Separation of Powers Part 4

"The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the end of their next Session." (Art. II, Section 2, Cl. 3)

These appointments do not require consent of the Senate.

The recess session however must be short enough

The President appointed members of the NLRB during recess claiming it was valid under the recess appointments clause.

The Court held that the "recess" was not long enough to allow for a recess appointment and while "recess" applies to both intra-session and inter-session recesses, a recess session that does not require consent of the House or is less than 10 days is presumptively too short.

The President's power to remove is not explicitly stated in the Constitution except for impeachment.

The Court has held that the President has the power to remove officials, but if they are independent officials, then they cannot be removed without just cause. If they are purely executive officials, then they can be removed by the President for any reason.

However, in recent years, the inquiry has become more about a functionalist approach to separation of powers to determine if an official may be removed without just cause rather than whether he is a purely executive official.

For an appointment, an entity other than the President with advice and consent of the Senate can appoint inferior officers only. Principal officers may only be appointed by the President with advice and consent of the Senate.

For removal, Congress has some power to limit the President's power to remove officials. If it is a purely executive official, the early view stated that Congress had no power to intervene, but for an independent official, the officer could only be removed with just cause. After Morrison, that distinction has been modified to focus more about the shifting balance of powers between the branches of government with regard to removing independent officials without just cause.

The President fired the postmaster of Portland, Oregon. A statute said that the Senate must approve such firings. The Court held that the President has the sole power to fire the postmaster because the President alone is the head of the executive branch and must be able to select and remove the executive officials below him. The argument was a functionalist argument because there is nothing specific to point to in the Constitution for formalism to apply, and the Court was essentially saying that you cannot take the marbles from the President and give it to Congress.

Roosevelt hired the FTC commissioner that Hoover had appointed. The Court said that the President had the power to fire purely executive officials at will, but because the FTC commissioner serves roles that are independent from the executive branch, he can only be fired with just cause. These agencies are independent because they exercise quasi legislative, judicial, or executive power.

The idea that the vesting clause of the Constitution gives the president the authority to issue orders and policy directives that cannot be undone by Congress.

A statute gave the Comptroller General duties to reduce the deficit by recommending mandatory budget cuts to the President. He could be fired by members of Congress for just cause.

The Court held that the statute was unconstitutional and violated separation of powers because it gave executive authority to a Congressional official who may be fired by Congress, essentially taking marbles away from the President and giving it to Congress.

Since the Comptroller General was a purely executive official, the President, not Congress, had the sole authority to remove him at will, and he should not be given executive functions if Congress has power to remove him.

After the Saturday Night Massacre following the Watergate Scandal, Nixon removed the special prosecutor who was investigating him. In response, Congress passed the Ethics in Government Act that allowed an independent counsel to be appointed by the Attorney General and could only be removed with just cause by the AG. The Act was challenged when an independent counsel was appointed to investigate DOJ officials for obstructing justice.

The Court held that the Act did not violate separation of powers because the independent counsel could be removed only for just cause but not because she was not purely an executive official but rather because she is not taking away marbles from any other branch of government as an independent official. This aspect of executive versus on-executive of Myers was overruled.

Additionally, she was an inferior officer that could be appointed by someone other than the President with advice and consent of the Senate because her functions were limited and she could be fired by a higher official.

PCAOB was created to regulate the accounting industry. The SEC appointed a five-member board that could only be removed with just cause. The SEC commissioners were appointed by the President and also could only be removed for just cause. There was essentially a two-tier system between the President and the PCAOB.

The Court held that this two-tiered for cause removal system violated separation of powers by undermining the President's power. The President cannot take Care that the Laws be faithfully executed if he cannot oversee the faithfulness of the officers who execute them.

Often led not by one Secretary but by a multi-member board or commission. Officials are appointed by the President with advice and consent of the Senate but with restrictions based on political party. Officials have multi-year terms and can only be fired by the President "for cause") [e.g., FCC, SEC, FTC, CIA]

The Departments headed by the Cabinet Secretaries) - all high-level officials of these agencies are appointed by the President with advice and consent of the Senate. They serve "at the pleasure of the president" (he can fire them "at will") [e.g., Department of Justice, Department of State, Department of Agriculture, Department of Defense].

President Carter announced he would withdraw from a treaty with Taiwan's Republic of China. The Court could not agree and essentially dismissed the case on standing and justiciability grounds and took no action, implying that the President could do this, since it never said it could not.

Congress passed the Authorization for Use of Military Force (AUMF) after the September 11 attacks. Hamdi, a suspected terrorist, was detained by the U.S. military in Afghanistan, sent to Guantanamo Bay, and then Virginia once he was discovered to be a U.S. citizen.

While Congress gave the President authority under the AUMF to detain enemy combatants suspected of terrorism, even its own citizens, his detainment violated due process because Hamdi had no real opportunity to contest that he was not an enemy combatant.

The Court noted that the President could order the indefinite detention of enemy combatants, but this war against terror is unique because nobody knows when it will end, and it is still going on in 2019.

Secret military tribunals are unlawful since they failed to provide even minimal protection of rights.

President's detainment order was unconstitutional because it was inconsistent UCMJ statutes and the laws of war of the Geneva Convention.

Law passed by congress in 2008 that suspended Habeus Corpus

Signed by President Bush, the Act's stated purpose was "to authorize trial by military commission for violations of the law of war, and for other purposes.

It is still an open question whether a President can be prosecuted while in office. We have impeachment proceedings, but is Congress, rather than the criminal justice system, the right entity to do this?

Congress passed the Authorization for Use of Military Force (AUMF) after the September 11 attacks. Hamdi, a suspected terrorist, was detained by the U.S. military in Afghanistan, sent to Guantanamo Bay, and then Virginia once he was discovered to be a U.S. citizen.

While Congress gave the President authority under the AUMF to detain enemy combatants suspected of terrorism, even its own citizens, his detainment violated due process because Hamdi had no real opportunity to contest that he was not an enemy combatant.

The Court noted that the President could order the indefinite detention of enemy combatants, but this war against terror is unique because nobody knows when it will end, and it is still going on in 2019.

Secret military tribunals are unlawful since they failed to provide even minimal protection of rights.

President's detainment order was unconstitutional because it was inconsistent UCMJ statutes and the laws of war of the Geneva Convention.

Law passed by congress in 2008 that suspended Habeus Corpus

Signed by President Bush, the Act's stated purpose was "to authorize trial by military commission for violations of the law of war, and for other purposes.

It is still an open question whether a President can be prosecuted while in office. We have impeachment proceedings, but is Congress, rather than the criminal justice system, the right entity to do this?