The Constitution requires, as a default rule, that “Officers of the United States” must be nominated by the president and confirmed by the Senate. The Constitution allows only one potential exception to this default rule: If an officer is merely an “inferior officer,” Congress may waive Senate consent. But even if an officer is inferior, Congress is limited to only three choices for who may appoint that officer: “the President alone,” “the Heads of Departments,” and “the Courts of Law.”

The Federal Vacancies Reform Act (FVRA) is one such statute that vests appointments in “the President alone.” Specifically, it grants the president authority to unilaterally appoint temporary, time-limited “acting officers” to fill vacancies in positions that normally require Senate consent.

When President Trump took office in January 2017, the acting commissioner of the Social Security Administration (SSA) resigned. A new acting commissioner, Nancy Berryhill, then purportedly took office. But President Trump did not select Berryhill to be acting commissioner. Rather, Berryhill was elevated pursuant to a Succession Order issued by outgoing President Obama the previous month, which named and ranked positions (not people) within SSA to fill potential future vacancies in the office of commissioner.

Plaintiff Joseph Fortin later challenged an action that Berryhill took as acting commissioner, arguing that Berryhill was not validly serving when she took the action. But a panel of the Sixth Circuit Court of Appeals ruled against Fortin, holding that Berryhill was validly appointed by former President Obama as acting commissioner under the terms of the Succession Order. The panel held that even though Obama was not the president when Berryhill was elevated, the order that Obama issued carried over to the Trump administration and remained in effect because Trump had not revoked it. The panel also held that Berryhill’s designation did not violate the Appointments Clause because she did not need to be “appointed” as an acting officer and was merely assigned new duties.

Now Fortin is asking the Supreme Court to take his case, and Cato (joined by Pacific Legal Foundation) has filed a brief supporting that petition. In our brief, we explain that the Sixth Circuit made several unjustified and unexplained logical leaps in its decision. The court assumed that before Berryhill became an acting officer, she had already been appointed to some officer position by the process that the Appointments Clause requires. And the court assumed that someone who has been appointed to one position as an inferior officer may be given the new duties of a separate office without a new, constitutionally compliant appointment. But the court didn’t analyze or explain either of these assumptions, and there is strong reason to doubt whether either is true. If either is false, then Berrhyhill needed a new appointment to become the acting SSA commissioner, and she didn’t receive one.

The Supreme Court should grant the petition. Or at the very least, it should grant, vacate, and remand with instructions for the Sixth Circuit to justify and clarify its holding.