Power of Congress to Authorize Federal Officers or Agencies to Remove or Discipline Presidential Appointees Performing Executive Functions

Office of Legal Counsel

Power of Congress to Authorize Federal Officers or Agencies to Remove or Discipline Presidential Appointees Performing Executive Functions

Department of Justice Office of Legal Counsel·Decided May 17, 1978·Published

Opinion

May 17, 1978

78-27 MEMORANDUM OPINION FOR THE GENERAL COUNSEL, CIVIL SERVICE COMMISSION, AND THE GENERAL COUNSEL, PRESIDENT’S REORGANIZATION PROJECT

Presidential Appointees— Removal Power or Disciplinary Action— Constitutional Law (Article II, § 2, cl. 2)

This responds to your inquiry whether Congress has the constitutional power to authorize any Federal officer or agency to remove, or otherwise to discipline, Presidential appointees performing executive functions.. Pursuant to the Civil Service Commission Reform bill, S. 2640, now pending in Congress, the Merit Systems Protection Board will have no authority to take any action with respect to allegations of misconduct by such Presidential appointees. Instead, the bill instructs the Special Counsel to report the results of any investigation of noncompliance by “ Presidential appointees” directly to the President, thereby leaving to the President the discretion to take whatever action he or she deems appropriate (§§ 1206(h)(2), 1206(i)). You ask whether Congress could amend the bill to confer upon the Board the authority to take disciplinary action against such appointees.

First, we address the question o f removal. The Supreme Court held in Myers v. United States, 272 U.S. 52 (1926), that the Constitution does not grant to Congress any authority to regulate the removal o f executive officers appointed by the President. The essence o f the C ourt’s ruling is contained in the following statements:

The power of removal is incident to the power o f appointment, not to the power of advising and consenting to appointment, and when the grant o f the executive power is enforced by the express mandate to take care that the laws be faithfully executed, it emphasizes the necessity for including within the executive power as conferred the exclusive power o f removal. [Id., at 122] The condition upon which the power o f Congress to provide for the

removal o f inferior officers rests is that it shall vest the appointment in some one other than the President with the consent of the Senate. Congress may not obtain the power and provide for the removal of such officer except on that condition. If it does not choose to entrust the appointment of such inferior officers to less authority than the President with the consent of the Senate, it has no power of providing for their removal. [Id., at 162]

Accordingly, when an official performing executive functions is appointed by the President with the advice and consent of the Senate, he or she “ will be subject to removal by the President alone, and any legislation to the contrary must fall as in conflict with the C onstitution.” Id ., at 163.

The bill, however, exempts from the removal authority of the Merit Systems Protection Board all “ Presidential appointees.” Although not defined in the bill, this term includes both (1) executive officers appointed by the President with the advice and consent of the Senate, and (2) those “ inferior officers” whose appointment the Congress has vested in the President alone (Art. II, § 2, cl. 2, o f the Constitution). Although the M yers case is concerned with the first class o f executive officers, dictum suggests that Congress has no greater authority to remove officers appointed by the President alone than it would have over those subjected to the advice and consent process. 272 U .S ., at 161-62.1 We find no reasonable basis for distinguishing between the two types o f appointees.2 The second question presented is whether Congress may confer on the Board the authority to take disciplinary action against Presidential appointees. Disciplinary sanctions contemplated under the bill are: demotion, debarment from Federal em ploym ent for a stated period, suspension, reprimand, or civil

'T h e p e rtin e n t lan g u ag e a d d re ssin g th is issu e in th e Myers o p in io n is:

W h e th e r the a ctio n o f C o n g re ss in re m o v in g th e n e ce ssity fo r the a d v ice and c o n se n t o f th e S e n a te , an d p u ttin g th e p o w e r o f a p p o in tm e n t in th e P resid e n t a lo n e , w ou ld m ak e his p o w e r o f re m o v a l in su ch c a s e an y m o re su b jec t to C o n g re ssio n a l leg islatio n than before is a q u e stio n th is C o u rt d id n o t d e c id e in th e Perkins c a s e [ United States v. Perkins, 116 U .S . 4 8 3 ]. U n d e r th e re a so n in g u p o n w h ic h the le g islativ e d e c isio n o f 1789 w as p u t, it m ig h t b e d iffic u lt to a v o id a n e g ativ e a n sw e r, b u t it is not b e fo re us and we d o not d ecid e it.

