THE EXECUTIVE ESTABLISHMENT
Office

“An office is a public station, or employment, conferred by the appointment of government. The term embraces the ideas of tenure, duration, emolument, and duties.”514

Ambassadors and Other Public Ministers.

The term “am- bassadors and other public ministers,” comprehends “all officers having diplomatic functions, whatever their title or designation.”515 It was originally assumed that such offices were established by the Constitution itself, by reference to the Law of Nations, with the consequence that appointments might be made to them whenever the appointing authority—the President and Senate—deemed desirable.516 During the first sixty-five years of the Government, Congress passed no act purporting to create any diplomatic rank, the entire question of grades being left with the President. Indeed, during the administrations of Washington, Adams and Jefferson, and the first term of Madison, no mention occurs in any appropriation, even of ministers of a specified rank at this or that place, but the provision for the diplomatic corps consisted of so much money “for the expenses of foreign intercourse,” to be expended at the discretion of the President. In Madison’s second term, the practice was introduced of allocating special sums to the several foreign missions maintained by the Government, but even then the legislative provisions did not purport to curtail the discretion of the President in any way in the choice of diplomatic agents.

In 1814, however, when President Madison appointed, during a recess of the Senate, the Commissioners who negotiated the Treaty of Ghent, the theory on which the above legislation was based was drawn into question. Inasmuch, it was argued, as these offices had never been established by law, no vacancy existed to which the President could constitutionally make a recess appointment. To this argument, it was answered that the Constitution recognizes “two descriptions of offices altogether different in their nature, authorized by the constitution—one to be created by law, and the other depending for their existence and continuance upon contingencies. Of the first kind, are judicial, revenue, and similar offices. Of the second, are Ambassadors, other public Ministers, and Consuls. The first descriptions organize the government and give it efficacy. They form the internal system, and are susceptible of precise enumeration. When and how they are created, and when and how they become vacant, may always be ascertained with perfect precision. Not so with the second description. They depend for their original existence upon the law, but are the offspring of the state of our relations with foreign nations, and must necessarily be governed by distinct rules. As an independent power, the United States have relations with all other independent powers; and the management of those relations is vested in the Executive.”517

By the opening section of the act of March 1, 1855, it was provided that “from and after the thirtieth day of June next, the President of the United States shall, by and with the advice and consent of the Senate, appoint representatives of the grade of envoys extraordinary and ministers plenipotentiary,” with a specified annual compensation for each, “to the following countries. . . .” In the body of the act was also this provision: “The President shall appoint no other than citizens of the United States, who are residents thereof, or who shall be abroad in the employment of the government at the time of their appointment. . . .”518 The question of the interpretation of the act having been referred to Attorney General Cushing, he ruled that its total effect, aside from its salary provisions, was recommendatory only. It was “to say, that if, and whenever, the President shall, by and with the advice and consent of the Senate, appoint an envoy extraordinary and minister plenipotentiary to Great Britain, or to Sweden, the compensation of that minister shall be so much and no more.”519

This line of reasoning is only partially descriptive of the facts. The Foreign Service Act of 1946,520 pertaining to the organization of the foreign service, diplomatic as well as consular, contains detailed provisions as to grades, salaries, promotions, and, in part, as to duties. Under the terms thereof the President, by and with the advice and consent of the Senate, appoints ambassadors, ministers, foreign service officers, and consuls, but in practice the vast proportion of the selections are made in conformance to recommendations of a Board of the Foreign Service.

Presidential Diplomatic Agents.

What the President may have lost in consequence of the intervention of Congress in this field of diplomatic appointments, he has made good through his early conceded right to employ, in the discharge of his diplomatic function, so-called “special,” “personal,” or “secret” agents without consulting the Senate. When President Jackson’s right to resort to this practice was challenged in the Senate in 1831, it was defended by Edward Livingston, Senator from Louisiana, to such good purpose that Jackson made him Secretary of State. “The practice of appointing secret agents,” said Livingston, “is coeval with our existence as a nation, and goes beyond our acknowledgment as such by other powers. All those great men who have figured in the history of our diplomacy, began their career, and performed some of their most important services in the capacity of secret agents, with full powers. Franklin, Adams, Lee, were only commissioners; and in negotiating a treaty with the Emperor of Morocco, the selection of the secret agent was left to the Ministers appointed to make the treaty; and, accordingly, in the year 1785, Mr. Adams and Mr. Jefferson appointed Thomas Barclay, who went to Morocco and made a treaty, which was ratified by the Ministers at Paris.”

“These instances show that, even prior to the establishment of the Federal Government, secret plenipotentiaries were known, as well in the practice of our own country as in the general law of nations: and that these secret agents were not on a level with messengers, letter carriers, or spies, to whom it has been found necessary in argument to assimilate them. On the 30th March, 1795, in the recess of the Senate, by letters patent under the great broad seal of the United States, and the signature of their President, (that President being George Washington,) countersigned by the Secretary of State, David Humphreys was appointed commissioner plenipotentiary for negotiating a treaty of peace with Algiers. By instructions from the President, he was afterwards authorized to employ Joseph Donaldson as agent in that business. In May, of the same year, he did appoint Donaldson, who went to Algiers, and in September of the same year concluded a treaty with the Dey and Divan, which was confirmed by Humphreys, at Lisbon, on the 28th November in the same year, and afterwards ratified by the Senate, and an act passed both Houses on 6th May, 1796, appropriating a large sum, twenty-five thousand dollars annually, for carrying it into effect.”521

The precedent afforded by Humphreys’ appointment without reference to the Senate has since been multiplied many times,522 as witness the mission of A. Dudley Mann to Hanover and other German states in 1846, of the same gentleman to Hungary in 1849, of Nicholas Trist to Mexico in 1848, of Commodore Perry to Japan in 1852, of J. H. Blount to Hawaii in 1893. The last named case is perhaps the most extreme of all. Blount, who was appointed while the Senate was in session but without its advice and consent, was given “paramount authority” over the American resident minister at Hawaii and was further empowered to employ the military and naval forces of the United States, if necessary to protect American lives and interests. His mission raised a vigorous storm of protest in the Senate, but the majority report of the committee which was created to investigate the constitutional question vindicated the President in the following terms: “A question has been made as to the right of the President of the United States to dispatch Mr. Blount to Hawaii as his personal representative for the purpose of seeking the further information which the President believed was necessary in order to arrive at a just conclusion regarding the state of affairs in Hawaii. Many precedents could be quoted to show that such power has been exercised by the President on various occasions, without dissent on the part of Congress or the people of the United States. . . . These precedents also show that the Senate of the United States, though in session, need not be consulted as to the appointment of such agents, . . . .”523 The continued vitality of the practice is attested by such names as Colonel House, the late Norman H. Davis, who filled the role of “ambassador at large” for a succession of administrations of both parties, Professor Philip Jessup, Mr. Averell Harriman, and other “ambassadors at large” of the Truman Administration, and Professor Henry Kissinger of the Nixon Administration.

How is the practice to be squared with the express words of the Constitution? Apparently, by stressing the fact that such appointments or designations are ordinarily merely temporary and for special tasks, and hence do not fulfill the tests of “office” in the strict sense. In the same way the not infrequent practice of Presidents of appointing Members of Congress as commissioners to negotiate treaties and agreements with foreign governments may be regularized, notwithstanding the provision of Article I, § 6, clause 2 of the Constitution, which provides that “no Senator or Representative shall . . . be appointed to any civil Office under the Authority of the United States, which shall have been created,” during his term; and no officer of the United States, “shall be a Member of either House during his Continuance in Office.”524 The Treaty of Peace with Spain, the treaty to settle the Bering Sea controversy, the treaty establishing the boundary line between Canada and Alaska, were negotiated by commissions containing Senators and Representatives.

Appointments and Congressional Regulation of Offices

It has never been questioned that the Constitution distinguishes between the creation of an office and appointment thereto. The former is by law and takes place by virtue of Congress’s power to pass all laws necessary and proper for carrying into execution the powers which the Constitution confers upon the government of the United States and its departments and officers.525 As an incident to the establishment of an office, Congress has also the power to determine the qualifications of the officer and in so doing necessarily limits the range of choice of the appointing power. First and last, it has laid down a great variety of qualifications, depending on citizenship, residence, professional attainments, occupational experience, age, race, property, sound habits, and so on. It has required that appointees be representative of a political party, of an industry, of a geographic region, or of a particular branch of the Government. It has confined the President’s selection to a small number of persons to be named by others.526 Indeed, it has contrived at times to designate a definite eligibility, thereby virtually usurping the appointing power.527 Despite the record of the past, however, it is not at all clear that Congress may cabin the President’s discretion, at least for offices that he considers important, by, for example, requiring him to choose from lists compiled by others. To be sure, there are examples, but they are not free of ambiguity.528

But when Congress contrived actually to participate in the appointment and administrative process and provided for selection of the members of the Federal Election Commission, two by the President, two by the Senate, and two by the House, with confirmation of all six members vested in both the House and the Senate, the Court unanimously held the scheme to violate the Appointments Clause and the principle of separation of powers. The term “officers of the United States” is a substantive one requiring that any appointee exercising significant authority pursuant to the laws of the United States be appointed in the manner prescribed by the Appointments Clause.529 The Court did hold, however, that the Commission so appointed and confirmed could be delegated the powers Congress itself could exercise, that is, those investigative and informative functions that congressional committees carry out were properly vested in this body.

