edmond<\/em>, the Supreme Court in Free Enterprise Fund v. Public Company Accounting Oversight Board <\/em>was again presented with an inferior officer question, and this time it applied to board members of the Public Company Accounting Oversight Board (PCAOB), a government entity that regulates the accounting industry.[95]\u00a0 Despite the tension presented by Morrison<\/em> and Edmond<\/em>, the Supreme Court reiterated the Edmond<\/em> holding, but did not overrule Morrison<\/em>.[96]\u00a0 Significantly, the majority found that the PCAOB members were inferior officers because the SEC can remove the PCAOB members at will and the SEC had oversight power.[97]\u00a0 Thus, the Court adopted Edmond<\/em>\u2019s analysis of the officer\u2019s removability.<\/p>\n

Shortly after Free Enterprise Fund<\/em>, the Office of Legal Counsel (OLC) weighed in on whether the Special Master for Troubled Asset Relief Program Executive Compensation was a principal or inferior officer by applying both Morrison <\/em>and Edmond <\/em>frameworks.[98]\u00a0 While OLC\u2019s opinion-writing function does not have the same relevance or precedential value as Supreme Court or Circuit Court decisions, its importance here is to show how Executive Branch lawyers analyze whether an officer is principal or inferior.[99]\u00a0 In the Special Master opinion, OLC considered both the Morrison<\/em> factors and the Edmond<\/em> inquiry, and in both instances, the Special Master was an inferior officer.[100]\u00a0 In particular, with the Edmond<\/em> analysis, OLC highlighted that \u201cthe level of direction and supervision exercised by a superior over a subordinate need not be total for the subordinate to qualify as an inferior officer.\u201d[101]\u00a0 But, it categorized the Edmond <\/em>inquiry into two factors: (1) removability \u201cby an officer other than the President\u201d; and (2) work subjected to \u201csome level\u201d of \u201cdirect[ion] and supervis[ion]\u201d by an official appointed by the President with Senate confirmation.[102]\u00a0 In a recent decision by the D.C. Circuit upholding the Special Counsel\u2019s appointment, the court viewed Edmond<\/em> as applying three distinct characteristics: \u201cdegree of oversight, final decision-making authority, and removability.\u201d[103]<\/p>\n

Moving forward, it is not clear whether Morrison<\/em> is still good law after Edmond<\/em>.\u00a0 Some believe that it is part of the anti-canon.[104]\u00a0 Justice Thomas, for one, has expressed his doubts about Morrison<\/em>.[105]\u00a0 Whereas Morrison <\/em>focused on authority, Edmond<\/em> focused on hierarchy.[106]\u00a0 However, despite the tension between the two, the First Circuit recently applied both Morrison<\/em> and Edmond <\/em>in determining whether the Financial Oversight and Management Board Members, a body established by Congress to help Puerto Rico with its financial crisis, were principal officers.[107]\u00a0 On June 20, 2019, the Supreme Court granted the petition for a writ of certiorari for the First Circuit case, and it may present an opportunity for the Court to formally overturn Morrison<\/em>.[108]\u00a0 Until the Supreme Court provides more clarification, any future Appointments Clause litigation should argue that a chairperson is a principal officer under both the Morrison<\/em> and Edmond<\/em> inquiries.[109]\u00a0 As explained below, chairpersons would likely qualify as principal officers under Morrison<\/em>, but it is indeterminate under Edmond <\/em>due to the relative weight given to the President\u2019s power to remove chairpersons. \u00a0<\/em><\/p>\n

\u00a0 \u00a0 \u00a0 III. Analytical Framework of Chairs<\/strong><\/p>\n

Unsurprisingly, not all chairpersons have the same responsibilities and powers, but most of them control \u201cthe day-to-day administration of the agency, agency personnel, and the agency\u2019s agenda.\u201d[110]\u00a0 As compared to other board members or commissioners, the chair has the same regulatory capacities, but she also administers the law in her executive capacity similar to the head of a department.[111]<\/p>\n

Generally speaking, \u201cchairs matter\u201d and they are viewed as presidential proxies.[112]\u00a0 Scholars and former chairpersons have noted that the chair is an important position,[113] but no one has questioned whether Congress can delegate the appointment to the individual members or the President alone.[114]\u00a0 Chairpersons are generally not only a first among equals: many wield specific authority due to their position and are compensated at a higher level than other members on a board.\u00a0 As reported in Table 1, nearly 74% of the multimember independent agencies listed do not require the chair to go through further Senate confirmation.[115]<\/p>\n

\u00a0 \u00a0 \u00a0 a. Chairperson versus Board<\/strong><\/p>\n

Table 2 reiterates that not all chairs are equal.\u00a0 A major distinction is the statutory authority (if any) of chairs.\u00a0 For example, 46 U.S.C. \u00a7 301 elaborates on the Federal Maritime Commission (FMC) chairperson\u2019s general and particular powers.[116]\u00a0 On the other hand, the NLRB chairperson\u2019s power is not even mentioned in the statute; it only states that the President can designate the chair.[117]\u00a0 Sometimes, the statute is ambiguous about the extent of the chair\u2019s powers: the Federal Labor Relations Authority (FLRA) chairperson is \u201cthe chief executive and administrative officer of the Authority.\u201d[118]\u00a0 In addition to statutes, there are numerous agency regulations that attempt to fill in any gaps.[119]\u00a0 Looking back at the NLRB, its rules and regulations do provide slightly more clarity on actual responsibilities,[120] but just as the Board promulgated these regulations, it can revise them as well, subject to any statutes about the Board\u2019s rulemaking authority.<\/p>\n

As a result, the division of power between chair and the other board members is murky.\u00a0 In one instance, the NLRB chair issued a directive to the Executive Secretary to publish an internal document regarding which board members have cases pending.[121]\u00a0 The full Board responded by voting to countermand the directive.[122]\u00a0 While it did not escalate into a greater legal fight, other occasions required OLC to step in as an adjudicator to resolve these disagreements.[123]\u00a0 When it comes to intra-agency disputes, OLC opinions have greater relevance because \u201cthere is no official forum (such as a court) for regular resolution of intra-agency management questions.\u201d[124]<\/p>\n

In one instance, the former chair (but still a current member) of the Chemical Safety and Hazard Investigation Board argued that the chair essentially has \u201ccomplete authority over all aspects\u201d except for a few matters that the Board must vote on.[125]\u00a0 OLC refused to adopt the former chair\u2019s view, and generally found that \u201cthe day-to-day administration of Board matters and execution of Board policies are the responsibilities of the chairperson, subject to Board oversight, while substantive policymaking and regulatory authority is vested in the Board as a whole.\u201d[126]\u00a0 Furthermore, when there is a dispute \u201cover the allocation of authority in specific instances, the Board\u2019s decision controls, as long as it is not arbitrary or unreasonable.\u201d\u00a0 However, the opinion notes the tension present and how hard it is to draw the line between chair and board (or commission) functions:<\/p>\n

Some degree of managerial discretion is inherent in the concept of an executive or administrative office, and the statutory assignment of the Board\u2019s executive and administrative functions to the chairperson necessarily vests the chairperson with a degree of managerial autonomy on which the Board, in the proper exercise of its powers, cannot trench. Likewise, some day-to-day aspects of Board affairs may be so unrelated to the Board\u2019s effective execution of its statutory responsibilities that they cannot be said to be proper objects of the full Board\u2019s authority. At the same time, however, any number of Board activities or day-to-day aspects of Board business, while at least in part administrative and even seemingly mundane, may involve or affect the Board\u2019s duties and functions in ways that are of legitimate concern to the Board as a whole. Where that is the case, it is the prerogative of the Board to pass upon such issues in ways appropriate to its function as a policymaking and rule-setting body.[127]<\/p><\/blockquote>\n

The former chair also tried to make a comparison with the NTSB chair, who allegedly \u201cis the chief moving force on the NTSB and principally responsible for executing its policies,\u201d because the Board\u2019s legislative history indicated that it would be modeled after the NTSB.[128]\u00a0 OLC rejected this parallel argument, and distinguished NTSB based on the grounds that this \u201cis a matter of the development, through collegial practice and over time, of the NTSB\u2019s own internal policies concerning delegation of authority to the NTSB chairperson, the NTSB\u2019s acquiescence in the chairperson\u2019s assertion of authority over certain substantive areas, and the general evolution of the NTSB\u2019s current allocation of responsibilities.\u201d[129]<\/p>\n

In a more recent OLC opinion, a Board member of the Defense Nuclear Facilities Safety Board sought to view written performance appraisals of senior employees.[130]\u00a0 The agency\u2019s Office of General Counsel believed that this was exclusively in the chairperson\u2019s authority, but OLC rebutted that view.[131]\u00a0 In a footnote, OLC reiterated that there are some executive and administrative manners that the Board cannot trench, but the opinion did not have to examine the scope of the chair\u2019s autonomy.[132]<\/p>\n

The anecdote about the NTSB shows that statutes are only one part of the story.\u00a0 Inner workings of a body, while rarely on full display, provide more insight on a chair\u2019s role.\u00a0 For instance, the NLRB chair has no statutory duties, and as a former chair recounted, \u201cthe chairmanship\u2014given the authority of the general counsel to appoint regional staff and recommend regional directors to the entire Board (not just to the chairman)\u2014is more like a bully pulpit than a position of authority.\u201d[133]\u00a0 In contrast, a former FCC commissioner recounted: \u201cFrom personal experience I can report that the FCC\u2019s Chairman and a handful of staff\u2014usually selected by the chair\u2014can and usually do exercise nearly total control over that agency’s basic policy agenda.\u201d[134]\u00a0 Except for interviews and future OLC opinions, it is nearly impossible to decipher internal agency policy and how it relates to a chair\u2019s power.<\/p>\n

\u00a0 \u00a0 \u00a0 b. Salary<\/strong><\/p>\n

One form of congressional control over agencies is that Congress can create, design, and even destroy agencies.[135]\u00a0 More specifically, Congress determines the salary level for a chairperson and her members.\u00a0 Any difference\u2014or lack of one\u2014sheds light on how Congress perceives the relationship between the chair and individual members.<\/p>\n

After each presidential election, the Senate Committee on Homeland Security and Governmental Affairs and the House Committee on Oversight and Government Reform alternately publish the Plum Book, a publication on the major leadership positions in the legislative and executive branches, including their salaries and pay rates.[136]\u00a0 According to the Plum Book, many, but not all, chairs are classified as PAS positions even if the statute implies that a chair is a non-PAS position.[137]\u00a0 In addition, many chairpersons are paid under the Executive Schedule (EX), the pay levels reserved to the top federal executives in the government.[138]\u00a0 For some agencies like the African Development Foundation and the Corporation for National and Community Service, their chairpersons do not receive compensation.[139]\u00a0 On the other hand, the chairperson of the National Council on Disability receives a per diem salary, while the chairpersons of the United States Postal Service, Federal Retirement Thrift Investment Board, and Tennessee Valley Authority are compensated on another pay plan. [140]\u00a0 Table 3 looks only at chairpersons compensated under the EX, and how their salaries compare with other members.[141]<\/p>\n

Where a chair is paid the same amount, it can indicate that chair is essentially a \u201cfirst among equals\u201d with no additional substantive responsibilities.\u00a0 It is understandable that the chairs of the EAC and FEC are paid the same as members because there is an annual rotation of the chairmanship.[142]\u00a0 It is unclear, however, why the chair of the Defense Nuclear Facilities Safety Board and the chair of the Chemical Safety and Hazard Investigation Board are paid the same as their respective members.[143]\u00a0 For remaining agencies, the differences in payment schemes can bolster the point that the chairperson is a PAS position.<\/p>\n

\u00a0 \u00a0 \u00a0 c. Comparison with PAS positions<\/strong><\/p>\n

Finally, it is valuable to compare the varying levels of authority for non-PAS and PAS chairs.\u00a0 If there is no distinguishable difference between the two, then there is no reason why we should have this inconsistency.\u00a0 As demonstrated above, not all non-PAS chairs are the same, and the best way to have a comparison with PAS chairs is by including only non-PAS chairs that have statutory duties and an EX pay plan that is greater than her fellow members.\u00a0 Specifically, the chairs of the Federal Energy Regulatory Commission (FERC), FMC, FTC, Nuclear Regulatory Commission (NRC), Occupational Safety and Health Review Commission (OSHRC), Postal Regulatory Commission (PRC), STB, Equal Employment Opportunity Commission (EEOC), Farm Credit Administration (FCA), Federal Communications Commission (FCC), International Trade Commission (ITC), National Credit Union Administration, and SEC are particularly relevant.<\/p>\n

