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CRS Annotated Constitution

Article II -- Table of ContentsPrev | Next

The Removal Power Rationalized.— The tension that had long been noticed between Myers and Humphrey’s Executor, at least in terms of the language used in those cases but also to some extent in their holdings, appears to have been ameliorated by two decisions, which purport to reconcile the cases but, more important, purport to establish, in the latter case, a mode of analysis for resolving separation–of–powers disputes respecting the removal of persons appointed under the appointments clause.530 Myers actually struck down only a law involving the Senate in the removal of postmasters, but the broad– ranging opinion had long stood for the proposition that inherent in the President’s obligation to see to the faithful execution of the laws was his right to remove any executive officer as a means of discipline. Humphrey’s Executor had qualified this proposition by upholding “for cause” removal restrictions for members of independent regulatory agencies, at least in part on the assertion that they exercised “quasi– ” legislative and adjudicative functions as well as some form of executive function. Maintaining the holding of the latter case was essential to retaining the independent agencies, but the emphasis upon the execution of the laws as a core executive function in recent cases had cast[p.529]considerable doubt on the continuing validity of Humphrey’s Executor.

In Bowsher v. Synar,531 the Court held that when Congress itself retains the power to remove an official it could not vest him with the exercise of executive power. Invalidated in Synar were provisions of the l985 “Gramm–Rudman–Hollings” Deficit Control Act532 vesting in the Comptroller General authority to prepare a detailed report on projected federal revenue and expenditures and to determine mandatory across–the–board cuts in federal expenditures necessary to reduce the projected budget deficit by statutory targets. By a 1921 statute, the Comptroller General was removable by joint congressional resolution for, inter alia, “inefficiency,” “neglect of duty,” or “malfeasance.” “These terms are very broad,” the Court noted, and “could sustain removal of a Comptroller General for any number of actual or perceived transgressions of the legislative will.” Consequently, the Court determined, “the removal powers over the Comptroller General’s office dictate that he will be subservient to Congress.”533

Relying expressly upon Myers, the Court concluded that “Congress cannot reserve for itself the power of removal of an officer charged with the execution of the laws except by impeachment.”534 But Humphrey’s Executor was also cited with approval, and to the contention that invalidation of this law would cast doubt on the status of the independent agencies the Court rejoined that the statutory measure of the independence of those agencies was the assurance of “for cause” removal by the President rather than congressional involvement as in the instance of the Comptroller General.535 This reconciliation of Myers and Humphrey’s Executor was made clear and express in Morrison v. Olson.536

[p.530]

That case sustained the independent counsel statute.537 Under that law, the independent counsel, appointed by a special court upon application by the Attorney General, may be removed by the Attorney General “only for good cause, physical disability, mental incapacity, or any other condition that substantially impairs the performance of such independent counsel’s duties.” Inasmuch as the counsel was clearly exercising “purely” executive duties, in the sense that term was used in Myers, it was urged that Myers governed and required the invalidation of the statute. But, said the Court, Myers stood only for the proposition that Congress could not involve itself in the removal of executive officers. Its broad dicta that the President must be able to remove at will officers performing “purely” executive functions had not survived Humphrey’s Executor. It was true, the Court admitted, that, in the latter case, it had distinguished between “purely” executive officers and officers who exercise “quasi–legislative” and “quasi– judicial” powers in marking the line between officials who may be presidentially removed at will and officials who can be protected through some form of good cause removal limits. “[B]ut our present considered view is that the determination of whether the Constitution allows Congress to impose a ‘good cause’–type restriction on the President’s power to remove an official cannot be made to turn on whether or not that official is classified as ‘purely executive.’ The analysis contained in our removal cases is designed not to define rigid categories of those officials who may or may not be removed at will by the President, but to ensure that Congress does not interfere with the President’s exercise of the ‘executive power’ and his constitutionally appointed duty to ‘take care that the laws be faithfully executed’ under Article II. Myers was undoubtedly correct in its holding, and in its broader suggestion that there are some ‘purely executive’ officials who must be removable by the President at will if he is to be able to accomplish his constitutional role. . . . At the other end of the spectrum from Myers, the characterization of the agencies in Humphrey’s Executor and Wiener as ‘quasi–legislative’ or ‘quasi–judicial’ in large part reflected our judgment that it was not essential to the President’s proper execution of his Article II powers that these agencies be headed up by individuals who were removable at will. We do not mean to suggest that an analysis of the functions served by the officials at issue is irrelevant. But the real question is whether the removal restrictions are of such a nature that they impede the President’s ability to perform his con[p.531]stitutional duty, and the functions of the officials in question must be analyzed in that light.”538

The Court discerned no compelling reason to find the good cause limit to interfere with the President’s performance of his duties. The independent counsel did exercise executive, law–enforcement functions, but the jurisdiction and tenure of each counsel were limited in scope and policymaking or significant administrative authority was lacking. On the other hand, the removal authority did afford the President through the Attorney General power to ensure the “faithful execution” of the laws by assuring that the counsel is competently performing the statutory duties of the office.

