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List of legislation relevant to executive appointment and removal power
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The appointment and removal power refers to the authority of an executive to appoint and remove subordinate officials in government agencies. In the context of the federal government, the powers refer to the authority U.S. presidents have to control the officers who oversee administrative agencies. 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.
This page displays three tables. The first table contains a selection of laws and proposed legislation related to both the hiring and firing of agency leaders by executives. Some of the listed laws do not mention appointment and removal but have been the subject of related court cases. The second table lists laws related to the appointment power and the final table displays laws related to the removal power.
For a more comprehensive analysis of appointment and removal statutes, see this 2013 law review article by attorney Kirti Datla and professor Richard Revesz.
The laws listed in this table relate to the control executives have over both the appointment and the removal of agency officials.
| Laws relevant to executive appointment and removal power | |||
|---|---|---|---|
| Law | Year | State or Federal | Impact |
| Act of Sept. 24, 1789, ch. 20, § 35, 1 Stat. 73 | 1789 | Federal | Required the U.S. attorney general and district attorneys to be “learned in the law” |
| Act of May 3, 1802, ch. 53, § 5, 2 Stat. 195 | 1802 | Federal | Required mayors of Washington, D.C., to be citizens and residents of the city |
| 1802 Repeal of the Judiciary Act of 1801 | 1802 | Federal | Removed judges established by the 1801 law when the repeal terminated their underlying offices |
| Act of Mar. 26, 1804, ch. 38, § 4, 2 Stat. 283 | 1804 | Federal | Required presidential appointments to the legislative council of Louisiana to be land-holding residents of Louisiana |
| Tenure of Office Act, ch. 154, 14 Stat. 430 | 1867 | Federal | Changed the historical practice of presidential removal power to give Congress more control; repealed in 1887 |
| Act of July 12, 1876, 19 Stat. 76 (An act relating to postmasters of the first, second and third classes) | 1876 | Federal | Restricted removal power of the president over postmasters; ruled unconstitutional by Myers (1926) |
| Act of Mar. 22, 1882, ch. 47, 22 Stat. 30 (Board of Elections in Utah Territory) | 1882 | Federal | Restricted nomination power over the Board of Elections in the Territory of Utah by limiting the number of board members who could be from one political party |
| Act of Jan. 16, 1883, ch. 27, 22 Stat. 403 (Civil Service Commission) | 1883 | Federal | Restricted nomination power over the Civil Service Commission by requiring that no more than two members be from the same party |
| Act of Feb. 4, 1887, ch. 104, 24 Stat. 379 (Interstate Commerce Commission) | 1887 | Federal | Restricted nomination and removal powers; said that members of the Interstate Commerce Commission may be removed by the president for "inefficiency, neglect of duty, or malfeasance in office" and that no more than three commissioners could be from the same party |
| Customs Administrative Act | 1908 | Federal | Amendments to the structure of the Board of General Appraisers in 1908 restricted presidential removal power over board members in response to Shurtleff v. United States (1903) by limiting the causes that could justify removal. |
| Act of Sept. 26, 1914, ch. 311, 38 Stat. 717 (Federal Trade Commission) | 1914 | Federal | Restricted nomination and removal powers by allowing no more than three members of the Federal Trade Commission to be from the same party and by saying members could be removed by the president for "inefficiency, neglect of duty, or malfeasance in office;" at issue in Humphrey's Executor (1935) |
| 28 U.S.C. § 541 (c) | 1958* | Federal | Set U.S. attorney tenure limits |
| Home Rule Act, Pub. L. No. 93-198, 87 Stat. 774 | 1973 | Federal | Allowed D.C. to have elections and set appointment and removal procedures for its judges |
| Federal Election Campaign Act Amendments of 1974, Pub. L. No. 93-443, 88 Stat. 1263 | 1974 | Federal | Allowed Congress to appoint members of the Federal Election Commission. At issue in Buckley v. Valeo |
