Assignments 1112

156 THE CONSTITUTION OF THE UNITED STATES (3D ED.
[Assignments 11-12]
B. SUPERVISING THE EXECUTIVE BRANCH: “IN A PRESIDENT . . . ”

Art. II, § 1: The executive Power shall be vested in a President of the United
States of America.
§ 3: . . . he shall take Care that the Laws be faithfully executed. . . .
A recurring question throughout American history is the existence and scope of
a presidential power to remove non-congressional and non-Article III officers of the
federal government. As considered above, Article II makes rules for the appointment
of executive branch officers. But it says nothing expressly about their removal (except
via impeachment). How should this silence be resolved? Is the right inference that
the president may remove any executive branch officer for malfeasance,
incompetence, or even mere policy disagreement? Do any provisions of Article II
imply a need for unfettered presidential removal power? The Vesting Clause, or
perhaps the Take Care Clause? Or does the role of the Senate in the appointment
process suggest that it has a role in removal, too? Or should all of these decisions be
up to Congress?
These questions about removal relate to some broader aspects of executive
power: Is the power to remove subordinate officers the only constitutional tool the
president has to supervise the executive branch, or are there others? For instance,
may the president simply tell other members of the executive branch how to do their
jobs? (Or should we think of every executive branch job as really the president’s job?)
Foundations of The Removal Power: The Decision of 1789

There was a heated debate in the First Congress over where the Constitution
placed the removal power, and it culminated in what has been called the Decision of
1789. In creating the first cabinet departments, Representative James Madison
proposed language that would have allowed the president, acting alone, to remove
the cabinet secretaries from office. Some representatives thought the Constitution
required this. Some thought it forbidden. And some thought Congress could allow it,
but did not have to.
William Smith, for example, “[s]aid he had doubts whether the officer could be
removed by the president; he apprehended he could only be removed by an
impeachment before the senate, and that being once in office, he must remain there
until convicted upon impeachment.” 10 THE DOCUMENTARY HISTORY OF THE FIRST
FEDERAL CONGRESS 727 (Charlene Bangs Bickford, Kenneth R. Bowling, & Helen E.
Veit eds., 1992).
Madison responded that the impeachment power “[w]as intended as a
supplemental security for the good behavior of the public officers,” but that it was
also “absolutely necessary that the president should have the power of removing from
office; it will make him, in a peculiar manner, responsible for their conduct, and
subject him to impeachment himself, if he suffers them to perpetrate with impunity
high crimes or misdemeanours against the United States, or neglects to superintend
their conduct, so as to check their excesses.” Id.
Meanwhile Theodorick Bland proposed a third approach. He “[t]hought the
power given by the constitution to the senate, respecting the appointment to office,
SUPPLEMENT 157
would be rendered almost nugatory if the president had the power of removal. . . . He
thought it consistent with the nature of things, that the power which appointed
should remove; and would not object to a declaration in the resolution, if the words
were added, that the president shall remove from office, by and with the advice and
consent of the senate.” Id. at 729.
And John Laurance suggested a fourth possibility—that Congress could decide:
“as the constitution was silent with respect to the time the secretary of foreign affairs
should remain in office, that it therefore depended upon the will of the legislature, to
say how the department should be constituted and established by law, the conditions
upon which he shall enjoy the office; we can say he shall hold it for three years from
his appointment or during good behavior, and we may declare unfitness and
incapacity, causes of removal and make the president alone judge of this case; we
may authorize the president to remove him for any cause he thinks proper.” Id. at
733.
The debate went on for weeks, and Madison eventually tied the asserted
removal power directly to the Vesting Clause:
The constitution affirms, that the executive power shall be vested in the
president: Are there exceptions to this proposition? Yes there are. The
constitution says that, in appointing to office, the senate shall be associated
with the president, unless in the case of inferior officers, when the law shall
otherwise direct. Have we a right to extend this exception? I believe not. If
the constitution has invested all executive power in the president, I venture
to assert, that the legislature has no right to diminish or modify his
executive authority.
The question now resolves itself into this. Is the power of displacing an
executive power? I conceive that if any power whatsoever is in its nature
executive it is the power of appointing, overseeing, and controling those
who execute the laws. . . . Should we be authorized, in defiance of that
clause in the constitution, “The executive power shall be vested in a
president,” to unite the senate with the president in the appointment to
office? I conceive not.
11 THE DOCUMENTARY HISTORY OF THE FIRST FEDERAL CONGRESS 868–869 (Charlene
Bangs Bickford, Kenneth R. Bowling, & Helen E. Veit eds., 1992).
Meanwhile, Fisher Ames made a more structural argument: “The constitution
places all executive power in the hands of the president, and could he personally
execute all the laws, there would be no occasion for establishing auxiliaries; but the
circumscribed powers of human nature in one man, demands the aid of others. When
the objects are widely stretched out, or greatly diversified, meandering through such
an extent of territory as what the United States possess, a minister cannot see with
his own eyes every transaction, or feel with his hands the minutiae that passes
through his department; he must therefore have assistants: But in order that he may
be responsible to his country, he must have a choice in selecting his assistants, a
control over them, with power to remove them when he finds the qualifications which
induced their appointment cease to exist.” Id. at 880.
And Ames also invoked the Take Care Clause: “In the constitution the president
is required to see the laws faithfully executed. He cannot do this without he has a
control over officers appointed to aid him in the performance of his duty. Take this
158 THE CONSTITUTION OF THE UNITED STATES (3D ED.)
power out of his hands, and you virtually strip him of his authority; you virtually
destroy his responsibility, the great security which this constitution holds out to the
people of America.” Id. at 979.
After some amendments, the final statute did indeed contain language about
presidential removal, so Madison’s side won the immediate debate. But it is not so
clear whether that reflected widespread endorsement of Madison’s constitutional
theory, or a mixed coalition of those who believed in executive power and those who
thought Congress could decide. (As you will see shortly, the Supreme Court
eventually decided that Congress had endorsed the position of Madison and Ames.
See Saikrishna Prakash, New Light on the Decision of 1789, 91 Cornell L. Rev. 1021
(2006).) But it is clear that the result was a rejection of the other two positions—that
the Senate must be involved in removal, and that impeachment is the only method
of removal.
During the debates, Madison had predicted that “[t]he decision that is at this
time made will become the permanent exposition of the constitution; and on a
permanent exposition of the constitution will depend the genius and character of the
whole government.” 11 THE DOCUMENTARY HISTORY OF THE FIRST FEDERAL
CONGRESS at 921. Indeed, within decades the debate came to be known as “the
Decision of 1789.” But it did not end all debates about the removal power.
In the 1830s, for example, President Andrew Jackson fired a secretary of the
treasury who refused to obey a presidential order to remove government deposits
from the Bank of the United States. The Senate censured President Jackson for
misconduct, and he responded with a document he called a “Protest”: It argued that
the grant of the executive power to the president gave him unlimited power to remove
executive branch subordinates. When Jackson’s party won the next election, the
Senate voted to expunge its resolution of censure.
The issue of presidential removal power arose again in the 1860s when
President Andrew Johnson attempted to derail Reconstruction by firing executive
officials he had inherited from the Lincoln administration. Congress responded by
passing a statute called the Tenure of Office Act, which required senatorial consent
before removals could be made permanent. The president denounced this statute as
unconstitutional, and in violation of the statute he tried to fire Secretary of War
Edwin Stanton (another Lincoln holdover). The House of Representatives impeached
President Johnson for doing this, and the Senate came within one vote of removing
him from office. See p. ___. The act was subsequently diluted in the Grant
administration and repealed in the first Cleveland administration.
The Supreme Court and the Removal Power: Doctrinal History

The following three cases take stock of the removal power after the Decision of
1789 and the Jackson and Johnson controversies, and before the Supreme Court’s
most recent decision in 2020: In 1926, the Supreme Court endorsed the Decision of
1789 in Myers v. United States, 272 U.S. 52 (1926). Myers established the general
principle that the president has a constitutional power of removal. Nine years later,
in Humphrey’s Executor v. United States, 295 U.S. 602 (1935), the Court announced
an important exception to the removal power—that Congress could limit presidential
removal power by creating “independent agencies,” such as the Federal Trade
Commission. Congress subsequently conferred independence on the Federal Reserve
SUPPLEMENT 159
Board and the Securities Exchange Commission, and it has created other
independent agencies, such as the National Labor Relations Board. Then in 1988,
Morrison v. Olson, 487 U.S. 654 (1988), upheld a diferent exception to the removal
power, for an independent prosecutor to investigate members of the executive
branch.
Myers v. United States

272 U.S. 52 (1926)
■ MR. CHIEF JUSTICE TAFT delivered the opinion of the Court.

This case presents the question whether under the Constitution the President
has the exclusive power of removing executive officers of the United States whom he
has appointed by and with the advice and consent of the Senate.
Myers . . . was on July 21, 1917, appointed by the President, by and with the
advice and consent of the Senate, to be a postmaster of the first class at Portland,
Oregon, for a term of four years. On January 20, 1920, Myers’ resignation was
demanded. He refused the demand. On February 2, 1920, he was removed from office
by order of the Postmaster General, acting by direction of the President. On . . .
February 10th, Myers sent a petition to the President and another to the Senate
committee on post offices, asking to be heard, if any charges were filed. He protested
to the department against his removal, and continued to do so until the end of his
term. He pursued no other occupation and drew compensation for no other service
during the interval. On April 21, 1921, he brought this suit in the Court of Claims
for his salary from the date of his removal, which, as claimed by supplemental
petition filed after July 21, 1921, the end of his term, amounted to $8,838.71. In
August, 1920, the President made a recess appointment of one Jones, who took office
September 19, 1920. . . . [The Court of Claims ruled against Myers, and he appealed
to the Supreme Court.—Editors]
By the 6th section of the Act of Congress of July 12, 1876, under which Myers
was appointed with the advice and consent of the Senate as a first-class postmaster,
it is provided that
Postmasters of the first, second, and third classes shall be appointed and
may be removed by the President by and with the advice and consent of the
Senate, and shall hold their offices for four years unless sooner removed or
suspended according to law.
The Senate did not consent to the President’s removal of Myers during his term.
If this statute in its requirement that his term should be four years unless sooner
removed by the President by and with the consent of the Senate is valid, the
appellant, Myers’ administratrix, is entitled to recover his unpaid salary for his full
term and the judgment of the Court of Claims must be reversed. The Government
maintains that the [statute is unconstitutional because] under Article II of the
Constitution the President’s power of removal of executive officers appointed by him
with the advice and consent of the Senate is full and complete without consent of the
Senate. . . . We are therefore confronted by the constitutional question and cannot
avoid it. . . .
The question where the power of removal of executive officers appointed by the
President by and with the advice and consent of the Senate was vested, was
presented early in the first session of the First Congress. . . .
[The Court then discussed, at great length, the Decision of 1789.—Editors]
[T]here is not the slightest doubt, after an examination of the record, that the vote
was, and was intended to be, a legislative declaration that the power to remove
officers appointed by the President and the Senate vested in the President alone, and
until the Johnson impeachment trial in 1868 its meaning was not doubted, even by
those who questioned its soundness. . . .
We have devoted much space to this discussion and decision of the question of
the Presidential power of removal in the First Congress, not because a Congressional
conclusion on a constitutional issue is conclusive, but, first, because of our agreement
with the reasons upon which it was avowedly based; second, because this was the
decision of the First Congress, on a question of primary importance in the
organization of the Government, made within two years after the Constitutional
Convention and within a much shorter time after its ratification; and, third, because
that Congress numbered among its leaders those who had been members of the
convention. It must necessarily constitute a precedent upon which many future laws
supplying the machinery of the new government would be based and, if erroneous,
would be likely to evoke dissent and departure in future Congresses. . . .
Congress in a number of acts, followed and enforced the legislative decision of
1789 for seventy-four years. . . . The acquiescence in the legislative decision of 1789
for nearly three-quarters of a century by all branches of the Government has been
affirmed by this Court in unmistakable terms. . . . [The Court adduced quotations
from Chancellor Kent and Justice Story, as well as from attorneys general in the
Tyler, Polk, Fillmore, and Buchanan administrations.—Editors]
We come now to consider an argument, advanced and strongly pressed on behalf
of the complainant, that this case concerns only the removal of a postmaster; that a
postmaster is an inferior officer; and that such an office was not included within the
legislative decision of 1789, which related only to superior officers to be appointed by
the President by and with the advice and consent of the Senate. . . .
The very heated discussions during General Jackson’s administration, except as
to the removal of Secretary Duane, related to the distribution of offices, which were
most of them inferior offices, and it was the operation of the legislative decision of
1789 upon the power of removal of incumbents of such offices that led the General to
refuse to comply with the request of the Senate that he give his reasons for the
removals therefrom. . . .
Section 2 of Article II, after providing that the President shall nominate and
with the consent of the Senate appoint ambassadors, other public ministers, 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, contains the proviso “but the Congress may be 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.” . . .
The power to remove inferior executive officers, like that to remove superior
executive officers, in an incident of the power to appoint them, and is in its nature
an executive power. The authority of Congress given by the excepting clause to vest
SUPPLEMENT 161
the appointment of such inferior officers in the heads of departments carries with it
authority incidentally to invest the heads of departments with power to remove. It
has been the practice of Congress to do so and this Court has recognized that power.
The Court also has recognized in the Perkins case that Congress, in committing the
appointment of such inferior officers to the heads of departments, may prescribe
incidental regulations controlling and restricting the latter in the exercise of the
power of removal. But the court never has held, nor reasonably could hold, . . . that
the excepting clause enables Congress to draw to itself, or to either branch of it, the
power to remove or the right to participate in the exercise of that power. To do this
would be to go beyond the words and implications of that clause, and to infringe the
constitutional principle of the separation of governmental powers. . . .
Summing up, then, the facts as to acquiescence by all branches of the
government in the legislative decision of 1789 as to executive officers, whether
superior or inferior, we find that from 1789 until 1863, a period of seventy-four years,
there was no act of Congress, no executive act, and no decision of this court at
variance with the declaration of the First Congress; but there was, as we have seen,
clear affirmative recognition of it by each branch of the Government.
Our conclusion on the merits, sustained by the arguments before stated, is that
Article II grants to the President the executive power of the Government—i.e., the
general administrative control of those executing the laws, including the power of
appointment and removal of executive officers—a conclusion confirmed by his
obligation to take care that the laws be faithfully executed. . . .
We come now to a period in the history of the Government when both Houses of
Congress attempted to reverse this constitutional construction, and to subject the
power of removing executive officers appointed by the President and confirmed by
the Senate to the control of the Senate—indeed, finally, to the assumed power in
Congress to place the removal of such officers anywhere in the Government.
This reversal grew out of the serious political difference between the two Houses
of Congress and President Johnson. There was a two-thirds majority of the
Republican party, in control of each House of Congress, which resented what it feared
would be Mr. Johnson’s obstructive course in the enforcement of the reconstruction
measures, in respect of the States whose people had lately been at war against the
National Government. This led the two Houses to enact legislation to curtail the then
acknowledged powers of the President. . . . [T]he Tenure of Office Act of March 2,
1867, provid[ed] that all officers appointed by and with the consent of the Senate
should hold their offices until their successors should have in like manner been
appointed and qualified, and that certain heads of departments, including the
Secretary of War, should hold their offices during the term of the President by whom
appointed and one month thereafter subject to removal by consent of the Senate. The
Tenure of Office Act was vetoed, but it was passed over the veto. The House of
Representatives preferred articles of impeachment against President Johnson for
refusal to comply with, and for conspiracy to defeat, the legislation above referred to,
but he was acquitted for lack of a two-thirds vote for conviction in the Senate. . . .
The extreme provisions of all this legislation were a full justification for the
considerations so strongly advanced by Mr. Madison and his associates in the First
Congress for insisting that the power of removal of executive officers by the President
alone was essential in the division of powers between the executive and the
legislative bodies. It exhibited in a clear degree the paralysis to which a partisan

