The Removal Power

Clause 2. He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, 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 Court of Law, or in the Heads of Departments.

Annotations

The Myers Case.—Save for the provision which it makes for a power of impeachment of “civil officers of the United States,” the Constitution contains no reference to a power to remove from office, and until its decision in Myers v. United States,⁵⁷⁴ on October 25, 1926, the Supreme Court had contrived to sidestep every occasion for a decisive pronouncement regarding the removal power, its extent, and location. The point immediately at issue in the Myers case was the effectiveness of an order of the Postmaster General, acting by direction of the President, to remove from office a first-class postmaster, in the face of the following provision of an act of Congress passed in 1876: “Postmasters of the first, second, and third classes shall be appointed and may be removed by the President by and with the advice and consent of the Senate, and shall hold their offices for four years unless sooner removed or suspended according to law.”⁵⁷⁵

A divided Court, speaking through Chief Justice Taft, held the order of removal valid and the statutory provision just quoted void. The Chief Justice’s relied mainly on the so-called “decision of 1789,” which referred to Congress’s that year inserting in the act establishing the Department of State a proviso that was meant to imply recognition that the Secretary would be removable by the President at will. The proviso was especially urged by Madison, who invoked in support of it the opening words of Article II and the President’s duty to “take Care that the Laws be faithfully executed.”

Succeeding passages of the Chief Justice’s opinion erected on this basis a highly selective account of doctrine and practice regarding the removal power down to the Civil War, which was held to yield the following results: “Article II grants to the President the executive power of the Government, i. e. , the general administrative control of those executing the laws, including the power of appointment and removal of executive officers—a conclusion confirmed by his obligation to take care that the laws be faithfully executed; that Article II excludes the exercise of legislative power by Congress to provide for appointments and removals, except only as granted therein to Congress in the matter of inferior offices; that Congress is only given power to provide for appointments and removals of inferior officers after it has vested, and on condition that it does vest, their appointment in other authority than the President with the Senate’s consent; that the provisions of the second section of Article II, which blend action by the legislative branch, or by part of it, in the work of the executive, are limitations to be strictly construed and not to be extended by implication; that the President’s power of removal is further established as an incident to his specifically enumerated function of appointment by and with the advice of the Senate, but that such incident does not by implication extend to removals the Senate’s power of checking appointments; and finally that to hold otherwise would make it impossible for the President, in case of political or other differences with the Senate or Congress, to take care that the laws be faithfully executed.”⁵⁷⁶

The holding in Myers boils down to the proposition that the Constitution endows the President with an illimitable power to remove all officers in whose appointment he has participated, with the exception of federal judges. The motivation of the holding was not, it may be assumed, any ambition on the Chief Justice’s part to set history aright—or awry.⁵⁷⁷ Rather, it was the concern that he voiced in the following passage in his opinion: “There is nothing in the Constitution which permits a distinction between the removal of the head of a department or a bureau, when he discharges a political duty of the President or exercises his discretion, and the removal of executive officers engaged in the discharge of their other normal duties. The imperative reasons requiring an unrestricted power to remove the most important of his subordinates in their most important duties must, therefore, control the interpretation of the Constitution as to all appointed by him.”⁵⁷⁸

Thus spoke the former President Taft, and the result of his prepossession was a rule that, as was immediately pointed out, exposed the so-called “independent agencies”—the Interstate Commerce Commission, the Federal Trade Commission, and the like—to presidential domination. Unfortunately, the Chief Justice, while professing to follow Madison’s leadership, had omitted to weigh properly the very important observation that the latter had made at the time regarding the office of Comptroller of the Treasury. “The Committee,” said Madison, “has gone through the bill without making any provision respecting the tenure by which the comptroller is to hold his office. I think it is a point worthy of consideration, and shall, therefore, submit a few observations upon it. It will be necessary to consider the nature of this office, to enable us to come to a right decision on the subject; in analyzing its properties, we shall easily discover they are of a judiciary quality as well as the executive; perhaps the latter obtains in the greatest degree. The principal duty seems to be deciding upon the lawfulness and justice of the claims and accounts subsisting between the United States and particular citizens: this partakes strongly of the judicial character, and there may be strong reasons why an officer of this kind should not hold his office at the pleasure of the executive branch of the government.”⁵⁷⁹ In Humphrey’s Executor v. United States,⁵⁸⁰ the Court seized upon “the nature of the office” concept and applied it as a corrective to the overbroad Myers holding.

