Article 2, Section 2, Clause 2 — Restrictions On Congresss Authority

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Article II, Section 2, Clause 2:

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

While Congress enjoys a certain amount of discretion when designing federal agencies, the Supreme Court has regularly invalidated congressional attempts to “aggrandiz[e] its own power at the expense of another branch.” [1](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/restrictions-on-congresss-authority#fn1art2 " Ryder v. United States, 515 U.S. 177, 182 (1995); Buckley v. Valeo, 424 U.S. 1, 122 (1976) (per curiam), superseded by statute, Bipartisan Campaign Reform Act of 2002, Pub. L. No.

, 116 Stat. 81; INS v. Chadha, 462 U.S. 919, 951 (1983); Bowsher v. Synar, 478 U.S. 714, 735–36 (1986). ")

107-155

, 116 Stat. 81 ; INS v. Chadha, 462 U.S. 919, 951 (1983); Bowsher v. Synar, 478 U.S. 714, 735–36 (1986). For instance, while Congress may undoubtedly establish a wide variety of federal offices to carry out statutory duties, it may not appoint its own Members to carry out executive functions or reserve for itself the power of appointment.[2](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/restrictions-on-congresss-authority#fn2art2 " In Buckley v. Valeo, discussed in more detail at , the Court ruled that statutory provisions authorizing members of Congress to appoint Commissioners to the Federal Elections Commission were unconstitutional. 424 U.S. at 143 (per curiam). ") In the 1991 case of Metropolitan Washington Airports Authority v. Citizens for the Abatement of Aircraft Noise, the Supreme Court examined the constitutionality of legislation that authorized a review board composed of Members of Congress to review and reverse decisions of the Metropolitan Washington Airports Authority (MWAA).[3](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/restrictions-on-congresss-authority#fn3art2 " 501 U.S. 252, 255–61 (1991). See Metropolitan Washington Airports Act of 1986, Pub. L. No. 99-591, 100 Stat. 3341. The legislation authorized the transfer of Dulles International Airport and Washington National Airport from federal control to the MWAA conditioned on the creation of a Board of Review created by the MWAA. Wash. Airports, 501 U.S. at 255–61. Virginia and the District of Columbia passed legislation authorizing the MWAA to create the Review Board. Id. at 261. ") The MWAA is a regional body established to oversee the management and operations of Ronald Reagan Washington National Airport and Dulles International Airport.

The Court first ruled that Members of Congress on the Board exercised federal authority, even though the law specified that they would serve “in their individual capacities” [4](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/restrictions-on-congresss-authority#fn4art2 " Metropolitan Washington Airports Act of 1986, Pub. L. No. 99-500, 100 Stat. 3341, § 6007(f)(1). ") as opposed to serving in their official role as legislators.[5](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/restrictions-on-congresss-authority#fn5art2 " Wash. Airports, 501 U.S. at 265–71. ") In support of this conclusion, the Court noted that control over the airports in question was originally placed with the federal government and was transferred to the MWAA on condition that the States create the Board; the federal government has a significant interest in the operation of airports, which are crucial to government operations; and membership on the Board was limited to federal officials.[6](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/restrictions-on-congresss-authority#fn6art2 " Id. at 266–69. ")

Moreover, Congress exercised significant power over the appointment and removal of the Board members. The law required that the Board consist of nine members of Congress, eight of whom had to sit on specific congressional committees, chosen from a list provided by congressional leadership.[7](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/restrictions-on-congresss-authority#fn7art2 " One member was “chosen alternately . . . from a list provided by the Speaker of the House or the President pro tempore of the Senate, respectively.” Id. at 268. ") There was no requirement that the lists contain more recommendations than openings on the Board.[8](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/restrictions-on-congresss-authority#fn8art2 " Id. ") The Court concluded that this structure ensured congressional control of appointments.[9](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/restrictions-on-congresss-authority#fn9art2 " Id. at 268–69. ") Further, by controlling committee assignments, Congress had removal power over the Board “because depriving a Board member of membership in the relevant committees deprives the member of authority to sit on the Board.” [10](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/restrictions-on-congresss-authority#fn10art2 " Id. at 268–70. ")

The Court ruled that the statute’s provision requiring Members of Congress to sit on the Board violated the separation of powers.[11](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/restrictions-on-congresss-authority#fn11art2 " Id. at 274–76. ") The Court did not expressly decide whether the Board’s power was executive or legislative in nature, but reasoned that, no matter how it was characterized, the statute’s grant of authority to the Board was not constitutional.[12](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/restrictions-on-congresss-authority#fn12art2 " Id. at 275–76. ") If the Board’s power was executive in nature, the Court explained, the Constitution barred an agent of Congress from exercising it; and if the Board’s power was legislative, then the Board could not operate without following the constitutional requirements of bicameralism and presentment for legislative action.[13](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/restrictions-on-congresss-authority#fn13art2 " Id. ")

Congress’s control over appointments is further limited on the question of who can remove an incumbent officer.[14](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/restrictions-on-congresss-authority#fn14art2 " Springer v. Gov’t of Philippine Islands, 277 U.S. 189, 202 (1928) ( “Legislative power, as distinguished from executive power, is the authority to make laws, but not to enforce them or appoint the agents charged with the duty of such enforcement. The latter are executive functions.” ). ") In the 1986 case of Bowsher v. Synar, the Supreme Court invalidated a statute that gave an official controlled by Congress the power to order a decrease in federal spending.[15](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/restrictions-on-congresss-authority#fn15art2 " 478 U.S. 714, 735–36 (1986). For more on the Court’s decision in Bowsher v. Synar, see . ") A 1985 act[16](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/restrictions-on-congresss-authority#fn16art2 " Balanced Budget and Emergency Deficit Control Act of 1985, Pub. L. 99-177, 99 Stat. 1038. ") gave the Comptroller General authority, in the event of a budget shortfall, to issue a report detailing federal revenue and expenditure estimates, along with the specific reductions needed to cut the deficit to meet a statutory target.[17](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/restrictions-on-congresss-authority#fn17art2 " Bowsher, 478 U.S. at 718, 732. ") The President was then required to order the “sequestration” of those funds pursuant to the Comptroller General’s report.[18](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/restrictions-on-congresss-authority#fn18art2 " Id. at 718. ") The Court held that the Comptroller’s power to trigger sequestration violated the separation of powers because a preexisting provision authorized Congress to remove the Comptroller General, who Congress viewed as an officer of the legislature,[19](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/restrictions-on-congresss-authority#fn19art2 " Id. at 731. ") through a joint resolution.[20](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/restrictions-on-congresss-authority#fn20art2 " Id. at 736. ") The High Court explained that the Constitution’s division of power among the three branches of government barred “an active role for Congress in the supervision of officers charged with the execution of the laws it enacts.” [21](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/restrictions-on-congresss-authority#fn21art2 " Id. at 722. ") The Court rejected the argument that the Comptroller Generalwas sufficiently independent from Congress such that there was no constitutional violation. The power of removal, for the Court, is a crucial tool of control; Congress’s ability to remove the Comptroller General “dictate[s] that he will be subservient to Congress.” [22](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/restrictions-on-congresss-authority#fn22art2 " Id. at 730. ")