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Executive appointment and removal power: a timeline
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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. At the federal level, the U.S. Constitution, Congress, and the U.S. Supreme Court have placed limits on the president's power to staff his administration and to fire agency leaders.
The appointments clause in Article II of U.S. Constitution gives the president the power to nominate officers of the United States. That part of the Constitution also empowers the U.S. Senate to block appointments if senators do not consent to the president's nominee. Congress also has the constitutional authority to put the president, courts, or department heads in charge of appointing inferior officers. After the U.S. Supreme Court decided Humphrey's Executor v. United States (1935), Congress limited the president's ability to fire the heads of independent federal agencies.
Timeline
The following timeline identifies a selection of key events and court cases that have shaped the appointment and removal power.
- 1787: The U.S. Constitution vests the executive power in the president
- Article II, section 1 of the United States Constitution vests the executive power of the United States in a president. The next section provides that the president has the power to nominate and, with U.S. Senate consent appoint, ambassadors, public ministers, consuls, U.S. Supreme Court justices, and other officers of the United States.
- 1789: Congress debates and then gives exclusive removal power to the president
- Law professor Aziz Huq described the Decision of 1789 in the following way: “The first Congress gave a threshold answer to the removal power question when it created departments of war, foreign affairs, and treasury. Federal legislators, including former Philadelphia Convention delegates, divided volubly on the question whether removal had a constitutional dimension. The Senate split contentiously down the middle on the appropriate removal rule for the secretaries of war and foreign affairs, leaving Vice President John Adams to cast tiebreaking votes. Congress settled on textual formulae that omitted specific mention of the removal rule for war and foreign affairs department heads.”[1]
- 1816: Congress protects some directors of the Second Bank of the United States from presidential removal
- With a law passed on April 10, 1816, Congress created the Second Bank of the U.S. and insulated all but five of the 25 directors of the bank from presidential removal.[1]
- 1833: Tensions between Congress and Andrew Jackson over Treasury secretary removal
- After President Andrew Jackson removed Treasury secretaries for refusing to withdraw funds from the Bank of the United States he also refused to give the Senate a document related to his veto of the act to recharter the Bank. In 1834, the Senate voted to censure Jackson.[2]
- 1867: Tenure of Office Act gives U.S. Senate role in all removal decisions
- On March 2, 1867, Congress passed the Tenure of Office Act of 1867, which required presidents to get Senate consent to remove any civil officers.[3] The law was repealed in 1887 and ruled unconstitutional by the U.S. Supreme Court in the 1926 ‘’Myers’’ decision.[3]
- 1868: House of Representatives impeaches Andrew Johnson
- Andrew Johnson fired Edwin M. Stanton, an appointee of Abraham Lincoln’s serving as secretary of war, and replaced him with Lorenzo Thomas in early 1868.[4] Many of the articles of impeachment that followed cited Johnson’s violation of the Tenure of Office Act of 1867.[4]
- 1885: Tensions between Grover Cleveland and the Senate over the removal power
- President Grover Cleveland replaced a Republican district attorney in Alabama with a Democrat. [5] Republicans in the Senate requested documents related to the removal of the district attorney and the Cleveland administration did not comply.[5] In response to Cleveland’s claim for an exclusive right to remove officers without Senate consent they delayed Supreme Court appointments in response. The disagreement led to the repeal of the Tenure of Office Act on March 3, 1887.[5]
- 1903: U.S. Supreme Court allows presidential removal in spite of statutory limits
- In Shurtleff v. United States, the U.S. Supreme Court held that an 1890 statute authorizing the president to remove general appraisers for "inefficiency, neglect of duty, or malfeasance in office" did not prohibit removal for other reasons.[6]
- 1913: First presidential for-cause removal
- President William Howard Taft dismissed Thaddeus Sharretts and Roy Chamberlain, members of the Board of General Appraisers, in the first presidential for-cause removal.[7]
- 1916: Future Chief Justice Taft writes about the status of the removal power
- President Taft wrote in a 1916 law review article, “Whether the President has the absolute power of removal without the consent of the Senate in respect to all offices, the tenure of which is not affected by the Constitution, is not definitely settled.”[8]
- 1920: Woodrow Wilson vetoes attempt to give Congress removal power
- President Woodrow Wilson vetoed a budget and accounting bill that would have allowed Congress to remove some officers using a concurrent resolution. Those resolutions do not require the president’s signature to go into effect. Wilson argued that Congress had no constitutional authority to limit the appointment and removal powers of the president.[9]
- 1926: U.S. Supreme Court holds requiring Senate approval to remove postmasters unconstitutional
- In Myers v. United States, the U.S. Supreme Court held that restrictions on presidential removal power requiring Senate consent to remove postmasters were unconstitutional. Chief Justice William Howard Taft concluded that the power to remove appointed officials rests solely with the president.[10]
