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Abstract

Key to the constitutional design of the federal government is the separation of powers. An important support for that separation is the Appointments Clause, which governs how officers of the United States are installed in their positions. Although the separation of powers generally, and the Appointments Clause specifically, support democratically accountable government, they also protect individual citizens against abusive government power. But without a judicial remedy, such protection is ineffectual—a mere parchment barrier.

Such has become the fate of the Appointments Clause in the D.C. Circuit, thanks to that court’s adoption—and zealous employment—of the rule that agency action, otherwise unconstitutional under the clause, may be “ratified” by a constitutionally competent officer. This ratification precludes a court from addressing a plaintiff’s constitutional claims against the original agency action. It is deemed effective regardless of whether it comports with the procedural and substantive limitations applicable to the original action. It is effective as well even if the ratifying federal actor makes no effort to abandon the decision-making procedures that led to the alleged constitutional violation.

The D.C. Circuit’s ratification defense should be abandoned. It cannot be squared with United States Supreme Court ratification jurisprudence in analogous contexts, the doctrine of ratification as traditionally understood at common law, or an appropriately vigorous judicial enforcement of the separation of the powers. But if the D.C. Circuit (or the Supreme Court, once it has the opportunity to address the question) does not wish to discard the doctrine altogether, at the very least it should limit the doctrine’s application to cases where the official’s ratification adheres to all of the substantive and significant procedural requirements that typically govern the type of action being ratified.

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