Presidential power to remove appointees was hotly debated in the first session of Congress, since the Constitution is silent on this issue. Some Senators argued that the Senate's concurrence should be required for the removal of appointees that had required senatorial confirmation. Others held that executive power had to include the power to remove.
Congress first asserted its unstated power to investigate the executive branch by establishing a special committee to look into the bloody defeat of the U. Army by a confederation of Indian tribes in the Northwest Territory. Washington, for his part, provided the committee with those executive branch documents it sought to inform its investigation, but only after determining with his cabinet that the disclosure decision was discretionary on his part and that presidents might constitutionally withhold information that ought, in the public interest, not be disclosed.
He later implemented his view by withholding from the House of Representatives documents it sought in connection with negotiations over the Jay Treaty. This laid a foundation for future claims of executive privilege, a phrase nowhere found in Article II. Text, even aided by history, however, shines less light on constitutional requirements for the President's relationship to those other instrumentalities of government that Congress creates but which are not part of the federal judiciary -- that is, to the plethora of "departments," "agencies," "administrations," "boards," and "commissions" comprised within the executive branch.
Recent decades have seen much ardent advocacy on behalf of the so- called "unitary executive" idea -- specifically, the view that Article II, by vesting law execution power in the President, forbids Congress from extending any such authority to individuals or entities not subject to presidential control.
Adherents to this unitary executive reading of Article II insist that the Constitution guarantees the President plenary powers, which Congress may not limit, both to discharge unelected executive administrators at will and to direct how those officials shall exercise any and all discretionary authority that they possess under law.
To take but one quotidian example, a Justice Department opinion from the Reagan Administration argued that a statute requiring the Director of the Centers for Disease Control to arrange for the mass mailing of AIDS information fliers, free from any executive branch supervision, violated separation of powers by "unconstitutionally infringing upon the President's authority to supervise the executive branch.
Legal Counsel 47 With regard to most of what the executive branch does -- namely, implementing domestic statutes with no close connection to foreign affairs or military command -- this interpretation is not persuasive.
Independently or all together, these clauses are thought to create two constitutional imperatives. The first is that the President is entitled to execute the laws personally and may take upon himself or herself the prerogative of making any administrative decision that Congress has assigned to any officer within the executive branch.
The second is that the President is entitled to remove at will any officer of the United States who serves in the executive branch. The first problem with this interpretation is that the relevant clauses viewed either independently or together did not originally have the semantic implications that unitary executive theorists imagine.
These kinds of clauses were prevalent in early state constitutions that also established relationships between governors, as chief executives of the states, and state agencies. Rather than giving governors unitary executive control over state administration, they nearly all split supervision of the bureaucracy among the different branches of government -- the governor, the legislature, and, in some states, the courts.
Originalist defenders of a unitary executive reading of the federal Constitution often dismiss the interpretive significance of pre state constitutions on the ground that these early texts paid only lip service to separation of powers principles, while presenting the Framers chiefly with examples of government structure to avoid.
The problem with this stance is that state constitutions written in the first decades after persisted in using the same clauses, by that time found also in Article II, to describe state governments in which governors continued to lack unitary control.
Close study of the state constitutions and state administrative practice under them thus belie any "unitary executive" reading of Article II that purports to be based on contemporary understandings of the text alone. Nor is the argument borne out by a history of institutional practice. The First Congress's handiwork regarding the structure of the initial administrative departments is inconsistent with the idea that the Framers intended a unitary executive.
Congress accommodated presidential control at different levels, from seemingly complete, as with the Department of State, to essentially non-existent, as with the boards and commissions authorized to oversee the Mint, to buy back debt of the United States, and to rule on patent applications. Unitary executive advocates may point to a variety of presidential statements over the years asserting the existence of a comprehensive presidential supervisory authority.
But again to quote Justice Jackson, who wrote in about constitutional debates on the scope of presidential power: "A century and a half of partisan debate and scholarly speculation yields no net result but only supplies more or less apt quotations from respected sources on each side of any question. Unitarian arguments based on presidential statements simply cannot overcome Congress's conspicuous eclecticism from its first session forward in fashioning different administrative structures with different lines of accountability to different sources of supervision.
Finally, the argument for the unitary presidency makes the mistake of anachronism. The managerial presidency extolled in the late eighteenth century was just not conceptualized in the policy terms now understood by modern presidentialists.
Even if the original presidential office had been intended to be unitary in some administrative sense, the President's originally designed managerial powers cannot logically add up to the contemporary version of unitary power urged upon us by twenty-first century presidentialists, who interpret the Constitution as putting the President personally in charge of the exercise of any or all policy making discretion that Congress may delegate to anyone within the executive branch.
A better view is fully reconcilable with the text and truer to both relevant Supreme Court opinions and our institutional history. It holds that outside those particular subjects that are independently within the President's inherent powers, such as issuing pardons or making treaties, the degree of policy control the President may exercise over subordinate officers is up to Congress.
Congress is limited, in turn, only by the Constitution's constraints on the scope of national legislative authority and the President's entitlement to dismiss officers of the United States who are breaking the law or negligent in the execution of their duties.
For this reason, there is an intimate connection between the President's relationship with Congress and the President's relationship to the remainder of the executive establishment. Specifically, the latter is significantly determined by the former. The Constitution gives Congress the political discretion to defer substantially to the pleas of the executive for highly centralized control over administrative agencies, but only if Congress chooses to do so.
The bare framework of Article II leaves presidents with the task of persuading Congress that authorizing such control over any particular agency is in the public interest -- a judgment of policy, not constitutional interpretation. The practice and jurisprudence of the Treaty and Appointments Clauses err when they depart, as they too often do, from the original meaning of the Constitution. The original meaning is the meaning that would have been most likely embraced by a reasonable person at the time of the Framing.
Because the Constitution is written in the language of the law, the original meaning is constituted by the text in its historical and legal context. Courts are obligated to use the interpretive methods at the time of enactment to find the better-supported meaning, even if an ambiguous text can yield more than one meaning.
Parents Home Homeschool College Resources. Study Guide. Previous Next. The Appointments Clause provides the president with the authority to appoint officers of the United States, subject to confirmation by the U.
These positions include ambassadors, heads of Cabinet-level departments, and federal judges. Congress itself does not exercise appointment authority. However, the Appointments Clause calls for Congress to vest the authority to appoint inferior officers in the president, the courts, or heads of departments. The U. Supreme Court distinguished between officers of the United States and inferior officers in the case Morrison v. Olson —clarifying that only Cabinet-level department heads, ambassadors, and federal judges qualify as officers.
All other officers, such as federal attorneys, district court clerks, chaplains, and federal election supervisors, qualify as inferior officers.
In the case Lucia v. SEC , the court also ruled that the administrative law judges of the Securities and Exchange Commission are inferior officers and must be appointed by agency heads rather than hired as agency employees. Constitution does not include a provision pertaining to the removal of federal appointees from office. However, the following U.
Supreme Court cases clarified the president's sole removal authority: [4] [5].
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