Module 4 - Part 4 - Appointments

Who removes Principal Executive Officers (e.g. ambassadors, Cabinet heads, federal judges)?

President. Generally at will.

Who nominates Principal Officers?

The President nominates. The Senate confirms.

Who removes Inferior Executive Officers (administrative judges, assistant US attorneys)?

President or executive superior (inferior officers must remain subject to Executive supervision)

Who removes Independent Agency Officers (e.g. FTC trade commissioners, CIA director)?

President, at-will

Who removes Federal Reserve Governors (e.g. Jerome Powell)?

President

Who removes Ordinary Federal Employees (e.g. postal workers, IT specialists)?

Employing agency

Who removes Article III judges?

Congress. Impeachment by House + conviction by Senate.

Who appoints Inferior Officers (e.g. federal court clerks)?

The President nominates. The Senate confirms.

OR

1) Congress can let the President act alone, or 2) let courts or department heads appoint.

Are employees covered by the Appointment clause?

No

What’s the difference between an officer and employee?

Officer = appointed, exercises significant authority within government.

Employee = works under direction of an officer and has limited authority or responsibilities.

What’s the difference between a Principal & Inferior Officer?

Principal = appointed by the President with Senate confirmation

Inferior Officer = those below the principal.

True or false: A group of people running an agency can be the "Head" of a department (Free Enterprise Fund).

True

What is the difference between an Executive Officer & Principal Officer?

1. Executive: A broad umbrella encompassing anyone who works within the executive branch. Spans from Principal officers to Inferior officers.

2. Principal: Only includes people who report to the President.

Can Congress appoint executive officers itself?

No

Can the President use Senate recess to bypass the Senate confirmation process?

No

How long must Senate breaks be?

Minimum 10 days to be presumptively valid

Is the Senate in session during “pro-forma” sessions? What are pro-forma sessions?

Yes. Pro-forma sessions are brief meetings of the Senate, typically lasting only a few minutes, held to prevent recess appointments.

Myers v. United States: Holding

President has the authority to remove executive branch officers without Senate approval.

President Trump attempted to fire Lisa Cook—the first such firing in the Federal Reserve's 111-year history.

• The President’s Justification: The administration claimed it had "for cause" grounds to remove her, citing allegations of mortgage fraud dating back to before her appointment to the board.

• Cook’s Lawsuit: Cook sued to keep her seat, arguing that the pre-appointment allegations did not legally constitute "good cause" under the Federal Reserve Act. Crucially, she also asserted that the President violated her constitutional right to due process by firing her abruptly without providing advance notice or a formal opportunity to respond to the charges.

Holding?

The Federal Reserve is uniquely protected from at-will presidential firings.

Removals must be for cause and provide notice/due-process.

Are SEC administrative law judges “Officers of the United States” or employees? Why so? (Lucia vs SEC)

Officers of the United States. They 1) hold significant authority and 2) wield massive authority. Thus, they must be appointed by the Head of the Department.

What is the difference between a Principal or Inferior Officer? (Arthrex)

Principal Officers are appointed by the President with Senate confirmation.

Inferior Officers are appointed by Department Heads or Courts.

The distinction impacts their authority and removal processes.