However, Cong. CAN limit pres.’s power to fire inferior officers [Subtext: Theory of the Unitary Executive- arg. for unfettered pres. removal power:] Pres. electorally accountable to voters; whereas actions of his subordinates, agency officials, only indirectly accountable by electorate voting for pres. If pres. can’t fire exec. officials for doing bad things, no electoral control over their decisions B/c Con. vests exec. power in the pres., he must have control over anyone charged w/ executing the law; thus, Cong. CAN’T limit pres.’s power to control (incl. to remove) exec. officials. Analysis Postmaster of Portland, OR exercises exec. power . advice and consent of Senate” limitation” on Pres.’s “w/ Postmaster removal authority = direct Cong. role in removal, Cong.’s effort to reserve to itself to remove postmasters Humphrey’s Executor v. United States Issue- Can Cong. limit Pres.’s power to remove FTC commissioner? (Are FTC commissioners or officers pursuant to “principal” “inferior” Appointments Cl. precedent)? Yes. Whether or not Cong. can limit Pres. removal of official depends on of the office.” While Cong. cannot restrict “character pres.’s power to fire exec. officers (Myers), it CAN limit Pres.’s power to remove non-exec. (here, quasi-legislative or quasi- judicial) officers Statute at limited Pres. power to remove commissioner except – in limited, specifically listed circumsts. [Contrast w/ statute]- Whereas Myers statute said Pres. could remove postmaster w/ and consent of the Senate “advice Cong. role in removal); Humphrey statute did NOT “(direct provide for direct Cong. role in removal Why is Cong. trying to limit circumsts. when pres. can fire? FTC designed as independent agency to promote fair competition in trade; Cong. trying to insulate FTC officials from New Deal/politically-motivated pres. removal Analysis [FORMALISM} – Rejected Myers unitary exec. theory; but didn’t completely overrule- distinguished it
However, Cong. CAN limit pres.’s power to fire inferior officers [Subtext: Theory of the Unitary Executive- arg. for unfettered pres. removal power:] Pres. electorally accountable to voters; whereas actions of his subordinates, agency officials, only indirectly accountable by electorate voting for pres. If pres. can’t fire exec. officials for doing bad things, no electoral control over their decisions B/c Con. vests exec. power in the pres., he must have control over anyone charged w/ executing the law; thus, Cong. CAN’T limit pres.’s power to control (incl. to remove) exec. officials. Analysis Postmaster of Portland, OR exercises exec. power . “w/ advice and consent of Senate” limitation” on Pres.’s Postmaster removal authority = direct Cong. role in removal, Cong.’s effort to reserve to itself to remove postmasters Humphrey’s Executor v. United States Issue- Can Cong. limit Pres.’s power to remove FTC commissioner? (Are FTC commissioners “principal” or “inferior” officers pursuant to Appointments Cl. precedent)? Yes. Whether or not Cong. can limit Pres. removal of official depends on “character of the office.” While Cong. cannot restrict pres.’s power to fire exec. officers (Myers), it CAN limit Pres.’s power to remove non-exec. (here, quasi-legislative or quasi- judicial) officers Statute at – limited Pres. power to remove commissioner except in limited, specifically listed circumsts. [Contrast w/ statute]- Whereas Myers statute said Pres. could remove postmaster w/ “advice and consent of the Senate “(direct Cong. role in removal); Humphrey statute did NOT provide for direct Cong. role in removal Why is Cong. trying to limit circumsts. when pres. can fire? FTC designed as independent agency to promote fair competition in trade; Cong. trying to insulate FTC officials from New Deal/politically-motivated pres. removal Analysis – [FORMALISM} Rejected Myers unitary exec. theory; but didn’t completely overrule- distinguished it
Constitutional%20Law%20I-%20Smith-%20Spring%202012.docx