CONSTITUTIONAL LAW SPRING 2008 Prof. Fischer

Class 20

Executive Appointment and Removal Power

Morrison v. Olsen (1988) [C p. 307]

• Case arose after claims of executive privilege by EPA Administrator Anne Gorsuch in relation to documents subpoenaed by a House oversight subcommittee investigating the EPA’s enforcement of the Superfund law

• Gorsuch was cited for contempt of Congress by the House (259-105)

Morrison v. Olsen (1988) [C p. 307]• House Judiciary Committee

requested Attorney General to seek the appointment of an independent counsel to investigate allegations that Ted Olson, assistant Attorney General for the OLC, had obstructed the work of the Committee by giving false and misleading testimony before a subcommittee investigating the executive privilege dispute

Morrison v. Olsen (1988)[C p. 307]• Majority opinion by

Rehnquist, joined by Brennan, White, Marshall, Blackmun, Stevens, O’Connor

• Kennedy did not participate

Morrison v. Olsen (1988) [C p. 307]

• Scalia was the only dissenter

Removal Power:

• No provision in Constitution expressly mentions the President’s authority to remove executive branch officials

• Only mention of removal: impeachement in Art. 2 s. 4

Tenure of Office Act

• Enacted in 1867 – Why?

• President Johnson’s violation of this Act led to his impeachment, but he was not convicted in the Senate (1 vote short!)

Myers v. United States (1926) [C p. 313]

• An 1876 federal law provided that "Postmasters of the first, second, and third classes shall be appointed and may be removed by the President with the advice and consent of the Senate."

Myers v. United States (1926) [C p. 313]

• Chief Justice William Howard Taft (a former president from 1909-1913) wrote the majority opinion joined by Van Devanter, Sutherland, Butler, Sanford, StoneDissent by: HolmesDissent by: McReynoldsDissent by: Brandeis

Humphrey’s Executor v. United States (1935) [C p. 314]

• Unanimous opinion written by Justice Sutherland

• FTC Act provided “any commissioner may be removed by the President for inefficiency, neglect of duty, or malfeasance while in office.”

Wiener v. United States (1958) [C p. 315]

• Did the Court apply the Humphrey’s or Myers rule?

• Did it take a formalistic or functional approach?

• Unanimous opinion by Justice Frankfurter

Bowsher v. Synar (1986) [C p. 317]

• BURGER delivered the opinion of the Court, in which BRENNAN, POWELL, REHNQUIST, and O'CONNOR joined. STEVENS filed an opinion concurring in the judgment in which MARSHALL joined. WHITE and BLACKMUN, filed dissenting opinions

Morrison v. Olson (1988) [C p. 307, 318]

• Justice Rehnquist delivered the majority opinion

• Justice Kennedy did not participate

• Justice Scalia dissented

Executive Powers and Foreign Policy

• Are the inherent powers powers greater in foreign policy affairs than domestic affairs?

• United States v. Curtiss-Wright Corp. (1935) (opinion by Sutherland; McReynolds dissented; Stone did not participate)

Treaties

• Article II s. 2 gives the president “Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.”

When may president use executive agreements instead of treaties?

• Dames & Moore v. Regan (1981) [C p. 370

• Rehnquist wrote the opinion of the Court

A. FOREIGN RELATIONS: Goldwater v. Carter (1979)