The Appointments Clause is one of the United States Constitution’s vital structural limits on government power—it protects liberty by helping to enforce the separation of powers. Over time, as the federal government has continued to grow, conflicts with the structural limits on government power have inevitably increased, and will continue to do so. In response, Congress has increasingly tried to work around those limits, including through the increased use of state actors to achieve federal policy goals under the guise of “cooperative federalism.” In the Appointments Clause context, this can lead to constitutional problems where state actors are taking actions only allowed by Officers of the United States who are appointed pursuant to the Appointments Clause. This paper looks at the historical underpinnings of the clause and the caselaw that has developed around it. The paper then turns to various statutes adopted under the guise of cooperative federalism and calls for a reinvigoration of the Appointments Clause as a means of pushing federal policy back toward competitive federalism and thereby reining in the ever-growing federal administrative state.

Continue reading Unconstitutional Federalism: A Call to Reinvigorate the Appointments Clause