Senate and Congress could subject the executive arm and destroy the principle of
executive responsibility and separation of powers, sought for by the framers of our
Government, if the President had no power of removal save by consent of the Senate.
It was an attempt to redistribute the powers and minimize those of the President.
After President Johnson’s term ended, the injury and invalidity of the Tenure
of Office Act in its radical innovation were immediately recognized by the executive
and objected to. General Grant, succeeding Mr. Johnson in the presidency, earnestly
recommended in his first message the total repeal of the act. . . .
While in response to this a bill for repeal of that act passed the House, it failed
in the Senate, and, though the law was changed, it still limited the presidential
power of removal . . . until 1887, when it was repealed. . . . In 1876 the act here under
discussion was passed, making the consent of the Senate necessary both to the
appointment and removal of first, second, and third class postmasters.
[I]n March, 1886, President Cleveland, in discussing the requests which the
Senate had made for his reasons for removing officials, and the assumption that the
Senate had the right to pass upon those removals and thus to limit the power of the
President, said:
“I believe the power to remove or suspend such officials is vested in the
President alone by the Constitution, which in express terms provides that
“the executive power shall be vested in a President of the United States of
America,” and that ‘he shall take care that the laws be faithfully executed.
“The Senate belongs to the legislative branch of the government. When
the Constitution by express provision superadded to its legislative duties
the right to advise and consent to appointments to office and to sit as a
court of impeachment, it conferred upon that body all the control and
regulation of Executive action supposed to be necessary for the safety of the
people; and this express and special grant of such extraordinary powers,
not in any way related to or growing out of general senatorial duties, and
in itself a departure from the general plan of our government, should be
held, under a familiar maxim of construction, to exclude every other right
of interference with Executive functions.” 11 Messages and Papers of the
Presidents, 4964.
The attitude of the Presidents on this subject has been unchanged and uniform
to the present day whenever an issue has clearly been raised. . . .
In spite of the foregoing Presidential declarations, it is contended that, since the
passage of the Tenure of Office Act, there has been general acquiescence by the
executive in the power of Congress to forbid the President alone to remove executive
officers, an acquiescence which has changed any formerly accepted constitutional
construction to the contrary. Instances are cited of the signed approval by President
Grant and other Presidents of legislation in derogation of such construction. We
think these are all to be explained, not by acquiescence therein, but by reason of the
otherwise valuable effect of the legislation approved. Such is doubtless the
explanation of the executive approval of the act of 1876, which we are considering,
for it was an appropriation act on which the section here in question was imposed as
a rider. . . .
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Other acts of Congress are referred to which contain provisions said to be

inconsistent with the 1789 decision. Since the provision for an Interstate Commerce
Commission in 1887, many administrative boards have been created whose members
are appointed by the President, by and with the advice and consent of the Senate,
and in the statutes creating them have been provisions for the removal of the
members for specified causes. Such provisions are claimed to be inconsistent with
the independent power of removal by the President. This, however, is shown to be
unfounded by the case of Shurtleff v. United States, 189 U.S. 311 (1903) [which
construed those removal provisions not to exclude the president’s constitutional power
to remove—Editors]. . . .
There are other later acts pointed out in which doubtless the inconsistency with
the independent power of the President to remove is clearer, but these cannot be said
to have really received the acquiescence of the executive branch of the Government.
Whenever there has been a real issue made in respect to the question of presidential
removals, the attitude of the executive in Congressional message has been clear and
positive against the validity of such legislation. The language of Mr. Cleveland in
1886, twenty years after the Tenure of Office Act, in his controversy with the Senate
in respect to his independence of that body in the matter of removing inferior officers
appointed by him and confirmed by the Senate, was quite as pronounced as that of
General Jackson in a similar controversy in 1835. Mr. Wilson in 1920 and Mr.
Coolidge in 1924 were quite as all-embracing in their views of the power of removal
as General Grant in 1869, and as Mr. Madison and Mr. John Adams in 1789. . . .
An argument ab inconvenienti [i.e., from inconvenience or hardship—Editors]
has been made against our conclusion in favor of the executive power of removal by
the President, without the consent of the Senate, that it will open the door to a
reintroduction of the spoils system. The evil of the spoils system aimed at in the Civil
Service Law and its amendments is in respect to inferior offices. It has never been
attempted to extend that law beyond them. Indeed Congress forbids its extension to
appointments confirmed by the Senate, except with the consent of the Senate. . . .
What, then, are the elements that enter into our decision of this case? We have,
first, a construction of the Constitution made by a Congress which was to provide by
legislation for the organization of the government in accord with the Constitution
which had just then been adopted, and in which there were, as Representatives and
Senators, a considerable number of those who had been members of the convention
that framed the Constitution and presented it for ratification. . . . This Court has
repeatedly laid down the principle that a contemporaneous legislative exposition of
the Constitution, when the founders of our government and framers of our
Constitution were actively participating in public affairs, acquiesced in for a long
term of years, fixes the construction to be given its provisions.
We are now asked to set aside this construction, thus buttressed, and adopt an
adverse view, because the Congress of the United States did so during a heated
political difference of opinion between the then President and the majority leaders of
Congress over the reconstruction measures . . . at the time of the Civil War. . . .
Without animadverting on the character of the measures taken, we are certainly
justified in saying that they should not be given the weight affecting proper
constitutional construction to be accorded to that reached by the First Congress of
the United States during a political calm and acquiesced in by the whole Government
for three-quarters of a century, especially when the new construction contended for
has never been acquiesced in by either the executive or the judicial departments. . . .
When, on the merits, we find our conclusion strongly favoring the view which
prevailed in the First Congress, we have no hesitation in holding that conclusion to
be correct; and it therefore follows that the Tenure of Office Act of 1867, in so far as
it attempted to prevent the President from removing executive officers who had been
appointed by him by and with the advice and consent of the Senate, was invalid, and
that subsequent legislation of the same effect was equally so.
For the reasons given, we must therefore hold that the provision of the law of
1876 by which the unrestricted power of removal of first-class postmasters is denied
to the President is in violation of the Constitution and invalid. . . .
■ MR. JUSTICE HOLMES, dissenting.
My Brothers MCREYNOLDS and BRANDEIS have discussed the question before us
with exhaustive research and I say a few words merely to emphasize my agreement
with their conclusion.
The arguments drawn from the executive power of the President, and from his
duty to appoint officers of the United States (when Congress does not vest the
appointment elsewhere), to take care that the laws be faithfully executed, and to
commission all officers of the United States, seem to me spiders’ webs inadequate to
control the dominant facts.
We have to deal with an office that owes its existence to Congress and that
Congress may abolish to-morrow. Its duration and the pay attached to it while it
lasts depend on Congress alone. Congress alone confers on the President the power
to appoint to it and at any time may transfer the power to other hands. With such
power over its own creation, I have no more trouble in believing that Congress has
power to prescribe a term of life for it free from any interference than I have in
accepting the undoubted power of Congress to decree its end. I have equally little
trouble in accepting its power to prolong the tenure of an incumbent until Congress
or the Senate shall have assented to his removal. The duty of the President to see
that the laws be executed is a duty that does not go beyond the laws or require him
to achieve more than Congress sees fit to leave within his power.
■ [The dissenting opinion of JUSTICE MCREYNOLDS is omitted.]
■ MR. JUSTICE BRANDEIS, dissenting.
In 1833 Mr. Justice Story, after discussing in his Commentaries on the
Constitution the much debated question concerning the President’s power of
removal, said:
If there has been any aberration from the true constitutional exposition of
the power of removal (which the reader must decide for himself), it will be
difficult, and perhaps impracticable, after forty years’ experience, to recall
the practice to the correct theory. But, at all events, it will be a consolation
to those who love the Union, and honor a devotion to the patriotic discharge
of duty, that in regard to “inferior officers” (which appellation probably
includes ninety-nine out of a hundred of the lucrative offices in the
government), the remedy for any permanent abuse is still within the power
of Congress, by the simple expedient of requiring the consent of the Senate
to removals in such cases.
SUPPLEMENT 165
Postmasters are inferior officer. Congress might have vested their appointment
in the head of the department. . . .
[The challenged] statute has been in force unmodified for half a century.
Throughout the period, it has governed a large majority of all civil officers to which
appointments are made by and with the advice and consent of the Senate. May the
President, having acted under the statute in so far as it creates the office and
authorizes the appointment, ignore, while the Senate is in session, the provision
which prescribes the condition under which a removal may take place?
It is this narrow question, and this only. which we are required to decide. We
need not consider what power the President, being Commander-in-Chief, has over
officers in the Army and the Navy. We need not determine whether the President,
acting alone, may remove high political officers. We need not even determine
whether, acting alone, he may remove inferior civil officers when the Senate is not
in session. It was in session when the President purported to remove Myers, and for
a long time thereafter. . . .
The contention that Congress is powerless to make consent of the Senate a
condition of removal by the President from an executive office rests mainly upon the
clause in § 1 of Article II which declares that “the executive Power shall be vested in
a President.” The argument is that appointment and removal of officials are
executive prerogatives; that the grant to the President of “the executive power”
confers upon him, as inherent in the office, the power to exercise these two functions
without restriction by Congress, except in so far as the power to restrict his exercise
of then is expressly conferred upon Congress by the Constitution; that in respect to
appointment certain restrictions of the executive power are so provided for; but that
in respect to removal there is no express grant to Congress of any power to limit the
President’s prerogative. The simple answer to the argument is this: The ability to
remove a subordinate executive officer, being an essential of effective government,
will, in the absence of express constitutional provision to the contrary, be deemed to
have been vested in some person or body. But it is not a power inherent in a chief
executive. The President’s power of removal from statutory civil inferior offices, like
the power of appointment to them, comes immediately from Congress. It is true that
the exercise of the power of removal is said to be an executive act, and that when the
Senate grants or withholds consent to a removal by the President, it participates in
an executive act. But the Constitution has confessedly granted to Congress the
legislative power to create offices, and to prescribe the tenure thereof; and it has not
in terms denied to Congress the power to control removals. . . .
It is also argued that the clauses in Article II, § 3, of the Constitution, which
declare that the President “shall take Care that the Laws be faithfully executed, and
shall Commission all the Officers of the United States” imply a grant to the President
of the alleged uncontrollable power of removal. I do not find in either clause anything
which supports this claim. The provision that the President “shall Commission all
the Officers of the United States” clearly bears no such implication. Nor can it be
spelled out of the direction that “he shall take Care that the Laws be faithfully
executed.” There is no express grant to the President of incidental powers resembling
those conferred upon Congress by clause 18 of Article I, § 8. . . . A power essential to
protection against pressing dangers incident to disloyalty in the civil service may
well be deemed inherent in the executive office. But that need, and also
insubordination and neglect of duty, are adequately provided against by implying in
the President the constitutional power of suspension. . . . Power to remove, as well

as to suspend, a high political officer, might conceivably be deemed indispensable to
democratic government and, hence, inherent in the President. But power to remove
an inferior administrative officer appointed for a fixed term cannot conceivably be
deemed an essential of government.
To imply a grant to the President of the uncontrollable power of removal from
statutory inferior executive offices involves an unnecessary and indefensible
limitation upon the constitutional power of Congress to fix the tenure of the inferior
statutory offices. That such a limitation cannot be justified on the ground of necessity
is demonstrated by the practice of our governments, state and national. In none of
the original 13 states did the chief executive possess such power at the time of the
adoption of the federal Constitution. In none of the 48 states has such power been
conferred at any time since by a state constitution, with a single possible exception.
In a few states the Legislature has granted to the Governor, or other appointing
power, the absolute power of removal. The legislative practice of most states reveals
a decided tendency to limit, rather than to extend, the Governor’s power of removal.
The practice of the Federal Government will be set forth in detail.
Over removal from inferior civil offices, Congress has, from the foundation of
our Government, exercised continuously some measure of control by legislation. The
instances of such laws are many. Some of the statutes were directory in character.
Usually, they were mandatory. Some of them, comprehensive in scope, have endured
for generations. During the first 40 years of our Government, there was no occasion
to curb removals. Then, the power of Congress was exerted to ensure removals. . . .
In the later period, which began after the spoils system had prevailed for a
generation, the control of Congress over inferior offices was exerted to prevent
removals. The removal clause here in question was first introduced by the Currency
Act of February 25, 1863, which was approved by President Lincoln. That statute
provided for the appointment of the Comptroller, and that he “shall hold his office
for the term of five years unless sooner removed by the President, by and with the
advice and consent of the Senate.” In 1867 this provision was inserted in the Tenure
of Office Act of March 2, 1867, which applied, in substance, to all presidential offices.
It was passed over President Johnson’s veto. . . .
By Act of June 8, 1872, a consolidation and revision of the postal laws was made.
The removal clause was inserted in section 63 in the precise form in which it had
first appeared in the Currency Act of 1863. . . . [This] postal statute [was] approved
by President Grant. When President Cleveland secured, by Act of March 3, 1887, the
repeal of the [Tenure of Office Act], he made no attempt to apply the repeal to
postmasters, although postmasters constituted then, as they have ever since, a large
majority of all presidential appointees. The removal clause, which had become
operative as to them by specific legislation, was continued in force. For more than
half a century this postal law has stood unmodified. No President has recommended
to Congress that it be repealed. A few proposals for repeal have been made by bills
introduced in the House. Not one of them has been considered by it. . . .
The assertion that the mere grant by the Constitution of executive power confers
upon the President as a prerogative the unrestricted power of appointment and of
removal from executive offices, except so far as otherwise expressly provided by the
Constitution, is clearly inconsistent also with those statutes which restrict the
SUPPLEMENT 167
exercise by the President of the power of nomination. . . . [A] multitude of laws have
been enacted which limit the President’s power to make nominations, and which
through the restrictions imposed, may prevent the selection of the person deemed by
him best fitted. . . .
Thus Congress has, from time to time, restricted the President’s selection by the
requirement of citizenship. It has limited the power of nomination by providing that
the office may be held only by a resident of the United States; of a state; of a
particular state; of a particular district; of a particular territory; of the District of
Columbia; of a particular foreign country. It has limited the power of nomination
further by prescribing specific professional attainments, or occupational experience.
It has, in other cases, prescribed the test of examinations. It has imposed the
requirement of age; of sex; of races; of property; and of habitual temperance in the
use of intoxicating liquors. Congress has imposed like restrictions on the power of
nomination by requiring political representation; or that the selection be made on a
nonpartisan basis. It has required, in some cases, that the representation be
industrial; in others, that it be geographic. It has at times required that the
President’s nominees be taken from, or include representatives from, particular
branches or departments of the government. By still other statutes, Congress has
confined the President’s selection to a small number of persons to be named by
others. . . .
The historical data submitted present a legislative practice, established by
concurrent affirmative action of Congress and the President, to make consent of the
Senate a condition of removal from statutory inferior, civil, executive offices to which
the appointment is made for a fixed term by the President with such consent. They
show that the practice has existed, without interruption, continuously for the last
fifty-eight years; that throughout this period, it has governed a great majority of all
such offices; that the legislation applying the removal clause specifically to the office
of postmaster was enacted more than half a century ago; and that recently the
practice has, with the President’s approval, been extended to several newly created
offices. . . . A persistent legislative practice which involves a delimitation of the
respective powers of Congress and the President, and which has been so established
and maintained, should be deemed tantamount to judicial construction, in the
absence of any decision by any court to the contrary. United States v. Midwest Oil
Co., 236 U.S. 459, 469 (1915). . . .
[The dissent disputed the majority’s characterization of the 1789 debate, and also
argued that it was applicable only to “high political office, not to inferior
ones.”—Editors]
It is true that several Presidents have asserted that the Constitution conferred
a power of removal uncontrollable by Congress. But of the many statutes enacted
since the foundation of our government which in express terms controlled the power
of removal, either by the clause here in question or otherwise, only two were met
with a veto: The Tenure of Office Act of 1867, which related to high political officers
among others, and the Budget Act of 1921, which denied to the President any
participation in the removal of the Comptroller and Assistant Comptroller. One was
passed over the President’s veto; the other was approved by the succeeding
President. It is true also that several Presidents have at times insisted that for the
exercise of their power they were not accountable to the Senate. But even these
Presidents have at other times complied with requests that the ground of removal of
inferior officers be stated. Many of the Presidents have furnished the desired
information without questioning the right to request it. And neither the Senate nor
the House has at any time receded from the claim that Congress has power both to
control by legislation removal from inferior offices and to require the President to
report to it the reasons for removals made therefrom. . . . A construction given to the
Constitution by the concurrent affirmative action of Congress and the President
continued throughout a long period without interruption should be followed despite
the isolated utterances, made in the heat of political controversies not involving the
question here in issue by individual Presidents supported only by the advice of the
Attorney General. . . .
Checks and balances were established in order that this should be “a
government of laws and not of men.” As White said in the House in 1789, an
uncontrollable power of removal in the Chief Executive “is a doctrine not to be
learned in American governments.” . . . In order to prevent arbitrary executive
action, the Constitution provided in terms that presidential appointments be made
with the consent of the Senate, unless Congress should otherwise provide; and this
clause was construed by Alexander Hamilton in The Federalist, No. 77, as requiring
like consent to removals. Limiting further executive prerogatives customary in
monarchies, the Constitution empowered Congress to vest the appointment of
inferior officers, “as we think proper, in the President alone, in the Courts of Law, or
in the Heads of Departments.” Nothing in support of the claim of uncontrollable
power can be inferred from the silence of the convention of 1787 on the subject of
removal. For the outstanding fact remains that every specific proposal to confer such
uncontrollable power upon the President was rejected. In America, as in England,
the conviction prevailed then that the people must look to representative assemblies
for the protection of their liberties. And protection of the individual, even if he be an
official, from the arbitrary or capricious exercise of power was then believed to be an
essential of free government.
Humphrey’s Executor v. United States

