Appointments post- Morrison – the distinction between inferior & principal officers

1. Appointments post-Morrison – the distinction between inferior & principal officers • The Court has tended toward Scalia’s approach – i.e., determine if appointee is “subordinate” to another person • Morrison majority’s factors may be relevant to that analysis – e.g., independence, ease of removability, etc. may factor into subordinate status of appointee • 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 agency head are “inferior” and could be appointed by SEC commr’s • Who is a “Head of Dep’t” for Art. II purposes? 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 inferior officers

2. Morrison & inter-branch appointments • I.C. (executive official) was appointed by a special division of federal court (judicial branch) • SCT held that the appointments clause does not prohibitinter-branch appointments. • An inter-branch appointment is improper only if there is some “incongruity” between the functions of the appointing authority and the duty to appoint. • Why didn’t the scheme in Morrison violate that standard? • Could Congress vest appointment of an Assistant Secretary of Defense in a Court of Law?

3. Morrison & removal • Majority’: I.C. is a “purely executive” officer. But Congress can restrict the President’s removal authority as long as the removal restrictions do not impede the President’s ability to perform his constitutional duties. • Removal restrictions on I.C. do not impede President’s ability to perform central functions of executive branch (lots of agencies have similar prosecutorial powers) & President can still control I.C. through removal authority. • What is Scalia’s response to the majority’s new test? What are his concerns? • When would conditioning removal authority over executive officials interfere with President’s performance of his duties? • What is left of Myers reasoning after Morrison?

4. More on Removal - Free Enterprise Fund v. PCAOB (2010) • Sarbanes-Oxley Act created the PCAOB to oversee accounting firms in the wake of the Enron & WorldCom scandals • SEC oversees the PCAOB’s activities • SEC commissioners appoint PCAOB board members • SEC commissioners can remove PCAOB board members but only for limited reasons (i.e., “for cause”) • SEC is an independent agency whose commissioners are also removable by the President only “for cause” (not sure why we all think this but we do) • Free Enterprise Fund et al. challenged constitutionality of Sarbanes-Oxley, claiming that PCAOB was unconstitutionally constituted due to removal restrictions (among other challenges) • This case appeared to be an opportunity for the SCT to: • (1) undo harm done to Myers/unitary executive theory in Morrison, and • (2) find independent agencies unconstitutional under “unitary executive” theory

5. The Removal Scheme in PCAOB • If the statute had vested the Treasury Sec. with the ability to remove PCAOB members but limited his ability remove them to reasons “for cause,” would it have been constitutional? • Why was this statute unconstitutional then?

6. Layers of Removal Restrictions • How, according to the majority, do the layers of “tenure protection” (aka dual layers of removal restrictions) diffuse executive accountability? • Is this really the problem the majority makes it out to be? • Doesn’t the SEC have broad authority over the Board’s functions? Why isn’t that enough for the majority? • PCAOB majority views the President’s authority through the lens of the “unitary executive” – Constitution requires that President have control over removal of Officers in order to effectively execute the law. (Art II, Sec. 1&3) • How does making the PBAOC officers removable at will help the President better control them? Why didn’t the majority make the SEC members removable-at-will? • How far does this holding go – does it apply to what amount dual removal restrictions for civil service employees too (as Breyer’s dissent implies)?

7. Removal jurisprudence – a comparison Pre-Morrison Post-Morrison/PCAOB Congress cannot itself participate in removal of Officers except thru impeachment President has nearly unlimited authority to remove purely executive Officers (Myers) Congress can condition the removal of Officers of independent agencies Nature of such agencies requires they be insulated from the sway of politics Congress cannot itself participate in removal of Officers except thru impeachment President exercises substantial control over removal of purely executive Officers. But Congress can condition removal as long as restriction doesn’t unduly impede President’s performance of duties (Morrison) Removal restrictions on independent agency Officers are constitutional. BUT no dual layer restrictions making sub-appointee TOO independent are allowed. Someone in the hierarchy must be removable at will when independent agencies are involved.

8. Formalism versus functionalism in constitutional interpretation • PCAOB majority reflects a “formalist” approach (as did Scalia’s Morrison dissent, &Chadha /Clinton majorities) • Formalism = Use of strict rules of interpretation of the Constitution focusing on the language and structure of the document. • Breyer’s PCAOB dissent reflects “functionalist” approach (as did Morrison & Bowsher majorities, White dissent in Chadha, and SCT’s approach to delegation) • Rather than focus strictly on text of the Constitution, Court interprets it with an eye to ensuring implementation of the general structure and intent underlying the Constitution and with a concern for generally guarding against aggrandizement of power in one branch. • SCT vacillates between the two interpretive approaches • Formalist - easier to use with specific textual provisions of the Constitution (Chadha, Buckley) or with obvious power grabs. • Functionalist - tend to appear when vague provisions (like vesting clauses) or concepts (separation of powers) are involved. This approach was used to uphold (Morrison) and strike down (Bowsher) laws. Use of this approach generally signals a very hard case.

9. The President’s supervisory control over administrative actions • To what extent does the President have the authority over the day-to-day decision-making of the administrative apparatus? • Myers intimated that the vesting/take-care clauses gave President some “supervisory” authority although the SCT has never opined as to how much such authority the President has. • Why does the legal issue matter – i.e., why does the President want broad supervisory authority based in law? • Justice (then-Professor) Kagan noted that Presidents face practical problems in attempting to control their own bureaucracies. Why might that be the case?

10. Two schools of thought re legal foundations of executive control over administrative apparatus • Unitary Executive: Constitution gives President exclusive control over the administrative machinery, even its discretionary decisions. • Article II, § 2, cl. 2 – Presidential appointment with A/C of Senate. • Article II, § 2, cl. 1- President can require opinions of principal Officers re their duties • Article II, § 1, cl.1 &3 – Vesting & Take Care clauses • Myers/Morrisongive President unlimited authority to remove certain purely executive Officers & PCAOB says President can’t be stripped completely of oversight • Congressional Vesting: Congress can vest discretionary authority in subordinate officers and insulate their decisions from direct presidential control. • Article I, Section 8, cl. 18 allows Congress to delegate legislative power to specific people as necessary & proper • Myers:some executive actions can be insulated from executive interference even if official can later be removed • Kendall (1838) – Statute that did not make the Postmaster the President’s subordinate did not give President exclusive, inherent authority over him

11. Legal Implications of the two theories (in brief): • Congress passes a statute vesting decision-making authority re appropriateness of milk subsidies in Sec’y of Ag. What happens if Sec’y makes a decision w/ which the President disagrees re those subsidies? • Unitary Executive • POTUS can execute the policy or have another official do it. POTUS can immediately countermand contrary actions by the offending official. • What does the Steel Seizure case suggest about a Presidential order that directly contravenes the statute (e.g., tells Sec’y to ignore geographic considerations when making decisions) – even if one adheres to unitary executive theory. • Congressional Vesting • POTUS’s only option is to remove (i.e., fire) the offending official, since that official is the person in whom discretionary authority is vested. All Secy’s decisions remain in place until a new officer has been appointed. • What are the advantages and disadvantages of each approach?