Chapter 2

1. Chapter 2 Presidential Control

2. Learning Objectives • The president controls agencies through appointing and removing firing agency heads. • The President must appoint and the Senate must confirm officers of the US. • There are separate standards for inferior officers. • Terms of office create independent agencies. • The person who appoints may also remove officers, except Article III judges.

3. Executive Power

4. Vesting and Take Care Clauses • “The executive Power shall be vested in a President of the United States of America.” U.S. Const. art. II, § 1. • Article II says that the President, specifically, “shall take Care that the Laws be faithfully executed.” Art. II, § 3. • Together, these define the source of the president's domestic powers

5. The Unitary Executive • Do all of the executive branch powers belong to the president him/herself? • In Chadha, Congress gave the Attorney General the power to stay the deportation of an alien • Can the president tell the AG's how to rule? • Can he only fire the AG? • Why does it matter whether the president has the power or the secretary has the power? • How does the Appointments Clause fit into this analysis? • If it is the president's power, why should the Senate care who he appoints? • What if the Senate will not confirm a secretary?

6. Art II, sec. 2, cl 2 - the Appointments Clause "[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint... all other [principal] 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."

7. Recess Appointments • Article 2, Section 2: • The President shall have 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. • Why was this included? • The legal questions in the recent case • Can the Senate stay in session while the members are at home? • Does the vacancy have to occur during the recess?

8. Who is a Principle Officer? • It is usually clear who is a principle officer, subject to confirmation by the Senate, in existing agencies. • Or if Congress, by law, designates an office as a principle officer. • Controversies arise with new agencies, such as the independent counsel in the Morrison v. Olson case. • Inferior officers are hard to tell from ordinary employees and there are a lot more of them, so there is more occasion for challenges.

9. Free Enterprise Fund v. PCAOB, 130 S.Ct. 3138 (2010) • Government agency that regulates accounting firms. • Members appointed by the SEC commissioners, not the President • The Court quoted a prior opinion in which it had said that ‘‘whether one is an ‘inferior’ officer depends on whether he has a superior,’’ and that ‘‘ ‘inferior officers’ are officers whose work is directed and supervised at some level by other officers appointed by the President with the Senate’s consent.’

10. Who Controls their Work? • The Board’s rules and its imposition of sanctions on accounting firms are subject to approval and alteration by the SEC. • Members of the Board are removable ‘‘at will’’ by the SEC Commissioners. • Is this sufficient control to establish they the members on inferior officers, thus appointable by the SEC rather than the president?

11. President Nixon and the Independent Counsel • Great crisis in presidential control. • The Saturday night massacre • Nixon orders the AG to fire the independent counsel who was investigating Watergate • Two people later, he orders AAG Bork to fire him, probably in a deal already set up by the AG. • Nixon's indirect firing of the independent prosecutor was the background for this law • What was Clinton's biggest political mistake? • Not vetoing the renewal of the Independent counsel law.

12. Morrison v. Olson, 487 US 654 (1988) • What did Olson hope to do with his suit? • What triggers the appointment of an independent counsel? • Who appoints the independent counsel? • Why class of officer must this then be? • Who can remove an independent counsel for cause? • Who can remove that person, i.e., what is the chain of presidential control?

13. The Core Function Standard for Inferior Officers • Is the independent counsel an "inferior" official? • Does the independent counsel have a policy making role? • Is this a critical area for the president to control the exercise of discretion? • How does the president retain control? • Why will the independent counsel process always be political?

14. What was the key issue in Olson? • The limitation of the removal power to good cause, rather than at-will • Does this impermissibly interfere with the president's power to carry out the laws? • Majority says no, focusing on the preservation of separation of powers • Scalia saw this as a stark limitation on the president's power to exclusively control the executive branch.

15. Was Scalia Right? • What was he worried about as regards the power of the office? • He stresses the broad powers of the IC • How did this play out in Whitewater, the Clinton investigation? • What would it cost you to be investigated if you were a junior White House counsel?