295 U.S. 602 (1935)
■ MR. JUSTICE SUTHERLAND delivered the opinion of the Court.

Plaintiff brought suit in the Court of Claims against the United States to recover
a sum of money alleged to be due the deceased for salary as a Federal Trade
Commissioner from October 8, 1933, when the President undertook to remove him
from office, to the time of his death on February 14, 1934. The court below has
certified to this court two questions in respect of the power of the President to make
the removal. . . .
William E. Humphrey, the decedent, on December 10, 1931, was nominated by
President Hoover to succeed himself as a member of the Federal Trade Commission,
and was confirmed by the United States Senate. He was duly commissioned for a
term of seven years, expiring September 25, 1938; and, after taking the required oath
of office, entered upon his duties. On July 25, 1933, President Roosevelt addressed a
letter to the commissioner asking for his resignation, on the ground “that the aims
and purposes of the Administration with respect to the work of the Commission can
be carried out most effectively with personnel of my own selection,” but disclaiming
any reflection upon the commissioner personally or upon his services. The
SUPPLEMENT 169
commissioner replied, asking time to consult his friends. After some further
correspondence upon the subject, the President on August 31, 1933, wrote the
commissioner expressing the hope that the resignation would be forthcoming, and
saying: “You will, I know, realize that I do not feel that your mind and my mind go
along together on either the policies or the administering of the Federal Trade
Commission, and, frankly, I think it is best for the people of this country that I should
have a full confidence.”
The commissioner declined to resign; and on October 7, 1933, the President
wrote him: “Effective as of this date you are hereby removed from the office of
Commissioner of the Federal Trade Commission.”
Humphrey never acquiesced in this action, but continued thereafter to insist
that he was still a member of the commission, entitled to perform its duties and
receive the compensation provided by law at the rate of $10,000 per annum. . . .
[The Court first construed Section 1 of the Federal Trade Commission Act—
which states that “any commissioner may be removed by the President for:
(1) inefficiency, (2) neglect of duty, or (3) malfeasance in office”—as if it allowed the
president to remove a commissioner only for those three reasons.—Editors]
We conclude that the intent of the act is to limit the executive power of removal
to the causes enumerated, the existence of none of which is claimed here; and we
pass to the [constitutional] question.
[T]o support its contention that the removal provision of section 1, as we have
just construed it, is an unconstitutional interference with the executive power of the
President, the government’s chief reliance is Myers v. United States, 272 U.S. 52
(1926). That case has been so recently decided, and the prevailing and dissenting
opinions so fully review the general subject of the power of executive removal, that
further discussion would add little of value to the wealth of material there collected.
These opinions examine at length the historical, legislative, and judicial data bearing
upon the question, beginning with what is called “the decision of 1789” in the first
Congress and coming down almost to the day when the opinions were delivered. They
occupy 243 pages of the volume in which they are printed. Nevertheless, the narrow
point actually decided was only that the President had power to remove a postmaster
of the first class, without the advice and consent of the Senate as required by act of
Congress. In the course of the opinion of the court, expressions occur which tend to
sustain the government’s contention, but these are beyond the point involved and,
therefore, do not come within the rule of stare decisis. In so far as they are out of
harmony with the views here set forth, these expressions are disapproved. . . .
The office of a postmaster is so essentially unlike the office now involved that
the decision in the Myers case cannot be accepted as controlling our decision here. A
postmaster is an executive officer restricted to the performance of executive
functions. He is charged with no duty at all related to either the legislative or judicial
power. The actual decision in the Myers case finds support in the theory that such
an officer is merely one of the units in the executive department and, hence,
inherently subject to the exclusive and illimitable power of removal by the Chief
Executive, whose subordinate and aid he is. Putting aside dicta, which may be
followed if sufficiently persuasive but which are not controlling, the necessary reach
of the decision goes far enough to include all purely executive officers. It goes no
farther; much less does it include an officer who occupies no place in the executive
department and who exercises no part of the executive power vested by the
Constitution in the President.
The Federal Trade Commission is an administrative body created by Congress
to carry into effect legislative policies embodied in the statute in accordance with the
legislative standard therein prescribed, and to perform other specified duties as a
legislative or as a judicial aid. Such a body cannot in any proper sense be
characterized as an arm or an eye of the executive. Its duties are performed without
executive leave and, in the contemplation of the statute, must be free from executive
control. In administering the provisions of the statute in respect of “unfair methods
of competition,” that is to say, in filling in and administering the details embodied
by that general standard, the commission acts in part quasi legislatively and in part
quasi judicially. In making investigations and reports thereon for the information of
Congress under section 6, in aid of the legislative power, it acts as a legislative
agency. Under section 7, which authorizes the commission to act as a master in
chancery under rules prescribed by the court, it acts as an agency of the judiciary.
To the extent that it exercises any executive function, as distinguished from
executive power in the constitutional sense, it does so in the discharge and
effectuation of its quasi legislative or quasi judicial powers, or as an agency of the
legislative or judicial departments of the government. . . .
We think it plain under the Constitution that illimitable power of removal is not
possessed by the President in respect of officers of the character of those just named.
The authority of Congress, in creating quasi legislative or quasi judicial agencies, to
require them to act in discharge of their duties independently of executive control
cannot well be doubted; and that authority includes, as an appropriate incident,
power to fix the period during which they shall continue, and to forbid their removal
except for cause in the meantime. For it is quite evident that one who holds his office
only during the pleasure of another cannot be depended upon to maintain an attitude
of independence against the latter’s will. . . .
The power of removal here claimed for the President . . . threatens the
independence of a commission, which is not only wholly disconnected from the
executive department, but which, as already fully appears, was created by Congress
as a means of carrying into operation legislative and judicial powers, and as an
agency of the legislative and judicial departments.
In the light of the question now under consideration, we have re-examined the
precedents referred to in the Myers case, and find nothing in them to justify a
conclusion contrary to that which we have reached. The so-called “decision of 1789”
had relation to a bill proposed by Mr. Madison to establish an executive Department
of Foreign Affairs. . . . We shall not discuss the subject further, since it is so fully
covered by the opinions in the Myers case, except to say that the office under
consideration by Congress was not only purely executive, but the officer one who was
responsible to the President, and to him alone, in a very definite sense. A reading of
the debates shows that the President’s illimitable power of removal was not
considered in respect of other than executive officers. And it is pertinent to observe
that when, at a later time, the tenure of office for the Comptroller of the Treasury
was under consideration, Mr. Madison quite evidently thought that, since the duties
of that office were not purely of an executive nature but partook of the judiciary
quality as well, a different rule in respect of executive removal might well apply. . . .
SUPPLEMENT 171
The result of what we now have said is this: Whether the power of the President
to remove an officer shall prevail over the authority of Congress to condition the
power by fixing a definite term and precluding a removal except for cause will depend
upon the character of the office; the Myers decision, affirming the power of the
President alone to make the removal, is confined to purely executive officers; and as
to officers of the kind here under consideration, we hold that no removal can be made
during the prescribed term for which the officer is appointed, except for one or more
of the causes named in the applicable statute.
To the extent that, between the decision in the Myers case, which sustains the
unrestrictable power of the President to remove purely executive officers, and our
present decision that such power does not extend to an office such as that here
involved, there shall remain a field of doubt, we leave such cases as may fall within
it for future consideration and determination as they may arise.
■ MR. JUSTICE MCREYNOLDS agrees [for reasons stated in his dissent] in Myers v.
United States. . . .
Morrison v. Olson
487 U.S. 654 (1988)
■ CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.

This case presents us with a challenge to the independent counsel provisions of
the Ethics in Government Act of 1978. We hold today that these provisions of the Act
do not violate the Appointments Clause of the Constitution, Art. II, § 2, cl. 2, or the
limitations of Article III, nor do they impermissibly interfere with the President’s
authority under Article II in violation of the constitutional principle of separation of
powers.
I
Briefly stated, Title VI of the Ethics in Government Act (the Act) allows for the
appointment of an “independent counsel” to investigate and, if appropriate,
prosecute certain high-ranking Government officials for violations of federal criminal
laws. The Act requires the Attorney General, upon receipt of information that he
determines is “sufficient to constitute grounds to investigate whether any person
[covered by the Act] may have violated any Federal criminal law,” to conduct a
preliminary investigation of the matter. When the Attorney General has completed
this investigation, or 90 days has elapsed, he is required to report to a special court
(the Special Division) created by the Act “for the purpose of appointing independent
counsels.” . . . The Attorney General’s application to the court “shall contain
sufficient information to assist the [court] in selecting an independent counsel and
in defining that independent counsel’s prosecutorial jurisdiction.” Upon receiving
this application, the Special Division “shall appoint an appropriate independent
counsel and shall define that independent counsel’s prosecutorial jurisdiction.”
With respect to all matters within the independent counsel’s jurisdiction, the
Act grants the counsel “full power and independent authority to exercise all
investigative and prosecutorial functions and powers of the Department of Justice,
the Attorney General, and any other officer or employee of the Department of
Justice.” The functions of the independent counsel include conducting grand jury
proceedings and other investigations, participating in civil and criminal court
proceedings and litigation, and appealing any decision in any case in which the
counsel participates in an official capacity. Under [the Act], the counsel’s powers
include “initiating and conducting prosecutions in any court of competent
jurisdiction, framing and signing indictments, filing informations, and handling all
aspects of any case, in the name of the United States.” The counsel may appoint
employees, may request and obtain assistance from the Department of Justice, and
may accept referral of matters from the Attorney General if the matter falls within
the counsel’s jurisdiction as defined by the Special Division. The Act also states that
an independent counsel “shall, except where not possible, comply with the written or
other established policies of the Department of Justice respecting enforcement of the
criminal laws.” In addition, whenever a matter has been referred to an independent
counsel under the Act, the Attorney General and the Justice Department are
required to suspend all investigations and proceedings regarding the matter. An
independent counsel has “full authority to dismiss matters within [his or her]
prosecutorial jurisdiction without conducting an investigation or at any subsequent
time before prosecution, if to do so would be consistent” with Department of Justice
policy.
Two statutory provisions govern the length of an independent counsel’s tenure
in office. The first defines the procedure for removing an independent counsel.
Section 596(a)(1) provides:
An independent counsel appointed under this chapter may be removed from
office, other than by impeachment and conviction, only by the personal
action of the Attorney General and only for good cause, physical disability,
mental incapacity, or any other condition that substantially impairs the
performance of such independent counsel’s duties.
. . . [The attorney general’s decision to terminate under this provision is subject to
judicial review.—Editors]
The other provision governing the tenure of the independent counsel defines the
procedures for “terminating” the counsel’s office. Under § 596(b)(1), the office of an
independent counsel terminates when he or she notifies the Attorney General that
he or she has completed or substantially completed any investigations or
prosecutions undertaken pursuant to the Act. In addition, the Special Division,
acting either on its own or on the suggestion of the Attorney General, may terminate
the office of an independent counsel at any time if it finds that “the investigation of
all matters within the prosecutorial jurisdiction of such independent counsel . . . have
been completed or so substantially completed that it would be appropriate for the
Department of Justice to complete such investigations and prosecutions.” . . .
[The Court then discussed the facts at some length, as well as a jurisdictional
issue.—Editors]
III
The Appointments Clause of Article II reads as follows:
“[The President] 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
SUPPLEMENT 173
President alone, in the Courts of Law, or in the Heads of Departments.”

U.S. Const., Art. II, § 2, cl. 2.
. . . The parties do not dispute that “[t]he Constitution for purposes of
appointment . . . divides all its officers into two classes.” United States v. Germaine,
99 U.S. (9 Otto) 508, 509 (1879). As we stated in Buckley v. Valeo, 424 U.S. 1, 132
(1976): “[P]rincipal officers are selected by the President with the advice and consent
of the Senate. Inferior officers Congress may allow to be appointed by the President
alone, by the heads of departments, or by the Judiciary.” The initial question is,
accordingly, whether appellant is an “inferior” or a “principal” officer. If she is the
latter, as the Court of Appeals concluded, then the Act is in violation of the
Appointments Clause.
The line between “inferior” and “principal” officers is one that is far from clear,
and the Framers provided little guidance into where it should be drawn. We need
not attempt here to decide exactly where the line falls between the two types of
officers, because in our view appellant clearly falls on the “inferior officer” side of
that line. Several factors lead to this conclusion.
First, appellant is subject to removal by a higher Executive Branch official.
Although appellant may not be “subordinate” to the Attorney General (and the
President) insofar as she possesses a degree of independent discretion to exercise the
powers delegated to her under the Act, the fact that she can be removed by the
Attorney General indicates that she is to some degree “inferior” in rank and
authority. Second, appellant is empowered by the Act to perform only certain, limited
duties. An independent counsel’s role is restricted primarily to investigation and, if
appropriate, prosecution for certain federal crimes. Admittedly, the Act delegates to
appellant “full power and independent authority to exercise all investigative and
prosecutorial functions and powers of the Department of Justice,” but this grant of
authority does not include any authority to formulate policy for the Government or
the Executive Branch, nor does it give appellant any administrative duties outside
of those necessary to operate her office. The Act specifically provides that in policy
matters appellant is to comply to the extent possible with the policies of the
Department.
Third, appellant’s office is limited in jurisdiction. Not only is the Act itself
restricted in applicability to certain federal officials suspected of certain serious
federal crimes, but an independent counsel can only act within the scope of the
jurisdiction that has been granted by the Special Division pursuant to a request by
the Attorney General. Finally, appellant’s office is limited in tenure. There is
concededly no time limit on the appointment of a particular counsel. Nonetheless,
the office of independent counsel is “temporary” in the sense that an independent
counsel is appointed essentially to accomplish a single task, and when that task is
over the office is terminated, either by the counsel herself or by action of the Special
Division. Unlike other prosecutors, appellant has no ongoing responsibilities that
extend beyond the accomplishment of the mission that she was appointed for and
authorized by the Special Division to undertake. In our view, these factors relating
to the “ideas of tenure, duration . . . and duties” of the independent counsel,
Germaine, at 511, are sufficient to establish that appellant is an “inferior” officer in
the constitutional sense. . . .
[The Court also upheld the role of federal judges in appointing the independent
counsel.—Editors]
V
We now turn to consider whether the Act is invalid under the constitutional
principle of separation of powers. Two related issues must be addressed: The first is
whether the provision of the Act restricting the Attorney General’s power to remove
the independent counsel to only those instances in which he can show “good cause,”
taken by itself, impermissibly interferes with the President’s exercise of his
constitutionally appointed functions. The second is whether, taken as a whole, the
Act violates the separation of powers by reducing the President’s ability to control
the prosecutorial powers wielded by the independent counsel.
A
Two Terms ago we had occasion to consider whether it was consistent with the
separation of powers for Congress to pass a statute that authorized a Government
official who is removable only by Congress to participate in what we found to be
“executive powers.” Bowsher v. Synar, 478 U.S. 714, 730 (1986). We held in Bowsher
that “Congress cannot reserve for itself the power of removal of an officer charged
with the execution of the laws except by impeachment.” Id., at 726. A primary
antecedent for this ruling was our 1926 decision in Myers v. United States, 272 U.S.
52 (1926). . . .
Unlike both Bowsher and Myers, this case does not involve an attempt by
Congress itself to gain a role in the removal of executive officials other than its
established powers of impeachment and conviction. The Act instead puts the removal
power squarely in the hands of the Executive Branch; an independent counsel may
be removed from office, “only by the personal action of the Attorney General, and
only for good cause.” There is no requirement of congressional approval of the
Attorney General’s removal decision, though the decision is subject to judicial
review. In our view, the removal provisions of the Act make this case more analogous
to Humphrey’s Executor, 295 U.S. 602 (1935), and Wiener v. United States, 357 U.S.
349 (1958), than to Myers or Bowsher. . . .
Appellees contend that Humphrey’s Executor and Wiener are distinguishable
from this case because they did not involve officials who performed a “core executive
function.” They argue that our decision in Humphrey’s Executor rests on a distinction
between “purely executive” officials and officials who exercise “quasi-legislative” and
“quasi-judicial” powers. In their view, when a “purely executive” official is involved,
the governing precedent is Myers, not Humphrey’s Executor. See Humphrey’s
Executor, at 628. And, under Myers, the President must have absolute discretion to
discharge “purely” executive officials at will. See Myers, at 132–134.
We undoubtedly did rely on the terms “quasi-legislative” and “quasi-judicial” to
distinguish the officials involved in Humphrey’s Executor and Wiener from those in
Myers, but our present considered view is that the determination of whether the
Constitution allows Congress to impose a “good cause”-type restriction on the
President’s power to remove an official cannot be made to turn on whether or not
that official is classified as “purely executive.” The analysis contained in our removal
cases is designed not to define rigid categories of those officials who may or may not
be removed at will by the President, but to ensure that Congress does not interfere
with the President’s exercise of the “executive power” and his constitutionally
SUPPLEMENT 175
appointed duty to “take care that the laws be faithfully executed” under Article II.
Myers was undoubtedly correct in its holding, and in its broader suggestion that
there are some “purely executive” officials who must be removable by the President
at will if he is to be able to accomplish his constitutional role.29 See 272 U.S., at 132–
134. But as the Court noted in Wiener:
The assumption was short-lived that the Myers case recognized the
President’s inherent constitutional power to remove officials no matter
what the relation of the executive to the discharge of their duties and no
matter what restrictions Congress may have imposed regarding the nature
of their tenure. . . . 357 U.S., at 352.
At the other end of the spectrum from Myers, the characterization of the
agencies in Humphrey’s Executor and Wiener as “quasi-legislative” or “quasi-judicial”
in large part reflected our judgment that it was not essential to the President’s proper
execution of his Article II powers that these agencies be headed up by individuals
who were removable at will. We do not mean to suggest that an analysis of the
functions served by the officials at issue is irrelevant. But the real question is
whether the removal restrictions are of such a nature that they impede the
President’s ability to perform his constitutional duty, and the functions of the
officials in question must be analyzed in that light.
Considering for the moment the “good cause” removal provision in isolation from
the other parts of the Act at issue in this case, we cannot say that the imposition of
a “good cause” standard for removal by itself unduly trammels on executive
authority. There is no real dispute that the functions performed by the independent
counsel are “executive” in the sense that they are law enforcement functions that
typically have been undertaken by officials within the Executive Branch. As we
noted above, however, the independent counsel is an inferior officer under the
Appointments Clause, with limited jurisdiction and tenure and lacking policymaking
or significant administrative authority. Although the counsel exercises no small
amount of discretion and judgment in deciding how to carry out his or her duties
under the Act, we simply do not see how the President’s need to control the exercise
of that discretion is so central to the functioning of the Executive Branch as to require
as a matter of constitutional law that the counsel be terminable at will by the
President.
Nor do we think that the “good cause” removal provision at issue here
impermissibly burdens the President’s power to control or supervise the independent
counsel, as an executive official, in the execution of his or her duties under the Act.
This is not a case in which the power to remove an executive official has been
completely stripped from the President, thus providing no means for the President
to ensure the “faithful execution” of the laws. Rather, because the independent
counsel may be terminated for “good cause,” the Executive, through the Attorney
General, retains ample authority to assure that the counsel is competently
performing his or her statutory responsibilities in a manner that comports with the
29 The dissent says that the language of Article II vesting the executive power of the United States
in the President requires that every officer of the United States exercising any part of that power must
serve at the pleasure of the President and be removable by him at will. This rigid demarcation—a
demarcation incapable of being altered by law in the slightest degree, and applicable to tens of thousands
of holders of offices neither known nor foreseen by the Framers—depends upon an extrapolation from
general constitutional language which we think is more than the text will bear. . . .
provisions of the Act. Although we need not decide in this case exactly what is
encompassed within the term “good cause” under the Act, the legislative history of
the removal provision also makes clear that the Attorney General may remove an
independent counsel for “misconduct.” See H.R. Conf. Rep. No. 100–452, p. 37
(1987). . . . We do not think that this limitation as it presently stands sufficiently
deprives the President of control over the independent counsel to interfere
impermissibly with his constitutional obligation to ensure the faithful execution of
the laws. . . .
B
The final question to be addressed is whether the Act, taken as a whole, violates
the principle of separation of powers by unduly interfering with the role of the
Executive Branch. . . .
We observe first that this case does not involve an attempt by Congress to
increase its own powers at the expense of the Executive Branch. Unlike some of our
previous cases, most recently Bowsher v. Synar, this case simply does not pose a
“dange[r] of congressional usurpation of Executive Branch functions.” 478 U.S. at
727. Indeed, with the exception of the power of impeachment—which applies to all
officers of the United States-Congress retained for itself no powers of control or
supervision over an independent counsel. The Act does empower certain Members of
Congress to request the Attorney General to apply for the appointment of an
independent counsel, but the Attorney General has no duty to comply with the
request, although he must respond within a certain time limit. Other than that,
Congress’ role under the Act is limited to receiving reports or other information and
oversight of the independent counsel’s activities, functions that we have recognized
generally as being incidental to the legislative function of Congress. See McGrain v.
Daugherty, 273 U.S. 135, 174 (1927).
Similarly, we do not think that the Act works any judicial usurpation of properly
executive functions. As should be apparent from our discussion of the Appointments
Clause above, the power to appoint inferior officers such as independent counsel is
not in itself an “executive” function in the constitutional sense, at least when
Congress has exercised its power to vest the appointment of an inferior office in the
“courts of Law.” . . .
Finally, we do not think that the Act “impermissibly undermine[s]” the powers
of the Executive Branch, Commodity Futures Trading Comm’n v. Schor, 478 U.S.
833, 856 (1986), or “disrupts the proper balance between the coordinate branches
[by] prevent [ing] the Executive Branch from accomplishing its constitutionally
assigned functions,” Nixon v. Administrator of General Services, 433 U.S. 425, 442
(1977). It is undeniable that the Act reduces the amount of control or supervision
that the Attorney General and, through him, the President exercises over the
investigation and prosecution of a certain class of alleged criminal activity. The
Attorney General is not allowed to appoint the individual of his choice; he does not
determine the counsel’s jurisdiction; and his power to remove a counsel is
limited. Nonetheless, the Act does give the Attorney General several means of
supervising or controlling the prosecutorial powers that may be wielded by an
independent counsel. Most importantly, the Attorney General retains the power to
remove the counsel for “good cause,” a power that we have already concluded
provides the Executive with substantial ability to ensure that the laws are “faithfully
SUPPLEMENT 177
executed” by an independent counsel. No independent counsel may be appointed

