E&C Investigation Reveals Key NIH Officials—Including Dr. Fauci—Likely Served Unlawfully

NIH Directors Were Not Properly Reappointed from December 2021 to June 2023

Jul 10, 2023
Press

Washington, D.C. – Eastern Washington Congresswoman Cathy McMorris Rodgers (WA-05) today revealed that 14 National Institutes of Health (NIH) officials, including former National Institutes of Allergy and Infectious Diseases (NIAID) Director Dr. Anthony Fauci, were not properly reappointed to their positions in December of 2021, as required by law.

As Chair of the House Energy and Commerce Committee, Cathy teamed up with Subcommittee on Health Chair Brett Guthrie (R-KY) and Subcommittee on Oversight and Investigations Chair Morgan Griffith (R-VA) on an investigation that began in March of 2022. Today, they revealed their findings publicly in a letter to Department of Health and Human Services (HHS) Secretary Xavier Becerra, which was covered exclusively by CBS:

The Biden administration allegedly failed to correctly reappoint more than a dozen top-ranking National Institutes of Health leaders, House Republicans say, raising questions about the legality of billions in federal grants doled out by those officials over the last year. 

[…]

“The failure to reappoint the above NIH IC Directors jeopardizes the legal validity of more than $25 billion in federal biomedical research grants made in 2022 alone,” the committee wrote.

[…]

“Institute directors with discretion to award billions or even hundreds of millions in research funding are, by definition, exercising significant authority pursuant to the laws of the United States. As such, institute directors are the quintessential ‘inferior officers,'” a former senior HHS official told CBS News. 

“The Secretary cannot delegate his or her constitutional authority to appoint inferior officers. It is my understanding that prior administrations of both parties zealously guarded the appointments process and took care to ensure that inferior officers were properly appointed,” said the former senior official, who previously served in the Bush, Reagan and Trump administrations.

CLICK HERE to read more.

KEY EXCERPTS OF THEIR LETTER TO SEC. BECERRA: 

“We write raising serious concerns about your failure to follow the law and ensure accountability of billions of dollars in taxpayer funding at the National Institutes of Health (NIH). As detailed below, it has become apparent that you, as Secretary of Health and Human Services, did not reappoint a number of Institute and Center (IC) Directors at the NIH. Your failure could have grave implications for the validity of actions taken by 14 NIH IC Directors during their unlawful tenure, including former National Institute of Allergy and Infectious Disease (NIAID) Director Dr. Anthony Fauci.” 

[…] 

“The failure to reappoint the above NIH IC Directors jeopardizes the legal validity of more than $25 billion in federal biomedical research grants made in 2022 alone.” 

[…] 

“Given his central role in the COVID-19 response, the Committee is particularly concerned about the failure to reappoint Dr. Fauci. Without reappointment, Dr. Fauci continued to serve as NIAID Director until his retirement on December 31, 2022. If Dr. Fauci was never reappointed, every action he took is potentially invalid.” 

[…] 

“We also intend to get a full accounting of who at HHS and the NIH decided to mislead the Committee and why. HHS and the NIH’s bad faith and failure to follow the law in this matter epitomizes why Americans no longer trust federal public health agencies. Not only did HHS and NIH ignore the law, it is also grossly unfair that Dr. Fauci – who unlawfully held his position after December 13, 2021 – could use his authority to push authoritarian mandates on the American people during the COVID-19 pandemic response. Greater accountability is needed.” 

BACKGROUND

  • Under Article II, Section 2 of the Constitution of the United States, NIH IC Directors are inferior officers of the United States. 
  • Congress passed the 21st Century Cures Act with overwhelmingly bipartisan support in 2016. 
  • Section 2033 of the 21st Century Cures Act, titled Increasing Accountability at the National Institutes of Health, lays out the framework by which NIH IC Directors must be appointed and reappointed. 
  • Specifically, it requires the Secretary of HHS to reappoint NIH IC Directors, including those who were serving at the time of the law’s enactment when their five-year terms expired on December 12, 2021. 
  • The 21st Century Cures Act also requires NIH IC Directors “review and make the final decision with respect” to all competitive grant awards issued by their Institute or Center. This makes the NIH IC Directors the final decision maker on grant awards.  

KEY FINDING

The Chairs’ investigation revealed that Secretary Becerra failed to reappoint these 14 NIH IC Directors, calling into question the validity of any decision made by a director between December 2021 and June 2023. This includes the approval of billions of dollars in taxpayer funded grants—including to EcoHealth Alliance—and COVID-19-related guidance provided by Dr. Fauci to the White House. 

CLICK HERE to read the full letter. 

Letter attachments can be found HERE

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