Chapter 2
Part II
Starting at III. Different Branches Roles
Review of the Appointments Process

The ultimate control over an agency is through
hiring and firing agency personnel, or at least
through having that option available
2
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.“ 3
Congressional Limitations on
Appointments


Under the Appointments Clause, Congress cannot
make appointments to executive branch agencies
Congress can impose requirements on
appointments
 Limitations on who can be appointed, such as
requiring political balance on the FEC
 Limitations on removal, as in independent
agencies
4
Buckley v. Valeo


Original process for selecting members of the
Federal Election Commission (FEC)
 Two members appointed by the President pro
tempore of the Senate,
 two by the Speaker of the House, and
 two by the President (all subject to
confirmation by both Houses of Congress), and
 the Secretary of the Senate and the Clerk of the
House as ex officio nonvoting members
Challenged as an Appointments Clause violation
5
The Role of the FEC



What does FEC do that is forbidden to Congress?
How does allowing congress to appoint
commission members undermine separation of
powers?
Was the selection process for the FEC
commissioners constitutional?
6
Civil Service


Congress developed the Civil Service to protect
workers from losing their jobs every time the
administration changed
Most personnel are civil service and can only be
fired for cause with due process
 Limited due process for security agencies
 This was carried over and broadened in the
Homeland Security Agency
7
Pros and Cons of the Civil Service


Why is important to you if you want to be a
government lawyer?
 What are the problems with the system?
 How high should it go?
Career track problem for senior people without
lucrative outside jobs
 Health Directors
 Lawyers in specialized areas without private
practice
8
The Congressional Budget Office (CBO)



The “primary function” of the CBO is to give the House
and Senate Committees on the Budget information that
“will assist such committees in the discharge of all
matters within their jurisdiction.” The CBO also has
additional duties, all of which relate to giving Congress
information on budget matters.
The Director is appointed for a four-year term by the
Speaker of the House of Representatives and the
President pro tempore of the Senate.
Does this appointment scheme violate the Appointments
Clause?
9
Washington Airports Authority v. Citizens
for the Abatement of Aircraft Noise, Inc.
(“MWAA”)


The federal statute authorized the airports to be
run by an Airport Authority
 Major decisions of the Airport Authority were
subject to the veto of a “Board of Review.”
 The federal statute dictated that the Board be
composed exclusively of Members of
Congress.
Putting aside the Appointments Clause issue, how
does this violate Bicameralism and Presentment?
10
The Library of Congress



The Librarian is appointed by the President.
Its operation is overseen, however, by the Joint
Committee of Congress on the Library.
 The Joint Committee consists of the chairman and
four members of the Committee on Rules and
Administration of the Senate and the chairman and
four members of the Committee on House Oversight of
the House of Representatives.
Does the congressional composition of the Joint
Committee violate the Appointments Clause? MWAA?
11
Congressional Removal of Executive
Branch Officers



Impeachment
 Brought by the house
 Senate as jury
 Only for “Treason, Bribery, or other high Crimes
and Misdemeanors.”
Why is this of limited effectiveness for agency
oversight?
Could Congress remove the head of the CBO?
12
Legislative Veto - See Chapter 2, Part
I/Chadha
Formal Legislative Review and Oversight
of Executive Branch Agencies





(1) an appropriations committee, which oversees how the
agency spends its budget;
(2) a “substantive” committee, which oversees the
substance of the agency’s work; and
(3) “government operations” committee, which is
concerned with the agency’s efficiency and its
coordination with other parts of the government.
One of each of these three types of committees will exist
in both the Senate and the House.
What agency is getting hostile "oversight" right now?
14
Informal Legislative Review and Oversight




Members of Congress ask agencies about some
grievance of their own or their constituents.
 all types of contacts (telephone calls, e-mails, and so
on) between individual Members of Congress, or the
Member’s staffs, or a committee’s staff, and agency
officials.
 Many of these informal contacts relate to discrete
agency actions affecting specific constituents.
Do you think Congressmen get better service?
Where does lobbying come in?
Charlie Wilson's War?
15
What is an Earmark?



