The Supreme Court’s Order for Supplemental Briefing in Kennedy v. Braidwood and the Reorganization Plan of 1966

[This post is co-authored with Professor Seth Barrett Tillman.]

On Monday, April 21, the Supreme Court heard oral argument in Kennedy v. Braidwood Management. On April 25, the Supreme Court requested supplemental briefing in the case:

The parties are directed to file supplemental letter briefs addressing the following question: Whether Congress has “by Law” vested the Secretary of the Department of Health and Human Services with the authority to appoint members of the United States Preventive Services Task Force. U. S. Const. art. II, §2, cl. 2. The briefs should address this Court’s decisions in United States v. Hartwell, 6 Wall. 385 (1868), and United States v. Smith, 124 U. S. 525 (1888).

In this case, first the Biden and now the Trump Administration have asserted that the Secretary of HHS has the statutory authority to appoint members of a Task Force. And both administrations have asserted these positions are inferior officers. The government has cited several sources of authority to support its position that the Secretary of HHS has been vested with the power to appoint Task Force members.

One of these sources is Reorganization Plan No. 3 of 1966, 80 Stat. 1610. For example, Secretary Becerra’s order appointing members of the Task Force provides:

Consistent with Article II, § 2, cl. 2 of the Constitution, and by virtue of the authority vested in the Secretary of Health and Human Services, including but not limited to Section 6 of Reorganization Plan No. 1 of 1953, and Sections 1 and 2 of Reorganization Plan No. 3 of 1966, the Secretary of Health & Human Services, Xavier Becerra, hereby ratifies the prior appointment of, and prospectively appoints:

The government cites the 1966 Reorganization Plan at pages 7-8 of its merits brief:

In addition, Congress has vested the Secretary with significant supervisory authority over the Public Health Service, which includes AHRQ and the Task Force. In Reorganization Plan No. 3 of 1966, 80 Stat. 1610 (Reorganization Plan), “all functions of the Public Health Service” and of its “officers,” “employees,” and “agencies” were transferred to the Secretary, § 1(a), 80 Stat. 1610; see Act of Oct. 19, 1984, Pub. L. No. 98-532, 98 Stat. 2705 (ratifying the Reorganization Plan as law). Congress has also empowered the Secretary to “make such provisions as he shall deem appropriate authorizing the performance of any of the functions transferred to him by the provisions of this reorganization plan by any officer, employee, or agency” of the Public Health Service or HHS. Reorganization Plan § 2, 80 Stat. 1610. [bold added]

The Reorganization Plan of 1966 was also raised at the outset of oral arguments:

JUSTICE THOMAS: Before we get to the constitutional problems, what’s the statutory authority to appoint the Task Force?

MOOPPAN: So there are two sources of authority, Your Honor. The first is that under the Reorganization Act, the Secretary has the power to exercise all functions and duties of the director, and the director, under 299, has the authority to convene the Task Force.

JUSTICE THOMAS: Isn’t that an odd delegation? Normally, it would be the superior or the principal officer who would have the authority who would delegate it to subordinates.

MOOPPAN: Well, it’s not just a delegation, Your Honor. The Reorganization Act was in place when 299 was enacted. And so, when Congress passed 299 and said that the director could convene the Task Force, that meant that the Secretary could convene the Task Force.

It seems the government’s statutory argument turns on the Reorganization Plan. Several other Justices asked about the Reorganization Plan of 1966.

Mooppan refers to the Reorganization Plan of 1966 as an “Act.” But it is not an Act of Congress. So what is the Reorganization Plan of 1966? And does it vest the Secretary with the power to appoint Task Force members? The answer is a bit complicated.

The Reorganization Plan of 1966 was not a statute passed through bicameralism and presentment. Statutes at Large includes this notation:

Prepared by the President and transmitted to the Senate and the House of Representatives in Congress assembled, April 25, 1966, pursuant to the provisions of the Reorganization Act of 1949, 63 Stat. 203, as amended.

