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The President’s Appointment & Removal Authority

The President’s Appointment & Removal Authority. Constitution speaks specifically to appointments procedures for “Officers of the United States” – Art II, Sec. 2, cl. 2 Buckley – Congress can’t end run around those procedures and vest appointments in itself

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The President’s Appointment & Removal Authority

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  1. The President’s Appointment & Removal Authority • Constitution speaks specifically to appointments procedures for “Officers of the United States” – Art II, Sec. 2, cl. 2 • Buckley – Congress can’t end run around those procedures and vest appointments in itself • The only constitutional provisions specifically addressing the power to remove executive officials involve Congress’s power to impeach: • Art II, Sec. 4, Art I, Sec. 2, cl. 5, Art. I, Sec. 3, cl. 6 • NONE of these provisions deal specifically with the PRESIDENT’s authority to remove those officials • But Art II, sec 1’s vesting clause and Art II, sec 3’s “take care” clause are usually read to give the President authority over the removal process – how much? • How much can Congress interfere short of impeachment? • Myers v. United States (1926) • Vesting of executive power in president gives him (1) supervisory authority over executive officers, and (2) the power to remove them. Statute limiting his removal authority over Postmaster only with advice and consent of Senate violates President’s executive authority.

  2. Humphrey’s Executor v. United States (1935) • Humphrey was appointed an FTC commissioner for 6-year term under Hoover. FDR asked him to resign because he “wasn’t on the same team.” He refused. FDR fired him. • Federal law limited removal of FTC commissioners to incidents of inefficiency, neglect of duty, or malfeasance of office. • Humphrey’s estate sued for back pay during the period it claimed he was unlawfully fired. FDR claimed he had the authority to fire an officer of the US (see Myers). • Why does SCT rule that the statute didn’t violate the Constitution? How is this situation different from Myers or can they be reconciled?

  3. Bowsher v. Synar (1986) • Gramm-Rudman Act set statutory deficit reduction goals. • G-R Act gave Comptroller General (head of GAO, located in legislature) the responsibility of surveying and reporting to Congress on whether deficit reduction goals were being met by the recipient of federal funds. • If goals were unlikely to be met, law directed C.G. to calculate the amount by which agencies should reduce spending below appropriated levels. • Those calculations could become binding on agencies in some circumstances because President was required to issue an order based on C.G.’s recommendations • C.G. is nominated by the President from a list of 3 people recommended by House/Senate leaders. • C.G. is removable by impeachment or by Congress for inefficiency, neglect of duty, or malfeasance.

  4. Bowsher’s holding • Why can’t the Act’s deficit reduction functions be delegated to the C.G.? • Why isn’t this a case of Congress delegating functions to someone who is an “adjunct of Congress?” How is the C.G. exercising executive power?

  5. After Myers, Humphrey’s Executor and Bowsher – General Propositions (maybe?) • President has extensive (nearly unlimited?) authority to remove purely executive officers (both principal and inferior) • Stems from executive authority vested in the President (Art. II, Sec. 1) and the President’s need to faithfully execute the laws (Art. II, Sec. 3) • Congress can condition the removal of officers of independent agencies • Such agencies need to be insulated from sway of politics and threat of removal at a whim • Congress cannot itself participate in the removal of executive officials except through impeachment • Example – can’t require advice and consent of Senate (Myers) • Includes independent agency officials who exercise executive power (e.g., enforcement powers) - can’t be removable by Congress or w/ A&C (follows from Bowsher)

  6. More on Appointments & Removal – Morrison v. Olsen (the statute) • EGA of 1978 allowed appointment of an independent counsel (I.C.) when high executive officials were suspected of violating certain federal laws. • AG charged with investigating information suggesting a law violation. • After concluding investigation, AG filed a report with special division of circuit court of appeals for the D.C. circuit. • Court couldn’t initiate appointment of I.C. BUT if AG found “reasonable grounds to believe further investigation/ prosecution” was warranted, AG could ask court to appoint I.C. • Upon AG’s request, court was required to appoint an independent counsel and to define his/her jurisdiction. • Removal of I.C. effected in 3 ways: • Impeachment & conviction via Constitution • Completion of project (termination by Court or voluntarily) (fed. statute) • AG could remove I.C. for good cause, physical disability, mental incapacity or other condition that interferes with job (fed. statute)

  7. Morrison & Appointments • Majority finds that I.C. is an “inferior officer” • Why? Does it define what an “inferior officer” is? • What factors affect majority’s determination that I.C. is an inferior officer? • How does Justice Scalia respond?

  8. Subsequent Events re Principal vs. Inferior Officers • SCT hasn’t elaborated on Morrison factors – if anything subsequent cases have tended toward Scalia’s approach • Edmond v. U.S. (1997) – SCT (Scalia) intimated that “inferior” officers generally have a superior who supervises their work and was appointed by President w/ A&C of Senate • Free Enterprise Fund v. PCAOB (2010) – SCT held that officials who are removable at will by independent agency commr’s would be “inferior” and could be appointed by SEC which qualified as “Heads of Dept” for Art. II purposes • Who is a “Head of “Dep’t”? • Typically think of as “Secretary” or Director of major executive agencies – BUT SCT held that independent agencies could qualify as “Departments” because they were a “freestanding component of the Executive Branch, not subordinate to or contained within any other such component” – this means the commissioners as a group can appoint

  9. Back to Morrison – Interbranch Appointments • I.C. (executive official) was appointed by a special division of federal court (judicial branch) • Does the appointments clause prohibit inter-branch appointments? • What standard would the Morrison majority use to determine whether inter-branch appointments were unconstitutional? Why didn’t this scheme violate that standard? • Could Congress vest appointment of an Assistant Secretary of Defense in a Court of Law?

  10. Morrison & Removal • What is Olsen’s claim as to why the limitation on the President’s removal authority of the I.C. violates the Constitution? • Is he right about his description of the I.C.’s duties? • How does the majority respond? • What standard does the majority announce?

  11. Morrison & Removal – Scalia dissent • What is Scalia’s response to the majority’s new test? What is he concerned about? • What is left of Myers’ reasoning after Morrison?

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