Appointments and Removals Flashcards
Where does executive administrative power come from?
Art. II- appointments clause
- The power to appoint and remove is the power to supervise, control, direct
- *There is not constitutional provision for removal power
Who can the President appoint?
- Ambassadors and Principal superior officers (like cabinet members-bc ensures effectiveness and accountability)
- Can’t appoint inferior officers
How are inferior officers appointed?
Congress decides who appoints them:
- President
- Courts
- Department heads
* *CAN NEVER PUT THE APPOINTMENT POWER IN THEMSELVES**
- If not in courts or dep heads, can’t restrict pres.
What is the Test for Inferior/Superior Officer?
- Who is above the officer in question?
- What is the importance of the responsibilities assigned to the officer?
- The extent to which they are limited in their scope of authority
- The extent to which they have a narrow and defined jurisdiction (as opposed to broad policy level authority you would see in a cabinet position)
- What is the scope of their tenure (short, for only particular task or duration or for long time)
What happened in Morrison v. Olson?
Ethics in Gov. Act-indepent counsel appointed to investigate executive officials
*Court says ok for Congress to vest appointment in the federal courts bc the independent counsel is an inferior officer
• AG is superior to independent counsel, AG can remove independent counsel, important responsibilities, only investigates matters the AG tells, tenure for only that particular task, can’t form policy like the AG,
• Fed. Judges appointed but didn’t supervise (still separation of powers)
Who can the President remove?
Executive Officials
Who can remove the President?
Congress can remove the president through the impeachment process (presided over by Chief Justice, impeached by the House of Reps bc Vice President is the head of the senate=conflict of interest)
TEST: Can Congress restrict executive removal role?
- Is the office one in which independence from the president is desirable→If so, Congress may limit the removal power and the judiciary may limit removal even in the absence of a statutory restriction
(i) Is it purely executive tasks or is it quasi-legislative or quasi-judicial (Humphries)
(ii) Is removal restriction one that impedes the President’s ability to perform his constitutional duties?
* *What is the nature of the function that the person was appointed to carry out? (relevant to extent it tells us how important the person is to the President’s performance of his executive duty**(Morrison) - Are congress’s limits on removal constitutional?
(i) Congress can’t completely prohibit Prez. removal but can limit for good cause
(ii) Congress can’t give removal power to itself to remove executive official
* *Congress can remove through impeachment process
What happened in Myers v. US?
President tried to fire post-master during 4 year term w/out Senate consent
• Court says senate doesn’t have power to remove (not in Constitution) and the statute interferes w/executive functioning
• Stands for the proposition that any Congressional limits on removal are unconstitutional (no longer applicable)
What happened in Humphrey’s Executor?
Hoover tried to remove Fed. Trade Commissioner (fix term of years, ability to fire for good cause)
• When Congress creates quasi-leg. or quasi-exec. regulatory commissions they are meant to be free from political control (free to exercise judgment without interference) can only be fired if good cause shown
o Quasi-jud=can issue cease and desist orders
o Quasi-leg=defines what is and isn’t permitted
What happened in Weiner v. US?
President can’t remove executive officials where independence from President is desirable
• War Claims Commissioner not legislative, no fixed terms, Congress didn’t express desire for independence of the office, no grounds for removal
• Must look to function over form→Congress intended that the WCC have independence from the Pres.
