Appointment and removal

Example from class

Morrison v. Olson Ethics in government act 1978- creates independent counsel that investigates improprieties in executive branch If independent counsel is removed must be for good cause & must file report Congress has no direct role in removing the independent counsel so it was found constitutional The real question is whether removal restrictions are of such a nature that they impede the president's ability to perform his constitutional duty and functions of the officials in question must be analyzed in that light.

Principal Officers of the United States

Pres nominates, then advice and consent of the senate becomes appointed Congress cannot limit or take away this right

Why is this a violation?

Because although Congress can limit the President's power to make appointment of an inferior federal officer, Congress must give this appointment power either to the President, the judiciary, or a "head of department"(typically, a Cabinet member). The Deputy Secretary of State does not fall into any of these three categories, so Congress can't constitutionally grant her the power to appoint an inferior federal officer.

Congress cannot...

Congress cannot limit the president's right to remove principle officers Example: The pres may remove the sec of state without cause and congress can't put a limit saying "the pres may only remove the sec of state for good cause"

Example

Congress creates a fed reserve agency which by rule making authority makes the rules for some industry but since this is quasi-legislative b/c agency makes rules, congress can say the pres can only remove for good cause they can also make a term limit of 6 years

Example Buckley v. Valeo Congress establishes the Federal Election Commission, which enforces federal campaign laws. The Commission has power to bring civil actions against violators. The statute establishing the Commission allows Congress to appoint a majority of the Commission's members.

Court Held: the tasks performed by the Commission are primarily executive, thus its members are "officers of the United States." Therefore, the members must be appointed by the President, not Congress. They do have execution powers→ how power to enforce federal election campaign act so since can enforce law, need to be appointed by A2S2

How to decide if they are an Principal Officer of the United States: Appointed by pres and must have advice, consent of senate

Example: "Principal" executive-branch officers are people who have no boss except for the President. Members of the Cabinet and ambassadors are the main examples of such officers. Congress may not appoint a Secretary of Defense — it must wait for the President to nominate the Secretary, at which point the Senate can choose to consent or reject the nomination.

Example

Free Enterprise Fund v. PCAOB Cong put restriction on pres' ability to remove top guy in SEC (only by ineffective duty, malfeasance, etc) but also restricted SEC to terminate for good cause. Layering of good cause limitations by president under his control--Unconstitutional

Suppose that a federal statute created the federal Commission on Smuggling. The commission is authorized to develop regulations governing the conduct of U.S. customs agents, and to impose sanctions upon any agents it finds to have been derelict in their duties. The commission consists of six members appointed as follows: (a) two are appointed by the President with the approval of both Houses of Congress; (b) two are appointed by the Speaker of the House of Representatives with the approval of both Houses of Congress; and (c) two are appointed by the President pro tempore of the Senate with the approval of both Houses of Congress. The commission members serve a term of six years, during which time they may be removed from office only by impeachment. Are the appointment provisions valid?

Given the substantial quasi-legislative and quasi-adjudicative duties of the commission, its members are clearly officers of the United States within the meaning of Article II, §2. There is a good argument that the commissioners are principal officers; in addition to possessing broad rulemaking and adjudicative authority, they do not appear to be subject to supervision or removal by any higher executive officials. Yet, whether the commissioners are principal or merely inferior officers, none of the appointment modes is valid. Part (a) is improper because Article II, §2 allows presidential nominations to be approved only by the Senate; here, the House has improperly insinuated itself into the confirmation process. Parts (b) and (c) are also flawed, for even if the commissioners are inferior officers, none of the Article II, §2 menu options allows appointment by the President pro tempore of the Senate or by the Speaker of the House; any claim that the President pro tempore and the Speaker qualify as "heads of departments"would be unavailing, for, as the Court held in United States v. Germaine, 99 U.S. 508 (1879), this term refers to the heads of the major executive branch departments. This example is based upon Buckley v. Valeo, 424 U.S. 1 (1976) (invalidating appointment procedures for federal Election Commission).

Another example from class

Humphrey's Executor Court interprets statute to impose limit on executive's power FTC combine quasi exec/judicial/legis and executive cant control them totally- they have independence - congress can therefore place limits on removal

Suppose Congress passes the following statute: "The Supreme Court shall not have jurisdiction to review, by appeal, writ of certiorari, or otherwise, any case arising out of any State statute, ordinance, rule, regulation, or practice, which relates to voluntary prayer , Bible reading, or religious meetings in public schools. The district courts shall not have jurisdiction of any case or question which the Supreme Court does not have jurisdiction to review under this title."

If Article III grants Congress plenary authority to make exceptions to the Supreme Court's appellate jurisdiction, then, in terms of raw congressional power, the above statute would be well within the defined power granted by the Exceptions Clause. The statute explicitly and literally creates an exception to the Court's appellate jurisdiction. If, however, one interprets the Exceptions Clause as a component of an Article III requirement that the judicial power must in some manner extend to "all" cases arising under the Constitution, then this statute would be beyond the exceptions power since it completely eliminates Article III jurisdiction over a specified category of cases arising under the Constitution. A similar result will follow from the application of other mandatory theories.

Following a scandal in which U.S. customs agents were found to have accepted bribes from drug smugglers, a federal statute created the office of customs prosecutor. The customs prosecutor is authorized to investigate the U.S. Customs Service and to bring criminal proceedings against any customs agent found to have accepted a bribe. The statute provides that the customs prosecutor is to be appointed by the attorney general. Once appointed, the customs prosecutor is to continue in office until the attorney general certifies that the investigation and all related prosecutions have been completed. The customs prosecutor may be removed from office by the attorney general but only for cause. Is the appointment provision valid?