From here, it is valuable to see how the varying levels of authority that any of the chairs listed compare with a PAS chair.\u00a0 Table 4 shows this evaluation by considering the following statutory or regulatory powers of a sample group of non-PAS chairs with a sample of PAS chairs: (1) Appointment and Supervision; (2) Distribution of Business; (3) Expenditure of Funds; (4) Represent the Agency; (5) Debt or Claim Collection\/Settlement Authority; (6) Production of Documents; (7) Appeals; and (8) Preside at Meetings.\u00a0 These parameters are drawn from common chairperson powers found in the different statutes and regulations.\u00a0 Arguably, the authority conferred by statute is paramount to authority conferred by regulation because unlike the congressionally enacted statute, the independent agency could engage in rulemaking to enlarge or diminish the chairperson\u2019s current authority.\u00a0 However, this difference does not impact the chairperson\u2019s existing powers, and most of the authority conferred came from statutes.<\/p>\n

Table 4 shows that the Appointment and Supervision power is nearly consistent throughout both PAS and non-PAS groups.\u00a0 As for other powers, distributing the business and representing the agency is the next most common.\u00a0 After that, no other pattern emerges.<\/p>\n

While these eight categories represent common chairperson powers, many non-PAS chairs wield additional unique powers not listed in the table.\u00a0 For example, the ITC chairperson can fire specific employees and formulate the ITC\u2019s annual budget.[144]\u00a0 The NRC chairperson can also remove certain officers and has \u201cultimate authority for all NRC functions pertaining to an emergency involving an NRC Licensee.\u201d[145]\u00a0 Finally, the FERC chairperson wields power over the procurement of experts and consultants, while the FCC chairperson has authority to take final \u201cactions of routine character\u201d and final \u201cactions of non-routine character which do not involve policy determinations.\u201d[146]\u00a0 In all, a non-PAS chair could wield significantly more control over executive and administrative matters than a PAS chair.<\/p>\n

\u00a0 \u00a0 \u00a0 d. Application of Officers Analysis<\/strong><\/p>\n

As mentioned, the first step in an Appointments Clause challenge to an action by a chairperson is to determine whether the chairperson is an employee or officer.[147]\u00a0 There is reason to believe that everyone will agree that chairpersons are officers.\u00a0 For one, many of the statutes already name the chair as the \u201cchief executive officer\u201d or \u201cchief administrative officer\u201d of the agency.[148]\u00a0 Thus, by putting \u201cofficer\u201d in the description of the chairperson, Congress\u2019s intent was also to make chairs officers.\u00a0 Although there are several statutes that do not list their chairpersons as \u201cofficers,\u201d it still would seem problematic for the government to argue that, for example, the FERC chair is not an officer.[149]\u00a0 Even so, the Lucia <\/em>analysis proves that chairpersons are officers.<\/p>\n

Under Lucia<\/em>, chairpersons must have a \u201ccontinuing\u201d role, and not \u201coccasional or temporary.\u201d[150]\u00a0 Instead, the chairperson is a permanent position in any executive agency because she is tasked with running the executive and administrative operations of her respective agency.\u00a0 <\/strong>While not all statutes specify the \u201cduties, salary, and means of appointment\u201d of chairs, this should not disqualify a chair, especially when duties may be prescribed by internal policies.[151]<\/p>\n

The chair must also \u201cexercis[e] significant authority pursuant to the laws of the United States.\u201d[152]\u00a0 Assuming that the phrase \u201claws of the United States\u201d only applies to statutes and not regulations, chairs normally have some version of these four basic statutory functions: (1) appointment and supervision of employees and\/or officers; (2) distribution of business among the agency units; (3) expenditure and supervision of funds; and (4) representation of the agency.[153]\u00a0 Arguably, the chair\u2019s appointment power should be sufficient since it allows the chair to appoint and oversee staff or officials who would execute the agency\u2019s functions even though the appointment decision is not final.[154]\u00a0 Moreover, each agency may have specific powers that suggest significant authority.\u00a0 For example, the FERC and ITC chairs can bind their respective agencies because they have procurement power.[155]\u00a0 Therefore, chairpersons would satisfy Lucia<\/em>.<\/p>\n

\u00a0 \u00a0 \u00a0 e. Application of Principal or Inferior Officer Analysis <\/strong><\/p>\n

Once it is established that a chair is an officer, the next step is to determine whether a chair is a principal or inferior officer.\u00a0 If the chairperson is a principal officer, then she would have to be appointed by the President and confirmed by the Senate.\u00a0 It appears that Edmond<\/em> replaced Morrison<\/em> as the test, but since OLC and the First Circuit recently applied both Edmond<\/em> and Morrison<\/em>, both tests will be utilized until the Supreme Court provides further clarification.[156]<\/p>\n

Morrison<\/em> looks at four factors: (1) removability by a higher official; (2) scope of duties; (3) scope of jurisdiction; and (4) scope of office\u2019s tenure.[157]\u00a0 Only the President remove a chair; she has \u201cadministrative duties outside of those necessary to operate her office,\u201d such as hiring staff for the agency as a whole and not just for the chairperson\u2019s office; her jurisdiction is over an entire agency; and her office is not limited in duration like a temporary special counsel.[158]\u00a0 These factors apply for the non-PAS chairs listed in Table 4 and are sufficient to pass the Morrison <\/em>test.<\/p>\n

Edmond<\/em> looks at whether a chair\u2019s \u201cwork is directed and supervised at some level by others who were appointed by Presidential nomination with the advice and consent of the Senate.\u201d[159] \u00a0Free Enterprise Fund<\/em> adopted this view and took into consideration the officer\u2019s removability.[160]\u00a0 As summarized by OLC, Edmond<\/em> looks at if a chair is \u201cremovable by an officer other than the President and whether the officer\u2019s work is subject to \u2018some level\u2019 of \u201cdirect[ion] and supervis[ion]\u2019 by an official appointed by the President, with the advice and consent of the Senate.\u201d[161]\u00a0 In a recent decision by the D.C. Circuit upholding the Special Counsel\u2019s appointment, the court viewed Edmond<\/em> as evaluating three distinct characteristics: \u201cdegree of oversight, final decision-making authority, and removability.\u201d[162]<\/p>\n

Applying Edmond <\/em>to the non-PAS chairs in Table 4 does not produce a clear result because of the unequal weight given to the factors.[163]\u00a0 The Supreme Court has given special emphasis to the removal power because it is a \u201cpowerful tool for control.\u201d[164]\u00a0 The Board or Commission cannot remove a chair; that power belongs to the President.[165]\u00a0 However, the multimember body does supervise the chair.[166]\u00a0 It is possible that the body also controls the chair because there are some instances where the Board can control a chair\u2019s actions.[167]\u00a0 Besides the President ultimately having control over the chair, another difference from the previous cases is that a chairperson also sits as a member of the body that is supposed to be \u201cdirecting and supervising\u201d the chairperson.\u00a0 Although this is not entirely self-regulation, the chairperson does have a vote (and other levers of influence) in determining internal agency policies that affect her own executive and administrative functions.[168]<\/p>\n

Finally, it is not clear what final decision-making authority the chair has without looking at the inner workings of each respective agency.\u00a0 Regardless, as stated, the three factors are not supposed to be weighed \u201cindependently and equally.\u201d[169]\u00a0 Even if degree of oversight and final decision-making go against chairs being considered as principal officers, it does not seem plausible to overcome the President\u2019s removability of the chair as a \u201cpowerful tool for control.\u201d[170]\u00a0 The Edmond<\/em> factors, unlike the Morrison<\/em> factors, are not as conclusive; thus, the consequences of whether chairs in general are principal or inferior officers are important for either determination.<\/p>\n

\u00a0 \u00a0 \u00a0 f. Chair as Inferior Officer Consequences<\/strong><\/p>\n

If the result were that the chairs of the FCC, FERC, or NRC (non-PAS chairs) are inferior officers, then there is no reason why that rationale would not extend to the chairs of the Consumer Product Safety Commission (CPSC), Merit Systems Protection Board (MSPB), or National Transportation Safety Board (NTSB).\u00a0 As shown by Table 4, PAS chairs do not contain any more authority than their non-PAS equivalents such that would elevate them as principal officers.[171]\u00a0 Thus, should Congress act, it could alter the PAS status of those chairs.[172]<\/p>\n

However, the result would be counterintuitive.\u00a0 The dual designation means that a chair is an inferior officer subject to removal at will by the President, and also a principal officer (as a member of the body) subject to removal for good cause by the President.[173] \u00a0There is \u201ca measure of the status and prestige associated with the position of chairperson,\u201d and it seems odd that this promotion to the dominant role of chairman from member would correspondingly demote someone to an inferior officer.[174]\u00a0 While this may not impact the chairmanship role in agencies, it would cement the President\u2019s influence in being able to select (and remove) the chair.[175]<\/p>\n

The only other instance where an Executive branch officer can serve as both a principal and inferior officer is in the cases of Acting Department Heads.\u00a0 For example, the Deputy Attorney General is a principal officer, but Acting Attorney General is considered an inferior officer under OLC.[176] \u00a0The rationale is that because a \u201csubordinate officer is charged with the performance of the duty of the superior for a limited time, and under special and temporary conditions, he is not thereby transformed into the superior and permanent official.\u201d[177]\u00a0 Even if OLC\u2019s analysis was correct, it would not apply to chairpersons because their duties are not temporary nor are there special circumstances.<\/p>\n

A dual designation of chairs would be followed with litigation.\u00a0 This past term, the Supreme Court heard an Appointments Clause challenge to a judicial officer\u2019s dual service.[178]\u00a0 A military judge on the Court of Military Commission Review (CMCR), a principal officer, also sat on the Court of Criminal Appeals (CCA), a body composed of inferior officers.[179]\u00a0 The Court rejected the Clause\u2019s application: \u201cThis Court has never read the Appointments Clause to impose rules about dual service, separate and distinct from methods of appointment.\u201d[180]\u00a0 However, the Court left open the possibility to consider dual service restrictions under the Appointments Clause.[181]\u00a0 In what was likely dicta, the Court noted that there was no plausible way that the principal officer\u2019s service on the CMCR would \u201cundu[ly] influence\u201d his inferior officer colleagues on the CCA.[182]\u00a0 Furthermore, the courts did not have any overlapping jurisdiction.[183]\u00a0 When comparing this to the relationship between chairs and their members, distinctions are present.\u00a0 A chair does have overlapping jurisdiction with members, and there is nothing stopping members from \u201cundu[ly] influenc[ing]\u201d their chairs.[184]\u00a0 Thus, when Chairman Pai sits as a FCC Commissioner, he is different from other FCC Commissioners, but it does not appear that the Court would want to entertain a dual service case any time soon.<\/p>\n

\u00a0 \u00a0 \u00a0 g. Chair as Principal Officer Consequences <\/strong><\/p>\n

If the chair is a principal officer then she automatically holds a PAS position under the Constitution, triggering the Federal Vacancies Reform Act (FVRA).[185]\u00a0 Normally, the FVRA governs how the President chooses an acting head.[186]\u00a0 Yet, the FVRA does not apply to \u201cany member who is appointed by the President, by and with the advice and consent of the Senate to any board, commission, or similar entity that . . . is composed of multiple members; and governs an independent establishment.\u201d[187]\u00a0 Many, if not all, of the entities listed in the Tables govern an independent establishment, but it is unclear whether the exclusion applies to chairpersons.[188]<\/p>\n

OLC previously held that the chairperson of the Chemical Safety and Hazard Investigation Board does fall under this exclusion.[189]\u00a0 This determination makes sense because a chair has<\/em> to be a member of the body.\u00a0 Moreover, there is no functional difference if the chair was simultaneously appointed as member or whether she was elevated to chair.\u00a0 However, OLC disregarded the fact that a chair can resign from her position and still be a member of the body, which is exactly what happened when the chairperson of the Chemical Safety and Hazard Investigation Board resigned but was still a Board member.[190]\u00a0 There is good reason in limiting the exclusion to \u201cany members,\u201d but considering that a vacancy in the chairmanship does not necessarily result in a vacancy in the membership, the FVRA could apply in these limited circumstances where the chair resigns only from the chairmanship.<\/p>\n

