1. Constitutional Law I Appointment & Removal April 21, 2006

2. Spring, 2006Con 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)

3. Spring, 2006Con Law I - Manheim3 Removal Generally Not specified in constitution (except impeachment)  Power to remove usually follows power to appoint 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 Officer can be removed only by her own branch  Corollary: 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

4. Spring, 2006Con Law I - Manheim4 Morrison v. Olson (1988) Is Independent Counsel Act Constitutional? Appointment of Special Prosecutor by court Does the “Special Division” compromise the independence of Art III Judiciary Does the “independence” of the Special Prosecutor violate Art. II and SoP?

5. Spring, 2006Con Law I - Manheim5 Morrison v. Olson (1988) Appointment of Special Prosecutor 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 dept’s.” Principal Officers  Constitutional officers Diplomatic, judges, heads of departments  Policy-makers, aides  Advice and consent of senate Inferior Officers  Ministerial; no policy-making functions  Appointment does not require confirmation

6. Spring, 2006Con Law I - Manheim6 Morrison v. Olson (1988) Is Morrison an Inferior Officer Removal by AG, rather than President Limited authority & jurisdiction (per Special Division) Limited in duration (temporary office) No policy functions

7. Spring, 2006Con Law I - Manheim7 Morrison v. Olson (1988) Special Division and Article III Despite authority for vesting appointment in courts, does this particular 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

8. Spring, 2006Con 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.”

9. Spring, 2006Con 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

10. Spring, 2006Con 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

11. Spring, 2006Con 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

12. Spring, 2006Con 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

13. Spring, 2006Con 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?