"In this way, both the President and the
Senate are held accountable for those who wield
significant authority of the United States. United
States v. Arthrex, Inc., 141 S. Ct. 1970, 1979 (2021)."
"Yet the Senate must
confirm these officers, “serv[ing] both to curb
Executive abuses of the appointment power, and to
promote a judicious choice of persons for filling the
offices of the union.” Edmond, 520 U.S. at 659
(cleaned up). In this way, both the President and the
Senate are held accountable for those who wield
significant authority of the United States. United
States v. Arthrex, Inc., 141 S. Ct. 1970, 1979 (2021)."
"Yet in its decision, a divided panel of
the Sixth Circuit refused to recognize any temporal
limitations on “acting” officers. "
"As Judge
Thapar explained in dissent, this decision allows the
President and Congress to “scrap” the Appointments
Clause altogether. Pet. App. 32."
"The Sixth Circuit’s holding that there are
effectively no constitutional limits on the tenure of an
acting official is an outlier. In fact, it diverges from
courts that have considered this issue, including the
D.C., First, Fourth, and Federal Circuits. "
If a temporary appointment
were not really temporary, “the structural protections
of the Appointments Clause” would be “avoided based
on . . . trivial distinctions.” N.L.R.B. v. Sw. Gen., Inc.,
580 U.S. 288, 314 n.1 (2017) (Thomas, J., concurring).
Constitutional text, history, and precedent all indicate that, if an “acting” official exercises the duties
of a principal officer, that official may only serve
without Senate confirmation for up to six months or
at most two years. Pet. App. 40–44 (Thapar, J.,
concurring in part and dissenting in part). Thus, the
over four years that the “Acting” FHFA Director
wielded power far exceeds any constitutionally
permissible line or fair understanding of Eaton’s
“limited time” and “special or temporary conditions.”
And, at the time of the challenged actions in this case,
the “Acting” FHFA Director had been serving for over
three years, which certainly crosses that line as well.
Sw. Gen., Inc., 580 U.S. at 314 n.1 (Thomas, J.,
concurring) (explaining there is “nothing special or
temporary” about serving “more than three years in
an office limited by statute to a 4–year term, and . . .
exercis[ing] all of the statutory duties of that office”).
In fact, so far in this litigation, the Government has
failed to identify a single acting official during the
first two hundred years of the Constitution that
exercised the power of a principal officer without
Senate confirmation for as long as the “Acting” FHFA
Director did."
AI
