Throughout the history of the Republic, high-level government offices have often gone unfilled for periods of time.1 See Nina A. Mendelson, The Permissibility of Acting Officials: May the President Work Around Senate Confirmation?, 72 ADMIN. L. REV. 533, 578 (2020); see also Anne Joseph O’Connell, Actings, 120 COLUM. L. REV. 613, 638–41 (2020) (citing past research and statistical data on vacancy rates). Such vacancies occur for a variety of reasons—perhaps the President has failed to nominate a permanent officeholder, the Senate has stalled on a nominee’s confirmation vote, or the original confirmed officeholder has died, resigned, become sick, or been fired.2 See 5 U.S.C. § 3345(a) (specifying that the FVRA applies when covered Senate-confirmed officers “die. . ., resign. . ., or [are] otherwise unable to perform the functions and duties of [their] office.”); see generally Ben Miller-Gootnick, Note, Boundaries of the Federal Vacancies Reform Act, 56 HARV. J. ON LEGIS. 459 (2019) (contending that the FVRA does not apply to firings). Historically, regardless of the reason, extended vacancies for top positions requiring Presidential nomination and Senate confirmation (“PAS” positions) have been rare.3 See O’Connell, supra note 1, at 645, 648; see also Mendelson, supra note 1, at 582 (citing Thomas Berry, Is Matthew Whitaker’s Appointment Constitutional? An Examination of the Early Vacancies Acts, YALE J. ON REG.: NOTICE & COMMENT (2018), https://www.yalejreg.com/nc/is-matthew-whitakers-appointment-constitutional-an-examination-of-the-early-vacancies-acts-by-thomas-berry/ [https://perma.cc/NTL8-XD6F]) (“Berry elaborated further that periods of [acting] service [pre-1860], including for the ad interim appointments, generally were extremely short—on the order of days or weeks rather than months or years.”).
The Trump administration departed from this trend: it faced more vacancies for PAS positions—and filled them with longer-serving acting officials—than any prior administration for which data exists.4 See O’Connell, supra note 1, at 623, 643–57; see also ANNE JOSEPH O’CONNELL, ACTING AGENCY OFFICIALS AND DELEGATIONS OF AUTHORITY (2019), https://www.acus.gov/sites/default/files/documents/final-report-acting-agency-officials-12012019.pdf [https://perma.cc/D7CR-BX3Q] (“President Trump’s acting Secretaries have served longer, on average, than recent Administrations.”) [hereinafter O’CONNELL, ACTING AGENCY OFFICIALS]. Acting officials, who are not Senate-confirmed to the relevant position, occupied several high-level posts for years during the Trump administration.5 See BOB COHEN ET. AL, P’SHIP FOR PUB. SERV., THE REPLACEMENTS: WHY AND HOW “ACTING” OFFICIALS ARE MAKING SENATE CONFIRMATION OBSOLETE 7–8 (2020), https://ourpublicservice.org/wp-content/uploads/2020/09/The-Replacements-1.pdf [https://perma.cc/Z2LR-TUX8]. Some positions, such as the State Department Special Envoy for North Korea Human Rights Issues, remained perennially vacant.6Id.
Under the Federal Vacancies Reform Act of 1998 (“FVRA”), extremely long tenures of acting officials such as these must eventually come to an end. Pursuant to the FVRA, when the permissible period for acting service expires, the PAS position again becomes vacant, and “only the head of [the] agency may perform any function or duty of [the] office.”75 U.S.C. § 3348(b)(2) (2004). If someone other than the head of the agency performs the functions and duties of the again-vacant office, the resulting actions will be rendered void ab initio.85 U.S.C. § 3348(d)(1) (2004).
The FVRA defines the “functions and duties” of a covered office to encompass any responsibility that is established by statute or regulation and is “required . . . to be performed by the applicable officer (and only that officer).”95 U.S.C. § 3348(a) (2004). Most courts have interpreted this enforcement mechanism built into the FVRA to thereby apply only to the “exclusive” or “nondelegable” functions and duties of PAS offices.10See VALERIE C. BRANNON, CONG. RSCH. SERV., R44997, THE VACANCIES ACT: A LEGAL OVERVIEW (2021), at 6–7, 24–26, https://fas.org/sgp/crs/misc/R44997.pdf [https://perma.cc/6Q96-SSXF]. Courts define “nondelegable” duties as those which a statute or regulation describes with “affirmative language precluding delegation, such as ‘may only be delegated to,’ ‘may not [be] delegate[d],’ ‘may not be re[del]egated,’ ‘shall not be redelegated,’ or is ‘not subject to delegation.’”11Crawford-Hall v. United States, 394 F. Supp. 3d 1122, 1147 (C.D. Cal. 2019); see Stand Up for Cal.! v. U.S. Dep’t of Interior, 298 F. Supp. 3d 136, 143 (D.D.C. 2018).
Under the view that the FVRA’s enforcement mechanism only covers “nondelegable” functions and duties, the FVRA “sets no time limits . . . on redelegations of nonexclusive duties,” and actions performed by other officials pursuant to these delegations will not be rendered void ab initio.12Schaghticoke Tribal Nation v. Kempthorne, 587 F. Supp. 2d 389, 420–21 (D. Conn. 2008), aff’d, 587 F.3d 132 (2d Cir. 2009). The prevailing opinion thus maintains that the subdelegation of nonexclusive functions and duties from a vacant office, even if done in a comprehensive fashion, or if done for an exceedingly long period of time, would not violate the FVRA. An agency head could indefinitely subdelegate most or even all of the nonexclusive responsibilities of a vacant PAS office to other officials without violating the FVRA.
The FVRA also states that, aside from certain agency-specific order-of-succession statutes, the FVRA is the “exclusive means for temporarily authorizing an acting official to perform the functions and duties” of a covered PAS office.135 U.S.C. § 3347(a) (2004). Agency-specific order-of-succession statutes are beyond the scope of this Note. It is worth noting, however, that a number of agencies, including the Departments of Defense (“DOD”), Justice (“DOJ”), and Labor (“DOL”), have their own order-of-succession statutes. See O’CONNELL, ACTING AGENCY OFFICIALS, supra note 4, at 72–100 (listing agency-specific order-of-succession statutes in effect in 2019). Forty-one agency-specific statutes were in effect at the time of the FVRA’s enactment, and the FVRA did not alter the applicability of forty of these statutes. See S. Rep. No. 105-250, at 15–17 (1998). In recent years, courts have held that the FVRA and agency-specific order-of-succession statutes generally apply in tandem, and the President can choose between designating an acting official under the FVRA or under the agency-specific statute. See, e.g., Guedes v. Bureau of Alcohol, Tobacco, Firearms, & Explosives, 356 F. Supp. 3d 109, 143 (D.D.C. 2019) (“Agency-specific statutes . . . were expected to operate alongside the FVRA, not to displace it.”), aff’d, 920 F.3d 1 (D.C. Cir. 2019), judgment entered, 762 F. App’x 7 (D.C. Cir. 2019); see also Hooks v. Kitsap Tenant Support Servs., Inc., 816 F.3d 550, 556 (9th Cir. 2016) (holding that where the FVRA and an agency-specific statute apply, “the President is permitted to elect between [the] two statutory alternatives” to designate an acting officer); English v. Trump, 279 F. Supp. 3d 307, 319 (D.D.C. 2018) (“[T]he FVRA’s exclusivity provision makes clear that it was generally intended to apply alongside agency-specific statutes, rather than be displaced by them.”). Under the FVRA (5 U.S.C. § 3347(b) specifically), wide-ranging statutes that vest all of the functions of an agency in the agency head and authorize her to subdelegate most or all of those functions to subordinates at will are not exceptions to this exclusivity.145 U.S.C. § 3347(b) (2004). For a full history and substantive description of such statutes, see Stephen Migala, The Vacancies Act and its Anti-Ratification Provision (Nov. 29, 2019) (unpublished article) (on file with the Social Science Research Network), https://ssrn.com/abstract=3486687 [https://perma.cc/7SRJ-JCPL]. In other words, the use of these “housekeeping” statutes—or “vesting-and-delegation” statutes, as they are often called—to empower officials to perform the “functions and duties” of a vacant office would appear to violate the FVRA.15See Nina A. Mendelson, L.M.-M. v. Cuccinelli and the Illegality of Delegating Around Vacant Senate-Confirmed Offices, YALE J. ON REG.: NOTICE & COMMENT (2020), https://www.yalejreg.com/nc/l-m-m-v-cuccinelli-and-the-illegality-of-delegating-around-vacant-senate-confirmed-offices-by-nina-a-mendelson/ [https://perma.cc/XB34-2NLN]; see also Bullock v. Bureau of Land Mgmt., 489 F. Supp. 3d 1112, 1127 (D. Mont. 2020) (“The FVRA represents the only method by which a temporary designee can exercise the authority of a PAS office.”). But if the FVRA only covers nondelegable duties, then it only prohibits the use of vesting-and-delegation statutes to give these nondelegable responsibilities to stand-in officials beyond the FVRA’s timelines. However, outside of the vacancies context, nondelegable responsibilities are just that—nondelegable—and vesting-and-delegation statutes could not be invoked to reassign them anyway. Under this narrow reading of the FVRA, 5 U.S.C. § 3347(b) is meaningless, and interim officials can otherwise continue performing most and sometimes all responsibilities of a vacant office far past the FVRA’s time limits.16Justin C. Van Orsdol, Reforming Federal Vacancies, 54 GA. L. REV. 297, 311–313 (2019) (noting that agency heads’s liberal ability to subdelegate administrative functions constitutes a “major loophole” in the FVRA); see generally Mendelson, supra note 15.
Relying on this permissive reading of the FVRA, multiple Trump administration agency leaders used their vesting-and-delegation statutes to comprehensively subdelegate the duties of vacant offices to other officials, creating what Professor Nina Mendelson calls “a cadre of shadow acting officials.”17Mendelson, supra note 15 (“Under this in-the-weeds strategy, the agency head delegates around a vacancy in a Senate-confirmed post, allotting the full suite of responsibilities to an unconfirmed individual, someone typically ineligible to ‘act’ under the FVRA’s qualifications, time limits, or both.”); Mendelson, supra note 1, at 561. Sometimes these subdelegations occurred without clearly enforceable expiration dates, as demonstrated by the Secretary of the Interior’s transfer of the functions of the Directors of the Bureau of Land Management and National Park Service, among other offices.18See Dep’t of the Interior, Order No. 3345 AMEND. NO. 30, TEMP. REDELEGATION OF AUTH. FOR CERTAIN VACANT NON-CAREER SENATE-CONFIRMED POSITIONS (Jan. 2, 2020) [hereinafter Interior Dep’t Order 3345, Amend. 30], https://www.doi.gov/sites/doi.gov/files/elips/documents/so-3345-a30-5080.pdf [https://perma.cc/ZC8Y-ZBNJ]; see also Dep’t of the Interior, Order No. 3345 AMEND. NO. 32, TEMP. REDELEGATION OF AUTH. FOR CERTAIN VACANT NON-CAREER SENATE-CONFIRMED POSITIONS (May 5, 2020) [hereinafter Interior Dep’t Order 3345, Amend. 32], https://www.doi.gov/sites/doi.gov/files/elips/documents/so-3345-amend-32-signed-05.05.2020-508.pdf [https://perma.cc/ER6C-VCV7]; Dep’t of the Interior, Order No. 3381, TEMP. REDELEGATION OF AUTH. FOR THE DIRECTOR, NATIONAL PARK SERVICE (Aug. 10, 2020)) [hereinafter Interior Dep’t Order 3381], https://www.doi.gov/sites/doi.gov/files/elips/documents/so-3381-temp-del-dir-nps-508-compliant.pdf [https://perma.cc/2ZNR-9ULJ]. The expiration dates set forth in these memos are modifiable at will by the Secretary of Interior. Whether a court would enforce them is unclear, as subdelegation memos are internal agency documents that do not undergo notice and comment and do not establish binding rights or duties for third parties. See Timothy H. Gray, Note, Manual Override? Accardi, Skidmore, and the Legal Effect of the Social Security Administration’s Hallex Manual, 114 COLUM. L. REV. 949, 958–963 (2014) (noting jurisprudential uncertainty as to whether “nonlegislative rules intended for internal guidance” can be enforced against agencies under the Accardi principle). For an overview of all subdelegations made by the Trump administration’s Interior Department, see Mendelson, supra note 1, at 561–563. As shown by Department of Education delegations made by the Secretary of Education, sometimes Trump agencies’ subdelegation memos (which are often used to implement subdelegations) failed to provide for any expiration date at all.19See Memorandum from Betsy Devos, Sec’y of Educ., to Nathan Bailey, Special Assistant, Off. of Commc’ns. & Outreach, Delegation of Authority, Memo Ctrl. No. EA/EO/15 (June 5, 2017), https://www2.ed.gov/about/offices/list/om/docs/delegations/ea-eo-15.doc [https://perma.cc/326E-MD3G] [hereinafter Devos Memo EA/EO/15]; see also Interior Dep’t Order 3381, supra note 18. Some of these memos purported to comply with the FVRA and limit the subdelegation to nonexclusive functions and duties of the vacant office.20See, e.g., Interior Dep’t Order 3345, Amend. 32, supra note 18; see also Interior Dep’t Order 3345, Amend. 30, supra note 18; Interior Dep’t Order 3381, supra note 18. Some, however, did not.21See Devos Memo EA/EO/15, supra note 19. When subdelegating the full suite of powers from the Social Security Administrator’s office, Veterans’ Affairs Deputy Secretary’s office, Deputy Secretary of Homeland Security’s office, U.S. Customs and Immigration Services Director’s office, and Department of Homeland Security (“DHS”) Undersecretary for Science and Technology’s office, relevant agency heads did not even publish delegation memos or expressly invoke their housekeeping statutes.22See Memorandum from David Z. Seide, Senior Couns., Gov’t Accountability Project, to U.S. House of Representatives Comm. on Homeland Sec. et al. 1 (Feb. 1, 2021), https://int.nyt.com/data/documenttools/whistleblower-complaint-on-cuccinelli-and-ice-union-employment-agreements/1ace69fe8ae349e1/full.pdf [https://perma.cc/W4QB-Z84T] [hereinafter Seide Memo]; see also Mendelson, supra note 1, at 556, 563-64; Juliet Eilperin, Josh Dawsey & Seung Min Kim, It’s way too many: As vacancies pile up in Trump administration, senators grow concerned, WASH. POST (Feb. 4, 2019), https://www.washingtonpost.com/national/health-science/its-way-too-many-as-vacancies-pile-up-in-trump-administration-senators-grow-concerned/2019/02/03/c570eb94-24b2-11e9-ad53-824486280311_story.html [https://perma.cc/55QM-F4HY]; O’Connell, supra note 1, at 689 (discussing William Bryan’s performance of the duties of the Undersecretary for Science and Technology at DHS). Rather, online agency personnel descriptions and Federal Register notices signed by “Senior Official[s] Performing the Duties” or “exercising the authority” of the vacant position served as the only evidence of such delegations.23See Seide Memo, supra note 22, at 1; see also Mendelson, supra note 1, at 556, 563-64.