Congress is authorized by the Appointments Clause to vest the appointment of “inferior Officers,” at its discretion, “in the President alone, in the Courts of Law, or in the Heads of Departments.” The principal questions arising under this portion of the clause are “Who are ‘inferior officers,’ ” and “what are the ‘Departments’ ” whose heads may be given appointing power?530 “[A]ny appointee exercising significant authority pursuant to the laws of the United States is an ‘Officer of the United States,’ and must, therefore, be appointed in the manner prescribed by § 2, cl. 2, of [Article II].”531 “The Constitution for purposes of appointment very clearly divides all its officers into two classes. The primary class requires a nomination by the President and confirmation by the Senate. But foreseeing that when offices became numerous, and sudden removals necessary, this mode might be inconvenient, it was provided that, in regard to officers inferior to those specially mentioned, Congress might by law vest their appointment in the President alone, in the courts of law, or in the heads of departments. That all persons who can be said to hold an office under the government about to be established under the Constitution were intended to be included within one or the other of these modes of appointment there can be but little doubt.”532

In Edmond v. United States,533 the Court reviewed its pronouncements regarding the definition of “inferior officer” and, disregarding some implications of its prior decisions, seemingly settled, unanimously, on a pragmatic characterization. Thus, the importance of the responsibilities assigned an officer, the fact that duties were limited, that jurisdiction was narrow, and that tenure was limited, are only factors but are not definitive.534 “Generally speaking, the term ‘inferior officer’ connotes a relationship with some higher ranking officer or officers below the President: Whether one is an ‘inferior’ officer depends on whether he has a superior. It is not enough that other officers may be identified who formally maintain a higher rank, or possess responsibilities of a greater magnitude. If that were the intention, the Constitution might have used the phrase ‘lesser officer.’ Rather, in the context of a Clause designed to preserve political accountability relative to important Government assignments, we think it evident that ‘inferior officers’ are officers whose work is directed and supervised at some level by others who were appointed by Presidential nomination with the advice and consent of the Senate.”535

Thus, officers who are not “inferior Officers” are principal officers who must be appointed by the President with the advice and consent of the Senate in order to make sure that all the business of the Executive will be conducted under the supervision of officers appointed by the President with Senate approval.536 Further, the Framers intended to limit the “diffusion” of the appointing power with respect to inferior officers in order to promote accountability. “The Framers understood . . . that by limiting the appointment power, they could ensure that those who wielded it were accountable to political force and the will of the people. . . . The Appointments Clause prevents Congress from distributing power too widely by limiting the actors in whom Congress may vest the power to appoint. The Clause reflects our Framers’ conclusion that widely distributed appointment power subverts democratic government. Given the inexorable presence of the administrative state, a holding that every organ in the executive Branch is a department would multiply the number of actors eligible to appoint.”537

Yet, even agreed on the principle, the Freytag Court split 5-to-4 on the reason for the permissibility of the Chief Judge of the Tax Court to appoint special trial judges. The entire Court agreed that the Tax Court had to be either a “department” or a “court of law” in order for the authority to be exercised by the Chief Judge, and it unanimously agreed that the statutory provision was constitutional. But there agreement ended. The majority was of the opinion that the Tax Court could not be a department, but it was unclear what those Justices thought a department comprehended. Seemingly, it started from the premise that departments were those parts of the executive establishment called departments and headed by a cabinet officer.538 Yet, the Court continued immediately to say: “Confining the term ‘Heads of Departments’ in the Appointments Clause to executive divisions like the Cabinet-level departments constrains the distribution of the appointment power just as the [IRS] Commissioner’s interpretation, in contrast, would diffuse it. The Cabinet-level departments are limited in number and easily identified. The heads are subject to the exercise of political oversight and share the President’s accountability to the people.”539 The use of the word “like” in this passage suggests that it is not just Cabinet-headed departments that are departments but also entities that are similar to them in some way, and its reservation of the validity of investing appointing power in the heads of some unnamed entities, as well as its observation that the term “Heads of Departments” does not embrace “inferior commissioners and bureau officers” all contribute to an amorphous conception of the term.540 In the end, the Court sustained the challenged provision by holding that the Tax Court as an Article I court was a “Court of Law” within the meaning of the Appointments Clause.541 The other four Justices concluded that the Tax Court, as an independent establishment in the executive branch, was a “department” for purposes of the Appointments Clause. In their view, in the context of text and practice, the term meant, not Cabinet-level departments, but “all independent executive establishments,” so that “ ‘Heads of Departments’ includes the heads of all agencies immediately below the President in the organizational structure of the Executive Branch.”542

The Freytag decision must be considered a tentative rather than a settled construction.543

As noted, the Appointments Clause also authorizes Congress to vest the power in “Courts of Law.” Must the power to appoint when lodged in courts be limited to those officers acting in the judicial branch, as the Court first suggested?544 No, the Court said subsequently. In Ex parte Siebold,545 the Court sustained Congress’s decision to vest in courts the appointment of federal election supervisors, charged with preventing fraud and rights violations in congressional elections in the South, and disavowed any thought that interbranch appointments could not be authorized under the clause. A special judicial division was authorized to appoint independent counsels to investigate and, if necessary, prosecute charges of corruption in the executive, and the Court, in near unanimity, sustained the law, denying that interbranch appointments, in and of themselves, and leaving aside more precise separation-of-powers claims, were improper under the clause.546

Congressional Regulation of Conduct in Office.

Congress has very broad powers in regulating the conduct in office of officers and employees of the United States, and this authority extends to regulation of political activities. By an act passed in 1876, it prohibited “all executive officers or employees of the United States not appointed by the President, with the advice and consent of the Senate, . . . from requesting, giving to, or receiving from, any other officer or employee of the Government, any money or property or other thing of value for political purposes.”547 The validity of this measure having been sustained,548 the substance of it, with some elaborations, was incorporated in the Civil Service Act of 1883.549 The Lloyd-La Follette Act in 1912 began the process of protecting civil servants from unwarranted or abusive removal by codifying “just cause” standards previously embodied in presidential orders, defining “just causes” as those that would promote the “efficiency of the service.”550 Substantial changes in the civil service system were instituted by the Civil Service Reform Act of 1978, which abolished the Civil Service Commission and delegated its responsibilities, its management, and its administrative duties to the Office of Personnel Management and its review and protective functions to the Merit Systems Protection Board.551

Until 1993, § 9(a) of the Hatch Act552 prohibited any person in the executive branch, or any executive branch department or agency, except the President and the Vice President and certain “policy determining” officers, to “take an active part in political management or political campaigns,” although employees had been permitted to “express their opinions on all political subjects and candidates.” In United Public Workers v. Mitchell,553 these provisions were upheld as “reasonable” against objections based on the First, Fifth, Ninth, and Tenth Amendments. The Hatch Act Reform Amendments of 1993, however, substantially liberalized the rules for political activities during off-duty hours for most executive branch employees, subject to certain limitations on off-duty hours activities and express prohibitions against on-the-job partisan political activities.554

The Loyalty Issue.

By section 9A of the Hatch Act of 1939, a federal employee was disqualified from accepting or holding any position in the Federal Government or the District of Columbia if he belonged to an organization that he knew advocated the overthrow of our constitutional form of government.555 The 79th Congress followed up this provision with a rider to its appropriation acts forbidding the use of any appropriated funds to pay the salary of any person who advocated, or belonged to an organization which advocated the overthrow of the government by force, or of any person who engaged in a strike or who belonged to an organization which asserted the right to strike against the government.556 These provisos ultimately wound up in permanent law requiring all government employees to take oaths disclaiming either disloyalty or strikes as a device for dealing with the government as an employer.557 Along with the loyalty-security programs initiated by President Truman558 and carried forward by President Eisenhower,559 these measures reflected the Cold War era and the fear of subversion and espionage following the disclosures of several such instances here and abroad.560

Financial Disclosure and Limitations.

The Ethics in Gov- ernment Act of 1978561 requires high-level federal personnel to make detailed, annual disclosures of their personal financial affairs.562 The aims of the legislation are to enhance public confidence in government, to demonstrate the high level of integrity of government employees, to deter and detect conflicts of interest, to discourage individuals with questionable sources of income from entering government, and to facilitate public appraisal of government employees’ performance in light of their personal financial interests.563 Despite assertions that employee privacy interests are needlessly invaded by the breadth of disclosures, to date judicial challenges have been unsuccessful, with one exception.564 The one provision that was invalidated was section 501(b),565 which prohibits Members of Congress and officers or employees of the government, regardless of salary level, from receiving any “honorarium,” which the statute defines as “a payment of money or any thing of value for an appearance, speech or article (including a series of appearances, speeches, or articles if the subject matter is directly related to the individual’s official duties or the payment is made because of the individual’s status with the Government) . . . .”566 The Supreme Court held that this prohibition, even interpreted in accordance with the standards applicable to speech restrictions on government employees, was over-broad, as “[t]he speculative benefits the honoraria ban may provide the government are not sufficient to justify this crudely crafted burden of respondents’ freedom to engage in expressive activities.”567

Legislation Increasing Duties of an Officer.

