Chapter 2
Presidential Control
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Learning Objectives
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The president controls agencies through
appointing and removing firing agency heads.
The President must appoint and the Senate must
confirm officers of the US.
There are separate standards for inferior officers.
Terms of office create independent agencies.
The person who appoints may also remove
officers, except Article III judges.
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Executive Power
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Vesting and Take Care Clauses
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“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
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The Unitary Executive
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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 tell the AG's how to rule?
 Can he only fire the AG?
Why does it matter whether the president has the power or
the secretary has the power?
 How does the Appointments Clause fit into this analysis?
 If it is the president's power, why should the Senate care
who he appoints?
 What if the Senate will not confirm a secretary?
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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."
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Recess Appointments
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Article 2, Section 2:
 The President shall have Power to fill up all Vacancies
that may happen during the Recess of the Senate, by
granting Commissions which shall expire at the End of
their next Session.
 Why was this included?
The legal questions in the recent case
 Can the Senate stay in session while the members are at
home?
 Does the vacancy have to occur during the recess?
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Who is a Principle Officer?
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It is usually clear who is a principle officer, subject to
confirmation by the Senate, in existing agencies.
 Or if Congress, by law, designates an office as a
principle officer.
Controversies arise with new agencies, such as the
independent counsel in the Morrison v. Olson case.
Inferior officers are hard to tell from ordinary
employees and there are a lot more of them, so there
is more occasion for challenges.
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Free Enterprise Fund v. PCAOB, 130 S.Ct.
3138 (2010)
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Government agency that regulates accounting firms.
 Members appointed by the SEC commissioners,
not the President
The Court quoted a prior opinion in which it had said
that ‘‘whether one is an ‘inferior’ officer depends on
whether he has a superior,’’ and that ‘‘ ‘inferior
officers’ are officers whose work is directed and
supervised at some level by other officers appointed
by the President with the Senate’s consent.’
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Who Controls their Work?
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The Board’s rules and its imposition of sanctions
on accounting firms are subject to approval and
alteration by the SEC.
Members of the Board are removable ‘‘at will’’ by
the SEC Commissioners.
Is this sufficient control to establish they the
members on inferior officers, thus appointable by
the SEC rather than the president?
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President Nixon and the Independent
Counsel
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Great crisis in presidential control.
The Saturday night massacre
 Nixon orders the AG to fire the independent counsel
who was investigating Watergate
 Two people later, he orders AAG Bork to fire him,
probably in a deal already set up by the AG.
 Nixon's indirect firing of the independent prosecutor
was the background for this law
What was Clinton's biggest political mistake?
 Not vetoing the renewal of the Independent counsel law.
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Morrison v. Olson, 487 US 654 (1988)
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What did Olson hope to do with his suit?
What triggers the appointment of an independent
counsel?
Who appoints the independent counsel?
 Why class of officer must this then be?
 Who can remove an independent counsel for
cause?
Who can remove that person, i.e., what is the chain of
presidential control?
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The Core Function Standard for Inferior
Officers
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Is the independent counsel an "inferior" official?
 Does the independent counsel have a policy
making role?
Is this a critical area for the president to control
the exercise of discretion?
How does the president retain control?
 Why will the independent counsel process
always be political?
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What was the key issue in Olson?
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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, focusing on the preservation
of separation of powers
 Scalia saw this as a stark limitation on the
president's power to exclusively control the
executive branch.
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Was Scalia Right?
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What was he worried about as regards the power
of the office?
 He stresses the broad powers of the IC
 How did this play out in Whitewater, the
Clinton investigation?
What would it cost you to be investigated if you
were a junior White House counsel?
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Congressional Determinations
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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.
The real problem is that the court will also not second guess
Congress determining that an officer must be confirmed by
the Senate.
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Example: General Counsel to a Cabinet
Agency
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What is the classification of the Secretary of Veterans
Affairs?
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?
 Much more authority than just an employee
 Does the general counsel make decisions that affect
agency policy or enforcement?
 What is the level and right of supervision by the
Secretary?
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Tenure of Office Act – 1867
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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
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Myers v. US, 272 US 52 (1926)
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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
 Why all this concern about a postmaster?
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.
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Humphrey’s Executor v. US, 295 US 602
(1935)
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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
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Myers Redux
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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 is in
office long enough to appoint all the members?
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Typical Characteristics of an Independent
Agency
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(1) they are headed by multi-member groups,
rather than a single agency head;
(2) no more than a simple majority of these
members may come from one political party;
(3) the members of the group have fixed,
staggered terms, so that their terms do not expire
at the same time; and
(4) they can only be removed from their positions
for ‘‘cause”
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Stopped here
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How Independent are Independent
Agencies?
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The President usually gets to pick the chair from
among the existing commissioners.
 Does not control policy, but can influence what
issues are addressed
Not subject to OIRA (covered later)
Can be subjected to other executive controls as
determined by Congress.
Presidential influence increases the longer a party
holds the presidency.
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How could the president fire an FTC
commissioner?
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In theory the president could state a cause and
fire a commissioner, but it has not happened
 It has not been an issue because they get
hounded out of office if there is cause
Does this mean that they always stay when the
president in unhappy with them?
 This is an area where the presidents have not
challenged the court
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Free Enterprise Fund v. Public Company
Accounting Oversight Board, 130 S.Ct. 3138
(2010)
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PCAO Board members are inferior officers
appointed by the SEC Commissioners.
SEC commissioners have terms of office and can
only be removed for good cause.
Is there a problem with the PCAO Board members
being only removed cause?
 What is the presidential chain of control?
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The Politics of the Sentencing
Commission
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Started out as a way to moderate unreasonable
sentences
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
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Mistretta v. United States, 488 U.S. 361
(1989)
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The US Sentencing Commission is an
independent commission in the Judicial Branch
 The members are Article III judges appointed by
the President
 There are no terms of office
The Court upheld the law allowing the president to
remove them, even though this is not an executive
branch agency
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Removal Wrap Up
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What if the statute says an officer serves until removed
for good cause, but does not specify a term of office?
 Think about what would happen if they could not be
removed except for cause.
 Remember civil service
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
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