Appointment & Removal Power - Case Take Aways Flashcards
Morrison v. Olsen
Morrison v. Olsen - Independent Counsel created by the Title VI of Ethics in Government Act
Part I – Appointment
- Congress can vest the appointment power in the “inferior officers” including the Attorney General
- Majority says Attorney General is an inferior officer because:
- Subject to removal by a higher official, Limited and enumerated duties (no policy formulating), Limited jurisdiction, Limited tenure (no ongoing duties beyond specific project)
Part II – Removal
- There’s no separation of powers problem with regard to the Act because the statute appropriately puts the removal power in the hands of the Executive Branch without impermissibly interfering with the functions of the Executive Branch.
- Removal power squarely placed in the executive office: An independent counsel may only be removed by the Attorney General for good cause
Myers v. United States
Myers v. United States - Firing the Oregon Postmaster
Myers argues that president requires advice & consent of the Senate to remove when required to appoint. However Postmaster is part of the Executive Branch
- Removal power is incident to power of appointment not to advising, rejecting, and consenting to appointments (Congress’s Role in Appointment), therefore the Executive Branch has exclusive and illimitable power of removal of subordinates in the executive branch
Bowsher v. Synar
Bowsher v. Synar - Comptroller General
Court looks beyond the express statement of Congress to determine the Comptroller General was not purely an office of the Legislative Branch and found that the office was “the very essence of ‘execution’ of the law.”
The Court concluded, “Congress in effect has retained control over the execution of the Act and has intruded into the executive function.”
- This case represents a violation of the separation of powers from the direct congressional role in the removal of officers who perform executive functions
