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The President’s Removal Authority. Few constitutional provisions specifically address the power to remove executive Officials: Art. II, Sec. 4 – Impeachment of Officers for Treason, Bribery, High Crimes & Misdemeanors Art I, Sec. 2, cl. 5 – the House can Impeach
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The President’s Removal Authority • Few constitutional provisions specifically address the power to remove executive Officials: • Art. II, Sec. 4 – Impeachment of Officers for Treason, Bribery, High Crimes & Misdemeanors • Art I, Sec. 2, cl. 5 – the House can Impeach • Art. I, Sec. 3, cl. 6 – the Senate can try Impeachments • NONE of them deal specifically with the PRESIDENT’s authority to remove those officials • So does that mean the President has NO stated ability to remove agency officials? What inferences do we draw from “silence”? • Are there any constitutional provisions that support the President’s authority to remove agency Officials?
Myers v. United States (1926) Federal statute allowed for removal of postmasters by the President with the advice & consent of the Senate. Myers, postmaster first class in Oregon was summarily removed by Postmaster General on President’s orders. Myers sued for backpay claiming that his removal was unlawful. Why did the SCT rule that Myers removal was unconstitutional?
Humphrey’s Executor v. United States (1935) Federal law gave FTC authority to regulate unfair trade practices. Federal law limited removal of FTC Commissioners to incidents of inefficiency, neglect of duty, or malfeasance of office. Shortly after FDR appointed Humphrey for another 6-year term, FDR asked him to resign (he wasn’t “On the same team”). When Humphrey refused, Roosevelt fired him Humphrey’s estate sued for backpay. FDR claimed he had the inherent authority to fire an officer of the US. Why does SCT rule that the statute didn’t violate the Constitution? How is this situation different from Myers or can they be reconciled?
Bowsher v. Synar (1986) • Gramm-Rudman Act set statutory deficit reduction goals. • Gave Comptroller General (head of GAO, which is located in legislature) the responsibility of surveying and reporting to Congress on whether those deficit reduction goals were being met by the recipient of federal funds. • If goals unlikely to be met, law directed C.G. to calculate the amount by which agencies should reduce spending below appropriated levels. • Those calculations could become binding on agencies in some circumstances because President would be required to issue an order based on C.G.’s recommendations • C.G. is nominated by the President from a list of 3 people recommended by House/Senate leaders. • C.G. is removable by impeachment or by Congress for inefficiency, neglect of duty, or malfeasance.
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 delegation functions to someone who is an “adjunct of Congress?” How is the C.G. exercising executive power?
After Myers, Humphrey’s Executor and Bowsher – General Propositions • 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 of independent 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 executive officials except through impeachment • This includes independent agency officials if they exercise executive power (e.g., enforcement powers)