Finally, “Con- gress may increase the powers and duties of an existing office without thereby rendering it necessary that the incumbent should be again nominated and appointed.”568 Such legislation does not constitute an attempt by Congress to seize the appointing power.

Stages of Appointment Process
Nomination.

The Constitution appears to distinguish three stages in appointments by the President with the advice and consent of the Senate. The first is the “nomination” of the candidate by the President alone; the second is the assent of the Senate to the candidate’s “appointment;” and the third is the final appointment and commissioning of the appointee, by the President.569

Senate Approval.

The fact that the power of nomination be- longs to the President alone prevents the Senate from attaching conditions to its approval of an appointment, such as it may do to its approval of a treaty. In the words of an early opinion of the Attorney General: “The Senate cannot originate an appointment. Its constitutional action is confined to the simple affirmation or rejection of the President’s nominations, and such nominations fail whenever it rejects them. The Senate may suggest conditions and limitations to the President, but it cannot vary those submitted by him, for no appointment can be made except on his nomination, agreed to without qualifications or alteration.”570 This view is borne out by early opinion,571 as well as by the record of practice under the Constitution.

When Senate Consent Is Complete.

Early in January, 1931, the Senate requested President Hoover to return its resolution notifying him that it advised and consented to certain nominations to the Federal Power Commission. In support of its action the Senate invoked a long-standing rule permitting a motion to reconsider a resolution confirming a nomination within “the next two days of actual executive session of the Senate” and the recall of the notification to the President of the confirmation. The nominees involved having meantime taken the oath of office and entered upon the discharge of their duties, the President responded with a refusal, saying: “I cannot admit the power in the Senate to encroach upon the executive functions by removal of a duly appointed executive officer under the guise of reconsideration of his nomination.” The Senate thereupon voted to reconsider the nominations in question, again approving two of the nominees, but rejecting the third, against whom it instructed the District Attorney of the District of Columbia to institute quo warranto proceedings in the Supreme Court of the District. In United States v. Smith,572 the Supreme Court overruled the proceedings on the ground that the Senate had never before attempted to apply its rule in the case of an appointee who had already been installed in office on the faith of the Senate’s initial consent and notification to the President. In 1939, President Roosevelt rejected a similar demand by the Senate, an action that went unchallenged.573

The Removal Power
The Myers Case.

Save for the provision which it makes for a power of impeachment of “civil officers of the United States,” the Constitution contains no reference to a power to remove from office, and until its decision in Myers v. United States,574 on October 25, 1926, the Supreme Court had contrived to sidestep every occasion for a decisive pronouncement regarding the removal power, its extent, and location. The point immediately at issue in the Myers case was the effectiveness of an order of the Postmaster General, acting by direction of the President, to remove from office a first-class postmaster, in the face of the following provision of an act of Congress passed in 1876: “Postmasters of the first, second, and third classes shall be appointed and may be removed by the President by and with the advice and consent of the Senate, and shall hold their offices for four years unless sooner removed or suspended according to law.”575

A divided Court, speaking through Chief Justice Taft, held the order of removal valid and the statutory provision just quoted void. The Chief Justice’s relied mainly on the so-called “decision of 1789,” which referred to Congress’s that year inserting in the act establishing the Department of State a proviso that was meant to imply recognition that the Secretary would be removable by the President at will. The proviso was especially urged by Madison, who invoked in support of it the opening words of Article II and the President’s duty to “take Care that the Laws be faithfully executed.”

Succeeding passages of the Chief Justice’s opinion erected on this basis a highly selective account of doctrine and practice regarding the removal power down to the Civil War, which was held to yield the following results: “Article II grants to the President the executive power of the Government, i.e., the general administrative control of those executing the laws, including the power of appointment and removal of executive officers—a conclusion confirmed by his obligation to take care that the laws be faithfully executed; that Article II excludes the exercise of legislative power by Congress to provide for appointments and removals, except only as granted therein to Congress in the matter of inferior offices; that Congress is only given power to provide for appointments and removals of inferior officers after it has vested, and on condition that it does vest, their appointment in other authority than the President with the Senate’s consent; that the provisions of the second section of Article II, which blend action by the legislative branch, or by part of it, in the work of the executive, are limitations to be strictly construed and not to be extended by implication; that the President’s power of removal is further established as an incident to his specifically enumerated function of appointment by and with the advice of the Senate, but that such incident does not by implication extend to removals the Senate’s power of checking appointments; and finally that to hold otherwise would make it impossible for the President, in case of political or other differences with the Senate or Congress, to take care that the laws be faithfully executed.”576

The holding in Myers boils down to the proposition that the Constitution endows the President with an illimitable power to remove all officers in whose appointment he has participated, with the exception of federal judges. The motivation of the holding was not, it may be assumed, any ambition on the Chief Justice’s part to set history aright—or awry.577 Rather, it was the concern that he voiced in the following passage in his opinion: “There is nothing in the Constitution which permits a distinction between the removal of the head of a department or a bureau, when he discharges a political duty of the President or exercises his discretion, and the removal of executive officers engaged in the discharge of their other normal duties. The imperative reasons requiring an unrestricted power to remove the most important of his subordinates in their most important duties must, therefore, control the interpretation of the Constitution as to all appointed by him.”578

Thus spoke the former President Taft, and the result of his prepossession was a rule that, as was immediately pointed out, exposed the so-called “independent agencies”—the Interstate Commerce Commission, the Federal Trade Commission, and the like—to presidential domination. Unfortunately, the Chief Justice, while professing to follow Madison’s leadership, had omitted to weigh properly the very important observation that the latter had made at the time regarding the office of Comptroller of the Treasury. “The Committee,” said Madison, “has gone through the bill without making any provision respecting the tenure by which the comptroller is to hold his office. I think it is a point worthy of consideration, and shall, therefore, submit a few observations upon it. It will be necessary to consider the nature of this office, to enable us to come to a right decision on the subject; in analyzing its properties, we shall easily discover they are of a judiciary quality as well as the executive; perhaps the latter obtains in the greatest degree. The principal duty seems to be deciding upon the lawfulness and justice of the claims and accounts subsisting between the United States and particular citizens: this partakes strongly of the judicial character, and there may be strong reasons why an officer of this kind should not hold his office at the pleasure of the executive branch of the government.”579 In Humphrey’s Executor v. United States,580 the Court seized upon “the nature of the office” concept and applied it as a corrective to the overbroad Myers holding.

The Humphrey Case.

The material element of Humphrey’s Executor was that Humphrey, a member of the Federal Trade Commission, was on October 7, 1933, notified by President Roosevelt that he was “removed” from office, the reason being their divergent views of public policy. In due course, Humphrey sued for salary. Distinguishing the Myers case, Justice Sutherland, speaking for the unanimous Court, said: “A postmaster is an executive officer restricted to the performance of executive functions. He is charged with no duty at all related to either the legislative or judicial power. The actual decision in the Myers case finds support in the theory that such an office is merely one of the units in the executive department and, hence, inherently subject to the exclusive and illimitable power of removal by the Chief Executive, whose subordinate and aide he is. . . . It goes no farther; much less does it include an officer who occupies no place in the executive department and who exercises no part of the executive power vested by the Constitution in the President.”

“The Federal Trade Commission is an administrative body created by Congress to carry into effect legislative policies embodied in the statute. . . . Such a body cannot in any proper sense be characterized as an arm or eye of the executive. Its duties are performed without executive leave and, in the contemplation of the statute, must be free from executive control. . . . We think it plain under the Constitution that illimitable power of removal is not possessed by the President in respect of officers of the character of those just named, [the Interstate Commerce Commission, the Federal Trade Commission, the Court of Claims]. The authority of Congress, in creating quasi-legislative or quasi-judicial agencies, to require them to act in discharge of their duties independently of executive control cannot well be doubted; and that authority includes, as an appropriate incident, power to fix the period during which they shall continue in office, and to forbid their removal except for cause in the meantime. For it is quite evident that one who holds his office only during the pleasure of another, cannot be depended upon to maintain an attitude of independence against the latter’s will. . . .”

“The result of what we now have said is this: Whether the power of the President to remove an officer shall prevail over the authority of Congress to condition the power by fixing a definite term and precluding a removal except for cause, will depend upon the character of the office; the Myers decision, affirming the power of the President alone to make the removal, is confined to purely executive officers; and as to officers of the kind here under consideration, we hold that no removal can be made during the prescribed term for which the officer is appointed, except for one or more of the causes named in the applicable statute.”581

The Wiener Case.