The Humphrey Case.—The material element of Humphrey’s Executor was that Humphrey, a member of the Federal Trade Commission, was on October 7, 1933, notified by President Roosevelt that he was “removed” from office, the reason being their divergent views of public policy. In due course, Humphrey sued for salary. Distinguishing the Myers case, Justice Sutherland, speaking for the unanimous Court, said: “A postmaster is an executive officer restricted to the performance of executive functions. He is charged with no duty at all related to either the legislative or judicial power. The actual decision in the Myers case finds support in the theory that such an office is merely one of the units in the executive department and, hence, inherently subject to the exclusive and illimitable power of removal by the Chief Executive, whose subordinate and aide he is. . . . It goes no farther; much less does it include an officer who occupies no place in the executive department and who exercises no part of the executive power vested by the Constitution in the President.”

“The Federal Trade Commission is an administrative body created by Congress to carry into effect legislative policies embodied in the statute. . . . Such a body cannot in any proper sense be characterized as an arm or eye of the executive. Its duties are performed without executive leave and, in the contemplation of the statute, must be free from executive control. . . . We think it plain under the Constitution that illimitable power of removal is not possessed by the President in respect of officers of the character of those just named, [the Interstate Commerce Commission, the Federal Trade Commission, the Court of Claims]. The authority of Congress, in creating quasi-legislative or quasi-judicial agencies, to require them to act in discharge of their duties independently of executive control cannot well be doubted; and that authority includes, as an appropriate incident, power to fix the period during which they shall continue in office, and to forbid their removal except for cause in the meantime. For it is quite evident that one who holds his office only during the pleasure of another, cannot be depended upon to maintain an attitude of independence against the latter’s will. . . .”

“The result of what we now have said is this: Whether the power of the President to remove an officer shall prevail over the authority of Congress to condition the power by fixing a definite term and precluding a removal except for cause, will depend upon the character of the office; the Myers decision, affirming the power of the President alone to make the removal, is confined to purely executive officers; and as to officers of the kind here under consideration, we hold that no removal can be made during the prescribed term for which the officer is appointed, except for one or more of the causes named in the applicable statute.”⁵⁸¹

The Wiener Case.—Curtailment of the President’s power of removal, so liberally delineated in the Myers decision, was not to end with the Humphrey case. Unresolved by the latter was the question whether the President, absent a provision expressly delimiting his authority in the statute creating an agency endowed with quasi-judicial functions, remained competent to remove members serving thereon. To this query the Court supplied a negative answer in Wiener v. United States.⁵⁸² Emphasizing that the duties of the War Claims Commission were wholly adjudicatory and its determinations, final and exempt from review by any other official or judicial body, the Court unanimously concluded that inasmuch as the President was unable to supervise its activities, he lacked the power, independently of statutory authorization, to remove a commissioner whose term expired with the life of that agency.

The Watergate Controversy.—A dispute arose regarding the discharge of the Special Prosecutor appointed to investigate and prosecute violations of law in the Watergate matter. Congress vested in the Attorney General the power to conduct the criminal litigation of the Federal Government,⁵⁸³ and it further authorized him to appoint subordinate officers to assist him in the discharge of his duties.⁵⁸⁴ Pursuant to presidential direction, the Attorney General designated a Watergate Special Prosecutor with broad power to investigate and prosecute offenses arising out of the Watergate break-in, the 1972 presidential election, and allegations involving the President, members of the White House staff, or presidential appointees. He was to remain in office until a date mutually agreed upon between the Attorney General and himself, and the regulations provided that the Special Prosecutor “will not be removed from his duties except for extraordinary improprieties on his part.”⁵⁸⁵ On October 20, following the resignations of the Attorney General and the Deputy Attorney General, the Solicitor General as Acting Attorney General formally dismissed the Special Prosecutor⁵⁸⁶ and three days later rescinded the regulation establishing the office.⁵⁸⁷ In subsequent litigation, a federal district court held that the firing by the Acting Attorney General had violated the regulations, which were in force at the time and which had to be followed until they were rescinded.⁵⁸⁸ The Supreme Court in United States v. Nixon⁵⁸⁹ seemed to confirm this analysis by the district court in upholding the authority of the new Special Prosecutor to take the President to court to obtain evidence in the President’s possession. Left unsettled were two questions, the power of the President himself to go over the heads of his subordinates and to fire the Special Prosecutor himself, whatever the regulations said, and the power of Congress to enact legislation establishing an Office of Special Prosecutor free from direction and control of the President.⁵⁹⁰ When Congress acted to create an office, first called the Special Prosecutor and then the Independent Counsel, resolution of the question became necessary.

