The Presidential Appointments Clause and Removal Power and Removal Authority
The Appointments Clause of Article II, Section II
Constitutional Basis: Under Article II, Section 2, the President ‘shall nominate and by and with the advice and consent of the senate shall appoint ambassadors… and all other officers of the United States whose appointments are not herein otherwise provided for.’
Principal vs. Inferior Officers: - Principal Officers: These are high-level officials, such as Cabinet members, Supreme Court judges, and ambassadors. They must be appointed by the President with the advice and consent of the Senate. - Inferior Officers: Congress may, by law, vest the appointment of inferior officers in the President alone, in the courts of law, or in the heads of departments.
Legal Definition of an Officer: To be classified as an ‘officer’ within the meaning of the Appointments Clause, the Supreme Court has held that an individual must hold a continuous position and exercise significant authority pursuant to the laws of the United States.
Non-Officers (Employees): These individuals work for the federal government but do not exercise significant authority or hold continuous positions. They are not subject to the Appointments Clause; Congress simply specifies their hiring procedures (e.g., the Civil Service).
Morrison v. Olson (1988) and Inferior Officers
Background: This case arose from the Special Prosecutors Act (Independent Counsel Act), created post-Watergate. It allowed for an independent prosecutor to investigate and prosecute crimes committed by high administration officials, specifically to avoid the conflict of interest of the Executive Branch investigating itself.
The Dispute: Alexia Olson challenged a subpoena/indictment on the grounds that the Special Prosecutor was a Principal Officer who had not been appointed with Senate advice and consent, thus making their authority invalid.
The Holding: In a to opinion (Justice Rehnquist wrote the opinion; one Justice recused), the Court ruled the Special Prosecutor was an Inferior Officer.
Analysis of ‘Inferior’ Status: - Supervision: The prosecutor worked under the Attorney General and was removable by the Attorney General for cause, which implies an inferior status. - Limited Duties: The prosecutor had very specific, defined powers and no policymaking function. - Limited Scope/Time: The authority was limited to investigating specific crimes/controversies; once the report or trial ended, the role was terminated.
Inter-branch Appointments: The Court ruled that Congress can authorize the ‘courts of law’ to appoint Executive Branch members (inter-branch appointment). The text of Article II contains no limitation on this, and it does not violate the separation of powers because the President (via the Attorney General) retains the power to fire the appointee for cause.
The Evolution of the Presidential Removal Power
The Fundamental Conflict: The Constitution is silent on removal. Two primary arguments exist: - Parallelism: If the Senate must approve a hire, it must approve a fire (Alexander Hamilton’s view in Federalist No. 77). - Vesting / Unitary Executive: The executive power is vested in the President; he must have control over subordinates to fulfill his duty to ‘take care that the laws be faithfully executed’ (James Madison’s view).
The Decision of 1789: During the creation of the Department of Foreign Affairs (State Department), the First Congress debated removal power for weeks. They ultimately implied that the President could fire the Secretary of State without Senate permission. Chief Justice Roberts and other scholars argue this definitively settled the President's at-will removal power over Cabinet members.
Impeachment of Andrew Johnson: After Lincoln’s assassination, Congress passed the Tenure in Office Act, requiring Senate approval to fire Cabinet members. Johnson fired Secretary of War Edwin Stanton anyway. He was impeached but survived removal in the Senate by a single vote (notably involving Edmund G. Ross).
Myers v. United States (1926)
Case Facts: President Woodrow Wilson fired a postmaster, Mr. Myers, in Oregon. Postmasters were patronage jobs given for party loyalty. A statute said postmasters served four-year terms and could only be removed with Senate advice and consent. Myers sued for back pay.
Court Ruling: The Court ruled that the President has the authority to remove Executive Branch employees at will.
Rationale: The President cannot personally perform all executive tasks (e.g., delivering mail or counting deer). He is dependent on subordinates; if he cannot fire them, he lacks control, and thus cannot fulfill his Article II ‘Take Care’ duty. Removal is inherently executive in nature.
Humphrey’s Executor v. United States (1935)
The Federal Trade Commission (FTC): Created to enforce antitrust and unfair trade practice laws. It is run by a five-member commission with staggered terms; no more than three members can belong to the same political party.
The Conflict: President Franklin Roosevelt (FDR) fired Commissioner Humphrey because they did not see ‘eye to eye’ on policy. The statute, however, stated commissioners could only be removed for inefficiency, neglect of duty, or malfeasance in office. Humphrey’s estate sued for lost wages.
Court Ruling: A unanimous Court ruled against FDR, establishing that some independent agencies can be insulated from at-will removal.
Reasoning: - Congressional Intent: Congress wanted an independent body of experts free from partisan political pressure. - Administrative vs. Executive: The FTC was characterized as an ‘administrative body’ performing quasi-legislative and quasi-judicial functions. It filled in statutory details (legislative) and acted as a ‘master in chancery’ for courts (judicial). - Separation of Powers: Each branch must be free from the coercive influence of the others. To allow at-will removal of ‘quasi’ agencies would thwart legislative intent.
Trump v. Slaughter and Modern Precedent
Recent Refinements: - Free Enterprise Fund v. PCAOB (2010): The Court ruled that dual layers of ‘for cause’ removal (where the President can't fire a board that the President also can't fire) are unconstitutional. - Seila Law v. CFPB (2020): The Court held that a single director of an executive agency must be removable by the President at will. It distinguished the FTC because the FTC is a multi-member board with quasi-legislative/judicial functions.
Trump v. Slaughter Facts: President Trump fired FTC Commissioner Slaughter (and Bedoya) without cause. The District Court followed Humphrey’s Executor as binding precedent, ruling the firing unlawful despite the President’s argument that the FTC's powers had evolved to be purely executive.
Duty as to the Law: The District Court noted the President’s duty is to faithfully execute the law as it is, not as he wishes it to be. Until Humphrey's Executor is overruled or the statute changed, the President cannot fire commissioners at will.