Curtailment of the President’s power of re- moval, so liberally delineated in the Myers decision, was not to end with the Humphrey case. Unresolved by the latter was the question whether the President, absent a provision expressly delimiting his authority in the statute creating an agency endowed with quasi-judicial functions, remained competent to remove members serving thereon. To this query the Court supplied a negative answer in Wiener v. United States.582 Emphasizing that the duties of the War Claims Commission were wholly adjudicatory and its determinations, final and exempt from review by any other official or judicial body, the Court unanimously concluded that inasmuch as the President was unable to supervise its activities, he lacked the power, independently of statutory authorization, to remove a commissioner whose term expired with the life of that agency.

The Watergate Controversy.

A dispute arose regarding the discharge of the Special Prosecutor appointed to investigate and prosecute violations of law in the Watergate matter. Congress vested in the Attorney General the power to conduct the criminal litigation of the Federal Government,583 and it further authorized him to appoint subordinate officers to assist him in the discharge of his duties.584 Pursuant to presidential direction, the Attorney General designated a Watergate Special Prosecutor with broad power to investigate and prosecute offenses arising out of the Watergate break-in, the 1972 presidential election, and allegations involving the President, members of the White House staff, or presidential appointees. He was to remain in office until a date mutually agreed upon between the Attorney General and himself, and the regulations provided that the Special Prosecutor “will not be removed from his duties except for extraordinary improprieties on his part.”585 On October 20, following the resignations of the Attorney General and the Deputy Attorney General, the Solicitor General as Acting Attorney General formally dismissed the Special Prosecutor586 and three days later rescinded the regulation establishing the office.587 In subsequent litigation, a federal district court held that the firing by the Acting Attorney General had violated the regulations, which were in force at the time and which had to be followed until they were rescinded.588 The Supreme Court in United States v. Nixon589 seemed to confirm this analysis by the district court in upholding the authority of the new Special Prosecutor to take the President to court to obtain evidence in the President’s possession. Left unsettled were two questions, the power of the President himself to go over the heads of his subordinates and to fire the Special Prosecutor himself, whatever the regulations said, and the power of Congress to enact legislation establishing an Office of Special Prosecutor free from direction and control of the President.590 When Congress acted to create an office, first called the Special Prosecutor and then the Independent Counsel, resolution of the question became necessary.

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.591 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 considerable doubt on the continuing validity of Humphrey’s Executor.

In Bowsher v. Synar,592 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 1985 “Gramm-Rudman-Hollings” Deficit Control Act593 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.”594

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.”595 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.596 This reconciliation of Myers and Humphrey’s Executor was made clear and express in Morrison v. Olson.597

That case sustained the independent counsel statute.598 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.” Because 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. The Court, however, said that 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 constitutional duty, and the functions of the officials in question must be analyzed in that light.”599

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.600

As a result of these cases, the long-running controversy with respect to the legitimacy of the independent agencies appears to have been settled,601 although it appears likely that the controversies with respect to congressional-presidential assertions of power in executive agency matters are only beginning.

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.

The Presidential Aegis: Demands for Papers

Presidents have more than once had occasion to stand in a protective relation to their subordinates, assuming their defense in litigation brought against them610 or pressing litigation in their behalf,611 refusing a congressional call for papers which might be used, in their absence from the seat of government, to their disadvantage,612 challenging the constitutional validity of legislation deemed detrimental to their interests.613 Presidents throughout our history have attempted to spread their own official immunity to their subordinates by resisting actions of the courts or of congressional committees to require subordinates to divulge communications from or to the President that Presidents choose to regard as confidential. Only recently, however, has the focus of the controversy shifted from protection of presidential or executive interests to protection of the President himself, and the locus of the dispute shifted to the courts.

Following years in which claims of executive privilege were resolved in primarily interbranch disputes on the basis of the political strengths of the parties, the issue finally became subject to judicial elaboration. The doctrine of executive privilege was at once recognized as existing and having a constitutional foundation while at the same time it was definitely bounded in its assertion by the principle of judicial review. Because of these cases, because of the intensified congressional-presidential dispute, and especially because of the introduction of the issue into an impeachment proceeding, a somewhat lengthy treatment of the doctrine is called for.

Conceptually, the doctrine of executive privilege may well reflect different considerations in different factual situations. Congress may seek information within the possession of the President, either in effectuation of its investigatory powers to oversee the conduct of officials of the Executive Branch or in effectuation of its power to impeach the President, Vice President, or civil officers of the Government. Private parties may seek information in the possession of the President either in civil litigation with the Government or in a criminal proceeding brought by government prosecutors. Generally, the categories of executive privilege have been the same whether it is Congress or a private individual seeking the information, but it is possible that the congressional assertion of need may over-balance the presidential claim to a greater degree than that of a private individual. The judicial precedents are so meager that it is not yet possible so to state, however.

The doctrine of executive privilege defines the authority of the President to withhold documents or information in his possession or in the possession of the executive branch from compulsory process of the legislative or judicial branch of the government. The Constitution does not expressly confer upon the Executive Branch any such privilege, but it has been claimed that the privilege derives from the constitutional provision of separation of powers and from a necessary and proper concept respecting the carrying out of the duties of the presidency imposed by the Constitution. Historically, assertion of the doctrine has been largely confined to the areas of foreign relations, military affairs, pending investigations, and intragovernmental discussions.614 During the Nixon Administration, the litigation involved, of course, the claim of confidentiality of conversations between the President and his aides.

Private Access to Government Information.

Private par- ties may seek to obtain information from the government either to assist in defense to criminal charges brought by the government or in civil cases to use in either a plaintiff ’s or defendant’s capacity in suits with the government or between private parties.615 In criminal cases, a defendant is guaranteed compulsory process to obtain witnesses by the Sixth Amendment and by the due process clause is guaranteed access to relevant exculpatory information in the possession of the prosecution.616 Generally speaking, when the prosecution is confronted with a judicial order to turn over to a defendant information that it does not wish to make available, the prosecution has the option of dropping the prosecution and thus avoiding disclosure.617 But that alternative may not always be available; in the Watergate prosecution, only by revoking the authority of the Special Prosecutor and bringing the cases back into the confines of the Department of Justice could this possibility have been realized.618

In civil cases the government may invoke the state secrets privilege against revealing military or other secrets. In United States v. Reynolds,619 a tort claim brought against the United States for compensation for the deaths of civilians in the crash of an Air Force plane testing secret electronics equipment, plaintiffs sought discovery of the Air Force’s investigation report on the accident, and the government resisted on a claim of privilege as to the nondisclosure of military secrets. The Court accepted the Government’s claim, holding that courts must determine whether under the circumstances the claim of privilege was appropriate without going so far as to force disclosure of the thing the privilege is designed to protect. The private litigant’s showing of necessity for the information should govern in each case how far the trial court should probe. Where the necessity is strong, the court should require a strong showing of the appropriateness of the privilege claim, but once the court is satisfied of the appropriateness the privilege must prevail no matter how compelling the need.620

Reynolds dealt with an evidentiary privilege. There are other circumstances, however, in which cases must be “dismissed on the pleadings without ever reaching the question of evidence.”621 In holding that federal courts should refuse to entertain a breach of contract action seeking enforcement of an agreement to compensate someone who performed espionage services during the Civil War, the Court in Totten v. United States declared that “public policy forbids the maintenance of any suit in a court of justice, the trial of which would inevitably lead to the disclosure of matters which the law itself regards as confidential.”622

Prosecutorial and Grand Jury Access to Presidential Documents.

Rarely will there be situations when federal prosecutors or grand juries seek information under the control of the President, since he has ultimate direction of federal prosecuting agencies, but the Watergate Special Prosecutor, being in a unique legal situation, was held able to take the President to court to enforce subpoenas for tape recordings of presidential conversations and other documents relating to the commission of criminal actions.623 While holding that the subpoenas were valid and should be obeyed, the Supreme Court recognized the constitutional status of executive privilege, insofar as the assertion of that privilege relates to presidential conversations and indirectly to other areas as well.

Presidential communications, the Court said, have “a presumptive privilege.” “The privilege is fundamental to the operation of government and inextricably rooted in the separation of powers under the Constitution.” The operation of government is furthered by the protection accorded communications between high government officials and those who advise and assist them in the performance of their duties. “A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately.” The separation of powers basis derives from the conferral upon each of the branches of the Federal Government of powers to be exercised by each of them in great measure independent of the other branches. The confidentiality of presidential conversations flows then from the effectuation of enumerated powers.624

However, the Court continued, the privilege is not absolute. The federal courts have the power to construe and delineate claims arising under express and implied powers. Deference is owed the constitutional decisions of the other branches, but it is the function of the courts to exercise the judicial power, “to say what the law is.” The Judicial Branch has the obligation to do justice in criminal prosecutions, which involves the employment of an adversary system of criminal justice in which all the probative facts, save those clearly privileged, are to be made available. Thus, although the President’s claim of privilege is entitled to deference, the courts must balance two sets of interests when the claim depends solely on a broad, undifferentiated claim of confidentiality.

“In this case we must weigh the importance of the general privilege of confidentiality of presidential communications in performance of his responsibilities against the inroads of such a privilege on the fair administration of criminal justice. The interest in preserving confidentiality is weighty indeed and entitled to great respect. However we cannot conclude that advisers will be moved to temper the candor of their remarks by the infrequent occasions of disclosure because of the possibility that such conversations will be called for in the context of a criminal prosecution.”

