🦢Constitutional Law I Unit 12 – Appointments & Removal: Executive Power

Key Constitutional Provisions

• Article II, Section 2, Clause 2 (Appointments Clause) grants the President the power to appoint officers of the United States with the advice and consent of the Senate
• The Appointments Clause distinguishes between principal officers, who must be appointed by the President and confirmed by the Senate, and inferior officers, whose appointment Congress may vest solely in the President, courts, or heads of departments
• Article II, Section 4 provides for the removal of civil officers through impeachment for "Treason, Bribery, or other high Crimes and Misdemeanors"
• The Constitution does not explicitly address the President's power to remove executive branch officials without congressional involvement
• The Necessary and Proper Clause (Article I, Section 8, Clause 18) has been interpreted to grant Congress the authority to create and structure executive branch offices and agencies

Historical Context

• The Framers of the Constitution sought to balance the need for an energetic executive with checks and balances to prevent abuse of power
• Alexander Hamilton, in Federalist No. 76, argued that the Senate's role in appointments would provide stability and accountability while still allowing the President sufficient discretion
• Early debates arose over the extent of the President's removal power, particularly during the First Congress in 1789
• The Decision of 1789 in the House of Representatives affirmed the President's authority to remove executive officers without Senate approval, but the debate continued
• Throughout the 19th and early 20th centuries, Congress occasionally asserted its authority to limit the President's removal power through tenure-of-office acts and other legislation

Presidential Appointment Power

• The President has broad discretion in nominating individuals to serve as principal officers (Cabinet secretaries, ambassadors, federal judges)
• The President may also appoint inferior officers, such as lower-level executive branch officials, if Congress has vested that authority in the President alone
• Recess appointments allow the President to temporarily fill vacancies that occur while the Senate is in recess, but such appointments expire at the end of the next Senate session
• The President's appointment power is an important tool for shaping the executive branch and advancing policy priorities
• Controversies have arisen over the use of "acting" appointments to circumvent Senate confirmation and the limits of recess appointment authority

Senate's Role in Appointments

• The Senate provides "advice and consent" on presidential nominations through confirmation hearings and votes
• A simple majority vote is required to confirm a nominee, although the filibuster has been used to block or delay some nominations
• The Senate may reject a nominee outright or simply fail to act on a nomination, leaving the position vacant
• Senators often scrutinize nominees' qualifications, experience, and policy views during the confirmation process
• The Senate's role serves as a check on the President's appointment power and allows for public vetting of nominees

Removal Power Controversies

• Debates have persisted over the extent of the President's authority to remove executive branch officials without congressional involvement
• The Supreme Court has generally upheld the President's removal power as an essential aspect of executive authority, with some exceptions
• Congress has occasionally sought to limit the removal power through statutory restrictions or by creating independent agencies with officials removable only for cause
• Controversies have arisen over the removal of officials involved in investigations of the President or high-level executive branch misconduct (Watergate, Iran-Contra)
• The balance between presidential control and independence of certain offices (special prosecutors, inspectors general) remains a point of contention

Landmark Supreme Court Cases

• Myers v. United States (1926): The Court upheld the President's authority to remove a postmaster without Senate consent, affirming a broad view of the removal power
• Humphrey's Executor v. United States (1935): The Court limited the Myers ruling, holding that Congress could create independent agencies with officials removable only for cause
• Morrison v. Olson (1988): The Court upheld the constitutionality of the independent counsel statute, allowing for the appointment and removal of special prosecutors by a three-judge panel
• Free Enterprise Fund v. Public Company Accounting Oversight Board (2010): The Court struck down a double layer of for-cause removal protection for PCAOB members, emphasizing the importance of presidential control over the executive branch

Modern Interpretations and Debates

• Unitary Executive Theory argues for broad presidential control over the executive branch, including the power to remove officials at will
• Critics of the unitary executive view contend that Congress has the authority to limit the removal power and create independent agencies insulated from political influence
• Debates continue over the constitutionality and desirability of independent agencies, such as the Federal Reserve and the Consumer Financial Protection Bureau
• The use of "acting" appointments and the limits of recess appointment power remain areas of controversy and legal uncertainty
• The proper balance between executive power and accountability to Congress and the public is an ongoing point of contention in modern governance

Practical Implications for Governance

• The appointment and removal powers shape the composition and direction of the executive branch, affecting policy implementation and enforcement
• Delays in the confirmation process can lead to vacancies and hinder the functioning of key government offices and agencies
• The use of recess appointments and acting officials can create uncertainty and undermine the Senate's role in providing advice and consent
• Conflicts between the President and Congress over appointments and removals can lead to political standoffs and constitutional crises (Watergate, impeachment proceedings)
• The balance between presidential control and independence of certain offices has implications for the rule of law, separation of powers, and public trust in government institutions