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Wednesday, June 26, 2013


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I think it may be referring to the Supreme Court, which may want to ameliorate an affirmance by some reference to the de facto officer doctrine or musings about how the agency can operate in light of its rulings. Cf. Marathon Oil.

Kent Barnett

For what it's worth, I've published an article that contends that the deputy director's appointment is most likely unconstitutional under the Supreme Court's most recent Appointments Clause jurisprudence. The Director--even if appointed properly himself--does not head a "department" for constitutional purposes and thus cannot appoint inferior officers under the "Excepting Clause." I argue, however, that the Court's doctrine is wrong.

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