“On the other hand, the allowance of the privilege to withhold evidence that is demonstrably relevant in a criminal trial would cut deeply into the guarantee of due process of law and gravely impair the basic function of the courts. A President’s acknowledged need for confidentiality in the communications of his office is general in nature, whereas the constitutional need for production of relevant evidence in a criminal proceeding is specific and central to the fair adjudication of a particular criminal case in the administration of justice. . . .”

“We conclude that when the ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice.”625

Obviously, United States v. Nixon left much unresolved. It did recognize the constitutional status of executive privilege as a doctrine. It did affirm the power of the courts to resolve disputes over claims of the privilege. But it left unsettled just how much power the courts have to review claims of privilege to protect what are claimed to be military, diplomatic, or sensitive national security secrets. It did not indicate what the status of the claim of confidentiality of conversations is when it is raised in civil cases, nor did it touch upon denial of information to Congress, or public disclosure of information.

The Court’s decision in Nixon v. Administrator of General Services626 did not elucidate any of these questions to any great degree. In upholding the Presidential Recordings and Materials Preservation Act, which directed the government to take custody of former President Nixon’s records so that they could be screened, catalogued, and processed by professional archivists in GSA, the Court viewed the assertion of privilege as directed only to the facial validity of the requirement of screening by executive branch professionals, and not at all related to the possible public disclosure of some of the records. The decision did recognize “adequate justifications” for enactment of the law, and termed them cumulatively “comparable” to those held to justify in camera inspection in United States v. Nixon.627 Congress’s purposes cited by the Court included the preservation of the materials for legitimate historical and governmental purposes, the rationalization of preservation and access to public needs as well as each President’s wishes, the preservation of the materials as a source for facilitating a full airing of the events leading to the former President’s resignation for public and congressional understanding, and preservation for the light shed upon issues in civil or criminal litigation. Although interestingly instructive, the decision may be so attuned to the narrow factual circumstances that led to the Act’s passage as to leave the case of little precedential value.

Public disclosure was at issue in 2004 when the Court weighed a claim of executive privilege asserted as a bar to discovery orders for information disclosing the identities of individuals who served on an energy task force chaired by the Vice President.628 Although the case was remanded on narrow technical grounds, the Court distinguished United States v. Nixon,629 and, in instructing the appeals court on how to proceed, emphasized the importance of confidentiality for advice tendered the President.630

Congressional Access to Executive Branch Information.

Presidents and Congresses have engaged in protracted disputes over provision of information from the former to the latter, but the basic thing to know is that most congressional requests for information are complied with. The disputes, however, have been colorful and varied.631 The basic premise of the concept of executive privilege, as it is applied to resist requests for information from Congress as from private parties with or without the assistance of the courts, is found in the doctrine of separation of powers, the prerogative of each coequal branch to operate within its own sphere independent of control or direction of the other branches. In this context, the President then asserts that phase of the claim of privilege relevant to the moment, such as confidentiality of communications, protection of diplomatic and military secrets, or preservation of investigative records. Counterposed against this assertion of presidential privilege is the power of Congress to obtain information upon which to legislate, to oversee the carrying out of its legislation, to check and root out corruption and wrongdoing in the Executive Branch, involving both the legislating and appropriating function of Congress, and in the final analysis to impeach the President, the Vice President, and all civil officers of the Federal Government.

Until quite recently, all disputes between the President and Congress with regard to requests for information were settled in the political arena, with the result that few if any lasting precedents were created and only disputed claims were left to future argument. The Senate Select Committee on Presidential Campaign Activities, however, elected to seek a declaratory judgment in the courts with respect to the President’s obligations to obey its subpoenas. The Committee lost its case, but the courts based their rulings upon prudential considerations rather than upon questions of basic power, inasmuch as by the time the case was considered impeachment proceedings were pending in the House of Representatives.632 The House Judiciary Committee subpoenas were similarly rejected by the President, but instead of going to the courts for enforcement, the Committee adopted as one of its Articles of Impeachment the refusal of the President to honor its subpoenas.633 Congress has considered bills by which Congress would authorize congressional committees to go to court to enforce their subpoenas; the bills did not purport to define executive privilege, although some indicate a standard by which the federal court is to determine whether the material sought is lawfully being withheld from Congress.634 The controversy gives little indication at the present time of abating, and it may be assumed that whenever the Executive and Congress are controlled by different political parties there will be persistent conflicts. One may similarly assume that the alteration of this situation would only reduce but not remove the disagreements.