without a specific request by the Attorney General, and the Attorney General’s
decision not to request appointment if he finds “no reasonable grounds to believe that
further investigation is warranted” is committed to his unreviewable discretion. The
Act thus gives the Executive a degree of control over the power to initiate an
investigation by the independent counsel. In addition, the jurisdiction of the
independent counsel is defined with reference to the facts submitted by the Attorney
General, and once a counsel is appointed, the Act requires that the counsel abide by
Justice Department policy unless it is not “possible” to do so. Notwithstanding the
fact that the counsel is to some degree “independent” and free from executive
supervision to a greater extent than other federal prosecutors, in our view these
features of the Act give the Executive Branch sufficient control over the independent
counsel to ensure that the President is able to perform his constitutionally assigned
duties. . . .
■ JUSTICE SCALIA, dissenting.
It is the proud boast of our democracy that we have “a government of laws and
not of men.” Many Americans are familiar with that phrase; not many know its
derivation. It comes from Part the First, Article XXX, of the Massachusetts
Constitution of 1780, which reads in full as follows:
In the government of this Commonwealth, the legislative department shall
never exercise the executive and judicial powers, or either of them: The
executive shall never exercise the legislative and judicial powers, or either
of them: The judicial shall never exercise the legislative and executive
powers, or either of them: to the end it may be a government of laws and
not of men.
The framers of the Federal Constitution similarly viewed the principle of
separation of powers as the absolutely central guarantee of a just Government. In
No. 47 of The Federalist, Madison wrote that “[n]o political truth is certainly of
greater intrinsic value, or is stamped with the authority of more enlightened patrons
of liberty.” The Federalist No. 47. Without a secure structure of separated powers,
our Bill of Rights would be worthless, as are the bills of rights of many nations of the
world that have adopted, or even improved upon, the mere words of ours.
The principle of separation of powers is expressed in our Constitution in the first
section of each of the first three Articles. . . .
But just as the mere words of a Bill of Rights are not self-effectuating, the
Framers recognized “[t]he insufficiency of a mere parchment delineation of the
boundaries” to achieve the separation of powers. Federalist No. 73 (Hamilton). “[T]he
great security,” wrote Madison, “against a gradual concentration of the several
powers in the same department consists in giving to those who administer each
department the necessary constitutional means and personal motives to resist
encroachments of the others. The provision for defense must in this, as in all other
cases, be made commensurate to the danger of attack.” Federalist No. 51. Madison
continued:
But it is not possible to give to each department an equal power of self-
defense. In republican government, the legislative authority necessarily
predominates. The remedy for this inconveniency is to divide the legislature
into different branches; and to render them, by different modes of election
and different principles of action, as little connected with each other as the
nature of their common functions and their common dependence on the
society will admit. . . . As the weight of the legislative authority requires
that it should be thus divided, the weakness of the executive may require,
on the other hand, that it should be fortified.
The major “fortification” provided, of course, was the veto power. But in addition
to providing fortification, the Founders conspicuously and very consciously declined
to sap the Executive’s strength in the same way they had weakened the Legislature:
by dividing the executive power. Proposals to have multiple executives, or a council
of advisers with separate authority were rejected. Thus, while “[a]ll legislative
Powers herein granted shall be vested in a Congress of the United States, which shall
consist of a Senate and House of Representatives,” U.S. Const., Art. I, § 1 (emphasis
added), “[t]he executive Power shall be vested in a President of the United States,”
Art. II, § 1, cl. 1 (emphasis added).
That is what this suit is about. Power. The allocation of power among Congress,
the President, and the courts in such fashion as to preserve the equilibrium the
Constitution sought to establish—so that “a gradual concentration of the several
powers in the same department,” Federalist No. 51 (Madison), can effectively be
resisted. Frequently an issue of this sort will come before the Court clad, so to speak,
in sheep’s clothing: the potential of the asserted principle to effect important change
in the equilibrium of power is not immediately evident, and must be discerned by a
careful and perceptive analysis. But this wolf comes as a wolf.
I
. . . The Court devotes most of its attention to such relatively technical details
as the Appointments Clause and the removal power, addressing briefly and only at
the end of its opinion the separation of powers. As my prologue suggests, I think that
has it backwards. Our opinions are full of the recognition that it is the principle of
separation of powers, and the inseparable corollary that each department’s “defense
must . . . be made commensurate to the danger of attack,” Federalist No. 51 (J.
Madison), which gives comprehensible content to . . . and determines the appropriate
scope of the removal power. Thus, while I will subsequently discuss why our
appointments and removal jurisprudence does not support today’s holding, I begin
with a consideration of the fountainhead of that jurisprudence, the separation and
equilibration of powers. . . .
Article II, § 1, cl. 1, of the Constitution provides:
The executive Power shall be vested in a President of the United States.
As I described at the outset of this opinion, this does not mean some of the
executive power, but all of the executive power. It seems to me, therefore, that the
decision of the Court of Appeals invalidating the present statute must be upheld on
fundamental separation-of-powers principles if the following two questions are
answered affirmatively: (1) Is the conduct of a criminal prosecution (and of an
investigation to decide whether to prosecute) the exercise of purely executive power?
(2) Does the statute deprive the President of the United States of exclusive control
over the exercise of that power? Surprising to say, the Court appears to concede an
affirmative answer to both questions, but seeks to avoid the inevitable conclusion
that since the statute vests some purely executive power in a person who is not the
President of the United States it is void.
SUPPLEMENT 179
The Court concedes that “[t]here is no real dispute that the functions performed
by the independent counsel are ‘executive,’ ” though it qualifies that concession by
adding “in the sense that they are law enforcement functions that typically have been
undertaken by officials within the Executive Branch.” The qualifier adds nothing but
atmosphere. In what other sense can one identify “the executive Power” that is
supposed to be vested in the President (unless it includes everything the Executive
Branch is given to do) except by reference to what has always and everywhere—if
conducted by government at all—been conducted never by the legislature, never by
the courts, and always by the executive. There is no possible doubt that the
independent counsel’s functions fit this description. She is vested with the “full power
and independent authority to exercise all investigative and prosecutorial functions
and powers of the Department of Justice [and] the Attorney General.” Governmental
investigation and prosecution of crimes is a quintessentially executive function.
As for the second question, whether the statute before us deprives the President
of exclusive control over that quintessentially executive activity: The Court does not,
and could not possibly, assert that it does not. That is indeed the whole object of the
statute. Instead, the Court points out that the President, through his Attorney
General, has at least some control. That concession is alone enough to invalidate the
statute, but I cannot refrain from pointing out that the Court greatly exaggerates
the extent of that “some” Presidential control. “Most importan[t]” among these
controls, the Court asserts, is the Attorney General’s “power to remove the counsel
for good cause.” This is somewhat like referring to shackles as an effective means of
locomotion. As we recognized in Humphrey’s Executor v. United States—indeed,
what Humphrey’s Executor was all about—limiting removal power to “good cause” is
an impediment to, not an effective grant of, Presidential control. . . .
. . . The case is over when the Court acknowledges, as it must, that “[i]t is
undeniable that the Act reduces the amount of control or supervision that the
Attorney General and, through him, the President exercises over the investigation
and prosecution of a certain class of alleged criminal activity.” It effects a revolution
in our constitutional jurisprudence for the Court, once it has determined that (1)
purely executive functions are at issue here, and (2) those functions have been given
to a person whose actions are not fully within the supervision and control of the
President, nonetheless to proceed further to sit in judgment of whether “the
President’s need to control the exercise of [the independent counsel’s] discretion is so
central to the functioning of the Executive Branch” as to require complete control
(emphasis added), whether the conferral of his powers upon someone else
“sufficiently deprives the President of control over the independent counsel to
interfere impermissibly with [his] constitutional obligation to ensure the faithful
execution of the laws,” (emphasis added), and whether “the Act give[s] the Executive
Branch sufficient control over the independent counsel to ensure that the President
is able to perform his constitutionally assigned duties” (emphasis added). It is not for
us to determine, and we have never presumed to determine, how much of the purely
executive powers of government must be within the full control of the President. The
Constitution prescribes that they all are. . . .
Is it unthinkable that the President should have such exclusive power, even
when alleged crimes by him or his close associates are at issue? No more so than that
Congress should have the exclusive power of legislation, even when what is at issue
is its own exemption from the burdens of certain laws. See Civil Rights Act of 1964,
Title VII, 42 U.S.C. § 2000e et seq. (prohibiting “employers,” not defined to include
the United States, from discriminating on the basis of race, color, religion, sex, or
national origin). No more so than that this Court should have the exclusive power to
pronounce the final decision on justiciable cases and controversies, even those
pertaining to the constitutionality of a statute reducing the salaries of the Justices.
A system of separate and coordinate powers necessarily involves an acceptance of
exclusive power that can theoretically be abused. . . . The checks against any
branch’s abuse of its exclusive powers are twofold: First, retaliation by one of the
other branch’s use of its exclusive powers: Congress, for example, can impeach the
executive who willfully fails to enforce the laws; the executive can decline to
prosecute under unconstitutional statutes, cf. United States v. Lovett, 328 U.S. 303
(1946); and the courts can dismiss malicious prosecutions. Second, and ultimately,
there is the political check that the people will replace those in the political branches
(the branches more “dangerous to the political rights of the Constitution,” Federalist
No. 78) who are guilty of abuse. Political pressures produced special prosecutors—
for Teapot Dome and for Watergate, for example—long before this statute created
the independent counsel.
The Court has, nonetheless, replaced the clear constitutional prescription that
the executive power belongs to the President with a “balancing test.” What are the
standards to determine how the balance is to be struck, that is, how much removal
of Presidential power is too much? Many countries of the world get along with an
executive that is much weaker than ours—in fact, entirely dependent upon the
continued support of the legislature. Once we depart from the text of the
Constitution, just where short of that do we stop? The most amazing feature of the
Court’s opinion is that it does not even purport to give an answer. . . .Evidently, the
governing standard is to be what might be called the unfettered wisdom of a majority
of this Court, revealed to an obedient people on a case-by-case basis. This is not only
not the government of laws that the Constitution established; it is not a government
of laws at all. . . .
In sum, this statute does deprive the President of substantial control over the
prosecutory functions performed by the independent counsel, and it does
substantially affect the balance of powers. That the Court could possibly conclude
otherwise demonstrates both the wisdom of our former constitutional system, in
which the degree of reduced control and political impairment were irrelevant, since
all purely executive power had to be in the President; and the folly of the new system
of standardless judicial allocation of powers we adopt today.
III
As I indicated earlier, the basic separation-of-powers principles I have discussed
are what give life and content to our jurisprudence concerning the President’s power
to appoint and remove officers. The same result of unconstitutionality is therefore
plainly indicated by our case law in these areas. . . .
Because appellant (who all parties and the Court agree is an officer of the United
States) was not appointed by the President with the advice and consent of the Senate,
but rather by the Special Division of the United States Court of Appeals, her
appointment is constitutional only if (1) she is an “inferior” officer within the
meaning of the above Clause, and (2) Congress may vest her appointment in a court
of law.
SUPPLEMENT 181
As to the first of these inquiries, the Court does not attempt to “decide exactly”
what establishes the line between principal and “inferior” officers, but is confident
that, whatever the line may be, appellant “clearly falls on the ‘inferior officer’ side”
of it. The Court gives three reasons: First, she “is subject to removal by a higher
Executive Branch official,” namely, the Attorney General. Second, she is “empowered
by the Act to perform only certain, limited duties.” Third, her office is “limited in
jurisdiction” and “limited in tenure.”
The first of these lends no support to the view that appellant is an inferior
officer. Appellant is removable only for “good cause” or physical or mental incapacity.
By contrast, most (if not all) principal officers in the Executive Branch may be
removed by the President at will. I fail to see how the fact that appellant is more
difficult to remove than most principal officers helps to establish that she is an
inferior officer. And I do not see how it could possibly make any difference to her
superior or inferior status that the President’s limited power to remove her must be
exercised through the Attorney General. If she were removable at will by the
Attorney General, then she would be subordinate to him and thus properly
designated as inferior; but the Court essentially admits that she is not subordinate.
If it were common usage to refer to someone as “inferior” who is subject to removal
for cause by another, then one would say that the President is “inferior” to Congress.
The second reason offered by the Court—that appellant performs only certain,
limited duties—may be relevant to whether she is an inferior officer, but it
mischaracterizes the extent of her powers. . . .
The final set of reasons given by the Court for why the independent counsel
clearly is an inferior officer emphasizes the limited nature of her jurisdiction and
tenure. Taking the latter first, I find nothing unusually limited about the
independent counsel’s tenure. To the contrary, unlike most high-ranking Executive
Branch officials, she continues to serve until she (or the Special Division) decides
that her work is substantially completed. This particular independent prosecutor has
already served more than two years, which is at least as long as many Cabinet
officials. As to the scope of her jurisdiction, there can be no doubt that is small
(though far from unimportant). But within it she exercises more than the full power
of the Attorney General. The Ambassador to Luxembourg is not anything less than
a principal officer, simply because Luxembourg is small. And the federal judge who
sits in a small district is not for that reason “inferior in rank and authority.” . . .
. . . I think it preferable to look to the text of the Constitution and the division
of power that it establishes. These demonstrate, I think, that the independent
counsel is not an inferior officer because she is not subordinate to any officer in the
Executive Branch (indeed, not even to the President). Dictionaries in use at the time
of the Constitutional Convention gave the word “inferiour” two meanings which it
still bears today: (1) “[l]ower in place, . . . station, . . . rank of life, . . . value or
excellency,” and (2) “[s]ubordinate.” Samuel Johnson, Dictionary of the English
Language (6th ed. 1785). In a document dealing with the structure (the constitution)
of a government, one would naturally expect the word to bear the latter meaning—
indeed, in such a context it would be unpardonably careless to use the word unless a
relationship of subordination was intended. If what was meant was merely “lower in
station or rank,” one would use instead a term such as “lesser officers.” At the only
other point in the Constitution at which the word “inferior” appears, it plainly
connotes a relationship of subordination. Article III vests the judicial power of the
United States in “one supreme Court, and in such inferior Courts as the Congress
may from time to time ordain and establish.” U.S. Const., Art. III, § 1 (emphasis
added). . . .
To be sure, it is not a sufficient condition for “inferior” officer status that one be
subordinate to a principal officer. Even an officer who is subordinate to a department
head can be a principal officer. . . . But it is surely a necessary condition for inferior
officer status that the officer be subordinate to another officer.
The independent counsel is not even subordinate to the President. . . .
Because appellant is not subordinate to another officer, she is not an “inferior”
officer and her appointment other than by the President with the advice and consent
of the Senate is unconstitutional.
IV
I will not discuss at any length why the restrictions upon the removal of the
independent counsel also violate our established precedent dealing with that specific
subject. For most of it, I simply refer the reader to the scholarly opinion of Judge
Silberman for the Court of Appeals below. See In re Sealed Case, 838 F.2d 476 (D.C.
Cir. 1988). I cannot avoid commenting, however, about the essence of what the Court
has done to our removal jurisprudence today.
There is, of course, no provision in the Constitution stating who may remove
executive officers, except the provisions for removal by impeachment. Before the
present decision it was established, however, . . . that the President’s power to
remove principal officers who exercise purely executive powers could not be
restricted, see Myers, at 127. . . .
Since our 1935 decision in Humphrey’s Executor—which was considered by
many at the time the product of an activist, anti-New Deal Court bent on reducing
the power of President Franklin Roosevelt—it has been established that the line of
permissible restriction upon removal of principal officers lies at the point at which
the powers exercised by those officers are no longer purely executive. Thus, removal
restrictions have been generally regarded as lawful for so-called “independent
regulatory agencies,” such as the Federal Trade Commission, the Interstate
Commerce Commission, and the Consumer Product Safety Commission, which
engage substantially in what has been called the “quasi-legislative activity” of
rulemaking, and for members of Article I courts, such as the Court of Military
Appeals, who engage in the “quasi-judicial” function of adjudication. It has often been
observed, correctly in my view, that the line between “purely executive” functions
and “quasi-legislative” or “quasi-judicial” functions is not a clear one or even a
rational one. But at least it permitted the identification of certain officers, and
certain agencies, whose functions were entirely within the control of the President.
Congress had to be aware of that restriction in its legislation. Today, however,
Humphrey’s Executor is swept into the dustbin of repudiated constitutional
principles. . . .
One can hardly grieve for the shoddy treatment given today to Humphrey’s
Executor, which, after all, accorded the same indignity (with much less justification)
to Chief Justice Taft’s opinion 10 years earlier in Myers—gutting, in six quick pages
devoid of textual or historical precedent for the novel principle it set forth, a carefully
researched and reasoned 70-page opinion. It is in fact comforting to witness the
reality that he who lives by the ipse dixit dies by the ipse dixit. But one must grieve
SUPPLEMENT 183
for the Constitution. Humphrey’s Executor at least had the decency formally to
observe the constitutional principle that the President had to be the repository of all
executive power, see 295 U.S., at 627–628, which, as Myers carefully explained,
necessarily means that he must be able to discharge those who do not perform
executive functions according to his liking. . . . By contrast, “our present considered
view” is simply that any executive officer’s removal can be restricted, so long as the
President remains “able to accomplish his constitutional role.” . . . There are now no
lines. If the removal of a prosecutor, the virtual embodiment of the power to “take
care that the laws be faithfully executed,” can be restricted, what officer’s removal
cannot? This is an open invitation for Congress to experiment. What about a special
Assistant Secretary of State, with responsibility for one very narrow area of foreign
policy, who would not only have to be confirmed by the Senate but could also be
removed only pursuant to certain carefully designed restrictions? Could this possibly
render the President “[un]able to accomplish his constitutional role”? Or a special
Assistant Secretary of Defense for Procurement? The possibilities are endless, and
the Court does not understand what the separation of powers, what “[a]mbition . . .
counteract [ing] ambition,” Federalist No. 51 (Madison), is all about, if it does not
expect Congress to try them. As far as I can discern from the Court’s opinion, it is
now open season upon the President’s removal power for all executive officers, with
not even the superficially principled restriction of Humphrey’s Executor as cover. The
Court essentially says to the President: “Trust us. We will make sure that you are
able to accomplish your constitutional role.” I think the Constitution gives the
President—and the people—more protection than that. . . .
V
The purpose of the separation and equilibration of powers in general, and of the
unitary Executive in particular, was not merely to assure effective government but
to preserve individual freedom. Those who hold or have held offices covered by the
Ethics in Government Act are entitled to that protection as much as the rest of us,
and I conclude my discussion by considering the effect of the Act upon the fairness of
the process they receive. . . .
Under our system of government, the primary check against prosecutorial abuse
is a political one. The prosecutors who exercise this awesome discretion are selected
and can be removed by a President, whom the people have trusted enough to elect.
Moreover, when crimes are not investigated and prosecuted fairly, nonselectively,
with a reasonable sense of proportion, the President pays the cost in political damage
to his administration. If federal prosecutors “pick people that [they] thin[k] [they]
should get, rather than cases that need to be prosecuted,” if they amass many more
resources against a particular prominent individual, or against a particular class of
political protesters, or against members of a particular political party, than the
gravity of the alleged offenses or the record of successful prosecutions seems to
warrant, the unfairness will come home to roost in the Oval Office. . . .
That is the system of justice the rest of us are entitled to, but what of that select
class consisting of present or former high-level Executive Branch officials? . . . An
independent counsel is selected, and the scope of his or her authority prescribed, by
a panel of judges. What if they are politically partisan, as judges have been known
to be, and select a prosecutor antagonistic to the administration, or even to the
particular individual who has been selected for this special treatment? There is no
remedy for that, not even a political one. Judges, after all, have life tenure, and
appointing a surefire enthusiastic prosecutor could hardly be considered an

