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.

While Congress enjoys a certain amount of discretion when designing federal agencies, the Supreme Court has regularly invalidated congressional attempts to “aggrandiz[e] its own power at the expense of another branch.” 1

, 116 Stat. 81; INS v. Chadha, 462 U.S. 919, 951 (1983); Bowsher v. Synar, 478 U.S. 714, 735–36 (1986). For instance, while Congress may undoubtedly establish a wide variety of federal offices to carry out statutory duties, it may not appoint its own Members to carry out executive functions or reserve for itself the power of appointment.2 In the 1991 case of Metropolitan Washington Airports Authority v. Citizens for the Abatement of Aircraft Noise, the Supreme Court examined the constitutionality of legislation that authorized a review board composed of Members of Congress to review and reverse decisions of the Metropolitan Washington Airports Authority (MWAA).3 The MWAA is a regional body established to oversee the management and operations of Ronald Reagan Washington National Airport and Dulles International Airport.

The Court first ruled that Members of Congress on the Board exercised federal authority, even though the law specified that they would serve “in their individual capacities” 4 as opposed to serving in their official role as legislators.5 In support of this conclusion, the Court noted that control over the airports in question was originally placed with the federal government and was transferred to the MWAA on condition that the States create the Board; the federal government has a significant interest in the operation of airports, which are crucial to government operations; and membership on the Board was limited to federal officials.6

Moreover, Congress exercised significant power over the appointment and removal of the Board members. The law required that the Board consist of nine members of Congress, eight of whom had to sit on specific congressional committees, chosen from a list provided by congressional leadership.7 There was no requirement that the lists contain more recommendations than openings on the Board.8 The Court concluded that this structure ensured congressional control of appointments.9 Further, by controlling committee assignments, Congress had removal power over the Board “because depriving a Board member of membership in the relevant committees deprives the member of authority to sit on the Board.” 10

The Court ruled that the statute’s provision requiring Members of Congress to sit on the Board violated the separation of powers.11 The Court did not expressly decide whether the Board’s power was executive or legislative in nature, but reasoned that, no matter how it was characterized, the statute’s grant of authority to the Board was not constitutional.12 If the Board’s power was executive in nature, the Court explained, the Constitution barred an agent of Congress from exercising it; and if the Board’s power was legislative, then the Board could not operate without following the constitutional requirements of bicameralism and presentment for legislative action.13

Congress’s control over appointments is further limited on the question of who can remove an incumbent officer.14 In the 1986 case of Bowsher v. Synar, the Supreme Court invalidated a statute that gave an official controlled by Congress the power to order a decrease in federal spending.15 A 1985 act16 gave the Comptroller General authority, in the event of a budget shortfall, to issue a report detailing federal revenue and expenditure estimates, along with the specific reductions needed to cut the deficit to meet a statutory target.17 The President was then required to order the “sequestration” of those funds pursuant to the Comptroller General’s report.18 The Court held that the Comptroller’s power to trigger sequestration violated the separation of powers because a preexisting provision authorized Congress to remove the Comptroller General, who Congress viewed as an officer of the legislature,19 through a joint resolution.20 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.” 21 The Court rejected the argument that the Comptroller Generalwas sufficiently independent from Congress such that there was no constitutional violation. The power of removal, for the Court, is a crucial tool of control; Congress’s ability to remove the Comptroller General “dictate[s] that he will be subservient to Congress.” 22 As a remedy for this constitutional defect, the Court left Congress’s removal power in place, but invalidated the executive functions given to the Comptroller General.23

Just as Congress may not appoint Members to wield executive power or exercise direct control over Executive Branch officers, its authority to impose procedural restrictions on the President’s nomination of an officer may also be limited. This issue arose in the 1989 Supreme Court case of Public Citizen v. Department of Justice, which examined whether the Federal Advisory Committee Act (FACA) applied to consultations between the Department of Justice (DOJ) and the American Bar Association’s Standing Committee on Federal Judiciary (ABA Committee).24 The FACA required committees that advise the President, or other officers and agencies in the federal government, to follow a number of procedural requirements, such as filing a charter; keeping detailed minutes of meetings; and having meetings chaired by a federal government employee or officer authorized to adjourn any meeting.25 The Court considered whether the Act covered consultations between DOJ and the ABA Committee regarding presidential nominations of federal judges. It noted that a strictly literal interpretation of the statute would conceivably reach every instance in which the President or an agency sought advice from “any group of two or more persons, or at least any formal organization,” including private entities.26 The Court concluded that Congress did not intend that result, as it would mean the procedural requirements of FACA applied every time the President sought the views of a group of two or more people, “or at least any formal organization.” 27