The Removal Power Rationalized.—The tension that had long been noticed between Myers and Humphrey’s Executor, at least in terms of the language used in those cases but also to some extent in their holdings, appears to have been ameliorated by two decisions, which purport to reconcile the cases but, more important, purport to establish, in the latter case, a mode of analysis for resolving separation-of-powers disputes respecting the removal of persons appointed under the Appointments Clause.⁵⁹¹ Myers actually struck down only a law involving the Senate in the removal of postmasters, but the broad-ranging opinion had long stood for the proposition that inherent in the President’s obligation to see to the faithful execution of the laws was his right to remove any executive officer as a means of discipline. Humphrey’s Executor had qualified this proposition by upholding “for cause” removal restrictions for members of independent regulatory agencies, at least in part on the assertion that they exercised “quasi-” legislative and adjudicative functions as well as some form of executive function. Maintaining the holding of the latter case was essential to retaining the independent agencies, but the emphasis upon the execution of the laws as a core executive function in recent cases had cast considerable doubt on the continuing validity of Humphrey’s Executor.

In Bowsher v. Synar,⁵⁹² the Court held that when Congress itself retains the power to remove an official it could not vest him with the exercise of executive power. Invalidated in Synar were provisions of the 1985 “Gramm-Rudman-Hollings” Deficit Control Act⁵⁹³ vesting in the Comptroller General authority to prepare a detailed report on projected federal revenue and expenditures and to determine mandatory across-the-board cuts in federal expenditures necessary to reduce the projected budget deficit by statutory targets. By a 1921 statute, the Comptroller General was removable by joint congressional resolution for, inter alia, “inefficiency,” “neglect of duty,” or “malfeasance.” “These terms are very broad,” the Court noted, and “could sustain removal of a Comptroller General for any number of actual or perceived transgressions of the legislative will.” Consequently, the Court determined, “the removal powers over the Comptroller General’s office dictate that he will be subservient to Congress.”⁵⁹⁴

Relying expressly upon Myers, the Court concluded that “Congress cannot reserve for itself the power of removal of an officer charged with the execution of the laws except by impeachment.”⁵⁹⁵ But Humphrey’s Executor was also cited with approval, and to the contention that invalidation of this law would cast doubt on the status of the independent agencies the Court rejoined that the statutory measure of the independence of those agencies was the assurance of “for cause” removal by the President rather than congressional involvement as in the instance of the Comptroller General.⁵⁹⁶ This reconciliation of Myers and Humphrey’s Executor was made clear and express in Morrison v. Olson.⁵⁹⁷

That case sustained the independent counsel statute.⁵⁹⁸ Under that law, the independent counsel, appointed by a special court upon application by the Attorney General, may be removed by the Attorney General “only for good cause, physical disability, mental incapacity, or any other condition that substantially impairs the performance of such independent counsel’s duties.” Because the counsel was clearly exercising “purely” executive duties, in the sense that term was used in Myers, it was urged that Myers governed and required the invalidation of the statute. The Court, however, said that Myers stood only for the proposition that Congress could not involve itself in the removal of executive officers. Its broad dicta that the President must be able to remove at will officers performing “purely” executive functions had not survived Humphrey’s Executor.

