Article 2, Section 2, Clause 2 — Twenty First Century Cases On Removal

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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.

In the twenty-first century, the Court has applied a somewhat formalist approach to removal cases, invalidating removal protections for Executive Branch officials in three different decisions. In the 2010 case of Free Enterprise Fund v. Public Company Accounting Oversight Board, the Court ruled that two layers of removal protection for an Executive Branch official impermissibly interfered with the President’s powers under Article II of the Constitution.[1](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/twenty-first-century-cases-on-removal#fn1art2 " See 561 U.S. 477, 484 (2010). ") In that case, the Court examined the Public Company Accounting Oversight Board (PCAOB or Board), an entity created by the Sarbanes-Oxley Act of 2002 to oversee aspects of the accounting industry.[2](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/twenty-first-century-cases-on-removal#fn2art2 " 15 U.S.C. §§ 7211–20. ") The Board’s members were appointed by the Securities and Exchange Commission (SEC) and were subject to the Commission’s oversight when issuing rules and sanctions.[3](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/twenty-first-century-cases-on-removal#fn3art2 " Id. § 7217. ") But the members of the PCAOB could not be removed from office except for good cause shown by the SEC in a formal proceeding.[4](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/twenty-first-century-cases-on-removal#fn4art2 " Free Enter. Fund, 561 U.S. at 486. ") Because the President could not remove the SEC Commissioners themselves without cause,[5](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/twenty-first-century-cases-on-removal#fn5art2 " SEC Commissioners do not actually have an explicit statutory removal protection, but both parties agreed and the Court decided the case with the understanding that the Commissioners nonetheless may not be removed by the President except for the standard enunciated in Humphrey’s Executor, 295 U.S. 602 (1935). Id. at 487. ") the Board members were thus insulated by two layers of removal protection.[6](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/twenty-first-century-cases-on-removal#fn6art2 " Id. at 495–98. ")

The Court’s opinion stressed the importance of accountability for government officers that the Appointments Clause and its concomitant power of removal ensure. The Court acknowledged that it had upheld removal restrictions for the principal officers of independent agencies in Humphrey’s Executor and for certain inferior officers in Morrison, but concluded that the “novel” combination of dual for-cause removal restrictions “tranform[ed]” the independence of the Board in a manner that impaired the President’s duty to execute the law.[7](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/twenty-first-century-cases-on-removal#fn7art2 " Id. at 496. ") A second layer of removal protection meant that “[n]either the President, nor anyone directly responsible to him, nor even an officer whose conduct he may review only for good cause, has full control of the Board.” [8](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/twenty-first-century-cases-on-removal#fn8art2 " Id. ") Dual for-cause removal protections inhibit the principle of accountability for Executive Branch officers because they infringe on the President’s “ability to execute the laws,” by preventing him from “holding his subordinates accountable for their conduct.” [9](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/twenty-first-century-cases-on-removal#fn9art2 " Id. ") The Court emphasized that the public does not vote for agency officials, but “look[s] to the President to guide the ‘assistants or deputies . . . subject to his superintendence.’” [10](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/twenty-first-century-cases-on-removal#fn10art2 " Id. at 497–98 (quoting The Federalist No. 72 (Alexander Hamilton)). ") In other words, the President must be able to hold agency officers accountable for their actions, because it is ultimately the President who is accountable to the people for actions of the Executive Branch, rather than Executive Branch officers.[11](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/twenty-first-century-cases-on-removal#fn11art2 " Id. at 499 ( “The growth of the Executive Branch, which now wields vast power and touches almost every aspect of daily life, heightens the concern that it may slip from the Executive’s control, and thus from that of the people.” ). ") Because the statute “grant[ed] the Board executive power without the Executive’s oversight,” Congress had “subvert[ed] the President’s ability to ensure that the laws are faithfully executed” in violation of Article II’s vestment of executive power in the President.[12](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/twenty-first-century-cases-on-removal#fn12art2 " Id. at 498. ")

The Court’s turn in the modern era toward a more formalist approach to interpreting the strictures of the Appointments Clause has been applied in two recent cases that further limit Congress’s ability to shape the administrative state. These decisions concluded that an independent agency with a single director insulated from presidential control violated the separation of powers.

In Seila Law LLC v. Consumer Financial Protection Bureau (CFPB), the Supreme Court concluded that Congress could not provide for-cause removal protections for the head of the CFPB, an independent financial regulatory agency led by a single Director.[13](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/twenty-first-century-cases-on-removal#fn13art2 " No. 19-7, slip op. at 2–3 (U.S. June 29, 2020). This case also involved questions of standing. Id. at 9. Among other arguments, a court-appointed amicus curiae claimed that “a litigant wishing to challenge an executive act on the basis of the President’s removal power must show that the challenged act would not have been taken if the responsible official had been subject to the President’s control.” Id. The Court rejected the idea that such a challenger has to prove this type of counterfactual, finding it sufficient to demonstrate an injury “from an executive act that allegedly exceeds the official’s authority.” Id. at 10. ") The Court described the President’s removal power as “unrestricted,” [14](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/twenty-first-century-cases-on-removal#fn14art2 " Id. at 2. ") rejecting the view that Humphrey’s Executor and Morrison “establish a general rule that Congress may impose ‘modest’ restrictions on the President’s removal power.” [15](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/twenty-first-century-cases-on-removal#fn15art2 " Id. at 26. The court-appointed amicus curiae argued that the Court’s precedent established that Congress may generally limit the President’s removal power, with two exceptions: (1) “Congress may not reserve a role for itself in individual removal decisions” ; and (2) Congress may not completely eliminate the President’s removal power. Id. at 26–27. ") Instead, “the President’s removal power is the rule, not the exception.” [16](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/twenty-first-century-cases-on-removal#fn16art2 " Id. at 27. ") The Court explained that after Free Enterprise Fund, only “two exceptions” to the rule requiring removability remained.[17](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/twenty-first-century-cases-on-removal#fn17art2 " Id. at 13. ") First, under Humphrey’s Executor, Congress may sometimes “create expert agencies led by a group of principal officers removable by the President only for good cause” if the agency does not exercise substantial executive power.[18](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/twenty-first-century-cases-on-removal#fn18art2 " Id. at 2, 15–16. The Court said its decision in Wiener also fell within this exception. Id. at 15 (discussing Wiener v. United States, 357 U.S. 349 (1958). ") In interpreting this 1935 case, the Seila Law Court interpreted Humphrey’s Executor narrowly, saying that this exception permitted for-cause removal protections for “a multimember body of experts, balanced along partisan lines, that performed legislative and judicial functions and was said not to exercise any executive power.” [19](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/twenty-first-century-cases-on-removal#fn19art2 " Id. at 15 (emphasis added). The Court stressed that “[r]ightly or wrongly, the Court viewed the [Federal Trade Commission ('FTC')] (as it existed in 1935) as exercising ‘no part of the executive power.’” Id. at 14 (quoting Humphrey’s Ex’r v. United States, 295 U.S. 602, 628 (1935). However, the Court also said that this conclusion has not withstood the test of time, and that the powers of the FTC—even as they existed in 1935