CAN A 'MERE EMPLOYEE' STOP YOU FROM VAPING?: THE APPOINTMENTS CLAUSE APPLIED TO RULEMAKERS.

• Author: Holmes, Melinda

INTRODUCTION

Agencies wield immense power today that the Framers of the Constitution could not have imagined when contemplating the existence of departments within the executive branch. The receding tide of public opinion regarding the trustworthiness of agencies brought with it an increased focus on methods available to check agency action, including hiring requirements for officers under the Appointments Clause. The constitutional methods of appointing officers--presidential appointment with Senate advice and consent, and sole appointment by the President, heads of departments, or courts of the United States--enable the public to hold the political branches accountable for those officers, who are able to exercise authority in governance, and protect the separation of powers among the branches.

The question that follows is: Who is an officer requiring one of these constitutionally designated modes of appointment? It is a question that has been placed before the Supreme Court time and again. Lucia v. SEC, the most recent Supreme Court case on the subject, held that the SEC's administrative law judges (ALJs) are officers but left open important questions about how the Appointments Clause and the Lucia holding might apply in other contexts. (1) Among those are agency decisionmakers who are not ALJs, such as those who sign their names to rulemaking documents.

A group of cases percolating in the lower courts and consolidated in the U.S. District Court for the District of Columbia present the issue of officer status in the rulemaking context. They offer an opportunity to clarify who is an "officer" without the striking similarity to facts that a precedent case like Lucia had to Freytag v. Commissioner, which held that special trial judges (STJs) appointed by the Chief Judge of the United States Tax Court are officers. (2) Hoban v. FDA, Moose Jooce v. FDA, and Rave Salon v. FDA challenge the Deeming Rule, which was issued by the Food and Drug Administration (FDA) under the signature of an individual who was not appointed by one of the constitutionally required methods for officers. (3) These cases present a novel question and an opportunity to further develop the law defining who is an "officer."

This Note analyzes whether actors discharging the rulemaking function of an agency are officers and discusses whether persons not appointed pursuant to the Appointments Clause can constitutionally exercise such power. Part I examines the development of the doctrine over time leading to Lucia. Part II presents possible frameworks for challenges following Lucia. Part III traces delegation of authority from Congress to the agency and from senior agency officials to the individual who actually exercises the delegated authority. In doing so, it explores how the framework should apply in the rulemaking context, focusing on the example presented by litigation challenging the promulgation of the FDA Deeming Rule.

Formally adhering to the demands of the Constitution, which ensures that the lines of accountability within the executive branch remain clear and unobscured, has value in itself. In practice, the FDA Deeming Rule can satisfy the demands of the Appointments Clause merely by having an officer who was appointed in one of the manners prescribed by that Clause formally promulgate the rule. However, the import of that action is the strengthening of political accountability of agencies to the President, particularly in an agency that does not enjoy independence and instead is directly under the control of the President. Thus, formal adherence to the Appointments Clause is essential for the proper balance in our separation of powers, even if, in reality, the solution is merely a different person's signature on the rule.

When regulating the safety of e-cigarettes and vaping, (4) it is important that these regulations are promulgated under the proper authority within the FDA.

1. THE APPOINTMENTS CLAUSE HISTORY AND PRECEDENT--"OFFICER" VERSUS "MERE EMPLOYEE"

   The Appointments Clause fulfills important purposes in maintaining the balance of power among the branches of government and promoting good governance by increasing transparency and accountability. It blends the power of appointing officers between the President and Congress and limits congressional delegation of authority to the executive branch. The text of the Constitution divides this power, stating 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, ... 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. (5) Two key distinctions exist within the Appointments Clause doctrine. The first distinction, between officers and nonofficer employees, is at issue in this Note and is expanded on below. Whether the official in question is an officer or a nonofficer employee determines whether the Appointments Clause applies at all to the hiring of that particular individual. When the individual's position is that of a "mere employee," there is no constitutional significance to how he or she got the job. (6)

   The second distinction, between principal officers and inferior officers, sprung from the two different modes of appointment set out by the Appointments Clause itself. For principal officers, only one mode of appointment is available: presidential appointment subject to advice and consent by the Senate. This can be considered the default for all officers, as inferior officers may also be appointed in this manner, though it is not mandatory. (7) The other mode of appointment needs no Senate participation--only the President, the courts, or a department head is required to appoint these officers. This mode is only available to inferior officers, though they may be appointed using either mode. (8) In either case, the appointment must be by law, and Congress decides the mode.

   These differences in mode of appointment--particularly the blending and checking of powers involved in the first and not the second--balance the conflicting values of efficiency and accountability. (9) Over time, the Supreme Court has developed the doctrine that distinguishes principal and inferior officers. (10) In Morrison v. Olson, the Court held the independent counsel was an inferior officer, (11) though at the same time recognizing that the line between inferior and principal officer was "far from clear" and even stating that the Court "need not attempt here to decide exactly where the line falls between the two types of officers," given that the independent counsel was clearly an inferior officer. (12) Instead of providing a definitive test, Morrison identified several factors that set out the position of independent counsel as inferior rather than principal: it was "subject to removal by a higher Executive Branch official," authorized to exercise "certain, limited duties," and "limited in jurisdiction." (13) This opened the door for the Court to later define the line more clearly. (14) Justice Scalia dissented in Morrison, arguing that separation of powers principles should be the first consideration and, when properly considered, required the opposite decision to "preserve the equilibrium the Constitution sought to establish." (15) Nearly a decade later, in Edmond v. United States, Justice Scalia wrote for the Court, (16) filling in the gap left by Morrison when it had declined to prescribe a definitive test for the line between inferior and principal officers under the Appointments Clause. (17) In Edmond, the Court pointed to the level of supervision of an officer as a relevant consideration: "Whether one is an 'inferior' officer depends on whether he has a superior." (18) Under this test, an inferior officer is one "whose work is directed and supervised at some level by others who were appointed by Presidential nomination with the advice and consent of the Senate." (19) Following Edmond, the test applied by courts to determine the proper mode of appointment under the Appointments Clause has been relatively clear and steady. But the same cannot be said for the test for officers and nonofficer employees.

   The test distinguishing officers from nonofficer employees remains largely unsettled. Challenges in this area arise when a government official is claimed to be a nonofficer employee and is "accused of unconstitutionally wielding the more significant authority of an Officer." (20) In the most recent Supreme Court case on the question, Lucia v. SEC, the Court laid out a two-step framework for determining whether the administrative law judges at issue were officers. (21) First, were the positions continuing? (22) Second, did they exercise significant authority under the law? (23) It is within this second part of the test that the law remains unclear and leaves lingering questions as to who exactly is an officer of the United States.

   1. Development of the Doctrine

      The history of the Supreme Court's Appointments Clause doctrine illuminates the background on which Lucia was decided. Chief Justice Marshall, riding the circuit, described an officer as one in "'a public charge or employment' ... on the part of the United States" performing a "continuing" duty. (24) Later, in United States v. Hartwell, the Court also referred to an office as being a "public station, or employment, conferred by the appointment of government" and "embrac[ing] the ideas of tenure, duration, emolument, and duties." (25) Hearkening back to Hartwell, the Court in United States v. Germaine concluded that the individual in question was not an officer within the meaning of the Appointments Clause based on his "tenure, duration, emolument, and duties." (26) Of particular import to the Court was that the individual's duties were not...