Neither Safe, Nor Legal, Nor Rare: the D.C. Circuit’s Use of the Doctrine of Ratification to Shield Agency Action from Appointments Clause Challenges

Abstract

Key to the constitutional design of the federal government is the separation of powers. An important part of that design is the Appointments Clause, which governs how officers of the United States are installed in their governmental positions. Although the separation of powers generally, and the Appointments Clause specifically, support democratically accountable government, they also provide protection to individual citizens against arbitrary 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 cured through its “ratification” by a constitutionally competent officer. This ratification—which precludes a court from addressing a plaintiff’s constitutional claims against the original agency action—is deemed effective even though it need not comport with the procedural and substantive limitations applicable to the original action, and even though the ratifying federal actor need show no willingness 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 (i) U.S. Supreme Court ratification jurisprudence in analogous contexts, (ii) the doctrine of ratification as traditionally understood at common law, or (iii) 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 give up the doctrine altogether, at the very least it should limit the doctrine’s application to cases where the governmental official’s ratification adheres to all of the substantive and significant procedural requirements typically governing the category of action being ratified.

Keywords: Appointments Clause, ratification, separation of powers