Removing Officers: Current Doctrine

Article II, Section 2, 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 Courts of Law, or in the Heads of Departments.

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.” 1

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.2 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,3 . and it further authorized him to appoint subordinate officers to assist him in the discharge of his duties.4 , 510, 515, 533. 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.” 5 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 Prosecutor6 and three days later rescinded the regulation establishing the office.7 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.8 The Supreme Court in United States v. Nixon9 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.10 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.11 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,12 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 Act13 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.” 14

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.” 15 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.16 This reconciliation of Myers and Humphrey's Executor was made clear and express in Morrison v. Olson.17

That case sustained the independent counsel statute.18 , 591 et seq. 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.” 19

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.

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,” 20 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.,21 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?22 (d)(3). The members of the Commission, in turn, can only be removed by the President for inefficiency, neglect of duty, or malfeasance in office. 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.23

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,24 or one appointed with the consent of the Senate.25 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.26

Seila Law

In Seila Law LLC v. Consumer Financial Protection Bureau (CFPB), the Supreme Court concluded that Congress could not provide for-cause removal protections for the head of the CFPB, an independent financial regulatory agency led by a single Director.27 The Court described the President's removal power as “unrestricted,” 28 rejecting the view that Humphrey's Executor and Morrison “establish a general rule that Congress may impose 'modest' restrictions on the President's removal power.” 29 Instead, “the President's removal power is the rule, not the exception.” 30 The Court said that after Free Enterprise Fund, only “two exceptions” to the rule requiring removability remained.31 First, under Humphrey's Executor, Congress may sometimes "create expert agencies led by a group of principal officers removable by the President only for good cause" if the agency does not exercise executive power.32 In interpreting this 1935 case, the Seila Law Court essentially limited the decision to its facts, saying that this exception permitted for-cause removal protections for "a multimember body of experts, balanced along partisan lines, that performed legislative and judicial functions and was said not to exercise any executive power."33 The Court said that the second exception to the President's removal power allowed at least some removal protections for inferior officers, as in Morrison, if those officers have “limited duties and no policymaking or administrative authority.” 34

The Court concluded in Seila Law that the CFPB Director did not fall within either of these two exceptions.35 The single Director was not a multimember expert body, and, in the view of the Court, could not be considered “a mere legislative or judicial aid.” 36 Rather than performing merely reporting and advisory functions, the CFPB Director exercised executive power, possessing the authority “to promulgate binding rules fleshing out 19 federal statutes, . . . . [to] issue final decisions awarding legal and equitable relief in administrative adjudications,” and to seek “daunting monetary penalties” in enforcement actions in federal court.37 Neither could the CFPB Director be considered an inferior officer with limited duties.38 And the Court ruled that it would not recognize a new exception to the President's removal authority for “an independent agency led by a single Director and vested with significant executive power.” 39 The Court described the CFPB's structure as “unprecedented” 40 and “incompatible with our constitutional structure,” 41 saying that the agency's structure violated the Constitution “by vesting significant governmental power in the hands of a single individual accountable to no one.” 42 Consequently, the Court concluded that the provision insulating the Director from removal was unconstitutional, severing the for-cause removal provision from the governing statute.43

Footnotes

1

295 U.S. at 627–29, 631–32. Justice Sutherland’s statement, quoted above, that a Federal Trade Commissioner “occupies no place in the executive department” was not necessary to the decision of the case, was altogether out of line with the same Justice’s reasoning in Springer v. Philippine Islands, 277 U.S. 189, 201–202 (1928), and seems later to have caused the author of it much perplexity. See R. Cushman, The Independent Regulatory Commission 447–48 (1941). As Professor Cushman adds: “Every officer and agency created by Congress to carry laws into effect is an arm of Congress. . . . The term may be a synonym; it is not an argument.” Id. at 451.

2

357 U.S. 349 (1958).

3

28 U.S.C. § 516.

4

28 U.S.C. §§ 509, 510, 515, 533.

5

38 Fed. Reg. 14688 (1973). The Special Prosecutor’s status and duties were the subject of negotiation between the Administration and the Senate Judiciary Committee. Nomination of Elliot L. Richardson to be Attorney General: Hearings Before the Senate Judiciary Committee, 93d Congress, 1st Sess. (1973), 143 passim.

6

The formal documents effectuating the result are set out in 9 Weekly Comp. Pres. Doc. 1271-1272 (1973).

7

38 Fed. Reg. 29466 (1973). The Office was shortly recreated and a new Special Prosecutor appointed. 38 Fed. Reg. 30739, as amended by 38 Fed. Reg. 32805. See Nomination of William B. Saxbe to be Attorney General: Hearings Before the Senate Judiciary Committee, 93d Congress, 1st Sess. (1973).

8

Nader v. Bork, 366 F. Supp. 104 (D.D.C. 1973).

9

418 U.S. 683, 692–97 (1974).

10

The first question remained unstated, but the second issue was extensively debated in Special Prosecutor: Hearings Before the Senate Judiciary Committee, 93d Congress, 1st Sess. (1973); Special Prosecutor and Watergate Grand Jury Legislation: Hearings Before the House Judiciary Subcommittee on Criminal Justice, 93d Congress, 1st Sess. (1973).

