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 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. 1 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, 2 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 Act 3 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,
neglect of duty, or
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. 4
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. 5 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. 6 This reconciliation of Myers and Humphrey's Executor was made clear and express in Morrison v. Olson. 7
That case sustained the independent counsel statute. 8 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-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. 9
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. 10
As a result of these cases, the long-running controversy with respect to the legitimacy of the independent agencies appears to have been settled, 11 although it appears likely that the controversies with respect to congressional-presidential assertions of power in executive agency matters are only beginning.