Below is my column in the Messenger on a possible blunder on a massive scale by the Biden Administration. A House Committee is alleging that the Administration failed to properly reappoint directors at the National Institutes of Health. While the Administration insists that it complied with a law that required Health and Human Services Secretary Xavier Becerra to make the reappointments personally, it later issued a retroactive reappointment for most of the directors after months of congressional inquiry. Two, including Anthony Fauci, had already retired and were not retroactively reappointed. The result is an intriguing question of whether officials like Fauci were operating without authority while spending billions and implementing national health policies.
Here is the column:
Dr. Anthony Fauci has faced intense scrutiny in the past over his testimony denying any funding of “gain-of-function” research at the Wuhan lab in China. However, the most serious question now may be whether Fauci was who he said he was in those hearings: the then-director of the National Institute of Allergy and Infectious Diseases (NIAID).
On Friday, the House Committee on Energy and Commerce issued a letter to Health and Human Services (HHS) Secretary Xavier Becerra that raises the disturbing question of whether Fauci and 13 other National Institutes of Health (NIH) institute and center directors were unlawfully holding their offices for some period. Not only did these directors make sweeping policy changes for the nation but, in 2022 alone, they awarded more than $25 billion in federal biomedical grants.
The problem is the 21st Century Cures Act, passed in 2016. Section 2033 of that act is titled “Increasing Accountability at the National Institutes of Health,” and it seeks to achieve greater accountability by requiring the HHS secretary to personally appoint those directors. For reasons the Biden administration has yet to explain, it appears to have ignored the law, according to the House committee. Under the five-year terms granted in 2016, these directors had to be reappointed by Becerra by December 2021. It is not clear if this task was delegated to the NIH director, but the law appears to be clear: There is no delegation; it must be Becerra who renews such appointments.
CNN’s senior medical correspondent, Elizabeth Cohen, once gushed that when “Dr. Fauci talks, he’s just like a regular guy.” It turns out she might have been more accurate than she thought — because Fauci legally may have been just a “regular guy” giving out billions without authority.
What is equally baffling is that the House informed the administration that it was presumptively in violation of federal law. What followed were convoluted and confusing statements from the administration on a very simple question: Did Becerra appoint these directors?
It got even stranger on June 19 when HHS sent Congress documents titled “Ratification of Prior Selection and Prospective Appointment: Appointment Affidavit.” While signed by Becerra, the documents were dated on June 8 and June 15. They were specifically “prospective appointments” but seemed to suggest some form of retroactive ratification. That, too, is not allowed under federal law. In the case of Fauci and another director, according to the House committee, there is not even a retroactive affidavit to that effect.
Given the seemingly evasive response from HHS, it does appear that more than a dozen officials, including Fauci, may have been operating under a type of assumed official identity. If that turns out to be the case, Fauci may have had no legal authority after Dec. 12, 2021, to do even the most mundane tasks as a director.
It would be easy to dismiss this violation as a matter of no harm, no foul. After all, this appears simple (albeit shocking) negligence by the Biden administration as opposed to some nefarious effort. Yet, if true, billions of dollars in grants and thousands of personnel and policy changes could be questioned.
Last September, for example, the U.S. Court of Appeals for the Ninth Circuit rejected claims that appointment violations were mere technical concerns. It stressed in Cody v. Kijikazi that such a “violation is thus no mere technicality or quaint formality — it weakens our constitutional design. An appointment too far removed from the President or the head of an executive agency may, for example, erode political accountability.”
In addition, there is the question of the legal status of myriad decisions made by these directors, including exercising their authority over the approval of grants. If the administration failed to satisfy federal law, directors like Fauci would have had no more authority than his chief antagonist, Sen. Rand Paul (R-Ky.), to issue NIAID grants. Billions were awarded, policies changed, and personnel managed by individuals who potentially had lost their legal authority to direct these offices.
In one case involving challenged administrative law judges in 2018, the Supreme Court ruled in Lucia v. Securities & Exchange Commission that past litigants were entitled to decisions from properly appointed judges.
Biden officials may have dismissed such obligations, but Congress clearly supported this requirement as an effort to gain greater accountability for these appointments. Executive officials do not have the authority to dismiss federal law any more than they have the authority to act without meeting the conditions to hold their positions under federal law.
This could not come at a worse time for the administration. This month, the Supreme Court ruled that President Biden had unconstitutionally ordered up to a half-trillion dollars in college loan forgiveness; previously, it found that the administration violated the Constitution with its national eviction moratorium and some vaccine mandates. Now some of the same officials involved in those mandates potentially acted without legal authority after 2021, if their appointments were not properly carried out.
It is not clear where we go from here, if the allegation proves to be true. It could mean that Fauci and others were a type of “undead” directors who were statutorily expired but still walking the halls of HHS. If so, the Biden Administration could be looking at a legal zombie apocalypse, as those directors’ decisions are challenged in courts as having been invalid.
While claiming that it has complied with the law, the Biden administration reportedly hopes that retroactive appointments can blunt any possible challenges to past decisions.
The size of the error on appointments would appear to be unprecedented. What is clear is that such a violation would constitute a shocking level of administrative incompetence. It also is clear that the House committee can now demand — and, if necessary, compel — answers from Becerra on whether federal law was knowingly flaunted and whether Congress was actively misled.
Fauci, now retired from the federal government, is a professor at Georgetown University and collecting $350,000 per year in government pensions. He left public service with the highest salary in the federal government, at $480,654. Ironically, near the end of his career, those may have been financial gains from a function that he did not legally possess.
Jonathan Turley, an attorney, constitutional law scholar and legal analyst, is the Shapiro Chair for Public Interest Law at The George Washington University Law School.