Assuming the FVRA does apply, it can impact how acting chairpersons are selected.\u00a0 <\/strong>Currently, OLC holds the position that when the FVRA does not apply and in absence of a specific statutory provision, \u201cit should be assumed that the power to designate an [a]cting [c]hair[person] remains in the President.\u201d[191] \u00a0But when the FVRA applies and there is a statutory provision on vacancies, OLC and a recent District Court case adopted the view that depending on the statute, the FVRA allows the President to depart from the statutory succession order.[192]<\/p>\n

In English v. Trump<\/em>, there was a dispute over who was the acting Director of the Consumer Financial Protection Bureau (CFPB).[193]\u00a0 The President and the outgoing Director both named different acting Directors.[194]\u00a0 The President cited his authority under the FVRA, but the Deputy Director (who the outgoing Director selected as his successor) cited the Dodd-Frank Act because it entitled her to be acting Director.[195]\u00a0 In examining the Dodd-Frank Act, the court noted the law was silent on the President\u2019s ability to appoint an acting Director, making it \u201cimpossible to conclude that Dodd-Frank expressly makes the FVRA’s appointment mechanisms unavailable.\u201d[196]\u00a0 The Deputy Director argued that the Act\u2019s use of the word \u201cshall\u201d implies that her appointment is \u201cmandatory\u201d and \u201cunqualified.\u201d[197]\u00a0 The court acknowledged that \u201cshall\u201d is a semantic mess and that other statutory provisions point to a seemingly required appointment.[198]<\/p>\n

Moving to principles of statutory construction, the court relied on the harmonious-reading canon, the presumption against implied repeals, and the canon of constitutional avoidance.[199]\u00a0 First, \u201cwhen two statutes are capable of coexistence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective.\u201d[200]\u00a0 Here, the FVRA and the Dodd-Frank Act were capable of co-existence.[201]\u00a0 Second, the Deputy Director was effectively seeking a partial repeal of the FVRA, and the repeal is not presumed \u201cunless the `intention of the legislature to repeal [is] clear and manifest.\u2019\u201d[202]\u00a0 Finally, the Deputy Director\u2019s interpretation of the Act would have likely impaired the President\u2019s obligation to \u201ctake care that the laws be faithfully executed\u201d because a \u201ckey means\u201d of doing so is \u201cthe power of appointing, overseeing, and controlling those who execute the laws.\u201d[203] \u00a0Using these canons, the court upheld the President\u2019s use of the FVRA to appoint the acting Director.[204]<\/p>\n

Like the CFPB, agencies such as the FCC, FDIC, and NRC have statutory succession provisions in place for chairpersons.\u00a0 The FCC and NRC provisions are weaker than the CFPB\u2019s: \u201cIn the case of a vacancy in the office of the chairman of the [FCC], or the absence or inability of the chairman to serve, the Commission may temporarily designate<\/em> one of its members to act as chairman until the cause or circumstance requiring such designation shall have been eliminated or corrected\u201d,[205] and \u201cThe Chairman may from time to time designate<\/em> any other member of the [NRC] as Acting Chairman to act in the place and stead of the Chairman during his absence.\u201d[206]\u00a0 In contrast, the FDIC\u2019s provision is closer in language to the CFPB\u2019s: \u201cIn the event of a vacancy in the position of Chairperson of the Board of Directors or during the absence or disability of the Chairperson, the Vice Chairperson shall act as Chairperson<\/em>.\u201d[207]\u00a0 In none of these statutes, however, is there a clear congressional intent to displace the FVRA.<\/p>\n

Where the FVRA is applicable, even with a statutory succession provision, it would be hard to fight the FVRA\u2019s effect.\u00a0 Moreover, the FVRA can possibly lead to an unprecedented situation where a non-member serves as acting chair.[208]<\/p>\n

\u00a0 \u00a0 \u00a0 IV. Conclusion<\/strong><\/p>\n

The current appointment process of multimember independent agency chairpersons is inconsistent and incoherent.\u00a0 Depending on the body, a non-PAS chair wields significantly more control over executive and administrative matters than a PAS chair.\u00a0 Yet, despite the extensive literature on independent agencies, scholars have failed to focus on whether the presidential designation of chairs is constitutional.\u00a0 Put simply, if chairs<\/em> matter<\/em>, then the Appointments Clause should matter too.<\/p>\n

In this Article, I have sought to address the issue head on by taking a historical, comparative, and functional perspective about agency chairs.\u00a0 To avoid any Appointments Clause concerns, Congress should harmonize the appointment process by subjecting all chairperson appointments to \u201cadvice and consent,\u201d but allow a President to confirm a nominee as both chairperson and commissioner. \u00a0The option for a simultaneous confirmation would allow the Senate to be involved in the chairperson appointment process and give the President the flexibility to choose who she wants to head an agency.\u00a0 A legislative fix is encouraging, but the true impetus for Appointments Clause challenges has been through the courts and not the legislature.\u00a0 For example, shortly after Buckley v. Valeo<\/em> invalidated the appointments of certain FEC commissioners, the Court encouraged Congress to act, which it did by amending the Federal Election Campaign Act and converted all FEC commissioners into PAS positions.[209]<\/p>\n

Considering the reactive nature of Congress, successful Appointments Clause litigation could push Congress to act.\u00a0 Whether it is an action taken by the chairperson or someone that the chair appointed, a conflict between the chair and the members, or a group of Senators (or the Senate) disappointed that the chairperson bypassed \u201cadvice and consent,\u201d the possibilities for litigation are endless.\u00a0 In bringing a suit, there needs to be special consideration of the specific agency\u2019s impact on Americans and its statutory regime surrounding chairpersons.<\/p>\n

Even if the Appointments Clause question is resolved, other legal questions will arise.\u00a0 More specifically, courts should clarify the relationship between a chairperson and agency members, whether a dual office claim could apply, and how the FVRA fits into this scheme.\u00a0 This Article cannot address all the concerns raised by the appointment procedure of chairs, but its hope is to awaken scholarly interest in doing so.<\/p>\n

Appendix <\/strong><\/p>\n

Table 1 \u2013 PAS Chairs versus Non-PAS Chairs<\/strong><\/p>\n\n\n\n\n
PAS<\/td>\nNon-PAS<\/td>\n<\/tr>\n
Chemical Safety and Hazard Investigation Board; Consumer Product Safety Commission (CPSC); Federal Reserve; Merit Systems Protection Board (MSPB); National Transportation Safety Board (NTSB); Administrative Conference of the United States (ACUS); Advisory Council on Historic Preservation; Commodity Futures Trading Commission (CFTC); Federal Deposit Insurance Corporation (FDIC); Railroad Retirement Board[210]<\/td>\nCommission on Civil Rights; United States Election Assistance Commission (EAC); Federal Election Commission (FEC); Federal Energy Regulatory Commission (FERC); Federal Maritime Commission (FMC); Federal Labor Relations Authority (FLRA); Federal Trade Commission (FTC); Mine Safety and Health Review Commission; National Labor Relations Board (NLRB); National Mediation Board (NMB); Nuclear Regulatory Commission (NRC); Occupational Safety and Health Review Commission (OSHRC); Postal Regulatory Commission (PRC); Surface Transportation Board (STB); Defense Nuclear Facilities Safety Board; Equal Employment Opportunity Commission (EEOC); Farm Credit Administration (FCA); Federal Communications Commission (FCC); United States International Trade Commission (ITC); National Credit Union Administration; National Council on Disability; Securities and Exchange Commission (SEC); United States Postal Service (USPS); African Development Foundation; Corporation for National and Community Service; Federal Retirement Thrift Investment Board; Tennessee Valley Authority (TVA)[211]<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

 <\/p>\n

Table 2 \u2013 Chairpersons with Statutory Duties[212]<\/strong><\/p>\n\n\n\n\n\n
<\/td>\nPAS<\/td>\nNon-PAS<\/td>\n<\/tr>\n
Chairpersons with specific statutory duties<\/p>\n

\u00a0<\/strong><\/td>\n

CPSC; Federal Reserve; MSPB; NTSB; ACUS; Advisory Council on Historic Preservation; CFTC; FDIC[213]<\/p>\n

 <\/p>\n

 <\/p>\n

 <\/td>\n

FEC; FERC; FMC; FTC; NRC; OSHRC; PRC; STB; Defense Nuclear Facilities Safety Board; EEOC; FCA; FCC; ITC; National Credit Union Administration; National Council on Disability; SEC; Corporation for National and Community Service; Federal Retirement Thrift Investment Board[214]<\/td>\n<\/tr>\n
Chairpersons with vague or no statutory duties<\/td>\nChemical Safety and Hazard Investigation Board; Railroad Retirement Board[215]<\/td>\nCommission on Civil Rights; FLRA; Mine Safety and Health Review Commission; NLRB; NMB; EAC; USPS; African Development Foundation; TVA[216]<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

 <\/p>\n

Table 3 \u2013 EX Pay Plan Chairperson Salary Comparison with Members <\/strong><\/p>\n\n\n\n\n\n
\u00a0<\/strong><\/td>\nPAS<\/td>\nNon-PAS<\/td>\n<\/tr>\n
Chairperson Salary Higher<\/td>\nAdvisory Council on Historic Preservation; CPSC; Federal Reserve; MSPB; NTSB; ACUS; CFTC; FDIC; Railroad Retirement Board[217]<\/td>\nFERC; FMC; FLRA; FTC; Mine Safety and Health Review Commission; NLRB; NMB; NRC; OSHRC; PRC; STB; EEOC; FCA; FCC; ITC; National Credit Union Administration; SEC[218]<\/td>\n<\/tr>\n
Chairperson Salary Equal<\/td>\nChemical Safety and Hazard Investigation Board[219]<\/td>\nCommission on Civil Rights; EAC; FEC; Defense Nuclear Facilities Safety Board[220]<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

 <\/p>\n

Table 4: Comparison of Chairperson Powers from Statutory and Regulatory Authorities[221]<\/strong><\/p>\n\n\n\n\n\n\n\n\n\n\n\n\n
<\/td>\nFCC<\/td>\nFCA<\/td>\nFERC<\/td>\nFMC<\/td>\nNRC<\/td>\nFDIC<\/td>\nCPSC<\/td>\nNTSB<\/td>\nMSPB<\/td>\n<\/tr>\n
PAS position?<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\nX<\/td>\nX<\/td>\nX<\/td>\nX<\/td>\n<\/tr>\n
Appointment and Supervision<\/td>\nS<\/td>\nS<\/td>\nS<\/td>\nS<\/td>\nS<\/td>\n<\/td>\nS<\/td>\nS<\/td>\nS<\/td>\n<\/tr>\n
Distribution of Business<\/td>\n<\/td>\n<\/td>\nS<\/td>\nS<\/td>\nS<\/td>\n<\/td>\nS<\/td>\nS<\/td>\n<\/td>\n<\/tr>\n
Expenditure of Funds<\/td>\n<\/td>\n<\/td>\n<\/td>\nS<\/td>\nS<\/td>\n<\/td>\nS<\/td>\nS<\/td>\n<\/td>\n<\/tr>\n
Represent the Agency<\/td>\nS<\/td>\nS<\/td>\n<\/td>\nS<\/td>\nS<\/td>\nS<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
Debt or Claim Collection\/Settlement Authority<\/td>\nR<\/td>\nR<\/td>\n<\/td>\nR<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\nR<\/td>\n<\/tr>\n
Production of Documents<\/td>\n<\/td>\nR<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
Appeals<\/td>\n<\/td>\n<\/td>\nR<\/td>\nR<\/td>\n<\/td>\n<\/td>\nR<\/td>\n<\/td>\nR<\/td>\n<\/tr>\n
Preside at Meetings<\/td>\nS<\/td>\n<\/td>\nS<\/td>\nR<\/td>\nS<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

S = Statutory<\/p>\n

R = Regulatory<\/p>\n

 <\/p>\n

* B.B.A., Baruch College, 2016; J.D., Harvard Law School, 2019. The author would like to thank Intisar Rabb, Professor of Law at Harvard Law School, and Shalev Roisman, Associate Professor of Law at James E. Rogers College of Law, for helpful comments and conversations on this Article. The author also thanks the staff and editors at the Harvard Journal on Legislation<\/em> for their extremely careful and thoughtful edits to the Article.<\/p>\n