This Note argues against the practice of comprehensive subdelegations from PAS Offices and expresses skepticism towards all such subdelegations, including those involving nonexclusive functions.24Going forward, this Note will capitalize the terms “Office(s)” and “Officer(s)” when referring to office(s) and officer(s) in the constitutional sense. Specifically, Part III of this Note argues that, regardless of their legality under the FVRA, significant subdelegations from PAS Offices are constitutionally suspect. Section III.A examines a recent case before the U.S. District Court for the District of Montana that augurs increasing judicial concern over these types of subdelegations.25 See infra Section III.A (discussing Bullock v. U.S. Bureau Land Mgmt., 489 F. Supp. 3d 1112 (D. Mont. 2020)). Section III.B.1 then explains why significant subdelegations from PAS Offices are equivalent to appointments of “Officers of the United States” when made to government employees who otherwise perform low-level functions, such as factfinding and legal research for policy initiatives.26Cf. Buckley v. Valeo, 424 U.S. 1, 126 (1976) (“[A]ny appointee exercising significant authority pursuant to the laws of the United States is an ‘Officer of the United States.’”). Accepting this proposition, the Appointments Clause would prohibit all such subdelegations except as explicitly authorized by Congress. Following the argument in Section III.B.1 that large-scale subdelegations to lower-level staff are equivalent to appointments, Section III.B.2 assesses the extent to which vesting-and-delegation statutes in fact authorize agency heads to make these quasi-appointments. Vesting-and-delegation statutes are not clear on this matter. Section III.B.2 concludes by proposing a novel, functionalist interpretation of vesting-and-delegation statutes to only permit the subdelegation of individual, piecemeal functions from PAS Offices to career staff.
There are also reasons to be skeptical of transfers of authority from PAS Offices to non-PAS positions that are still significant enough to be considered constitutional “Offices.”27See infra Section III.B.1 (discussing Buckley, Lucia, and the question of which government officials are Officers of the United States subject to the Appointments Clause). Section III.C argues that a constitutionally faithful reading of vesting-and-delegation statutes would only authorize transfers of individual functions in this context as well. Thus vesting-and-delegation statutes should not be read to authorize large-scale subdelegations of PAS Offices’ functions to any non-PAS recipients, whether low-level employees or non-PAS Officers.28Cf. Mendelson, supra note 1 at 601 (suggesting that “the Constitution . . . should be understood to limit an agency head’s use of general delegation statutes to delegate a Senate-confirmed office’s responsibilities to an unconfirmed individual, since this practice amounts to creating a shadow acting official.”). In many ways, this Note seeks to flesh out Professor Mendelson’s proposition. By extension, vesting-and-delegation statutes certainly should not be read to authorize subdelegations that give a vacant Office’s full powers to another official.29Cf. Letter from Charles A. Bowker, Comptroller Gen. of the U.S., Gov’t Accountability Off., to Ted Stevens, Chairman of the Senate Comm. on Governmental Affs. Subcomm. on Civ. Serv., Post Off. & Gen. Servs. (June 4, 1985) (“Regardless of what the literal terms of a delegation statute provide, we are aware of no legal precedent, legislative history, or logic to support the assertion that an agency head can delegate all of his functions to a subordinate”) [hereinafter Comptroller General Letter of 1985]. Part IV offers additional policy reasons to limit large-scale subdelegations from PAS Offices, including vacant PAS Offices.
Before delving into subdelegations from PAS Offices and vesting-and-delegation statutes, this Note first discusses the Appointments Clause and the FVRA. Part II examines the FVRA to explain how Congress vested the President with the ability to authorize certain individuals to exercise the authority of a vacant Office.30U.S. CONST. art. II, § 2, cl. 2. This Note narrowly construes the FVRA provisions that outline the types of officials who may serve in an acting capacity. Specifically, Part II argues that only individuals confirmed by the Senate and designated as “first assistants” by statute qualify as “first assistants” under the FVRA. Assuming that the FVRA does not authorize agency heads to designate “first assistants” by regulation, the FVRA does not give agency heads any power equivalent to the appointment of inferior Officers.
Working in tandem, the Constitution and the FVRA could cabin the extent to which agency heads can reassign powers from vacant PAS Offices to other officials. Aside from limited powers under vesting-and-delegation statutes, agency heads should not be understood as empowered to drastically reconfigure their departments in response to pervasive vacancies. The President holds relatively more power to respond to vacancies, but of course, her power is limited by the qualification standards, timelines, and substantive scope of the FVRA.31This Note does not dwell much on the FVRA’s enforcement mechanism, as it has already been explored by scholars and recent courts. See L.M.-M v. Cuccinelli, 442 F. Supp. 3d 1, 34 (D.D.C. 2020) (holding that 5 U.S.C. § 3348 applies to actions taken in performance of an Office’s nondelegable functions and duties as well as an Office’s delegable but undelegated functions and duties); see also Migala, supra note 14 (arguing that 5 U.S.C. § 3348(d) applies to functions and duties for which the vacant Office is the only actor named in statute or regulation, regardless of whether those functions and duties are delegable under housekeeping statutes). Under the constitutional and statutory readings supported by this Note, the massive subdelegations made in Trump administration agencies were all legally suspect. Agencies rationalized these subdelegations as necessary to ensure efficient and continuous administrative functionality, but these transfers may nonetheless have been unlawful.32See, e.g., Interior Dep’t Order 3381, supra note 18 (announcing that this subdelegation was “intended to ensure uninterrupted management and execution of the duties of the Director, N.P.S., during the current vacancy in that position.”).
II. THE APPOINTMENTS CLAUSE AND ACTING SERVICE UNDER THE FVRA
Article II Section 2 of the Constitution states that 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.33U.S. CONST. art. II, § 2, cl. 2.
Article II Section 2 of the Constitution establishes that the highest-level officials (“principal” Officers), such as cabinet secretaries, must be nominated by the President and confirmed by the Senate.34See Buckley v. Valeo, 424 U.S. 1, 132 (1976). However, Congress may by statute authorize either the President alone, the courts, or agency heads (including cabinet secretaries) to unilaterally appoint lower-level (“inferior”) Officers.35See Morrison v. Olson, 487 U.S. 654, 671 (1988) (“The line between ‘inferior’ and ‘principal’ officers is one that is far from clear, and the Framers provided little guidance into where it should be drawn.”). It is often difficult to establish whether certain high-level but non-leading agency officials are principal or inferior Officers. In Morrison v. Olson, the Supreme Court held that characteristics of inferior Officers include supervision and removability by a superior executive official, limited statutory authority and jurisdiction, temporary tenure, and tenure determined by particular conditions.36Id. at 671–672. In Free Enterprise Fund, the Court seemed to characterize another important Appointments Clause case (Edmond) as standing for the idea that supervision and control by a superior executive branch official is both a necessary and sufficient condition for demonstrating that an official is an inferior Officer. See Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 510 (2010). However, whether Free Enterprise Fund should in fact be read as stating this is debatable and turns on the meaning and weight of the word “depends” as used by the Court. Cf. id. (“We held in Edmond, . . . that ‘[w]hether one is an “inferior” officer depends on whether he has a superior,’ and that ‘inferior officers’ are officers whose work is ‘directed and supervised at some level’ by other officers appointed by the President with the Senate’s consent.”) (emphasis added) (quoting Edmond v. United States, 520 U.S. 651, 662–663 (1997)); see also In re Grand Jury Investigation, 315 F. Supp. 3d 602, 626 n.11 (D.D.C. 2018), aff’d, 916 F.3d 1047 (D.C. Cir. 2019).
For 165 years, courts have considered an official temporarily and contingently performing a superior’s functions in full to be a “distinct” type of inferior Officer.37See Boyle v. United States, 1857 WL 4155 at *3 (Ct. Cl. Jan. 19, 1857) (“[T]he office of Secretary ad interim is a distinct and independent office in itself. It is not the office of Secretary . . . we do not consider that the mere fact that the duties of both offices are the same makes the offices themselves identical. The office of Secretary ad interim is temporary in its character, whilst that of Secretary is of a more permanent nature. The latter is emphatically the head of his department, whilst the former is only authorized to perform the duties of the Secretary in case of his death, absence from the seat of government, or sickness, until a successor be appointed, or until such absence or inability by sickness shall cease. The one may be considered inferior to the other.”). Then, in 1898, the Supreme Court in United States v. Eaton specifically assessed the constitutionality of acting officials in positions requiring Senate confirmation. The Court held that a “subordinate officer . . . charged with the performance of the duty of [a] superior for a limited time and under special and temporary conditions . . . is not thereby transformed into the superior and permanent official.”38United States v. Eaton, 169 U.S. 331, 343 (1898). Later courts describe Eaton as articulating “the basic principle that acting [officials] are not principal officers because of the temporary nature of the office.”39United States v. Smith, 962 F.3d 755, 765 (4th Cir. 2020). In other words, acting officials are their own class of inferior Officers, classified as such because of the limited duration and extraordinary circumstances of their tenure. Thus Congress can authorize the President, the courts, or heads of departments to provide for acting service on a temporary basis and subject to “special . . . conditions” of tenure.40Eaton, 169 U.S. at 343. However, absent such a Congressional grant, Senate confirmation remains the default form of appointment for inferior Officers, including those considered as such because they are performing a superior’s functions on a temporary basis.41See Williams v. Phillips, 360 F. Supp. 1363, 1371 (D.D.C. 1973) (“[I]n the absence of . . . legislation vesting a temporary power of appointment in the President, the constitutional process of nomination and confirmation must be followed.”); see generally, Brief for Cato Institute as Amicus Curiae Supporting Respondent, NLRB v. S.W. Gen., Inc., 137 S. Ct. 929 (2017) (No. 15-1251).
The strength of the statutory language required to establish that Congress “vested” appointments power in an Executive Branch actor remains a matter of debate. The D.C. District Court recently rejected the idea “that the Appointments Clause requires Congress to make a ‘clear and unambiguous statement’ when vesting an inferior Officer’s appointment” in agency heads.42In re Grand Jury Investigation, 315 F. Supp. 3d 602, at 658 (D.D.C. 2018). The Court in Edmond v. United States “held that a statute need ‘not specifically mention’” an Officer’s title in the context of a grant of appointments power in order “to authorize that [O]fficer’s appointment, so long as the relevant statute’s ‘plain language . . . appears to give the Secretary power to appoint them.’”43Id. at 659 (quoting Edmond v. United States, 520 U.S. 651, 656 (1997)). Therefore, although a statute discussing the powers of an agency head need not literally say, for example, that “appointment of the Deputy Assistant Secretary of Congressional and Intergovernmental Relations shall be vested in the Secretary” of the relevant department, there must be some clear language allowing the Secretary to put someone into that Office. Importantly, the statute at issue in Edmond authorized the “Secretary of Transportation [to] appoint and fix the pay of officers and employees of the Department of Transportation and [to] prescribe their duties and powers” (emphasis added).4449 U.S.C. § 323(a). See also 28 U.S.C. § 515(a) (authorizing “any attorney specially appointed by the Attorney General under law, . . . when specifically directed by the Attorney General, [to] conduct any kind of legal proceeding, civil or criminal, . . . which United States attorneys are authorized by law to conduct”) (emphasis added). The appointment of Special Counsels under this statutory provision is discussed infra pp. 27–30. The question remains as to what else beyond explicit use of the word “appoint”—for example “install,” “designate,” “empower to occupy the office of,” or “direct . . . to perform the functions and duties of”455 U.S.C. § 3345(a)(2)–(3). —would be clear enough to give over appointments-equivalent power to an Executive Branch or judicial actor.
The FVRA and its predecessors suggest that “direct . . . to perform the functions and duties of” or “direct . . . to perform the duties of” is clear enough language.465 U.S.C. § 3345(a) (2004); see also Act of July 23, 1868 (The Vacancies Act of 1868), ch. 227, 15 Stat. 168 (using the “direct to perform the duties of” formulation); Olympic Fed. Sav. & Loan Assoc. v. Office of Thrift Supervision, 732 F. Supp. 1183, 1194 (D.D.C. 1990) (providing the language of the Vacancies Act as it existed in 1990, which included the “direct . . . to perform the duties of” formulation). To note, the Vacancies Act of 1868, and the amended Vacancies Act of 1988, did not define “duties”; S. Rep. No. 100-317, at 30 (1988) (describing the 1988 amendments and not indicating any addition of a statutory definition of “duties”); S. Rep. No. 105-250, at 4 (1998) (noting that the 1998 amendments constituted the “first significant changes in the Vacancies Act since 1868.”). Vacancies legislation, including the FVRA of today, operates under the Eaton view that acting officials in PAS Offices are themselves a category of inferior Officer so long as they perform the functions and duties of the vacant PAS Office “for a limited time and under special and temporary conditions.”47United States v. Eaton, 169 U.S. 331, 343 (1898). Vacancies legislation can be understood, and in fact has been understood by Justice Clarence Thomas in his S.W. General concurrence, as Congress “vesting” the appointment of a particular class of inferior Officers (specific types of acting officials) in the President.48See E. Garrett West, Congressional Power Over Office Creation, 128 Yale L.J. 166, 215 (2018) (“The FVRA could be construed to ‘establish by Law’ a parallel set of temporary offices. Every office to which the FVRA applies, the argument goes, has a related, distinct, and temporary office that the President may appoint someone to fill.”); see also NLRB v. S.W. Gen., Inc., 137 S. Ct. 929, 946 (2017) (Thomas, J., concurring) (“When the President ‘direct[s]’ someone to serve as an officer pursuant to the FVRA, he is ‘appoint[ing]’ that person as an ‘officer of the United States’ within the meaning of the Appointments Clause.”). (alterations in original). Thus, the language in the FVRA, and in vacancies laws before it, empowering the President to direct certain individuals to perform certain tasks is enough to vest the President with a power equivalent to that of appointment.
