Focus on Inferior Officer Appointments and Political Accountability Heightened as Transition in Administration Begins

Washington, D.C. — In a new report issued by House Energy and Commerce Committee Republican staff outlined Department of Health and Human Services (HHS) Secretary Xavier Becerra’s failure to legally reappoint 14 key officials at the National Institutes of Health (NIH).

“Secretary Becerra, an attorney by trade, failed to sign the basic legal documents and follow the process required by the Constitution and federal law necessary to reappoint key NIH officials, putting their jobs, the decisions they’ve made, and the billions in funding they’ve approved in legal jeopardy,” said Chair Cathy McMorris Rodgers (R-WA), Subcommittee on Health Chair Brett Guthrie (R-KY), and Oversight and Investigations Chair Morgan Griffith (R-VA). “This report outlines those failures, the administration’s efforts to cover it up, and important considerations for the incoming administration as it seeks to restore the rule of law and restore accountability at government health institutions.” 

BACKGROUND AND TIMELINE OF INVESTIGATION: 

The NIH is the primary agency of the United States government responsible for biomedical and public health research. It is one of 13 subcabinet agencies within the HHS and has an annual budget of more than $40 billion. 

On December 12, 2021, the five-year terms of 14 of the 27 NIH Institute and Center (IC) Directors expired, pursuant to the 21st Century Cures Act. 

Given reports of Secretary Becerra’s apparent detachment from the NIH and lack of visibility during the pandemic response as well as the lack of any public announcements, Committee Republicans began to question whether Secretary Becerra upheld his Constitutional and statutory responsibility to reappoint the 14 IC Directors upon expiration of their five-year terms. 

Republicans investigated for more than two years, overcoming stonewalling, obfuscation, and four different, conflicting explanations from the administration. 

WHY IT MATTERS: 

The appointments and reappointments of IC Directors are personnel actions that rise to the level of Constitutional responsibility further bolstered by federal statutes. The leaders of these institutes and centers are the ultimate decision-makers involving tens of billions of taxpayer-funded research dollars. These leaders also can play prominent roles in response to public health emergencies or in developing research plans. The effectiveness of biomedical research investments depends on the decision-making abilities and strategic visions of these IC Directors. 

The health of the American people is deeply impacted by the appointees who lead the NIH’s institutes and centers. Because the Directors of NIH Institutes and Centers exercise significant authority as the final approving authority for research awards, they would qualify as Inferior Officers of U.S. who must be appointed by the HHS Secretary pursuant to the Appointments Clause of the U.S. Constitution along with the provisions of the 21st Century Cures Act. Greater democratic accountability requires department heads to be responsible for properly managing their agencies in the best interest of the public. Holding department heads accountable for the staffing of executive agencies improves accountability and transparency.  

1. Improper appointments jeopardize good stewardship of funds 

Improper appointments and reappointments potentially expose the actions of the improperly appointed IC Directors to legal challenge and jeopardizes the proper administration of research funds.  

2. Improper appointments risk legal challenge to IC hiring and policies

Improper appointments and reappointments potentially expose any personnel actions approved by the improperly appointed IC Directors to legal challenge. 

3. Improper appointments may have led to improper payment of Title 42 special consultant salaries 

During the year and a half of their lapsed reappointments, the affected IC Directors continued on the NIH payroll and received salaries even though they were serving without the legal authority to hold their positions. This situation raises the question of improper payments of salaries. In a 1976 opinion, the GAO Comptroller General concluded that the Federal Insurance Administrator was improperly appointed and that the appointment required Presidential nomination and Senate confirmation pursuant to the Appointments Clause.  

In a subsequent opinion, the GAO Comptroller General found that the Federal Insurance Administrator was not legally occupying the position and thus was not entitled to receive salary and related benefits from the Department. GAO then concluded that this official was a de facto officer, performing his duties of the Office of Insurance Administrator with the knowledge and apparent acquiescence of the Secretary and the President. GAO concluded it was not necessary to take action to recover the salary. However, whether an NIH or HHS official who approved an expenditure of funds without legal authority could be held liable for the funds is an open question. 

4. Secretary Becerra violated his oath by failing to carry out his Appointments Clause responsibilities. 

When he was sworn in as HHS Secretary, Secretary Becerra took his oath of office swearing to support and defend the Constitution of the United States, including the Appointments Clause. By failing to reappoint the IC Directors pursuant to the Appointment Clause, Secretary Becerra failed to uphold the Appointments Clause until he was pressured by the Committee to issue signed affidavits ratifying the selections for reappointments a year and a half after the statutory deadline. During that time lapse the individuals serving as IC Directors were holding their positions without valid reappointments. 

5. IC Directors serving without valid reappointments further undermined public trust in public health leadership. 

Public trust in the federal government’s health leadership was eroded during the response to the COVID-19 pandemic. The public trust is further damaged by the fact that some public health leaders cloaked in the authority of their titles were not legally authorized to hold those positions. Ensuring proper appointments and reappointments to these offices is yet an additional challenge to restore public trust. Secretary Becerra’s failure raises questions whether the American people can assume that public health leaders actually have competent authority to act during a public health emergency. 

6. The failure to take seriously the reappointments of the IC Directors subverts the rule of law.

The failure to take seriously the reappointments of the IC Directors subverts the rule of law. In this instance, the law called for precision: the HHS Secretary reappointing of IC Directors by a certain date. The action to be taken was to fulfill the Constitutional duty and the statutory requirement to reappoint Inferior Officers of the United States. HHS’s lax approach toward this matter and its evasive, frequently misleading responses to this investigation reveals a lack of diligence in upholding the rule of law and our democratic values. The cavalier attitude toward following the law and the Constitution as well as the subsequent attempts at hiding its failure to follow the law is a prime example of the Biden-Harris administration’s above-the-law attitude and approach to governing. 

CLICK HERE to read the full report.