00:00Before we get to the constitutional problems, what's the statutory authority to appoint
00:06the task force?
00:07So there are two sources of authority, Your Honor.
00:09The first is that under the Reorganization Act, the secretary has the power to exercise
00:16all functions and duties of the director.
00:18And the director, under 299, has the authority to convene the task force.
00:23Isn't that an odd delegation?
00:24Normally, it would be the superior or the principal officer who would have the authority
00:31who would delegate it to subordinates.
00:33Well, it's not just a delegation, Your Honor.
00:36The Reorganization Act was in place when 299 was enacted.
00:39And so when Congress passed 299 and said that the director could convene the task force,
00:45that meant that the secretary could convene the task force.
00:48So you're using the word convene?
00:51Yes, Your Honor.
00:52Well, I think that normally connotes just calling a meeting or something.
00:56The court was convened this morning.
00:58The chief didn't appoint any of us.
01:00So I agree, Your Honor, that convene doesn't necessarily connote appointment.
01:04But there's no other language in the statute that specifies who will appoint these members.
01:09And in light of that, convene is most naturally read to mean convene and select the people
01:14who will serve on the board.
01:16And that's clearly true before the ACA.
01:19Before the ACA was enacted, it's clear that the secretary and the director had the power
01:26to appoint these individuals.
01:28But appointment would not be an issue if they had no authority to require anything of others.
01:36It's just advisory.
01:37Well, not as a constitutional matter, but as a statutory matter.
01:39And I took your question to be aware of the statutory authority to do this.
01:43Before the ACA, it had to be the case that the secretary and the director had the authority.
01:49It would not be constitutional for the president to select and the Senate to confirm these individuals
01:54before the ACA because before the ACA, everyone agrees they weren't officers.
01:58And the Senate has no constitutional power to have any role in the selection of a non-officer.
02:05So the only way to construe the statute before the ACA is that the secretary
02:09and the director had the ability, and nothing about the ACA changed that.
02:13Can you give me an example of another body that's selected this way?
02:23Just with using the operative term convene and that had been
02:29and that the authority comes from through a subordinate to the principal.
02:36So not off the top of my head, Your Honor, but again, as a statutory matter,
02:41if we're just talking about how the statute should be construed,
02:44there is no other provision anywhere in the code that says who will pick these people.
02:48So the most natural way of reading a provision that says he shall convene the task force
02:53is to also select the people who will serve on the task force.
02:56Don't you rely on that?
Comments