“Huh,” you might be asking yourself? Basically, the President signed an executive memoranda, and then, he sent a copy to Congress. Congress did not approve it or even vote on it. And that plan was then published in Statutes at Large. This is not Article I, Section 7, Clause 2 bicameralism and presentment. This Plan, at least as things stood in 1966, was not a statute. This is something like the  one-house veto at issue in INS v. Chadha. As we explain below, either House could have vetoed the plan; though this apparently never happened. See Dr. Darren A. Wheeler, Implementing INS v. Chadha: Communication Breakdown?, 52 Wayne L. Rev. 1185, 1215-16 (2006)

The government argues that Secretary Kennedy has statutory authority to appoint the Task Force members under the Reorganization Plan. For that argument to work, the Reorganization Plan must be “law.” Why? The Appointments Clause provides that “Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.” But the phrase “by law” means by statute. As Justice Thomas observed in Lucia, “For federal officers, that duty is ‘established by Law’—that is, by statute.” See generally Seth Barrett Tillman & Josh Blackman, Offices and Officers of the Constitution: Part III, The Appointments, Impeachment, Commissions, and Oath or Affirmation Clauses, 62 South Texas Law Review 349, 378-80 (2023) (expounding on the  meaning of “by law” and collecting authority).

The 1966 Reorganization Plan, standing by itself, is not a statute. Therefore, the plan could not vest the Secretary with the authority to appoint the task force members “by law.”

The inquiry does not end here. The 1966 Plan cites the Reorganization Act of 1949 (Pub. L. 81-109, June 20, 1949, ch. 226, 63 Stat. 203). This statute was passed through bicameralism and presentment. 

Section 3 of the 1949 Act authorizes the President to transmit a reorganization plan to Congress. And Section 6 provides that the plan “shall take effect” and that the plan will permit certain authorized changes within the organization of the executive branch so long as both Houses of Congress do not pass a resolution of disfavor. (See U.S. const. Article I, Section 7, Clause 3 (using “take effect”-language in regard to congressional procedures beyond the ambit of Article I, Section 7, Clause 2.)

Section 5(a)(4) of the 1949 statute imposes an important limitation:

No reorganization plan shall provide for, and no reorganization under this Act shall have the effect of . . . authorizing any agency to exercise any function which is not expressly authorized by law at the time the plan is transmitted to the Congress. [italics added]

The 1949 Act seems to have its roots in a 1939 statute. Reorganization Act of 1939, ch. 36, Apr. 3, 1939, § 6(c), 53 stat. 561, 563. This 1939 statute contains a provision similar to Section 5(a)(4):

No reorganization under this title shall have the effect—(c) of authorizing any agency to exercise any function which is not expressly authorized by law.

We have to give some more thought to whether the 1949 Act would violate the principles of Chadha. On the one hand, the President can make changes that have the force of law, unless Congress disapproves of the law. This process seems to violate principles of bicameralism and presentment. On the other hand, the President cannot increase the power of an agency, so maybe there is no lawmaking going on. Maybe the best way to reconcile these statutes under Chadha is that the 1966 Plan cannot vest the Secretary with any new legal authority that he did not already possess.

We do not think the 1966 Reorganization Plan could invoke the 1949 Act to vest the Secretary with the authority to appoint task members by law. In other words, the Secretary would only have that appointment power if some other statute “expressly authorized by law” that appointment power. The 1966 Plan, read in tandem with the 1949 Act, would not be sufficient.

We would have to do more research, but we found only one relevant decision that addresses the scope of Section 5(a)(4), Copper Plumbing & Heating Co. v. Campbell, 290 F.2d 368, 373 (D.C. Cir. 1961). Here, the court avoided the limitation as it found the agency already had the asserted power.

Appellants refer to the views expressed by the Comptroller General in a letter to the Secretary. The Comptroller General followed the recommendation of the Secretary in the instant listing, but in the letter expressed the opinion that the debarment regulation offended section 5(a)(4) of the Reorganization Act. He reasoned that since this section of the Act precludes a plan which authorizes “any agency to exercise any function which is not expressly authorized by law at the time the plan is transmitted to the Congress,” the debarment condition, which had not been adopted by the contracting agency, was unauthorized. But the debarment regulation does not enlarge functions theretofore residing in the agencies. Those functions, insofar as material, included the power to enter into contracts in accordance with relevant statutes. This included the authority by regulation to prescribe appropriate standards for securing compliance with the labor provisions, and this in turn, as we believe, included authority to include the debarment provision. The transfer to the Secretary was a transfer and coordination of authority already reposing within the several agencies.

Assuming this atextual analysis is correct, we do not think the Secretary’s purported power to appoint inferior officers was “already reposing within” HHS. Indeed, the Solicitor General cited the Reorganization Plan precisely because this power was not clearly vested elsewhere.