If the customs prosecutor is a principal officer of the United States, the appointment provision is invalid since Article II, §2 specifies that principal officers must be nominated by the President and confirmed by the Senate; no other appointment option is available. On the other hand, if the customs prosecutor is an inferior officer, Congress had the right to vest the appointment in the attorney general, as head of the Justice Department. The appointment would likewise be valid if the customs prosecutor were a mere employee since the Constitution does not specify the means of appointing employees or nonofficers. The duties of this position are far too significant to classify its holder as an employee. The question is thus whether the customs prosecutor is an officer, or an inferior officer. The power to investigate and prosecute crimes is considerable and involves a great deal of discretion. The customs prosecutor is appointed by the attorney general, a principal officer, but it is unclear whether the attorney general has authority to supervise the customs prosecutor's work. If such authority is lacking, it would appear that the customs prosecutor is not "inferior"to any executive branch officer. While the attorney general has the power to remove the customs prosecutor, this does not give the attorney general any real control over the office since removal may occur only for good cause. On the other hand, the customs prosecutor is charged with investigating and prosecuting only a narrow range of crimes. Moreover, the position is not permanent and must terminate as soon as the task for which it was created has been accomplished. While this is a close case, the Court might conclude that because of the temporary nature of the position, the customs prosecutor is an inferior rather than a principal officer, and that the method of appointment selected by Congress was therefore valid. See Morrison v. Olson, 487 U.S. 654 (1988) (holding that an independent counsel was an inferior officer); United States v. Nixon, 418 U.S. 683, 694 (1974) (intimating that a special prosecutor was an inferior officer).

Under Article 2 Section 2 who has appointment power?

The president, not congress has the power to appoint officers of the united states The Clause (Article II, §2) says that the President shall "nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors ... Judges of the Supreme Court, and all other Officers of the United States. ..."

Congress creates the post of Deputy Secretary of State, and says that the person occupying this post must be appointed by the Secretary of State.

There is no Appointments Clause problem with this statute, since (1) the Secretary of State is a cabinet member and is thus automatically a "head of [a] department" (2 ) the Deputy Secretary is an "inferior" federal officer, the power to appoint whom Congress may therefore confer (by authority of Article II, § 2, final sentence) on the head of the department in which the Deputy will serve.

Congress creates the post of Assistant Deputy Secretary of State, and gives the power of appointment for this post to the Deputy Secretary of State. This statute is a violation of the final portion (the "inferior officers"part) of the Appointments Clause, assuming that the post is senior enough that the person who holds it exercises "significant authority."(Significant authority is required for a person to be an inferior federal officer at all, as opposed to a rank-and-file federal employee who is not even an inferior officer.)

This statute is a violation of the final portion (the "inferior officers"part) of the Appointments Clause, assuming that the post is senior enough that the person who holds it exercises "significant authority."(Significant authority is required for a person to be an inferior federal officer at all, as opposed to a rank-and-file federal employee who is not even an inferior officer.) Why is this a violation?(next card)

Example: so congress can say that a chairman of a an agency (inferior officer) may be removed by the president only for good cause. But they can't then say the Deputy commistioner of the agency (who is a subordinate of the chairman) can only be removed with cause public policy issue?

This would give the president no power over the Deputy commisontioner Problem is public policy→ issue of accountability. Congress layers more and more layers on removal and we have a less and less accountable executive ofiicer to the pres. People don't know who is responsible for policy if pres doesn't really have power over it

On the other hand A2 S2 goes on to say...

the congress can vest appoint of inferior officers in president, heads of executive departments or lower courts and no where else

Thus congress...

cannot directly appoint any federal officers. But they can vest the appointment of inferior federal officers in president, heads of executive departments or lower courts and no where else

Ex parte McCardle, 74 U.S. (7 Wall.) 506 (1868). In that Reconstruction-era case, a civilian, McCardle, was arrested by military authorities and scheduled to be put on trial for the publication of "incendiary and libelous"articles. He sought a writ of habeas corpus in federal circuit court, claiming he was being held in violation of his constitutional rights. The writ was denied. McCardle lodged an appeal directly with the Supreme Court pursuant to an 1867 statute that specifically provided the Court with jurisdiction over such appeals from the circuit courts. After McCardle's case was argued on the merits, but before a decision was issued, Congress repealed the specific jurisdictional provision upon which McCardle had relied. The Court dismissed the suit...

holding that the repeal divested it of jurisdiction over the case. In so ruling, the Court took the text of the Exceptions Clause at face value. "[ T] he power to make exceptions to the appellate jurisdiction of this court is given by express words."Id. at 514. Therefore, once Congress exercised its exceptions power to divest the Court of jurisdiction, there was nothing for the Court to do but to dismiss the case: "Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause."

The only time Congress may directly participate in the appointment process is if the position...

is a purely legislative one in the sense that it involves only the performance of investigatory, informative, or other tasks for Congress.

Congress may not...

limit executive authority to remove executive officers by layering executive limitations on removal

Congress may...

limit executive removal power where an officer exercises quasi-legislative and/or quasi-judicial functions and is independent of the executive

Congress...

may confine executive removal of all inferior officers (unless purely executive) to instances where good cause is shown