Members Seek Information on Health Secretary’s Constitutional Responsibilities for Appointing Dr. Fauci’s Replacement and for NIH Center Director

Washington, D.C. — House Energy and Commerce Committee Chair Cathy McMorris Rodgers (R-WA), Subcommittee on Health Chair Brett Guthrie (R-KY), and Subcommittee on Oversight and Investigations Chair Morgan Griffith (R-VA) sent a letter to Secretary of Health and Human Services (HHS) Xavier Becerra regarding director level vacancies within the National Institutes of Health (NIH), specifically at the National Institute of Allergy and Infectious Diseases (NIAID) and at the Fogarty International Center. 

KEY EXCERPT: 

“Constitutional considerations merit your involvement in the appointments of the vacant NIH IC director positions and reappointments of NIH [Institute or Center] IC directors, who serve five-year terms. There is a legal basis to believe NIH IC directors qualify as inferior officers of the United States under Article II of the Constitution since they exercise significant authority. If NIH IC directors are inferior officers, the HHS Secretary must have some involvement in their appointments to comply with the Appointments Clause of the Constitution.” 

KEY EXCERPT: 

“Constitutional considerations merit your involvement in the appointments of the vacant NIH IC director positions and reappointments of NIH IC directors, who serve five-year terms. There is a legal basis to believe NIH IC directors qualify as inferior officers of the United States under Article II of the Constitution since they exercise significant authority. If NIH IC directors are inferior officers, the HHS Secretary must have some involvement in their appointments to comply with the Appointments Clause of the Constitution.” 

KEY FACTS: 

• The National Institutes of Health (NIH) has two vacant NIH Institute or Center (IC) director positions:  
• One at the National Institute of Allergy and Infectious Diseases (NIAID) 
• Another at the Fogarty International Center 
• Currently, there is no Senate-confirmed NIH Director to help make the appointments. 
• The Principal Deputy Director of NIH, who is the senior official “performing the duties of the Director of the [NIH],” does not have the inherent authority to appoint NIH Institute or Center directors.  
• Such appointment authority could not be delegated to the Principal Deputy Director because Article II of the Constitution assigns the appointment authority of such officials to the HHS Secretary.  
• Thus, under the circumstances, the HHS Secretary needs to participate in making these appointments. 
• Last year, in response to the Chairs March 14, 2022, letter about the reappointments of NIH IC directors, HHS through NIH provided information indicating that in recent years the NIH Director appeared to be solely making the appointments and/or reappointments. 

The Chairs asked for a response to questions regarding appointment decision making by May 5, 2023. 

CLICK HERE to read the full letter.