impeachable offense. So if there is anything wrong with the selection, there is
effectively no one to blame. The independent counsel thus selected proceeds to
assemble a staff. As I observed earlier, in the nature of things this has to be done by
finding lawyers who are willing to lay aside their current careers for an
indeterminate amount of time, to take on a job that has no prospect of permanence
and little prospect for promotion. One thing is certain, however: it involves
investigating and perhaps prosecuting a particular individual. Can one imagine a
less equitable manner of fulfilling the executive responsibility to investigate and
prosecute? What would be the reaction if, in an area not covered by this statute, the
Justice Department posted a public notice inviting applicants to assist in an
investigation and possible prosecution of a certain prominent person? . . . [And] even
if it were entirely evident that unfairness was in fact the result—the judges hostile
to the administration, the independent counsel an old foe of the President, the staff
refugees from the recently defeated administration—there would be no one
accountable to the public to whom the blame could be assigned. . . .
[A]n additional advantage of the unitary Executive [is] that it can achieve a
more uniform application of the law. Perhaps that is not always achieved, but the
mechanism to achieve it is there. The mini-Executive that is the independent
counsel, however, operating in an area where so little is law and so much is
discretion, is intentionally cut off from the unifying influence of the Justice
Department, and from the perspective that multiple responsibilities provide. What
would normally be regarded as a technical violation (there are no rules defining such
things), may in his or her small world assume the proportions of an indictable
offense. What would normally be regarded as an investigation that has reached the
level of pursuing such picayune matters that it should be concluded, may to him or
her be an investigation that ought to go on for another year. How frightening it must
be to have your own independent counsel and staff appointed, with nothing else to
do but to investigate you until investigation is no longer worthwhile—with whether
it is worthwhile not depending upon what such judgments usually hinge on,
competing responsibilities. And to have that counsel and staff decide, with no basis
for comparison, whether what you have done is bad enough, willful enough, and
provable enough, to warrant an indictment. How admirable the constitutional
system that provides the means to avoid such a distortion. And how unfortunate the
judicial decision that has permitted it. . . .
The notion that every violation of law should be prosecuted, including—indeed,
especially—every violation by those in high places, is an attractive one, and it would
be risky to argue in an election campaign that that is not an absolutely overriding
value. Fiat justitia, ruat coelum. Let justice be done, though the heavens may fall.
The reality is, however, that it is not an absolutely overriding value, and it was with
the hope that we would be able to acknowledge and apply such realities that the
Constitution spared us, by life tenure, the necessity of election campaigns. . . . By its
shortsighted action today, I fear the Court has permanently encumbered the
Republic with an institution that will do it great harm.
Worse than what it has done, however, is the manner in which it has done it. A
government of laws means a government of rules. Today’s decision on the basic issue
of fragmentation of executive power is ungoverned by rule, and hence ungoverned by
law. It extends into the very heart of our most significant constitutional function the
SUPPLEMENT 185
“totality of the circumstances” mode of analysis that this Court has in recent years
become fond of. Taking all things into account, we conclude that the power taken
away from the President here is not really too much. The next time executive power
is assigned to someone other than the President we may conclude, taking all things
into account, that it is too much. That opinion, like this one, will not be confined by
any rule. We will describe, as we have today (though I hope more accurately) the
effects of the provision in question, and will authoritatively announce: “The
President’s need to control the exercise of the [subject officer’s] discretion is so central
to the functioning of the Executive Branch as to require complete control.” This is
not analysis; it is ad hoc judgment. And it fails to explain why it is not true that—as
the text of the Constitution seems to require, as the Founders seemed to expect, and
as our past cases have uniformly assumed—all purely executive power must be
under the control of the President.
The ad hoc approach to constitutional adjudication has real attraction, even
apart from its work-saving potential. It is guaranteed to produce a result, in every
case, that will make a majority of the Court happy with the law. The law is, by
definition, precisely what the majority thinks, taking all things into account, it ought
to be. I prefer to rely upon the judgment of the wise men who constructed our system,
and of the people who approved it, and of two centuries of history that have shown it
to be sound. Like it or not, that judgment says, quite plainly, that “[t]he executive
Power shall be vested in a President of the United States.”
■ JUSTICE KENNEDY took no part in the consideration or decision of this case.
NOTES
1. If there is a removal power, where in the Constitution does it come from? The
Vesting Clause? The Take Care Clause? Somewhere else? Does your answer to that
question have implications for other debates about executive power?
2. Which case has the most persuasive account of presidential power? Myers,
with its heavy (ponderous?) reliance on history? Humphrey’s Executor, with is claim
that FTC commissioners do not truly exercise executive power? Morrison, with its
functionalist conclusion that the special prosecutor’s powers were not too great, and
the President’s authority not too burdened?
3. What about the treatment of precedent throughout these cases? Is
Humphrey’s Executor faithful to Myers? Is Morrison v. Olson faithful to either one?
If all three cases are inconsistent, should we trust the most recent case, or the
earliest case? (See pp. __). Or give up on precedent altogether?
4. What is the relationship between the Appointments Clause and the removal
power? In both Myers and Morrison, the Court also considered the possibility that
“inferior” officers might be more insulated from presidential control. What sense does
that make?
4. Doctrine has continued to develop since Morrison.
a. One development has been about the definition of “inferior officer” under the
Appointments Clause. In Edmond v. United States, 520 U.S. 651 (1997), the Court
considered whether Congress had authorized the secretary of transportation to appoint
civilian members of the Coast Guard Court of Criminal Appeals; and if so, whether this
authorization was constitutional under the Appointments Clause. The Appointments
Clause question turned on whether the judges were inferior officers. Justice Scalia wrote
the majority opinion in Edmond and set forth the following test:
Generally speaking, the term “inferior officer” connotes a relationship with
some higher ranking officer or officers below the President: Whether one is an
“inferior” officer depends on whether he has a superior. It is not enough that
other officers may be identified who formally maintain a higher rank, or possess
responsibilities of a greater magnitude. If that were the intention, the
Constitution might have used the phrase “lesser officer.” Rather, in the context
of a Clause designed to preserve political accountability relative to important
Government assignments, we think it evident that “inferior officers” are officers
whose work is directed and supervised at some level by others who were
appointed by Presidential nomination with the advice and consent of the
Senate.
Applying that test, the Court held that the judicial appointments were valid. The
work of the judges on the Court of Criminal Appeals is supervised by the judge advocate
general (who is subordinate to the secretary of transportation) as well as the Court of the
Appeals for the Armed Forces. Edmond did not overrule Morrison, but there are now
apparently two different tests for determining whether someone is an inferior officer—
Morrison’s test of importance, and Edmond’s test of supervision and control.
b. The other development has concerned the removal power.
First, Congress decided to let the Ethics in Government Act expire, on a mix of
policy and constitutional grounds, after President Bill Clinton’s administration was
beset by an extensive investigation from independent counsel Kenneth Starr.
Second, the Supreme Court invalidated a restriction on the removal power in Free
Enterprise Fund v. Public Co. Accounting Oversight Bd., 130 S. Ct. 3138 (2010). The case
dealt with the Public Company Accounting Oversight Board, which was created after a
series of accounting scandals. Its board was subject to two layers of protection against
presidential removal: the Securities and Exchange Commission is an independent agency
whose commissioners can be removed by the president only for cause; the members of the
PCAOB could be removed by the Securities and Exchange Commission, again only for
cause. Chief Justice Roberts wrote an opinion holding that this kind of double-layer
insulation from removal violated Article II.
Third, the Court returned to the removal power yet again in Seila Law, which dealt
with the consequential, and controversial, Consumer Financial Protection Bureau. That
opinion follows.
The Supreme Court and the Removal Power: The Latest Word
Seila Law, L.L.C. v. Consumer Financial Protection

Bureau
140 S.Ct. 2183 (2020)
■ CHIEF JUSTICE ROBERTS delivered the opinion of the Court with respect to
Parts I, II, and III.
In the wake of the 2008 financial crisis, Congress established the Consumer
Financial Protection Bureau (CFPB), an independent regulatory agency tasked
SUPPLEMENT 187
with ensuring that consumer debt products are safe and transparent. In
organizing the CFPB, Congress deviated from the structure of nearly every other
independent administrative agency in our history. Instead of placing the agency
under the leadership of a board with multiple members, Congress provided that
the CFPB would be led by a single Director, who serves for a longer term than
the President and cannot be removed by the President except for inefficiency,
neglect, or malfeasance. The CFPB Director has no boss, peers, or voters to report
to. Yet the Director wields vast rulemaking, enforcement, and adjudicatory
authority over a significant portion of the U.S. economy. The question before us
is whether this arrangement violates the Constitution’s separation of powers. . .
.
I–A
In the summer of 2007, then-Professor Elizabeth Warren called for the
creation of a new, independent federal agency focused on regulating consumer
financial products. Professor Warren believed the financial products marketed
to ordinary American households—credit cards, student loans, mortgages, and
the like—had grown increasingly unsafe due to a “regulatory jumble” that paid
too much attention to banks and too little to consumers. To remedy the lack of
“coherent, consumer-oriented” financial regulation, she proposed
“concentrat[ing] the review of financial products in a single location”—an
independent agency modeled after the multimember Consumer Product Safety
Commission. . . .
In 2010, Congress acted on these proposals and created the Consumer
Financial Protection Bureau (CFPB) as an independent financial regulator
within the Federal Reserve System. Dodd-Frank Wall Street Reform and
Consumer Protection Act (Dodd-Frank), 124 Stat. 1376. Congress tasked the
CFPB with “implement[ing]” and “enforc[ing]” a large body of financial consumer
protection laws to “ensur[e] that all consumers have access to markets for
consumer financial products and services and that markets for consumer
financial products and services are fair, transparent, and competitive.” 12 U.S.C.
§ 5511(a). Congress transferred the administration of 18 existing federal statutes
to the CFPB, including the Fair Credit Reporting Act, the Fair Debt Collection
Practices Act, and the Truth in Lending Act. In addition, Congress enacted a new
prohibition on “any unfair, deceptive, or abusive act or practice” by certain
participants in the consumer-finance sector. § 5536(a)(1)(B). Congress
authorized the CFPB to implement that broad standard (and the 18 pre-existing
statutes placed under the agency’s purview) through binding regulations.
Congress also vested the CFPB with potent enforcement powers. The agency
has the authority to conduct investigations, issue subpoenas and civil
investigative demands, initiate administrative adjudications, and prosecute civil
actions in federal court. §§ 5562, 5564(a), (f). To remedy violations of federal
consumer financial law, the CFPB may seek restitution, disgorgement, and
injunctive relief, as well as civil penalties of up to $1,000,000 (inflation adjusted)
for each day that a violation occurs. Since its inception, the CFPB has obtained
over $11 billion in relief for over 25 million consumers, including a $1 billion
penalty against a single bank in 2018. . . .
The CFPB’s rulemaking and enforcement powers are coupled with extensive
adjudicatory authority. The agency may conduct administrative proceedings to
“ensure or enforce compliance with” the statutes and regulations it administers.
12 U.S.C. § 5563(a). When the CFPB acts as an adjudicator, it has “jurisdiction
to grant any appropriate legal or equitable relief.” § 5565(a)(1). The “hearing
officer” who presides over the proceedings may issue subpoenas, order
depositions, and resolve any motions filed by the parties. 12 CFR § 1081.104(b).
At the close of the proceedings, the hearing officer issues a “recommended
decision,” and the CFPB Director considers that recommendation and “issue[s] a
final decision and order.” §§ 1081.400(d), 1081.402(b.
Congress’s design for the CFPB differed from the proposals of Professor
Warren and the Obama administration in one critical respect. Rather than
create a traditional independent agency headed by a multimember board or
commission, Congress elected to place the CFPB under the leadership of a single
Director. The CFPB Director is appointed by the President with the advice and
consent of the Senate. The Director serves for a term of five years, during which
the President may remove the Director from office only for “inefficiency, neglect
of duty, or malfeasance in office.” §§ 5491(c)(1), (3).
Unlike most other agencies, the CFPB does not rely on the annual
appropriations process for funding. Instead, the CFPB receives funding directly
from the Federal Reserve, which is itself funded outside the appropriations
process through bank assessments. Each year, the CFPB requests an amount
that the Director deems “reasonably necessary to carry out” the agency’s duties,
and the Federal Reserve grants that request so long as it does not exceed 12% of
the total operating expenses of the Federal Reserve (inflation adjusted). In recent
years, the CFPB’s annual budget has exceeded half a billion dollars.
B
Seila Law LLC is a California-based law firm that provides debt-related
legal services to clients. In 2017, the CFPB issued a civil investigative demand
to Seila Law to determine whether the firm had “engag[ed] in unlawful acts or
practices in the advertising, marketing, or sale of debt relief services.” The
demand (essentially a subpoena) directed Seila Law to produce information and
documents related to its business practices.
Seila Law asked the CFPB to set aside the demand, objecting that the
agency’s leadership by a single Director removable only for cause violated the
separation of powers. . . .
[The agency and the lower courts rejected Seila Law’s constitutional
arguments.—Editors]
III
We hold that the CFPB’s leadership by a single individual removable only
for inefficiency, neglect, or malfeasance violates the separation of powers.
A
Article II provides that “[t]he executive Power shall be vested in a
President,” who must “take Care that the Laws be faithfully executed.” Art. II, §
SUPPLEMENT 189
1, cl. 1; id., § 3. The entire “executive Power” belongs to the President alone. But
because it would be “impossib[le]” for “one man” to “perform all the great
business of the State,” the Constitution assumes that lesser executive officers
will “assist the supreme Magistrate in discharging the duties of his trust.” 30
Writings of George Washington 334 (J. Fitzpatrick ed. 1939).
These lesser officers must remain accountable to the President, whose
authority they wield. As Madison explained, “[I]f any power whatsoever is in its
nature Executive, it is the power of appointing, overseeing, and controlling those
who execute the laws.” 1 Annals of Cong. 463 (1789). That power, in turn,
generally includes the ability to remove executive officials, for it is “only the
authority that can remove” such officials that they “must fear and, in the
performance of [their] functions, obey.” Bowsher, 478 U.S. at 726.
The President’s removal power has long been confirmed by history and
precedent. It “was discussed extensively in Congress when the first executive
departments were created” in 1789. Free Enterprise Fund, 561 U.S. at 492. “The
view that ‘prevailed, as most consonant to the text of the Constitution’ and ‘to
the requisite responsibility and harmony in the Executive Department,’ was that
the executive power included a power to oversee executive officers through
removal.” Ibid. (quoting Letter from James Madison to Thomas Jefferson (June
30, 1789), 16 Documentary History of the First Federal Congress 893 (2004)).
The First Congress’s recognition of the President’s removal power in 1789
“provides contemporaneous and weighty evidence of the Constitution’s
meaning,” Bowsher, at 723, and has long been the “settled and well understood
construction of the Constitution,” Ex parte Hennen, 13 Pet. 230, 259 (1839).
The Court recognized the President’s prerogative to remove executive
officials in Myers v. United States, 272 U.S. 52. Chief Justice Taft, writing for the
Court, conducted an exhaustive examination of the First Congress’s
determination in 1789, the views of the Framers and their contemporaries,
historical practice, and our precedents up until that point. He concluded that
Article II “grants to the President” the “general administrative control of those
executing the laws, including the power of appointment and removal of executive
officers.” Id., at 163–164 (emphasis added). Just as the President’s “selection of
administrative officers is essential to the execution of the laws by him, so must
be his power of removing those for whom he cannot continue to be responsible.”
Id., at 117. “[T]o hold otherwise,” the Court reasoned, “would make it impossible
for the President . . . to take care that the laws be faithfully executed.” Id., at
164.
We recently reiterated the President’s general removal power in Free
Enterprise Fund. “Since 1789,” we recapped, “the Constitution has been
understood to empower the President to keep these officers accountable—by
removing them from office, if necessary.” 561 U.S. at 483. Although we had
previously sustained congressional limits on that power in certain
circumstances, we declined to extend those limits to “a new situation not yet
encountered by the Court”—an official insulated by two layers of for-cause
removal protection. Id., at 483, 514. In the face of that novel impediment to the
President’s oversight of the Executive Branch, we adhered to the general rule
that the President possesses “the authority to remove those who assist him in
carrying out his duties.” Id., at 513–514.
Free Enterprise Fund left in place two exceptions to the President’s
unrestricted removal power. First, in Humphrey’s Executor, decided less than a
decade after Myers, the Court upheld a statute that protected the Commissioners
of the FTC from removal except for “inefficiency, neglect of duty, or malfeasance
in office.” 295 U.S. at 620 (quoting 15 U.S.C. § 41). In reaching that conclusion,
the Court stressed that Congress’s ability to impose such removal restrictions
“will depend upon the character of the office.” 295 U.S. at 631.
Because the Court limited its holding “to officers of the kind here under
consideration,” id., at 632, the contours of the Humphrey’s Executor exception
depend upon the characteristics of the agency before the Court. Rightly or
wrongly, the Court viewed the FTC (as it existed in 1935) as exercising “no part
of the executive power.” Id., at 628. Instead, it was “an administrative body” that
performed “specified duties as a legislative or as a judicial aid.” Ibid. It acted “as
a legislative agency” in “making investigations and reports” to Congress and “as
an agency of the judiciary” in making recommendations to courts as a master in
chancery. Ibid. “To the extent that [the FTC] exercise[d] any executive function[,]
as distinguished from executive power in the constitutional sense,” it did so only
in the discharge of its “quasi-legislative or quasi-judicial powers.” Ibid.
(emphasis added).
The Court identified several organizational features that helped explain its
characterization of the FTC as non-executive. Composed of five members—no
more than three from the same political party—the Board was designed to be
“non-partisan” and to “act with entire impartiality.” Id., at 624; see id., at 619–
620. The FTC’s duties were “neither political nor executive,” but instead called
for “the trained judgment of a body of experts” “informed by experience.” Id., at
624. And the Commissioners’ staggered, seven-year terms enabled the agency to
accumulate technical expertise and avoid a “complete change” in leadership “at
any one time.” Ibid.
In short, Humphrey’s Executor permitted Congress to give for-cause removal
protections to a multimember body of experts, balanced along partisan lines, that
performed legislative and judicial functions and was said not to exercise any
executive power. Consistent with that understanding, the Court later applied
“[t]he philosophy of Humphrey’s Executor” to uphold for-cause removal
protections for the members of the War Claims Commission—a three-member
“adjudicatory body” tasked with resolving claims for compensation arising from
World War II. Wiener v. United States, 357 U.S. 349, 356 (1958).
While recognizing an exception for multimember bodies with “quasi-judicial”
or “quasi-legislative” functions, Humphrey’s Executor reaffirmed the core holding
of Myers that the President has “unrestrictable power . . . to remove purely
executive officers.” 295 U.S. at 632. The Court acknowledged that between purely
executive officers on the one hand, and officers that closely resembled the FTC
Commissioners on the other, there existed “a field of doubt” that the Court left
“for future consideration.” Ibid.
SUPPLEMENT 191
We have recognized a second exception for inferior officers in two cases,