[1] Ajit Pai FCC Chairman<\/em>, Fed. Commc\u2019n Comm\u2019n, https:\/\/www.fcc.gov\/about\/leadership\/ajit-pai [https:\/\/perma.cc\/ER2L-GUL2].<\/p>\n

[2] Id.<\/em><\/p>\n

[3] See infra <\/em>Table 1; see also infra <\/em>Part I.<\/p>\n

[4] See also<\/em> NLRB v. SW Gen., Inc., 137 S. Ct. 929, 935 (2017) (\u201cThe Senate’s advice and consent power is a critical \u2018structural safeguard[] of the constitutional scheme.\u2019\u201d (quoting Edmond v. United States, 520 U.S. 651, 659 (1997))).<\/p>\n

[5] For example, the Securities and Exchange Commission chairperson was appointed and confirmed as both a Commissioner and the chairperson even though the statute does not mandate it. \u00a0See Chairman Jay Clayton<\/em>, U.S. Sec. & Exch. Comm\u2019n, https:\/\/www.sec.gov\/biography\/jay-clayton [https:\/\/perma.cc\/CQM5-FNRS]; see also <\/em>Reorganization Plan No. 10 of 1950 \u00a7\u00a03, 64 Stat. 1265.<\/p>\n

[6] See generally<\/em> 138 S. Ct. 2044 (2018).<\/p>\n

[7] See <\/em>Complaint for Declaratory and Injunctive Relief, Blumenthal v. Whitaker, No. 1:18-cv-02664 (D.D.C. Nov. 19, 2018).<\/p>\n

[8] 279 F. Supp. 3d 307 (D.D.C. 2018).<\/p>\n

[9] Id.<\/em> at 311.<\/p>\n

[10] 28 U.S.C. \u00a7\u00a0504 (2018) (Deputy Attorney General); 29 U.S.C. \u00a7\u00a0552 (2018) (Deputy Secretary of Labor); 20 U.S.C. \u00a7\u00a03412(a) (2018) (Deputy Secretary of Education).<\/p>\n

[11] Current Attorney General William P. Barr served as Deputy Attorney General from 1990 to 1991 before his first tenure as Attorney General from 1991 to 1993. \u00a0See Attorney General William Pelham Barr<\/em>, U.S. Dep\u2019t of Justice, https:\/\/www.justice.gov\/ag\/bio\/barr-william-pelham [https:\/\/perma.cc\/LYW7-ANTX]. \u00a0Once he was elevated, then-Deputy Attorney General Barr had to testify at his Senate confirmation hearings. \u00a0See <\/em>Ronald J. Ostrow, Barr Opposed to Roe vs. Wade Decision : Justice Dept.: The attorney general-designate tells Senate panel right to privacy does not extend to obtaining an abortion<\/em>, L.A. Times (Nov. 14, 1991), https:\/\/www.latimes.com\/archives\/la-xpm-1991-11-14-mn-1917-story.html [https:\/\/perma.cc\/K5ND-CR8Z].<\/p>\n

[12] Since the Founding of the country, there have been five incumbent associate justices who went through a separate confirmation hearing for the Chief Justice position. \u00a0They include Justices William Cushing, Edward White, Harlan Stone, Abe Fortas, and William Rehnquist. See Supreme Court Nominations: Present-1789<\/em>, U.S. Senate, https:\/\/www.senate.gov\/pagelayout\/reference\/nominations\/Nominations.htm#10 [https:\/\/perma.cc\/FCB6-NUT6].<\/p>\n

[13] Infra<\/em> Table 1. \u00a0Members include the other board members or commissioners of an agency.<\/p>\n

[14] Arguably, from statutory and regulatory sources, the FCC chairperson wields more power than the FDIC chairperson. \u00a0See infra <\/em>Table 4.<\/p>\n

[15] See <\/em>Kirti Datla & Richard L. Revesz, Deconstructing Independent Agencies (and Executive Agencies)<\/em>, 98 Cornell L. Rev. 769, 797 (2013); see also <\/em>Marshall J. Breger & Gary J. Edles, Established by Practice: The Theory and Operation of Independent Federal Agencies<\/em>, 52 Admin. L. Rev. 1111, 1173 (2000).<\/p>\n

[16] See, e.g.<\/em>, Lucia v. SEC, 138 S. Ct. 2044, 2053\u201354 (2018) (invalidating the appointment of SEC Administrative Law Judges); Freytag v. Comm\u2019r, 501 U.S. 868, 880 (1991) (\u201cThe structural interests protected by the Appointments Clause are not those of any one branch of Government but of the entire Republic.\u201d); Buckley v. Valeo, 424 U.S. 1, 143 (1976) (invalidating the Federal Election Commission\u2019s structure under the Appointments Clause); see<\/em> also<\/em> NLRB v. SW Gen., Inc., 137 S. Ct. 929, 948 (2017) (Thomas, J., concurring) (recognizing that the \u201cAppointments Clause is not an empty formality\u201d even though the \u201cburdens on governmental processes\u201d may \u201coften seem clumsy, inefficient, even unworkable\u201d (quoting INS v. Chadha, 462 U.S. 919, 959 (1983))).<\/p>\n

[17] See Chairman Jay Clayton<\/em>, U.S. Sec. & Exch. Comm\u2019n, https:\/\/www.sec.gov\/biography\/jay-clayton [https:\/\/perma.cc\/A5H9-F8GL]; see also <\/em>Reorganization Plan No. 10 of 1950 \u00a7\u00a03, 64 Stat. 1265.<\/p>\n

[18] Chief Justice Roberts was originally nominated to replace Justice O\u2019Connor, but when then-Chief Justice Rehnquist died, Roberts\u2019 nomination was withdrawn and he was subsequently renominated for the Chief Justice position. \u00a0See<\/em> Barry J. McMillion and Denis S. Rutkus, Supreme Court Nominations, 1789 to 2017: Actions by the Senate, the Judiciary Committee, and the President, Cong. Res. Serv. 11 n.36 (2018), https:\/\/fas.org\/sgp\/crs\/misc\/RL33225.pdf [https:\/\/perma.cc\/XQN4-H565]. \u00a0If he had first been appointed as Associate Justice, a hypothetical Justice Roberts would have needed to go through \u201cadvice and consent\u201d again for the Chief Justiceship. \u00a0See infra<\/em> Part I(a).<\/p>\n

[19] See <\/em>U.S. Const. art. I, \u00a7\u00a03, cl. 6 (\u201cWhen the President of the United States is tried, the Chief Justice shall preside\u201d); 28 U.S.C. \u00a7\u00a0601 (2018).<\/p>\n

[20] James E. Pfander, The Chief Justice, the Appointment of Inferior Officers, and the “Court of Law” Requirement<\/em>, 107 Nw. U. L. Rev. 1125, 1132\u201334 (2013).<\/p>\n

[21] See infra <\/em>Part III; see also infra <\/em>Table 4.<\/p>\n

[22] See <\/em>Myers v. United States, 272 U.S. 52, 136 (1926) (explaining why the decisions of the First Congress \u201cmust necessarily constitute a precedent\u201d).<\/p>\n

[23] Paul S. Dempsey, The Rise and Fall of the Interstate Commerce Commission: The Tortuous Path from Regulation to Deregulation of America\u2019s Infrastructure<\/em>, 95 Marq. L. Rev. 1151, 1151\u201352 (2012).<\/p>\n

[24] Clarence A. Miller, Interstate Commerce Commissioners:<\/em> The First Fifty Years: 1887 \u2013 1937<\/em>, 5 Geo. Wash. L. Rev. 580, 594 (1937).<\/p>\n

[25] Id<\/em>.<\/p>\n

[26] Id<\/em>. at 589\u201390.<\/p>\n

[27] Id<\/em>. at 590.<\/p>\n

[28] See <\/em>Robert C. Fellmeth, The Interstate Commerce Omission: The Public Interest and the ICC 20\u201339, 311 (1970); see also <\/em>Dempsey, supra <\/em>note 23, at 1174.<\/p>\n

[29] Fellmeth, supra<\/em> note 28, at 311.<\/p>\n

[30] Id.<\/em><\/p>\n

[31] See <\/em>Susan B. Foote, Independent Agencies Under Attack: A Skeptical View of the Importance of Debate<\/em>, 1988 Duke L.J. 223, 223 n.5.<\/p>\n

[32] See <\/em>Dempsey, supra <\/em>note 23, at 1182\u201383 (noting that independent agencies were still under the influence of the \u201crevolving door\u201d).<\/p>\n

[33] ICC Termination Act of 1995, Pub. L. No. 104-88, 109 Stat. 803. At that point, the ICC was showing elements of \u201cde facto deregulation and de jure regulation\u201d to the dissatisfaction of Congress. Dempsey, supra<\/em> note 23, at 1185.<\/p>\n

[34] Henry B. Hogue, Presidential Reorganization Authority: History, Recent Initiatives, and Options for Congress, Cong. Res. Serv. 18 (2012), https:\/\/fas.org\/sgp\/crs\/misc\/R42852.pdf [https:\/\/perma.cc\/7RBX-WQ56].<\/p>\n

[35] S. Rep. No. 80-344, at 4 (1947).<\/p>\n

[36] Act of Jul. 7, 1947, Pub. L. No. 162-80, 61 Stat. 246 (codified in scattered sections of 5 U.S.C.); see also<\/em> John W. Lederle, The Hoover Commission Reports on Federal Reorganization<\/em>, 33 Marq. L. Rev. 89, 91 (1949).<\/p>\n

[37] For the establishment of the Commission on Organization of the Executive Branch of the Government, 61 Stat. 246, 248 \u00a7\u00a010 (1947).<\/p>\n

[38] Lederle, supra <\/em>note 36, at 91.<\/p>\n

[39] Breger & Edles, supra<\/em> note 15, at 1166; see also <\/em>Hogue, supra <\/em>note 34, at 19; Commission on Organization of the Executive Branch of the Government, The Independent Regulatory Commissions 5\u20136 (1949) (\u201cAdministration by a plural executive is universally regarded as inefficient.\u00a0.\u00a0.\u00a0.\u00a0[T]hose cases where administration has been distinctly superior are cases where the administrative as distinguished from the regulatory duties have been vested in the chairman.\u201d).<\/p>\n

[40] Daniel E. Ho, Measuring Agency Preferences: Experts, Voting, and the Power of Chairs<\/em>, 59 DePaul L. Rev. 333, 359 (2010).<\/p>\n

[41] Breger & Edles, supra<\/em> note 15, at 1166.<\/p>\n

[42] See <\/em>Ho, supra <\/em>note 40, at 359. \u00a0Professor Ho notes that at that time the President already had the power to designate the chairs of the FCC and NLRB. Id<\/em>.<\/p>\n

[43] Id<\/em>.; see also Senate Kills ICC and FCC Revamping<\/em>, Wash. Post, May 18, 1950, at 1. \u00a0For a more detailed look at the Senate\u2019s consideration of the Reorganization Plans, see Authority of the President to Designate Another Member as Chairman of the Federal Power Commission<\/em>, 1 Op. O.L.C. Supp. 206, 234\u201336 (1961).<\/p>\n

[44] Ho, supra<\/em> note 40, at 359\u201360; see also Senate Upholds Kennedy Plans for the F.T.C. and the C.A.B.<\/em>, N.Y. Times, June 30, 1961, at 10.<\/p>\n

[45] Ho, supra<\/em> note 40, at 360.<\/p>\n

[46] Id<\/em>.; see also infra <\/em>Part III.<\/p>\n

[47] Although the Constitution does not mention independent agencies, these are among the few sections that talk about executive Departments.<\/p>\n

[48] U.S. Const. art. II, \u00a7\u00a02, cl. 2 (emphasis added).<\/p>\n

[49] Id.<\/em> \u00a7\u00a02, cl. 1 (emphasis added).<\/p>\n

[50] Id.<\/em> amend. XXV, \u00a7\u00a04 (emphasis added).<\/p>\n

[51] 99 U.S. 508, 511 (1879). \u00a0The Twenty-Fifth Amendment was not adopted then.<\/p>\n