Congress enacts a statute that appropriates a
lump sum of $10 million for the Indian Health
Service (“IHS”)
The appropriations statute is accompanied by a
report from the appropriations committee saying
that IHS should use part of the $10 million to
continue operating an existing medical clinic.
The appropriations statute itself, however, does
not refer to the clinic. Nor does IHS’s organic
statute.
16
Enforcing Earmarks
The organic statute broadly authorizes
IHS to spend its appropriation “for the
benefit, care, and assistance of the
Indians.”
 What if the agency ignores the report
and closes the health center?
 Can this be challenged in court?

17
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
18
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 override the AG's decision?
Why does it matter whether the president has the
power or the AG has the power?
How does the Appointments Clause fit into this
analysis?
19
President Nixon and the Independent
Counsel



What was the Saturday night massacre?
Why do the liberals really hate Bork?
 He carried out Nixon's order to fire Cox
Nixon's firing of the independent prosecutor was
the background for this law
20
What was Clinton's biggest political
mistake?


Not vetoing the renewal of the Independent
counsel law
Hubris - it had been attacking Republicans and he
was going to have the most ethical administration
21
Morrison v. Olson, 487 US 654 (1988)




Why was Olson suing and what did he want?
What triggers the appointment of an independent
counsel?
Who appoints the independent counsel?
Why will this always be political?
 Reno and Gore
 Ashcroft and Halliburton
22
The Core Function Standard for Inferior
Officers



Is it an "inferior" official?
 yes, because of the limited mandate - no policy making
Is this a critical area for the president to control the
exercise of discretion?
 no, that is why it is independent
Does the president retain enough control?
 yes, good cause firing is enough, and this is exercised
through someone (AG) the president controls
23
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, rejects the use of "quasilegislative/quasi-judicial" labels and focuses on
separation of powers
24
Intimidation by the IC


Scalia saw this as a stark limitation on the
president's power to exclusively control the
executive branch
He pointed out that while the IC may not intimidate
the president, it will affect executive branch
officers who are subject to what seems political
prosecution
25
Was Scalia Right?



What was he worried about as regards the power
of the office?
 He stresses the broad powers of the IC
What would it cost you to be investigated?
Was Scalia right about the impact of the IC?
26
Edmond v. United States, 520 U.S. 651
(1997)



Coast Guard criminal appeals judges are subject to
administrative supervision by the Judge Advocate
General, who also has the power to remove them without
cause.
The judges’ decisions are subject to review by the Court
of Appeals for the Armed Forces.
In Edmond, the Court held that judges of the Coast Guard
Court of Criminal Appeals are “inferior” officers.
 The Edmond Court based that holding exclusively on
the fact these judges’ work is directed and supervised
by principal officers.
27
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
28
Example: General Counsel to a Cabinet
Agency



What is the classification of the Secretary of HHS?
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?
 Does the general counsel make decisions that
affect agency policy or enforcement?
 What is the level and right of supervision by the
Secretary?
29
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
30
Myers v. US, 272 US 52 (1926)


Why all this concern about postmasters?
 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
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.
31
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
32
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
long enough to appoint all the members?
33
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
Does this mean that they always stay when the
president in unhappy with them?
It has not been an issue because they get
hounded out of office if there is cause
This is an area where the presidents have not
challenged the court
34
How did the Sentencing Commission
Affect Sentencing?


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
35
Mistretta v. US – 1989


This case attacked the US Sentencing
Commission as an impermissible limitation on the
Judicial Branch
 The Commission is an independent
commission in the Judicial Branch
 The members are appointed by the President
 There are no terms of office
The Court found that the president could remove
them, even though this is not an executive branch
agency
36
The Mistretta Ruling



Read to as holding that the president can remove anyone
he appoints, as long as there are no terms of office
The Court upheld this commission because of it peculiar
nature, finding that it did not unduly affect the judicial
branch
 Is there any right to judicial discretion?
 Probably limited by the power of congress to set
sentences - nothing says judges are allowed
sentencing discretion
The powers of the sentencing commission have now been
limited on due process grounds
37
Removal Wrap Up




What if the statute says an officer serves until removed
for good cause, but does not specify a term of office?
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
38