United States v. Perkins and Morrison v. Olson. In Perkins, we upheld tenure
protections for a naval cadet-engineer. 116 U.S. at 485. And, in Morrison, we
upheld a provision granting good-cause tenure protection to an independent
counsel appointed to investigate and prosecute particular alleged crimes by high-
ranking Government officials. 487 U.S. at 662–663, 696–697. Backing away from
the reliance in Humphrey’s Executor on the concepts of “quasi-legislative” and
“quasi-judicial” power, we viewed the ultimate question as whether a removal
restriction is of “such a nature that [it] impede[s] the President’s ability to
perform his constitutional duty.” 487 U.S. at 691. Although the independent
counsel was a single person and performed “law enforcement functions that
typically have been undertaken by officials within the Executive Branch,” we
concluded that the removal protections did not unduly interfere with the
functioning of the Executive Branch because “the independent counsel [was] an
inferior officer under the Appointments Clause, with limited jurisdiction and
tenure and lacking policymaking or significant administrative authority.” Ibid.
These two exceptions—one for multimember expert agencies that do not
wield substantial executive power, and one for inferior officers with limited
duties and no policymaking or administrative authority—“represent what up to
now have been the outermost constitutional limits of permissible congressional
restrictions on the President’s removal power.” PHH, 881 F.3d at 196
(Kavanaugh, J., dissenting).
B
Neither Humphrey’s Executor nor Morrison resolves whether the CFPB
Director’s insulation from removal is constitutional. Start with Humphrey’s
Executor. Unlike the New Deal-era FTC upheld there, the CFPB is led by a single
Director who cannot be described as a “body of experts” and cannot be considered
“non-partisan” in the same sense as a group of officials drawn from both sides of
the aisle. 295 U.S. at 624. Moreover, while the staggered terms of the FTC
Commissioners prevented complete turnovers in agency leadership and
guaranteed that there would always be some Commissioners who had accrued
significant expertise, the CFPB’s single-Director structure and five-year term
guarantee abrupt shifts in agency leadership and with it the loss of accumulated
expertise.
In addition, the CFPB Director is hardly a mere legislative or judicial aid.
Instead of making reports and recommendations to Congress, as the 1935 FTC
did, the Director possesses the authority to promulgate binding rules fleshing
out 19 federal statutes, including a broad prohibition on unfair and deceptive
practices in a major segment of the U.S. economy. And instead of submitting
recommended dispositions to an Article III court, the Director may unilaterally
issue final decisions awarding legal and equitable relief in administrative
adjudications. Finally, the Director’s enforcement authority includes the power
to seek daunting monetary penalties against private parties on behalf of the
United States in federal court—a quintessentially executive power not

considered in Humphrey’s Executor.4
The logic of Morrison also does not apply. Everyone agrees the CFPB
Director is not an inferior officer, and her duties are far from limited. Unlike the
independent counsel, who lacked policymaking or administrative authority, the
Director has the sole responsibility to administer 19 separate consumer-
protection statutes that cover everything from credit cards and car payments to
mortgages and student loans. It is true that the independent counsel in Morrison
was empowered to initiate criminal investigations and prosecutions, and in that
respect wielded core executive power. But that power, while significant, was
trained inward to high-ranking Governmental actors identified by others, and
was confined to a specified matter in which the Department of Justice had a
potential conflict of interest. By contrast, the CFPB Director has the authority
to bring the coercive power of the state to bear on millions of private citizens and
businesses, imposing even billion-dollar penalties through administrative
adjudications and civil actions. . . .
C
The question instead is whether to extend those precedents to the “new
situation” before us, namely an independent agency led by a single Director and
vested with significant executive power. Free Enterprise Fund, 561 U.S. at 483.
We decline to do so. Such an agency has no basis in history and no place in our
constitutional structure.
1
“Perhaps the most telling indication of [a] severe constitutional problem”
with an executive entity “is [a] lack of historical precedent” to support it. Id., at
505. An agency with a structure like that of the CFPB is almost wholly
unprecedented.
After years of litigating the agency’s constitutionality, the Courts of Appeals,
parties, and amici have identified “only a handful of isolated” incidents in which
Congress has provided good-cause tenure to principal officers who wield power
alone rather than as members of a board or commission. Ibid. “[T]hese few
4 The dissent would have us ignore the reasoning of Humphrey’s Executor and instead
apply the decision only as part of a reimagined Humphrey’s-through-Morrison
framework. See post, at n.7 (KAGAN, J., concurring in judgment with respect to
severability and dissenting in part) (hereinafter dissent). But we take the decision
on its own terms, not through gloss added by a later Court in dicta. The dissent also
criticizes us for suggesting that the 1935 FTC may have had lesser responsibilities
than the present FTC. Perhaps the FTC possessed broader rulemaking, enforcement,
and adjudicatory powers than the Humphrey’s Court appreciated. Perhaps not.
Either way, what matters is the set of powers the Court considered as the basis for
its decision, not any latent powers that the agency may have had not alluded to by
the Court.
SUPPLEMENT 193
scattered examples”—four to be exact—shed little light. NLRB v. Noel Canning,

573 U.S. 513, 538 (2014).
First, the CFPB’s defenders point to the Comptroller of the Currency, who
enjoyed removal protection for one year during the Civil War. That example has
rightly been dismissed as an aberration. [The Court briefly discussed three other
examples.] With the exception of the one-year blip for the Comptroller of the
Currency, these isolated examples are modern and contested. And they do not
involve regulatory or enforcement authority remotely comparable to that
exercised by the CFPB. The CFPB’s single-Director structure is an innovation
with no foothold in history or tradition.
2
In addition to being a historical anomaly, the CFPB’s single-Director
configuration is incompatible with our constitutional structure. Aside from the
sole exception of the Presidency, that structure scrupulously avoids
concentrating power in the hands of any single individual. . . .
The resulting constitutional strategy is straightforward: divide power
everywhere except for the Presidency, and render the President directly
accountable to the people through regular elections. In that scheme, individual
executive officials will still wield significant authority, but that authority
remains subject to the ongoing supervision and control of the elected President.
Through the President’s oversight, “the chain of dependence [is] preserved,” so
that “the lowest officers, the middle grade, and the highest” all “depend, as they
ought, on the President, and the President on the community.” 1 Annals of Cong.
499 (J. Madison).
The CFPB’s single-Director structure contravenes this carefully calibrated
system by vesting significant governmental power in the hands of a single
individual accountable to no one. The Director is neither elected by the people
nor meaningfully controlled (through the threat of removal) by someone who is.
The Director does not even depend on Congress for annual appropriations. See
The Federalist No. 58, at 394 (J. Madison) (describing the “power over the purse”
as the “most compleat and effectual weapon” in representing the interests of the
people). Yet the Director may unilaterally, without meaningful supervision, issue
final regulations, oversee adjudications, set enforcement priorities, initiate
prosecutions, and determine what penalties to impose on private parties. With
no colleagues to persuade, and no boss or electorate looking over her shoulder,
the Director may dictate and enforce policy for a vital segment of the economy
affecting millions of Americans.
The CFPB Director’s insulation from removal by an accountable President
is enough to render the agency’s structure unconstitutional. But several other
features of the CFPB combine to make the Director’s removal protection even
more problematic. In addition to lacking the most direct method of presidential
control—removal at will—the agency’s unique structure also forecloses certain
indirect methods of Presidential control.
Because the CFPB is headed by a single Director with a five-year term, some
Presidents may not have any opportunity to shape its leadership and thereby
influence its activities . . . . To make matters worse, the agency’s single-Director

structure means the President will not have the opportunity to appoint any other
leaders—such as a chair or fellow members of a Commission or Board—who can
serve as a check on the Director’s authority and help bring the agency in line
with the President’s preferred policies.
The CFPB’s receipt of funds outside the appropriations process further
aggravates the agency’s threat to Presidential control. The President normally
has the opportunity to recommend or veto spending bills that affect the operation
of administrative agencies. But no similar opportunity exists for the President
to influence the CFPB Director. Instead, the Director receives over $500 million
per year to fund the agency’s chosen priorities. And the Director receives that
money from the Federal Reserve, which is itself funded outside of the annual
appropriations process. This financial freedom makes it even more likely that
the agency will “slip from the Executive’s control, and thus from that of the
people.” Free Enterprise Fund, 561 U.S. at 499 . . . .9
IV
[A majority composed of a different coalition of Justices, Chief Justice
Roberts and Justices Breyer, Ginsburg, Alito, Kagan, Sotomayor, and
Kavanaugh, then addressed the severability of removal from other provisions of
the Dodd-Frank Act establishing the CFPB. The Court concluded that the
remaining elements of the Dodd-Frank Act bearing on the CFPB’s structure and
duties could remain operative without the unconstitutional tenure restriction. The
Court noted that eliminating the entire agency would result in regulatory
disruption, as other agencies would not necessarily assume the same functions,
and that while Congress could alter the statute to render the agency
constitutional, the Court had only “the negative power to disregard an
unconstitutional enactment.”—Editors]
***
A decade ago, we declined to extend Congress’s authority to limit the
President’s removal power to a new situation, never before confronted by the
Court. We do the same today. In our constitutional system, the executive power
belongs to the President, and that power generally includes the ability to
supervise and remove the agents who wield executive power in his stead. While
we have previously upheld limits on the President’s removal authority in certain
contexts, we decline to do so when it comes to principal officers who, acting alone,
9 Amicus and the dissent try to diminish the CFPB’s insulation from Presidential
control by observing that the CFPB’s final rules can be set aside by a super majority
of the Financial Stability and Oversight Council (FSOC). But the FSOC’s veto power
is statutorily reserved for extreme situations, when two-thirds of the Council
concludes that a CFPB regulation would “put the safety and soundness of the United
States banking system or the stability of the financial system of the United States at
risk.” 12 U.S.C. §§ 5513(a), (c)(3). That narrow escape hatch has no impact on the
CFPB’s enforcement or adjudicatory authority and has never been used in the ten
years since the agency’s creation. It certainly does not render the CFPB’s
independent, single-Director structure constitutional.
SUPPLEMENT 195
wield significant executive power. The Constitution requires that such officials
remain dependent on the President, who in turn is accountable to the people.
■ JUSTICE THOMAS, with whom JUSTICE GORSUCH joins, concurring in part and
dissenting in part.
[Justice Thomas joined the majority opinion in part, dissenting with respect
to severability. After discussing the need for presidential control of the executive
branch, he turned to Humphrey’s Executor’s progeny.]
I–B–3
Humphrey’s Executor laid the foundation for a fundamental departure from
our constitutional structure with nothing more than handwaving and
obfuscating phrases such as “quasi-legislative” and “quasi-judicial.” . . .
Humphrey’s Executor relies on one key premise: the notion that there is a
category of “quasi-legislative” and “quasi-judicial” power that is not exercised by
Congress or the Judiciary, but that is also not part of “the executive power vested
by the Constitution in the President.” Humphrey’s Executor, at 628. Working
from that premise, the Court distinguished the “illimitable” power of removal
recognized in Myers, and upheld the FTC Act’s removal restriction, while
simultaneously acknowledging that the Constitution vests the President with
the entirety of the executive power.
The problem is that the Court’s premise was entirely wrong. The
Constitution does not permit the creation of officers exercising “quasi-legislative”
and “quasi-judicial powers” in “quasi-legislative” and “quasi-judicial agencies.”
No such powers or agencies exist. Congress lacks the authority to delegate its
legislative power, Whitman v. American Trucking Assns., Inc., 531 U.S. 457, 472
(2001), and it cannot authorize the use of judicial power by officers acting outside
of the bounds of Article III, Stern v. Marshall, 564 U.S. 462, 484 (2011). Nor can
Congress create agencies that straddle multiple branches of Government. The
Constitution sets out three branches of Government and provides each with a
different form of power—legislative, executive, and judicial. See Art. I, § 1; Art.
II, § 1, cl. 1; Art. III, § 1. Free-floating agencies simply do not comport with this
constitutional structure . . . .
That is exactly what happened in Humphrey’s Executor. The Court upheld
the FTC Act’s removal restriction by using the “quasi” label to support its claim
that the FTC “exercise[d] no part of the executive power vested by the
Constitution in the President.” Humphrey’s Executor, at 628. But “it is hard to
dispute that the powers of the FTC at the time of Humphrey’s Executor would at
the present time be considered ‘executive,’ at least to some degree.” Morrison, at
690, n. 28.
C
Today’s decision constitutes the latest in a series of cases that have
significantly undermined Humphrey’s Executor . . . .
This Court’s repudiation of Humphrey’s Executor began with its decision in
Morrison. There, the Court upheld a statute insulating an independent counsel
from removal by the Attorney General absent a showing of “good cause.”