Footnotes

514
United States v. Hartwell, 73 U.S. (6 Wall.) 385, 393 (1868). [Back to text]
515
7 Ops. Atty. Gen. 168 (1855). [Back to text]
516
It was so assumed by Senator William Maclay. THE JOURNAL OF WILLIAM MACLAY 109–10 (E. Maclay ed., 1890). [Back to text]
517
26 ANNALS OF CONGRESS 694–722 (1814) (quotation appearing at 699); 4 LETTERS AND OTHER WRITINGS OF JAMES MADISON 350–353 (1865). [Back to text]
518
10 Stat. 619, 623. [Back to text]
519
7 Ops. Atty. Gen. 186, 220 (1855). [Back to text]
520
60 Stat. 999, superseded by the Foreign Service Act of 1980, Pub. L. 96–465, 94 Stat. 2071, 22 U.S.C. §§ 3901et seq. [Back to text]
521
11 T. BENTON, ABRIDGEMENT OF THE DEBATES OF CONGRESS 221 (1860). [Back to text]
522
S. Misc. Doc, 109, 50th Congress, 1st Sess. (1888), 104. [Back to text]
523
S. REP. NO. 227, 53d Congress, 2d Sess. (1894), 25. At the outset of our entrance into World War I President Wilson dispatched a mission to “Petrograd,” as it was then called, without nominating the Members of it to the Senate. It was headed by Mr. Elihu Root, with “the rank of ambassador,” while some of his associates bore “the rank of envoy extraordinary.” [Back to text]
524
See 2 G. HOAR, AUTOBIOGRAPHY OF SEVENTY YEARS 48–51 (1903). [Back to text]
525
However, “Congress’s power . . . is inevitably bounded by the express language of Article II, cl. 2, and unless the method it provides comports with the latter, the holders of those offices will not be ‘Officers of the United States.’ ” Buckley v. Valeo, 424 U.S. 1, 138–39 (1976) (quoted in Freytag v. Commissioner, 501 U.S. 868, 883 (1991)). The designation or appointment of military judges, who are “officers of the United States,” does not violate the Appointments Clause. The judges are selected by the Judge Advocate General of their respective branch of the Armed Forces. These military judges, however, were already commissioned officers who had been appointed by the President with the advice and consent of the Senate, so that their designation simply and permissibly was an assignment to them of additional duties that did not need a second formal appointment. Weiss v. United States, 510 U.S. 163 (1994). However, the appointment of civilian judges to the Coast Guard Court of Military Review was impermissible and their actions were not salvageable under the de facto officer doctrine. Ryder v. United States, 515 U.S. 177 (1995). [Back to text]
526
See Myers v. United States, 272 U.S. 52, 264–74 (1926) (Justice Brandeis dissenting). Chief Justice Taft in the opinion of the Court in Myers readily recognized the legislative power of Congress to establish offices, determine their functions and jurisdiction, fix the terms of office, and prescribe reasonable and relevant qualifications and rules of eligibility of appointees, always provided “that the qualifications do not so limit selection and so trench upon executive choice as to be in effect legislative designation.” Id. at 128–29. For reiteration of Congress’s general powers, see Buckley v. Valeo, 424 U.S. 1, 134–35 (1976); Morrison v. Olson, 487 U.S. 654, 673–77 (1988). See also United States v. Ferreira, 54 U.S. (13 How.) 40, 51 (1851). [Back to text]
527
See data in E. Corwin, supra at 363–65. Congress has repeatedly designated individuals, sometimes by name, more frequently by reference to a particular office, for the performance of specified acts or for posts of a nongovernmental character; e.g., to paint a picture (Johnathan Trumbull), to lay out a town, to act as Regents of Smithsonian Institution, to be managers of Howard Institute, to select a site for a post office or a prison, to restore the manuscript of the Declaration of Independence, to erect a monument at Yorktown, to erect a statue of Hamilton, and so on and so forth. Note, Power of Appointment to Public Office under the Federal Constitution, 42 HARV. L. REV. 426, 430–31 (1929). In his message of April 13, 1822, President Monroe stated that, “as a general principle, . . . Congress have [sic] no right under the Constitution to impose any restraint by law on the power granted to the President so as to prevent his making a free selection of proper persons for these [newly created] offices from the whole body of his fellow-citizens.” 2 J. Richardson supra at 698, 701. The statement is ambiguous, but its apparent intention is to claim for the President unrestricted power in determining who are proper persons to fill newly created offices. See the distinction drawn in Myers v. United States, 272 U.S. 52, 128–29 (1926), quoted supra. And note that in Public Citizen v. U.S. Department of Justice, 491 U.S. 440, 482–89 (1989) (concurring), Justice Kennedy suggested the President has sole and unconfined discretion in appointing). [Back to text]
528
The Sentencing Commission, upheld in Mistretta v. United States, 488 U.S. 361 (1989), numbered among its members three federal judges; the President was to select them “after considering a list of six judges recommended to the President by the Judicial Conference of the United States.” Id. at 397 (quoting 28 U.S.C. § 991(a)). The Comptroller General is nominated by the President from a list of three individuals recommended by the Speaker of the House of Representatives and the President pro tempore of the Senate. Bowsher v. Synar, 478 U.S. 714, 727 (1986) (citing 31 U.S.C. § 703(a)(2)). In Metropolitan Washington Airports Auth. v. Citizens for the Abatement of Airport Noise, 501 U.S. 252, 268–69 (1991), the Court carefully distinguished these examples from the particular situation before it that it condemned, but see id. at 288 (Justice White dissenting), and in any event it never actually passed on the list devices in Mistretta and Synar. The fault in Airports Authority was not the validity of lists generally, the Court condemning the device there as giving Congress control of the process, in violation of Buckley v. Valeo. [Back to text]
529
Buckley v. Valeo, 424 U.S. 1, 109–143 (1976). The Court took pains to observe that the clause was violated not only by the appointing process but by the confirming process, inclusion of the House of Representatives, as well. Id. at 137. See also Metropolitan Washington Airports Auth. v. Citizens for the Abatement of Aircraft Noise, 501 U.S. 252 (1991). [Back to text]
530
Concurrently, of course, although it may seem odd, the question of what is a “Court[] of Law” for purposes of the Appointments Clause is unsettled. See Freytag v. Commissioner, 501 U.S. 868 (1991) (Court divides 5-to-4 whether an Article I court is a court of law under the clause). [Back to text]
531
Freytag v. Commissioner, 501 U.S.868, 881 (1991) (quoting Buckley v. Valeo, 424 U.S. 1, 126 (1976)). [Back to text]
532
United States v. Germaine, 99 U.S. 508, 509–510 (1879) (quoted in Buckley v. Valeo, 424 U.S. 1, 125 (1976)). The constitutional definition of an “inferior” officer is wondrously imprecise. See Freytag v. Commissioner, 501 U.S. 868, 880–882 (1991); Morrison v. Olson, 487 U.S. 654, 670–73 (1988). See also United States v. Eaton, 169 U.S. 331 (1898). There is another category, of course, employees, but these are lesser functionaries subordinate to officers of the United States. Ordinarily, the term “employee” denotes one who stands in a contractual relationship to her employer, but here it signifies all subordinate officials of the Federal Government receiving their appointments at the hands of officials who are not specifically recognized by the Constitution as capable of being vested by Congress with the appointing power. Auffmordt v. Hedden, 137 U.S. 310, 327 (1890). See Go-Bart Importing Co. v. United States, 282 U.S. 344, 352–53 (1931); Burnap v. United States, 252 U.S. 512, 516–17 (1920); Germaine, 99 U.S. at 511–12. [Back to text]
533
520 U.S. 651 (1997). [Back to text]
534
520 U.S. at 661–62. [Back to text]
535
520 U.S. at 662–63. The case concerned whether the Secretary of Transportation, a presidential appointee with the advice and consent of the Senate, could appoint judges of the Coast Guard Court of Military Appeals; necessarily, the judges had to be “inferior” officers. In related cases, the Court held that designation or appointment of military judges, who are “officers of the United States,” does not violate the Appointments Clause. The judges are selected by the Judge Advocate General of their respective branch of the Armed Forces. These military judges, however, were already commissioned officers who had been appointed by the President with the advice and consent of the Senate, so that their designation simply and permissibly was an assignment to them of additional duties that did not need a second formal appointment. Weiss v. United States, 510 U.S. 163 (1994). However, the appointment of civilian judges to the Coast Guard Court of Military Review by the same method was impermissible; they had either to be appointed by an officer who could exercise appointment-clause authority or by the President, and their actions were not salvageable under the de facto officer doctrine. Ryder v. United States, 515 U.S. 177 (1995). [Back to text]
536
Freytag v. Commissioner, 501 U.S. 868, 919 (1991) (Justice Scalia concurring). [Back to text]
537
Freytag v. Commissioner, 501 U.S. 868, 884–85 (1991). [Back to text]
538
501 U.S. at 886 (citing Germaine and Burnap, the Opinion Clause (Article II, § 2), and the 25th Amendment, which, in its § 4, referred to “executive departments” in a manner that reached only cabinet-level entities). But compare id. at 915–22 (Justice Scalia concurring). [Back to text]
539
501 U.S. at 886 (emphasis added). [Back to text]
540
501 U.S. at 886–88. Compare id. at 915–19 (Justice Scalia concurring). [Back to text]
541
501 U.S. at 888–92. This holding was vigorously controverted by the other four Justices. Id. at 901–14 (Justice Scalia concurring). [Back to text]
542
501 U.S. at 918, 919 (Justice Scalia concurring). [Back to text]
543
As the text suggested, Freytag seemed to be a tentative decision, and Edmond v. United States, 520 U.S. 651 (1997), a unanimous decision written by Justice Scalia, whose concurring opinion in Freytag challenged the Court’s analysis, may easily be read as retreating considerably from it. [Back to text]
544
In re Hennen, 38 U.S. (13 Pet.) 230 (1839). The suggestion was that inferior officers are intended to be subordinate to those in whom their appointment is vested. Id. at 257–58; United States v. Germaine, 99 U.S. 508, 509 (1879). [Back to text]
545
100 U.S. 371 (1880). [Back to text]
546
Morrison v. Olson, 487 U.S. 654, 673–77 (1988). See also Young v. United States ex rel. Vuitton, 481 U.S. 787 (1987) (appointment of private attorneys to act as prosecutors for judicial contempt judgments); Freytag v. Commissioner, 501 U.S. 868, 888–92 (1991) (appointment of special judges by Chief Judge of Tax Court). [Back to text]