The FVRA does not authorize the executive branch to appoint acting officials in any manner or under any circumstances. Congress only vested the President with a particular and cabined ability to appoint time-limited acting officials who meet particular qualifications.49See infra pp. 13–17 for a detailed argument as to why the FVRA does not vest any appointments power in the heads of departments. The FVRA stipulates three categories of officials who may serve in an acting capacity: (1) “first assistants” to the vacant Office50See S. Rep. No. 105–250, at 12 (1998) (“[‘First assistant’] has a long history of use in the Vacancies Act. As under current law, the term . . . is used to refer to the first assistant to the ‘officer.’ However, the practice under current law, which would be continued by this bill, is that the first assistant is actually the first assistant to the vacant office.”); see also 144 CONG. REC. S12822 (daily ed. Oct. 21, 1998) (statement of Sen. Fred Thompson). , (2) Senate confirmed individuals in other agencies, and (3) high-level “officers or employees” in the agency in which the vacancy arose.51S. Rep. No. 105-250, at 12–14 (1998); see also 5 U.S.C. § 3345. Under the FVRA, the “first assistant” assumes the acting position by default.525 U.S.C. § 3345(a)(1) (emphasis added) (The FVRA provides that in the event of a qualifying vacancy, “the first assistant to the office of such officer shall perform the functions and duties of the office temporarily in an acting capacity subject to the time limitations of section 3346.”); see also Bullock v. U.S. Bureau of Land Mgmt., 489 F. Supp. 3d 1112, 1125 (D. Mont. 2020) (“As a default rule, the first assistant to a vacant office shall become the acting officer.”). Congress then vested the President alone with the ability to override that default and elevate someone from categories (2) or (3) to the vacant position.535 U.S.C. § 3345(a)(2)-(3). Regardless of whether a first assistant or presidential alternative assumes the acting title, the FVRA authorizes acting service for 210 days following the beginning of a vacancy, with extensions during the pendency of a first or second nomination for a permanent occupant of the Office.545 U.S.C. § 3346.
The FVRA does not define the term “first assistant,” nor does it clearly state which branches can determine who qualifies as a “first assistant.”55See BRANNON, supra note 10, at 10. The FVRA’s Senate Report suggests that designation by statute or regulation would be sufficient, and also suggests that unconfirmed career officials can be first assistants.56See S. Rep. No. 105–250, at 12 (1998) (emphasis added) (“Certain officers have first assistants designated by statute . . . other departments and agencies have established first assistants by regulation. The Vacancies Act provides for the automatic performance of the functions and duties of the vacant office by the first assistant because such person is often a career official with knowledge of the office or a Senate-confirmed individual . . . .”) After the FVRA’s enactment, the Office of Legal Counsel (“OLC”) also advanced interpretations that a “first assistant” could be designated as such by statute or regulation.57Guidance on Application of Fed. Vacancies Reform Act of 1998, 23 Op. O.L.C. 60, 63 (1999), 1999 WL 1262050 (“At a minimum, a designation of a first assistant by statute, or by regulation where no statutory first assistant exists, should be adequate to establish a first assistant for purposes of the [FVRA].”). However, constitutional considerations, interpretive principles, the history of the term “first assistant” in vacancies legislation, and the textual context in which this term is found suggest it is better understood to mean a Senate confirmed top deputy designated as a first assistant to the relevant position by statute.
The legal context in which the FVRA arose supports the view that a first assistant must be designated by statute. In describing the bill before the full Senate, Senator Fred Thompson—Chairman of the Senate Government Affairs Committee and an FVRA cosponsor—explained that the FVRA would not modify “case law on the meaning of the term ‘first assistant.’”58144 CONG. REC. S12822 (daily ed. Oct. 21, 1998) (statement of Sen. Fred Thompson). Vacancies Act case law in 1998 explicitly acknowledged that the question of whether a first assistant could be designated by statute only, or also by regulation, was still unanswered.59See Doolin Sec. Sav. Bank, F.S.B. v. Off. of Thrift Supervision, 139 F.3d 203, 209 n.3 (D.C. Cir. 1998); see also Phyllis Mason, OTS Nondisclosure of First Assistant Status Under Vacancies Act ‘Inadvertent Error,’ DC Cir. Says, 4 ANDREWS’ BANK & LENDER LIAB. LITIG. REP, Sept. 16, 1998, at 3. Senator Thompson’s statement at least maintains this ambiguity, if not implicitly, endorses the position of other existing authorities at the time. Such authorities included a collection of OLC memos taking the statute-only position. From 1890 until the passage of the FVRA, OLC understood “first assistant” to refer to officials “whose appointment has been specifically provided for by statute.”60See Doolin, 139 F.3d at 209 n.3; see also Bureau Officers in the Navy Dep’t, 19 Op. Att’y Gen. 503, 504 (1890), 1890 WL 207; Head of Navy Dep’t & Chiefs of Bureaus—Vacancies—Temp. Appointments, 28 Op. Att’y Gen. 95 (1909), 1909 WL 451; Dep’t of Energy—Vacancies (42 U.S.C. § 7342)—Vacancy Act (5 U.S.C. §§ 3345–3349)—De Facto Officers, 2 Op. O.L.C. 113, 115 n.5 (1978), 1978 WL 15281. Based on a review of all OLC memos from 1978 to 1998, the OLC seems not to have changed its interpretation until after the passage of the FVRA.
The alternative reading—that “first assistant” status can be conferred upon officials by regulation without the FVRA explicitly permitting this—has concerning constitutional implications. Under this reading, agency heads could unilaterally determine that certain government positions have as built-in duties the conditional performance of a Senate-confirmed, superior Office’s duties. In so doing, the executive branch would be setting the parameters of, i.e., creating, an Office.61Cf. United States v. Hartwell, 73 U.S. 385, 385 (1867) (holding that a public “office . . . embraces the ideas of tenure, duration, emolument, and duties”). Indeed, since the FVRA is ambiguous about first assistant designation-by-regulation, executive branch officials in this instance would be creating Offices without a clear delegation of Office creation authority from Congress.62See generally West, supra note 48 (arguing that Congress has exclusive authority over Office creation). West does not discuss the possibility of Congress delegating its Office creation authority to the Executive Branch, but one might read the Excepting Clause to allow for this. Whether or not the Executive Branch has such inherent and independent authority to create Offices remains a subject of debate.63Id. In light of the FVRA’s silence and this looming constitutional question, the FVRA should not be read to accommodate the designation of first assistants by regulation.
Notwithstanding contrary suggestions in the FVRA Senate Report, there is a strong case for the reading that “first assistant” positions themselves are limited to Senate-confirmed positions. First, the textual reasons. The FVRA only permits acting service by (1) “first assistants,” (2) Senate-confirmed individuals in other agencies, and (3) high-level (at or above the GS-15 pay level) “officers or employees” in the agency in which the vacancy arose.645 U.S.C. § 3345. The FVRA stipulates these three categories in that order. Reading “first assistant” to include non-PAS positions raises questions about Congress’ choice to order the provisions of 5 U.S.C. § 3345 as it did. Under the broader reading of “first assistant,” the “first assistant” position is closer in kind to the positions described in 5 U.S.C. § 3345(a)(3)—career officials at the GS-15-level or higher in the agency experiencing a vacancy—than those described in 5 U.S.C. § 3345(a)(2). In fact, if “first assistants” included unconfirmed officials, the officials contemplated by the “first assistant” provision and by 5 U.S.C. § 3345(a)(2) would not share any characteristics.65They would not share the characteristic of being Senate-confirmed or the characteristic of being in the same agency. If “first assistants” included unconfirmed individuals, one might expect Congress to have placed the content of 5 U.S.C. § 3345(a)(3) before the content of 5 U.S.C. § 3345(a)(2) when it added 5 U.S.C. § 3345(a)(3) into vacancies legislation.66See Stephen Migala, The Vacancies Act and an Acting Attorney General, 36 GA. ST. U. L. REV. 699, 706 (2020) (noting that 5 U.S.C. § 3345(a)(3) was only added to the legislative framework governing vacancies in 1998). That way, the most dissimilar categories would be farthest apart. The fact that Congress ordered the provisions as it did suggests that the core characteristic implied in the “first assistant” provision is that of Senate-confirmation; under that reading, the provisions are ordered so that “like” is next to “like.”
Further, if “first assistants” were not limited to Senate-confirmed individuals, some officials could, in theory, automatically assume acting status despite failing to qualify under 5 U.S.C. § 3345(a)(3). At best, covering non-Senate-confirmed officials under the “first assistant” provision might render a portion of 5 U.S.C. § 3345(a)(3)’s coverage redundant. At worst, this reading would directly contradict the condition that unconfirmed individuals designated as acting officials under the FVRA’s alternative provisions must be employed in a position subject to the GS-15 pay level or higher.675 U.S.C. § 3345(a)(3).
The legislative context surrounding the FVRA strongly supports the reading that “first-assistants” must be officials already Senate-confirmed for a different position within the agency in question. First, 5 U.S.C. § 3345(a)(3) was a “last minute” amendment to the bill.68Migala, supra note 66, at 706. In the legislation as originally reported by the Senate Governmental Affairs Committee, only “first assistants” and Senate-confirmed officials in other agencies could serve as acting officials.69See S. Rep. No. 105–250, at 13 (1998); see also 144 CONG. REC. S12822 (daily ed. Oct. 21, 1998) (statement of Sen. Fred Thompson). The addition of 5 U.S.C. § 3345(a)(3) was the result of a compromise between the FVRA’s sponsors and the Clinton Administration.70See MORTON ROSENBERG, CONG. RSCH. SERV., THE NEW VACANCIES ACT: CONGRESS ACTS TO PROTECT THE SENATE’S CONFIRMATION PREROGATIVE (1998), at 1–2. However, the FVRA’s predecessor, the Vacancies Act as amended in 1988, only permitted either a “first assistant” or “a presidential designee who had previously received Senate confirmation” to serve in an acting capacity.71Id.; see also Application of Vacancy Act Limitations to Presidential Designation of an Acting Special Couns., 13 Op. O.L.C. 144, 144 (1989), 1989 WL 595866 (“The provisions of the Vacanc[ies] Act would, inter alia, require either that the ‘first assistant’ in the Office assume the duties of the Acting Special Counsel . . . or that the President detail to the position an official confirmed with the advice and consent of the Senate.”). In 1990, the D.C. District Court noted that the Vacancies Act “only allow[ed] confirmed officers to be designated as acting officials.”72Olympic Fed. Sav. & Loan Assoc. v. Off. of Thrift Supervision, 732 F. Supp. 1183, 1189 (D.D.C. 1990). The government agreed with the court’s assessment at that time.73Id. The Trump Administration OLC, however, contended that the Vacancies Act of 1868 authorized non-Senate-confirmed first assistants to assume the responsibilities of principal Offices on an acting basis. See Designating an Acting Att’y Gen., 42 Op. O.L.C. (2018), 2018 WL 6131923 (“The 1868 [Act] . . . preserved the possibility that a non-Senate-confirmed first assistant would serve as an acting head of an executive department.”). The OLC maintained that the FVRA authorized this arrangement as well. Id. The Olympic court also noted that “the Vacancies Act is generally strictly and narrowly interpreted.”74Olympic Fed. Sav. & Loan Assoc., 732 F. Supp. at 1189. There is no reason to think the FVRA should be read more liberally than its immediate predecessor. This all suggests that in adding 5 U.S.C. § 3345(a)(3), Congress made possible the designation of certain non-Senate-confirmed officials to acting service, because the longstanding “first assistant” provision did not, and does not, provide this option.
The legislative history of the FVRA indicates that “first assistant” is “a term of art that generally refers to the top deputy” to the PAS position in question.75144 CONG. REC. 22525. The pattern demonstrated by statutory designation of certain positions as “first assistants” may provide evidence of congressional intent with respect to “first assistants” generally, including the deputy officials who should serve as “first assistants” to PAS positions below the agency head. Specifically, Congress has consistently expressed its comfort with “[Senate]-confirmed deputy secretaries [serving] as acting Cabinet secretaries,” but appears to have never explicitly designated a non-PAS position as the “first assistant” to any PAS Office, agency head or otherwise.76Mendelson, supra note 1, at 603; see, e.g., 42 U.S.C. § 7132(a) (2018) (Department of Energy), 6 U.S.C. § 113 (2018) (designating the Deputy Secretary of Homeland Security as the first assistant to the Secretary, and the Under Secretary for Management as the first assistant to the Deputy Secretary), 7 U.S.C. § 2211 (2018) (Agriculture Department), 10 U.S.C. § 137a (2018) (DOD), and 26 U.S.C. § 503––508 (2018) (DOJ). No statutes designating a non-PAS Officer (i.e., a named Officer able to be appointed by the “President alone, . . . Courts of Law, or . . . Heads of Departments,” U.S. CONST. art. II, § 2, cl. 2), as a first assistant to a PAS Office were found upon review of the consolidated U.S. Code.
On a proper read of the FVRA, “first assistants” are only Senate-confirmed officials named as first assistants to a superior position by statute. Thus, the “first assistant” default provision of the FVRA, in particular, does not give any power to either the President or agency heads. Rather, this provision simply announces that “first assistant”-designated positions created by Congress include within their mandates the conditional, temporary performance of their superior’s functions.77See generally West, supra note 48 (arguing that Congress has exclusive power over the creation and parameterization of government Offices, and that Congress can make the contingent performance of a superior’s functions part of an Office’s functions). The FVRA default provision is thus an example of Congress defining the scope of certain offices, not an example of Congress ceding appointments power to the Executive Branch.
The upshot of reading the FVRA first assistant provisions in this manner is that the FVRA as a whole cedes certain appointments power to the President but cedes no such power to agency heads. The only power that the FVRA gives agency heads is to perform the “functions and duties” of a vacant office after the permissible period for acting service has run out.785 U.S.C. § 3348(b)(1) (2018). Nothing in the FVRA permits agency heads to reassign authority to any other official. This would be the case regardless of whether the FVRA covered all functions and duties of a vacant Office, or just the exclusive functions and duties of such Offices. In either case, agency heads have no authority under the FVRA to give power to anyone.
With the exception of certain agency-specific succession statutes, the FVRA is the only statute explicitly empowering the Executive Branch to assign other officials the exclusive functions of vacant PAS Offices. Therefore, the Senate has retained its advice and consent role with regards to other officials who might perform these functions, i.e., officials who are (1) not time-limited pursuant to these statutes, (2) not among the types of individuals named in these statutes, or (3) designated in a manner contrary to these statutes. The FVRA and agency-specific statutes create a particular type of “inferior Officer”—officials with certain qualifications, who are designated by the President, and who can perform the exclusive functions of vacant Offices for a limited number of days.79Cf. West, supra note 48, at 203 (“[S]tatutory qualifications can just as much be interpreted as conditions on the nature of the office itself (like, for example, its salary or duration) as limitations on the President’s appointment power.”); see also id. at 203 n.196 (citing Matthew A. Samberg, Note, “Established by Law”: Saving Statutory Limitations on Presidential Appointments from Unconstitutionality, 85 N.Y.U. L. REV. 1735, 1755–56 (2010) (arguing that statutes establishing qualifications for certain government positions “should be interpreted not as putting limits on the choice of officer but rather as putting limits on the scope of the office”). Of course, any designation of someone to perform the exclusive functions of a vacant Office that ignores these parameters violates the FVRA. In light of the FVRA’s exclusivity provisions, such a designation also violates the Appointments Clause.