[52] 501 U.S. 868, 886\u201387 (1991).<\/p>\n

[53] See id<\/em>. at 887; see also<\/em> H.R. Rep. No. 203 at 3, 89th Cong., 1st Sess. (1965) (\u201c[O]nly officials of Cabinet rank should participate in the decision as to whether presidential inability exists\u00a0.\u00a0.\u00a0.\u00a0. The intent\u00a0.\u00a0.\u00a0.\u00a0is that the Presidential appointees who direct the 10 executive departments named in 5 U. S. C. 1 [now codified as \u00a7\u00a0101], or any executive department established in the future, generally considered to comprise the President’s Cabinet, would participate\u00a0.\u00a0.\u00a0.\u00a0in determining inability.\u201d). \u00a0President Trump\u2019s Cabinet includes the Vice President, heads of the fifteen executive departments, the White House Chief of Staff, and heads of the Environmental Protection Agency, Office of Management and Budget, United States Trade Representative, Central Intelligence Agency, Office of the Director of National Intelligence, and Small Business Administration. \u00a0The Cabinet<\/em>, The White House, https:\/\/www.whitehouse.gov\/the-trump-administration\/the-cabinet\/ [https:\/\/perma.cc\/AVV8-WV96].<\/p>\n

[54] Freytag<\/em>, 501 U.S. at 886. \u00a0The Freytag<\/em> Court also relied on Burnap v. United States<\/em>, 252 U.S. 512, 515 (1920), to support the view that \u201chead of a Department means . . . the Secretary in charge of a great division of the executive branch of the Government, like the State, Treasury, and War, who is a member of the Cabinet.\u201d\u00a0 501 U.S. at 886.<\/p>\n

[55] Freytag<\/em>, 501 U.S. at 916 (Scalia, J., concurring). \u00a0Justices O\u2019Connor, Kennedy, and Souter also joined in the concurrence.<\/p>\n

[56] Id<\/em>. at 918.<\/p>\n

[57] 561 U.S. 477 (2010).<\/p>\n

[58] Id.<\/em> at 511.<\/p>\n

[59] Id<\/em>. at 511 n.11.<\/p>\n

[60] Id<\/em>. at 512\u201313.<\/p>\n

[61] Id.<\/em> at 512 (citing Reorganization Plan No. 10 of 1950, \u00a7\u00a01(b)(1)).<\/p>\n

[62] In Lucia v. SEC<\/em>, the petitioner successfully challenged his administrative proceeding because the ALJ was not properly appointed. \u00a0See<\/em> 138 S. Ct. 2044, 2055\u201356 (2018). \u00a0In NLRB v. Noel Canning<\/em>, the respondents successfully challenged an NLRB order because three members were not properly appointed under the Recess Appointments Clause, a qualified exception to the Appointments Clause. \u00a0See <\/em>573 U.S. 513 (2014). \u00a0After Matthew Whitaker was appointed Acting Attorney General, a series of lawsuits were filed by different parties affected by his actions contending that the appointment was not constitutional. \u00a0Victoria Clark, What\u2019s Happening in the Litigation Over Matthew Whitaker\u2019s Appointment?<\/em>, Lawfare (Dec. 7, 2018), https:\/\/www.lawfareblog.com\/whats-happening-litigation-over-matthew-whitakers-appointment [https:\/\/perma.cc\/QRL2-9A52].<\/p>\n

[63] Buckley v. Valeo, 424 U.S. 1, 126 n.162 (1976).<\/p>\n

[64] See infra <\/em>Part III(a).<\/p>\n

[65] United States v. Germaine, 99 U.S. 508, 511 (1878); United States v. Hartwell, 73 U.S. 385, 393 (1867). \u00a0In both Hartwell<\/em> and Germaine<\/em>, the Court defined \u201cofficer\u201d under the respective statutes.<\/p>\n

[66] Germaine<\/em>, 99 U.S. at 511\u201312.<\/p>\n

[67] Buckley<\/em>, 424 U.S. at 125.<\/p>\n

[68] Id<\/em>. at 126.<\/p>\n

[69] Id<\/em>. at 126 n.162.<\/p>\n

[70] 138 S. Ct. 2044, 2051 (2018).<\/p>\n

[71] Id. \u00a0<\/em>Both parties had agreed that the ALJs \u201chold a continuing office.\u201d\u00a0 Id.<\/em> at 2053.<\/p>\n

[72] Id. <\/em>at 2051\u201352. \u00a0One view of \u201csignificant authority\u201d is \u201c(i) the power to bind the government or private parties (ii) in her own name rather than in the name of a superior officer.\u201d\u00a0 Id.<\/em> (citations omitted). \u00a0Another view is \u201c\u2018the power to bind the government or third parties on significant matters\u2019 or to undertake other \u2018important and distinctively sovereign functions.\u2019\u201d\u00a0 Id.<\/em> (citations omitted).<\/p>\n

[73] Id.<\/em> at 2056 (Thomas, J., concurring); see also <\/em>Jennifer Mascott, Who Are \u201cOfficers of the United States\u201d?<\/em>, 70 Stan. L. Rev. 443, 564 (2018); NLRB v. SW Gen., Inc., 137 S. Ct. 929, 946 (2017) (Thomas, J., concurring).<\/p>\n

[74] Lucia<\/em>, 138 S. Ct. at 2065 (Sotomayor, J., dissenting).<\/p>\n

[75] Id.<\/em> at 2051.<\/p>\n

[76] Id.<\/em> at 2053.<\/p>\n

[77] See infra<\/em> Part III; see also<\/em> infra<\/em> notes 106, 130.<\/p>\n

[78] See infra<\/em> Part III(c).<\/p>\n

[79] U.S. Const. art. II, \u00a7\u00a02, cl. 2.<\/p>\n

[80] Id.<\/em>; see also <\/em>Buckley v. Valeo, 424 U.S. 1, 132 (1976).<\/p>\n

[81] U.S. Const. art. II, \u00a7\u00a02, cl. 2.<\/p>\n

[82] Edmond v. United States, 520 U.S. 651, 661 (1997).<\/p>\n

[83] See infra <\/em>Part III(e).<\/p>\n

[84] 487 U.S. 654 (1988).<\/p>\n

[85] Id<\/em>. at 671\u201372.<\/p>\n

[86] Id<\/em>.<\/p>\n

[87] Id<\/em>. at 719 (Scalia, J., dissenting).<\/p>\n

[88] Id<\/em>.<\/p>\n

[89] Id<\/em>.<\/p>\n

[90] 520 U.S. 651, 653 (1997).<\/p>\n

[91] Id<\/em>. at 661\u201362.<\/p>\n

[92] Id<\/em>. at 663.<\/p>\n

[93] Id<\/em>. at 664.<\/p>\n

[94] Id<\/em>. at 665.<\/p>\n

[95] 561 U.S. 477, 479 (2010).<\/p>\n

[96] Id<\/em>. at 510.<\/p>\n

[97] Id<\/em>.<\/p>\n

[98] Whether the Special Master for Troubled Asset Relief Program Executive Compensation is a Principal Officer Under the Appointments Clause<\/em>, 34 Op. O.L.C. 1, 1 (2010) [hereinafter Special Master<\/em>].<\/p>\n

[99] For a scholarly analysis of OLC, see Daphna Renan, The Law Presidents Make<\/em>, 103 Va. L. Rev. 805, 810 (2017) (\u201cRather than OLC supremacy, legal views are developed by a collection of administrative actors. OLC usually has a seat at the table. But it is no longer the decider.\u201d); Harold H. Koh, Protecting the Office of Legal Counsel from Itself<\/em>, 15 Cardozo L. Rev. 513, 514 (1993) (\u201cOLC has developed its own informal procedural norms both to protect its independence and to ensure that the Office will pursue what Professor McGinnis dubs a \u2018court-centered\u2019 or \u2018independent authority\u2019 model of government lawyering instead of the \u2018opportunistic\u2019 model of a private lawyer.\u201d (internal citations omitted)).<\/p>\n

[100] Special Master<\/em>, supra <\/em>note 98, at 10.<\/p>\n

[101] Id<\/em>. at 9.<\/p>\n

[102] Id<\/em>. at 8\u20139.<\/p>\n

[103] In re: Grand Jury Investigation, 916 F.3d 1047, 1052 (D.C. Cir. 2019).<\/p>\n

[104] Adrian Vermeule, Morrison v. Olson Is Bad Law<\/em>, Lawfare (June 9, 2017), https:\/\/www.lawfareblog.com\/morrison-v-olson-bad-law [https:\/\/perma.cc\/345M-ZPVM].<\/p>\n

[105] NLRB v. SW Gen., Inc., 137 S. Ct. 929, 947 n.2 (2017) (Thomas, J., concurring) (\u201cAlthough we did not explicitly overrule Morrison<\/em> in Edmond<\/em>, it is difficult to see how Morrison<\/em>\u2019s nebulous approach survived our opinion in Edmond<\/em>.\u201d).<\/p>\n

[106] See <\/em>Stephen G. Breyer, et. al, Administrative Law and Regulatory Policy 111 (8th ed. 2017).<\/p>\n

[107] See <\/em>Aurelius Inv., LLC v. Puerto Rico., 915 F.3d 838, 861 (1st Cir. 2019).<\/p>\n

[108] Aurelius Inv., LLC v. Puerto Rico, 139 S. Ct. 2736 (2019).<\/p>\n

[109] See infra<\/em> Part III(e).<\/p>\n

[110] Datla & Revesz, supra<\/em> note 15, at 796; see also<\/em> Rachel E. Barkow, Insulating Agencies: Avoiding Capture Through Institutional Design<\/em>, 89 Tex. L. Rev. 15, 38\u201339 (2010) (equating the chair\u2019s administrative responsibilities with policymaking); Breger & Edles, supra<\/em> note 15, at 1168 (same); Peter L. Strauss, The Place of\u00a0Agencies in Government: Separation of Powers and the Fourth Branch<\/em>, 84 Colum. L. Rev. 573, 590\u201391 (1984) (same).<\/p>\n

[111] See Authority of the President to Reassign the Chairmanship of the Federal Power Commission<\/em>, 1 Op. O.L.C. 206, 238\u201339 (1961). \u00a0But see <\/em>Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 512\u201313 (2010) (\u201c[W]e see no reason why a multimember body may not be the \u201cHea[d]\u201d of a \u201cDepartmen[t]\u201d that it governs.\u201d). \u00a0For the purposes of this Article, a \u201cboard member\u201d of an agency is synonymous with a \u201ccommissioner\u201d of a commission.<\/p>\n

[112] See <\/em>Ho, supra <\/em>note 40, at 358; Datla & Revesz, supra<\/em> note 15, at 796, 819, 820 (noting that chairs are removable at the will of the President and that there are political rewards for chairs).<\/p>\n

[113] See <\/em>Breger & Edles, supra<\/em> note 15, at 1164 (\u201cThere is no doubt that the chair of a multi-member agency is ordinarily its most dominant figure.\u201d); Breyer et. al, supra <\/em>note 106, at 147; see also <\/em>Glen O. Robinson, Independent Agencies: Form and Substance in Executive Prerogative<\/em>, 1988 Duke L.J. 238, 245.<\/p>\n

[114] See <\/em>Strauss, supra<\/em> note 110, at 591 (\u201cThese administrative responsibilities, corresponding to presidential responsibilities for the government as a whole, doubtless underlie Congress\u2019s general recognition of the President’s special claim to have his own choice as chairman.\u201d); Datla & Revesz, supra<\/em> note 15, at 797 (assuming that Congress can delegate the selection of a chair to the President alone or other members of the agency).<\/p>\n

[115] Many of the agencies used in the Tables were the same ones used by Datla and Revesz. See<\/em> Datla & Revesz, supra <\/em>note 15, at 793 (Multimember Structure Column of Table 3).<\/p>\n

[116] See<\/em> 46 U.S.C. \u00a7\u00a0301(c)(2)\u2013(3) (2018).<\/p>\n

[117] See <\/em>29 U.S.C. \u00a7\u00a0153(a) (2018) (\u201cThe President shall designate one member to serve as Chairman of the Board.\u201d).<\/p>\n

[118] 5 U.S.C. \u00a7\u00a07104(b) (2018).<\/p>\n

[119] 29 C.F.R. \u00a7\u00a02201.10(c) (2019) (allowing the OSHRC chair to decide a FOIA appeal); 49 C.F.R. \u00a7\u00a0800.22(b) (2019) (allowing the NTSB chair to delegate her functions to the Managing Director); 47 C.F.R. \u00a7\u00a00.211(d) (2018) (allowing the FCC chair to act \u201cupon tort claims directed against the Commission where the amount of damages does not exceed $5,000\u201d).<\/p>\n

