Executive Power - Appointments, Removals, Control of Executive Flashcards
Principal Officer
Only the President can appoint a principal officer. Must be removable by the President. If a role has a high level of unreviewable authority but is appointed like an inferior officer, that’s a problem.
Inferior Officer
Inferior officers may be appointed by roles other than the President under the Appointments Clause.
Factors used to decide whether the role is an inferior officer:
- Whether subject to removal
- Limited duties
- Limited in jurisdiction
- Limited in tenure
Appointment Power
Appointment Process:
- President nominates
- Senate confirms
- President appoints by giving commission
Exception: Congress can ASSIGN APPOINTMENT POWER for inferior officers in:
- (YES) Heads of Departments/Agencies…
This is ok even if it’s the head of the wrong department, like the Head of the Dep. of Housing and Urban Development appointing lower level EPA officers. - (MAYBE) Courts of Law…
If the courts were appointing everyone in the executive branch at the lower levels, that would create a separation of powers concern. No incongruity. Courts can appoint some roles and have congruity. - (YES) The President…
This is explicitly stated in the Appointments Clause.
Morrison v. Olson (Independent Counsel)
Congress passed an act permitting the AG and a court (the Special Division) to appoint an independent counsel. The Act gave the AG the sole removal power of an IC for “good cause”.
HOLDING: the act did NOT violate a law vesting the judiciary with the power to appoint an inferior officer and prohibiting the AG from removing the officer without good cause. It didn’t violate separation of powers principles because it didn’t interfere with the Pres’ ability to faithfully execute the laws.
Good Cause Restriction
A restriction applied to jobs in the executive branch preventing the individual occupant from being removed without “good cause”. In practice, these restrictions are very difficult to overcome just because the President wants his own party in that role.
Removal Power
The President can remove high level, purely executive officers (e.g., Cabinet members) at will, without any interference from Congress. Moreover, Congress may not restrict the President from removing the head of an
independent agency if that person is the sole director and has significant executive power. However, Congress may provide statutory limitations (e.g., removal for good cause) on the President’s power to remove all other executive appointees.
Scalia’s Dissent in Morrison v. Olson
Extolls the virtues of the unitary executive power. Article II gives the president “all” not some executive powers. Cited by both sides today.
Unreviewable Authority
When an inferior officer has been granted too much authority, it should get chopped off as seen in Arthrex.
Incongruity Test
A test addressing separations of powers concerns with regards to appointments. It is “incongruous” for a branch to do something outside its normal bounds. The special court in Morrison was allowed to appoint the IC because it was congruous with the way courts can usually appoint prosecutors to do stuff.
Formally, this is still law, but has never been used again since Morrison v. Olson.
Humphrey’s Executor
In Humphreys, court says when congress adds good cause restrictions that’s fine, Pres doesn’t need at-will removal. Morrison is more analogous to Humphrey’s Executor because that was an issue about preventing the President from removing FTC Commissioners at will. There, it mattered that the character of the office was one where it was preferable to give independence to the agency.
Myer’s
Myers said that the Pres has the ONLY authority to remove purely executive officials. The test is about whether the official is PURELY executive or not.
Congress’ attempt to involve itself in the removal of an executive official was found to be sufficient grounds to render the statute invalid.
Legislative Aggrandizement Principle
The concept that Congress tries to expand its power by passing legislation that empowers itself. Aggrandizement = making oneself larger/more powerful. Courts seek to limit this.
Seila Law v. CFPB
The CFPB was created with a single director appointed by the President with advice + consent from the Senate. That director served for 5 years and couldn’t be removed without good cause by the Pres.
HOLDING: An administrative agency head must be removable by the president. But there are two exceptions: 1) Congress can create protections for inferior officers who have limited duties 2) independent agencies can be headed by bipartisan groups that aren’t removable by the Pres at will.
Double Layers of Protection
Pres>Commissioners>Board
In Seila Law, the Board was protected from the Commissioners by good cause, and the Commissioners were protected from the Pres by good cause, so it was unconstitutional to have this double layer of protection.
Political Accountability and the Removal Power
Political accountability principles support Presidential authority to appoint and remove because the President is the single object for the jealousy and watchfulness of the people. So the people exert more power over all of the minor officials in the executive branch when the Pres has full control (and therefore accountability) for their actions. Pres will have no excuses and if he lets minor officials do dumb shit then he can get voted out or his party will suffer in the next Presidential election.