III. THE CONSTITUTIONALITY OF ADMINISTRATIVE SUBDELEGATIONS
A. RECENT JUDICIAL DEVELOPMENTS
Some assignments of new power to interim officials that may not violate the FVRA or agency-specific succession statutes might still violate the Appointments Clause. Recall that most courts interpret the FVRA to cover only nondelegable functions and duties.80 See BRANNON, supra note 10, at 6–7, 25–26. Under that reading, subdelegations of exclusive functions that do not follow FVRA parameters are statutory and constitutional violations. However, subdelegations of nonexclusive functions that fail to adhere to the FVRA’s or agency-specific statutes’ parameters would still be lawful.81Schaghticoke Tribal Nation v. Kempthorne, 587 F. Supp. 2d 389, 421 (D. Conn. 2008), aff’d, 587 F.3d 132 (2d Cir. 2009) (“The [Vacancies Reform Act] sets no time limits . . . on redelegations of nonexclusive duties.”).
Recently, some courts have hinted at a new position that comprehensive delegations of nonexclusive duties from a vacant PAS Office might also be unlawful. In Bullock v. United States Bureau of Land Management,82489 F. Supp. 3d 1112 (D. Mont. 2020). the court rejected a wholesale delegation of the nonexclusive responsibilities of the vacant Bureau of Land Management (“BLM”) Director position to William Pendley.83Id. at 1129. It is unclear why the court ruled this way. On one read, the court determined that the initial BLM delegation memos violated the FVRA because they “provid[ed] no mechanism to enforce or track” their apparent application to nonexclusive duties only.84Id. at 1126. Under this view, the court did not reject the memos because they gave Pendley broad swaths of the BLM Director’s nonexclusive functions, but rather because these memos might in practice have also captured functions that should be exclusive. The notion that Bullock should be read this way is further demonstrated by the court’s emphasis on the fact that Pendley “actually exercised power reserved to the BLM Director,” such as “consider[ing] and resolv[ing] recommendations and protests” regarding BLM Resource Management Plans (“RMPs”).85Id. at 1128. Read another way, however, the court held that an official performing all of the nonexclusive functions and duties of a PAS position is still, functionally, an acting official subject to the constraints of the FVRA and the Appointments Clause.86Cf. id. at 1125 (“[A]ttempting to distinguish an ‘Acting Director’ from an ‘official performing the Director’s duties under the Secretary’s delegation’ represents a distinction without a difference.”); see also id. at 1128 (“Presidents cannot avoid their constitutional obligation to appoint Officers on advice and consent of the Senate by making ‘temporary’ delegations with evasive titles and delegations.”). Aspects of the Bullock opinion might even be read to suggest that smaller-scale subdelegations of nonexclusive functions from a vacant PAS Office are suspect.87See id. at 1127 (“The FVRA represents the only method by which a temporary designee can exercise the authority of a PAS [O]ffice.”).
At a minimum, Bullock reaffirms the proposition that subdelegations of exclusive functions—such as the RMP-related functions of the BLM Director—that do not follow FVRA procedures are both statutory and constitutional violations.88See id. at 1129 (“[T]he designation of an Acting BLM Director remains subject to the exclusive methods for temporary appointment set out in the FVRA. A delegation that does not follow those procedures would violate both the FVRA and the Appointments Clause of the U.S. Constitution.”) (citation omitted). However, Bullock does not clearly establish that certain delegations of nonexclusive duties from vacant PAS Offices violate the FVRA or the Constitution. Nor does the court substantively address either notion. However, Bullock does suggest that courts are starting to reconsider the legality of significant subdelegations of nonexclusive powers from PAS Offices.
Typically, when an agency head subdelegates multiple responsibilities of an Office to another official, the agency head is, in effect, appointing a distinct Officer.89See discussion in Section III.B, infra. This occurs regardless of the lifespan, legally binding nature, or even existence of any instrument subdelegating those functions to the official. These configurations, which are equivalent to Offices, are not clearly provided for by the FVRA or by agency-specific vacancies legislation. Nor, as will be argued below, are they explicitly provided for in vesting-and-delegation statutes.90See Section III.B.2, infra (discussing the lack of relevant explicit language in vesting-and-delegation statutes). Congress has not clearly indicated that vesting-and-delegation statutes can be used to subdelegate multiple functions at once from a particular superior to the same subordinate. Thus it is unclear whether packages of subdelegated functions, all coming from the same initial Office, are something “established by Law.”91U.S. CONST. art. II, § 2, cl. 2. Vesting-and-delegation statutes should be read narrowly to avoid constitutional issues.
Constitutional problems arise in the context of certain types of subdelegations, depending on their content and recipients. First, subdelegations that functionally turn mere employees of the federal government into “Officers of the United States” raise constitutional concerns.92See Buckley v. Valeo, 424 U.S. 1, 126 n.162 (1976). In addition, in light of Supreme Court jurisprudence concerning the scope of Offices, subdelegations granting existing Officers the ability to exercise new authority irrelevant to their posts should be viewed with suspicion.93See Shoemaker v. United States, 147 U.S. 282, 300–01 (1893); see also Weiss v. United States, 510 U.S. 163, 173–76 (1994). The discussion below addresses each situation in turn.
B. SUBDELEGATIONS OF “SIGNIFICANT AUTHORITY” TO EMPLOYEES
1. Creating Officers via Subdelegation: Doctrine and Examples
The first situation begs the question: who is an “Officer of the United States” and who is a “mere employee?” Scholarship abounds on the topic, but the Supreme Court has provided only vague guidance.94See, e.g., Jennifer L. Mascott, Who Are “Officers of the United States”?, 70 STAN. L. REV. 443, 443 (2018) (arguing that an Officer is “any government official with responsibility for an ongoing governmental duty,” including “thousands of officials not currently appointed as Article II officers, such as tax collectors, disaster relief officials, customs officials, and administrative judges”); see also West, supra note 48, at 220–21 (arguing that “only ‘delegated sovereign authority’—or, duties that ‘alter legal rights or obligations on behalf of the United States’—can be sufficient to create ‘officer’ status”) (quoting Officers of the U.S. Within the Meaning of the Appointments Clause, 31 Op. O.L.C. 73, 77 (2007), 2007 WL 1405459). In Lucia, the Court reaffirmed its holding in Buckley that Officers are those who “exercis[e] significant authority pursuant to the laws of the United States.”95Lucia v. SEC, 138 S. Ct. 2044, 2051 (2018) (quoting Buckley, 424 U.S. at 126). The Court in Lucia also restated the Buckley holding that anyone performing “significant authority” must be filling a “‘continuing’ position” and that the position must be “established by law.”96Id. (quoting United States v. Germaine, 99 U.S. 508, 511 (1879)).
To date, the Court has declined to announce more “detailed legal criteria” for a definition of significant authority.97Id. at 2052. In Buckley itself, the Court explained that factfinding and investigative powers that “Congress might delegate to one of its own committees” do not constitute significant authority and can thus be performed by lower-level government employees.98Buckley, 424 U.S. at 137–39. However, rulemaking powers, law enforcement and prosecutorial powers, and adjudicatory powers do constitute significant authority.99Id. As for adjudicatory authority, the Court indicated in Freytag v. Commissioner100501 U.S. 868 (1991). and Lucia that powers similar to and nearly as extensive as those exercised by Article III judges qualify as significant authority.101See id. at 881–82; see also Lucia v. SEC, 138 S. Ct. 2044, 2053–54 (2018); Officers of the U.S. Within the Meaning of the Appointments Clause, 31 Op. O.L.C. 73, 88 (2007), 2007 WL 1405459 [hereinafter Officers of the U.S. Within the Meaning of the Appointments Clause] (noting that the ability to “issue . . . authoritative legal opinions on behalf of the government” constitutes significant authority).
Beyond its discussions of adjudicative authority in Freytag and Lucia, the Court has not further defined significant authority in any meaningful way. Notably, in neither Buckley, Freytag, Lucia, nor any other case has the Court ever articulated a temporal baseline for significant authority. Thus, as it stands, significant authority is a matter of the scope of power only; authority exercised over the course of just a few days could still be “significant” depending on the actual functions performed.102This is only to say that if certain governmental functions are substantively “significant,” they become no less “significant” when performed by a short-term officeholder. To be sure, duration of tenure would seem to matter when distinguishing between inferior and principal Officers. See Morrison v. Olson, 487 U.S. 654, 672 (1988) (“Finally, appellant’s office is limited in tenure . . . the office of independent counsel is ‘temporary’ in the sense that an independent counsel is appointed essentially to accomplish a single task, and when that task is over the office is terminated, either by the counsel herself or by action of the Special Division. Unlike other prosecutors, appellant has no ongoing responsibilities that extend beyond the accomplishment of the mission that she was appointed for and authorized by the Special Division to undertake. In our view, these factors relating to the ‘ideas of tenure, duration . . . and duties’ of the independent counsel are sufficient to establish that appellant is an ‘inferior’ officer in the constitutional sense.”) (internal citations omitted).
In recent decades, lower courts, the OLC, scholars, and Supreme Court justices in dissent have attempted to fill in some of the doctrinal gaps. In 2007, the OLC described “Officers” as individuals “delegat[ed] by legal authority a portion of the sovereign powers of the federal government.”103Officers of the U.S. Within the Meaning of the Appointments Clause, supra note 94, at 78. The OLC defined “sovereign powers” as those “primarily involv[ing] binding the government or third parties for the benefit of the public, such as by administering, executing, or authoritatively interpreting the laws.”104Id.; see also West, supra note 48, at 220−30 (arguing that Officers of the United States have the authority to “alter legal rights or obligations on behalf of the United States”); cf. E. Garrett West, Clarifying the Employee-Officer Distinction in Appointments Clause Jurisprudence, 127 YALE L.J. 42, 51 (2017) (“The Appointments Clause, similarly, ought to capture any person whose activity, if it causes a cognizable harm, can be legally attributable to the U.S. government. Those vested with the capacity to alter legal rights on behalf of the U.S. government wield the state’s power.”). The OLC also cited older Supreme Court precedent for the proposition that the power to contract on behalf of the U.S. Government constitutes significant authority.105Officers of the U.S. Within the Meaning of the Appointments Clause, supra note 101, at 88−89 (citing United States v. Tingey, 30 U.S. (5 Pet.) 115, 126 (1831) (recognizing Officers “for the purpose of making contracts, or for the purchase of supplies”)). Further, some lower court decisions—as well as Justice Sotomayor in her Lucia dissent—have embraced the idea that significant authority involves “the ability to make final, binding decisions on behalf of the Government.”106Lucia, 138 S. Ct. at 2065 (Sotomayor, J., dissenting); see also Mascott, supra note 94, at 448 n.8 (noting that Freytag “also referred to final decisionmaking authority in its discussion of factors indicating constitutional officer status but lower courts have disagreed about whether the opinion made this factor an essential requirement for an official to qualify as an Article II officer.”) (internal citations omitted)). The D.C. Circuit, for example, has considered “the importance of the issues in the official’s portfolio, . . . the finality of the official’s actions, and . . . the degree of discretion the official has in reaching her determinations” when conducting an officer-employee analysis.107Mascott, supra note 94, at 447−48 (discussing Tucker v. Comm’r, 676 F.3d 1129, 1133 (D.C. Cir. 2012)).
The Lucia majority looked to a nineteenth century case, Germaine, for the requirement that an officer’s position be “continuing.”108See Lucia, 138 S. Ct. at 2051 (quoting United States v. Germaine, 99 U.S. 508, 511−12 (1879)). Assuming the doctrinal legitimacy of a “continuity” requirement in the first place,109See generally James Heilpern, Temporary Officers, 26 GEO. MASON L. REV. 753 (2019). Heilpern argues that the continuity requirement as described in the 2007 OLC memo, and as potentially embraced by Lucia, is contrary to Supreme Court precedent, out of touch with administrative practice dating back to the Washington administration, and damaging to “the Constitutional scheme of checks and balances.” Id. at 754−56. The OLC had stated that a continuous position is one that is “not limited by time or by being of such a nature that it will terminate by the very fact of performance.” Id. (quoting Bunn v. People, 45 Ill. 397, 405 (1867)). Under this view, positions charged with performing single projects, such as negotiating a treaty or conducting a specific investigation, would not be constitutional Offices. Id. Germaine itself makes clear that it is the duties attached to an office which, to some extent, must be “continuing and permanent, not occasional or temporary.”110Germaine, 99 U.S. at 511−12 (citing United States v. Hartwell, 73 U.S. 385, 393 (1867)). There is no requirement that the title of an Office be continuing. Nor should the duration of any particular person’s performance of those duties have any bearing on their Officer status. By the OLC’s account, the “continuity” requirement demands that the functions of an Office also be continuable regardless of vacancies or changes in the identity of the Office’s superior.111Officers of the U.S. Within the Meaning of the Appointments Clause, supra note 101, at 112 (“[I]f a position that possesses delegated sovereign authority is temporary (because of, for example, an express expiration date or the nature of its duties), then whether it qualifies as ‘continuing,’ and thus an office, will depend on the presence of three factors that the early authorities discuss in connection with temporariness . . . (1) [t]he position’s existence should not be personal: [t]he duties should ‘continue, though the person be changed,’ . . . and an incumbent’s tenure should not depend on whether “the office of his superior” is vacated . . . (2) the position should not be ‘transient’: The less fleeting and more enduring it is (or is likely to be), the more likely it is to be a continuing seat of power and thus an office. (3) The duties should be more than ‘incidental’ to the regular operations of government.”) (internal citations omitted). In the case of Offices created entirely of subdelegated authority, this would require that the subdelegation instrument be capable of existing beyond the tenure of the delegator.
“Established by law” is a relatively overlooked but equally complex aspect of the “Officer of the United States” formula. Indeed, the proper meaning of the Appointments Clause’s own “established by Law” language has long been disputed.112Major Justin C. Barnes, The Deputy “To[o]” Problem: An Officer, An Employee Supervisor, and the Appointments Clause, 227 MIL. L. REV. 143, 154 (2019). According to the interpretation espoused in early American jurisprudence, the Appointments Clause requires all positions that rise to the “Officer” level to also be authorized by statute.113See United States v. Maurice, 26 F. Cas. 1211, 1213 (Marshall, Circuit Justice, C.C.D. Va. 1823). Under this view, someone who is functionally serving as an Officer—i.e., who is exercising significant authority—but whose position is not “established by Law” would be serving in contravention of the Appointments Clause. However, Lucia and preceding lower court rulings suggest that “established by Law” is rather a “threshold trigger” for Appointments Clause applicability.114Landry v. Fed. Deposit Ins. Corp., 204 F.3d 1125, 1133 (D.C. Cir. 2000), overruled on other grounds by Lucia v. SEC, 138 S. Ct. 2044 (2018); see also Lucia, 138 S. Ct. at 2052−53 (holding that SEC ALJs are “Officers” in part because they are appointed “to a position created by statute, down to its ‘duties, salary, and means of appointment.’”) (quoting Freytag v. Commissioner, 501 U.S. 868, 878 (1991)). Those opinions imply that someone exercising significant authority in a functional or informal manner need not be constitutionally appointed, because their position was not “established by Law.”
