Yonatan Gelblum has posted Redelegating Authority to Appoint Inferior Officers: Blank Commissions, Eaton‘s Forgotten Holding, and the Political Accountability Myth, 19 Drexel Law Review (forthcoming 2026/27), on SSRN. Here is the abstract:
The Excepting Clause at the end of the Appointments Clause permits Congress to “vest the Appointment of . . . inferior Officers . . . in the President alone, in the Courts of Law, or in the Heads of Departments,” without expressly stating if these actors can redelegate this authority to others. In its 1898 ruling in Eaton v. United States, the Supreme Court upheld an appointment by an official to whom a statute allowed the President to redelegate appointment authority, but there has been almost no recognition that Eaton sanctioned such redelegations. They appear at first blush to conflict with the common mantra that the Appointments Clause furthers political accountability by limiting who can make appointments, and last year, in Kennedy v. Braidwood Management, Inc., the Supreme Court summarily asserted in dicta that they are unconstitutional. This Article challenges Braidwood‘s dicta and argues that Eaton correctly construed the Excepting Clause as permitting Congress to allow redelegations of the authority it vests to appoint inferior officers. The Framers expressly anticipated the use of “Blank Commissions” to redelegate this authority, and historical practice as well as constitutional text indicate that such redelegations are permissible. The Article also argues that such redelegations do not undermine the Excepting Clause’s purposes, and in the process challenges conventional wisdom by demonstrating that furthering democratic accountability was not one of these purposes. The Article concludes by examining how redelegating appointment authority can help agencies improve efficiency, depoliticize adjudicatory or other processes, and mitigate legal hazards.
Very interesting!