Private Delegation Outside of Executive Supervision.

• Author: Mascott, Jennifer L.

INTRODUCTION

Over the past decade, the Supreme Court has reworked the landscape of executive branch supervision. The Court has both addressed the scope of executive officials subject to the Constitution's selection constraints in the Appointments Clause and imposed limits on the tenure protections that Congress can bestow on senior agency officials. This refashioning retrenched the functionalist approach that had taken hold in the twentieth century and culminated in the Court's 1988 blessing of independent counsels with authority to investigate the Executive Branch from within. (1)

The changed course began in the nation's highest court in 2010 when the Supreme Court found the supervisory personnel structure of the Public Company Accounting Oversight Board to be unconstitutional (2) in the form enacted by Congress in the 2002 Sarbanes-Oxley Act. (3) In particular, the Court concluded that Congress had unconstitutionally disrupted the vesting of the executive power in the President by providing significant tenure protections for the Board members who themselves were supervised by tenure-protected Securities and Exchange Commission commissioners. (4) The constitutional reexamination of congressionally crafted personnel structures had first begun several years earlier in the U.S. Court of Appeals for the D.C. Circuit, where newly confirmed then-Judge Brett Kavanaugh first found the Board tenure provisions to be unconstitutional. (5) A majority of the Supreme Court agreed. The Court's opinion, written by the Chief Justice, emphasized the double layer of tenure protections that ensconced powerful governmental positions, making it very challenging for the President to remove or influence the operations of the Board members and interfering with his responsibility to "take Care" that any laws carried out by the Board members were faithfully executed. (6)

Since the recent appointments of Justice Kavanaugh and Justice Neil Gorsuch, the Supreme Court has twice more found certain congressionally enacted tenure provisions to improperly constrain presidential supervision of executive activity via the Article II Vesting Clause. (7) Justice Amy Coney Barrett joined the majority for the second of these two opinions after starting service on the Court in October 2020.

Writing for the Court in both Seila Law v. Consumer Financial Protection Bureau (8) and Collins v. Yellen, (9) the Chief Justice expounded on the structural constitutional problems with Congress imposing any limitations on presidential removal of the head of the Consumer Financial Protection Bureau ("CFPB") (10) and then the Federal Housing Finance Agency ("FHFA"). (11) In both cases, Congress had designed the agencies to exercise significant regulatory power over aspects of the nation's financial systems. And in both cases, there was no easy way for the President to either command agency operations or remove agency directors in the event of policy disagreement. Because one individual exercises more concentrated power at the apex of these agencies than in the multimember commissions like the SEC and the Federal Trade Commission ("FTC"), where multiple commissioners must agree to set direction, the Court found the CFPB and FHFA tenure protections less tenable and more intrusive on the President's vested executive power.

In those two cases, the Court arguably moved even further toward a unitary supervisory theory of the Constitution by finding unconstitutional statutory provisions related to agency heads rather than just a department sub-entity like the PCAOB. The Court again based its holdings on the Vesting Clause and the President's Take Care duties, concluding that power cannot be concentrated "in a unilateral actor insulated from Presidential control." (12)

In addition to challenging the removal structures of executive officials, litigants have also challenged the selection procedures for officials, on the front end, under the Appointments Clause within Article II of the Constitution. The Appointments Clause requires "officers of the United States" to be selected in one of only four different ways. (13) The default requirement is that officers be appointed by the President with Senate consent. Congress can provide that "inferior officers" be appointed in that manner or by the President alone, a department head, or a court of law. (14) Over the past several decades, on several occasions litigants have brought challenges on the ground either that an executive employee was not treated as any kind of officer or that an official was appointed as an "inferior officer" when his level of responsibility really amounted to more of a superior, or "principal," role. (15) Principal, non-inferior officers must be appointed by the President with Senate consent ("PAS"). Previously the Court has found that any officer who lacks a direct supervisor other than the President is a "principal," non-inferior officer. (16)

The Court generally has treated Appointments Clause challenges as their own separate constitutional claim, noting that the Appointments Clause provided a mechanism for electoral accountability and transparency in the selection of officers because if the President or his top officials must publicly select executive officials, then the President clearly bears blame if the official subsequently poorly exercises her authority. (17) The text of the Appointments Clause does not expressly address presidential direction of the authority exercised by those officers once they are appointed. (18) But the Clause's requirements that the President or other senior officials appoint officers have been thought to implicitly mandate that the President must also have a measure of removal authority over his executive officers, which in turn provides for implicit supervisory authority over an officer's performance of executive tasks. (19) The Court also has repeatedly suggested that Article II, section 1's vesting of executive power in the President similarly requires that the President maintain supervisory authority over his subordinate officers through the ability to fire them. (20) In Arthrex v. United States, the Court began to explore whether the Vesting Clause also works in tandem with other Article II provisions like the Appointments Clause to further require that the President or his top lieutenants have the power to direct or reverse the actions of subordinates in addition to having the power to fire them. (21) The Court concluded that in at least a subset of circumstances, the vesting of executive power in the President necessitates that his principal officers have the final say in decisions issued by the executive branch. (22)

If the President must maintain ultimate command over executive branch authority, and if all governmental activity falls under the supervision of one of the three branches, then what kinds of actions can be taken outside of that supervisory control? As administrative agencies exercise increasing authority in the twenty-first century, the Court has begun taking a closer look at this question. The Court's opinions reexamining removal protections, the selection of officials under the Appointments Clause, and the direction of executive branch authority begin to explore the level of decisions that the President and his direct reports must more closely supervise.

In Arthrex in particular, the Court concluded that where appellate judges on the Patent Trial and Appeal Board ("PTAB") issue decisions through inter partes review of already-issued patents, the Director of the U.S. Patent and Trademark Office ("USPTO")--who is a presidential appointee subject to Senate consent (PAS)--must have supervisory authority to review those decisions before they are final within the Executive Branch. (23) The idea presumably was that an official one step removed from the President (as his direct appointee) must have the final say over the inter partes decisions for the Executive Branch. (24) But the Court did not deeply theorize its determination that adequate presidential supervision can be effectuated through PAS decision-making without direct presidential involvement but not by presidential appointees serving one more step down the chain. Indeed, under the facts of the case, the USPTO is nestled within the Commerce Department and the USPTO Director serves as an undersecretary subordinate to the U.S. Commerce Secretary. (25) If the Court's theory of supervision was one-step-removed presidential direction for actions, then the undersecretary's position would seem too attenuated for final say-so for the Executive Branch.

If the theory, on the other hand, is that the possibility of direct removal by the President is adequate to satisfy the exclusive vesting of executive power in the President, then final decisions by the USPTO Director with the rank of undersecretary would suffice. But the removal power generally follows the appointing power, so all presidential appointees--even inferior officers--are assumed removable by the President. (26) It is unclear, therefore, why the Arthrex opinion highlighted PAS status (or so-called "principal officer" status) as the touchstone for adequately supervised executive action as opposed to either direct presidential sign-off or the absence of any intervening link between the President and the decision maker. (27)

Although the opinion and the question presented in Arthrex referenced the Appointments Clause as the relevant constitutional constraint, the decision more generally suggested that the most acute problem with the patent office's structure was that the PTAB's inter partes authority was inconsistent with the constitutional requirement that sufficiently senior executive officials must direct and supervise executive action. (28) Such a requirement is not directly in the terms of the Appointments Clause, which addresses the selection of officials, but it inheres in the Article II Vesting Clause. (29)

Further, the Court's...