Moose Jooce, et al. v. Food and Drug Administration, et al.

Whether a government official has the power to validate the unauthorized actions of other officials is presumptively determined by the law of agency, specifically the doctrine of ratification. According to that common law body of rules, a principal cannot ratify the action of an agent unless the principal had the authority to take the action both originally and at the time of ratification. Fed. Elec. Comm’n v. NRA Political Victory Fund, 513 U.S. 88, 98–99 (1994). Although this Court has never done so, the D.C. Circuit applies the doctrine of ratification to uphold government action otherwise unconstitutional under the Appointments Clause. Such ratification will be upheld even if it is a mere “rubberstamp” that does not comport with the procedural and substantive limitations normally applicable to the agency action being ratified. In developing this powerful reviewthwarting defense, the D.C. Circuit has, in contrast to the Ninth Circuit Court of Appeals, read this Court’s decision in NRA Political Victory Fund narrowly to apply only in circumstances where the limitation on a principal’s authority to ratify is time-based, as with a statute of limitations. The questions presented are:

1. May a regulation be ratified if the Appointments Clause prohibited the purported agent’s exercise of rulemaking authority?

2. If so, must the ratification comply with the constraints that would normally govern an officer’s rulemaking, such as the Administrative Procedure Act’s “reasoned decision-making” requirement?