- 1935: U.S. Supreme Court allows Congress to restrict presidential removal powers
- In Humphrey's Executor v. United States, the U.S. Supreme Court defined independent regulatory officers’ duties as quasi-legislative and quasi-judicial and allowed Congress to restrict the president’s removal power over them.[11]
- 1958: U.S. Supreme Court rules presidents do not have the power to remove members of independent agencies without cause
- In Wiener v. United States, the U.S. Supreme Court limited presidential removal power even though the statute was silent on the question and only specified term lengths for War Claims commissioners.[12]
- 1976: U.S. Supreme Court rules that Congress may not appoint officers of the United States
- In Buckley v. Valeo, the U.S. Supreme Court held that Congress does not have the constitutional power to appoint members to the Federal Election Commission. The court ruled that the president must appoint administrative officials who are officers of the United States.[13]
- 1986: U.S. Supreme Court holds congressional removal power over executive officers unconstitutional
- In Bowsher v. Synar, the U.S. Supreme Court ruled that part of the Balanced Budget and Emergency Deficit Control Act of 1985 violated the separation of powers. It held that the provision creating a congressional removal power over the comptroller general was unconstitutional.[14]
- 1988: U.S. Supreme Court upholds independent prosecutor statute
- In Morrison v. Olson, the U.S. Supreme Court held that a law protecting the independent prosecutor from removal by the president except for good cause was constitutional.[15]
- 2010: U.S. Supreme Court holds two layers of removal protection unconstitutional
- In Free Enterprise Fund v. Public Company Accounting Oversight Board, the U.S. Supreme Court held ruled that two layers of removal restrictions were unconstitutional because they limit the president’s exercise of the executive power and his control of executive officers too much.[16]
- 2011: Brett Kavanaugh argues for overturning Humphrey’s Executor
- In the case In re Aiken County, then-judge Brett Kavanaugh wrote in a concurring opinion that Humphrey’s Executor should be overruled.[17]
- 2018: U.S. Supreme Court rules administrative law judges of the Securities and Exchange Commission are subject to Appointments Clause
- The court ruled in Lucia v. SEC that the administrative law judges of the Securities and Exchange Commission are inferior officers subject to the Appointments Clause. While the opinion was silent on the application of the ruling to other ALJs in the executive branch, SCOTUSblog contributor Ronald Mann observed that "it would not be at all surprising if Lucia ended up invalidating all of the existing systems for appointments of ALJs."[18]
- 2020: U.S. Supreme Court finds structure of Consumer Financial Protection Bureau to be unconstitutional
- The court ruled in Seila Law v. Consumer Financial Protection Bureau that the structure of the Consumer Financial Protection Bureau (CFPB), an independent agency that exercised executive powers and had a director protected from at-will termination by the president, was unconstitutional. The majority held that restrictions on the president's ability to remove such agency leaders violated separation of powers principles by limiting presidential control of executive power. The decision only affected part of the agency's structure without eliminating the agency altogether by striking down the Dodd-Frank Act, the 2010 law that created the agency.[19]
See also
- Search Google News for this topic
- Appointment and removal power (administrative state)
- Ballotpedia's administrative state coverage
Footnotes
- ↑ 1.0 1.1 Stanford Law Review, “Removal as a Political Question,” 2013
- ↑ National Constitution Center, “Andrew Jackson, presidential censure and the Constitution,” March 28, 2019
- ↑ 3.0 3.1 Encyclopedia Britannica, “Tenure of Office Act,” accessed August 20, 2019
- ↑ 4.0 4.1 U.S. Senate, “The Impeachment of Andrew Johnson (1868) President of the United States,” accessed August 21, 2019
- ↑ 5.0 5.1 5.2 The New York Times, “Our Royal Rulers (By Divine Right) In Secret Session,” accessed August 21, 2019
- ↑ JUSTIA, “Shurtleff v. United States, 189 U.S. 311 (1903),” accessed August 21, 2019
- ↑ University of Richmond Law Review, “Taft, Frankfurter, and the First Presidential For-Cause Removal,” 2018
- ↑ Yale Law Journal, “Boundaries between the Executive, the Legislative and the Judicial Branches of the Government,” 1916
- ↑ James Goold Cutler Lecture, “The Appointing and Removal Powers of the President Under the Constitution of the United States,” 1931
- ↑ JUSTIA, “Myers v. United States, 272 U.S. 52 (1926),” accessed August 21, 2019
- ↑ JUSTIA, “Humphrey's Executor v. United States, 295 U.S. 602 (1935),” accessed August 21, 2019
- ↑ JUSTIA, “Wiener v. United States, 357 U.S. 349 (1958),” accessed August 21, 2019
- ↑ JUSTIA, “Buckley v. Valeo, 424 U.S. 1 (1976),” accessed August 21, 2019
- ↑ JUSTIA, "Bowsher v. Synar, 478 U.S. 714 (1986),” accessed August 21, 2019
- ↑ JUSTIA, “Morrison v. Olson, 487 U.S. 654 (1988),” accessed August 21, 2019
- ↑ JUSTIA, “Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U.S. 477 (2010),” accessed August 21, 2019
- ↑ Court Listener, “In Re Aiken County, 645 F.3d 428 (D.C. Cir. 2011),” accessed August 21, 2019
- ↑ SCOTUSblog, "Opinion analysis: Justices invalidate civil-service appointments of administrative law judges," June 21, 2018
- ↑ U.S. Supreme Court, "Seila Law LLC v. Consumer Financial Protection Bureau," June 29, 2020