[120] 29 C.F.R. \u00a7\u00a0102.119(f)(1)(iv) (2019) (allowing the NLRB chair to review the request of documents in a limited situation); 29 C.F.R. \u00a7\u00a0102.118(b) (2019) (allowing the NLRB chair or the Board to consent to testimony from a present or former employee where the knowledge came from their capacity).<\/p>\n

[121] Interview with Marshall B. Babson, former Member, NLRB (Nov. 29, 2018).<\/p>\n

[122] Id<\/em>.<\/p>\n

[123] Authority of the Chairman of the Defense Nuclear Facilities Safety Board to Disclose Performance Appraisals of Senior Executive Service Employees<\/em>, 39 Op. O.L.C. 1, 2 n.1 (2015) [hereinafter Defense Nuclear Facilities Safety Board<\/em>] (\u201cThe Board has agreed to be bound by our decision.\u201d); Division of Powers and Responsibilities Between the Chairperson of the Chemical Safety and Hazard Investigation Board and the Board as a Whole<\/em>, 24 Op. O.L.C. 102, 103 n.1 (2000) [hereinafter Division of Powers and Responsibilities<\/em>] (\u201cBoth have agreed to be bound by our opinion.\u201d).<\/p>\n

[124] Breger & Edles, supra<\/em> note 15, at 1176. \u00a0Although agencies are not required to solicit advice from OLC, they will seek advice if it \u201cotherwise might expose them to subsequent legal risk or embarrassment.\u201d\u00a0 Id.<\/em> at 1180 n.343. \u00a0For inter-agency disputes, see Jody Freeman & Jim Rossi, Agency Coordination in Shared Regulatory Space<\/em>, 125 Harv. L. Rev. 1131, 1176 (2012) (\u201cIn this way, OLC likely helps to resolve interagency conflicts on a regular basis by providing opinions, both formally and informally.\u201d).<\/p>\n

[125] Division of Powers and Responsibilities<\/em>, supra<\/em> note 123, at 107.<\/p>\n

[126] Id<\/em>. at 103.<\/p>\n

[127] Id<\/em>. at 105.<\/p>\n

[128] Id<\/em>. at 108.<\/p>\n

[129] Id<\/em>. \u00a0For an earlier analysis of the division of power between a chair and her board, see a 1974 opinion (and an amendment issued months later) by the Comptroller General dealing with the EEOC. \u00a0Breger & Edles, supra<\/em> note 15, at 1168\u201370.<\/p>\n

[130] Authority of the Chairman of the Defense Nuclear Facilities Safety Board to Disclose Performance Appraisals of Senior Executive Service Employees<\/em>, 39 Op. O.L.C. 1, 1 (2015).<\/p>\n

[131] Id<\/em>. at 2\u20133.<\/p>\n

[132] Id<\/em>. at 3 n.2.<\/p>\n

[133] William B. Gould, Labored Relations: Law, Politics, and the NLRB–A Memoir 52 (MIT Press 2001).<\/p>\n

[134] Robinson, supra<\/em> note 113, at 245 n.24; see also<\/em> Miles W. Kirkpatrick, Nineteenth Annual Antitrust Spring Dinner Address<\/em>, 40 Antitrust L.J. 328, 332 (1971) (former FTC chair observing that \u201c[m]anagement of the Commission, save for the appointment of the top policy making positions and policy decisions having to do with the allocation of major resources, is placed squarely in the Chairman\u201d).<\/p>\n

[135] Todd Garvey & Daniel J. Sheffner, Congress\u2019s Authority to Influence and Control Executive Branch Agencies, Cong. Res. Serv., at 4\u20135 (2018), https:\/\/fas.org\/sgp\/crs\/misc\/R45442.pdf [https:\/\/perma.cc\/3WKN-DUKE]; see generally<\/em> Jack M. Beermann, Congressional Administration<\/em>, 43 San Diego L. Rev. 61 (2006).<\/p>\n

[136] U.S. Gov\u2019t Policy & Supporting Positions, Staff of S. Comm. on Homeland Sec\u2019y & Governmental Affairs 114\u201326, 114th Cong. (2016) (\u201cPlum Book\u201d).<\/p>\n

[137] See<\/em> id<\/em>. at 162 (listing the FCA and FCC chairs as \u201cPAS\u201d appointments). \u00a0But see<\/em> id<\/em>. at 164 (not listing the position of chair for the FEC); id<\/em>. at 208 (same with EAC); id<\/em>. at 167 (listing the Mine Safety and Health Review Commission chair as a non-PAS appointment).<\/p>\n

[138] 5 U.S.C. \u00a7\u00a7\u00a05311\u20135318 (2018).<\/p>\n

[139] See <\/em>Plum Book, supra<\/em> note 136, at 147 (African Development Foundation); id.<\/em> at 152\u201353 (Corporation for National and Community Service).<\/p>\n

[140] Id.<\/em> at 178 (National Council on Disability); id.<\/em> at 211 (USPS); id.<\/em> at 168 (Federal Retirement Thrift Investment Board); id.<\/em> at 205 (TVA).<\/p>\n

[141] See infra <\/em>Table 3. <\/em>A chairperson\u2019s pay plan by no means serves as proxy for whether someone is a principal officer. \u00a0In Aurelius Inv., LLC v. Puerto Rico<\/em>, the First Circuit held that the Financial Oversight and Management Board Members were principal officers even though they did not receive compensation for their service. \u00a0915 F.3d 838, 861 (1st Cir. 2019), cert. granted<\/em>, 139 S. Ct. 2736 (2019); see also <\/em>49 U.S.C. \u00a7\u00a02121(h) (2018).<\/p>\n

[142] See <\/em>52 U.S.C. \u00a7\u00a7\u00a020923(c), 30106(a)(5) (2018).<\/p>\n

[143] See infra <\/em>Table 3. \u00a0Even the NLRB chair, a position with little statutory duties, is paid more than the individual board members. \u00a0Id. <\/em><\/p>\n

[144] 19 U.S.C. \u00a7\u00a01331(a)(2)(A)\u2013(B) (2018). \u00a0Both of these powers are still subject to approval by the other commissioners. \u00a0Id. \u00a0<\/em>However, it is worth noting that most of the ITC chairperson\u2019s statutory powers are only \u201csubject to disapproval by a majority vote,\u201d in stark contrast to other agency chairpersons. Id.<\/em> \u00a7\u00a01331(a)(1)(A)\u2013(C).<\/p>\n

[145] 10 C.F.R. \u00a7\u00a01.11(a) (2019); see also <\/em>Reorganization Plan No. 1 of 1980 \u00a7\u00a7\u00a01(b)(1)\u2013(2), 2(a), 3(a)\u2013(d), 94 Stat. 3585. \u00a0While this is beyond the scope of the Article, the chairperson\u2019s power to remove employees or officers who have \u201cgood cause\u201d protection is likely constitutional because the chairperson serves at the will of the President. See<\/em> Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 492 (2010) (\u201cWe hold that the dual for-cause limitations on the removal of Board members contravene the Constitution\u2019s separation of powers.\u201d). \u00a0Post-Free Enterprise Fund<\/em>, there is an incentive for a chairperson to be granted removal power.<\/p>\n

[146] 42 U.S.C. \u00a7\u00a07171(c) (2018) (\u201cThe [FERC] Chairman shall be responsible . . . with respect to . . . the procurement of services of experts and consultants in accordance with section 3109 of Title 5\u201d); see also <\/em>47 C.F.R. \u00a7\u00a00.211(a)\u2013(b) (2019). \u00a0As for \u201c[a]ctions of an important character or those which involve policy determinations . . . the Chairman will develop proposals for presentation to the Commission.\u201d\u00a0 Id.<\/em> \u00a7\u00a00.211(c). \u00a0Unfortunately, there is no information present that defines what counts as an action of \u201croutine character\u201d or \u201cnon-routine character.\u201d<\/p>\n

[147] See <\/em>Lucia v. SEC, 138 S. Ct. 2044, 2051 (2018).<\/p>\n

[148] See, e.g.<\/em>, 42 U.S.C. \u00a7\u00a07412(r)(6)(B) (2018) (\u201cThe Chairperson shall be the Chief Executive Officer of the [Chemical Safety and Hazard Investigation] Board and shall exercise the executive and administrative functions of the Board\u201d); 15 U.S.C. \u00a7\u00a02053(f)(1) (2018) (\u201cThe Chairman of the Commission shall be the principal executive officer of the [Consumer Product Safety] Commission, and he shall exercise all of the executive and administrative functions of the Commission\u201d); 46 U.S.C. \u00a7\u00a0301(b)(1) (2018) (\u201cThe Chairman is the chief executive and administrative officer of the [Federal Maritime] Commission\u201d); 5 U.S.C. \u00a7\u00a07104(b) (2018) (\u201cThe Chairman is the chief executive and administrative officer of the [Federal Labor Relations] Authority.\u201d).<\/p>\n

[149] See <\/em>42 U.S.C. \u00a7\u00a07171(c) (2018) (not using \u201cofficer\u201d to describe the FERC chairperson); 12 U.S.C. \u00a7\u00a01812(b)(1) (2018) (same with the FDIC chairperson); 49 U.C.C. \u00a7\u00a01301(c) (2018) (same with the Surface Transportation Board chairperson). \u00a0In Estes v. Department of the Treasury<\/em>, 219 F. Supp. 3d 17 (D.D.C. 2016), the government did not argue that the Fiscal Assistant Secretary was an employee; instead it went into the principal versus inferior officer analysis, id.<\/em> at 36\u201339. \u00a0Likewise, it would appear difficult to argue that the FERC chair is an employee, and it would make more sense to argue the principal versus inferior officer distinction.<\/p>\n

[150] Lucia<\/em>, 138 S. Ct. at 2051.<\/p>\n

[151] Compare<\/em> 47 U.S.C. \u00a7\u00a7\u00a0154(a), 155(c)(2) (2018) (listing the \u201c[specific] duties, salary, and means of appointment\u201d of the FCC chair) and 54 U.S.C. \u00a7\u00a7\u00a0304101(e), 304105(a),(c) (2018) (same with the chair of the Advisory Council on Historic Preservation),<\/em> with <\/em>42 U.S.C. \u00a7\u00a07412(r)(6)(B) (2018) (not listing specific duties, but only the \u201cmeans of appointment\u201d of the Chemical Safety and Hazard Investigation Board),<\/em> and<\/em> 42 U.S.C. \u00a7\u00a02000e-4(a) (2018) (only not listing the salary of the EEOC chair). The Executive Schedule, however, lists the pay levels of the agency chairs. 5 U.S.C. \u00a7\u00a7\u00a05311\u201317 (2018).<\/p>\n

[152] Buckley v. Valeo, 424 U.S. 1, 126 (1976).<\/p>\n

[153] There is some reason to doubt that the phrase only applies to statutes. In Lucia<\/em>, the Court referred to both statutes and regulations that governed ALJs. \u00a0See <\/em>Lucia<\/em>, 138 S. Ct. at 2053. As seen in Table 4 below, there are regulations that give chairpersons the power to collect claims or decide appeals, which could show further sign of \u201cexercising significant authority.\u201d\u00a0 See infra<\/em> Table 4; see also <\/em>Buckley<\/em>, 424 U.S. at 126.<\/p>\n

[154] Most appointments by the chairperson are subject to approval by the Board or Commission. \u00a0See<\/em> 47 U.S.C. \u00a7\u00a0155(e) (2018) (\u201cThe Commission shall have a Managing Director who shall be appointed by the Chairman subject to the approval of the Commission.\u201d).<\/p>\n

[155] 42 U.S.C. \u00a7\u00a07171(c) (2018) (\u201cThe [FERC] Chairman shall be responsible . . . with respect to . . . the procurement of services of experts and consultants in accordance with section 3109 of Title 5.\u201d); 19 U.S.C. \u00a7\u00a01331(a)(1)(A)(ii) (2018) (\u201c[T]he chairman of the [ITC] shall . . . procure the services of experts and consultants in accordance with the provisions of section 3109 of title 5.\u201d).<\/p>\n