It was true, the Court admitted, that, in the latter case, it had distinguished between “purely” executive officers and officers who exercise “quasi-legislative” and “quasi-judicial” powers in marking the line between officials who may be presidentially removed at will and officials who can be protected through some form of good cause removal limits. “[B]ut our present considered view is that the determination of whether the Constitution allows Congress to impose a ‘good cause’-type restriction on the President’s power to remove an official cannot be made to turn on whether or not that official is classified as ‘purely executive.’ The analysis contained in our removal cases is designed not to define rigid categories of those officials who may or may not be removed at will by the President, but to ensure that Congress does not interfere with the President’s exercise of the ‘executive power’ and his constitutionally appointed duty to ‘take care that the laws be faithfully executed’ under Article II. Myers was undoubtedly correct in its holding, and in its broader suggestion that there are some ‘purely executive’ officials who must be removable by the President at will if he is to be able to accomplish his constitutional role. . . . At the other end of the spectrum from Myers, the characterization of the agencies in Humphrey’s Executor and Wiener as ‘quasi-legislative’ or ‘quasi-judicial’ in large part reflected our judgment that it was not essential to the President’s proper execution of his Article II powers that these agencies be headed up by individuals who were removable at will. We do not mean to suggest that an analysis of the functions served by the officials at issue is irrelevant. But the real question is whether the removal restrictions are of such a nature that they impede the President’s ability to perform his constitutional duty, and the functions of the officials in question must be analyzed in that light.”⁵⁹⁹

The Court discerned no compelling reason to find the good cause limit to interfere with the President’s performance of his duties. The independent counsel did exercise executive, law-enforcement functions, but the jurisdiction and tenure of each counsel were limited in scope and policymaking, or significant administrative authority was lacking. On the other hand, the removal authority did afford the President through the Attorney General power to ensure the “faithful execution” of the laws by assuring that the counsel is competently performing the statutory duties of the office.

It is now thus reaffirmed that Congress may not involve itself in the removal of officials performing executive functions. It is also established that, in creating offices in the executive branch and in creating independent agencies, Congress has considerable discretion in statutorily limiting the power to remove of the President or another appointing authority. It is evident on the face of the opinion that the discretion is not unbounded, that there are offices which may be essential to the President’s performance of his constitutionally assigned powers and duties, so that limits on removal would be impermissible. There are no bright lines marking off one office from the other, but decision requires close analysis.⁶⁰⁰

As a result of these cases, the long-running controversy with respect to the legitimacy of the independent agencies appears to have been settled,⁶⁰¹ although it appears likely that the controversies with respect to congressional-presidential assertions of power in executive agency matters are only beginning.

Inferior Officers.—In the case of inferior officers, Congress may “limit and restrict the power of removal as it deems best for the public interest,”⁶⁰² and when Congress has vested the power to appoint these officers in heads of departments, it is ordinarily the department head, rather than the President, who enjoys the power of removal. However, in the case of Free Enterprise Fund v. Public Company Accounting Oversight Bd.,⁶⁰³ the Court considered whether an inferior officer can be twice insulated from the President’s removal authority—in other words, can a principal officer whom Congress has protected from at will removal by the President in turn have his or her power to remove an inferior officer restricted?⁶⁰⁴ The Court held that such multilevel protection from removal is contrary to the President’s executive authority. First, even if the President determines that the inferior officer is neglecting his duties or discharging them improperly, the President does not have the power to remove that officer. Then, if the President seeks to have the principal officer remove the inferior officer, the principal officer may not agree with the President’s determination, and the President generally cannot remove the principal officer simply because of this disagreement.⁶⁰⁵

In the absence of specific legislative provision to the contrary, the President may at his discretion remove an inferior officer whose term is limited by statute,⁶⁰⁶ or one appointed with the consent of the Senate.⁶⁰⁷ He may remove an officer of the army or navy at any time by nominating to the Senate the officer’s successor, provided the Senate approves the nomination.⁶⁰⁸ In 1940, the President was sustained in removing Dr. E. A. Morgan from the chairmanship of TVA for refusal to produce evidence in substantiation of charges which he had leveled at his fellow directors.⁶⁰⁹ Although no such cause of removal by the President was stated in the act creating TVA, the President’s action, being reasonably required to promote the smooth functioning of TVA, was held to be within his duty to “take Care that the Laws be faithfully executed.” So interpreted, the removal did not violate the principle of administrative independence.