Twenty-two members of the National Science Board received their dismissal notices nine days ago by email. The notices ran to two paragraphs. They cited no specific cause. They thanked the recipients for their service. They did not name replacements. They have not, as of Sunday, been followed by replacement names. [1]

The paper has now traced the legal architecture twice. On May 2 it argued that the Arthrex rationale and the Arthrex remedy do not line up — the Supreme Court's 2021 holding addressed the appointment of certain executive officers and said nothing that compels the en-masse removal of an advisory board whose members serve fixed six-year terms by statute. It also noted yesterday that the National Academies and the AAAS were watching for replacement appointments as the tell that would distinguish a legal theory from a political purge. The watch continues. The replacements have not appeared.

H. Jefferson Powell, the Duke law professor who has spent a generation reading the Appointments Clause closely, supplied the phrase that has been circulating in scientific society offices all week. He called the administration's posture a "puzzling disconnect" — Arthrex as the rationale, en-masse removal as the remedy, with no statutory text bridging the two. [2] Professor Powell is not a polemicist. The word "puzzling" is, in his vocabulary, a signal of professional bafflement, not a debating point.

The comparison case scientists are watching is unrelated to Arthrex. Last summer a federal district court in the Eastern District of Virginia ruled that the Department of Health and Human Services' firing of the Advisory Committee on Immunization Practices violated the Federal Advisory Committee Act, the 1972 statute that governs how the executive branch convenes and dismisses outside advisors. The court ordered ACIP reconstituted. HHS appealed. The Fourth Circuit has the case under submission. [3] The ACIP order is not binding precedent on the NSB removals, but it is the only square-on federal-court ruling on FACA that has been issued in the last decade, and it ran against the administration. The National Academy of Sciences and the American Association for the Advancement of Science have, between them, the standing and the lawyers to bring the same suit. They have not.

Inside the science agencies, the operational consequences of the absence of a board are already piling up. The Major Research Instrumentation program's annual obligation cycle requires a quorum signature; the Mid-Scale Research Infrastructure cohort selection runs through a board subcommittee; the next round of NSF AccelNet international partnerships was scheduled to be reviewed at the May meeting that has been formally canceled. None of these programs has frozen. All of them are now operating on the agency director's signature alone, which is legal but not, in any reading of the 1950 NSF Act, what Congress intended. [4]

The administration's published rationale, such as it is, sits in a single White House Office of Science and Technology Policy memo dated April 22 and circulated to the press on April 24. The memo cites Arthrex by name and cites no other case. It does not address FACA. It does not address the NSB's six-year staggered terms. It does not address why en-masse removal is the appropriate remedy for a constitutional defect Arthrex did not, in any reading, identify. [5] OSTP has not made the memo's author available for press questions. The acting director of NSF has not commented.

The replacement question is now functioning as the load-bearing fact. If the administration believed it had a constitutional duty to remove the board because of an Arthrex defect, it would have replacements ready, because the defect — by its own theory — runs to the appointment, not to the program. Nine days without replacements is not a calendar problem. It is a theory problem.

The National Academies and the AAAS have the standing. The federal court calendar has the time. The brief is not, by any reasonable estimate, harder to draft than the ACIP brief. What is missing is the decision. Day nine ends without it.

-- SAMUEL CRANE, Washington