Appointment and Removal Power

Appointment Power example

Congress authorizes a special court to appoint independent counsels to investigate executive officers for wrongdoing and also empowers the attorney general to remove an independent counsel for cause. Subsequently, a plaintiff challenges the appointment and removal of independent counsels as a violation of the separation of powers. However, the independent counsels are lower-level executive officials and are considered inferior officers. Congress may constitutionally vest their appointment in a special court and their removal in the head of the Department of Justice.

iii. Inferior officers:

Congress can delegate the appointment of an inferior officer to either the president, the judiciary, or heads of departments iv. Factors to consider in determining the status of an officer: 1. Nature and extent of officers duties, whether they include policy making functions 2. Amount of independence and supervision: do they answer directly to President or some supervisor? 3. Positions tenure: permanent, temporary, and intermittent

Appointments Clause

The Appointments Clause authorizes the president to "nominate, and by and with the advice and consent of the Senate . . . appoint ambassadors, . . . judges of the Supreme Court, and all other officers of the United States." Congress may vest the appointment of inferior officers "in the President alone, in the courts of law, or in the heads of [executive] departments." Under this clause, the president may appoint and remove executive officials, and Congress may limit the president's powers of appointment and removal. [See U.S. Const. art. II, § 2, cl. 2]

Appointment rule

The president may appoint those officials or officers which the constitution explicitly says he may appoint. The power vested in the president to appoint is inherent and because of that he can't transfer that power to another entity without the constitutional expressly saying he can. Congress may delegate their appointment power in those circumstances where they specify what powers they are delegating.

Appointment Power

The president may nominate and appoint executive officials with the approval of the Senate. However, Congress may limit the presidential appointment power regarding inferior officers (lower-level officials with limited duties and jurisdiction) but not principal officers (higher-level official such as cabinet members). [See Morrison v. Olson

Removal Rule

The president may remove executive officials, unless removal is limited by statute. Congress, by statute, may limit removal both if it is an office where independence from the president is necessary and if the law does not prohibit removal but, rather, limits removal to instances where good cause is shown.

Appointments

i. Article II §2 gives president power "with the advice and consent of the Senate" to appoint "all ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for . . . but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments."

Pardon: Federal Offenses

i. Can grant pardons for offences against the United States, except impeachment

ii. Principal/ Executive Officers:

Supreme court justices and cabinet members, with advice and consent of the Senate 1. Members of an agency or commission with administrative powers are deemed officers of the united states and must be appointed by President with confirmation from Senate a. Congress can appoint officials to legislative committees but not to agencies or commissions with administrative powers

Removal Power

The Constitution is silent as to whether the president may remove officers. However, the Supreme Court has held that the president has the exclusive authority to remove executive officials, even without congressional approval. As with appointments, Congress may limit the presidential removal power regarding inferior officers. [See Myers v. U.S

Removal Power example

Congress enacts a federal statute authorizing the comptroller general to evaluate federal budget reports and make recommendations for execution by the president. However, Congress retains removal power over the comptroller general. Because only the president may remove executive officials, the federal statute is unconstitutional. [See Bowsher v. Synar,

Removal

i. Constitution silent on removal except for ensuring tenure of all Article II judges "during good behavior" ii. The President probably can remove high level, purely executive officers (e.g., Cabinet members) at will, without cause (modern trend is good cause) iii. Must have cause for judicial or quasi-judicial functioning officers iv. Good cause can be physical or mental disability that substantially impairs performance of the counsels duties