Help us improve in just 2 minutes—share your thoughts in our reader survey.
Appointment and removal power (administrative state)
| Five Pillars of the Administrative State |
|---|
|
| Executive control |
|
•Court cases |
| More pillars |
| •Agency control • Executive control •Legislative control • Public control |
| Click here for more coverage of the administrative state on Ballotpedia.
|
| Click here to access Ballotpedia's administrative state legislation tracker. |
Appointment and removal power, in the context of administrative law, refers to the authority of an executive to appoint and remove officials in the various branches vested in its authority to do so.
In the context of the federal government, the Appointments Clause of the United States Constitution vests the president with the authority to appoint officers of the United States "by and with the Advice and Consent of the Senate," including federal judges, ambassadors, and Cabinet-level department heads. Congress may authorize the president, the courts, or the heads of departments to appoint inferior officers, including federal attorneys, chaplains, and federal election supervisors, among other positions.
The acts establishing independent federal agencies allow the president to remove commissioners or agency heads for cause. Most acts define three types of cause: inefficiency, neglect of duty, and malfeasance in office. Statute and the U.S. Supreme Court have not clearly defined these terms.
Appointment and removal power in the federal government
Appointments Clause
Article II, Section 2, Clause 2 of the United States Constitution, known as the Appointments Clause, establishes federal appointment authority as follows:
|
Appointment power
Officers of the United States
The Appointments Clause provides the president with the authority to appoint officers of the United States, subject to confirmation by the U.S. Senate. These positions include ambassadors, heads of Cabinet-level departments, and federal judges.[3][4]
Inferior officers
- See also: Lucia v. SEC
Congress itself does not exercise appointment authority. However, the Appointments Clause calls for Congress to vest the authority to appoint inferior officers in the president, the courts, or heads of departments. [3]
The U.S. Supreme Court distinguished between officers of the United States and inferior officers in the 1988 case Morrison v. Olson—clarifying that only Cabinet-level department heads, ambassadors, and federal judges qualify as officers. All other officers, such as federal attorneys, district court clerks, chaplains, and federal election supervisors, qualify as inferior officers. In the 2018 case Lucia v. SEC, the court also ruled that the administrative law judges of the Securities and Exchange Commission are inferior officers and must be appointed by agency heads rather than hired as agency employees.[4]
Removal power
The U.S. Constitution does not explicitly address how federal appointees can be removed from office. However, the U.S. Supreme Court has clarified the president’s removal authority through several key cases:[4][5]
- Myers v. United States (1926): The Court ruled that the president can remove executive officials without needing approval from Congress, unless a law says otherwise.[6]
- Humphrey's Executor v. United States (1935): The Court said Congress can limit the president’s power to fire leaders of independent agencies by requiring a specific reason, like neglect of duty or misconduct.[7]
- Wiener v. United States (1958): The Court confirmed that officials at some independent agencies can only be removed for cause, even if the law doesn’t say so directly.
- Bowsher v. Synar (1986): The Court ruled that Congress cannot remove executive officials, reinforcing that only the executive branch has that power.[1]
- Morrison v. Olson (1988): The Court upheld a law protecting an independent counsel from being fired without cause, saying it didn’t block the president’s core powers.
- Free Enterprise Fund v. Public Company Accounting Oversight Board (2010): The Court struck down rules that made it too hard for the president to remove agency officials, saying the rules gave too much independence.
- Seila Law v. Consumer Financial Protection Bureau (2020): The Court found it unconstitutional to give a single agency head too much job protection. But it said multimember agencies like the Federal Reserve System could still have for-cause protections.
- Collins v. Yellen (2021): The Court ruled that limits on firing the head of the Federal Housing Finance Agency were unconstitutional, but actions taken by the agency were still valid.
See also
External links
Footnotes
- ↑ 1.0 1.1 Justia, "The Removal Power," accessed October 4, 2018
- ↑ Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
- ↑ 3.0 3.1 Encyclopedia of the American Constitution, "Appointing and Removal Power, Presidential," accessed October 4, 2018
- ↑ 4.0 4.1 4.2 Law Shelf, "Presidential powers," accessed October 4, 2018
- ↑ Case Briefs, "Executive Powers: Appointment, Removal, And Pardon," accessed October 4, 2018
- ↑ JUSTIA, "Myers v. United States, 272 U.S. 52 (1926)," accessed June 22, 2018
- ↑ FindLaw, HUMPHREY'S EX'R v. UNITED STATES, accessed November 27, 2017