| Ethics in Government Act of 1978, Pub. L. No. 95-521, 92 Stat. 1824 | 1978 | Federal | Created an Office of Government Ethics and a special prosecutor and limited presidential removal power |
| Balanced Budget and Emergency Deficit Control Act of 1985, Pub. L. No. 99-177, 99 Stat. 1038 | 1985 | Federal | Vested executive powers in an officer removable by Congress; ruled unconstitutional in Bowsher (1986) |
| 29 U.S.C. § 661(b) | 1988* | Federal | Set qualifications for appointees to the Occupational Safety and Health Review Commission (OSHRC) |
| 26 U.S.C. § 7443(f) | 1988* | Federal | Said Tax Court judges may be removed by the president, "after notice and opportunity for public hearing, for inefficiency, neglect of duty, or malfeasance in office, but for no other reason" |
| 44 U.S.C.A. § 3502(10) | 1991* | Federal | Listed independent regulatory agencies |
| 31 U.S.C. § 703(a) | 2000* | Federal | Indicated that the comptroller general and deputy comptroller general shall be appointed by the president from a list of as few as three persons recommended by a commission of various members of Congress, though the president may ask the commission to recommend additional candidates |
| 12 U.S.C. § 1422(b)(2)(A) (2000) (Federal Housing Finance Board) | 2000* | Federal | Set political affiliation restrictions for board members** |
| 15 U.S.C. § 2053(c) (2000) (Consumer Product Safety Commission) | 2000* | Federal | Set political affiliation restrictions for commission members** |
| 42 U.S.C. § 5841(b) (2000) (Nuclear Regulatory Commission) | 2000* | Federal | Set political affiliation restrictions for commission members** |
| 42 U.S.C. § 7171(b)(1) (2000) (Federal Energy Regulatory Commission) | 2000* | Federal | Set political affiliation restrictions for commission members** |
| 47 U.S.C. § 154(b)(5) (2000) (Federal Communications Commission) | 2000* | Federal | Set political affiliation restrictions for commission members** |
| 5 U.S.C. § 1201 (2000) (Merit Systems Protection Board) | 2000* | Federal | Regulated members, not more than two of whom may be members of or affiliated with, the same political party |
| 12 U.S.C. § 2242(a) (2000) (Farm Credit Administration Board) | 2000* | Federal | Regulated members, not more than two of whom may be members of or affiliated with, the same political party |
| 49 U.S.C. § 701(b) (2000) (Surface Transportation Board) | 2000* | Federal | Regulated members, not more than two of whom may be members of or affiliated with, the same political party |
| 2 U.S.C. § 437c(a)(1) (2000) (Federal Election Commission) | 2000* | Federal | Required even split between party makeup of commissioners |
| Sarbanes-Oxley Act of 2002 | 2002 | Federal | Established the Public Company Accounting Oversight Board (PCAOB) with removal protections; at issue in Free Enterprise Fund v. Public Company Accounting Oversight Board (2009) |
| 7 U.S.C. § 2(a)(2)(A) (Supp. IV 2004) (Commodity Futures Trading Commission) | 2004* | Federal | Set political affiliation restriction for commission members |
| 15 U.S.C. § 78d(a) (2000 & Supp. IV 2004) (Securities and Exchange Commission) | 2004* | Federal | Set political affiliation restriction for commission members** |
| 19 U.S.C. § 1330(a) (2000 & Supp. IV 2004) (International Trade Commission) | 2004* | Federal | Required even split between party-makeup of commissioners |
| Department of Homeland Security Appropriations Act | 2007 | Federal | Qualified the president's ability to select the head of the Federal Emergency Management Agency (FEMA). George W. Bush objected in a signed statement. |
| Dodd-Frank Act 12 U.S.C. §5491-§5497(a)(4)(E) | 2010 | Federal | Created the Consumer Financial Protection Bureau (CFPB) within the Federal Reserve; statute written to not require the director of the agency to consult with or get approval from the Office of Management and Budget (OMB) on plans or reports |
| Take Care Act (proposed in the 116th United States Congress) | 2019 | Federal | Aimed at eliminating restrictions on the ability of presidents to remove upper-level executive branch officers[1] |
| Notes: * - These descriptions reflect the state of the law at the listed date.
