The appointment and removal powers have been contested throughout American political development. They have been contested both as a matter of politics and as a matter of constitutional authority. In this, the appointment and removal powers are classic examples of the tendency in the United States for normal political differences to escalate into constitutional controversies.
The US Constitution is less clear about the removal power than it is about the appointment power. Article II, Section 2, of the Constitution states that an appointment takes place when the president nominates and the Senate provides its “advice and consent,” but it does not state how an officer may be removed from office. As a result, the constitutional understanding of the removal power has been unsettled throughout American political history. Even though the constitutional process for appointments is clear in comparison to removals, appointments have long been a source of political controversy. In this century constitutional controversy has emerged surrounding the question of when the president may make an appointment and whether the filibuster is an appropriate part of the Senate's prerogative of advice and consent.
The removal power was first contested in 1789, even before there were political parties, and it has remained contested ever since. In 1789, when Congress created the State Department, the question arose as to who had the power to remove high executive-branch officials. There were four answers. One position was that the Constitution offers a way to remove officials—the impeachment process. A second position was that Article II implies that officials are removed the same way they gain office: the president initiates the act and the Senate provides its advice and consent. A third position was that Congress may delegate the power where Congress sees fit. The fourth position, advocated by James Madison, was that the Constitution vests this power in the president alone. After a long debate, the fourth position won a narrow victory.
The debate in 1789 did not settle the question of the removal power. The most famous controversy occurred when the Reconstruction Congress passed the Tenure of Office Act of 1867, which required the Senate to approve a replacement before the president could remove an executive officer. At issue was control over the execution of Reconstruction policy, much of which was the responsibility of the secretary of war. President Andrew Johnson ( 1808–1875 ) and Congress disagreed over Reconstruction, and this disagreement came to a head over the question of whether Congress may limit the president's power to remove the secretary of war. When President Johnson proceeded to remove Secretary of War Edwin Stanton ( 1814–1869 ), Johnson became the first president to be impeached by the House of Representatives.
In Myers v. United States, 272 U.S. 52 ( 1926 ), the Court considered an 1876 statute that stipulated, “Postmasters of the first, second, and third classes shall be appointed and removed by the president by and with the advice and consent of the Senate” ( Alvis, Taylor, and Bailey 2013, 114 ). The law was challenged when Woodrow Wilson removed postmaster Frank Myers without seeking Senate approval. Writing for a six-member majority, Chief Justice and former president William Howard Taft sided with Wilson and ruled that the 1876 statute was unconstitutional. In his view, the problem with the law was that it undermined the president's accountability. Taft held that the Constitution was clear on the subject because of the vesting clause of Article II: “The vesting of the executive power in the President was essentially a grant of the power to execute the laws” (272 U.S. at 117). Further, appointing and removing were executive functions, and, since the Constitution was silent on removals, the Constitution should be read to vest the removal power in the president.
Myers marked the high-water mark for the presidential position. Less than a decade later, the Court revised its understanding in Humphrey's Executor v. United States, 295 U.S. 602 ( 1935 ). The removal in question was the firing by President Franklin Roosevelt of William Ewart Humphrey ( 1862–1934 ), a Republican member of the Federal Trade Commission (FTC) appointed by Calvin Coolidge ( 1872–1933 ) and reappointed by Herbert Hoover ( 1874–1964 ). Humphrey brought suit, arguing that the 1914 legislation creating the FTC specifically limited removal to certain “for cause” provisions—that is, only by a clear set of guidelines established by Congress in advance. Roosevelt disagreed, believing that Taft's wide defense of presidential removal powers in Myers made it clear that the president held the constitutional authority to fire Humphrey. The Court shocked Roosevelt by siding with Humphrey. According to Justice George Sutherland ( 1862–1942 ), who wrote for a unanimous Court, the question in Myers was completely different because “the office of a postmaster is so essentially unlike the office now involved” (295 U.S. at 627). Specifically, members of the FTC had “quasi-judicial and quasi-legislative” duties, and were thus not precisely executive officers. Because Congress gave the agency these nonexecutive powers, Congress could limit the president's power to remove such officers and make them independent of the president.
Humphrey's Executor, however, was not the highwater mark for the congressional position. That came in Morrison v. Olson, 487 U.S. 654 ( 1988 ), when the Supreme Court addressed the constitutionality of the independent prosecutor provision of the Ethics in Government Act of 1978. Based on the logic of Humphrey's Executor, the administration of Ronald Reagan ( 1981–89 2010 ), even if that majority was unwilling to explicitly overturn Morrison v. Olson.
