Simone Lawson
The appointment and removal provision in business 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 with the advice and consent of the Senate. This includes federal judges, ambassadors, and Cabinet-level department heads. The president also has the power to remove appointed officials, with the exception of federal judges, without requiring congressional approval. The Supreme Court has distinguished between officers of the United States and inferior officers, with only Cabinet-level department heads, ambassadors, and federal judges qualifying as officers. The removal power of the president is a highly selective doctrine that grants the president the executive power of the government, including the power of appointment and removal of executive officers.
| Characteristics | Values |
|---|---|
| Appointment and removal power | The authority of an executive to appoint and remove officials in the various branches vested in its authority to do so |
| Appointments Clause | The President of the United States is empowered to nominate and, with the advice and consent of the Senate, appoint public officials |
| Removal Clause | The President has the power to remove appointed officials, with the exception of federal judges, without requiring congressional approval |
| Independent agencies | Exposed to presidential domination |
| Congressional appointment power | Congress may not exercise the appointment power directly, but it can authorise the President, courts, or department heads to appoint inferior officers |
| Congressional circumvention | Attempts by Congress to circumvent the Appointments Clause have been rebuffed by the courts |
| Separation of powers | Congress's decision to vest the appointment power in the courts would be improper if there was an "incongruity" between the functions normally performed by the courts and their duty to appoint |
| Congressional restriction | The restriction on the President's authority to remove the director of the Federal Housing Finance Agency was deemed unconstitutional |
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What You'll Learn
The Appointments Clause
The reach and scope of the Appointments Clause have been disputed, and the Supreme Court has not provided a definitive test for determining who is an officer beyond the fact that they wield "significant authority". However, the Court has ruled on specific cases, such as in Buckley v. Valeo, where it was held that only those appointees "exercising significant authority pursuant to the laws of the United States" are "Officers of the United States".
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Removal of federal appointees
The U.S. Constitution does not include a provision pertaining to the removal of federal appointees from office. However, several U.S. Supreme Court cases have discussed the president's removal authority.
In Myers v. United States (1926), the Supreme Court held that the power to remove appointed officials, except federal judges, rests solely with the president and does not require congressional approval. The Court's decision affirmed the president's power of removal over all officers, except judges, and that Congress could not interfere with this power.
The Federal Trade Commission Act, for example, states that "any commissioner may be removed by the President for inefficiency, neglect of duty, or malfeasance in office." However, it is unclear if this restricts the president's power to remove a commissioner outside of these causes.
In Wiener v. United States (1958), the Court ruled that the President lacked the power to remove a commissioner of the War Claims Commission independently because the commission's duties were wholly adjudicatory and exempt from presidential supervision.
The Supreme Court has also distinguished between officers and inferior officers, clarifying that only Cabinet-level department heads, ambassadors, and federal judges qualify as officers. All other officers, such as federal attorneys and chaplains, are considered inferior officers.
In summary, while there is no explicit provision in the U.S. Constitution regarding the removal of federal appointees, the Supreme Court has interpreted the Constitution as granting the President broad removal powers, with some limitations, such as in the case of independent agencies or inferior officers.
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Congressional circumvention
The U.S. Constitution does not include a provision pertaining to the removal of federal appointees from office. However, the U.S. Supreme Court has discussed the president's removal authority in several cases.
In Myers v. United States (1926), the Court held that the power to remove appointed officials, except federal judges, rests solely with the president and does not require congressional approval. This case established the principle that Congress cannot reserve the power to remove an officer except by impeachment.
In Humphrey's Executor v. United States (1935), the Court ruled that the heads of independent federal agencies can only be removed by the president for cause. This case was later reconciled with Myers in Morrison v. Olson (1988), which upheld the independent counsel statute. The Court in Morrison v. Olson also clarified the distinction between "inferior officers" and Cabinet-level department heads, ambassadors, and federal judges, who are considered officers.
Attempts by Congress to circumvent the Appointments Clause, such as making appointments directly or unilaterally appointing an incumbent to a new office, have been rebuffed by the courts. The Appointments Clause confers the power to nominate to the president and the power to reject or confirm a nominee to the Senate, ensuring accountability and separation of powers.
While Congress has considerable discretion in creating offices in the executive branch and independent agencies, there are limits to its power to restrict the president's removal authority. The courts have indicated that there may be essential offices to the president's performance of constitutionally assigned powers where limits on removal would be impermissible.
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Executive removal power
The executive removal power refers to the authority of an executive to remove officials in the various branches under its authority. The interpretation of whether the Constitution grants the President the power to remove officials has been a longstanding, far-reaching, and hotly contested question.
The US Constitution does not explicitly mention a power to remove federal appointees from office, except in the case of impeachment. However, the President's removal authority has been discussed in several US Supreme Court cases, including Myers v. United States (1926), where the Court held that the President has the sole power to remove appointed officials, except federal judges, without requiring congressional approval. This case set a precedent for interpreting the President's removal power.
The Supreme Court has also distinguished between officers of the United States and inferior officers, clarifying that only Cabinet-level department heads, ambassadors, and federal judges are considered officers. Other positions, such as federal attorneys and federal election supervisors, are classified as inferior officers.
Some scholars and justices argue that Congress has the legislative power to curb executive removals and place restrictions on the grounds for removal. However, this interpretation has been contested, as it raises questions about the limits of congressional power over executive actions.
In recent years, the Supreme Court has reaffirmed the traditional view that the Constitution grants the President the power to remove officials. They have also expressed skepticism about congressional authority to limit removal, emphasizing that while Congress can grant for-cause protections, they cannot grant such protections to a single executive officer leading an agency.
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Separation of powers
The United States Constitution divides the federal government's powers between three separate branches of government: the legislative, executive, and judiciary. The legislative power is vested in Congress, the executive power in the President, and the judicial power in the Supreme Court and any lower courts created by Congress.
The separation of powers doctrine is one of the most well-known legal and political doctrines in constitutional law. The Framers of the Constitution intended to create a strong national government that would prevent tyranny from a single branch, lead to an effective government, and preserve the liberty of US citizens. The Framers were influenced by Montesquieu's argument that liberty is most effectively safeguarded by the separation of powers.
Each branch of the US government has separate powers, allowing it to perform its tasks efficiently and effectively. However, there is also overlap between the branches, and each branch can check the actions of the other two. For example, the President has the power to appoint and remove executive officers with the advice and consent of the Senate. The Supreme Court has held that Congress may not encroach upon this power, but it has also raised concerns about the judiciary encroaching on the legislative or executive spheres.
The separation of powers doctrine protects the life, liberty, and pursuit of happiness promised to citizens. It is a key feature of the US government and has been influential in the development of many other countries' constitutions.
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Frequently asked questions
The Appointments Clause of the United States Constitution empowers the president to nominate and, with the advice and consent of the United States Senate, appoint public officials.
The Removal Power is the executive power of the government, which grants the President the power of appointment and removal of executive officers.
The Senate's role is advisory to the nomination, as the President is not bound to appoint their own nominee even with their advice. The Senate also has the power to reject or confirm a nominee.
No, Congress may not exercise the appointment power. Their functions are limited to the Senate's role in advice and consent, and deciding whether to vest appointment power over a given office in the President, a head of department, or the courts of law.
No, the U.S. Constitution does not include a provision pertaining to the removal of federal appointees from office.
