In December 2020, President Trump appointed Professors Steve H. Hanke and John C. Yoo to the National Board for Education Sciences (NBES). The board serves an oversight function, advising the director of the Institute for Education Sciences—an independent, non-partisan arm of the U.S. Department of Education that evaluates and provides funding for education research.
Although signed by the president before he left office, the appointees’ commissions were not delivered before the new administration took over. Nevertheless, under the 218-year-old precedent set in Marbury v. Madison, presidential appointees have a vested legal right to the delivery of their commissions even after the election of a new president.
Secretary Miguel Cardona’s Education Department, however, refuses to deliver the professors their rightful commissions.
To make matters worse, although the NBES has enough members for a quorum, the agency refuses to let the board meet, thus evading its own oversight.
Congress requires the NBES to meet at least three times a year and produce an oversight report to both Congress and the Secretary of Education, among others. In fact, the report is due annually on July 1—yet the Education Department refuses to call a meeting.
Professors Hanke and Yoo sent a demand letter to Education Secretary Cardona on April 30, giving the agency 30 days to deliver their commissions and schedule a board meeting. Secretary Cardona refused.
The president may remove political appointees who have yet to complete their term. But unelected bureaucrats cannot keep rightfully appointed officials from meeting their obligations by withholding their commissions, especially for positions designed to oversee their work.
Represented free of charge by PLF, Professors Hanke and Yoo sued to end the bureaucratic gamesmanship and allow NBES directors to do the jobs they were appointed to do.