Retroactive Appointments and the Appointments Clause
John F. Duffy
jfduffy at law.gwu.edu
Mon Jul 7 13:15:46 PDT 2008
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
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
seems to be unprecedented in its authorization of retroactive
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.
John F. Duffy
Oswald Symister Colclough Research Professor of Law
George Washington University Law School
2000 H Street, N.W.
Washington, D.C. 20052
email: jfduffy at law.gwu.edu
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