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

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
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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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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
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