ArtII.S2.C2.3.4.6 Inferior Officers

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.

In the case of inferior officers, Congress may limit and restrict the power of removal as it deems best for the public interest,1 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., 2 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? 3 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. 4

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, 5 or one appointed with the consent of the Senate. 6 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. 7 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. 8 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.

Footnotes

  1.  Jump to essay-1United 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).
  2.  Jump to essay-2561 U.S. ___, No. 08-861, slip op. (2010).
  3.  Jump to essay-3The 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.
  4.  Jump to essay-4561 U.S. ___, No. 08-861, slip op. at 14-15 (2010).
  5.  Jump to essay-5Parsons v. United States, 167 U.S. 324 (1897).
  6.  Jump to essay-6Shurtleff v. United States, 189 U.S. 311 (1903).
  7.  Jump to essay-7Blake 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).
  8.  Jump to essay-8Morgan v. TVA, 28 F. Supp. 732 (E.D. Tenn. 1939), aff’d, 115 F.2d 990 (6th Cir. 1940), cert. denied, 312 U.S. 701 (1941).