[This post is co-authored with Professor Seth Barrett Tillman]
In the waning days of the Biden presidency, there has been a flurry of new Executive Branch decisions with constitutional implications. President Biden determined that he had the power to pardon his son for any conceivable federal offense committed during the past decade. President Biden also "affirmed" that the proposed Twenty-Eighth Amendment is part of the Constitution, even though the Archivist of the United States has not certified it. President Biden has refused to take care that the TikTok ban is faithfully executed, even after the Supreme Court upheld the statute Biden himself signed into law. Who knows what else the final few hours will bring?
During this time, the Office of Legal Counsel ("OLC") has also been busy. On January 16, 2025, OLC issued a new opinion signed by Assistant Attorney General Christopher C. Fonzone. It is titled "The Test for Determining 'Officer' Status Under the Appointments Clause." (This opinion came only one day after the Department of Justice filed its Eleventh Circuit merits brief in defense of the federal qui tam statute.) Yes, even as the rest of the administration exits stage left, OLC is still thinking about what Justice Kagan derided as "officer stuff." We realize that many readers are quite tired of our posts on this topic. But as long as the Executive Branch continues to opine on the "officer" issue, we will persist too.
