Constitutionality of Proposed Legislation Requiring

Renomination and Reconfirmation of Executive Branch

Officers Upon the Expiration of a Presidential Term

A bill prohibiting the heads of Executive and Military Departments and certain other Executive 

officers from remaining in their positions during a subsequent Presidential term unless 

renominated by the President and reconfirmed by the Senate would, if applied to officers 

appointed before the bill was enacted, unconstitutionally interfere with the President’s appointment and removal powers. Even were the bill limited to prospective effect, it would be 

subject to serious constitutional doubt as contrary to the Constitution’s placement o f the 

Executive power in the President.

March 6, 1987

L e t t e r f o r t h e C h a i r m a n ,

S e n a t e C o m m i t t e e o n t h e J u d ic ia r y

This letter presents the views of the Department of Justice on S. 318, the 

Senate Confirmation Act of 1987. The Department of Justice strongly opposes 

the enactment of this bill.

The bill would provide that the heads of the Executive and Military Departments, the United States Trade Representative, the Director of the Office of 

Management and Budget, the Director of the Central Intelligence Agency, and 

the Director of the Arms Control and Disarmament Agency who have served in 

that position during the last year of a Presidential term may not serve in the 

same position during the succeeding Presidential term unless reappointed by 

the President by and with the advice and consent of the Senate.1 The bill does 

not facially distinguish between officers appointed after its enactment and 

officers who are incumbent at the time of the bill’s enactment.

The application of the reconfirmation requirement to persons in office on the 

effective date of the bill clearly would be unconstitutional. At present, these 

incumbent officers serve at the pleasure of the President and could therefore 

remain in office after the expiration of the term of the President who appointed 

them, if he were re-elected or if a newly elected President should wish to retain

1 Section 2(b) of the bill would require that all information obtained in the course o f a background 

investigation conducted by the Federal Bureau of Investigation with respect to specified nominees which is 

transmitted to the President shall also be transmitted to the Senate. The bill does not explicitly w aive or 

preserve any statutory non-disclosure provisions that could apply to materials found in a background 

investigation, such as brand jury materials, for example. We believe that Congress should make clear its 

intent to waive or preserve any such provisions.

25
them.2 Under the bill, however, they could not serve during the next Presidential term unless reappointed by the President by and with the advice and 

consent of the Senate. Thus, the bill would purport to remove incumbent 

officers from their offices and in so doing would contravene the Constitution.

As the Supreme Court held in Myers v. United States, 272 U.S. 52, 122 

(1926), the power to remove officers of the Executive Branch is vested exclusively in the President with the exception of impeachment or the bona fide

abolition of their office. Indeed, the exclusivity of the President’s removal 

power cannot be circumvented by an attempt of the Senate to withdraw a 

confirmation; 36 Op. Att’y Gen. 382 (1931); United States v. Smith, 286 U.S. 6 

(1932); by cutting off of the salaries of incumbent officials, United States v. 

Lovett, 382 U.S. 303 (1946); by making new, limiting qualifications for an 

office applicable to an incumbent, 111 Cong. Rec. 17597-98 (1965) (statement 

of Assistant Attorney General Schlei); or by “ripper” legislation which purports to abolish an office and immediately recreate it. Veto Message re; S. 518, 

93rd Cong., 1st Sess., 9 Weekly Comp. Pres. Doc. 681 (1973).

The proposal raises constitutional concerns, even as to officers who are 

appointed after the enactment of the bill. The United States Constitution 

explicitly states: “The executive Power shall be vested in a President of the 

United States of America.” U.S. Const, art. II, §1. In addition, §3 of the same 

article provides that the President “shall take Care that the Laws be faithfully 

executed.” A law which has the effect of subjecting executive officers to 

renomination and reconfirmation by the Senate is in tension with the placement 

of the executive power in the President. If the Congress sets a duration for the 

service of executive officers, those officers will naturally be responsive to the 

concerns of the Senate in executing the laws; otherwise, those officers would 

run the risk that the Senate would not reconfirm them at the end of their term.3 

Such a sharing of the responsibility for the execution of the laws is at odds with 

separation of powers principles.4

2 The opinion o f the A ttorney General in 36 Op. Att’y Gen. 12 (1929) dealt with that situation.

3 M aking executive officers accountable in this manner to the Legislative Branch is contrary to our 

constitutional scheme. As the Supreme C ourt has explicitly recognized, the power to remove is “an indispensable aid” to the “effective enforcement o f the law.” Myers v. United States, 272 U.S. 52, 132 (1926). The 