[156] In Aurelius Inv., LLC v. Puerto Rico<\/em>, the First Circuit applied both the Morrison <\/em>and Edmond<\/em> tests. \u00a0915 F.3d 838, 861 (1st Cir. 2019), cert. granted<\/em>, 139 S. Ct. 2736 (2019).<\/p>\n

[157] 487 U.S. 654, 671\u201372 (1988).<\/p>\n

[158] Datla & Revesz, supra<\/em> note 15, at 819 (\u201cThe chair of a multimember agency usually holds the position of chair\u2014but not as a member of the agency\u2014at the will of the President.\u201d).<\/p>\n

[159] 520 U.S. 651, 663 (1997).<\/p>\n

[160] 561 U.S. 477, 510 (2010).<\/p>\n

[161] Special Master<\/em>, supra <\/em>note 98, at 10.<\/p>\n

[162] In re Grand Jury Investigation, 916 F.3d 1047, 1052 (D.C. Cir. 2019).<\/p>\n

[163] In Estes<\/em>, the court found that the plaintiffs erred in \u201cpresuming that all three of the Intercollegiate factors are to be weighed independently and equally.\u201d\u00a0 Estes v. U.S. Department of Treasury, 219 F. Supp. 3d 17, 38 (D.D.C. 2016); see also <\/em>Intercollegiate Broad. Sys., Inc. v. Copyright Royalty Bd., 684 F.3d 1332, 1338 (D.C. Cir. 2012) (summarizing the Edmond<\/em> factors).<\/p>\n

[164] Edmond<\/em>, 520 U.S. at 664.<\/p>\n

[165] Datla & Revesz, supra<\/em> note 15, at 796.<\/p>\n

[166] Many of the statutes that give chairs specific powers are \u201cfrequently subject to some form of agency approval.\u201d Breger & Edles, supra<\/em> note 15, at 1173.<\/p>\n

[167] Within the OLC opinion on the Defense Nuclear Facilities Safety Board, the memorandum cites to this reply by the agency\u2019s Office of General: \u201c[b]y stating that the Chairman exercises his administrative duties subject to the Board\u2019s policies, Congress maintained some level of Board control over the Chairman.\u201d\u00a0 Defense Nuclear Facilities Safety Board<\/em>, supra <\/em>note 123, at 4.<\/p>\n

[168] Ho, supra<\/em> note 40, at 360 (\u201cChairs may exercise power via alternative channels to voting, such as supervisory authority over staff, agenda control, oversight over expenditures, and the power to represent the Commission publicly.\u201d).<\/p>\n

[169] Estes<\/em>, 219 F. Supp. 3d at 38.\u00a0 Estes v. U.S. Department of Treasury, 219 F. Supp. 3d 17, 38 (D.D.C. 2016).<\/p>\n

[170] While beyond the scope of the Article, if a Board\u2019s control over its chair is greater than the President\u2019s control, then it could implicate the President\u2019s \u201ctake care\u201d obligations. \u00a0See<\/em> U.S. Const. art. II, \u00a7\u00a03 (\u201c[H]e shall take care that the laws be faithfully executed.\u201d).<\/p>\n

[171] See infra <\/em>Table 4.<\/p>\n

[172] It is not mandatory for inferior officers to be PAS positions. \u00a0See <\/em>U.S. Const. art. II, \u00a7\u00a02, cl. 2.<\/p>\n

[173] See <\/em>Datla & Revesz, supra<\/em> note 15, at 796 (\u201cChairs are typically seen as a presidential proxy because they usually hold their position as chair (but not as members of the agency) at the will of the President.\u201d). \u00a0While removal from the chairperson position is at will, the removal as a member from the agency is usually for \u201cgood cause.\u201d\u00a0 Id<\/em>. at 788.<\/p>\n

[174] Authority of the Chemical Safety and Hazard Investigation Board to Delegate Power<\/em>, 26 Op. O.L.C. 29, 31 (2002) (\u201cThe title would suggest a measure of the status and prestige associated with the position of chairperson.\u201d). But<\/em> see<\/em> Edmond v. United States, 520 U.S. 651, 662\u201363 (1997) (\u201cWhether one is an \u2018inferior\u2019 officer depends on whether he has a superior. It is not enough that other officers may be identified who formally maintain a higher rank, or possess responsibilities of a greater magnitude.\u201d).<\/p>\n

[175] See <\/em>Datla & Revesz, supra<\/em> note 15, at 787.<\/p>\n

[176] See Designating an Acting Attorney General<\/em>, 42 Op. O.L.C. 1, 9 (2018) [hereinafter Acting Attorney General<\/em>]; see also<\/em> Designation of Acting Director of the Office of Management and Budget<\/em>, 27 Op. O.L.C. 121 (2003).<\/p>\n

[177] Acting Attorney General<\/em>, supra <\/em>note 176, at 20 (quoting United States v. Eaton, 169 U.S. 331, 343 (1898)).<\/p>\n

[178] See <\/em>Ortiz v. United States, 138 S. Ct. 2165, 2170 (2018).<\/p>\n

[179] Id<\/em>. at 2171.<\/p>\n

[180] Id<\/em>. at 2183.<\/p>\n

[181] Id<\/em>. (\u201cAnd if we were ever to apply the [Appointments] Clause to dual office-holding, we would not start here.\u201d).<\/p>\n

[182] Id<\/em>.<\/p>\n

[183] Id<\/em>.<\/p>\n

[184] The Board or Commission can limit the chairperson\u2019s appointment power. \u00a0See <\/em>42 U.S.C. \u00a7\u00a05841(a)(4) (2018) (\u201cThe appointment by the Chairman of the heads of major administrative units under the Commission shall be subject to the approval of the Commission.\u201d). \u00a0A chairperson\u2019s power can also be limited by internal agency policies that the Board or Commission establishes. \u00a0See<\/em> Division of Powers and Responsibilities<\/em>, supra<\/em> note 123, at 108 (comparing the NTSB chairperson with the Chemical Safety and Hazard Investigation Board chairperson).<\/p>\n

[185] See <\/em>U.S. Const. art. II, \u00a7\u00a02, cl. 2.; 5 U.S.C. \u00a7\u00a7\u00a03345\u20133349 (2018).<\/p>\n

[186] Id.<\/em> \u00a7\u00a03345(a).<\/p>\n

[187] Id.<\/em> \u00a7\u00a03349(c)(1).<\/p>\n

[188] The FVRA also excludes commissioners of the FERC because FERC is organized part of the Department of Energy. \u00a0Id.<\/em> \u00a7\u00a03349(c)(1); Organizational Chart<\/em>, U.S. Dep\u2019t of Energy, https:\/\/www.energy.gov\/leadership\/organization-chart [https:\/\/perma.cc\/M666-AVK5].<\/p>\n

[189] See<\/em> Division of Powers and Responsibilities<\/em>, supra<\/em> note 123, at 102; Authority of the Chemical Safety and Hazard Investigation Board to Delegate Power<\/em>, supra <\/em>note 174, at 29.<\/p>\n

[190] See Authority of the Chemical Safety and Hazard Investigation Board to Delegate Power<\/em>, supra <\/em>note 174, at 29.<\/p>\n

[191] Id<\/em>. \u00a0The Board can name someone to exercise the functions of a chair, but they cannot name an acting chair. Id.<\/em> at 31. \u00a0Currently, the Chemical Safety and Hazard Investigation Board has an Interim Executive Authority who serves as de facto chair. \u00a0Interim Executive Authority Kristen Kulinowski<\/em>, The Chemical Safety & Hazard Investigation Bd., https:\/\/www.csb.gov\/about-the-csb\/board-members\/board-member-kristen-kulinowski-\/ [https:\/\/perma.cc\/H9DZ-EDZZ].<\/p>\n

[192] See Acting Attorney General<\/em>, supra <\/em>note 176, at 1. However, if the FVRA does not apply and there is a specific statute on successions, then the statute trumps the FVRA.<\/p>\n

[193] 279 F. Supp. 3d 307, 311\u201312 (D.D.C. 2018).<\/p>\n

[194] Id<\/em>. at 314\u201315.<\/p>\n

[195] Id<\/em>. at 312\u201313.<\/p>\n

[196] Id<\/em>. at 322 (internal quotation omitted).<\/p>\n

[197] Id<\/em>. at 323.<\/p>\n

[198] Id<\/em>.<\/p>\n

[199] Id<\/em>. at 324\u201329. The Court relied primarily on the first two principles.<\/p>\n

[200] Id<\/em>. at 324 (quoting J.E.M. Ag Supply, Inc. v. Pioneer Hi-Bred Int\u2019l, Inc.,\u00a0534 U.S. 124, 143\u201344 (2001)).<\/p>\n

[201] Id<\/em>.<\/p>\n

[202] Id<\/em>. (quoting Nat\u2019l Ass\u2019n of Home Builders v. Defs. of Wildlife,\u00a0551 U.S. 644, 662 (2007)).<\/p>\n

[203] Id<\/em>. at 327 (internal citations omitted); U.S. Const. art. II, \u00a7\u00a03.<\/p>\n

[204] See <\/em>English<\/em>, 279 F. Supp. 3d at 329.<\/p>\n

[205] 47 U.S.C. \u00a7\u00a0155(a) (2018) (emphasis added).<\/p>\n

[206] 42 U.S.C. \u00a7\u00a05841(a)(1) (2018) (emphasis added).<\/p>\n

[207] 12 U.S.C. \u00a7\u00a01812(b)(3) (2018) (emphasis added).<\/p>\n

[208] 5 U.S.C. \u00a7\u00a03345(a)(1)\u2013(3) (2018) provide options for who a President can appoint on an acting basis. Besides employees, the President can appoint anyone outside of the agency who has a PAS position to be acting chair. \u00a0That is exactly what happened in English v. Trump<\/em> because the President appointed the Office of Management and Budget Director to be acting chairperson of the Consumer Financial Protection Bureau.<\/p>\n

[209] See<\/em> generally <\/em>Federal Elections Campaign Act Amendments of 1976, Pub. L. No. 94\u2013283, 90 Stat. 475 (1976).<\/p>\n

[210] 42 U.S.C. \u00a7\u00a07412(r)(6)(B) (2018) (Chemical Safety and Hazard Investigation Board); 15 U.S.C. \u00a7\u00a02053(a) (2018) (CPSC); 12 U.S.C. \u00a7\u00a0242 (2018) (Federal Reserve); 5 U.S.C. \u00a7\u00a01203(a) (2018) (MSPB); 49 U.S.C. \u00a7\u00a01111(d) (2018) (NTSB); 5 U.S.C. \u00a7\u00a0593(b)(1) (2018) (ACUS); 54 U.S.C. \u00a7\u00a0304101(e)(1)(A) (2018) (Advisory Council on Historic Preservation); 7 U.S.C. \u00a7\u00a02(a)(2)(B) (2018) (CFTC); 12 U.S.C. \u00a7\u00a01812(b)(1) (2018) (FDIC); 45 U.S.C. \u00a7\u00a0231f(a) (2018) (Railroad Retirement Board).<\/p>\n

[211] 42 U.S.C. \u00a7\u00a01975(d)(2) (2018) (Commission on Civil Rights); 52 U.S.C. \u00a7\u00a020923(c)(1) (2018) (EAC); 52 U.S.C. \u00a7\u00a030106(a)(5) (2018) (FEC); 42 U.S.C. \u00a7\u00a07171(b)(1) (2018) (FERC); 46 U.S.C. \u00a7\u00a0301(c)(1) (2018) (FMC); 5 U.S.C. \u00a7\u00a07104(b) (2018) (FLRA); 15 U.S.C. \u00a7\u00a041 (2018) (FTC); 30 U.S.C. \u00a7\u00a0823(a) (2018) (Mine Safety and Health Review Commission); 29 U.S.C. \u00a7\u00a0153(a) (2018) (NLRB); 45 U.S.C. \u00a7\u00a0154 (2018) (NMB); 42 U.S.C. \u00a7\u00a05841(a)(1) (2018) (NRC); 29 U.S.C. \u00a7\u00a0661(a) (2018) (OSHRC); 39 U.S.C. \u00a7\u00a0502(d) (2018) (PRC); 49 U.S.C. \u00a7\u00a01301(c)(1) (2018) (STB); 42 U.S.C. \u00a7\u00a02286(c)(1) (2018) (Defense Nuclear Facilities Safety Board); 42 U.S.C. \u00a7\u00a02000e-4(a) (2018) (EEOC); 12 U.S.C. \u00a7\u00a02241(a) (2018) (FCA); 47 U.S.C. \u00a7\u00a0155(a) (2018) (FCC); 19 U.S.C. \u00a7\u00a01330(c)(1) (2018) (ITC); 12 U.S.C. \u00a7\u00a01752a(b)(1) (2018) (National Credit Union Administration); 29 U.S.C. \u00a7\u00a0780(c) (2018) (National Council on Disability); 15 U.S.C. \u00a7\u00a078d (2018) (SEC); 39 U.S.C. \u00a7\u00a0202(a)(1) (2018) (USPS); 22 U.S.C \u00a7\u00a0290h\u20135(a)(1) (2018) (African Development Foundation); 42 U.S.C \u00a7\u00a012651a(b)(1) (2018) (Corporation for National and Community Service); 5 U.S.C. \u00a7\u00a08472(b)(1) (2018) (Federal Retirement Thrift Investment Board); 16 U.S.C. \u00a7\u00a0831a(2) (2018) (TVA).<\/p>\n

