This Note analyzes whether actors discharging the rulemaking function of an agency are officers and discusses whether persons not appointed pursuant to the Appointments Clause can constitutionally exercise such power. Part I examines the development of the doctrine over time leading to Lucia. Part II presents possible frameworks for challenges following Lucia. Part III traces delegation of authority from Congress to the agency and from senior agency officials to the individual who actually exercises the delegated authority. In doing so, it explores how the framework should apply in the rulemaking context, focusing on the example presented by litigation challenging the promulgation of the FDA Deeming Rule.

Formally adhering to the demands of the Constitution, which ensures that the lines of accountability within the executive branch remain clear and unobscured, has value in itself. In practice, the FDA Deeming Rule can satisfy the demands of the Appointments Clause merely by having an officer who was appointed in one of the manners prescribed by that Clause formally promulgate the rule. However, the import of that action is the strengthening of political accountability of agencies to the President, particularly in an agency that does not enjoy independence and instead is directly under the control of the President. Thus, formal adherence to the Appointments Clause is essential for the proper balance in our separation of powers, even if, in reality, the solution is merely a different person’s signature on the rule.

When regulating the safety of e-cigarettes and vaping, it is important that these regulations are promulgated under the proper authority within the FDA.



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