Court, therefore, found this power to be an incident of the President's power to take care that the laws be 

faithfully executed. Last Term , in Bowsher v. Synar, 478 U.S. 714 (1986), the Supreme Court recognized the 

logical corollary to this principle'

T o perm it an officer controlled by C ongress to execute the laws would be, in essence, to permit a 

congressional veto. Congress could simply remove, or threaten to remove, an officer for executing the laws in any fashion found to unsatisfactory to Congress. This kind of congressional 

control over the execution of the law s . . . is constitutionally impermissible.

Id. at 726-27 (emphasis added). Though the encroachment on executive power posed by this bill is different 

in degree from that presented in Bowsher, in which Congress had the sole authonty to remove the Comptroller General, the principle is the same. Legislation giving Congress the effective power of removal over 

executive officers, even when applied prospectively, is questionable in view of the C onstitution’s exclusive 

vesting of the executive power in the President and his constitutional duty to take care that the laws be 

faithfully executed.

4 The C onstitution specifies the role of the Congress in the removal of executive officers: the House has the 

sole pow er o f im peachm ent, U.S. Const, art. 1, §2, cl. 5, and the Senate has the sole power to try all 

im peachm ents. Id., art. 1, §3, cl. 6.

26
Although the Tenure of Office Act of 1867 furnishes an historical example 

of legislation purporting to limit the terms of the Heads of Departments, that 

precedent hardly resolves our constitutional concerns.5 The Tenure of Office 

Act led to a constitutional crisis of immense proportions and was repealed once 

the turmoil of the Reconstruction Period had subsided. While other issues were 

also involved, we believe that this prompt repeal is some evidence of the 

suspect nature of such limitations.

On policy grounds, we believe that history demonstrates the inadvisability of 

this legislation in light of the existing power of Congress to call high government officials to account for their conduct in office. Similarly, an electorate 

dissatisfied with a President’s direction of his subordinate officers has not 

hesitated to express its view through the Presidential ballot. So too, the 

electorate’s satisfaction with such direction is expressed through the re-election of a President. The Constitution’s mechanism for democratic, electoral 

expression should not be thwarted or made dependent upon idiosyncratic 

reasons which may determine the fate of an individual reconfirmation.

We are also concerned about the disruption to the operations of the government that would be occasioned by this proposal. The present disruption which 

occurs when a new President takes office, selects new administrators and 

secures their confirmation by the Senate is an adjunct to the President’s 

constitutional responsibility for the execution of the laws. He must be able to select 

those who shall assist him in his constitutionally assigned task. There is, however, 

no corresponding constitutional justification for the interference with the operations 

of the government when a President seeks to retain officials who are in office.

We conclude, therefore, that S. 318 would be unconstitutional if applied to 

persons holding any of the offices covered by it on the effective date of the bill. 

Furthermore, in our judgment, the bill would be subject to serious constitutional doubt even if it had only a prospective effect. For these reasons, the 

Department of Justice strongly recommends against enactment of the legislation and will urge its veto should it be enacted.

The Office of Management and Budget has advised this Department that the 

submission of this report is in accord with the Administration’s program.

J o h n R . B o l t o n

Assistant Attorney General

Office o f Legislative Affairs*

5 Section 1 of the Tenure of Office Act of 1867, 14 Stat. 430, provided in pertinent part

[t]hat the Secretaries of the Treasury, of W ar, of the Navy, and of the Interior, the PostmasterGeneral, and the Attorney-General, shall hold their offices respectively for and during the term of 

the President by whom they may have been appointed and for one month thereafter, subject to 

removal by and with the advice and consent of the Senate.

This provision was enacted during the struggle between Congress and President Andrew Johnson and was 

repealed immediately after President Grant assumed the Presidency Act of Apr. 5, 1869, § 1 ,1 6 Stat. 9. The 

position of the Postm aster General was not covered by this repeal because the limitation o f the Postmaster 

General’s term had been incorporated in the legislation codifying the laws governing the Post Office 

Department. This lim itation on the tenure of the Postmaster General lasted until the recent establishment o f 

the U S Postal Service.

•NOTE* This letter was drafted by the Office of Legal Counsel for the signature of the Assistant Attorney 

General for the Office of Legislative Affairs

27