547
19 Stat. 143, 169 (1876). [Back to text]
548
Ex parte Curtis, 106 U.S. 371 (1882). Chief Justice Waite’s opinion extensively reviews early congressional legislation regulative of conduct in office. Id. at 372–73. [Back to text]
549
22 Stat. 403 (the Pendleton Act). On this law and subsequent enactments that created the civil service as a professional cadre of bureaucrats insulated from politics, see Developments in the Law: Public Employment, 97 HARV. L. REV. 1611, 1619–1676 (1984). [Back to text]
550
Act of Aug. 24, 1912, § 6, 37 Stat. 539, 555, codified as amended at 5 U.S.C. § 7513. The protection was circumscribed by the limited enforcement mechanisms under the Civil Service Commission, which were gradually strengthened. See Developments, supra, 97 HARV. L. REV., 1630–31. [Back to text]
551
92 Stat. 1111 (codified in scattered sections of titles 5, 10, 15, 28, 31, 38, 39, and 42 U.S.C.). For the long development, see, Developments, supra, 97 HARV. L. REV. at 1632–1650. [Back to text]
552
53 Stat. 1147, 1148 (1939), then 5 U.S.C. § 7324(a). The 1940 law, § 12(a), 54 Stat. 767–768, applied the same broad ban to employees of federally funded state and local agencies, but this provision was amended in 1974 to restrict state and local government employees in only one respect: running for public office in partisan elections. Act of Oct. 15, 1974, Pub. L. 93–443, § 401(a), 88 Stat. 1290, 5 U.S.C. § 1502. [Back to text]
553
330 U.S. 75 (1947). See also Civil Serv. Comm’n v. National Ass’n of Letter Carriers, 413 U.S. 548 (1973), in which the constitutional attack was renewed, in large part based on the Court’s expanding free speech jurisprudence, but the act was again sustained. A “little Hatch Act” of a state, applying to its employees, was sustained in Broadrick v. Oklahoma, 413 U.S. 601 (1973). [Back to text]
554
Pub. L. 103–94, § 2(a), 107 Stat. 1001 (1993), 5 U.S.C. §§ 73217326. Executive branch employees (except those appointed by the President, by and with the advice and consent of the Senate) who are listed in § 7323(b)(2), which generally include those employed by agencies involved in law enforcement or national security, remain under restrictions similar to the those in the old Hatch Act on taking an active part in political management or political campaigns. [Back to text]
555
53 Stat. 1147, 5 U.S.C. § 7311. [Back to text]
556
See Report of the Special Committee on The Federal Loyalty-Security Program, The Association of the Bar of the City of New York (New York: 1956), 60. [Back to text]
557
5 U.S.C. § 3333. The loyalty disclaimer oath was declared unconstitutional in Stewart v. Washington, 301 F. Supp. 610 (D.D.C. 1969), and the did not appeal. The strike disclaimer oath was voided in National Ass’n of Letter Carriers v. Blount, 305 F. Supp. 546 (D.D.C. 1969); after noting probable jurisdiction, 397 U.S. 1062 (1970), the Court dismissed the appeal on the government’s motion. 400 U.S. 801 (1970). The actual prohibition on strikes, however, has been sustained. United Fed’n of Postal Clerks v. Blount, 325 F. Supp. 879 (D.D.C. 1971), aff ’d per curiam, 404 U.S. 802 (1971). [Back to text]
558
E.O. 9835, 12 Fed. Reg. 1935 (1947). [Back to text]
559
E.O. 10450, 18 Fed. Reg. 2489 (1953). [Back to text]
560
See generally, Report of the Special Committee on The Federal Loyalty-Security Program, The Association of the Bar of the City of New York (New York: 1956). [Back to text]
561
Pub. L. 95–521, tits. I–III, 92 Stat. 1824–1861. The Act was originally codified in three different titles, 2, 5, and 28, corresponding to legislative, executive, and judicial branch personnel, but by Pub. L. 101–194, title II, 103 Stat. 1725 (1989), one comprehensive title, as amended, applying to all covered federal personnel was enacted. 5 U.S.C. App. §§ 101–111. [Back to text]
562
See Developments, supra, 97 HARV. L. REV. at 1660–1669. [Back to text]
563
97 Harv. L. Rev. at 1661 (citing S. REP. 170, 95th Cong., 2d sess. (1978), 21–22). [Back to text]
564
97 Harv. L. Rev. at 1664–69. The Ethics in Government Act also expanded restrictions on post-employment by imposing bans on employment, varying from a brief period to an out-and-out lifetime ban in certain cases. Id. at 1669–76. The 1989 revision enlarged and expanded on these provisions. 103 Stat. 1716–1724, amending 18 U.S.C. § 207. [Back to text]
565
92 Stat. 1864 (1978), as amended, 103 Stat. 1760 (1989), as amended, 5 U.S.C. App. § 501(b). [Back to text]
566
5 U.S.C. App. § 505(3). [Back to text]
567
United States v. NTEU, 513 U.S. 454, 477 (1995). [Back to text]
568
Shoemaker v. United States, 147 U.S. 282, 301 (1893). The Court noted that the additional duties at issue were “germane to the offices.” Id. [Back to text]
569
Marbury v. Madison, 5 U.S. (1 Cr.) 137, 155–56 (1803) (Chief Justice Marshall). Marshall’s statement that the appointment “is the act of the President,” conflicts with the more generally held and sensible view that when an appointment is made with its consent, the Senate shares the appointing power. 3 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 1525 (1833); In re Hennen, 38 U.S. (13 Pet.) 230, 259 (1839). [Back to text]
570
3 Ops. Atty. Gen. 188 (1837). [Back to text]
571
3 J. Story, supra at 1525–26; 5 WORKS OF THOMAS JEFFERSON 161–62 (P. Ford ed., 1904); 9 WRITINGS OF JAMES MADISON 111–13 (G. Hunt ed., 1910). [Back to text]
572
286 U.S. 6 (1932). [Back to text]
573
E. Corwin, supra at 77. [Back to text]
574
272 U.S. 52 (1926). [Back to text]
575
19 Stat. 78, 80. [Back to text]
576
272 U.S. at 163–64. [Back to text]
577
The reticence of the Constitution respecting removal left room for four possibilities: first, the one suggested by the common law doctrine of “estate in office,” from which the conclusion followed that the impeachment power was the only power of removal intended by the Constitution; second, that the power of removal was an incident of the power of appointment and hence belonged, at any rate in the absence of legal or other provision to the contrary, to the appointing authority; third, that Congress could, by virtue of its power “to make all laws which shall be necessary and proper,” etc., determine the location of the removal power; fourth, that the President by virtue of his “executive power” and his duty “to take Care that the Laws be faithfully executed,” possesses the power of removal over all officers of the United States except judges. In the course of the debate on the act to establish a Department of Foreign Affairs (later changed to Department of State) all of these views were put forward, with the final result that a clause was incorporated in the measure that implied, as pointed out above, that the head of the department would be removable by the President at his discretion. Contemporaneously, and indeed until after the Civil War, this action by Congress, in other words “the decision of 1789,” was interpreted as establishing “a practical construction of the Constitution” with respect to executive officers appointed without stated terms. However, in the dominant opinion of those best authorized to speak on the subject, the “correct interpretation” of the Constitution was that the power of removal was always an incident of the power of appointment, and that therefore in the case of officers appointed by the President with the advice and consent of the Senate the removal power was exercisable by the President only with the advice and consent of the Senate. For an extensive review of the issue at the time of Myers, see Corwin, The President’s Removal Power Under the Constitution, in 4 SELECTED ESSAYS ON CONSTITUTIONAL LAW [Back to text]
578
272 U.S. at 134. Note the parallelism of the arguments from separation-of-powers and the President’s ability to enforce the laws in the decision rendered on Congress’s effort to obtain a role in the actual appointment of executive officers in Buckley v. Valeo, 424 U.S. 1, 109–43 (1976), and in many of the subsequent separation-of-powers decisions. [Back to text]
579
ANNALS OF CONGRESS 611–612 (1789). [Back to text]
580
295 U.S. 602 (1935). The case is also styled Rathbun, Executor v. United States, Humphrey having, like Myers before him, died in the course of his suit for salary. Proponents of strong presidential powers long argued that Humphrey’s Executor, like A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935), both cases argued and decided contemporaneously, reflected the anti-New Deal views of a conservative Court and wrongfully departed from Myers. See Scalia, Historical Anomalies in Administrative Law, 1985 YEARBOOK OF THE SUPREME COURT HISTORICAL SOCIETY 103, 106–10. Now-Justice Scalia continues to adhere to his views and to Myers. Morrison v. Olson, 487 U.S. 654, 697, 707–11, 723–27 (1988) (dissenting). [Back to text]
581
295 U.S. at 627–29, 631–32. Justice Sutherland’s statement, quoted above, that a Federal Trade Commissioner “occupies no place in the executive department” was not necessary to the decision of the case, was altogether out of line with the same Justice’s reasoning in Springer v. Philippine Islands, 277 U.S. 189, 201–202 (1928), and seems later to have caused the author of it much perplexity. See R. CUSHMAN, THE INDEPENDENT REGULATORY COMMISSION 447–48 (1941). As Professor Cushman adds: “Every officer and agency created by Congress to carry laws into effect is an arm of Congress. . . . The term may be a synonym; it is not an argument.” Id. at 451. [Back to text]
582
357 U.S. 349 (1958). [Back to text]
583
28 U.S.C. § 516. [Back to text]
584
28 U.S.C. §§ 509, 510, 515, 533. [Back to text]
585
38 Fed. Reg. 14688 (1973). The Special Prosecutor’s status and duties were the subject of negotiation between the Administration and the Senate Judiciary Committee. Nomination of Elliot L. Richardson to be Attorney General: Hearings Before the Senate Judiciary Committee, 93d Congress, 1st Sess. (1973), 143 passim. [Back to text]
586
The formal documents effectuating the result are set out in 9 Weekly Comp. Pres. Doc. 1271–1272 (1973). [Back to text]
587
38 Fed. Reg. 29466 (1973). The Office was shortly recreated and a new Special Prosecutor appointed. 38 Fed. Reg. 30739, as amended by 38 Fed. Reg. 32805. See Nomination of William B. Saxbe to be Attorney General: Hearings Before the Senate Judiciary Committee, 93d Congress, 1st Sess. (1973). [Back to text]
588
Nader v. Bork, 366 F. Supp. 104 (D.D.C. 1973). [Back to text]
589
418 U.S. 683, 692–97 (1974). [Back to text]
590
The first question remained unstated, but the second issue was extensively debated in Special Prosecutor: Hearings Before the Senate Judiciary Committee, 93d Congress, 1st Sess. (1973); Special Prosecutor and Watergate Grand Jury Legislation: Hearings Before the House Judiciary Subcommittee on Criminal Justice, 93d Congress, 1st Sess. (1973). [Back to text]
