Later Twentieth Century Cases on Removal

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Article II, Section 2, Clause 2:

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

Although the number of cases squarely presenting the validity of for-cause removal protections is limited, the Court applied a functional analysis similar to Humphrey’s Executor in a number of twentieth-century cases that affirmed the constitutionality of statutory independence from the President for certain Executive Branch officers.1 For instance, in the 1958 case of Wiener v. United States,2 the Court ruled that even in the absence of an express statutory restriction on removal, the President acted illegally by removing a member of the War Claims Commission on the grounds that the President simply wanted a member of his own choosing.3 The Court read Humphrey’s Executor as limiting the scope of Myers to “purely executive officers” and approving for-cause protections for “quasi-judicial” officers.4 Examining the scope of the President’s power to remove members of the Commission, the Court focused on the “nature of the function[s] Congress vested” in the Commission and concluded that its purpose was judicial—adjudicating claims free from presidential or congressional influence.5 Even though the statute was silent as to removal, the Court reasoned that because, “as one must take for granted,” the President was precluded from influencing the Commission with regard to adjudicating claims, Congress must not have intended “to have hang over the Commission the Damocles’ sword of removal” at will.6 The Court thus concluded that, due to its judicial character, the President lacked an inherent power of removal at will over the Commission.

The Court also took a functional approach in upholding the constitutionality of a statute insulating a federal prosecutor from executive control. Following the scandal of Watergate and resignation of President Richard Nixon, Congress passed the Ethics of Government Act of 1978.7 Title VI of that Act, the independent counsel statute, established a statutory mechanism for the appointment of a prosecutor by a Special Division of the U.S. Court of Appeals for the D.C. Circuit vested with a measure of independence from the Executive Branch.8 The Special Division enjoyed authority to appoint and define the jurisdiction of the prosecutor, who could only be removed “by the personal action of the Attorney General and only for good cause, physical or mental disability . . . , or any other condition that substantially impairs the performance of such independent counsel’s duties.” 9

In the 1988 case of Morrison v. Olson, the Supreme Court upheld the independent counsel statute against a constitutional challenge.10 Writing for the Court, Chief Justice William Rehnquist concluded that the independent counsel was an inferior, rather than a principal, officer, whose appointment was not required to be made by the President subject to Senate confirmation.11

The Court also held that the Independent Counsel Act’s provision limiting the authority of the Attorney General to remove the independent counsel for good cause did not impermissibly intrude on the President’s power under Article II.12 The Court rejected a formalist rule that would bar statutory for-cause removal protections for any individual tasked with “purely executive” functions; instead, it applied a functional test and asked whether Congress has “interfere[d] with the President’s” executive power and his “duty to ‘take care that the laws be faithfully executed.’” 13 The Court recognized that the independent counsel exercised “law enforcement functions that typically have been undertaken by officials within the Executive Branch,” 14 but noted that the position nevertheless has a “limited jurisdiction and tenure and lack[ed] policymaking or significant administrative authority.” 15 The Court reasoned that it did “not see how the President’s need to control” the independent counsel’s discretion “is so central to the functioning of the Executive Branch” as to demand a constitutional rule mandating removal at will.16 The Court also concluded that the removal provision did not “impermissibly burden[ ]” the President’s ability to control the independent counsel because the position could still be eliminated for cause.17

In addition, the Court concluded that the statute did not violate the separation of powers by undermining the Executive Branch’s powers or prohibiting that branch from carrying out its constitutional duties.18 The majority opinion reasoned that the statute ultimately gave “the Executive Branch sufficient control over the independent counsel to ensure that the President is able to perform his constitutionally assigned duties.” 19 This control, the Court concluded, arose from the ability of the Attorney General to remove the independent counsel for good cause.20

While the Court’s functional analyses in Humphrey’s Executor, Wiener, and Morrison effectively allow removal protections for a range of federal entities, Congress’s power to create agencies independent from executive control is far from absolute. For instance, in the 1986 case of Bowsher v. Synar, the Supreme Court applied a much more formalist approach to a separation of powers dispute and invalidated a statute that gave an official controlled by Congress power to order decreases in federal spending.21 The Balanced Budget and Emergency Deficit Control Act of 198522 gave the Comptroller General authority, in the event of a budget shortfall, to issue a report detailing federal revenue and expenditure estimates and the specific reductions needed to reduce the deficit to a statutory target.23 The President was then required to order the “sequestration” of those funds pursuant to the Comptroller General’s report.24

