How does this issue stand today? The answer to this question, so far as there is one, is to be sought in a comparison of the Court’s decision in Myers, on the one hand, and its decision in Morrison, on the other.738 The first decision is still valid to support the President’s right to remove, and hence to control the decisions of, all officials through whom he exercises the great political powers which he derives from the Constitution, and also to remove many but not all officials—usually heads of departments— through whom he exercises powers conferred upon him by statute. Morrison, however, recasts Myers to be about the constitutional inability of Congress to participate in removal decisions. It permits Congress to limit the removal power of the President, and those acting for him, by imposition of a “good cause” standard, subject to a balancing test. That is, the Court now regards the critical issue not as what officials do, whether they perform “purely executive” functions or “quasi” legislative or judicial functions, though the duties and functions must be considered. Rather, the Courts must “ensure that Congress does not interfere with the President’s exercise of the ‘executive power’ ” and his constitutionally appointed duty under Article II to take care that the laws be faithfully executed.739 Thus, the Court continued, Myers was correct in its holding and in its suggestion that there are some executive officials who must be removable by the President if he is to perform his duties.740 On the other hand, Congress may believe that it is necessary to protect the tenure of some officials, and if it has good reasons not limited to invasion of presidential prerogatives, it will be sustained, provided the removal restrictions are not of such a nature as to impede the President’s ability to perform his constitutional duties.741 The officer in Morrison, the independent counsel, had investigative and prosecutorial functions, purely executive ones, but there were good reasons for Congress to secure her tenure and no showing that the restriction “unduly trammels” presidential powers.742
The “bright-line” rule previously observed no longer holds. Now, Congress has a great deal more leeway in regulating executive officials, but it must articulate its reasons carefully and observe the fuzzy lines set by the Court.