** - Political affiliation restrictions refer to general rules against more than a certain number of agency officials being from the same political party. | |||
The laws listed in this table relate to the control executives have over the appointment of agency officials.
| Laws relevant to executive appointment power | |||
|---|---|---|---|
| Law | Year | State or Federal | Impact |
| Act of Sept. 24, 1789, ch. 20, § 35, 1 Stat. 73 | 1789 | Federal | Required the U.S. attorney general and district attorneys to be “learned in the law” |
| Act of May 3, 1802, ch. 53, § 5, 2 Stat. 195 | 1802 | Federal | Required mayors of Washington, D.C. to be citizens and residents of the city |
| Act of Mar. 26, 1804, ch. 38, § 4, 2 Stat. 283 | 1804 | Federal | Required presidential appointments to the legislative council of Louisiana to be land-holding residents of Louisiana |
| Act of Mar. 3, 1819, ch. 101, § 2, 3 Stat. 532 | 1819 | Federal | Required agents who received people seized during the prosecution of the slave trade to live on the coast of Africa |
| Act of Mar. 22, 1882, ch. 47, 22 Stat. 30 (Board of Elections in Utah Territory) | 1882 | Federal | Restricted nomination power over the Board of Elections in the Territory of Utah by limiting the number of board members who could be from one political party |
| Act of Jan. 16, 1883, ch. 27, 22 Stat. 403 (Civil Service Commission) | 1883 | Federal | Restricted nomination power over the Civil Service Commission by requiring that no more than two members be from the same party |
| Act of Feb. 4, 1887, ch. 104, 24 Stat. 379 (Interstate Commerce Commission) | 1887 | Federal | Restricted nomination and removal powers; said that members of the Interstate Commerce Commission may be removed by the president for "inefficiency, neglect of duty, or malfeasance in office" and that no more than three commissioners could be from the same party |
| Act of Sept. 26, 1914, ch. 311, 38 Stat. 717 (Federal Trade Commission) | 1914 | Federal | Restricted nomination and removal powers by allowing no more than three members of the Federal Trade Commission to be from the same party and by saying members could be removed by the president for "inefficiency, neglect of duty, or malfeasance in office;" at issue in Humphrey's Executor (1935) |
| Home Rule Act, Pub. L. No. 93-198, 87 Stat. 774 | 1973 | Federal | Allowed D.C. to have elections and set appointment and removal procedures for its judges |
| Federal Election Campaign Act Amendments of 1974, Pub. L. No. 93-443, 88 Stat. 1263 | 1974 | Federal | Allowed Congress to appoint members of the Federal Election Commission. At issue in Buckley v. Valeo |
| 29 U.S.C. § 661(b) | 1988* | Federal | Set qualifications for appointees to the Occupational Safety and Health Review Commission (OSHRC) |
| 31 U.S.C. § 703(a) | 2000* | Federal | Indicated that the comptroller general and deputy comptroller general shall be appointed by the president from a list of as few as three persons recommended by a commission of various members of Congress, though the president may ask the commission to recommend additional candidates |
| 12 U.S.C. § 1422(b)(2)(A) (2000) (Federal Housing Finance Board) | 2000* | Federal | Set political affiliation restrictions for board members** |
| 15 U.S.C. § 2053(c) (2000) (Consumer Product Safety Commission) | 2000* | Federal | Set political affiliation restrictions for commission members** |
| 42 U.S.C. § 5841(b) (2000) (Nuclear Regulatory Commission) | 2000* | Federal | Set political affiliation restrictions for commission members** |
| 42 U.S.C. § 7171(b)(1) (2000) (Federal Energy Regulatory Commission) | 2000* | Federal | Set political affiliation restrictions for commission members** |
| 47 U.S.C. § 154(b)(5) (2000) (Federal Communications Commission) | 2000* | Federal | Set political affiliation restrictions for commission members** |
| 5 U.S.C. § 1201 (2000) (Merit Systems Protection Board) | 2000* | Federal | Regulated members, not more than two of whom may be members of or affiliated with, the same political party |
| 12 U.S.C. § 2242(a) (2000) (Farm Credit Administration Board) | 2000* | Federal | Regulated members, not more than two of whom may be members of or affiliated with, the same political party |
| 49 U.S.C. § 701(b) (2000) (Surface Transportation Board) | 2000* | Federal | Regulated members, not more than two of whom may be members of or affiliated with, the same political party |
| 2 U.S.C. § 437c(a)(1) (2000) (Federal Election Commission) | 2000* | Federal | Required even split between party makeup of commissioners |
| 7 U.S.C. § 2(a)(2)(A) (Supp. IV 2004) (Commodity Futures Trading Commission) | 2004* | Federal | Set political affiliation restriction for commission members |
| 15 U.S.C. § 78d(a) (2000 & Supp. IV 2004) (Securities and Exchange Commission) | 2004* | Federal | Set political affiliation restriction for commission members** |
| 19 U.S.C. § 1330(a) (2000 & Supp. IV 2004) (International Trade Commission) | 2004* | Federal | Required even split between party-makeup of commissioners |
| Department of Homeland Security Appropriations Act | 2007 | Federal | Qualified the president's ability to select the head of the Federal Emergency Management Agency (FEMA). George W. Bush objected in a signing statement. |
| Notes: * - These descriptions reflect the state of the law at the listed date.