Accordingly, the Court examined Congress’s intention in passing the FACA, including that Act’s legislative history as well as the history of other efforts “to regulate the Federal Government’s use of advisory committees.” 28 The Court reasoned that it ultimately was a “close question whether FACA should be construed to apply to the ABA Committee,” but constitutional considerations “tip[ped] the balance decisively against FACA’s application.” 29 The Court invoked the concept of constitutional avoidance, which essentially teaches that when faced with statutory ambiguity, if one interpretation of a statute would raise constitutional problems, but another, fairly possible interpretation does not, courts should adopt the latter construction.30 The Court concluded that applying FACA to DOJ’s consultations with the ABA Committee “would present formidable constitutional difficulties,” namely, potentially infringing on the President’s constitutional duty under Article II to nominate federal judges.31 The Court accordingly concluded that FACA did not apply to DOJ’s confidential consultations with the ABA Committee.32

Footnotes

1

Ryder v. United States, 515 U.S. 177, 182 (1995); Buckley v. Valeo, 424 U.S. 1, 122 (1976) (per curiam), superseded by statute, Bipartisan Campaign Reform Act of 2002, Pub. L. No.

107-155

, 116 Stat. 81; INS v. Chadha, 462 U.S. 919, 951 (1983); Bowsher v. Synar, 478 U.S. 714, 735–36 (1986).

2

In Buckley v. Valeo, discussed in more detail at ArtII.S2.C2.3.10 Officer and Non-Officer Appointments, the Court ruled that statutory provisions authorizing members of Congress to appoint Commissioners to the Federal Elections Commission were unconstitutional. 424 U.S. at 143 (per curiam).

3

501 U.S. 252, 255–61 (1991). See Metropolitan Washington Airports Act of 1986, Pub. L. No. 99-591, 100 Stat. 3341. The legislation authorized the transfer of Dulles International Airport and Washington National Airport from federal control to the MWAA conditioned on the creation of a Board of Review created by the MWAA. Wash. Airports, 501 U.S. at 255–61. Virginia and the District of Columbia passed legislation authorizing the MWAA to create the Review Board. Id. at 261.

4

Metropolitan Washington Airports Act of 1986, Pub. L. No. 99-500, 100 Stat. 3341, § 6007(f)(1).

5

Wash. Airports, 501 U.S. at 265–71.

6

Id. at 266–69.

7

One member was “chosen alternately . . . from a list provided by the Speaker of the House or the President pro tempore of the Senate, respectively.” Id. at 268.

8

Id.

9

Id. at 268–69.

10

Id. at 268–70.

11

Id. at 274–76.

12

Id. at 275–76.

13

Id.

14

Springer v. Gov’t of Philippine Islands, 277 U.S. 189, 202 (1928) ( “Legislative power, as distinguished from executive power, is the authority to make laws, but not to enforce them or appoint the agents charged with the duty of such enforcement. The latter are executive functions.” ).

15

478 U.S. 714, 735–36 (1986). For more on the Court’s decision in Bowsher v. Synar, see ArtII.S2.C2.3.15.6 Later Twentieth Century Cases on Removal.

16

Balanced Budget and Emergency Deficit Control Act of 1985, Pub. L. 99-177, 99 Stat. 1038.

17

Bowsher, 478 U.S. at 718, 732.

18

Id. at 718.

19

Id. at 731.

20

Id. at 736.

21

Id. at 722.

22

Id. at 730.

23

Id. at 734–36.

24

491 U.S. 440, 443 (1989).

25

See 5 U.S.C. App. § 1, § 3(2) ( “The term “advisory committee” means any committee, board, commission, council, conference, panel, task force, or other similar group, or any subcommittee or other subgroup thereof (hereafter in this paragraph referred to as “committee” ), which is—(A) established by statute or reorganization plan, or (B) established or utilized by the President, or (C) established or utilized by one or more agencies, in the interest of obtaining advice or recommendations for the President or one or more agencies or officers of the Federal Government.” ).

26

Pub. Citizen, 491 U.S. at 452, 455–64.

27

Id. at 452–53.

28

Id. at 452–64.

29

Id. at 465.

30

Id. at 465–66 (citing Crowell v. Benson, 285 U.S. 22, 62 (1932)).

31

Id. at 466–67.

32

Id. at 467; id. at 467–88 (1989) (Kennedy, J., concurring) (concluding that the statute did apply to the ABA’s consultations with DOJ but that this was an unconstitutional interference with the President’s power to nominate judges).