Appointment & Removal Power - Case Take Aways

Question 1

Buckley v. Valeo

Answer 1

Buckley v. Valeo - Federal Election Campaign Act of 1971

Congress cannot give the power to itself of its officers without violating the separation of powers doctrine

Question 2

Morrison v. Olsen

Answer 2

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

Question 3

Impeachment of Andrew Johnson

Answer 3

Impeachment of Andrew Johnson

Johnson violates Tenure in Office Act of 1867 by firing Secretary of War

• House of Representatives voted to impeach but lacked enough votes in the Senate

President generally has unfettered removal power unless Congress has limited that removal power as they had done.

Question 4

Myers v. United States

Answer 4

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

Question 5

Humphrey’s Executor v. United States

Answer 5

Humphrey’s Executor v. United States - F.T.C. Commissioner – Quasi-Judicial & Quasi-Legislative

Test for Constitutional Removal Limitations:

• Does the statutory language in fact limit the president’s removal only to listed reasons?
• If so, are those limitations constitutional?

President did not have the ability to fire at will: Statutory language constitutionally limited the power

• The separation from the presidential whim is desirable for this office
• The limitations were limited to due cause in specified circumstances

Question 6

Weiner v. United States

Answer 6

Weiner v. United States - War Claims Commission - Quasi-Judicial & Quasi-Legislative

The President cannot remove appointees confirmed by the Senate at will.

Court looks beyond the express statement from Congress creating the Commission due to intent of creating an apolitical body

• Granting the President exclusive authority to remove appointees would render the Senate confirmation process meaningless, since the President could just remove any appointee he did not prefer and would subject the appointees to political pressures of the Executive.

Question 7

Bowsher v. Synar

Answer 7

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