Morrison, at 659–660. In doing so, the Court set aside the reasoning of
Humphrey’s Executor. It recognized that Humphrey’s Executor “rel[ied] on the
terms ‘quasi-legislative’ and ‘quasi-judicial’ to distinguish the officials involved
in Humphrey’s Executor . . . from those in Myers.” 487 U.S. at 689. But it then
immediately stated that its “present considered view is that the determination
of whether the Constitution allows Congress to impose a ‘good cause’-type
restriction on the President’s power to remove an official cannot be made to turn
on whether or not that official is classified as ‘purely executive.’ ” Ibid. The Court
also rejected Humphrey’s Executor’s conclusion that the FTC did not exercise
executive power, stating that “the powers of the FTC at the time of Humphrey’s
Executor would at the present time be considered ‘executive.’ ” Morrison, at 690,
n. 28. The lone dissenter, Justice Scalia, disagreed with much of the Court’s
analysis but noted that the Court had rightfully “swept” Humphrey’s Executor
“into the dustbin of repudiated constitutional principles.” 487 U.S. at 725. Thus,
all Members of the Court who heard Morrison rejected the core rationale of
Humphrey’s Executor.
The reasoning of the Court’s decision in Free Enterprise Fund created
further tension (if not outright conflict) with Humphrey’s Executor. In Free
Enterprise Fund, the Court concluded that a dual layer of for-cause removal
restrictions for members of the Public Company Accounting Oversight Board
violated the Constitution. In its analysis, the Court recognized that allowing
officers to “execute the laws” beyond the President’s control “is contrary to Article
II’s vesting of the executive power in the President.” 561 U.S. at 496 (emphasis
added). The Court acknowledged that “the executive power include[s] a power to
oversee executive officers through removal.” Id., at 492. And it explained that,
without the power of removal, the President cannot “be held fully accountable”
for the exercise of the executive power, “ ‘greatly diminish[ing] the intended and
necessary responsibility of the chief magistrate himself.’ ” Id., at 514 (quoting
The Federalist No. 70, p. 478 (J. Cooke ed. 1961) (A. Hamilton)) . . . . Humphrey’s
Executor is at odds with every single one of these principles: It ignores Article
II’s Vesting Clause, sidesteps the President’s removal power, and encourages the
exercise of executive power by unaccountable officers. The reasoning of the two
decisions simply cannot be reconciled. . . .
In light of these decisions, it is not clear what is left of Humphrey’s Executor’s
rationale. But if any remnant of that decision is still standing, it certainly is not
enough to justify the numerous, unaccountable independent agencies that
currently exercise vast executive power outside the bounds of our constitutional
structure.
***
Continued reliance on Humphrey’s Executor to justify the existence of
independent agencies creates a serious, ongoing threat to our Government’s
design. Leaving these unconstitutional agencies in place does not enhance this
Court’s legitimacy; it subverts political accountability and threatens individual
liberty. We have a “responsibility to ‘examin[e] without fear, and revis[e] without
reluctance,’ any ‘hasty and crude decisions’ rather than leaving ‘the character of
SUPPLEMENT 197
[the] law impaired, and the beauty and harmony of the [American constitutional]
system destroyed by the perpetuity of error.’ ” Gamble v. United States, 587 U.S.
––––, ––––, (2019) (THOMAS, J., concurring) (quoting 1 J. Kent, Commentaries
on American Law 444 (1826); some alterations in original). We simply cannot
compromise when it comes to our Government’s structure. Today, the Court does
enough to resolve this case, but in the future, we should reconsider Humphrey’s
Executor in toto. And I hope that we will have the will to do so.
■ JUSTICE KAGAN, with whom JUSTICE GINSBURG, JUSTICE BREYER, and JUSTICE
SOTOMAYOR join, concurring in the judgment with respect to severability and
dissenting in part.
Throughout the Nation’s history, this Court has left most decisions about
how to structure the Executive Branch to Congress and the President, acting
through legislation they both agree to. In particular, the Court has commonly
allowed those two branches to create zones of administrative independence by
limiting the President’s power to remove agency heads. The Federal Reserve
Board. The Federal Trade Commission (FTC). The National Labor Relations
Board. Statute after statute establishing such entities instructs the President
that he may not discharge their directors except for cause—most often phrased
as inefficiency, neglect of duty, or malfeasance in office. Those statutes, whose
language the Court has repeatedly approved, provide the model for the removal
restriction before us today. If precedent were any guide, that provision would
have survived its encounter with this Court—and so would the intended
independence of the Consumer Financial Protection Bureau (CFPB). . . .
In second-guessing the political branches, the majority second-guesses as
well the wisdom of the Framers and the judgment of history. It writes in rules to
the Constitution that the drafters knew well enough not to put there. It
repudiates the lessons of American experience, from the 18th century to the
present day. And it commits the Nation to a static version of governance,
incapable of responding to new conditions and challenges. Congress and the
President established the CFPB to address financial practices that had brought
on a devastating recession, and could do so again. Today’s decision wipes out a
feature of that agency its creators thought fundamental to its mission—a
measure of independence from political pressure. I respectfully dissent.
I
The text of the Constitution, the history of the country, the precedents of
this Court, and the need for sound and adaptable governance—all stand against
the majority’s opinion. They point not to the majority’s “general rule” of
“unrestricted removal power” with two grudgingly applied “exceptions.” Rather,
they bestow discretion on the legislature to structure administrative institutions
as the times demand, so long as the President retains the ability to carry out his
constitutional duties. And most relevant here, they give Congress wide leeway
to limit the President’s removal power in the interest of enhancing independence
from politics in regulatory bodies like the CFPB.
A
What does the Constitution say about the separation of powers—and
particularly about the President’s removal authority? (Spoiler alert: about the
latter, nothing at all.) . . .
One way the Constitution reflects [the Framers’] vision is by giving Congress
broad authority to establish and organize the Executive Branch. Article II
presumes the existence of “Officer[s]” in “executive Departments.” § 2, cl. 1. But
it does not, as you might think from reading the majority opinion, give the
President authority to decide what kinds of officers—in what departments, with
what responsibilities—the Executive Branch requires. See ante (“The entire
‘executive Power’ belongs to the President alone”). Instead, Article I’s Necessary
and Proper Clause puts those decisions in the legislature’s hands. Congress has
the power “[t]o make all Laws which shall be necessary and proper for carrying
into Execution” not just its own enumerated powers but also “all other Powers
vested by this Constitution in the Government of the United States, or in any
Department or Officer thereof.” § 8, cl. 18. Similarly, the Appointments Clause
reflects Congress’s central role in structuring the Executive Branch. Yes, the
President can appoint principal officers, but only as the legislature “shall . . .
establish[ ] by Law” (and of course subject to the Senate’s advice and consent).
Art. II, § 2, cl. 2. And Congress has plenary power to decide not only what inferior
officers will exist but also who (the President or a head of department) will
appoint them. So as Madison told the first Congress, the legislature gets to
“create[ ] the office, define[ ] the powers, [and] limit[ ] its duration.” 1 Annals of
Cong. 582 (1789). The President, as to the construction of his own branch of
government, can only try to work his will through the legislative process.
The majority relies for its contrary vision on Article II’s Vesting Clause, but
the provision can’t carry all that weight. Or as Chief Justice Rehnquist wrote of
a similar claim in Morrison v. Olson, 487 U.S. 654 (1988), “extrapolat[ing]” an
unrestricted removal power from such “general constitutional language”—which
says only that “[t]he executive Power shall be vested in a President”—is “more
than the text will bear.” . . . I’ll turn soon to the Decision of 1789 and other
evidence of Post-Convention thought. For now, note two points about practice
before the Constitution’s drafting. First, in that era, Parliament often restricted
the King’s power to remove royal officers—and the President, needless to say,
wasn’t supposed to be a king. See Birk, Interrogating the Historical Basis for a
Unitary Executive, 73 Stan. L. Rev. (forthcoming 2021). Second, many States at
the time allowed limits on gubernatorial removal power even though their
constitutions had similar vesting clauses. See Shane, The Originalist Myth of the
Unitary Executive, 19 U. Pa. J. Const. L. 323, 334–344 (2016). Historical
understandings thus belie the majority’s “general rule.”
Nor can the Take Care Clause come to the majority’s rescue. That Clause
cannot properly serve as a “placeholder for broad judicial judgments” about
presidential control. Goldsmith & Manning, The Protean Take Care Clause, 164
U. Pa. L. Rev. 1835, 1867 (2016); but see ante, at 2197, 2206 n.11 (using it that
way). To begin with, the provision—“he shall take Care that the Laws be
faithfully executed”—speaks of duty, not power. Art. II, § 3. New scholarship
SUPPLEMENT 199
suggests the language came from English and colonial oaths taken by, and
placing fiduciary obligations on, all manner and rank of executive officers. See
Kent, Leib, & Shugerman, Faithful Execution and Article II, 132 Harv. L. Rev.
2111, 2121–2178 (2019). To be sure, the imposition of a duty may imply a grant
of power sufficient to carry it out. But again, the majority’s view of that power ill
comports with founding-era practice, in which removal limits were common. See,
e.g., Corwin, Tenure of Office and the Removal Power Under the Constitution,
27 Colum. L. Rev. 353, 385 (1927) (noting that New York’s Constitution of 1777
had nearly the same clause, though the State’s executive had “very little voice”
in removals). And yet more important, the text of the Take Care Clause requires
only enough authority to make sure “the laws [are] faithfully executed”—
meaning with fidelity to the law itself, not to every presidential policy preference.
As this Court has held, a President can ensure “ ‘faithful execution’ of the laws”—
thereby satisfying his “take care” obligation—with a removal provision like the
one here. Morrison, 487 U.S. at 692. A for-cause standard gives him “ample
authority to assure that [an official] is competently performing [his] statutory
responsibilities in a manner that comports with the [relevant legislation’s]
provisions.” Ibid. . . .
B
History no better serves the majority’s cause. As Madison wrote, “a regular
course of practice” can “liquidate & settle the meaning of ” disputed or
indeterminate constitutional provisions. Letter to Spencer Roane (Sept. 2, 1819),
in 8 Writings of James Madison 450 (G. Hunt ed. 1908); see NLRB v. Noel
Canning, 573 U.S. 513, 525 (2014). The majority lays claim to that kind of record,
asserting that its muscular view of “[t]he President’s removal power has long
been confirmed by history.” But that is not so. The early history—including the
fabled Decision of 1789—shows mostly debate and division about removal
authority. And when a “settle[ment of] meaning” at last occurred, it was not on
the majority’s terms. Instead, it supports wide latitude for Congress to create
spheres of administrative independence . . . .
1
Begin with evidence from the Constitution’s ratification. And note that this
moment is indeed the beginning: Delegates to the Constitutional Convention
never discussed whether or to what extent the President would have power to
remove executive officials. As a result, the Framers advocating ratification had
no single view of the matter. In Federalist No. 77, Hamilton presumed that under
the new Constitution “[t]he consent of [the Senate] would be necessary to
displace as well as to appoint” officers of the United States. He thought that
scheme would promote “steady administration”: “Where a man in any station
had given satisfactory evidence of his fitness for it, a new president would be
restrained” from substituting “a person more agreeable to him.” By contrast,
Madison thought the Constitution allowed Congress to decide how any executive
official could be removed. He explained in Federalist No. 39: “The tenure of the
ministerial offices generally will be a subject of legal regulation, conformably to
the reason of the case, and the example of the State Constitutions.” Neither view,
of course, at all supports the majority’s story.
The second chapter is the Decision of 1789, when Congress addressed the
removal power while considering the bill creating the Department of Foreign
Affairs. Speaking through Chief Justice Taft—a judicial presidentialist if ever
there was one—this Court in Myers v. United States, 272 U.S. 52 (1926), read
that debate as expressing Congress’s judgment that the Constitution gave the
President illimitable power to remove executive officials. The majority rests its
own historical claim on that analysis (though somehow also finding room for its
two exceptions). But Taft’s historical research has held up even worse than
Myers’ holding (which was mostly reversed). . . .
The best view is that the First Congress was “deeply divided” on the
President’s removal power, and “never squarely addressed” the central issue
here. The congressional debates revealed three main positions. Some shared
Hamilton’s Federalist No. 77 view: The Constitution required Senate consent for
removal. At the opposite extreme, others claimed that the Constitution gave
absolute removal power to the President. And a third faction maintained that
the Constitution placed Congress in the driver’s seat: The legislature could
regulate, if it so chose, the President’s authority to remove. In the end, Congress
passed a bill saying nothing about removal, leaving the President free to fire the
Secretary of Foreign Affairs at will. But the only one of the three views
definitively rejected was Hamilton’s theory of necessary Senate consent. As even
strong proponents of executive power have shown, Congress never “endorse[d]
the view that [it] lacked authority to modify” the President’s removal authority
when it wished to. The summer of 1789 thus ended without resolution of the
critical question: Was the removal power “beyond the reach of congressional
regulation?”
At the same time, the First Congress gave officials handling financial
affairs—as compared to diplomatic and military ones—some independence from
the President. The title and first section of the statutes creating the Departments
of Foreign Affairs and War designated them “executive departments.” Act of July
27, 1789, ch. 4, 1 Stat. 28; Act of Aug. 7, 1789, ch. 7, 1 Stat. 49. The law creating
the Treasury Department conspicuously avoided doing so. See Act of Sept. 2,
1789, ch. 12, 1 Stat. 65. That difference in nomenclature signaled others of
substance. Congress left the organization of the Departments of Foreign Affairs
and War skeletal, enabling the President to decide how he wanted to staff them.
By contrast, Congress listed each of the offices within the Treasury Department,
along with their functions. Of the three initial Secretaries, only the Treasury’s
had an obligation to report to Congress when requested. See § 2, 1 Stat. 65–66.
And perhaps most notable, Congress soon deemed the Comptroller of the
Treasury’s settlements of public accounts “final and conclusive.” Act of Mar. 3,
1795, ch. 48, § 4, 1 Stat. 441–442. That decision, preventing presidential
overrides, marked the Comptroller as exercising independent judgment. True
enough, no statute shielded the Comptroller from discharge. But even James
Madison, who at this point opposed most removal limits, told Congress that
“there may be strong reasons why an officer of this kind should not hold his office
at the pleasure” of the Secretary or President. 1 Annals of Cong. 612. At the least,
SUPPLEMENT 201
as Professor Prakash writes, “Madison maintained that Congress had the

[constitutional] authority to modify [the Comptroller’s] tenure.”
Contrary to the majority’s view, then, the founding era closed without any
agreement that Congress lacked the power to curb the President’s removal
authority. And as it kept that question open, Congress took the first steps—
which would launch a tradition—of distinguishing financial regulators from
diplomatic and military officers. The latter mainly helped the President carry
out his own constitutional duties in foreign relations and war. The former chiefly
carried out statutory duties, fulfilling functions Congress had assigned to their
offices. In addressing the new Nation’s finances, Congress had begun to use its
powers under the Necessary and Proper Clause to design effective
administrative institutions. And that included taking steps to insulate certain
officers from political influence.
2
As the decades and centuries passed, those efforts picked up steam.
Confronting new economic, technological, and social conditions, Congress—and
often the President—saw new needs for pockets of independence within the
federal bureaucracy. And that was especially so, again, when it came to financial
regulation. [Discussion of various enactments by Congress is omitted.—Editors]
C
What is more, the Court’s precedents before today have accepted the role of
independent agencies in our governmental system. . . . Nowhere do those
precedents suggest what the majority announces today: that the President has
an “unrestricted removal power” subject to two bounded exceptions.
The majority grounds its new approach in Myers, ignoring the way this
Court has cabined that decision. Myers, the majority tells us, found an
unrestrained removal power “essential to the [President’s] execution of the laws.”
Ante (quoting Myers, 272 U.S. at 117). What the majority does not say is that
within a decade the Court abandoned that view (much as later scholars rejected
Taft’s one-sided history). In Humphrey’s Executor v. United States, 295 U.S. 602
(1935), the Court unceremoniously—and unanimously—confined Myers to its
facts. “[T]he narrow point actually decided” there, Humphrey’s stated, was that
the President could “remove a postmaster of the first class, without the advice
and consent of the Senate.” 295 U.S. at 626. Nothing else in Chief Justice Taft’s
prolix opinion “c[a]me within the rule of stare decisis.” Ibid. (Indeed, the Court
went on, everything in Myers “out of harmony” with Humphrey’s was expressly
“disapproved.” 295 U.S. at 626.) . . .
And Humphrey’s found constitutional a statute identical to the one here,
providing that the President could remove FTC Commissioners for “inefficiency,
neglect of duty, or malfeasance in office.” 295 U.S. at 619. The Humphrey’s Court,
as the majority notes, relied in substantial part on what kind of work the
Commissioners performed. See id., at 628, 631. (By contrast, nothing in the
decision turned—as the majority suggests—on any of the agency’s organizational
features.) According to Humphrey’s, the Commissioners’ primary work was to
“carry into effect legislative policies”—“filling in and administering the details
embodied by [a statute’s] general standard.” 295 U.S. at 627–628. In addition,