For a number of reasons, the better view is that someone functionally serving as an Officer but whose position is not formally “established by Law” is violating the Appointments Clause. First, in 2007, the OLC seemed to reject the notion that “established by law” is a threshold requirement that must exist before one can be considered an Officer.115Officers of the U.S. Within the Meaning of the Appointments Clause, supra note 101, at 117 (arguing that “whether Congress has formally created an ‘office’ by law” should not determine the officer-vs.-employee inquiry) (“But the rule for which sorts of positions have been ‘established by Law’ [under authority of a statute] such that they amount to offices subject to the Appointments Clause cannot be whether a position was formally and directly created as an ‘office’ by law. Such a view would conflict with the substantive requirements of the Appointments Clause.”). Second, as Major Barnes points out, “if the established-by-law qualifier was really a threshold that must be satisfied before the clause, including its limitation on the exercise of significant authority, was applicable, the limitation would be simple to avoid: delegate significant authority to someone holding a position not established by law.”116Barnes, supra note 112, at 156−57. Indeed, this is exactly what the Trump Administration did when it subdelegated the full suite of vacant Offices’ nonexclusive functions to subordinates who could not legally serve as acting officials.
In Lucia, the Court examined whether administrative law judges (“ALJs”) within the Securities and Exchange Commission (“SEC”) are “Officers.”117Lucia, 138 S. Ct. at 2049 (quoting Butz v. Economou, 438 U.S. 478, 513 (1978)). The Court noted that the Securities and Exchange Commission Authorization Act of 1987 contemplates the existence of SEC ALJs and permits the SEC to delegate enforcement and adjudicatory powers to ALJs.118Id.; see also 15 U.S.C. §78d-1(a) (2018). The 1987 Act provides that such delegations of authority must be implemented through “published order or rule.”11915 U.S.C. §78d-1(a) (2018). The Court ultimately held that SEC ALJs are Officers because they exercise significant adjudicatory authority and discretion “‘comparable to’ that of a federal district judge conducting a bench trial.”120Lucia, 138 S. Ct. at 2049. The fact that this delegation of authority to ALJs occurred via published rule was mentioned, but did not appear to have any bearing on the Court’s holding.
SEC ALJs do not possess any authority other than that delegated to them by the SEC. Put differently, the SEC is not required by law to hire ALJs and subdelegate adjudicatory authority to them, but it may do so.12115 U.S.C. §78d-1(a) (2018). This fact has implications for Lucia’s holding. Lucia thus stands for the principle that one can qualify as an Officer even if all of one’s responsibilities have been subdelegated from above.122See West, supra note 48, at 226 (arguing that in light of Lucia, “delegated responsibilities . . . should probably still count as statutory responsibilities that can trigger officer status.”). All that matters in the Officer analysis is whether those subdelegated responsibilities are continuing and whether they involve the exercise of significant authority.
The question remains as to whether an official receiving significant authority pursuant to a nonbinding and unilaterally revocable subdelegation memo might be made an Officer as a result of the subdelegation. Dicta in Lucia, along with other recent cases and examples, support the position that subdelegations of significant authority through such mechanisms still function as appointments of Officers. In other words, “[t]he Constitution requires an examination of ‘the nature of the functions devolved upon’ a position by legal authority . . . not the way or form in which they are devolved.”123Officers of the U.S. Within the Meaning of the Appointments Clause, supra note 101, at 118 (quoting State ex. rel. Atty. Gen. v. Kennon, 7 Ohio St. 546, 558 (1857)). There seems to be no rule that Officers can only be made Officers through published or legally binding instruments.
First, in Lucia, the Court suggested that some of the significant authority delegated to the SEC ALJs arose informally and “not by regulation.”124Lucia, 138 S. Ct. at 2054; cf. West, supra note 48, at 229 (“15 U.S.C. §78d-1 . . . allows the SEC, ‘by published order or rule,’ to alter the legal effect of the statute that ‘establish[es] by Law’ the position of SEC ALJ. Generally, the Court in Lucia rightly relied on the agency’s regulations in assessing the authority of the office. Justice Kagan referenced the regulations—not the statute itself—that gave the ALJs authority to receive evidence, examine witnesses, rule on the admissibility of evidence, and more . . . [T]he Court, however, also seemed to rely somewhat on the ALJ’s informal authority. It noted, for instance, that the SEC accords “deference to its ALJs, even if not by regulation.”). In dictum, the Court recognized the SEC’s practice of deference to ALJ findings of fact, and it implied that this deference, though not mandated by any legally binding instrument, translated into additional power and discretion possessed by ALJs.125Lucia, 138 S. Ct. at 2054–55. This language in Lucia might support a principle that fully informal subdelegations of significant authority could still function as appointments, especially in light of the principle that “carefully considered language of the Supreme Court, even if technically dictum, generally must be treated as authoritative.”126United States v. Fields, 699 F.3d 518, 522 (D.C. Cir. 2012).
The Department of Justice’s (“DOJ”) subdelegation of authority to special counsels provides additional support for this principle. The Attorney General sometimes appoints a special prosecutor when internal management of an investigation by the DOJ “would present a conflict of interest for the Department or other extraordinary circumstances.”12728 C.F.R. § 600.1(a) (2010). Like ALJs at the SEC, special counsels only possess subdelegated authority.128See In re Grand Jury Investigation, 916 F.3d 1047, 1049–55 (D.C. Cir. 2019). Pursuant to DOJ regulation, the Attorney General has discretion over whether to hire special counsels at all and over the scope of special counsels’ jurisdiction and duties.129See 28 C.F.R. § 600.2 (2010). When the Attorney General is faced with a decision of whether to appoint a special counsel for a given investigation, she can choose between appointing a special counsel, ordering an initial investigation “to better inform the decision,” or “[c]onclud[ing] that under the circumstances of the matter, the public interest would not be served by removing the investigation from the normal processes of the Department, and that the appropriate component of the Department should handle the matter.” Id. In addition, the special counsel’s jurisdiction “shall be established by the Attorney General,” 28 C.F.R. § 600.4(a) (2010), but must include “the authority to investigate and prosecute federal crimes committed in the course of, and with intent to interfere with, the [s]pecial [c]ounsel’s investigation, such as perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses; and to conduct appeals arising out of the matter being investigated and/or prosecuted.” Id. Further, if during the “investigation the [s]pecial [c]ounsel concludes that additional jurisdiction beyond that specified in his or her original jurisdiction is necessary,” he or she must “consult with the Attorney General, who will determine whether to include the additional matters within the [s]pecial [c]ounsel’s jurisdiction or assign them elsewhere.” 28 C.F.R. § 600.4(b) (2010). The special counsel cannot consider pursuing “administrative remedies, civil sanctions or other governmental action outside the criminal justice system” without the Attorney General’s approval. 28 C.F.R. § § 600.4(c) (2010). A special counsel would not have significant authority unless the Attorney General decided to subdelegate some of her own power to the special counsel in the first place. It is well established that special prosecutors are constitutional Officers. More specifically, they are usually inferior Officers given their limited jurisdiction, cabined and contingent tenure, and ultimate subordinance to the Attorney General.130See Morrison v. Olson, 487 U.S. 654, 671–73 (1988); see also In re Grand Jury Investigation, 916 F.3d at 1052–53; In re Sealed Case, 829 F.2d 50, 56 (D.C. Cir. 1987).
Attorneys General often give special counsels their authority via nonbinding instruments. For example, Acting Attorney General Rod Rosenstein issued a memo appended to a press release to subdelegate authority to Special Counsel Robert Mueller to investigate and potentially prosecute operatives of the Trump Campaign.131Press Release, U.S. Dep’t of Just. Office of Pub. Affairs, Order No. 3915-2017: Appointment of Special Counsel to Investigate Russian Interference with the 2016 Presidential Election and Related Matters (May 17, 2017), available at https://www.justice.gov/opa/pr/appointment-special-counsel [https://perma.cc/9PPU-YM3F] [hereinafter Rosenstein Memo]. The release cites as its authority the vesting-and-delegation provisions of the DOJ’s organic statute and its provisions contemplating that “specially appointed” outside attorneys might sometimes help the Attorney General with her work.13228 U.S.C. § 515(a) (2018). However, the subdelegation press release itself is nonlegislative and nonbinding, and the Attorney General could revoke it at any time.133See In re Grand Jury Investigation, 916 F.3d at 1052. The Rosenstein Memo does not carry the “force of law” in the sense that it does not alter the status or affect the legal rights or duties of any non-governmental individual. See Pac. Gas & Elec. v. Fed. Pwr. Comm., 506 F.2d 33, 38–40 (D.C. Cir. 1974). This memo was “the outcome of neither a rulemaking nor an adjudication” and served only to announce that a particular prosecutor would handle a particular agency matter. Id. at 38–40. Similarly, Acting Attorney General James Comey was able to designate Patrick Fitzgerald as Special Counsel to investigate the potential unauthorized disclosure of Valerie Plame’s CIA agent status via letter.134See United States v. Libby, 429 F. Supp. 2d 27, 28–29 (D.D.C. 2006).
The appointments of special counsels such as Mueller and Fitzgerald illustrate how nonbinding and at-will subdelegations of only a portion of a superior’s authority can result in the creation of a distinct type of inferior Officer. Acting Attorney General Rod Rosenstein specifically subdelegated to Mueller the authority to investigate connections between the Trump Campaign and Russia, and other matters directly arising from that investigation.135See Rosenstein Memo, supra note 131. Rosenstein also subdelegated to Mueller the “authority to investigate and prosecute federal crimes committed in the course of, and with intent to interfere with, the [aforementioned] investigation, such as perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses,” and to conduct appeals “arising out of” the initial investigation or prosecutions.13628 C.F.R. § 600.4(a) (2010); see OFF. OF THE DEPUTY ATT’Y GEN., ORDER NO. 3915-2017, APPOINTMENT OF SPECIAL COUNSEL TO INVESTIGATE RUSSIAN INTERFERENCE WITH THE 2016 PRESIDENTIAL ELECTION AND RELATED MATTERS (2017) (“The Special Counsel is authorized to conduct the investigation . . . including . . . any other matters within the scope of 28 C.F.R. § 600.4(a).”). Mueller’s authority is, evidently, just a subset of the authority vested in the Attorney General. In receiving this subdelegated authority, Mueller did not become an acting Attorney General; instead, he became another distinct type of inferior Officer.137Cf. In re Grand Jury Investigation, 916 F.3d at 1049–55. By holding that a legitimate Acting Attorney General is someone with all of the same powers as a confirmed Attorney General, this case effectively demonstrates that someone in Mueller’s position is not equivalent to an acting Attorney General. See also Libby, 429 F. Supp. at 44 (“Here, the Special Counsel is essentially removable at will by the Deputy Attorney General. Just as the Deputy Attorney General delegated his authority to the Special Counsel, he has complete discretion to take that authority away.”).
As Lucia suggests, and the appointment of special counsels indicate, whenever an agency head subdelegates significant authority to someone who would otherwise not possess it, the agency head effectively appoints a distinct type of inferior Officer. This is true regardless of the duration for which and the mechanism (or lack thereof) by which the agency head authorizes the official to exercise said authority. Agency heads are therefore only permitted to subdelegate significant authority to those who previously did not possess it, and only to the extent clearly authorized by Congress.
2. Subdelegating “Significant Authority” to Employees Under Agency Vesting-and-Delegation Statutes
The extent to which vesting-and-delegation statutes authorize subdelegations of significant authority to lower-level government employees is unclear. It does not help, of course, that the Supreme Court has declined to further elucidate the meaning of significant authority, or, by contrast, of “employee.” The safest approach is to read vesting-and-delegation statutes as only allowing agency heads to give an employee one assignment otherwise performed by an Officer at a given time. In other words, an agency head should be able to subdelegate significant authority only on an assignment-by-assignment basis to agency staff members who would otherwise only carry out functions—such as technical research and analysis that might inform future agency policies and decision making—that Congressional committees or the Congressional Research Service could have performed themselves.138Buckley v. Valeo, 424 U.S. 1, 137–39 (1976). For an overview of the Congressional Research Service’s functions, see LIBR. OF CONG., About CRS (Mar. 18, 2021), https://www.loc.gov/crsinfo/about/ [https://perma.cc/ZX92-B55P]. Under this approach, an agency head could, for example, invoke the agency’s vesting-and-delegation statute to subdelegate authority over a particular rulemaking process to agency staff, but could not give those same staff members power over an entire category of agency rulemaking or over broad swaths of rulemaking and adjudicatory power.
Vesting-and-delegation statutes have a peculiar history.139See generally Migala, supra note 14; see also HENRY B. HOGUE, CONG. RSCH. SERV., R42852, PRESIDENTIAL REORGANIZATION AUTHORITY: HISTORY, RECENT INITIATIVES, AND OPTIONS FOR CONGRESS (2012), at 20, 27–28, https://fas.org/sgp/crs/misc/R42852.pdf [https://perma.cc/L9WE-YGC9]. As Stephen Migala explains, only one such statute—governing the DOJ—existed before 1949.140Migala, supra note 14, at 10. In 1949, Congress passed the first in a series of umbrella statutes to facilitate the development of vesting-and-delegation plans. The Reorganization Act of 1949, and then the Reorganization Act of 1977, set forth a procedure by which the President could submit proposed vesting-and-delegation frameworks for specific agencies to Congress. Under the Acts, such frameworks became law unless the Senate or House vetoed the proposal.141Id.; see also HOGUE, supra note 139, at 20, 27–28. While the Reorganization Act of 1977 expired in 1984, the reorganization plans established pursuant to these statutes remain in effect.142Migala, supra note 14, at 10. Reorganization plans implemented pursuant to these statutes still govern the vesting-and-delegation authorities of the Postal Service, Department of Interior, Department of Agriculture, Department of Commerce, DOL, and Department of Health and Human Services.143See id. at 10 n.38–39.