591
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. [Back to text]
592
478 U.S. 714 (1986). [Back to text]
593
The Balanced Budget and Emergency Deficit Control Act of 1985, Pub. L. 99–177, 99 Stat. 1038. [Back to text]
594
478 U.S. at 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. at 734–36. [Back to text]
595
478 U.S. at 726. [Back to text]
596
478 U.S. at 725 n.4. [Back to text]
597
487 U.S. 654 (1988). [Back to text]
598
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, 591et seq. [Back to text]
599
487 U.S. at 689–91. [Back to text]
600
But notice the analysis followed by three Justices in Public Citizen v. Department of Justice, 491 U.S. 440, 467, 482–89 (1989) (concurring), and consider the possible meaning of the recurrence to formalist reasoning in Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, (1989). See also Justice Scalia’s use of the Take Care Clause in pronouncing limits on Congress’s constitutional power to confer citizen standing in Lujan v. Defenders of Wildlife, 505 U.S. 555, 576–78 (1992), although it is not clear that he had a majority of the Court with him. [Back to text]
601
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). [Back to text]
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]
610
E.g., 6 Ops. Atty. Gen. 220 (1853); In re Neagle, 135 U.S. 1 (1890). [Back to text]
611
United States v. Lovett, 328 U.S. 303 (1946). [Back to text]
612
E.g., 2 J. Richardson, supra at 847. [Back to text]
613
United States v. Lovett, 328 U.S. 303, 313 (1946). [Back to text]
614
For a good statement of the basis of the doctrine, the areas in which it is asserted, and historical examples, see Executive Privilege: The Withholding of Information by the Executive: Hearings Before the Senate Judiciary Subcommittee on Separation of Powers, 92d Congress, 1st Sess. (1971), 420–43, (then-Assistant Attorney General Rehnquist). Former Attorney General Rogers, in stating the position of the Eisenhower Administration, identified five categories of executive privilege: (1) military and diplomatic secrets and foreign affairs, (2) information made confidential by statute, (3) information relating to pending litigation, and investigative files and reports, (4) information relating to internal government affairs privileged from disclosure in the public interest, and (5) records incidental to the making of policy, including interdepartmental memoranda, advisory opinions, recommendations of subordinates, and informal working papers. The Power of the President To Withhold Information from the Congress, Memorandum of the Attorney General, Senate Judiciary Subcommittee on Constitutional Rights, 85th Congress, 2d Sess. (Comm. Print) (1958), reprinted as Rogers, Constitutional Law: The Papers of the Executive Branch, 44 A.B.A.J. 941 (1958). In the most expansive version of the doctrine, Attorney General Kleindienst argued that the President could assert the privilege as to any employee of the Federal Government to keep secret any information at all. Executive Privilege, Secrecy in Government, Freedom of Information: Hearings Before the Senate Government Operations Subcommittee on Intergovernmental Relations, 93d Congress, 1st Sess. (1973), I:18 passim. For a strong argument that the doctrine lacks any constitutional or other legal basis, see R. BERGER, EXECUTIVE PRIVILEGE: A CONSTITUTIONAL MYTH (1974). The book, however, precedes the Court decision in Nixon. [Back to text]
615
There are also, of course, instances of claimed access for other purposes, for which the Freedom of Information Act, 80 Stat. 383 (1966), 5 U.S.C. § 552, provides generally for public access to governmental documents. In 522(b), however, nine types of information are exempted from coverage, several of which relate to the types as to which executive privilege has been asserted, such as matter classified pursuant to executive order, interagency or intra-agency memoranda or letters, and law enforcement investigatory files. See, e.g., EPA v. Mink, 410 U.S. 73 (1973); FTC v. Grolier, Inc., 462 U.S. 19 (1983); CIA v. Sims, 471 U.S. 159 (1985); John Doe Agency v. John Doe Corp., 493 U.S. 146 (1989); Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974). [Back to text]
616
See Brady v. Maryland, 373 U.S. 83 (1963), and Rule 16, Federal Rules of Criminal Procedure. The earliest judicial dispute involving what later became known as executive privilege arose in United States v. Burr, 25 F. Cas. 30 and 187 (C.C.D. Va. 1807), in which defendant sought certain exculpatory material from President Jefferson. Dispute continues with regard to the extent of presidential compliance, but it appears that the President was in substantial compliance with outstanding orders if not in full compliance. [Back to text]
617
E.g., Alderman v. United States, 394 U.S. 165 (1968). [Back to text]
618
Thus, defendant in United States v. Ehrlichman, 376 F. Supp. 29 (D.D.C. 1974), was held entitled to access to material in the custody of the President wherein the President’s decision to dismiss the prosecution would probably have been unavailing. [Back to text]
619
345 U.S. 1 (1953). [Back to text]
620
345 U.S. at 7–8, 9–10, 11. Withholding of information relating to governmental employees’ clearances, disciplines, or discharges often raises claims of such privilege. E.g., Webster v. Doe, 486 U.S. 592 (1988); Department of the Navy v. Egan, 484 U.S. 518 (1988). After the Court approved a governmental secrecy agreement imposed on CIA employees, Snepp v. United States, 444 U.S. 507 (1980), the government expanded its secrecy program with respect to classified and “classifiable” information. When Congress sought to curb this policy, the Reagan Administration convinced a federal district judge to declare the restrictions void as invasive of the President’s constitutional power to manage the executive. National Fed’n of Fed. Employees v. United States, 688 F. Supp. 671 (D.D.C. 1988), vacated and remanded sub nom. American Foreign Service Ass’n v. Garfinkel, 490 U.S. 153 (1989). For similar assertions in the context of plaintiffs suing the government for interference with their civil and political rights during the protests against the Vietnam War, in which the plaintiffs were generally denied the information in the possession of the government under the state-secrets privilege, see Halkin v. Helms, 598 F.2d 1 (D.C. Cir. 1978); Ellsberg v. Mitchell, 709 F.2d 51 (D.C. Cir. 1983). For review and analysis, see Quint, The Separation of Powers Under Carter, 62 TEX. L. REV. 785, 875–80 (1984). [Back to text]
621
Reynolds, 345 U.S. at 11, n.26. [Back to text]
622
92 U.S. 105, 107 (1875). See also Tenet v. Doe, 544 U.S. 1, 9 (2005) (reiterating and applying Totten’s “broader holding that lawsuits premised on alleged espionage agreements are altogether forbidden”). The Court in Tenet distinguished Webster v. Doe on the basis of “an obvious difference . . . between a suit brought by an acknowledged (though covert) employee of the CIA and one filed by an alleged former spy.” Id. at 10. [Back to text]
623
United States v. Nixon, 418 U.S. 683, 692–97 (1974). [Back to text]
624
418 U.S. at 707–08. Presumably, the opinion recognizes a similar power in the federal courts to preserve the confidentiality of judicial deliberations, cf. New York Times Co. v. United States, 403 U.S. 713, 752 n.3 (1971) (Chief Justice Burger dissenting), and in each house of Congress to treat many of its papers and documents as privileged. Cf. Soucie v. David, 448 F.2d 1067, 1080, 1081–1982 (C.A.D.C. 1971) (Judge Wilkey concurring); Military Cold War Escalation and Speech Review Policies: Hearings Before the Senate Committee on Armed Services, 87th Congress, 2d Sess. (1962), 512 (Senator Stennis). See Calley v. Callaway, 519 F.2d 184 (5th Cir. 1975) (en banc), cert. denied, 425 U.S. 911 (1976); United States v. Ehrlichman, 389 F. Supp. 95 (D.D.C. 1974). [Back to text]
625
418 U.S. 683, 711–13. Essentially the same decision had been arrived at in the context of subpoenas of tapes and documentary evidence for use before a grand jury in Nixon v. Sirica, 487 F.2d 700 (D.C. Cir. 1973). [Back to text]
626
433 U.S. 425, 446–55 (1977). See id. at 504, 545 (Chief Justice Burger and Justice Rehnquist dissenting). The decision does resolve one outstanding question: assertion of the privilege is not limited to incumbent Presidents. Id. at 447–49. Subsequently, a court held that former-President Nixon had had such a property expectancy in his papers that he was entitled to compensation for their seizure under the Act. Nixon v. United States, 978 F.2d 1269 (D.C. Cir. 1992). [Back to text]
627
433 U.S. at 452. [Back to text]
628
Cheney v. United States District Court, 542 U.S. 367 (2004). [Back to text]
629
Although the information sought in Nixon was important to “the constitutional need for production of relevant evidence in a criminal proceeding,” the suit against the Vice President was civil, and withholding the information “does not hamper another branch’s ability to perform its ‘essential functions.’ ” 542 U.S. at 383, 384. [Back to text]
630
The Court recognized “the paramount necessity of protecting the Executive Branch from vexatious litigation that might distract it from the energetic performance of its constitutional duties.” 542 U.S. at 382. But cf. Clinton v. Jones, 520 U.S. 681, 702 (1997). [Back to text]
631
See the extensive discussion in Shane, Legal Disagreement and Negotiation in a Government of Laws: The Case of Executive Privilege Claims Against Congress, 71 MINN. L. REV. 461 (1987). [Back to text]
632
Senate Select Committee on Presidential Campaign Activities v. Nixon, 370 F. Supp. 521 (D.D.C.), aff’d, 498 F.2d 725 (D.C. Cir. 1974). [Back to text]
633
President Nixon’s position was set out in a June 9, 1974, letter to the Chairman of the House Judiciary Committee. 10 Wkly. Comp. Pres. Docs. 592 (1974). The impeachment article and supporting material are set out in H. REP. NO. 93–1305, 93d Cong., 2d Sess. (1974). [Back to text]
634
For consideration of various proposals by which Congress might proceed, see Hamilton & Grabow, A Legislative Proposal for Resolving Executive Privilege Disputes Precipitated by Congressional Subpoenas, 21 HARV. J. LEGIS. 145 (1984); Brand & Connelly, Constitutional Confrontations: Preserving a Prompt and Orderly Means by Which Congress May Enforce Investigative Demands Against Executive Branch Officials, 36 CATH. U. L. REV. 71 (1986); Note, The Conflict Between Executive Privilege and Congressional Oversight: The Gorsuch Controversy, 1983 DUKE L. J. 1333. [Back to text]