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Appointment and removal power

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Significance: The U.S. Constitution's provisions regarding the appointment and removal of Supreme Court justices influences the composition of the Court and affects its independence from Congress and the president, the other two branches of government.


The U.S. Constitution describes the power to appoint government officials in some detail. Article II, section 2, clause 2, provides that the president shall appoint ambassadors (and other diplomats), Supreme Court justices, and “all other Officers of the United States,” with the “Advice and Consent of the Senate.” The president nominates people to fill these positions, and the Senate then approves or rejects these nominations by majority vote. The Senate usually confirms nominations of executive branch officials but sometimes rejects them. The level of deference given the president by the Senate has varied over time. However, when the Senate is not in session, the Constitution authorizes the president to fill vacancies in federal offices without the Senate's approval. These “recess appointments” last until the end of the Senate's next annual session. The Constitution also authorizes Congress to vest the power to appoint “inferior Officers” in “the President alone, the Courts of Law, or in the Heads of Departments.” Thus, many federal officials can be appointed without Senate confirmation. The Court held that low-level positions, held by the vast majority of federal employees, are not covered by Article II, and thus Congress may vest power to hire such employees largely without restriction. In addition, congressional appointments of legislative branch officers are not subject to Article II appointment procedures. Though difficult constitutional issues rarely arise with respect to the appointment power, in Buckley v. Valeo (1976) the Court had to decide whether members of the congressional leadership could appoint some of the members of the Federal Elections Commission, whose responsibilities included enforcement of federal campaign finance laws. The Court held that because the members exercised more authority than legislative branch appointees could wield and qualified as “officers of the United States,” the traditional Article II requirement of appointment by the president had to be observed.


Removal Power

The power to remove appointed officials outside of the legislative or judicial branches has produced significant controversy. The Constitution does not expressly discuss the power to remove officials, except to provide for removal of any “Civil Officer of the United States” upon impeachment by the House of Representatives and conviction by the Senate. Federal officials are almost never removed by impeachment. Shortly after the Constitution's adoption, the question of the president's power to remove government officials arose. The Senate concluded that the president could remove federal officials without its “advice and consent.” The right to remove officials serving in the executive branch is generally thought to inhere in the “executive power” of the United States, which the Constitution vests in the president. The increased complexity of the government and the expansion of the role of administrative agencies beginning in the New Deal in the 1930's unsettled the understanding of the locus of the removal power. In Humphrey's Executor v. United States (1935), the Court recognized that some agencies, such as the Federal Trade Commission, exercised a type of judicial and legislative power in addition to the executive powers delegated to them by the president. The Court ruled that because commissioners exercised quasi-legislative and quasi-judicial powers that the president lacked the exclusive right to exercise, Congress could establish fixed terms for appointees to commissions such as the Federal Trade Commission and prevent the president from discharging them during those terms except for “good cause.” Thus, some appointees had some independence from the president because the president could not discharge them over policy differences. In Morrison v. Olson (1988), involving the constitutionality of a statute that authorized appointment of independent counsel to investigate and, if warranted, prosecute high governmental officials, the Court held that special circumstances could justify limiting the president's power to remove even some officials who were exercising purely executive functions, such as investigating and prosecuting crimes. Mistretta v. United States (1989) illustrates the removal power puzzles that can be created by the complexities of modern government. Mistretta involved a challenge to the U.S. Sentencing Commission, which had been created as an “independent commission in the Judicial Branch” to establish guidelines limiting the discretion judges exercised in sentencing criminal defendants. The president could remove commission members only for good cause. The Court upheld that limitation on the president's removal power, arguing that the president has never exercised the kind of authority Congress granted the Sentencing Commission. Unlike officials at least nominally in the executive branch of government, Court justices and other judges appointed to judgeships created under Article III of the Constitution, namely federal district court and federal court of appeals judges, hold their offices during “good behavior” and may be removed only by impeachment.



Further Reading

  • Aman, Alfred C., Jr., and William T. Mayton. Administrative Law. St. Paul, Minn.: West Publishing, 1993.
  • Carter, Stephen L. The Confirmation Mess: Cleaning Up the Federal Appointments Process. New York: Basic Books, 1994.
  • Tribe, Laurence H. God Save This Honorable Court: How the Choices of Supreme Court Justices Shape Our History. New York: Random House, 1985.