The Administrative State and the Constitution - Oct. 31 and Nov. 2 Flashcards
What procedures does the Constitution define for the appointment of officials? (Q)
The Appointments Clause grants the president the power to nominate and, with the advice and consent of the Senate, appoint:
ambassadors,
other public ministers and consuls,
the U.S. Supreme Court justices, and
other principal officers of the United States.
Congress may vest the appointment of other U.S. officers whose appointment is not otherwise expressly provided for in the Constitution in the president alone, the courts, or the heads of departments.
Does Congress have the constitutional authority to appoint principal officers of the United States? (Q)
No. Congress does not have the constitutional authority to appoint principal officers of the United States. Under the Appointments Clause of the U.S. Constitution, the power to appoint principal officers of the United States belongs exclusively to the president, with the advice and consent of the Senate. However, Congress does have the authority to decide whether to give the power to appoint inferior officers to either:
the president of the United States,
the heads of departments, or
the courts of law.
Congress cannot give appointment authority to anyone outside these categories.
Can Congress make the president seek the Senate’s consent to remove a principal officer of the United States? (Q)
No. Congress cannot make the president seek the Senate’s consent before removing a principal officer of the United States. The power of appointment and removal is generally an executive-branch power. Unless the U.S. Constitution specifically gives one of the other branches a role, then that power remains with the executive branch.
Under the Appointments Clause of the Constitution, the president must seek and obtain the consent of the Senate for the appointment of all principal officers of the United States. However, the Constitution says nothing about removing principal officers. Because the Constitution does not specifically give the Senate the power to consent to removals, this power belongs exclusively to the president and the executive branch. Denying the president exclusive power to remove principal subordinates would unduly interfere with his duty to execute the laws.
For purposes of constitutional law, what is an inferior or non-core officer? (Q)
Inferior or non-core officers are those officers whose work is directed and supervised by others who are appointed by the president with the Senate’s advice and consent. This ensures the maintenance of the Appointments Clause’s policy goal of ensuring political accountability relative to important government assignments. The U.S. Supreme Court has also used a four-factor test to determine whether a person is an inferior officer based on whether she is:
subject to removal by a higher executive branch official;
empowered to perform only certain, limited duties;
vested with limited jurisdiction; and
given limited tenure.
Under the Appointments Clause, Congress may vest the appointment of inferior or non-core officers as it sees fit in the president, the courts, or the heads of departments. In contrast, the president, with the advice and consent of the Senate, appoints principal officers.
May Congress restrict the power of the president of the United States by requiring the president to show good cause for the removal of non-core executive officials? (Q)
Yes. Congress may generally restrict the president’s ability to remove non-core, policy-making executive officials except for good cause. Under the U.S. Constitution, all executive authority must be accountable to the president. The president has the sole authority to remove officials who exercise the core powers of the executive branch (e.g., the Secretary of Defense) for any reason. Congress cannot limit that power by adding a good-cause requirement.
However, Congress can limit the president’s power to remove non-core executive officials except for good cause. This is the case even if the official exercises policy-making power. However, having two or more layers of good-cause protection goes too far and violates the separation of powers because it unduly interferes with the president’s ability to supervise the executive branch’s work.
Congress enacted a law stating that the attorney general of the United States could remove an independent counsel only for good cause. The president of the United States and an independent counsel became involved in a public dispute over allegations of a foreign country meddling in U.S. commodities markets. The president ordered the independent counsel’s office to suspend its investigation, but the independent counsel refused to do so. The president then directed the attorney general to dismiss the independent counsel. The attorney general executed the president’s order and fired the independent counsel. The independent counsel sued, arguing that he could not be fired because there was no showing of good cause as required by the statute.
Could the independent counsel be fired without a showing of good cause? (Q)
No. The independent counsel could not be fired without a showing of good cause. Generally, the president has the sole authority to remove executive officers who exercise the core powers of the executive branch (e.g., the Secretary of Defense) for any reason. Congress cannot limit that power by requiring the president to show good cause for firing these core officers. However, Congress can limit the president’s power to remove officials whose duties lie outside the core of the executive power by adding a good-cause requirement.
Here, an independent counsel’s duty to investigate foreign meddling lies outside the core of the executive power. Congress had the authority to limit the president’s power by passing a valid law saying an independent counsel could only be fired for good cause. Because this law was valid, the independent counsel could not be fired absent a showing of good cause.
May Congress vest the power to appoint or remove inferior executive-branch officers in the federal courts? (Q)
Yes. Congress may vest power to appoint or remove inferior executive-branch offers in the federal courts. The Appointments Clause states that Congress may vest the power to appoint inferior officers in the president alone, the courts of law, or the heads of departments. The power to remove has been implied from the power to appoint.
So long as the executive officer is an inferior officer, vesting appointment and removal power in some person or entity other than the president, even outside the executive branch, is constitutional.
What is a recess appointment? (Q)
A recess appointment is an appointment made by the president while the Senate is not in session. The Recess Appointments Clause authorizes the president to fill vacancies while the Senate is not in session, even for officers whose appointment requires the Senate’s advice and consent.
Recess appointments operate as if the Senate had confirmed the appointee, but those appointments last only until the end of Congress’s next session. In other words, the system operates on the assumption that the Senate will be able to vote on the appointee as soon as Congress is back in session. The vacancy need not have arisen during a recess for a recess appointment to be valid.