** - Political affiliation restrictions refer to general rules against more than a certain number of agency officials being from the same political party. | |||
The laws listed in this table relate to the control executives have over the removal of agency officials.
| Laws relevant to executive removal power | |||
|---|---|---|---|
| Law | Year | State or Federal | Impact |
| 1802 Repeal of the Judiciary Act of 1801 | 1802 | Federal | Removed judges established by the 1801 law when the repeal terminated their underlying offices |
| Tenure of Office Act, ch. 154, 14 Stat. 430 | 1867 | Federal | Changed the historical practice of presidential removal power to give Congress more control; repealed in 1887 |
| Act of July 12, 1876, 19 Stat. 76 (An act relating to postmasters of the first, second and third classes) | 1876 | Federal | Restricted removal power of the president over postmasters; ruled unconstitutional by Myers (1926) |
| Act of Feb. 4, 1887, ch. 104, 24 Stat. 379 (Interstate Commerce Commission) | 1887 | Federal | Restricted nomination and removal powers; said that members of the Interstate Commerce Commission may be removed by the president for "inefficiency, neglect of duty, or malfeasance in office" and that no more than three commissioners could be from the same party |
| Customs Administrative Act | 1908 | Federal | Amendments to the structure of the Board of General Appraisers in 1908 restricted presidential removal power over board members in response to Shurtleff (1903) by limiting the causes that could justify removal. |
| Act of Sept. 26, 1914, ch. 311, 38 Stat. 717 (Federal Trade Commission) | 1914 | Federal | Restricted nomination and removal powers by allowing no more than three members of the Federal Trade Commission to be from the same party and by saying members could be removed by the president for "inefficiency, neglect of duty, or malfeasance in office;" at issue in Humphrey's Executor (1935) |
| 28 U.S.C. § 541 (c) | 1958* | Federal | Set U.S. attorney tenure limits |
| Home Rule Act, Pub. L. No. 93-198, 87 Stat. 774 | 1973 | Federal | Allowed D.C. to have elections and set appointment and removal procedures for its judges |
| Ethics in Government Act of 1978, Pub. L. No. 95-521, 92 Stat. 1824 | 1978 | Federal | Created an Office of Government Ethics and a special prosecutor and limited presidential removal power |
| Ethics in Government Act Amendments of 1982, Public Law No. 97–409, § 2(a)(1)(A), 96 Stat. 2039 | 1982 | Federal | Independent counsel statute at issue in Morrison (1988) |
| Balanced Budget and Emergency Deficit Control Act of 1985, Pub. L. No. 99-177, 99 Stat. 1038 | 1985 | Federal | Vested executive powers in an officer removable by Congress; ruled unconstitutional in Bowsher (1986) |
| 26 U.S.C. § 7443(f) | 1988* | Federal | Said Tax Court judges may be removed by the president, "after notice and opportunity for public hearing, for inefficiency, neglect of duty, or malfeasance in office, but for no other reason" |
| Sarbanes-Oxley Act of 2002 | 2002 | Federal | Established the Public Company Accounting Oversight Board (PCAOB) with removal protections; at issue in Free Enterprise Fund v. Public Company Accounting Oversight Board |
| Dodd-Frank Act 12 U.S.C. §5491-§5497(a)(4)(E) | 2010 | Federal | Created the Consumer Financial Protection Bureau (CFPB) within the Federal Reserve; statute written to not require the director of the agency to consult with or get approval from the Office of Management and Budget (OMB) on plans or reports |
| Take Care Act (proposed in the 116th United States Congress) | 2019 | Federal | Aimed at eliminating restrictions on the ability of presidents to remove upper-level executive branch officers[1] |
| Notes: * - These descriptions reflect the state of the law at the listed date. | |||
See also
- Appointment and removal power (administrative state)
- List of court cases relevant to executive appointment and removal power
- List of scholarly work pertaining to executive appointment and removal power
- United States Supreme Court
- Administrative state
Footnotes
