Deep Dive Episode 65 – Subdelegations of Rulemaking Power and the Appointments Clause

Regulatory Transparency Project and Administrative Law & Regulation Practice Group Teleforum

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The strictures of the Appointments Clause are receiving renewed attention in the courts, including the Supreme Court. A year ago, the High Court ruled that the SEC’s administrative law judges must be appointed in conformity with this clause, and it has placed another Appointments Clause case on the docket for its next term. In Buckley v. Valeo (1976), the Court held that rulemaking was a significant government power such that rulemakers must be appointed in conformity with the Clause, but it had no reason to address whether rules must be issued by principal officers or could also be issued by inferior officers.

On behalf of nine vaping retailers, Pacific Legal Foundation is challenging the FDA’s "Deeming Rule" issued by a career employee, Leslie Kux. A new research study of HHS rules over a 17-year period, also by PLF, found that nearly two-thirds of HHS regulations were issued by non-Senate-confirmed staff. Within FDA, 98% of its rules (1,860 of them) were issued by civil service employees in career positions like that held by Ms. Kux. In the pending litigation, FDA argues that Ms. Kux was also an inferior officer when she issued rules, and that inferior officers may lawfully issue such binding rules, even if no supervisor may subsequently change them without a new rulemaking process.

The speakers examine a variety of topics related to the subdelegation of rulemaking power, including the creation of offices by department heads and who within those offices can lawfully exercise rulemaking power.

Featuring:

  • Todd F. Gaziano, Chief of Legal Policy and Strategic Research and Director, Center for the Separation of Powers, Pacific Legal Foundation
  • Prof. Anne Joseph O'Connell, Adelbert H. Sweet Professor of Law, Stanford Law School
  • [Moderator] Prof. Kristin E. Hickman, Distinguished McKnight University Professor and Harlan Albert Rogers Professor in Law, University of Minnesota Law School

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