Appointing and Removal Power, Presidential

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APPOINTING AND REMOVAL POWER, PRESIDENTIAL

Article II, section 2, clause 2, of the Constitution provides in part that the President "shall nominate, and by and with the advice and consent of the Senate, he 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." It goes on to authorize Congress to provide for the appointment of "inferior officers" by the President, the courts, or the heads of departments. The only patent ambiguity is in the distinction between the appointment of "inferior officers" and those presidential appointments requiring advice and consent of the Senate. This problem has given little cause for concern, perhaps because Congress has erred on the side of requiring advice and consent appointments, so that even every officer in the armed forces receives such a presidential appointment.

The processes of the appointment power were canvassed by john marshall in marbury v. madison (1803), where he also addressed the question that has plagued the construction of Article II, section 2, clause 2, not the meaning of the appointment provisions but what meaning they have for the removal power. The language of the Constitution is silent about removal, except for impeachment and the life tenure it gives to judges. Marshall said:

Where an officer is removable at the will of the executive, the circumstance which completes his appointment is of no concern; because the act is at any time revocable; and the commission may be arrested, if still in the office. But when the officer is not removable at the will of the executive, the appointment is not revocable, and cannot be annulled. It has conferred legal rights which cannot be resumed.
The discretion of the executive is to be exercised until the appointment has been made. But having once made the appointment, his power over the office is terminated in all cases, where by law the officer is not removable by him. The right to the office is then in the person appointed, and he has the absolute, and unconditional power of accepting or rejecting it.
Mr. Marbury, then, since his commission was signed by the president, and sealed by the secretary of state, was appointed; and as the law creating the office, gave the officer a right to hold for five years, independent of the executive, the appointment was not revocable, but vested in the officer legal rights, which are protected by the laws of his country.

Obviously, it was to Congress that Marshall ascribed the power to determine the length of the term, and the conditions for removal, except that all officers of the United States were removable by the process of impeachment.

The question whether an appointment made by the President with the advice and consent of the Senate could be terminated by the executive without such senatorial approval was soon mooted. alexander hamilton had answered the question in the federalist #77:

It has been mentioned as one of the advantages to be expected from the cooperation of the Senate, in the business of appointments, that it would contribute to the stability of the administration. The consent of that body would be necessary to displace as well as to appoint. A change of the Chief Magistrate, therefore, would not occasion so violent or so general a revolution in the officers of the government as might be expected, if he were the sole disposer of offices. Where a man in any station had given satisfactory evidence of his fitness for it, a new President would be restrained from attempting a change in favor of a person more agreeable to him, by the apprehension that a discountenance of the Senate might frustrate the attempt, and bring some discredit upon himself. Those who can best estimate the value of a steady administration, will be most disposed to prize a provision which connects the official existence of public men with the approbation or dis-approbation of that body, which from the greater permanence of its own composition, will in all probability be less subject to inconsistency than any other member of the government.

Thus spake the founding father most given to support a strong presidency.

In the very first Congress, however, when it was concerned with the creation of the office of secretary of state, there was extensive debate about whether the removal power was inherently an executive function and therefore not to be encumbered by the necessity for senatorial approval. It was conceded that the appointment power, too, was intrinsically an executive power and, but for constitutional provision to the contrary, would have remained untrammeled by legislative authority. james madison thus construed the provision in his lengthy argument in the House of Representatives: the President did not need the acquiescence of the Senate to remove an official who had been appointed with its consent. The impasse that developed in the House was resolved not by choosing one side or the other of the controversial question but rather by omission of any provision concerning the power of removal. Madison's position at the constitutional convention of 1787 had been that the President, like the king, should have the appointment power without condition. He failed to carry the Convention on that point. He sought in the legislature to protect the President's exclusive power of removal. He failed there, too, although the point was not taken definitively against him as it had been at the Convention. But if he failed in 1789, he was nevertheless to be vindicated in myers v. united states (1926).

The issue had not remained moribund in the interim. In 1833, when andrew jackson removed two secretaries of the treasury for refusing to withdraw government deposits from the bank of the united states and put roger b. taney in their place, motions of censure were moved and passed in the Senate, supported by daniel webster, henry clay, and john c. calhoun. But Jackson had his way, as he usually did. The issue reached proportions of a constitutional crisis in 1867, when President andrew johnson was impeached, largely on the ground that he had violated the tenure of office act which forbade the removal of a cabinet officer before his successor had been nominated and approved by the Senate. Johnson escaped a guilty verdict in the Senate because the vote fell one shy of the two-thirds necessary for conviction. There were other instances in which the courts were called upon for construction of the removal power, and for the most part the decisions sided with the President, but usually by statutory rather than constitutional construction.

The controlling Supreme Court decision came in the Myers case in 1926, which arose out of the removal by the President of a local postmaster. Here Chief Justice william howard taft, after his experience as chief magistrate, was not prepared to tolerate the suggestion that a President could have foisted on his administration aides that he did not want, even if the aide were only a lowly postmaster. Perhaps Taft's first concern was that Congress would take over the execution of the laws by the creation of independent agencies over whose members the President would have no control at all if he could not exercise the power of removal. That was not the issue in Myers, but Taft wished to forestall future problems of independent agencies as well as to lay to rest the canard that the President could not remove those in the direct chain of command, such as a postmaster. He read the debates in the first Congress as establishing Madison's position rather than bypassing it. It took seventy pages of abuse of history to make Taft's point. The presidential power of removal thus became plenary. Justice oliver wendell holmes, in dissent, disposed of the Taft position in less than a page:

We have to deal with an office that owes its existence to Congress and that Congress may abolish tomorrow. Its duration and the pay attached to it while it lasts depend on Congress alone. Congress alone confers on the President the power to appoint to it and at any time may transfer that power to other hands. With such power over its own creation, I have no more trouble in believing that Congress has power to prescribe a term of life for it free from any interference than I have in accepting the undoubted power of Congress to decree its end. I have equally little trouble in accepting its power to prolong the tenure of an incumbent until Congress or the Senate shall have assented to his removal. The duty of the President to see that the laws be executed is a duty that does not go beyond the laws or require him to achieve more than Congress sees fit to leave within his power.

History, however, has been on the side of Taft and Madison rather than on that of Hamilton, Marshall, and Holmes. An exception has been carved by the Court from the President's power of removal where the incumbent is charged with duties that may be called judicial, even if mixed with legislative and executive discretion, such as those involved in humphrey ' s executor v. united states

(1935). Thus, Taft's championing of the presidential removal power has been sustained, except in the situation that bothered him most, the independent administrative agencies where legislative, executive, and judicial powers are all exercised by the incumbent.

Philip B. Kurland
(1986)