Constitutional Law I Appointment & Removal Nov. 3, 2004

Fall, 2004Con Law I - Manheim2 Appointment Art. II, § 2, ¶ 2: The President “shall appoint ambassadors, other public ministers and consuls, judges of the supreme court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law. But the Congress may by law vest the appointment of such inferior officers, as they think proper, in the president alone, in the courts of law, or in the heads of departments.” Creates two classes of officers of the US Principal officers Only the President may appoint (w/ A&C) Inferior officers Courts and Deparment Heads (Cabinet)

Fall, 2004Con Law I - Manheim3 Removal Generally Not specified in constitution (except impeachment)  Power of removal follows power of appointment In absence of indication to contrary, entity that appoints can also remove at will Removal power must depend on general principles, e.g., Separation of Powers  If an Officer in one branch could be removed by another branch, then SoP interference could arise  General rule: an Officer belongs to that branch with the power of removal Agent owes allegiance, not to person who appointed her, but to person who can remove her

Fall, 2004Con Law I - Manheim4 Morrison v. Olson (1988) Is Independent Counsel Act Constitutional? Appointment of Special Prosecutor by court Does “Special Division” compromise Art III Does “independence” of Special Prosecutor violate Art. II and SoP? Appointments Clause (Art. II, § 2, ¶ 2) “The President shall nominate, and by and with the Advice and Consent of the Senate, shall appoint [Officers of the US]; but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments”

Fall, 2004Con Law I - Manheim5 Morrison v. Olson (1988) Inferior vs. Principal Officers Principal  Constitutional officers Diplomatic, judges, heads of departments  Policy-makers, aides  Advice and consent of senate Inferior  Ministerial; no policy-making functions  Appointment does not require confirmation

Fall, 2004Con Law I - Manheim6 Morrison v. Olson (1988) Inferior vs. Principal Officers Morrison  Removal by AG, rather than President  Limited authority & jurisdiction (per Special Division)  Limited in duration (temporary office)  No policy functions

Fall, 2004Con Law I - Manheim7 Morrison v. Olson (1988) Special Division and Article III Despite const authority for vesting appointment in courts, does this appointment violate structural principles (judicial independence)?  Court does more than appoint, it also determines scope and duration of Independent Counsel powers  Special Division is appointed for that purpose by CJ

Fall, 2004Con Law I - Manheim8 Congressional Control over Removal Myers v. United States (1926) Power of removal is incident to power of appointment That there is no textual provision suggests no limit Power of removal is therefore “confined to the govern- mental authority which has administrative control.”

Fall, 2004Con Law I - Manheim9 Congressional Control over Removal Humphrey’s Executor (1935) Federal Trade Comm’n Act creates FTC and Comm’n  Commissioners appointed (by President) for 7-yr term  May be removed only for inefficiency, neglect or malfeasance “Independent” Agency  Non-partisan, impartial, administrative functions  Neither political nor executive; fixed term assures independence Unlike policy-making agencies or constitutional officers

Fall, 2004Con Law I - Manheim10 Congressional Control over Removal Weiner v. US (1958) War Crimes Commission  Created as impartial (unreviewable) adjudicatory body (Art I ct)  When created, Congress made no provision for removal Removal by Eisenhower for political reasons Same reasons for restricting removal as in Humphrey  Does not matter that Congress didn’t restrict removal No removal at-will  where independence is needed

Fall, 2004Con Law I - Manheim11 Congressional Control over Removal Bowsher v. Synar (1986) Balanced Budget Act gives Comptroller General power to order impoundment (spending cuts) Which branch does Bowsher belong to? What function does he perform? Congress cannot remove (except by impeachment) officers charged with executing the laws

Fall, 2004Con Law I - Manheim12 Morrison v. Olson (1988) Executive Officer and Presidential control Gen’l rule: president may remove Executive officers (Myers v. United States (1926)) Independent agencies and officers  Might need to insulate exec officer from President Initelligence, law enforcement Watergate and the Saturday Night Massacre Cox, Richardson, Ruckleshouse, Bork  Congress may play no role in exec officer removal Congress’ complete duty exhausted w/ advise & consent

Fall, 2004Con Law I - Manheim13 Morrison v. Olson (1988) Executive Officer and Presidential control Independent agencies and officers  Limited grounds for removal for members of quasi- legislative and quasi-judicial agencies  Humphrey’s Executor v. US (1935) Congress may fix term (spanning administrations) Congress may set criteria (“good cause”) for removal Review by courts, but not congress Special Prosecutor independent of President  Which approach to SoP (where Executive is acting) does Justice Scalia use? Are his examples relating to congress and courts valid or persuasive?