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.

The Appointments Clause delineates the method of appointment for “Officers of the United States.” Other provisions of the Constitution indicate that both judges and Executive Officers may be removed through impeachment;1 and both may also voluntarily retire from their positions.2 However, while the Constitution elsewhere provides that judicial officers maintain their office for life,3 it is silent as to the tenure for Executive Branch officers.4 Historical practice and judicial decisions acknowledge that the President is empowered to remove those officers he appoints without assent from Congress.5 Congress has, however, historically enacted legislation that shields certain Executive Branch officials from removal except for cause, although exactly which types of officials may be protected is not settled definitively. Even for those officers who may be protected from at-will removal, Congress’s ability to insulate them from presidential control is not unlimited; for instance, Congress generally may not impose two layers of removal protection on a specific office (i.e., Congress may not provide that an inferior officer may only be removed for cause if his superior officer is also protected by a for-cause removal provision).6 As explained infra, in examining statutory protections from removal for Executive Branch officers, the Court has sometimes applied a formalist approach to interpreting the Constitution, stressing the importance of the text’s division of powers among the three branches.7 At other times it has applied a more functional analysis, giving Congress more room to design agencies as long as the broad background principle of a balance of power between the branches is respected.8

Footnotes

1

See ArtII.S4.1 Overview of Impeachment Clause.

2

See Mimmack v. United States, 97 U.S. 426, 436–37 (1878).

3

U.S. Const. art. III, § 1.

4

Id. art. II, § 2, cl. 2.

5

The assent of the Senate is required when an individual’s appointment to an office serves to replace an existing principal officer. In that case, the prior officer is removed through the new appointment. Blake v. United States, 103 U.S. 227, 230, 237 (1880) ( “It results that the appointment of Gilmore, with the advice and consent of the Senate, to the office held by Blake, operated in law to supersede the latter, who thereby, in virtue of the new appointment, ceased to be an officer in the army from and after, at least, the date at which that appointment took effect . . . .’” ); Keyes v. United States, 109 U.S. 336, 339 (1883); Mullan v. United States, 140 U.S. 240, 246–247 (1891); Wallace v. United States, 257 U.S. 541, 545 (1922). This principle does not extend to Article III judges, who enjoy life tenure. See Auth. of the President to Prospectively Appoint a Sup. Ct. Justice, 46 Op. O.L.C. 1, 1–2 (2022). In addition, the lawful appointment of a new inferior officer by the proper appointing authority can serve to remove the prior inferior officer from his position. Ex parte Hennen, 38 U.S. (13 Pet.) 230, 261 (1839) ( “The power vested in the Court was a continuing power; and the mere appointment of a successor would, per se, be a removal of the prior incumbent, so far at least as his rights were concerned.” ).

6

See ArtII.S2.C2.3.15.7 Twenty-First Century Cases on Removal.

7

See, e.g., Seila Law LLC v. Consumer Fin. Prot. Bureau, No. 19-7, slip op. at 11 (U.S. June 29, 2020) ( “The entire ‘executive Power’ belongs to the President alone.” ). For more on the difference between functional and formalist approaches in separation of powers cases, see Intro.7.2 Separation of Powers Under the Constitution.

8

See, e.g., Morrison v. Olson, 487 U.S. 654, 689–90 (1988) ( “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.” ); see John F. Manning, Separation of Powers As Ordinary Interpretation, 124 Harv. L. Rev. 1939, 1952 (2011).