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Home > Law > DePaul Law Review > Vol. 75 > Iss. 4

 

Abstract

Pragmatism is the hallmark of two recent Supreme Court

decisions on the separation of powers, Kennedy v. Braidwood

Management, Inc., and Federal Communications Commission

(FCC) v. Consumers’ Research. These cases, which dealt with the

Appointments Clause and the nondelegation doctrine (public and

private) respectively, reject a rigid, literalist approach. Instead,

these decisions strive to make government workable, in the process

facilitating implementation of Congress’s plans.

Both Braidwood and Consumers’ Research decline to require

Congress to recite “magic words” or lock in future executive branch

officials with mechanical formulas or caps on fees. Instead, each

decision looks at legislation in context. Viewed in that fashion clears

space for productive interactions between superior and subordinate

government officials and between agencies and private entities.

Enforcement decisions illustrate the stakes of these

Appointments Clause issues. Today, with a government that reaches

into most corners of life, decisions about initiating litigation or

regulatory activity have substantial ramifications, as the Supreme

Court recognized in analyzing the inter partes process of patent

review in United States v. Arthrex. Most such decisions should be

the province of gold-standard principal-officer appointees whom

the President has nominated subject to the Senate’s advice and

consent.

However, a measure of flexibility is helpful in guarding against

brittleness. Authors of mere policy inputs such as those from the

regional fishery councils proposing fishery management plans do

not require the gold standard. Control over those inputs by a

principal officer is sufficient. Similarly, a private delegation such as

Congress’s handoff of medication monitoring and policing to the

Horse Racing Integrity and Safety Authority (HRISA) passes muster

if an agency such as the FTC, run by principal officers, retains

control.

Things become more complex when a principal officer lacks the

capacity to require pre-approval of initiation of litigation.

Responding to this concern, this Article identifies three factors that,

taken together, justify that flexibility. The factors are a structural

shortfall that undermines executive-branch functioning; pedigree in

English history or through national consolidation in the presidency

of James Monroe to show that a given departure is fair and feasible;

and substantive tailoring to ensure that the inferior officers clause

does not banish the gold standard to oblivion.

This three-fold test illuminates issues that might otherwise seem

obscure. Relators’ suits under the False Claims Act reflect a

structural shortfall in policing of government contracts and

payments caused by corruption and capture. However, the

equivocal pedigree of qui tam (on the sovereign’s behalf) litigation

in the Founding Era and beyond suggests the need for substantive

tailoring.

Accountability in appointments and private delegations is a

mere parchment slogan without the aid of pragmatic adjustments in

appropriate cases. By the same token, pragmatism devolves into

unprincipled expedience if it loses sight of overarching values such

as accountability. The pragmatic approach of this Article seeks to

further that dialogue.

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