Appointment

1

• Appointment Removal
• Nov. 3, 2004

2
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/ AC)
• Inferior officers
• Courts and Deparment Heads (Cabinet)

3
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

4
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

5
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

6
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

7
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

8
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
Congressional Control over Removal

• Humphreys Executor (1935)
• Federal Trade Commn Act creates FTC and Commn
• 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
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 didnt restrict
  removal
• No removal at-will
• where independence is needed

11
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
Morrison v. Olson (1988)

• Executive Officer and Presidential control
• Genl 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
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
• Humphreys 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?