E&C Republicans Ask Secretary Becerra for Documents Showing Lawful Appointment of New NIAID Director

Letter

We write today because we are concerned that you may be continuing on an unconstitutional appointment process in an effort to avoid accountability for your previous failure to properly reappoint the 14 IC Directors in December 2021.

On August 2, 2023, the NIH issued a press release announcing the appointment of Dr. Jeanne Marrazzo as director of the National Institute of Allergy and Infectious Diseases (NIAID) and that she would oversee NIAID's $6.3 billion budget. The press release stated that Dr. Lawrence Tabak, the Acting Director for the NIH, named her to this position. The press release included no statement from you or any indication that you had a role in her appointment.

HHS has acknowledged the Secretary must appoint NIH IC directors. The May 5, 2023, response letter from Health and Human Services (HHS) Assistant Secretary Melanie Egorin stated the HHS Secretary is the approving official for NIH IC director appointments and the NIH director is the recommending official. Her letter unequivocally states: "NIH IC Directors are recommended for appointment by the NIH Director and approved for appointment by the Secretary of the Department of Health and Human Services (HHS)." Further, you signed affidavits of reappointment with prospective effect of certain NIH IC directors in June 2023. Your affidavits expressly invoked the Appointments Clause, which tacitly acknowledges that the IC Directors are inferior officers of the United States.

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Further, even under HHS's changed position, Dr. Tabak, as the Acting NIH Director, lacks the authority to make Dr. Marrazzo's appointment, if in fact he made the appointment.

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Since the enactment of the 21st Cures Act in 2016, it is our understanding that the HHS Secretary in the previous administration personally approved the appointments of NIH IC directors. This precedent, the clear commands of the U.S. Constitution's Appointments Clause along with your affidavits of prospective reappointments and HHS correspondence indicate you are required to appoint all NIH IC Directors, including Dr. Jeanne Marrazzo to be the Director of NIAID.

Source