Agency bureaucrats can’t ignore Marbury v. Madison

July 16, 2021 | By JESSICA THOMPSON
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***Editor’s note: The Department of Education ignored our demand letter and failed to call the NBES meeting, so now we are seeking the NBES meeting in Court so Hanke, Yoo and NBES can carry out their oversight duties.


History and civics classes across the country teach the importance of political accountability for preserving individual liberty and our Constitution—specifically the latter’s guarantee of separation of powers.

Separation of powers is critical to upholding our constitutional system, and that includes preserving residential accountability. This safeguard ensures that our system of checks and balances stays intact, and that no branch of government grows more powerful than another.

This also ensures that career agency bureaucrats can’t overrule decisions made by the chief executive, including who should serve as presidential appointees and, as is happening currently, whether those appointees can meet to perform the duties they were appointed to carry out.

While history does not repeat itself, it often rhymes. And as two of Pacific Legal Foundation’s clients, Professors Steve Hanke of Johns Hopkins University and John Yoo of the University of California, Berkeley await the delivery of their legally valid commissions, their situation seems all too reminiscent of the famous case of Marbury v. Madison.

In the seminal Supreme Court decision that established the principle of judicial review, Chief Justice John Marshall also explained that the president’s signature on a commission is the final act of a presidential appointment.

But that legal precedent is being ignored by agency bureaucrats today.

Throughout December 2020, President Trump signed commissions appointing a total of eight new members to the National Board for Education Sciences (NBES), including Professors Hanke and Yoo.

PLF has obtained emails from White House officials that confirm U.S. Department of Education officials are in possession of Hanke and Yoo’s commissions—but attempts to obtain these commissions from the DOE were met with silence. DOE officials have even called into question the validity or finality of these NBES appointments.

As Professors Steve Hanke and John Yoo, wrote this week in the WSJ:

Like Marbury, our case starts with a refusal to deliver presidential commissions. White House officials notified us in early January that the president had signed and the secretary of state had processed our commissions. With that, we became federal officers. But the Education Department won’t deliver the commissions or even acknowledge their existence.

In 1801 President John Adams signed William Marbury’s commission as a justice of the peace, but Thomas Jefferson became president before Marbury’s commission had been delivered. Jefferson and Secretary of State James Madison refused to recognize Marbury’s appointment and deliver his commission. In a decision written by Chief Justice John Marshall, the high court found that Adams’s signature had made Marbury’s appointment final and that refusal to deliver the commission was “violative of a vested legal right.”

This isn’t just about seeking a historical memento of a professional honor conveyed by the president. Hanke and Yoo are eager to begin their important oversight work on the NBES.

The NBES was created by Congress in 2002 to advise the director of the Institute of Education Sciences (IES), which was intended to be objective and non-partisan.

But by failing to deliver these commissions, this situation has become strangely contentious, as well as unconstitutional.

More than offering advice to IES, the NBES is statutorily required to meet at least three times a year, and then issue at least one annual report to the Secretary of Education and appropriate congressional committees evaluating IES activities and advancement of its mission by July 1.

That’s why PLF recently sent a demand letter on behalf of Hanke and Yoo to Department of Education Secretary Miguel Cardona, alerting him to the undue delay caused by staff members at DOE.

The clock is ticking and the deadline for Secretary Cardona and DOE to respond to our demand letter is fast approaching.

Our demand letter asks for the prompt delivery of the professors’ commissions (we even offered to send our own courier to pick them up). We also asked that Secretary Cardona and the Department of Education acknowledge the continued legal validity of the professors’ appointment to the NBES and stop ignoring their repeated requests to call a board meeting.

We also took the opportunity to remind Secretary Cardona that he is ultimately legally responsible for the actions, or inaction, of DOE bureaucrats. After all, Chief Justice Marshall taught us that presidential appointees have a vested legal right to their commissions, even after a change in White House administrations.

Regardless of any misconceptions the bureaucrats in DOE have about the validity of the underlying appointments (which are not affected by their refusal to deliver the commissions), it is now Secretary Cardona’s responsibility to end the gamesmanship and cooperate with the NBES directors, who are trying to meet and begin their statutory oversight duties.

Perhaps it’s time for another lesson about the broader constitutional significance of Marbury v. Madison.