Free Enterprise Fund reveals the continuing complexity of the removal question with respect to officers that Congress wants to be “independent” of the president. The question was whether the Sarbanes-Oxley Act of 2002 violated separation of powers by creating a new panel under the Securities and Exchange Commission (SEC) whose members would be removable only “for cause.” Because the members of the SEC were themselves removable for cause, Sarbanes-Oxley created a second layer of independence from the president.
A five-member majority decided that the second layer of independence was unconstitutional. Chief Justice John Roberts argued for the majority that the second layer of “for cause” provisions interfered with the president's ability to execute the laws and undermined the principle of responsibility. That is, if the president is to be accountable to the electorate, executive branch officials must be held accountable to the president. Four justices disagreed, and in a dissent written by Justice Stephen Breyer, they noted that Roberts's argument, if applied consistently across the federal government, would mean that hundreds of jobs would have to be redefined. More than a problem for Sarbanes-Oxley, the difference between the Roberts majority and the Breyer minority reflected a problem that had been simmering in the Court's jurisprudence for nearly one hundred years.
Until this century there has been less constitutional controversy with respect to the appointment power. Going back to George Washington, presidents have typically taken a narrow reading of the “advice” part of the requirement that their nominees receive the advice and consent of the Senate. This means that presidents in practice nominate a candidate and then that candidate is voted upon by the Senate. In practice, there is not an opportunity for the Senate to formally give its advice.
If advice does not have a formal constitutional role, it does come into play as a matter of politics. Throughout American political development, presidents have had to think politically about their nominees. This means that presidents make appointments to satisfy the various camps within their own political party, while at the same time maintaining their credibility with the opposition party, especially if the opposition party controls the Senate. This delicate balance is achieved with the aid of an informal practice, called senatorial courtesy, by which the president defers to the recommendations of senators for lower-level appointments from their state if those senators are from the president's party. This informal arrangement has broken down, occasioning two areas of constitutional controversy.
The first has to do with the peculiar traditions in the Senate. Since the late twentieth century, the minority party in the Senate has been more willing to use the threat of the filibuster, as well as various stalling tactics, such as the hold, to influence the president's appointments. As a result, new presidents typically have to wait months and sometimes years to have their executive branch appointments confirmed, and presidents generally face delays in the confirmation of lower-level judicial appointments. Presidents of both parties have complained about these delays, claiming that the extraconstitutional rules and traditions of the Senate are undermining the president's prerogative to have an “up or down vote” on nominees.
The second area of controversy is more complicated and has resulted in a decision by the Supreme Court. The question has to do with the constitutional provision providing for “recess appointments.” According to Article II, Section 2, “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” While this clause clearly gives the president the power to make executive appointments when the Senate is out of session, it does not define what a Senate session is. As senators in the minority party grew more willing to employ novel uses of Senate procedures to delay presidential appointments, presidents became more willing to use expansive definitions of a Senate recess. Historically, presidents have read the clause to refer not only to periods when Congress was not in session, but also to periods within a session when the Senate goes on break. In response, the Senate used “pro forma” sessions to retain the ability to conduct Senate business even when senators were on break.
In National Labor Relations Board v. Noel Canning, 573 U.S. ___ ( 2014 ), a unanimous Supreme Court ruled that the president lacked the authority to make appointments during a pro forma session. A majority of justices concluded that a recess has historically been regarded as a break longer than ten days, while a minority argued that a recess only happened when there was a break between sessions. In short, the Supreme Court limited, but did not end, the ability of the president to go around the Senate's advice-and-consent function.
In summary, the Constitution renders the meaning of executive power to be essentially contested. In particular, the Constitution does not spell out the advice part of the Senate advice-and-consent role in appointments, and it does not say anything about removals. As a result, the appointment and removal powers have been negotiated by political compromise between the president and Congress over the course of American political development. However, political compromise is not always sufficient, or possible. Hence, the Supreme Court has entered these debates between Congress and the president when they involve conflict over the meaning of the Constitution. Like the meaning of the war power, appointment and removal powers will probably remain, in some way, forever unsettled.
SEE ALSO Article I, United States Constitution ; Article II, United States Constitution ; Executive Powers ; Morrison v. Olson; Separation of Powers .
Alvis, J. David, Jeremy D. Bailey, and F. Flagg Taylor IV. The Contested Removal Power, 1789–2010. Lawrence: University Press of Kansas, 2013.
Calabresi, Steven G., and Christopher Yoo. The Unitary Executive: Presidential Power from Washington to Bush. New Haven, CT: Yale University Press, 2008.
Corwin, Edward S. The President's Removal Power under the Constitution. New York: National Municipal League, 1927. Ellis, Richard J. The Development of the American Presidency. New York: Routledge, 2012.
Fisher, Louis. Constitutional Conflicts between Congress and the President. 6th ed. Lawrence: University Press of Kansas, 2014.
Jeremy D. Bailey
University of Houston