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26 It is theoretically possible that the courts have upheld these delegations because the parties challenging them have repeatedly failed to raise the Appointments Clause. Contrast Light v. Massachusetts Coun. of Framework Employers, 460 U.that have Joined Building and Design Deals v. Camden, 465 U.S. 208 (1984) (striking Spanking Sites dating app down residency requirement for public works projects as violation of Privileges and Immunities Clause). We would be reluctant to place the numerous delegations so upheld on such capricious footing absent a clear indication in the Court’s Appointments Clause jurisprudence. While not all non-delegation litigants have raised Appointments Clause challenges, some have and as we detailed in the preceding section, those challenges consistently have been rejected.

S. within 131 (“Officers” try “all the designated officials exercising responsibility underneath the personal laws”)

The Supreme Court’s interpretations of the Appointments Clause actually refute the negative inference that is sometimes asserted. The Court’s decision in Auffmordt is especially compelling. There, the Court held that because the merchant appraiser — who stands formally and functionally in the same position as an arbitrator in a binding arbitration involving the federal government — was a private actor, the Appointments Clause did not apply and so upheld the statutory delegation of arbitral authority to the merchant appraiser. In other words, Auffmordt held that the Appointments Clause does not prohibit delegating significant federal authority to private actors. The Court employed the same reasoning to reject the Appointments Clause challenges in and Hartwell.

The argument asserting the negative inference from the Appointments Clause relies on Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam). We believe, however, that under its best reading Buckley reflects and endorses our view that the Appointments Clause simply does not apply to non-federal actors, and that the negative inference argument misreads the opinion. First, Buckley cites both and Auffmordt approvingly. Find id. at 125-26 n. 162. Second, in several of its statements of the definition of “officers,” Buckley, sometimes citing explicitly, says that the term applies to a appointees or appointed authorities who exercise significant authority under federal law, thus recognizing the possibility that non-appointees might sometimes exercise authority under federal law. Pick. e.g., 424 U.

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It is true that, at other points in its opinion, the Buckley Court used language that, taken in isolation, might suggest that the Appointments Clause applies to persons who, although they do not hold positions in the public service of the United States, exercise significant authority pursuant to federal law. See id. at 141. However, we think such a reading of Buckley is unwarranted. So understood, Buckley must be taken to have overruled, sandwich silentio, and Auffmordt — cases upon which it expressly relies in its analysis, select id. at 125-26 n. 162 — and its repeated quotation of the definition of “officer” as “all persons who can be said to hold an office under the government” would make no sense. Not only does such a reading render Buckley internally inconsistent, it fails to explain the Supreme Court’s continuing and unqualified citations to and reliance upon . See Freytag vmissioner, 501 U.S. 868, 881 (1991); Morrison v. Olson, 487 U.S. 654, 672 (1988).

The apparently unlimited language of some passages in Buckley has a simpler explanation: there was no question that the officials at issue in Buckley held positions of “employment” under the federal government, and thus the question of the inapplicability of the Appointments Clause to persons not employed by the federal government was not before the Court.27 The post-Buckley Supreme Court has often assessed the validity of statutes that would starkly pose Appointments Clause issues if, in fact, the Court had adopted the position that wielding significant authority pursuant to the laws of the United States, without more, requires appointment in conformity with that Clause. In none of these cases has the Court even hinted at the existence of an Appointments Clause issue. It is especially telling that two of these decisions have involved forms of binding arbitration. See Thomas v. Union Carbide Agric. Prods. Co., 473 U.Schweiker v. McClure, 456 U.S. 188 (1982) (upholding submission of dispute to binding, unreviewable determination by a single arbiter who is a private actor); discover also FERC v. Mississippi, 456 U.S. 742 (1982) (upholding requirement that states enforce federal regulatory scheme relating to utilities); River Carriers’ Ass’n v. Kelley, 456 U.S. 985 (1982) (mem.), aff’g 527 F. Supp. 1114 (E.D. Mich. 1981) (three-judge panel) (upholding statute that granted states authority to ban sewage emissions from all vessels); Train v. Federal Resources Cover Council, Inc., 421 U.S. 60 (1975) (construing provision of Clean Air Act that gave states authority to devise and enforce plans for achieving congressionally defined, national air quality standards).28 The Supreme Court’s decision in Buckley, we conclude, did not modify the long-settled principle that a person who is not an officer under Hartwell need not be appointed pursuant to the Appointments Clause.