The Reorganization Act of 1949’s legislative history indicates that codified vesting-and-delegation plans would for the first time make many functions that were then “vested in [agency heads] by law” delegable to subordinates.144S. Rep. No. 81-232, at 7 (1949). The Congress responsible for the proliferation of vesting-and-delegation statutes clearly contemplated that agency heads would, going forward, be freely able to subdelegate duties explicitly assigned to them by statute. The housekeeping statutes authorized under the Reorganization Act, and many other housekeeping statutes as well, specifically state that the agency head “may . . . make such provisions as he shall deem appropriate authorizing the performance by any other officer, or by any agency or employee,” of the agency “any function of the [agency head].”145Reorganization Plan No. 3 of 1950, 3 C.F.R. 164 (1950), reprinted in 5 U.S.C. app. at 138 (Interior); see also Reorganization Plan No. 2 of 1953, 3 C.F.R. 133 (1953), reprinted in 5 U.S.C. app. at 159–61 (Agriculture); Reorganization Plan No. 5 of 1950, 3 C.F.R. 165 (1950), reprinted in 5 U.S.C. app. at 138–39 (Commerce); Reorganization Plan No. 6 of 1950, 3 C.F.R. 165 (1950), reprinted in 5 U.S.C. app. at 139 (Labor); Reorganization Plan No. 1 of 1953, 3 C.F.R. 131–32 (1953), reprinted in 5 U.S.C. app. at 157–59 (Health and Human Services) [hereinafter collectively Reorganization Plans]. See infra note 166 for other statutes not passed pursuant to the Reorganization Acts. Stephen Migala collected these statutes for a recent paper on President Trump’s decision to elevate Matthew Whitaker to the position of acting Attorney General in late 2018. See Migala, supra note 66, at 710 n.27–28.
Vesting-and-delegation statutes can be read in two different ways with respect to employees. On one read, the language above is far-reaching enough to conclude that Congress clearly vested agency heads with the ability to turn employees into a particular type of inferior Officer that exercises subdelegated significant authority. Under this reading, an agency head can constitutionally subdelegate truly any function, including substantial rulemaking, adjudicatory, enforcement, or public contracting functions, to anyone within the agency, including a low-level staff member.
There are some reasons to read modern vesting-and-delegation statutes this way. First, the plain language of each of these statutes is extremely broad. The reorganization plans passed pursuant to the Reorganization Act of 1949 consistently repeat the word “any” before the core object (functions of the agency head) and the core subjects (recipient officers, agencies, or employees).146See Reorganization Plans, supra note 145. These plans do not further qualify “any function”—the default language in these plans does not indicate that certain rulemaking, adjudicatory, enforcement, or public contracting powers are outside the scope of subdelegation authority, particularly or generally. Further, reorganization plans explicitly use the term “employee,” and do not at all distinguish between functions that agency heads can give to officers and those that they can give to mere employees. Finally, vesting-and-delegation statutes use language (“authoriz[e] the performance . . . of any function”) similar to the “direct . . . to perform the functions and duties of” language in the FVRA.147See Reorganization Plans, supra note 145; 5 U.S.C. § 3345(a)(2)–(3). If the FVRA’s language suffices to vest appointments-equivalent power in an executive branch actor, perhaps the language of vesting-and-delegation statutes does as well.148See supra Section II (discussing the view that the FVRA vests power in the President to unilaterally appoint a category of inferior Officers).
Subsequent legislative enactments may also give meaning to vesting-and-delegation statutes.149See Food & Drug Admin. v. Brown & Williamson Tobacco Co., 529 U.S. 120, 133 (2000) (“[T]he meaning of one statute may be affected by other Acts, particularly where Congress has spoken subsequently and more specifically to the topic at hand.”). Since the passage of the first modern vesting-and-delegation statutes in the 1950s, Congress has specified a select number of functions in various agencies that cannot be delegated at all.150For example, in 2005, Congress enacted legislation barring the Energy Secretary from subdelegating the power to grant a waiver that would allow an energy research and development center to receive an Energy Department management and operation contract without going through a competitive procurement bidding process. See 42 U.S.C. § 16359. In 2002, when Congress passed legislation permitting the General Services Administrator (“GSA”) to liberally subdelegate her authority, it also specified that the Administrator could not subdelegate “the authority to prescribe regulations on matters of policy applying to executive regulations” or “the authority to transfer functions and related allocated amounts from one component of the Administration to another” under other laws governing the GSA. See 40 U.S.C. § 121(d). There are certainly other examples of executive branch functions that Congress has made nondelegable since the 1950s. However, the number of nondelegable functions pales in comparison to the number of delegable ones. See Stand Up for Cal.! v. U.S. Dep’t of Interior, 298 F. Supp. 3d 136, 137 (D.C. Cir. 2018). Congress has also passed legislation restricting the delegation of certain functions to particular officials. For example, in 1968, Congress indicated that only the Attorney General or an Assistant Attorney General “specially designated by the Attorney General” may pursue an order from a federal judge authorizing a wire or phone tap for a federal investigation.151See Pub. L. No. 90-351 § 2516 (1986). The Court in Giordano confirmed that Congress had in fact restricted the Attorney General’s ability to subdelegate pursuit of a wiretap order to anyone else.152See United States v. Giordano, 416 U.S. 505, 508 (1974); see also 29 U.S.C. § 3244(e) (prohibiting the Secretary of Labor from subdelegating the authority to suspend or terminate certain workforce development grants under the Workforce Innovation and Opportunity Act of 2014 to anyone other than a PAS official). Congress knows how to limit the delegation of certain functions to certain recipients, and has done so. And after Buckley, Congress at least has some guidance as to the types of functions that are reserved for Officers. Therefore, if Congress wanted to specify that only Officers, and not employees, could receive certain subdelegated rulemaking, adjudicatory, enforcement, or public contract-making duties pursuant to vesting-and-delegation statutes, it would have done so by now.153In fact, Congress amended the delegation provisions governing the Department of Agriculture in 1994, and when it did so, it retained language that “any . . . functions, powers, and duties” of the Department could be subdelegated to employees. See 42 U.S.C. § 7133(d). Arguably, the fact that Congress has not done this, while it has imposed other statutory limits on subdelegations, suggests that Congress did in fact intend to vest agency heads with the ability to give mere employees so-called significant authority to some extent.154The method by which housekeeping statutes authorized under the Reorganization Acts came into effect complicates arguments about the Congressional intent behind these statutes. Congress “enacted” the vesting-and-delegation statutes for multiple executive departments by simply acquiescing to—and not exercising a legislative veto against—presidentially proposed versions of these statutes. See Hogue, supra note 139, at 21. The legislative veto mechanism was struck from the Reorganization Act after the Supreme Court deemed legislative vetoes unconstitutional in I.N.S. v. Chadha. 462 U.S. 919, 959 (1983); see also Hogue, supra note 139, at 3 n.12. However, as Hogue explains, Chadha then “raised concerns that the validity of existing reorganization plans . . . might be called into question.” Id. at 31. In response, Congress ratified and expressly approved of “all the reorganization plans that had gone into effect” via the legislative veto system. Id. Congress’s ratifying legislation does not qualify past reorganization plans or otherwise clarify that they cannot be used to give significant authority to employees, even though this legislation was passed after Buckley. See Pub. L. No. 98-532, 98 Stat. 2705 (1984) (codified at 5 U.S.C. § 906). The idea that vesting-and-delegation statutes allow for the subdelegation of significant authority to employees reacts interestingly with the subdelegation doctrine of lower courts. In 2004, the D.C. Circuit held that “when a statute delegates authority to a federal officer or agency, subdelegation to a subordinate federal officer or agency is presumptively permissible absent affirmative evidence of a contrary congressional intent.” U.S. Telecom Ass’n v. FCC, 359 F.3d 554, 565 (D.C. Cir. 2004). Later courts have either espoused or rephrased this position. See Crawford-Hall v. United States, 394 F. Supp. 3d 1122, 1134–35 (C.D. Cal. 2019)) (“[S]ubdelegations are presumptively permissible unless there is evidence that Congress intended to prevent subdelegations in the particular context.”); see also Frankl v. HTH Co., 650 F.3d 1334, 1350 (9th Cir. 2011) (adopting the U.S. Telecom Association configuration). Perhaps the U.S. Telecom Association and Frankl courts purposefully omitted mention of “employees” to avoid suggesting that subdelegations of authority from officers to employees are also presumptively permissible. However, it is also possible that these courts use the term “federal officer” in the colloquial, and not constitutional sense.
On another read, Congress did not clearly vest agency heads with this power through vesting-and-delegation statutes.155Despite the fact that modern vesting-and-delegation statutes have been in place for nearly seventy years, scholars have only recently discussed the possibility of reading these statutes this way. See Mendelson, supra note 1, at 601; see also West, supra note 48, at 226 n.318 (briefly contemplating that vesting-and-delegation statutes “could be construed to disallow delegation of ‘significant authority’ to parties that look more like employees.”). First, the Reorganization Act of 1949’s legislative history suggests that Congress did not intend housekeeping statutes to be used for subdelegations involving major governmental functions. The senate report for the Reorganization Act of 1949 states that “[t]he main purpose” of allowing for subdelegation by agency heads in reorganization plans “is to make it possible for top officials to delegate routine functions.”156See S. Rep. No. 81-232, at 7 (1949) (emphasis added). The report does not define “routine functions,” but perhaps this indicates that Congress did not have major powers of adjudication, rulemaking, or prosecution in mind.
Second, while Congress approved most reorganization plans submitted by Presidents Truman and Eisenhower pursuant to the Reorganization Act of 1949, it also rejected eleven of their proposed plans.157See HOGUE, supra note 139, at 21. Congress rejected three of these plans because they “would have converted politically appointed positions” requiring presidential nomination and Senate confirmation “into career positions” filled unilaterally by agency heads.158Id. As detailed by the Congressional Research Service, Congress rejected reorganization plans that would have
“(1) vested appointment authority for local postmasters in the Postmaster General, under the civil service, rather than in the President, with the Advice and Consent of the Senate; (2) abolished certain Bureau of Customs offices that had been filled through appointment by the President with the Advice and Consent of the Senate, and transferred their functions to Treasury department officials appointed by the Secretary of the Treasury under the civil service; and (3) vested the appointment authority for U.S. marshals in the Attorney General, under the civil service, rather than in the President, with the Advice and Consent of the Senate.”159Id.
In short, Congress rejected plans that would have vested agency heads with the power to appoint certain inferior Officers. In that same period, Congress approved of five plans—for the Departments of Agriculture, Labor, Commerce, Interior, and Health and Human Services—that authorized agency heads to subdelegate to “any other officer, . . . agency or employee” any of the agency’s functions.160See Reorganization Plans, supra note 145. Since Congress rejected multiple plans permitting agency heads to assign the functions of certain constitutional Offices to individuals of their choice, it seems unlikely that Congress intended for subdelegation provisions in other plans to empower them to do just that.
Though vesting-and-delegation statutes use capacious language, there are reasons to think that “any function” in these statutes should not be understood to mean literally any function. Rather, “any function,” as in relation to the phrase “any other officer, . . . agency or employee” should be interpreted to exclude recipient-function pairings that would raise serious constitutional concerns or would in fact be unconstitutional as applied.161See N.L.R.B. v. Catholic Bishop of Chicago, 440 U.S. 490, 500–01 (1979) (holding that, absent a clear statement from Congress that the statute in question covers a situation “giv[ing] rise to serious constitutional questions,” the statute should be read to avoid encompassing that situation). For example, read literally, vesting-and-delegation statutes seem to permit agency heads to subdelegate their ability to appoint inferior Officers. In other words, under the plain language of vesting-and-delegation statutes, agency heads could delegate to their deputies, or even to mere employees, the power to appoint inferior Officers within the department, even though the Excepting Clause requires inferior Officers to be appointed by either the President, the courts, or agency heads.162U.S. CONST. art. II, § 2, cl. 2. After Lucia, which rejected the SEC’s scheme of subdelegating the power to appoint ALJs to SEC staff members, it would seem that the power to appoint inferior Officers cannot be subdelegated, at least to employees.163Lucia v. SEC, 138 S. Ct. 2044, 2049–54 (2018); see also Jennifer Nou, The SEC’s Improper Subdelegation (Statutory, not Constitutional), YALE J. ON REG.: NOTICE & COMMENT (Apr. 11, 2018), https://www.yalejreg.com/nc/the-secs-improper-subdelegation-statutory-not-constitutional/ [https://perma.cc/ZPV5-8WV8] (arguing that before the Lucia decision, it was “not clear the Appointments Clause prohibits subdelegation of appointments authority for inferior officers, even if SEC ALJs were deemed so.”). Still, whether the power to appoint inferior Officers can be subdelegated to other inferior Officers remains unsettled.164See N.W. Immigrant Rts. Project v. U.S. Citizenship & Immigr. Servs., 496 F. Supp. 3d 31, 60–69 (D.D.C. 2020). In light of Lucia, and the outstanding constitutional questions about the powers of inferior Officers, vesting-and-delegation statutes should be read to exclude subdelegations that would give appointing power to officials other than an agency leader. Buckley and subsequent Supreme Court jurisprudence on significant authority should similarly cabin vesting-and-delegation statutes. These statutes could in theory “be construed as not themselves authorizing delegation of ‘significant authority’” to employees or to other actors, such as external actors newly invited into an administration or to private contractors, who did not previously possess significant authority.165West, supra note 48, at 226 n.318.
There is also an argument that Congress did not clearly authorize agency heads to give employees significant authority through vesting-and-delegation statutes, but that these statutes unavoidably allow for this. This argument holds water because the Court has not defined significant authority with any meaningful specificity. In the absence of a sharper definition of significant authority, agency heads may struggle to assess whether a planned subdelegation will confer acceptably minor, technical, and informational duties on an employee, or rather, will give them an unconstitutional amount of authority and discretion. Agency heads not trying to circumvent the Appointments Clause—but rather aiming to occasionally reassign low-stakes functions in a legitimate effort to increase administrative efficiency—might find themselves in trouble. Since a precise meaning of significant authority is far from established, agency heads run the risk of making seemingly innocuous subdelegations that courts could later find unconstitutional.