11

Bowsher v. Synar, 478 U.S. 714 (1986); Morrison v. Olson, 487 U.S. 654 (1988). This is not to say that the language and analytical approach of Synar are not in conflict with that of Morrison; it is to say that the results are consistent and the analytical basis of the latter case does resolve the ambiguity present in some of the reservations in Synar.

12

478 U.S. 714 (1986).

13

The Balanced Budget and Emergency Deficit Control Act of 1985, Pub. L. No. 99-177, 99 Stat. 1038.

14

478 U.S. at 729, 730. “By placing the responsibility for execution of the . . . Act in the hands of an officer who is subject to removal only by itself, Congress in effect has retained control over the execution of the Act and has intruded into the executive function.” Id. at 734. Because the Act contained contingency procedures for implementing the budget reductions in the event that the primary mechanism was invalidated, the Court rejected the suggestion that it should invalidate the 1921 removal provision rather than the Deficit Act’s conferral of executive power in the Comptroller General. To do so would frustrate congressional intention and significantly alter the Comptroller General’s office. Id. at 734–36.

15

478 U.S. at 726.

16

478 U.S. at 725 n.4.

17

487 U.S. 654 (1988).

18

Pub. L. No. 95-521, title VI, 92 Stat. 1867, as amended by Pub. L. No. 97-409, 96 Stat. 2039, and Pub. L. No. 100-191, 101 Stat. 1293, 28 U.S.C. §§ 49, 591 et seq.

19

487 U.S. at 689–91.

20

United States v. Perkins, 116 U.S. 483 (1886), cited with approval in Myers v. United States, 272 U.S. 52, 161–163, 164 (1926), and Morrison v. Olson, 487 U.S. 654, 689 n.27 (1988).

21

561 U.S. ___, No. 08-861, slip op. (2010).

22

The case involved the Public Company Accounting Oversight Board, a private non-profit entity with a five-member board, that has significant authority over accounting firms that participate in auditing public companies. The board members are appointed to staggered 5-year terms by the Securities and Exchange Commission, and can only be removed for “good cause shown,” which requires a finding of either a violation of securities laws or board rules, willful abuse of power, or failure to enforce compliance with the rules governing registered public accounting firms. 15 U.S.C. § 7217(d)(3). The members of the Commission, in turn, can only be removed by the President for inefficiency, neglect of duty, or malfeasance in office.

23

561 U.S. ___, No. 08-861, slip op. at 14–15 (2010).

24

Parsons v. United States, 167 U.S. 324 (1897).

25

Shurtleff v. United States, 189 U.S. 311 (1903).

26

Blake v. United States, 103 U.S. 227 (1881); Quackenbush v. United States, 177 U.S. 20 (1900); Wallace v. United States, 257 U.S. 541 (1922).

27

Seila Law LLC v. Consumer Fin. Prot. Bureau, 140 S. Ct. 2183, 2192 (2020). This case also involved questions of standing. Id. at 2195. Among other arguments, a court-appointed amicus curiae claimed that “a litigant wishing to challenge an executive act on the basis of the President's removal power must show that the challenged act would not have been taken if the responsible official had been subject to the President's control.” Id. at 2196. The Court rejected the idea that such a challenger has to prove this type of counterfactual, finding it sufficient to demonstrate an injury “from an executive act that allegedly exceeds the official's authority.” Id.

28

Id. at 2192.

29

Id. at 2205. The court-appointed amicus curiae argued that the Court's precedent established that Congress may generally limit the President's removal power, with two exceptions: (1) “Congress may not reserve a role for itself in individual removal decisions” ; and (2) Congress may not completely eliminate the President's removal power. Id.

30

Id. at 2206.

31

Id. at 2198.

32

Id. at 2192, 2199. The Court said its decision in Wiener also fell within this exception. Id. at 2199 (discussing Wiener v. United States, 357 U.S. 349 (1958)).

33

Id. at 2199 (emphasis added). The Court stressed that “[r]ightly or wrongly, the Court viewed the [Federal Trade Commission ('FTC')] (as it existed in 1935) as exercising 'no part of the [Humphrey's Executor] executive power.'” Id. at 2198 (quoting Humphrey's Executor v. United States, 295 U.S. 602, 628 (1935)). However, the Court also said that this conclusion “has not withstood the test of time,” and that the powers of the FTC—even as they existed in 1935—are now considered executive. Id. at 2198 n.2.

34

Id. at 2200. This principle also extended to Perkins. Id. at 2199 (discussing United States v. Perkins, 116 U.S. 483 (1886)).

35

Id. at 2200–01.

36

Id.

37

Id. at 2200.

38

Id.

39

Id. at 2201.

40

Id. The Court acknowledged that there were four other relatively recent historical examples of Congress providing good-cause tenure to principal officers leading an agency, but dismissed these examples as also being controversial. Id. (discussing the Comptroller of the Currency, Office of the Special Counsel, Social Security Administration, and Federal Housing Finance Agency).

41

Id. at 2202.

42

Id. at 2203. The Court noted that the executive branch is the only branch led by a unitary head, and that the President's power is checked through democratic and political accountability. Id. Individual executive officials may “still wield significant authority, but that authority remains subject to the ongoing supervision and control of the elected President.” Id.

43

Id. at 2208–09 (plurality opinion); id. at 2224 (Kagan, J., concurring in the judgment with respect to severability and dissenting in part).