Appointments of agency officials

1. Appointments of agency officials • Shared Authority between the President & Congress - Art. II., Sec. 2, cl. 2 • President appoints Principal Officers (w/ advice and consent of Senate) • Congress can vest appointment of Inferior Officers in President, Heads of Dep’tsor Courts of Law • If it doesn’t, default method of appointment is the first method above. • Congress cannot try to unbalance this shared authority by aggrandizing appointments power and vesting it in itself • Especially by doing an end-run around the specific requirements of Art. II., Sec. 2, cl. 2 • How does the recent controversy surrounding “recess” appointments fit in with all of this?

2. The president and recess appointments • Art. II. Sec. 2, cl. 3 – The president shall have the power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session. • Modern Congressional recesses • Each sitting Congress has two sessions with a formal “recess” in between and at the end. These are call “inter-session” recesses. • There are several periods of adjournment during a session that can be quite long (20 or so days). These are often called “intra-session” recesses. • Numerous presidents (since Andrew Johnson) have made recess appointments • Beginning mid-1940s presidents have made “intra-session” appointments. • Increasingly Presidents use these appointments to temporarily place Officers when Senate refuses to “consent” to particular candidate (NLRB) or to ANY candidate (CFPB) • Constitutionality of “intra-session” appointments • Noel Canning v. NLRB (D.C. Cir. Jan. 25, 2013) – struck down intra-session appointment of 3 NLRB Board members as violating Art. II. Sec. 2, cl. 3

3. The President’s removal authority – the early years • Few constitutional provisions specifically address anybody’s power to remove executive Officials: • Art. II, Sec. 4 – Removal of Pres, VP &all civil Officers for Treason, Bribery, High Crimes & Misdemeanors after Impeachment and conviction • Art I, Sec. 2, cl. 5 – the House can Impeach • Art. I, Sec. 3, cl. 6 – the Senate can try Impeachments • NONE of these provisions deal specifically with the PRESIDENT’s authority to remove those officials • Does that mean the President has NO ability to remove agency officials other than that stated? • People often look to Art II, ' 1’s vesting clause; Art II, ' 3’s “take care” clause to support President’s authority in this area • Also what role does Congress have in the removal of Officers OTHER than through impeachment?

4. Myers v. United States (1926) • Myers appointed Postmaster of Oregon (w/ advice & consent of Senate) in 1917 for 4 year term. Postmaster General fired him in 1920 on orders of the President • Firing violated statute which provided for removalof Postmaster only on advice and consent of Senate; Myers sued for back pay, claiming PM General had violated the statutory discharge requirements • SCT rules statute unconstitutional because it interferes with Presidential authority over Officers. Why? • Can the President exercise control over all duties of other executive officials – e.g., a decision that grants or denies a license to a particular person? • Anything else the SCT is worried about besides congressional interference with executive power?

5. Humphrey’s Executor v. United States (1935) • Humphrey was appointed an FTC commissioner for 6-year term under Hoover. FDR asked him to resign because he “wasn’t on the same team.” He refused. FDR fired him. Federal law limited presidential removal of FTC commissioners to incidents of inefficiency, neglect of duty, or malfeasance of office. • Humphrey’s estate sued for back pay during the period it claimed he was unlawfully fired. FDR claimed he had the authority to fire an officer of the US (see Myers). • Why does SCT rule that the statute didn’t violate the Constitution? How is this situation different from Myers or can they be reconciled?

6. Bowsher v. Synar (1986) • Gramm-Rudman Act set statutory deficit reduction goals. • G-R Act gave Comptroller General (head of GAO, located in legislature) the responsibility of surveying and reporting to Congress on whether deficit reduction goals were being met by the recipient of federal funds. • If goals were unlikely to be met, law directed C.G. to calculate the amount by which agencies should reduce spending below appropriated levels. • Those calculations could sometimes be binding on agencies because President was required to issue an order based on C.G.’s recommendations • C.G. was nominated by the President from a list of 3 people recommended by House/Senate leaders. • C.G. was removable by impeachment or by joint resolution of Congress for inefficiency, neglect of duty, or malfeasance.

7. Bowsher’s holding • Why can’t the Act’s deficit reduction functions be delegated to the C.G.? • Why isn’t this a case of Congress delegating functions to someone who is an “adjunct of Congress (as SCT intimated in Buckley)?” • How, exactly, is the C.G. exercising executive power so that he/she is an Officer of the United States?

8. After Myers, Humphrey’s Executor &Bowsher – generally accepted propositions (but these may change some with later cases) • President has extensive (nearly unlimited?) authority to remove purely executive officers (both principal and inferior) • Stems from executive authority vested in the President (Art. II, Sec. 1) and the President’s need to faithfully execute the laws (Art. II, Sec. 3) • Congress can condition the removal of Officers ofindependent agencies • Such agencies need to be insulated from sway of politics and threat of removal at a whim • Congress cannot itself participate in the removal of Officers except through impeachment • Example – can’t require advice and consent of Senate (Myers) • Includes independent agency officials who exercise executive power (e.g., enforcement powers) - can’t be removable by Congress or w/ A&C of Senate (this is a logical extension of Bowsher)

9. More on appointments – Morrison v. Olsen (the statute) • EGA of 1978 allowed appointment of an independent counsel (I.C.) when high executive officials were suspected of violating certain federal laws. • AG charged with investigating information suggesting a law violation. • After concluding investigation, AG filed a report with special division of circuit court of appeals for the D.C. circuit. • Court couldn’t initiate appointment of I.C. BUT if AG found “reasonable grounds to believe further investigation/prosecution” was warranted, AG could ask court to appoint I.C. • Upon AG’s request, court was required to appoint an independent counsel and to define his/her jurisdiction. • 3 ways to remove I.C.: • Impeachment & conviction via Constitution • Completion of project (termination by special division or voluntarily) (fed. statute) • AG could remove I.C. for good cause, physical disability, mental incapacity or other condition that interferes with job (fed. statute)

10. Morrison & appointments • Majority finds that I.C. is an “inferior officer” • Why? Does majority define what an “inferior officer” is? • Factors affecting majority’s determination that I.C. is an inferior officer: • I.C. can be removed by A.G. even if broad discretion and independence • I.C. has limited duties • I.C. has limited jurisdiction • How does Justice Scalia respond?

11. Subsequent events re the distinction between principal and inferior officers • Cases subsequent to Morrisonhave tended toward Scalia’s approach – i.e., look to see if person is “subordinate” – but the Morrison factors may be relevant to that analysis – e.g., independence, ease of removability, etc. may factor into subordinate status • Edmond v. U.S. (1997)– SCT (Scalia) intimated that “inferior” officers generally have a superior who supervises their work and was appointed by President w/ A&C of Senate • Free Enterprise Fund v. PCAOB (2010) – SCT held that officials who are removable at will by agency head are “inferior” and could be appointed by SEC commr’s • Who is a “Head of Dep’t” for Art. II purposes? Typically think of as “Secretary” or “Director” of major executive agencies – BUT SCT held that independent agencies could qualify as “Departments” because they were a “freestanding component of the Executive Branch, not subordinate to or contained within any other such component” – this means the commissioners as a group can appoint inferior officers

12. Back to Morrison – inter-branch appointments • I.C. (executive official) was appointed by a special division of federal court (judicial branch) • Does the appointments clause prohibit inter-branch appointments? • What standard would the Morrison majority use to determine whether inter-branch appointments were unconstitutional? Why didn’t this scheme violate that standard? • Could Congress vest appointment of an Assistant Secretary of Defense in a Court of Law?