Thus, there may be no constitutional way to read the subdelegation provisions in housekeeping statutes. If the Court accepted this position, the legal consequences would be massive. Core provisions of the statutes that structure all fifteen executive departments and various independent agencies would be unconstitutional.166See Reorganization Plans, supra note 145 for citations of vesting-and-delegation statutes implemented by reorganization plans. See also 22 U.S.C. § 2651a(a) (Dep’t of State); 31 U.S.C. § 321(b)(2) (Dep’t of Treasury); 28 U.S.C. § 510 (DOJ); 42 U.S.C. § 3535(d) (Dep’t of Hous. & Urb. Dev.); 49 U.S.C. § 332(b) (Dep’t of Transp.); 42 U.S.C. §§ 7252 (Dep’t of Energy); 20 U.S.C. § 3742 (Dep’t of Educ.); 38 U.S.C. § 512 (Dep’t of Veterans Affairs); 6 U.S.C. § 112(b)(1) (Dep’t of Homeland Sec.); 10 U.S.C. § 113(d) (DOD). To be sure, the unconstitutional portions of those housekeeping statutes explicitly using the term “employee” might be severable. Put differently, subdelegation provisions that explicitly use the term “employee” might be sustained by simply removing this term from each of them.167 When a statute is deemed “at least partially unconstitutional,” the Court will determine whether any portions of that statute can be saved, or if the entire statute must be struck down. See Murphy v. NCAA 138 S. Ct. 1461, 1485 (2018) (Thomas, J., concurring). According to Justice Thomas, a severability analysis involves asking if Congress would have still enacted “the valid sections [of the statute] ‘had it known’ about the constitutional invalidity of the other portions of the statute.” Id. (additional citations omitted). The question is whether Congress would have approved of vesting-and-delegation statutes that only permitted subdelegations to Officers. The legislative history does not provide a definitive answer, but it is plausible that Congress would have passed vesting-and-delegation statutes without the term “employee.” These statutes were designed to free up certain “routine functions” from being confined to “top officials.” S. Rep. No. 81-232, at 7 (1949). There are, of course, Officers below those principal Officers at the “top.” Congress may still have wanted to make various functions subdelegable to lower-level inferior Officers. The DOD statute, however, is unsusceptible to severance. That statute states that “[u]nless specifically prohibited by law, the Secretary may, without being relieved of his responsibility, perform any of his functions or duties, or exercise any of his powers through, or with the aid of, such persons in, or organizations of, the [DOD] as he may designate.” 10 U.S.C. § 113(d) (emphasis added). The statute does not clearly state that the Secretary’s functions can be subdelegated to employees, but the term “persons” is surely broad enough to encompass both officers and employees. The DOD vesting-and-delegation statute is atypical if not unique in its lack of explicit reference to officers and employees. As written, it would seem impossible to exclude unconstitutional subdelegations from this statute. The meaning of “without being relieved of his responsibility,” and the way in which that caveat may affect the constitutionality of certain subdelegations from the Secretary of Defense, are puzzles beyond the scope of this Note. The interesting question of whether the performance of any particular, named function of the Secretary by an employee might be deemed “specifically prohibited by law” in light of the Supreme Court’s significant authority jurisprudence is also beyond the scope of this Note.
Even if housekeeping statutes do authorize agency heads to give employees some amount of what would now be called significant authority, these statutes do not clearly indicate whether an individual employee can receive more than one subdelegated function at a time, let alone a portfolio functionally equivalent to a superior Office’s whole position.168See Comptroller General Letter of 1985, supra note 29, at 4 (“Regardless of what the literal terms of a delegation statute provide, we are aware of no legal precedent, legislative history, or logic to support the assertion that an agency head can delegate all of his functions to a subordinate”); cf. Rebecca Beitsch & Rachel Frazin, Interior Move Keeping Controversial Acting Leaders in Office Faces Legal Scrutiny, HILL (June 9, 2020), https://thehill.com/policy/energy-environment/501735-interior-move-keeping-controversial-acting-leaders-in-office-faces [https://perma.cc/57YC-JKB9] (“Nina Mendelson, a law professor at the University of Michigan, said the legality of the [Department of Interior subdelegation] order depends on just how much authority is being given to the two men. ‘Assigning very limited duties might withstand muster, while a wholesale handing over of the role could be problematic . . . . If it changes one little function maybe we’d have fewer concerns about it, but if it’s transferring a significant number of functions from one office to another office or a particular person, it is potentially illegal,’ she said.”).
To avoid constitutional and logistical difficulties, vesting-and-delegation statutes should be read, at most, to authorize the subdelegation of individual responsibilities, on a piecemeal basis, to subordinate employees.169Cf. Mendelson, supra note 15 (describing how OLC and Government Accountability Office (“GAO”) analyses after the enactment of the FVRA “suggest the legal permissibility of ‘delegation [of particular functions] in the regular course’ of agency management, compared to wholesale delegation that responds to a vacancy.”) (internal citations omitted). Given the capaciousness of vesting-and-delegation statutes and the imprecision of significant authority, there may be no way to fully prevent these statutes, as written, from permitting subdelegations of some significant authority to employees. However, a narrow reading that prohibits agency heads from giving any employee more than one statutory or regulatory function from an Office at a time would help limit this problem.
It is “fairly possible” to read vesting-and-delegation statutes as only authorizing single-function subdelegations to employees.170See Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 348 (1936) (Brandeis, J., concurring) (“When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.”). First, these statutes never reject the single-function reading—i.e., they never state that the subdelegation of packages of statutory and regulatory functions are in fact acceptable. To be sure, a basic principle of statutory construction states that “unless the context indicates otherwise, words importing the singular include and apply to several persons, parties, or things.”1711 U.S.C. § 1. However, courts do, in certain contexts, read language in the singular form, such as “any function,” as not encompassing the plural, such as “a broad range of [functions] at the same time.”172Toy Mfrs. of Amer., Inc. v. Consumer Prod. Safety Comm., 630 F.2d 70, 74 (2d Cir. 1980). In fact, the prevailing position is to only apply the interpretive principle that “statutory language purporting the singular . . . include[s] and appl[ies] to several persons, parties, or things . . . when it is necessary to carry out the clear intent of the statute,” as evidenced by the statute’s legislative history and context.173Franklin Sav. Ass’n v. Dir. of Office of Thrift Supervision, 740 F. Supp. 1535, 1543 (D. Kan. 1990) (discussing Toy Mfrs. of Amer., 630 F.2d at 74); see also First Nat’l Bank v. Missouri, 263 U.S. 640, 657 (1924).
Permitting low-level staff members to exercise broad swaths of rulemaking, adjudicatory, enforcement, and public contracting-related decision-making authority is certainly not necessary for administrative efficiency or simplified bureaucracy—the objectives of vesting-and-delegation statutes.174S. Rep. No. 81-232, at 4–5 (1949). In fact, subdelegating such extensive decision-making authority to lower-level officials may often create inefficiencies. As Professor Jennifer Nou explains, when subdelegating authority, an agency head will have a choice: either review the subordinate’s decision, or commit to letting the decision stand.175Jennifer Nou, Subdelegating Powers, 166 COLUM. L. REV. 473, 485 (2017). Reviewing numerous consequential decisions of subordinates who lack access to the complete information, strategic insight, and political channels that the superior has may in some cases be less efficient than if the superior had made the decision themselves.176See generally id. at 483–90. These risks would probably be amplified in a vacancy context, where an agency head subdelegates extensive power from an unfilled Office to a subordinate. The subordinate would then exercise authority absent a direct superior to serve as a line of first review for their decisions.177See id. at 494–96 (describing the hierarchical, multi-step processes for review of decisions in certain agencies). In such circumstances, additional review and information acquisition efforts might fall to the agency head. On the other hand, whether in a vacancies context or not, honoring a subordinate’s decision always carries with it the risk that the subordinate chose poorly.178See id. at 486. This risk simply multiplies in cases of numerous, high-stakes decisions.
Finally, the single-function reading is arguably the only administrable option other than permitting all subdelegations, no matter how comprehensive. Accepting that the latter position is untenable,179See supra Section III.A. (discussing Bullock); see also Comptroller General Letter of 1985, supra note 29, at 4 (“Regardless of what the literal terms of a delegation statute provide, we are aware of no legal precedent, legislative history, or logic to support the assertion that an agency head can delegate all of his functions to a subordinate”). the single-function approach is the only workable one. It would be essentially impossible to draw a line between one function and all functions that would better address the constitutional concerns associated with subdelegations to employees, or better limit the extent to which policymakers and courts have to wrestle with the almost unanswerable question of how much authority is, as a rule, too much to give an employee.180Cf. Beitsch & Frazin, supra note 168 (relaying comments from Professor Mendelson implying a difficulty in drawing a line between permissible and unconstitutional subdelegations).
A specific project- or proceeding-based approach to subdelegation might be safest in the employee context. Vesting-and-delegation statutes should not be used to subdelegate categorical authorities—such as the general authority over a type of rulemaking or type of adjudication assigned to the agency—to employees, but could be used to hand off individual projects to them. For example, the Secretary of Commerce could permit career staff-members within the International Trade Administration to make the final determination in a particular investigation into whether a specific country remained a non-market economy for the purposes of U.S. trade remedy proceedings.181See 19 U.S.C. § 1677(1). Pursuant to this section of the Tariff Act of 1930, the authority to make non-market economy determinations is assigned to the “Secretary of Commerce, or any other officer of the United States to whom the responsibility for carrying out the duties of the [Secretary] under [that section] are transferred by law.” Id. (emphasis added). Employees are not explicitly mentioned, but no language in 19 U.S.C. § 1677 prohibits officers within the International Trade Administration from further subdelegating this authority, including to employees. The Commerce Secretary could not, however, subdelegate the overall and ongoing statutory authority to assess and finalize these designations generally.182See id. §§ 1677(1), 1677(18). By way of another example, the Secretary of Energy might give an employee authority over one rulemaking proceeding in which the Department is considering specified additions to the list of machinery subject to DOE industrial equipment energy efficiency standards.183See 42 U.S.C. §§ 6211(1)(L), 6312(a)-(c); see also, e.g., 76 Fed. Reg. 37678 (June 28, 2011) (initiating a rulemaking proceeding of this nature). However, the Secretary could not permit this employee to concurrently oversee any other DOE rulemaking or adjudicatory proceedings.
The project-specific approach would further limit the number and extent of subdelegations that raise concerns for temporal reasons.184Cf. Guedes v. Bureau of Alcohol, Tobacco, Firearms, & Explosives, 356 F. Supp. 3d 109, 153 (D.D.C. 2019) (“[A]t some point, courts can and must play a role in policing “acting” appointments that are effectively permanent”). Vesting-and-delegation statutes do not specify just how long subdelegations of significant authority to employees can last and in fact do not qualify the power of agency heads to subdelegate functions with temporal language at all.185See Reorganization Plan No. 3 of 1950, supra note 145; Reorganization Plan No. 2 of 1953, supra note 145; Reorganization Plan No. 5 of 1950, supra note 145; Reorganization Plan No. 6 of 1950, supra note 145; Reorganization Plan No. 1 of 1953, supra note 145, with citations for vesting-and-delegation statutes. Only permitting employees to manage specific rulemaking, adjudicatory, or enforcement projects at a time could limit the duration of these employees’ exercise of significant authority.186In a study of the agency rulemaking process, Jason Webb Yackee and Susan Webb Yackee found that “[t]he median completion time across agencies [to promulgate a regulation] was twelve months and the mean completion time was slightly longer at eighteen months.” James Hobbs, Is the Rulemaking Process Really a Quagmire?, REG. REV. (Jan 17, 2013), https://www.theregreview.org/2013/01/17/17-hobbs-regulatory-breakdown-chapter-8/ [https://perma.cc/X476-F8ZB] (discussing Jason Webb Yackee & Susan Webb Yackee, Delay in Notice and Comment Rulemaking: Evidence of Systemic Regulatory Breakdown? in REGULATORY BREAKDOWN: THE CRISIS OF CONFIDENCE IN U.S. REGULATION 163 (Cary Coglianese, ed., University of Pennsylvania Press 2012).
To be sure, under this project-specific approach, an agency head could still indefinitely subdelegate significant authority to employees by giving them project after project. In addition, in response to a vacancy, an agency head could still disperse all of the functions of the vacant Office across low-level, politically insulated staff such that all functions were still subdelegated but no employee was responsible for more than one of them at a time. The agency head would simply have to divvy up the vacant Office’s portfolio and give individual projects to different employees. Either practice would be constitutionally problematic. The first situation would still create “effectively permanent” inferior Officer appointments,187Guedes, 356 F. Supp. 3d 109 at 153. and the second situation would wholly circumvent a cautious approach to vesting-and-delegation statutes. That said, agency heads may find the costs associated with the project-specific approach too high to justify either strategy.188See generally Nou, supra note 175 (explaining how an agency head’s decision to subdelegate or not is influenced by the transaction costs, including the costs of review and of information acquisition, that will accompany the subdelegation). Distributing projects from a vacant Office between various employees could lead to different staff members gaining oversight over projects with considerable substantive similarities, such that those employees or employee teams would want to exchange insights regarding their respective projects. The information-sharing and collaboration costs associated with this arrangement would be higher than if the same employees were in charge of both projects.189See Michael C. Jensen & William H. Meckling, Specific and General Knowledge, and Organizational Structure, in CONTRACT ECONOMICS 251, 254 (Lars Werin & Hans Wijkander, eds., Blackwell Publishers 1992) (“The limitations on human mental and sensory faculties mean that storing, processing, transmitting, and receiving knowledge are costly activities.”). Further, for tracking purposes, subdelegations usually will be recorded somewhere—whether in published notice-and-comment regulations, informal memos, internal agency meeting minutes, or agency manuals.190See Nou, supra note 175, at 502 (describing agency instruments used to record subdelegations). Arguably, the housekeeping statutes for the DOJ, Interior Department, Agriculture Department, Commerce Department, Labor Department, and Department of Health and Human Services require subdelegations to be documented in some capacity, in that they authorize secretaries to “make such provisions as [they] deem appropriate authorizing” subdelegations of agency functions. Reorganization Plans, supra note 145 (emphasis added); 28 U.S.C. § 510. Under the project-specific approach, the costs of recording and describing subdelegation after subdelegation in these materials may outweigh the benefits of making large-scale, multi-function subdelegations to employees.