16. Congressional Determinations • If the Congress establishes that the position is an inferior officer, the courts have not second-guessed it. • This might change if Congress created an inferior office that was clearly the job of a principal officer. • Be careful of circular arguments • Just because an officer is not required to be appointed under the appointment's clause, that does not prevent the court from finding that the position is covered by the Appointment's Clause. • The real problem is that the court will also not second guess Congress determining that an officer must be confirmed by the Senate.

17. Example: General Counsel to a Cabinet Agency • What is the classification of the Secretary of Veterans Affairs? • What are the duties of the General Counsel to the Secretary? • Is the general counsel an employee, inferior officer, or principle officer of the US? • Much more authority than just an employee • Does the general counsel make decisions that affect agency policy or enforcement? • What is the level and right of supervision by the Secretary?

18. Tenure of Office Act – 1867 • If Congress is silent on removal, the officer serves at the discretion of the President • This Act limited the right of presidents to remove cabinet members without the consent of the Senate. • President Andrew Johnson removed the Secretary of War • Was impeached, but not removed by one vote. • There are now no limitations on removal of Cabinet Officers

19. Myers v. US, 272 US 52 (1926) • President Wilson discharged an Oregon postmaster without cause • Postmaster sued for back pay under a law passed after the Tenure in Office Act that required the senate to approve appointment and removal of postmasters • Why all this concern about a postmaster? • Chief Justice and Ex-President Taft wrote the opinion, which found the Tenure in Office Act and related acts an unconstitutional limit on presidential power.

20. Humphrey’s Executor v. US, 295 US 602 (1935) • Less than 10 years later, Meyers is again at issue - what is the political change over that period? • Why was the FTC controversial at that time? • What was the restriction on removing FTC commissioners? • How did the lawsuit arise? • President fired Humphrey from the FTC • Humphrey died and his executor sued for the pay for the rest of his term

21. Myers Redux • Why did the court change its view on the removal power? • How is a postmaster different from an FTC commissioner? • (This has not been important in later cases) • What type of agency does this create? • Where does the independence come from? • Are the agencies independent if the President is in office long enough to appoint all the members?

22. Typical Characteristics of an Independent Agency • (1) they are headed by multi-member groups, rather than a single agency head; • (2) no more than a simple majority of these members may come from one political party; • (3) the members of the group have fixed, staggered terms, so that their terms do not expire at the same time; and • (4) they can only be removed from their positions for ‘‘cause”

23. Stopped here

24. How Independent are Independent Agencies? • The President usually gets to pick the chair from among the existing commissioners. • Does not control policy, but can influence what issues are addressed • Not subject to OIRA (covered later) • Can be subjected to other executive controls as determined by Congress. • Presidential influence increases the longer a party holds the presidency.

25. How could the president fire an FTC commissioner? • In theory the president could state a cause and fire a commissioner, but it has not happened • It has not been an issue because they get hounded out of office if there is cause • Does this mean that they always stay when the president in unhappy with them? • This is an area where the presidents have not challenged the court

26. Free Enterprise Fund v. Public Company Accounting Oversight Board, 130 S.Ct. 3138 (2010) • PCAO Board members are inferior officers appointed by the SEC Commissioners. • SEC commissioners have terms of office and can only be removed for good cause. • Is there a problem with the PCAO Board members being only removed cause? • What is the presidential chain of control?

27. The Politics of the Sentencing Commission • Started out as a way to moderate unreasonable sentences • Sentences were made longer and the judges lost discretion to shorten them. • White collar criminals did more jail time • First time drug offenders did a lot more time. • Limited and eliminated various ways to shorten a sentence (no parole) • End result was the opposite of the intention

28. Mistretta v. United States, 488 U.S. 361 (1989) • The US Sentencing Commission is an independent commission in the Judicial Branch • The members are Article III judges appointed by the President • There are no terms of office • The Court upheld the law allowing the president to remove them, even though this is not an executive branch agency

29. Removal Wrap Up • What if the statute says an officer serves until removed for good cause, but does not specify a term of office? • Think about what would happen if they could not be removed except for cause. • Remember civil service • Can the head of a department remove inferior officers he has appointed? • Unless Congress creates a term of office, if you appoint someone, you can fire them. • Terms of office for agency heads create independent agencies • These agencies are still executive branch agencies