[212] \u201cStatutory duties\u201d is a broad term, but the goal of this Table is to identify agency chairs that have specific statutory duties, no matter how significant, as opposed to broad or no language. \u00a0For example, the only reference to the chair of the Chemical Safety and Hazard Investigation Board is vague language that the chair \u201cshall be the Chief Executive Officer of the Board and shall exercise the executive and administrative functions of the Board.\u201d \u00a042 U.S.C. \u00a7\u00a07412(r)(6)(B) (2018). \u00a0Although regulations may provide more clarity, the fact that OLC only looked at the statute is instructive. See Division of Powers and Responsibilities Between the Chairperson of the Chemical Safety and Hazard Investigation Board and the Board as a Whole<\/em>, 24 Op. O.L.C. 102, 103 (2000).<\/p>\n

[213] 15 U.S.C. \u00a7\u00a02053(f) (2018) (\u0421PSC); 12 U.S.C. \u00a7\u00a7\u00a0225b(a), 347b(b)(2)(A)(ii) (2018) (Federal Reserve); 5 U.S.C. \u00a7\u00a01204(i)\u2013(j) (2018) (MSPB); 49 U.S.C. \u00a7\u00a01111(e) (2018) (NTSB); 5 U.S.C. \u00a7\u00a0595(c) (2018) (ACUS); 54 U.S.C. \u00a7\u00a0304105(a) (2018) (Advisory Council on Historic Preservation); 7 U.S.C. \u00a7\u00a02(a)(6) (CFTC); 12 U.S.C. \u00a7\u00a01831z(b) (2018) (FDIC).<\/p>\n

[214] 52 U.S.C. \u00a7\u00a030107(a)(3) (2018) (FEC); 42 U.S.C. \u00a7\u00a07171(c) (2018) (FERC); 46 U.S.C. \u00a7\u00a0301(c)(3) (2018) (FMC); Reorg. Plan No. 8 of 1950, \u00a71(a), 64 Stat. 1264, reprinted in <\/em>5 U.S.C. app. at 127 (2018) (FTC); 42 U.S.C. \u00a7\u00a05841(a)(1)\u2013(4) (2018) (NRC); 29 U.S.C. \u00a7\u00a0661(e) (2018) (OSHRC); 39 U.S.C. \u00a7\u00a0504(a) (2018) (PRC); 49 U.S.C. \u00a7\u00a01301(c)(2) (2018) (STB); 42 U.S.C. \u00a7\u00a7\u00a02286(c)(2)\u2013(3), (7)(A)\u2013(B) (2018) (Defense Nuclear Facilities Safety Board); 42 U.S.C. \u00a7\u00a02000e-4(a) (2018) (EEOC); 12 U.S.C. \u00a7\u00a02244(a)\u2013(c) (2018) (FCA); 47 U.S.C. \u00a7\u00a0155(a),(e) (2018) (FCC); 19 U.S.C. \u00a7\u00a01331(a) (2018) (ITC); 12 U.S.C. \u00a7\u00a01752a(e) (2018) (National Credit Union Administration);\u00a0 29 U.S.C. \u00a7\u00a0783(a)(1) (2018) (National Council on Disability); Reorg. Plan No. 10 of 1950, \u00a71(a), 64 Stat. 1264, reprinted in <\/em>5 U.S.C. app. at 127 (2018) (SEC); 42 U.S.C. \u00a7\u00a012651b(c)(1) (2018) (Corporation for National and Community Service); 5 U.S.C. \u00a7\u00a08476(a)(2) (2018) (Federal Retirement Thrift Investment Board);<\/p>\n

[215] 42 U.S.C. \u00a7\u00a07412(r)(6)(B) (2018) (Chemical Safety and Hazard Investigation Board); 45 U.S.C. \u00a7\u00a0231f(a) (2018) (Railroad Retirement Board).<\/p>\n

[216] 42 U.S.C. \u00a7\u00a01975(d)(2) (2018) (Commission on Civil Rights); 5 U.S.C. \u00a7\u00a07104(b) (2018) (FLRA); 30 U.S.C. \u00a7\u00a0823(b)(2) (2018) (Mine Safety and Health Review Commission); 29 U.S.C. \u00a7\u00a0153(a) (2018) (NLRB); 45 U.S.C. \u00a7\u00a0154 (2018) (NMB); 52 U.S.C. \u00a7\u00a020923(c)(1) (2018) (EAC); 39 U.S.C. \u00a7\u00a0202(a)(1) (2018) (USPS); 22 U.S.C \u00a7\u00a0290h\u20135(a)(1) (2018) (African Development Foundation); 16 U.S.C. \u00a7\u00a0831a(2) (2018) (TVA).<\/p>\n

[217] While the law explicitly changed the pay plan of the Chairperson of the Advisory Council on Historical Preservation, current Council Members are presumed to still be compensated under the PD pay plan. \u00a054 U.S.C. \u00a7\u00a0304101(e)(1)(D) (2018); Plum Book, at 147; id.<\/em> at 152 (CPSC, higher EX level than members); id.<\/em> at 168 (Federal Reserve, higher EX level than members); id.<\/em> at 175 (MSPB, higher EX level than members); id.<\/em> at 186 (NTSB, higher EX level than members); id.<\/em> at 147 (ACUS, only chair gets a salary); id.<\/em> at 151 (CFTC, higher EX level than members); id.<\/em> at 164 (FDIC, higher EX level than members); id.<\/em> at 195 (Railroad Retirement Board, higher EX level than members).<\/p>\n

[218] Id.<\/em> (FERC, higher EX level than members); id.<\/em> at 167 (FMC, higher EX level than members); id.<\/em> at 166 (FLRA, higher EX level than members); id.<\/em> at 168 (FTC, higher EX level than members); id.<\/em> at 167 (Mine Safety and Health Review Commission, higher EX level than members); id.<\/em> at 180 (NLRB, higher EX level than members); id.<\/em> at 181 (NMB, higher EX level than members); id.<\/em> at 187 (NRC, higher EX level than members); id.<\/em> at 189 (OSHRC, higher EX level than members); id.<\/em> at 194 (PRC, higher EX level than members); id.<\/em> at 126 (STB, higher EX level than members); id.<\/em> at 160 (EEOC, higher EX level than members); id.<\/em> at 162 (FCA, higher EX level than members); id.<\/em> (FCC, higher EX level than members); id.<\/em> at 210 (ITC, higher EX level than members); id.<\/em> at 178 (National Credit Union Administration, higher EX level than members); id.<\/em> at 195 (SEC, higher EX level than members).<\/p>\n

[219] Id.<\/em> at 150 (Chemical Safety and Hazard Investigation Board, same EX level as members).<\/p>\n

[220] Id.<\/em> (Commission on Civil Rights, same EX level as members); id.<\/em> at 208 (EAC, same EX level as members); id.<\/em> at 164 (FEC, same EX level as members); id.<\/em> at 154 (Defense Nuclear Facilities Safety Board, same EX level as members).<\/p>\n

[221] For the FCC Chairperson, see 47 U.S.C. \u00a7\u00a7\u00a0155(a),(e) (2018) and 47 C.F.R. \u00a7\u00a7\u00a00.211(d),(f) (2019). \u00a0For the FCA Chairperson, see 12 U.S.C. \u00a7\u00a7\u00a02244(a)(3), 2245(b), 2270 (2018) and 12 C.F.R. \u00a7\u00a7\u00a0602.23(b) (2019), 12 C.F.R. \u00a7\u00a0608.805(b)\u2013(c) (2019), 12 C.F.R. \u00a7\u00a0608.839(a) (2019). \u00a0For the FERC Chairperson, see 42 U.S.C. \u00a7\u00a7\u00a07171(c), (e) (2018) and 18 C.F.R. \u00a7\u00a7\u00a03b.224(e), 3b.221(e) (2019). \u00a0For the FMC Chairperson, see 46 U.S.C. \u00a7\u00a0301(c)(3)(A) (2018) and 46 C.F.R. \u00a7\u00a7\u00a0501.5(a), 503.67(c)\u2013(d), 505.3(a)\u2013(c) (2019). \u00a0For the NRC Chairperson, see 42 U.S.C. \u00a7\u00a05841(a)(1)\u2013(2) (2018). \u00a0For the FDIC Chairperson, see 12 U.S.C. \u00a7\u00a01831z(b) (2018). \u00a0For the CSPC Chairperson, see 15 U.S.C. \u00a7\u00a02053(f)(1) (2018) and 16 C.F.R. \u00a7\u00a7\u00a01014.8(c)\u2013(d), 1052.4(a) (2019). For the NTSB Chairperson, see 49 U.S.C. \u00a7\u00a01111(e) (2018). \u00a0For the MSPB Chairperson, see 5 U.S.C. \u00a7\u00a01204(j) (2018) and 5 C.F.R. \u00a7\u00a7\u00a01205.32(a), 1207.170(c)(6), 1215.32(a), 1215.7(a)(1), 1215.23 (2019).<\/p>\n","protected":false},"excerpt":{"rendered":"

Chairpointment: Rethinking the Appointment of Independent Agency Chairpersons Samuel Rubinstein* The modern independent agency chairperson possesses great executive and administrative […]<\/p>\n","protected":false},"author":101937,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"site-sidebar-layout":"default","site-content-layout":"","ast-site-content-layout":"default","site-content-style":"default","site-sidebar-style":"default","ast-global-header-display":"","ast-banner-title-visibility":"","ast-main-header-display":"","ast-hfb-above-header-display":"","ast-hfb-below-header-display":"","ast-hfb-mobile-header-display":"","site-post-title":"","ast-breadcrumbs-content":"","ast-featured-img":"","footer-sml-layout":"","ast-disable-related-posts":"","theme-transparent-header-meta":"","adv-header-id-meta":"","stick-header-meta":"","header-above-stick-meta":"","header-main-stick-meta":"","header-below-stick-meta":"","astra-migrate-meta-layouts":"default","ast-page-background-enabled":"default","ast-page-background-meta":{"desktop":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"ast-content-background-meta":{"desktop":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[28,30,3],"tags":[],"class_list":["post-3112","post","type-post","status-publish","format-standard","hentry","category-jol-online","category-jol-online-article","category-jol-online-notes"],"jetpack_featured_media_url":"","jetpack_shortlink":"https:\/\/wp.me\/peZQ7o-Oc","jetpack_sharing_enabled":true,"post_mailing_queue_ids":[],"_links":{"self":[{"href":"https:\/\/journals.law.harvard.edu\/jol\/wp-json\/wp\/v2\/posts\/3112","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/journals.law.harvard.edu\/jol\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.harvard.edu\/jol\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/jol\/wp-json\/wp\/v2\/users\/101937"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/jol\/wp-json\/wp\/v2\/comments?post=3112"}],"version-history":[{"count":0,"href":"https:\/\/journals.law.harvard.edu\/jol\/wp-json\/wp\/v2\/posts\/3112\/revisions"}],"wp:attachment":[{"href":"https:\/\/journals.law.harvard.edu\/jol\/wp-json\/wp\/v2\/media?parent=3112"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/jol\/wp-json\/wp\/v2\/categories?post=3112"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/jol\/wp-json\/wp\/v2\/tags?post=3112"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}