Volume 21

Ratification of Rules as Retroactive Rulemaking

by Michael A. Poon

When a litigant challenges an agency action, such as rulemaking, based on a relevant official’s unconstitutional appointment or tenure protection, another official often issues a ratification of the challenged action. In some circuits, the ratification defeats the challenge and shields the underlying constitutional defect from judicial review. But long-standing precedent teaches that retroactive government actions are disfavored and thus may be authorized by Congress only in express terms. For example, retroactive rulemaking may be undertaken only if there is clear congressional intent to authorize such rulemaking, apart from rulemaking in general. Because the ratification of rules has the effect of retroactive rulemaking, such ratification may be undertaken only with express authorization for retroactive rulemaking. Even if rule-ratification is not a species of retroactive rulemaking, it still has a retroactive character that requires clear authorization. Such authorization will usually be absent, and the ratifications should usually fail, such that the merits of appointment and removal claims should be reached despite the ratification attempt.


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