In 1969, William H. Rehnquist, as head of OLC, concluded that:

The legislative history of [Section 5(a)(4)], which originated in the Reorganization Act of 1939, makes clear that it was intended to prevent the President, under the guise of consolidating and rearranging, from actually creating authority in the Executive Branch which had not existed before. DOJ Memorandum: Whether section 3(a) of Reorganization Plan No. 1 of 1969 is in harmony with section 5(a)(4) of the Reorganization Act of 1949, 63 Stat. 205, 5 U.S.C. § 905(a)(4) (Sept. 11, 1969), Exhibit 1, House Subcommittee Hearings on Reorganization Plan No. 1 of 1969 (ICC), Sept. 26, 1969 at 29 (91st Cong., 1st sess.).

In 1980, OLC opined on the scope of Section5(a)(4), which was later codified at 5 U.S.C. § 905(a)(4). OLC observed:

But for the reasons we have given, Executive Order No. 11556 could not have expanded OTP’s powers beyond what was granted by statute, and in any event a reorganization may not have the effect of . . . authorizing an agency to exercise a function which is not expressly authorized by law at the time the plan is transmitted to Congress.” 5 U.S.C. § 905(a)(4). Thus Reorganization Plan No. 1 of 1977 does not give NTIA any additional statutory authority. Authority of National Telecommunications and Information Administration to Monitor Radio Communications, 4b Op. OLC 400, 402 n. 2 (Feb. 12, 1980) (bold added).

The inquiry still does not stop here. Fast-forward to 1984. The 98th Congress passed a statute that ratified all reorganization plans (Pub. L. 98-532, Oct. 19, 1984, 98 stat. 2705). This statute was passed as part of a legislative response to Chadha. The statute provides:

SECTION 1. The Congress hereby ratifies and affirms as law each reorganization plan that has, prior to the date of enactment of this Act, been implemented pursuant to the provisions of chapter 9 of title 5, United States Code, or any predecessor Federal reorganization statute.

SEC. 2. Any actions taken prior to the date of enactment of this Act pursuant to a reorganization plan that is ratified and affirmed by section 1 shall be considered to have been taken pursuant to a reorganization expressly approved by Act of Congress.

It seems the Reorganization Plan of 1966, though not initially enacted as a statute, should be treated as a statute following the 1984 Act. It appears Congress attempted to engineer full statutory ratification through bicameralism and presentment. But was this attempt at ratification effective? 

Chief Justice John Marshall addressed this issue in U.S. v. Maurice. 26 F. Cas. 1211 (C.C. D. Va. 1823) (No. 15,747). Marshall took the position that where Congress creates a duty to be fulfilled by the Executive Branch or the President, the default is that the President makes use of extant human resources in the Executive Branch. And where Congress intends to authorize the President to make use of new human resources, Congress will either “expressly” authorize “by law” the creation of statutory offices, or Congress will authorize the President to “employ [via employees under contract] such persons as he might think proper.” Id. at 1214. Where office-creation was defectively authorized in the first instance, such authorization can be validated, ratified, or regularized by subsequent “legislative recognition” in the form of a statute. Id. at 1215. 

Here, in 1984, Congress did not enact or re-enact the text of the 1966 Plan, and there was no express grant of any power to create new offices. Rather, the 1984 act incorporated the 1966 plan by reference and directed the Executive Branch and courts to treat the 1966 plan “as law.” So ratified or not, we are left without any express authority, in any apparent instrument, to create offices, and we are left without any express legislation recognition of an extant office initially created absent valid authorization. Moreover, for Congress to affirm that some extra-statutory document should be treated “as law” is not the same thing as Congress enacting the text of that document into a statute. That might have been Congress’s intent, but it is not what Congress actually did. To put it another way, the text of the Appointments Clause demands that “offices” be “established by law,” that is, by statute. Here, Congress (at most) authorized office-creation through a legal instrument with direction that that instrument be treated “as law” but not enacted as a statute. Is that sufficient to comply with the “established by law” sub-provision of the Appointments Clause?

Additionally, United States legislative practice has no rich tradition of drafting statutes via incorporation by reference, which is what Congress did here. Indeed, the language used in Section 1 of the 1984 statute, that is, “Congress hereby ratifies and affirms as law,” is unique—such language appears nowhere else in the U.S. Code. On the other hand, other courts have upheld similar far-reaching legislation-by-incorporation practices as valid. See Director of Public Prosecutions v Leontjava, [2004] IESC 37 [82] (Keane, CJ, of Ireland) (“[T]he Constitution affords a strikingly wide latitude to the [national legislature] in adopting whatever form of legislation it considers appropriate in particular cases.”), https://www.bailii.org/ie/cases/IESC/2004/37.html.