2T h e re is a n o th e r issu e th a t a ris e s w h e n e v e r th e Myers a n a ly sis is e x a m in e d . It re la te s to th e th ird m e th o d o u tlin e d in A rt. II, § 2 , c l. 2 , fo r a p p o in tin g in fe rio r o ffic e rs; th a t c la u se p ro v id e s that “ in fe rio r o ffic e rs ” m a y , if C o n g re ss d e sire s , b e a p p o in te d by the h e ad s o f d e p a rtm e n ts. T h e q u e s tio n is w h e th e r, an d to w h a t e x te n t, th e re m o v a l o f th o se o ffic e rs m a y be re stric te d . T h e C o u rt in Myers m a d e c le a r th at C o n g re ss “ m a y p re sc rib e in c id e n tal re g u la tio n s c o n tro llin g a n d re stric tin g . . . the e x e rc ise o f th e p o w e r o f re m o v a l” o f in fe rio r o ffic e rs w h o p e rfo rm e x e c u tiv e fu n c tio n s and w ho h ave b een a p p o in te d b y h e ad s o f d e p a rtm e n ts. T h e C o u rt in Myers a lso said that C o n g re ss c o u ld not “ d ra w to its e lf o r to e ith e r b ra n c h o f it, th e p o w e r to re m o v e o r the rig h t to p a rtic ip a te in the e x e rc ise o f th a t p o w e r .” Id., at 161. T h e q u e stio n m ig h t be ra ised if by a ssig n in g re m o v a l a u thority to the M erit S y ste m s P ro te c tio n B o ard — an in d e p e n d en t a g e n c y v ested w ith q u a si-ju d ic ial p o w e r— C o n g re ss has in so m e fa sh io n “ d ra w n to its e lf " th e p o w e r o f re m o v a l. T h e sh o rt a n sw e r lies in th e C o u rt’s a n a ly sis in Weiner v. United States, 357 U .S. 3 4 9 , 3 5 5 -5 6 (1 9 5 8 ), in w hich the C o u rt m a d e c le a r th at in d e p e n d en t re g u la to ry c o m m is sio n s are to be in d e p e n d en t not o n ly from the E x e c u tiv e b u t fro m C o n g re ss. U n d e r th e c irc u m s ta n c e s, w e h av e little d o u b t a b o u t the p ro p riety o f the B o ard ta k in g d is c ip lin a ry a c tio n , in c lu d in g re m o v a l, w ith re sp e c t to su ch in fe rio r o ffice rs.

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May 17, 1978

78-27 MEMORANDUM OPINION FOR THE GENERAL COUNSEL, CIVIL SERVICE COMMISSION, AND THE GENERAL COUNSEL, PRESIDENT’S REORGANIZATION PROJECT

Presidential Appointees— Removal Power or Disciplinary Action— Constitutional Law (Article II, § 2, cl. 2)

This responds to your inquiry whether Congress has the constitutional power to authorize any Federal officer or agency to remove, or otherwise to discipline, Presidential appointees performing executive functions.. Pursuant to the Civil Service Commission Reform bill, S. 2640, now pending in Congress, the Merit Systems Protection Board will have no authority to take any action with respect to allegations of misconduct by such Presidential appointees. Instead, the bill instructs the Special Counsel to report the results of any investigation of noncompliance by “ Presidential appointees” directly to the President, thereby leaving to the President the discretion to take whatever action he or she deems appropriate (§§ 1206(h)(2), 1206(i)). You ask whether Congress could amend the bill to confer upon the Board the authority to take disciplinary action against such appointees.

First, we address the question o f removal. The Supreme Court held in Myers v. United States, 272 U.S. 52 (1926), that the Constitution does not grant to Congress any authority to regulate the removal o f executive officers appointed by the President. The essence o f the C ourt’s ruling is contained in the following statements:

The power of removal is incident to the power o f appointment, not to the power of advising and consenting to appointment, and when the grant o f the executive power is enforced by the express mandate to take care that the laws be faithfully executed, it emphasizes the necessity for including within the executive power as conferred the exclusive power o f removal. [Id., at 122] The condition upon which the power o f Congress to provide for the

removal o f inferior officers rests is that it shall vest the appointment in some one other than the President with the consent of the Senate. Congress may not obtain the power and provide for the removal of such officer except on that condition. If it does not choose to entrust the appointment of such inferior officers to less authority than the President with the consent of the Senate, it has no power of providing for their removal. [Id., at 162]

Accordingly, when an official performing executive functions is appointed by the President with the advice and consent of the Senate, he or she “ will be subject to removal by the President alone, and any legislation to the contrary must fall as in conflict with the C onstitution.” Id ., at 163.

The bill, however, exempts from the removal authority of the Merit Systems Protection Board all “ Presidential appointees.” Although not defined in the bill, this term includes both (1) executive officers appointed by the President with the advice and consent of the Senate, and (2) those “ inferior officers” whose appointment the Congress has vested in the President alone (Art. II, § 2, cl. 2, o f the Constitution). Although the M yers case is concerned with the first class o f executive officers, dictum suggests that Congress has no greater authority to remove officers appointed by the President alone than it would have over those subjected to the advice and consent process. 272 U .S ., at 161-62.1 We find no reasonable basis for distinguishing between the two types o f appointees.2 The second question presented is whether Congress may confer on the Board the authority to take disciplinary action against Presidential appointees. Disciplinary sanctions contemplated under the bill are: demotion, debarment from Federal em ploym ent for a stated period, suspension, reprimand, or civil