C. SUBDELEGATIONS FROM PAS OFFICES TO NON-PAS OFFICES
The use of vesting-and-delegation statutes to transfer significant responsibilities from a PAS Office to an inferior Office for which the Senate has relinquished its Advice and Consent role should also be viewed with skepticism.191See Beitsch & Frazin, supra note 167 (relaying comments from Professor Mendelson expressing this sentiment). It is difficult to determine how many government officials (1) are hired unilaterally by the executive branch and (2) can also be deemed “inferior Officers” based on the authority and discretion they exercise. This difficulty exists for two reasons. First, as this Note explains, the test for Officer status, and also for inferior Officer status in particular, remains ambiguous, malleable, and contested. Second, there are also thousands of agency careerists, unilaterally hired by executive branch principals, who no one would describe as Officers. The best proxy method for determining the number of non-PAS Officers is perhaps to add the number of unilateral President appointees (“PA”) to the number of political appointees within the Senior Executive Service (“SES”). The GAO defines politically appointed SES positions as “the most senior positions in the executive branch that are not required to be filled by Presidential appointment [i.e. can be unilaterally designated by agency heads or the courts] . . . [and] are responsible for operating and overseeing government activities in approximately 75 federal agencies.” U.S. GOV’T ACCOUNTABILITY OFF., GAO-13-299R, CHARACTERISTICS OF PRESIDENTIAL APPOINTMENTS THAT DO NOT REQUIRE SENATE CONFIRMATION, at 37 (2013). In 2013, the GAO counted 321 PA officials and 789 politically appointed SES officials. Id. at 35. By way of this proxy calculation, one can say that there are 1,110 non-PAS Officers in government. This compares with 1,217 PAS officials, as of 2013. Id. Courts already approach cases where Congress bestows significant new functions on existing Offices with caution. This follows from the Supreme Court holding in Shoemaker that Congress can grant existing Offices new statutory duties without them being transformed into new Offices so long as the new duties are “germane” to the original Office.192Shoemaker v. United States, 147 U.S. 282, 300–01 (1893). However, Congress cannot give new, non-germane duties to an existing post, as non-germane duties constitute a distinct Office for which occupants must separately and distinctly meet the requirements of the Appointments Clause. The Supreme Court has never indicated “what degree of similarity is necessary in order for [newly conferred duties] to be constitutionally germane” to an existing position.193Matthew Hunter, Legislating Around the Appointments Clause, 91 B.U. L. REV. 753, 773 (2011). The best the Court has done is to conclude that the duties of army engineers are similar enough to the responsibility to supervise the delimitation, acquisition, and development of Rock Creek Park in D.C.194Shoemaker, 147 U.S. 282 at 283–88. and that the duties of general military officers are germane to those of military judges.195Weiss v. United States, 510 U.S. 163, 175–76 (1994) (“Although Military Judges obviously perform certain unique and important functions, all military officers . . . play a role in the operation of the military justice system. Commissioned officers . . . have the power and duty to ‘quell quarrels, frays, and disorders among persons subject to [the UCMJ] and to apprehend persons subject to [the UCMJ] who take part therein’ . . . Commanding officers can impose nonjudicial disciplinary punishment for minor offenses, without the intervention of a court-martial, which includes correctional custody, forfeiture of pay, reduction in grade, extra duties, restriction to certain limits, and detention of pay . . . A commissioned officer may serve as a summary court-martial or a member of a special or general court-martial. When acting as a summary court-martial or as the president of a special court-martial without a military judge, this officer conducts the proceedings and resolves all issues that would be handled by the military judge, except for challenge for cause against the president of a special court-martial without a military judge . . . Convening authorities, finally, have the authority to review and modify the sentence imposed by courts-martial . . . .”) (internal citations omitted). The Court has also suggested that a germaneness analysis should compare the existing statutory duties of a position, where they exist, to the potential new duties to be conferred.196See id.; see also David R. Stras & Ryan W. Scott, Are Senior Judges Unconstitutional?, 92 CORNELL L. REV. 453, 498 (2007) (“[T]he [Weiss] Court correctly focused on the statutory definition of the original office, rather than the duties typically carried out by the officeholders.”). In Weiss, the only other case in which the Court has considered germaneness, the majority maintained that this test only applies to situations where “Congress [is] trying to aggrandize its power in contravention of the Appointments Clause” by “unilaterally appointing an incumbent to a new and distinct office.”197Weiss, 510 U.S. at 175; see also Hunter, supra note 193, at 773; N.W. Immigrant Rts. Project v. U.S. Citizenship & Immigr. Servs., 496 F. Supp. 3d 31, 60–69 (D.D.C. 2020).
After Weiss, the germaneness test would not seem to offer a solution for comprehensive subdelegations between Offices. In light of the concerning interplay between vacancies and vesting-and-delegation statutes, however, the scope and applicability of the germaneness standard should be revisited. First, Shoemaker’s germaneness test should apply to actions of agency heads, not just to Congressional actions. In his Weiss concurrence, Justice Scalia opined that “a germaneness analysis must be conducted . . . whenever [it] is necessary to assure that the conferring of new duties does not violate the Appointments Clause.”198Weiss, 510 U.S. 163 at 195. What little scholarship on germaneness exists supports Justice Scalia’s view and agrees that Weiss improperly narrowed the germaneness test’s applicability.199See Hunter, supra note 193, at 773 n.128; see also Stras & Scott, supra note 196, at 498–99; P. Dean Brinkley, Military Judges, One Appointment or Two: Weiss v. United States, 30 TULSA L.J. 157, 166 (1994).
Second, the germaneness analysis should consider both the existing statutory and regulatory functions of a position slated to receive new functions from a PAS Office. Generally speaking, regulations enumerate the duties of various Offices, especially non-PAS Offices, with much greater detail than do statutes.200Cf. S. Rep. No. 105-250, at 18 (1998) (“[S]o many executive agency positions filled with the advice and consent of the Senate lack any meaningful statutory duties.”). In fact, a non-PAS Office’s scope may be entirely defined by regulation, whereas the relevant statute may do nothing but name the Office.201See, e.g., 42 U.S.C. § 3533(a)(2) (establishing the Office of the Assistant Secretary for Public Affairs within the Department of Housing and Urban Development and providing that this Assistant Secretary “shall be appointed by the President and shall perform such functions, powers, and duties as the Secretary shall prescribe from time to time.”); see also 43 U.S.C. § 1731(c) (simply naming the position of Associate Director of BLM within the Interior Department but giving no statutory duties to this position). The ALJs in Lucia provide another example of Officers who are named in statute, 15 U.S.C. § 78d–1(a), but have all of their functions, duties, and powers outlined in regulations. See Lucia v. SEC, 138 S. Ct. 2044, 2049–54 (2018). A meaningful germaneness analysis of functions subdelegated from a PAS Office to a non-PAS Office would often require examination of regulations. In order to prevent agency heads from making last-minute changes to rules outlining non-PAS Offices’ duties and thereby manufacturing germaneness as needed, the germaneness analysis could specifically focus on duties described in statutes and notice-and-comment regulations.
Finally, it is worth noting that the Court first announced the germaneness standard in 1893, long before the proliferation of modern vesting-and-delegation statutes. The Court could not have foreseen that the same risks posed by Congress adding new duties to existing Offices—that the constitutional appointments power of one branch of government would be usurped by another202Cf. Shoemaker v. United States, 147 U.S. 282, 300–01 (1893) (“[W]hile Congress may create an office, it cannot appoint the officer.”). —could be posed by the actions of the executive branch itself. Specifically, the Court could not have foreseen that agency heads would someday use broad subdelegation powers to transfer most or all of the functions of PAS Offices to officials that Congress allows the President or agency heads to designate unilaterally.
The germaneness test could in theory serve to limit agency heads from subdelegating comprehensive packages of functions from vacant PAS Offices to non-PAS Offices within the department. However, an attempt to construe vesting-and-delegation statutes to exclude all such reassignments of “non-germane” functions faces the same problems as an attempt to read these statutes as always disallowing the subdelegation of significant authority to employees. Just as the Court has not offered “detailed legal criteria” for significant authority, it has never elaborated upon its germaneness test.203Hunter, supra note 193, at 773; see Lucia, 138 S. Ct. at 2052. As it stands, there would be no uniform way to read vesting-and-delegation statutes so as to ensure that no official ever receives a “non-germane” subdelegated function. Instead, germaneness would inevitably be assessed on a case-by-case basis and with sensitivity to the particular facts and circumstances of each subdelegation.
As a starting point, with germaneness in mind, one could interpret vesting-and-delegation statutes as only allowing agency heads to reassign single statutory or regulatory functions at a time from a particular PAS Office to a non-PAS Office. Though germaneness is a nebulous concept,204See Gary Lawson & Guy Seidman, Taking Notes: Subpoenas and Just Compensation, 66 U. CHI. L. REV. 1081, 1103 n.80 (1999) (describing germaneness as a “slippery concept that is likely to cause problems wherever it appears,” and lamenting how the Court may never be able to construct a more precise definition of germaneness than it did in Shoemaker and Weiss). it is certainly more likely that some functions within a broad subdelegation will be irrelevant to the original functions of the recipient than it is that one subdelegated function will be. Further, if the agency head is required to ensure that a reassignment of functions can be justified as germane, she would be better held to that task under a reading that vesting-and-delegation statutes only authorize the transfer of single functions, one at a time. Trump Administration subdelegation memos usually described the functions being transferred in extremely broad and nonspecific terms.205See, e.g., Mendelson, supra note 1, at 561–63 (describing the Interior Department subdelegation memos). However, an agency head only allowed to subdelegate one function at a time necessarily would describe each subdelegation in greater detail in published memos.206 Not all agencies have rules requiring the publication of subdelegation orders. See Nou, supra note 175, at 502–04. As Lucia indicates, the SEC does have such a rule. See Nou, supra note 163. The Federal Trade Commission also requires subdelegations to be memorialized in published orders or rules. 16 C.F.R. § 0.7(a) (2021).
IV. CONCERNS OVER COMPREHENSIVE SUBDELEGATIONS: FINAL THOUGHTS
There are additional policy reasons to limit large-scale subdelegations. In particular, subdelegations of numerous functions to officials who do not usually perform them likely amplify the confusion, inefficiency, and inaction that formal acting service propagates.207Cf. O’Connell, supra note 1, at 694–99 (discussing how acting leadership and a lack of confirmed officials generally leads to “agency inaction,” declines in “employee morale,” and “uncertainty.”). Professors O’Connell and Mendelson have studied the ways in which acting service creates regulatory and policy stasis.208Id.; see also Anne Joseph O’Connell, Vacant Offices: Delays in Staffing Top Agency Positions, 82 S. CA. L. REV. 913, 937–46 (2009) (discussing how vacancies exacerbate “agency inaction, confusion among nonpolitical workers, and decreased agency accountability.”); Mendelson, supra note 1, at 588–89 (“Especially when the acting individual heads the agency, the lack of Senate-approved leadership may hinder the agency’s effectiveness. The agency may be less effective at advocating its views in the interagency process or before Congress; Senate-confirmed head of an agency gives that agency more authority ‘throughout the government.’ An acting official may be ‘perceived by those around them as [not] having the full authority [of a duly-confirmed officer.]’) (internal citations omitted). They argue that agency staff are less enthusiastic to implement an acting leader’s directives than the directives of a permanent official because the acting leader could be relieved of their position, and a permanent official who might “ignore or reverse their earlier work” could be confirmed, at any time.209See O’Connell, supra note 1, at 697; see also O’Connell, supra note 208, at 941. In addition, subordinates operating in high-level positions on an acting basis likely lack “sufficient stature” and political capital, both within the agency and outside of it, “to implement significant new programs or regulations.”210O’Connell, supra note 208, at 938. These concerns all similarly apply to the case of a subdelegate performing numerous important functions that they usually do not perform, essentially at the pleasure of the agency head.
In the vacancies context, the more functions subdelegated from the vacant office, the greater the risk that the position will go perennially unfilled. Since nearly all of the statutory and regulatory functions of PAS Offices are delegable, subdelegations can obviate the need for confirmed officials.211See Stand Up for Cal.! v. U.S. Dep’t of Interior, 298 F. Supp. 3d 136, 137 (D.C. Cir. 2018); cf. Mendelson, supra note 1, at 559 (describing how “‘unsupervised’ horizontal delegation[s],” through which a superior official subdelegates all of her powers to a subordinate and then leaves the administration, can serve to “effectively eliminate” the superior position). Further, as high-level responsibilities trickle down into the belly of an agency, it may be easier for the agency to wipe its hands of core aspects of government administration altogether. As Orsdol argues, subdelegations to lower-level staff make it “easier for an administration to dissolve positions entirely and subcontract those duties to private companies.”212Van Orsdol, supra note 16, at 312–13.
Significant subdelegations of authority from government Offices, the occupants of which are subject to Senate Advice and Consent, raise constitutional concerns. These concerns arise regardless of whether the subdelegate is a lower-level employee or an inferior Officer who can be appointed unilaterally by the President or an agency head. As a result, statutes that permit agency heads to subdelegate functions from Offices subject to Senate Advice and Consent (“PAS” Offices) should be read to only permit agency heads to subdelegate individual functions on a piecemeal basis. As a separate but related matter, the FVRA’s “first assistant” provisions should be narrowly construed. “First assistants” within the meaning of the FVRA should be confined to individuals who have been Senate-confirmed to other positions that are explicitly, statutorily identified as “first assistants” to the superior vacant Office in question. The alternative reading would allow agency heads to use regulations—or perhaps even informal instruments such as press releases and internal memos—to unilaterally identify the “first assistants” for various PAS Offices.213See Section II for a discussion of the argument that “first assistants” can be designated as such by regulation. Consequently, agency heads could exploit the “first assistant” designation to accomplish exactly what a cautious reading of housekeeping statutes seeks to prevent—large-scale transfers of a vacant or soon-to-be-vacant PAS Office’s responsibilities to any official of the agency head’s choice, including a low-level employee or non-PAS Officer lacking relevant expertise.214In L.M.-M. v. Cuccinelli, the U.S. District Court for the D.C. Circuit considered whether someone in a position designated as the “first assistant” position to a PAS Office after that PAS Office had already become vacant could properly perform acting service under the FVRA. 442 F. Supp. 3d 1, 23–29 (D.D.C. 2020). The court ultimately sidestepped this question. Id. Instead, the court rejected Ken Cuccinelli’s assumption of the Acting USCIS Director position because the “first assistant” position created for him—that of “Principal Deputy Director” of USCIS—was wholly created after the USCIS Director position had become vacant and was “slated to dissolve as soon as a [permanent] USCIS [D]irector was confirmed by the Senate.” John Lewis, Benjamin Seel & Nitin Shah, L.M.-M. v. Cuccinelli: Trump’s Preference for Acting Officials Hits a Wall, LAWFARE (Apr. 23, 2020), https://www.lawfareblog.com/lm-m-v-cuccinelli-trumps-preference-acting-officials-hits-wall [https://perma.cc/92ZU-E3J9]. Thus, the court determined that neither Cuccinelli nor any other “Principal Deputy Director” ever had or ever would “serve in a subordinate role—that is, as an ‘assistant’—to any other USCIS official.” Cuccinelli, 442 F. Supp. 3d at 24. Courts have yet to say that an agency post already in existence but specifically given the “first assistant” label after a superior Office has already become vacant would be an illegitimate “first assistant” position.
These approaches to the FVRA and subdelegation would affect the extent to which agency leaders can reorganize their departments in response to persistent vacancies. Agency heads could no longer transfer packages of functions from vacant PAS Offices to lower-level officials. The resulting constraints on administrative operations ought to incentivize the President to promptly nominate permanent occupants for high-level Offices, as the FVRA itself was supposed to accomplish.215See Mendelson, supra note 15 (“The FVRA’s time limitations on acting officials, together with qualifications requirements and stringent enforcement provisions, were supposed to permit reasonable agency function but still prod presidents to honor the Appointments Clause by promptly nominating individuals for Senate-confirmed posts.”). This approach could help the Senate reclaim its “authority as an institution in the process of appointing important Federal officials” and thus help maintain the integrity of the Appointments Clause—a “significant structural safeguard of the constitutional scheme.”216 144 CONG. REC. S11037 (daily ed. Sept. 28, 1998) (statement of Sen. Fred Thompson) (quoting Edmond, 520 U.S. at 659).
* B.A., University of Pennsylvania, 2016; J.D. Candidate, Harvard Law School, Class of 2022. I am deeply grateful to Professor Jody Freeman for her mentorship, guidance, and valuable feedback as I developed this Note. I also thank Professor Benjamin Eidelson for his helpful comments on drafts of this Note.