It is now thus reaffirmed that Congress may not involve itself in the removal of officials performing executive functions. It is also established that, in creating offices in the executive branch and in creating independent agencies, Congress has considerable discretion in statutorily limiting the power to remove of the President or another appointing authority. It is evident on the face of the opinion that the discretion is not unbounded, that there are offices which may be essential to the President’s performance of his constitutionally assigned powers and duties, so that limits on removal would be impermissible. There are no bright lines marking off one office from the other, but decision requires close analysis.539

As a result of these cases, the long–running controversy with respect to the legitimacy of the independent agencies appears to have been settled,540 although it appears likely that the controversies with respect to congressional–presidential assertions of power in executive agency matters are only beginning.

Other Phases of Presidential Removal Power.—Congress may “limit and restrict the power of removal as it deems best for the public interest” in the case of inferior officers.541 However, in the absence of specific legislative provision to the contrary, the President may remove at his discretion an inferior officer whose[p.532]term is limited by statute,542 or one appointed with the consent of the Senate.543 He may remove an officer of the army or navy at any time by nominating to the Senate the officer’s successor, provided the Senate approves the nomination.544 In 1940, the President was sustained in removing Dr. E. A. Morgan from the chairmanship of TVA for refusal to produce evidence in substantiation of charges which he had levelled at his fellow directors.545 Although no such cause of removal by the President was stated in the act creating TVA, the President’s action, being reasonably required to promote the smooth functioning of TVA, was within his duty to “take care that the laws be faithfully executed.” So interpreted, it did not violate the principle of administrative independence.


Footnotes

530 Bowsher v. Synar, 478 U.S. 714 (1986); Morrison v. Olson, 487 U.S. 654 (1988). This is not to say that the language and analytical approach of Synar are not in conflict with that of Morrison; it is to say that the results are consistent and the analytical basis of the latter case does resolve the ambiguity present in some of the reservations in Synar.
531 478 U.S. 714 (1986).
532 The Balanced Budget and Emergency Deficit Control Act of 1985, Pub. L. 99–177, 99 Stat. 1038 .
533 Id., 478 U.S., 729, 730. “By placing the responsibility for execution of the . . . Act in the hands of an officer who is subject to removal only by itself, Congress in effect has retained control over the execution of the Act and has intruded into the executive function.” Id., at 734. Because the Act contained contingency procedures for implementing the budget reductions in the event that the primary mechanism was invalidated, the Court rejected the suggestion that it should invalidate the 1921 removal provision rather than the Deficit Act’s conferral of executive power in the Comptroller General. To do so would frustrate congressional intention and significantly alter the Comptroller General’s office. Id., 734–36.
534 Id., 726.
535 Id., 725 n. 4.
536 487 U.S. 654 (1988).
537 Pub. L. 95–521, title VI, 92 Stat. 1867 , as amended by Pub. L. 97–409, 96 Stat. 2039 , and Pub. L. 100–191, 101 Stat. 1293 , 28 U.S.C. §§ 49 , 591 et seq.
538 Id., 487 U.S., 685–93.
539 But notice the analysis followed by three Justices in Public Citizen v. Department of Justice, 491 U.S. 440, 467, 482–489 (1989) (concurring), and consider the possible meaning of the recurrence to formalist reasoning in Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, (1989). And see Justice Scalia’s utilization of the “take care” clause in pronouncing limits on Congress’ constitutional power to confer citizen standing in Lujan v. Defenders of Wildlife, 112 S.Ct. 2130, 2142–2146 (1992), although it is not clear that he had a majority of the Court with him.
540 Indeed, the Court explicitly analogized the civil enforcement powers of the independent agencies to the prosecutorial powers wielded by the independent counsel. Morrison v. Olson, 487 U.S. 654, 692 n. 31 (1988).
541 United States v. Perkins, 116 U.S. 483 (1886), cited with approval in Myers v. United States, 272 U.S. 52, 161–163, 164 (1926), and Morrison v. Olson, 487 U.S. 654, 689 n. 27 (1988).
542 Parsons v. United States, 167 U.S. 324 (1897).
543 Shurtleff v. United States, 189 U.S. 311 (1903).
544 Blake v. United States, 103 U.S. 227 (1881); Quackenbush v. United States, 177 U.S. 20 (1900); Wallace v. United States, 257 U.S. 541 (1922).
545 Morgan v. TVA, 28 F. Supp. 732 (D.E.D. Tenn. 1939), affd., 115 F. 2d 990 (6th Cir. 1940), cert. den. 312 U.S. 701 (1941).
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