'T h e p e rtin e n t lan g u ag e a d d re ssin g th is issu e in th e Myers o p in io n is:

W h e th e r the a ctio n o f C o n g re ss in re m o v in g th e n e ce ssity fo r the a d v ice and c o n se n t o f th e S e n a te , an d p u ttin g th e p o w e r o f a p p o in tm e n t in th e P resid e n t a lo n e , w ou ld m ak e his p o w e r o f re m o v a l in su ch c a s e an y m o re su b jec t to C o n g re ssio n a l leg islatio n than before is a q u e stio n th is C o u rt d id n o t d e c id e in th e Perkins c a s e [ United States v. Perkins, 116 U .S . 4 8 3 ]. U n d e r th e re a so n in g u p o n w h ic h the le g islativ e d e c isio n o f 1789 w as p u t, it m ig h t b e d iffic u lt to a v o id a n e g ativ e a n sw e r, b u t it is not b e fo re us and we d o not d ecid e it.

2T h e re is a n o th e r issu e th a t a ris e s w h e n e v e r th e Myers a n a ly sis is e x a m in e d . It re la te s to th e th ird m e th o d o u tlin e d in A rt. II, § 2 , c l. 2 , fo r a p p o in tin g in fe rio r o ffic e rs; th a t c la u se p ro v id e s that “ in fe rio r o ffic e rs ” m a y , if C o n g re ss d e sire s , b e a p p o in te d by the h e ad s o f d e p a rtm e n ts. T h e q u e s tio n is w h e th e r, an d to w h a t e x te n t, th e re m o v a l o f th o se o ffic e rs m a y be re stric te d . T h e C o u rt in Myers m a d e c le a r th at C o n g re ss “ m a y p re sc rib e in c id e n tal re g u la tio n s c o n tro llin g a n d re stric tin g . . . the e x e rc ise o f th e p o w e r o f re m o v a l” o f in fe rio r o ffic e rs w h o p e rfo rm e x e c u tiv e fu n c tio n s and w ho h ave b een a p p o in te d b y h e ad s o f d e p a rtm e n ts. T h e C o u rt in Myers a lso said that C o n g re ss c o u ld not “ d ra w to its e lf o r to e ith e r b ra n c h o f it, th e p o w e r to re m o v e o r the rig h t to p a rtic ip a te in the e x e rc ise o f th a t p o w e r .” Id., at 161. T h e q u e stio n m ig h t be ra ised if by a ssig n in g re m o v a l a u thority to the M erit S y ste m s P ro te c tio n B o ard — an in d e p e n d en t a g e n c y v ested w ith q u a si-ju d ic ial p o w e r— C o n g re ss has in so m e fa sh io n “ d ra w n to its e lf " th e p o w e r o f re m o v a l. T h e sh o rt a n sw e r lies in th e C o u rt’s a n a ly sis in Weiner v. United States, 357 U .S. 3 4 9 , 3 5 5 -5 6 (1 9 5 8 ), in w hich the C o u rt m a d e c le a r th at in d e p e n d en t re g u la to ry c o m m is sio n s are to be in d e p e n d en t not o n ly from the E x e c u tiv e b u t fro m C o n g re ss. U n d e r th e c irc u m s ta n c e s, w e h av e little d o u b t a b o u t the p ro p riety o f the B o ard ta k in g d is c ip lin a ry a c tio n , in c lu d in g re m o v a l, w ith re sp e c t to su ch in fe rio r o ffice rs.

penalty. § 1207(a). We are aware o f no precedents controlling this question, but we believe that Congress does have, and must have, some authority to prescribe sanctions against executive branch officials who act in violation of existing law. The more difficult issue is whether the imposition of those sanctions can be assigned to a body over which the President has limited control. Insofar as Presidential appointees are concerned, we doubt that Congress may take from the President the ultimate authority to act in that manner. This would surely disrupt the appointee’s ability to carry out the instructions of the President. The power to dem ote, suspend, or debar a Presidential appointee from Federal employment carries with it the power to supervise the appointee’s actions; more importantly, to take this power away from the President would interfere with the President’s duty faithfully to execute the laws. The conclusion is perhaps more doubtful with respect to lesser actions such as reprimand and civil penalties, but here again it is quite likely that disruptions would result. For a Presidential appointee to set aside the time to prepare for a hearing and to follow through with the administrative process contemplated by the bill might be a substantial interference with the President’s necessary direction and control o f such officials. It would also cloud the line o f authority between the President and his subordinates.

The M yers holding proceeded from the view that the power to remove is implicit in the power to appoint and must necessarily be retained by the President if he is to fulfill his constitutional obligation faithfully to execute the laws. A different conclusion cannot be drawn with respect to the imposition of what might be seen as less drastic sanctions.

Larry A. H am m ond

Deputy Assistant Attorney General Office o f Legal Counsel

Power of Congress to Authorize Federal Officers or Agencies to Remove or Discipline Presidential Appointees Performing Executive Functions, (olc 1978).

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