May 17, 1978



## 78-27 MEMORANDUM OPINION FOR THE GENERAL COUNSEL, CIVIL SERVICE COMMISSION, AND THE GENERAL COUNSEL, PRESIDENT’S REORGANIZATION PROJECT

Presidential Appointees—Removal Power or Disciplinary Action—Constitutional Law (Article II, § 2, cl. 2)

This responds to your inquiry whether Congress has the constitutional power to authorize any Federal officer or agency to remove, or otherwise to discipline, Presidential appointees performing executive functions.. Pursuant to the Civil Service Commission Reform bill, S. 2640, now pending in Congress, the Merit Systems Protection Board will have no authority to take any action with respect to allegations of misconduct by such Presidential appointees. Instead, the bill instructs the Special Counsel to report the results of any investigation of noncompliance by “ Presidential appointees” directly to the President, thereby leaving to the President the discretion to take whatever action he or she deems appropriate (§§ 1206(h)(2), 1206(i)). You ask whether Congress could amend the bill to confer upon the Board the authority to take disciplinary action against such appointees. First, we address the question of removal. The Supreme Court held in Myers

v. United States, 272 U.S. 52 (1926), that the Constitution does not grant to Congress any authority to regulate the removal of executive officers appointed by the President. The essence of the Court’s ruling is contained in the following

statements: The power of removal is incident to the power of appointment, not to the power of advising and consenting to appointment, and when the grant of the executive power is enforced by the express mandate to take care that the laws be faithfully executed, it emphasizes the necessity for including within the executive power as conferred the exclusive power of removal. [Id., at 122] The condition upon which the power of Congress to provide for the

107removal of inferior officers rests is that it shall vest the appointment

in some one other than the President with the consent of the Senate. Congress may not obtain the power and provide for the removal of such officer except on that condition. If it does not choose to entrust the appointment of such inferior officers to less authority than the President with the consent of the Senate, it has no power of providing
for their removal. [Id., at 162] Accordingly, when an official performing executive functions is appointed by the President with the advice and consent of the Senate, he or she “ will be subject to removal by the President alone, and any legislation to the contrary
must fall as in conflict with the Constitution.” Id., at 163. The bill, however, exempts from the removal authority of the Merit Systems Protection Board all “ Presidential appointees.” Although not defined in the bill, this term includes both (1) executive officers appointed by the President with the advice and consent of the Senate, and (2) those “ inferior officers” whose appointment the Congress has vested in the President alone (Art. II, § 2, cl. 2, of the Constitution). Although the Myers case is concerned with the first class of executive officers, dictum suggests that Congress has no greater authority to remove officers appointed by the President alone than it would have over those subjected to the advice and consent process. 272 U .S., at 161-62.1 We find no reasonable basis for distinguishing between the two types of appointees.2 The second question presented is whether Congress may confer on the Board the authority to take disciplinary action against Presidential appointees. Disciplinary sanctions contemplated under the bill are: demotion, debarment from Federal employment for a stated period, suspension, reprimand, or civil

'T h e pertinent language addressing this issue in the Myers opinion is:
W hether the action o f C ongress in rem oving the necessity for the advice and consent o f the Senate, and putting the pow er o f appointm ent in the President alone, w ould m ake his po w er o f rem oval in such case any m ore subject to C ongressional legislation than before is a question this C ourt did not decide in the Perkins case [ United States v. Perkins, 116 U .S . 483]. U nder the reasoning upon w hich the legislative decision o f 1789 w as put, it m ight be difficult to avoid a negative answ er, but it is not before us and we d o not decide
it.
2T here is an o th er issue that arises w hen ev er the Myers analysis is ex am ined. It relates to the third m ethod outlined in A rt. II, § 2 , cl. 2, fo r appointing inferior officers; that clause provides that“ inferior o ffice rs” m ay, if C ongress d esires, be appointed by the heads o f departm ents. T he q u e stion is w hether, and to w hat ex te n t, the rem oval o f those officers m ay be restricted. T he C ourt in Myers m ade cle ar that C ongress “ m ay prescribe incidental regulations controlling and restricting . . . the exercise o f the pow er o f re m o v a l” o f in ferio r o fficers w ho perform executive functions and w ho have been appointed by heads o f departm ents. T he C ourt in Myers also said that C ongress could not “ draw to itse lf o r to either branch o f it, the po w er to rem ove o r the right to participate in the exercise o f that p o w e r.” Id., at 161. The question m ight be raised if by assigning rem oval authority to the M erit System s Protection B oard— an independent agency vested w ith quasi-judicial pow er— C ongress has in som e fashion “ draw n to its e lf" the po w er o f rem oval. T he short answ er lies in the C o u rt’s analysis in Weiner v. United States, 357 U .S. 349, 355-56 (1958), in w hich the C ourt m ade clear that independent regulatory c om m issions are to be independent not only from the E xecutive but from C ongress. U n d er the c ircu m stan ces, we have little doubt about the propriety of the B oard taking d isciplinary actio n , including rem o v al, w ith respect to such inferior officers.

108penalty. § 1207(a). We are aware of no precedents controlling this question, but we believe that Congress does have, and must have, some authority to prescribe sanctions against executive branch officials who act in violation of existing law. The more difficult issue is whether the imposition of those sanctions can be assigned to a body over which the President has limited control. Insofar as Presidential appointees are concerned, we doubt that Congress may take from the President the ultimate authority to act in that manner. This would surely disrupt the appointee’s ability to carry out the instructions of the President. The power to demote, suspend, or debar a Presidential appointee from Federal employment carries with it the power to supervise the appointee’s actions; more importantly, to take this power away from the President would interfere with the President’s duty faithfully to execute the laws. The conclusion is perhaps more doubtful with respect to lesser actions such as reprimand and civil penalties, but here again it is quite likely that disruptions would result. For a Presidential appointee to set aside the time to prepare for a hearing and to follow through with the administrative process contemplated by the bill might be a substantial interference with the President’s necessary direction and control of such officials. It would also cloud the line of authority between the President and his subordinates.
The Myers holding proceeded from the view that the power to remove is implicit in the power to appoint and must necessarily be retained by the President if he is to fulfill his constitutional obligation faithfully to execute the laws. A different conclusion cannot be drawn with respect to the imposition of what might be seen as less drastic sanctions.

L a r r y A . H a m m o n d Deputy Assistant Attorney General

Office o f Legal Counsel



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