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May 1, 2018

Lesson 10: Can Appointees Be Removed from Office by the President?

Americans unacquainted with the Constitution may be surprised to learn that Article I, by far the longest part of the original document, is about Congress. The president is not treated until Article II. Its first words are stark: “The executive Power shall be vested in a President of the United States of America.”

There is an obvious contrast here with Article I, in which “all legislative Powers herein granted shall be vested in a Congress of the United States,” and Article III, which vests “the judicial power of the United States . . . in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. Legislative power belongs to a large number of people and judicial power to a smaller number, but the executive power is granted to just one person.

Executive power includes some specific items: the power to pardon (unlimited, like that of the English monarch), to make treaties (but only with the approval of two-thirds of the Senate), to nominate (with majority Senate approval) ambassadors, Supreme Court justices and administrative officers (except the framers allowed for appointment of subordinate officials by other means, anticipating a larger bureaucracy than one person could staff). The president is declared the Commander in Chief of the Army and Navy and of state militias when called into federal service.

The chief description of the president’s executive power comes in a phrase toward the end of Section 3 of Article I: “he shall take Care that the Laws be faithfully executed.” This springs directly from English experience: in 1688 King James II was ousted from the throne for suspending laws, that is, systematically refusing to enforce them. However great the president’s powers as Commander in Chief, his exercise of those powers was largely restricted to carrying out laws made by Congress and approved by a president or passed, with two-thirds votes in both houses, over his veto.

The Constitution thus creates a unitary executive, subject to restrictions, but supreme within the executive branch. It creates the office of vice president but assigns him, in Article I, the power of presiding over the Senate, and, in Article II, the duty of replacing the president in case of vacancy. Every one of the president’s appointees holds power not by warrant of the Constitution, but by appointment of the president, with congressional approval as specified in the Constitution or congressional enactments.

Can every appointee be removed from office by the president? The Constitution does not say so explicitly, but the answer is generally yes, as FBI Director James Comey readily conceded when he was fired by President Trump in May 2017 despite a provision passed by Congress stating that FBI directors would serve for a term of ten years.

In Myers v. United States (1926) the Supreme Court ruled that any presidential appointee could be fired without congressional approval, but in Humphrey’s Executor v. U.S. (1933) the Supreme Court ruled that appointees to quasi-judicial commissions with limited terms, like the Federal Trade Commission, could not be. In Morrison v. Olson (1988), the Court by an 8-1 upheld the constitutionality of the 1978 independent counsel act, which prohibited the president from firing counsels appointed under its procedures. But the stinging dissent by Justice Antonin Scalia has been widely acclaimed as persuasive and many legal scholars wonder whether the case is good law. It has been a moot question since Congress in 1999 allowed the independent counsel law to expire without any serious move for reauthorization.

The Constitution’s one clear check on the president’s executive power is impeachment by a majority of the House and conviction by two-thirds of the Senate.

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May 1, 2018