All that leaves a related unresolved issue: What about Section 5(a)(4) of the 1949 Act? Does that limitation remain in force? 

We think the 1949 Act continues to limit the 1966 Plan/Act. The 1949 Congress did not enact that limitation to avoid a Chadha problem. Indeed, legislative vetoes were quite common at the time. Rather, it seems that Congress only wanted the President to rely on pre-existing statutory authorities. 

The legislative history, for those who care to cite it, suggests that all limitations do remain in place. In 1984, the Chairman of the House Government Operations Committee stated this bill was “a technical, nonsubstantive matter which will preserve the status quo.” The Director of the Office of Management and Budget agreed. He urged “urge the Congress to act quickly, to avoid disruption of authorities which have been previously transferred in accord with congressional intent.” Ratification of Reorganization Plans: Hearing on H.R. 6225, Sep. 20, 1984 at 7 (Letter from OMB Director David Stockman to the Chairman of the House Committee on Government Operations, Sep. 19, 1984).

There are further reasons to see that the limitation remains in place. If the 1949 Act in fact granted the executive such broad, uncabined legislative authority, we think there would be an actual nondelegation doctrine problem: the President could reorganize the executive branch, and grant statutory authority, without an actual statute. Indeed, this power would include the power to appoint inferior officers! At the very least, the major questions doctrine would counsel reading the Section 5(a)(4) as still limiting the 1966 Plan. In that case, we don’t think the government’s assertion of this authority is sufficient to show the appointment power is vested in the Secretary “by law.”

With the Court’s request for briefing, this inquiry may be worthwhile to pursue. Indeed, there may be a statutory path to resolve this constitutional question.

The Supreme Court also asked the parties to address “United States v. Hartwell, 6 Wall. 385 (1868), and United States v. Smith, 124 U. S. 525 (1888).” The relationship between these two cases is not obvious. Indeed, these precedents  are hardly part of the received case law canon. The Solicitor General only cited Hartwell in a single paragraph in the reply brief. The Petitioner did not cite Hartwell at all. Neither party cited Smith. We think we see what the Court was inquiring about, admittedly, we are not entirely sure.

The final paragraph of Smith distinguishes that case from Hartwell:

The case of U.S. v. Hartwell, 6 Wall. 385, does not militate against this view. The defendant there, it is true, was a clerk in the office of the assistant treasurer at Boston, but his appointment by that officer under the act of congress could only be made with the approbation of the secretary of the treasury. This fact, in the opinion of the court, rendered his appointment one by the head of the department within the constitutional provision upon the subject of the appointing power. The necessity of the secretary’s approbation to the appointment distinguishes that case essentially from the one at the bar. [emphases added]

In Hartwell, the statute required that the Secretary approve of the appointment. In Smith, the statute did not require that the Secretary approve of the appointment. The key point in distinguishing these cases is not whether there is statutory authority to create an office, but whether or not the statute vests, either a principal officer or the President, with the power to appoint a person to the office. If there is no statute vesting appointing authority in the Secretary (or, by implication, in the President), then there is no authority to fill the position. And if there is no authority to fill the position, then the mandatory requirements of the Appointments Clause and the Inferior Office Appointments Clause have not been complied with.

This litigation has focused closely on whether the task force members are “principal” of “inferior” officers of the United States. But the Court’s request for supplemental briefing, seems to shift focus to whether any of the appointments of Task Force members in Kennedy v. Braidwood Management, by the Secretary were supported by some statute. Indeed, the Court’s focus on Hartwell and Smith may suggest the Court believes only express statutory authority is permissible to validate an exercise of the appointment power by an inferior officer.

If the positions of Task Force members are not filled consistent with the Appointments Clause and Inferior Office Appointments Clause, that is, if members are not appointed under the authority of a statute, then the purported office-holders are not officers of the United States of any stripe, principal or inferior. At most, they would be “employees.” And, as a general matter, we do not think employees can exercise the “significant authority” of an officer of the United States. (We made this point during the Special Counsel litigation.) Suche employees  certainly cannot be vested with any sort of “independence” vis-a-vis principal officers and the President Here, and elsewhere, so much turns on whether a person is or is not an officer of the United States.