The Court held that vesting the Comptroller General with these authorities violated the separation of powers in light of Congress’s removal authority; a prior law had authorized Congress to remove the Comptroller General through a joint resolution.25 The High Court explained that the Constitution’s division of power among the three branches of government barred “an active role for Congress in the supervision of officers charged with the execution of the laws it enacts.” 26 The Constitution explicitly provides no role for Congress in the removal of officers beyond impeachment.27 Allowing Congress to exercise removal power over an officer engaged in executive functions “would, in practical terms, reserve in Congress control over the execution of the laws.” 28 Just as Congress may not itself execute the law, the Court said that it may not indirectly do so by “grant[ing] to an officer under its control what it does not possess.” 29 The Court reasoned that the Comptroller General’s duties under the statute amounted to “execution of the law” because he was charged with interpreting statutory provisions and exercising independent judgment in preparing budget estimates and reductions. Additionally, the Comptroller General had “the ultimate authority to determine the budget cuts to be made,” given that the President was required to carry out the Comptroller General’s report through a sequestration order.30 The Court concluded that by entrusting an officer “subject to removal only by itself” with execution of the law, “Congress in effect has retained control over the execution of the Act and has intruded into the executive function.” 31

1: See, e.g., Morrison v. Olson, 487 U.S. 654, 659–60 (1988).
2: The case presented another suit for backpay premised on an allegedly illegal removal.
3: 357 U.S. 349 (1958).
4: Id. at 352 (quoting Humphrey’s Ex’r v. United States, 295 U.S. 602, 628 (1935).
5: Id. at 353–56.
6: Id. at 356.
7: See Ethics in Government Act of 1978, Pub. L. No. 95-521, 92 Stat. 1824.
8: Id. §§ 601–04, 92 Stat. at 1867–75 (codified at 28 U.S.C. §§ 591–99). The independent counsel provisions have since expired. 28 U.S.C. § 599. The statute required the Attorney General to apply in certain circumstances to a Special Division of the U.S. Court of Appeals for the D.C. Circuit for the appointment of an independent prosecutor. Id. § 593(a).
9: Id. § 596(a)(1).
10: 487 U.S. 654, 659–60 (1988). This issue was foreshadowed in the experiences of the special prosecutor charged with investigating events connected to the break-in at the Watergate Hotel and Office Building. See ArtII.S4.4.7 President Richard Nixon and Impeachable Offenses.
11: Morrison, 487 U.S. at 671. The Court concluded that the independent counsel was an inferior officer because the independent counsel (1) was removable by the Attorney General for cause; (2) had a limited scope of duties; (3) possessed limited jurisdiction; and (4) was limited in tenure. Id. at 671–72. For more on the distinction between principal and inferior officers, see ArtII.S2.C2.3.11.3 Modern Doctrine on Principal and Inferior Officers.
12: Morrison, 487 U.S. at 686–93.
13: Id. at 690 (quoting U.S. Const. art. II, § 3, cl. 5).
14: Id. at 691.
15: Id.
16: Id. at 691–92.
17: Id. at 692–93.
18: Id. at 695.
19: Id. at 693–96.
20: Id. at 695–96; cf. Id. at 706 (Scalia, J., dissenting) (characterizing the Court’s assertion as “somewhat like referring to shackles as an effective means of locomotion” ).
21: 478 U.S. 714, 735–36 (1986). See ArtII.S2.C2.3.6 Creation of Federal Offices to ArtII.S2.C2.3.9 Restrictions on Congress’s Authority.
22: Balanced Budget and Emergency Deficit Control Act of 1985, Pub. L. No. 99-177, 99 Stat. 1038 (codified at 2 U.S.C. § 901 et seq.).
23: Bowsher, 478 U.S. at 718, 732.
24: Id. at 718.
25: Id. at 736.
26: Id. at 722.
27: Id.
28: Id. at 726. Cf. Id. at 740 (Stevens, J., concurring in the judgment) ( “The fact that Congress retained for itself the power to remove the Comptroller General thus is not necessarily an adequate reason for concluding that his role in the Gramm-Rudman-Hollings budget reduction process is unconstitutional. It is, however, a fact that lends support to my ultimate conclusion that, in exercising his functions under this Act, he serves as an agent of the Congress.” ); Id. at 765 (White, J., dissenting) ( “I cannot accept, however, that the exercise of authority by an officer removable for cause by a joint resolution of Congress is analogous to the impermissible execution of the law by Congress itself, nor would I hold that the congressional role in the removal process renders the Comptroller an ‘agent’ of the Congress, incapable of receiving ‘executive’ power.” ).
29: Id. at 726.
30: Id. at 732–33.
31: Id. at 734.