Inferior Officers.

In the case of inferior officers, Congress may “limit and restrict the power of removal as it deems best for the public interest,”602 and when Congress has vested the power to appoint these officers in heads of departments, it is ordinarily the department head, rather than the President, who enjoys the power of removal. However, in the case of Free Enterprise Fund v. Public Company Accounting Oversight Bd.,603 the Court considered whether an inferior officer can be twice insulated from the President’s removal authority—in other words, can a principal officer whom Congress has protected from at will removal by the President in turn have his or her power to remove an inferior officer restricted?604 The Court held that such multilevel protection from removal is contrary to the President’s executive authority. First, even if the President determines that the inferior officer is neglecting his duties or discharging them improperly, the President does not have the power to remove that officer. Then, if the President seeks to have the principal officer remove the inferior officer, the principal officer may not agree with the President’s determination, and the President generally cannot remove the principal officer simply because of this disagreement.605

In the absence of specific legislative provision to the contrary, the President may at his discretion remove an inferior officer whose term is limited by statute,606 or one appointed with the consent of the Senate.607 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.608 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 leveled at his fellow directors.609 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 held to be within his duty to “take Care that the Laws be faithfully executed.” So interpreted, the removal did not violate the principle of administrative independence.

Footnotes

602
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). [Back to text]
603
561 U.S. ___, No. 08–861, slip op. (2010). [Back to text]
604
The case involved the Public Company Accounting Oversight Board, a private non-profit entity with a five-member board, that has significant authority over accounting firms that participate in auditing public companies. The board members are appointed to staggered 5-year terms by the Securities and Exchange Commission, and can only be removed for “good cause shown,” which requires a finding of either a violation of securities laws or board rules, willful abuse of power, or failure to enforce compliance with the rules governing registered public accounting firms. 15 U.S.C. § 7217(d)(3). The members of the Commission, in turn, can only be removed by the President for inefficiency, neglect of duty, or malfeasance in office. [Back to text]
605
561 U.S. ___, No. 08–861, slip op. at 14–15 (2010). [Back to text]
606
Parsons v. United States, 167 U.S. 324 (1897). [Back to text]
607
Shurtleff v. United States, 189 U.S. 311 (1903). [Back to text]
608
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). [Back to text]
609
Morgan v. TVA, 28 F. Supp. 732 (E.D. Tenn. 1939), aff’d, 115 F.2d 990 (6th Cir. 1940), cert. denied, 312 U.S. 701 (1941). [Back to text]