Retroactive Appointments and the Appointments Clause

[John F. Duffy]

I'd like thoughts on whether, consistent with the Appointments Clause, 
Congress can authorize an appointment of an officer to "take effect" 
years prior to the date on which the officer was actually appointed.  
Here's the context in which this question is actually arising right now: 

Congress in 1999 attempted to vest the appointment of certain officers 
known as "administrative patent judges" in the Director of the Patent 
and Trademark Office, who is also the Under Secretary of Commerce for 
Intellectual Property.  It's pretty clear that these judges have 
sufficient power to qualify as "Officers of the United States" for 
purposes of the Appointments Clause, and thus all of the appointments by 
the Under Secretary are constitutionally invalid.  See  
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1128311; for news 
coverage of the problem see Adam Liptak, In One Flaw, Questions on the 
Validity of 46 Judges, New York Times (May 6, 2008) available at 
http://www.nytimes.com/2008/05/06/washington/06bar.html. 

Congress now seems ready to fix the problem.  Prospectively, the problem 
is easily fixed by shifting the appointment power to the Secretary of 
Commerce.  But Congress also wants to fix the problem "retroactively."  
In other words, Congress would like to have a fix that terminates the 
Appointments Clause challenges currently being litigated in the courts 
by parties who appeared, and lost their cases, before unconstitutionally 
composed panels of these judges.   The retroactive fix would give the 
Secretary of Commerce the power to appoint the judges so that the 
appointment "takes effect" some time prior to the date of the actual 
appointment (in most cases, many years prior to the date of 
appointment).  Here's the language: 

    ''(c) AUTHORITY OF THE SECRETARY.--The Secretary of Commerce may, in
    his or her discretion, deem the appointment of an administrative
    patent judge who, before the date of the enactment of this
    subsection, held office pursuant to an appointment by the Director
    to take effect on the date on which the Director initially appointed
    the administrative patent judge.

Do people think such "retroactive appointments" are constitutional?  
This issue seems fairly important and fundamental, and the proposed 
legislation (complete text here 
http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=110_cong_bills&docid=f:h6362ih.txt.pdf) 
seems to be unprecedented in its authorization of retroactive 
appointments. 

Here are some thoughts on a few ways to analyze the issue: 

1.  Marbury v. Madison:  Before reaching its constitutional holding that 
it had no jurisdiction, Marbury includes a lot of language about the 
time at which appointments take effect.  Much of this analysis seems to 
assume a certain temporal relationship between appointment and the 
exercise of power --- namely, that a constitutional appointment comes 
first, the exercise of power only thereafter.  Of course, the Court was 
not considering retroactive appointments, so the language seems to be 
not directly on point (and the Court didn't have jurisdiction any way!). 

2.  Retroactive legislation:  Though constitutional challenges to 
retroactive legislation are sometimes successful (Eastern Enterprises v. 
Apfel, 524 U.S. 498 (1998)), there is no per se rule against such 
legislation.  However, what's retroactive here is the appointment, not 
the legislation, so the doctrines governing retroactive legislation do 
not seem to apply directly. 

3.  Extinguishing Constitutional Claims:  If it were constitutional, the 
retroactive appointment provision would extinguish currently pending 
constitutional challenges that (let's assume) would be have been 
sustained by the courts.  Are there other examples where Congress has 
been able to pass ordinary legislation that changes the outcome of 
ongoing constitutional litigation?  Of course, Congress might be able to 
strip court jurisdiction, but then the courts never pass on the 
constitutional claim.  Bivens suggests that legislation can affect the 
choice of remedy for a constitutional violation, but only if the remedy 
is "equally effective in the view of Congress." 

The Department of Justice has so far defended against these 
constitutional challenges to the judges (as they currently appointed) by 
relying on the "de facto officer" doctrine which, in at least some 
circumstances, allows courts to recognize the validity of actions by "de 
facto" officers who did not hold a constitutionally valid appointment.  
A retroactive appointment theory is needed only if the de facto officer 
doctrine defense would lose in court, so for purposes of discussing the 
constitutionality of retroactive appointments, let's assume that the de 
facto officer doctrine defense would lose.  (In a similar case involving 
the Appointments Clause challenges to invalidly appointed executive 
branch judges, the defense lost 9-0 at the Court in 1995, which was the 
last time the DOJ attempted to rely on it). 

If anyone has an opinion on the constitutionality of retroactive 
appointments, I'd love to hear it.  Also if anyone can think of another 
way to analyze the issue, I'd be interested in that too. 

Thanks. 

John. 

-- 
John F. Duffy
Oswald Symister Colclough Research Professor of Law
George Washington University Law School
2000 H Street, N.W. 
Washington, D.C.  20052
phone: 202-994-0014
email: jfduffy at law.gwu.edu

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