the Court noted, the Commissioners recommended dispositions in court cases,
much as a special master does. Given those “quasi-legislative” and “quasi-
judicial”—as opposed to “purely executive”—functions, Congress could limit the
President’s removal authority. Id., at 628. Or said another way, Congress could
give the FTC some “independen[ce from] executive control.” Id., at 629.
[Discussion of subsequent decisions—Wiener, Morrison, and Free Enterprise
Fund—is omitted.—Editors]
D
Judicial intrusion into this field usually reveals only how little courts know
about governance . . . . A given agency’s independence (or lack of it) depends on
a wealth of features, relating not just to removal standards, but also to
appointments practices, procedural rules, internal organization, oversight
regimes, historical traditions, cultural norms, and (inevitably) personal
relationships . . . . But that is yet more reason for courts to defer to the branches
charged with fashioning administrative structures, and to hesitate before ruling
out agency design specs like for-cause removal standards. . . .
NOTES
1. How does Chief Justice Roberts address the Humphrey’s Executor precedent?
In future cases, will Humphrey’s Executor carry any precedential force? Assuming
Myers and Humphrey’s Executor are logically irreconcilable, how should a Court
decide between them?
2. What is the constitutional basis for allowing multi-member agencies to be
independent but not single-director agencies?
3. Many cabinet agencies have legislative (rule-making), executive
(enforcement), and judicial (adjudicatory) powers. Consider, for example, the
Internal Revenue Service, Environmental Protection Agency, Department of Labor,
and U.S. Customs and Border Protection. As a practical matter, does it make any
difference that the President has removal authority over the heads of these agencies
but not “independent” agencies?
4. The majority mentions, but does not seem to give independent weight to, the
oddity that the Consumer Financial Protection Bureau’s budget comes out of the
profits of the Federal Reserve without need for appropriations by Congress. Can this
be squared with Art. I, §9. Cl. 7, which states that “No Money shall be drawn from
the Treasury, but in Consequence of Appropriations made by Law”?
5. If Joseph Biden wins the next presidential election could he fire all the
“independent” agency heads put in office by President Trump, or is he stuck with
them?
The Power to Direct Subordinates
One of the practical and structural arguments for the removal power is the
president’s need to be able to control the executive branch. But the removal power is
not the only way to accomplish this. Does the president have a power to directly
control subordinates in addition to the removal power (or could it be instead of the
removal power)?
President George Washington took office on April 30, 1789, and he immediately
asserted control over all the executive entities of the government under the Articles
of Confederation, even though Congress had not yet given him any statutory
authority over those entities. President Washington issued directives to the acting
secretary of war, the board of treasury, the acting postmaster general, and the acting
secretaries of war and of foreign affairs. He continued throughout his presidency to
issue hundreds of written communications approving plans and actions, conveying
directions about administrative operations, and making requests. For instance,
President Washington started and ended criminal prosecutions by federal district
attorneys (the forerunners of today’s U.S. attorneys). And his Neutrality
Proclamation was a major exercise of presidential power, guiding foreign policy and
ordering prosecutions.
President Washington’s immediate successors, John Adams and Thomas
Jefferson, also started and ended prosecutions. President Adams personally directed
that a prosecution be brought against newspaper editor William Duane even though
no statute purported to give the president the power to do that. On two other
occasions he specifically ordered that prosecutions be dropped. So too did President
Jefferson—indeed, he stopped the prosecution against Duane (see p. Error!
Bookmark not defined.). For extensive discussion of more than two centuries of
presidential practice, see Steven G. Calabresi & Christopher S. Yoo, THE UNITARY
EXECUTIVE: PRESIDENTIAL POWER FROM WASHINGTON TO BUSH (2008).
By the time of the Monroe administration it was an established practice that
presidents could control subordinates in the executive branch. Nonetheless, it was at
this time that the first suggestions arose of limits on presidential power to direct and
control. Consider two attorney general opinions from the first half of the nineteenth
century. In the first, an opinion for President Monroe, Attorney General William
Wirt expressed some hesitance about whether the president could direct and control
lower-level executive employees. In the second, Attorney General Roger Taney (later
Chief Justice Taney) advised President Andrew Jackson about his authority to
control a federal prosecutor.
William Wirt, Opinion on the Accounting Officers

October 20, 1823
[Accounting officers in the Department of the Treasury made a decision that

displeased Major Joseph Wheaton. He sought presidential review, and President
James Monroe referred the matter to the attorney general.—Editors]
203
204 STRUCTURE AND POWERS OF THE NATIONAL GOVERNMENT PART 1
SIR: I have examined the case of Major Joseph Wheaton, submitted by you for my
opinion; and would proceed at once to the expression of an opinion on the merits of
his claims, but that there is a preliminary inquiry which must be first made, and as
to which I beg leave to ask your direction; and that is, whether it is proper for you to
interfere in this case at all? I will suggest the considerations which strike me as
rendering it improper.
I. It appears to me that you have no power to interfere.
The constitution of the United States requires the President, in general terms,
to take care that the laws be faithfully executed; that is, it places the officers engaged
in the execution of the laws under his general superintendence: he is to see that they
do their duty faithfully; and on their failure, to cause them to be displaced,
prosecuted, or impeached, according to the nature of the case. In case of forcible
resistance to the laws, too, [so] as to require the interposition of the power of the
government to overcome the illegal resistance, he is to see that that power be
furnished. But it could never have been the intention of the constitution, in assigning
this general power to the President to take care that the laws be executed, that he
should in person execute the laws himself. For example: if a marshal should either
refuse to serve process altogether, or serve it irregularly, that the President should
correct the irregularity, or supply the omission, by executing the process in person.
To interpret this clause of the constitution so as to throw upon the President the duty
of a personal interference in every specific case of an alleged or defective execution
of the laws, and to call upon him to perform such duties himself, would be not only
to require him to perform an impossibility himself, but to take upon himself the
responsibility of all the subordinate executive officers of the government—a
construction too absurd to be seriously contended for. But the requisition of the
constitution is, that he shall take care that the laws be executed. If the laws, then,
require a particular officer by name to perform a duty, not only is that officer bound
to perform it, but no other officer can perform it without a violation of the law; and
were the President to perform it, he would not only be not taking care that the laws
were faithfully executed, but he would be violating them himself. The constitution
assigns to Congress the power of designating the duties of particular officers: the
President is only required to take care that they execute them faithfully. . . .
Let us carry this principle to the laws which regulate the settlement of public
accounts. In the original organization of the Treasury Department . . . the duties of
the officers are designated specifically. There was one Auditor and one Comptroller.
The duty of the Auditor is declared to be to receive all public accounts; and, after
examination, to certify the balance, and transmit the accounts, with the vouchers
and certificate, to the Comptroller, for his decision thereon; with this proviso: that if
any person be dissatisfied therewith, he may within six months appeal to the
Comptroller against such settlement. Here the right of appeal stops; there is no
proviso for an appeal to the President. . . .
So also the act of 3d March, 1817, which introduces the present organization of
the Treasury Department, and under which Major Wheaton’s accounts have been
settled, assigns to [specific Treasury Department personnel the settling of Major
Wheaton’s accounts with no statutory right of appeal to the president]. . . . Were it
CHAPTER 2 THE SEPARATION OF THE NATIONAL POWERS 205
the intention of Congress to subject these accounts to the farther revision and
decision of the President, that intention would have been expressed. The truth of this
position is illustrated by the act of the last session, “to provide for the settlement of
the accounts of Daniel D. Tompkins, late governor of the State of New York.” This
act expressly provides that the proper accounting officers of the Treasury be
authorized to adjust and settle the accounts and claims of Daniel D. Tompkins on
principles of equity and justice, “subject to the revision and final decision of the
President of the United States.” Where was the necessity of this express provision, if
all the accounts settled by those officers were already subject to the revision and final
decision of the President of the United States? . . . The authority is confined to the
accounting officers of the Treasury Department. . . . [T]he President has no authority
to interfere.
It would be strange, indeed, if it were otherwise. The office of President is
ordained for very different purposes than that of settling individual accounts. The
constitution has committed to him the care of the great interests of the nation, in all
its foreign and domestic relations. . . . How will it be possible for the President to
perform these great duties, if he is also to exercise the appellate power of revising
and correcting the settlement of all the individual accounts which pass through the
hands of the accounting officers? Let it be remembered that, out of the vest multitude
of these accounts which are annually settled by these officers, there are very few
which are settled to the entire satisfaction of the claimants; and if every dissatisfied
claimant has a right to appeal to the President, and call upon him to revise and
correct the settlement, the President would be constrained to abandon the great
national objects which are committed to his peculiar care, and become the accountant
general of the government. . . .
My opinion is, that the settlement made of the accounts of individuals by the
accounting officers appointed by law is final and conclusive, so far as the executive
department of the government is concerned. If an individual conceives himself
injured by such settlement, his recourse must be one of the other two branches of
government—the legislative or judicial. . . .
II. If you do possess the power of revising and correcting the settlements made
by the accounting officers of the government, this is not a proper case for the exercise
of that power. . . .
I have the honor to remain, sir, very respectfully, your obedient servant.
Roger Taney, Opinion on the Jewels

of the Princess of Orange
December 28, 1831
To the SECRETARY OF STATE.

I have, according to your request, read your argument on the questions which
have grown out of the seizure of the jewels said to have been stolen from the Princess
of Orange; and I concur with you in the conclusion to which you have come, although
I do not place my opinion on precisely the same grounds.
The main question, and the only one about which there seems to be much
difficulty, is, whether the President may lawfully direct the district attorney to
discontinue the libel now pending against these jewels in the district court of New
York. The libel is in the name of the United States; it was filed by their attorney, in
their behalf, and claims to have the property condemned as forfeited to the United
States, for an offence alleged to have been committed against their revenue laws.
Having been absent from Washington when this subject was under
consideration, I have seen none of the papers or documents in the case, and I take
the facts as I find them set forth (no doubt correctly) in your argument. I understand
them to be as follows:
The jewels were brought to New York by Polari, and the violation of the revenue
laws was committed by him; and, as soon as they were known to be in this country,
the minister of the King of the Netherlands, acting under the direction of his
government, claimed them as the property of the Princess of Orange, who is one of
the family of the King.
Polari does not pretend that the property seized belongs to him. On the contrary,
his confessions show that he was either concerned in the theft, or obtained the jewels,
knowing them to be stolen; and there is no claimant but the Princess of Orange; and
a friendly sovereign, through his minister here, asserts that they belong to her. . . .
The fact that jewels of this description were stolen some time ago from the
Princess of Orange, is notorious, and may now be regarded as a matter of history.
The jewels which have been seized at New York are of very great value. The seizure
of this property has been publicly known for several months; and it is in a high degree
improbable that any one who supposed himself entitled to it would neglect, for so
long a time, to put in his claim. And as none is made, except that on behalf of the
Princess of Orange, the circumstances above stated furnish sufficient evidence to
conclude that the jewels in question belong to her, and will justify the President in
treating them as her property. . . .
Taking this to be the true state of the case, it is, I think, very clear that the
jewels are not liable to condemnation under the laws of the United States. The real
owner has done no act that can rightfully subject the property to forfeiture. The party
who imported them into this country obtained the possession fraudulently, and
without her knowledge, and brought them here against her will. It was not in her
power to prevent it; for she did not know who had the possession of them, or where
they were to be found, until they were seized. And property thus obtained, and thus
introduced against the consent of the owner, stands on the same footing with that
which is cast upon our shores by the violence of the winds and waves, and is entitled
to the same protection. It is not liable to forfeiture in either case; and the innocent
owner will not be visited with that penalty for an act which it was out of his power
to prevent.
There being, then, sufficient evidence to show that these jewels are the property
of the Princess of Orange, and therefore not liable to forfeiture,—are the officers of
the government, from the nature of our institutions, bound to carry on a prosecution
against them, and endeavor to have them condemned, when they are fully convinced
that they are not justly liable to condemnation? Must the distant owner be put to the
trouble and expense of proving her title, according to the strict and technical rules of
evidence which prevail in judicial proceedings?
. . . [W]here an offence has been actually committed, and the penalty of the law
unquestionably incurred, no doubt can be entertained of the power of the President
to absolve the party from the penalty or forfeiture to which he is liable. And if a
prosecution is pending in court, the President may, by his pardon, enable the party
to stop the proceedings, without going to trial. And the power to grant a nolle
prosequi in such a case, is necessarily embraced in the power to pardon an offender.
It would be a singular anomaly in our law, if the power is given thus to put an
end to a prosecution against one admitted to be guilty, and yet there should be no
power vested anywhere to save a party admitted to be innocent, from a harassing
and expensive litigation with the United States, and which, from the distance of its
witnesses and the difficulty of collecting his proofs, may often be oppressive and
ruinous to him. The men who framed the constitution have not, however, committed
this oversight. And in cases of the latter description, the power to interpose appears
to me to be evidently embraced by that clause of the constitution which makes it his
duty “to take care that the laws be faithfully executed.” I proceed to show how that
power applies to the case in hand. . . .
[The attorney general proceeds to show that federal district attorneys had
discretion not to prosecute cases like this one. The attorney general then considers
whether the president can direct and control the exercise of that discretion.—Editors]
I think the President does possess the power. The interest of the country and
the purposes of justice manifestly require that he should possess it; and its existence
is necessarily implied by the duties imposed upon him in that clause of the
constitution before referred to, which enjoins him to take care that the laws be
faithfully executed. Cases readily suggest themselves which show the necessity of
such a power to enable him to discharge this duty. . . .
If it should be said that, the district attorney having the power to discontinue
the prosecution, there is no necessity for inferring a right in the President to direct
him to exercise it,—I answer, that the direction of the President is not required to
communicate any new authority to the district attorney, but to direct him or aid him
in the execution of the power he is admitted to possess. It might, indeed, happen that
a district attorney was prosecuting a suit in the name of the United States, against
their interest and against justice, and for the purpose of oppressing an individual:
such a prosecution would not be a faithful execution of the law; and upon the
President being satisfied that the forms of law were abused for such a purpose, and
being bound to take care that the law was faithfully executed, it would become his
duty to take measures to correct the procedure. And the most natural and proper
measure to accomplish that object would be, to order the district attorney to
discontinue the prosecution. . . .
I have put the case of a district attorney who wilfully violates his duty, in order
to show the necessity of the power in the President for which I am contending. But
another class of cases frequently occur, in which the district attorney himself may
believe that the prosecution ought to be discontinued, but feels that it would be
indiscreet and rash in him to incur the whole responsibility of dismissing it. And no
case would better illustrate this class of cases than the one which has given rise to
this discussion. The amount of property claimed to be forfeited to the United States
is very large. The collector insists that a great part of it is liable to condemnation. It
is known to have attracted the attention of the President, and to have become the
subject of a correspondence with the minister of a foreign power. It would be
indiscreet in the highest degree in Mr. Hamilton, the district attorney, to dismiss
such a prosecution on his own responsibility, without first obtaining the approbation
of the President; . . .
. . . Upon the whole, I consider the district attorney as under the control and
direction of the President, in the institution and prosecution of suits in the name and
on behalf of the United States; and that it is within the legitimate power of the
President to direct him to institute or to discontinue a pending suit, and to point out
to him, his duty, whenever the interest of the United States is directly or indirectly
concerned. And I find, on examination, that the practice of the government has
conformed to this opinion; and that, in many instances where the interference of the
Executive was asked for, the cases have been referred to the Attorney General, and,
in every case, the right to interfere and direct the district attorney is assumed or
asserted. . . . If the President possesses this power, the remaining inquiry is, whether
this is a fit case for its exercise. My opinion on this point is sufficiently indicated by
the remarks I have already made. . . .
NOTES
1. What kind of power are the accounting officers exercising? Can it be legislative
power, given the absence of bicameralism and presentment? Can it be judicial power,
given that the officers are not Article III judges? If not, must it be executive power? But
if the accounting officers are exercising executive power, how is that consistent with the
Vesting Clause, which gives that power to the president?
2. Attorney General Taney argued in The Jewels of the Princess of Orange that
the president can always stop a prosecution by a federal prosecutor. But, unlike with the
accounting officers, there was no federal statute rendering the prosecutor’s decision final.
What if there were? Can Congress by statute give a special prosecutor the final decision
to prosecute in a case the way it gave accounting officers the final decision?
3. How are the power of removal and the power of directing related? Must the
president have both of them? Either of them? Consider this argument:
Even if the President has a constitutionally unlimited power to remove certain
executive officials, that power alone does not satisfy the Article II Vesting
Clause. If an official exercises power contrary to the President’s directives and
is then removed, one must still determine whether the official’s exercise of
power is legally valid. If the answer is “no,” then the President necessarily has
the power to nullify discretionary actions of subordinates, and removal is
therefore not the President’s sole power of control. If the answer is “yes,” then
the insubordinate ex-official will have effectively exercised executive power
contrary to the President’s wishes, which contravenes the vesting of that power
in the President. A presidential removal power, even an unlimited removal

power, is thus either constitutionally superfluous or constitutionally
inadequate. . . . It is therefore constitutionally non-existent as well.
Gary Lawson, The Rise and Rise of the Administrative State, 107 Harv. L. Rev. 1231,
1244 & n.74 (1994). Is this argument persuasive? If not, what is it missing?
[Assignment 13]
C. SUSPENDING AND DISPENSING POWERS?: “HE SHALL TAKE

CARE THAT THE LAWS BE FAITHFULLY EXECUTED”
Art. II, § 3: . . . he shall take Care that the Laws be faithfully executed. . . .
Article II places the president in charge of executing, i.e. enforcing, the law. But
what does it tell the president about how to enforce it? Must the president enforce
every law on the books, in every circumstance? Or does the president have discretion
to decide when enforcement is wise? And if so, are there limits to that discretion?
May the president decide that an entire legal regime is unwise and simply ignore it?
Two of the prerogative powers claimed by English monarchs were the power to
suspend the operation of statutes entirely and the power to grant dispensations,
excusing individuals from complying with the law. In England, shortly before the
Glorious Revolution of 1688, King James II claimed powers to dispense with and to
suspend the laws. (In particular, he used these powers to circumvent an act of
Parliament that forbade Roman Catholics from holding office and participating in
public life.) When King James II was ousted, and replaced by William and Mary, part
of the settlement the English revolutionaries insisted on was that no future monarch
would claim the powers of suspending or dispensing.
The Constitution does not address the suspending and dispensing powers in
those terms. But the Constitutional Convention unanimously rejected a proposal to
give the president a suspending power. And the text does state that the president
“shall take Care that the Laws be faithfully executed.” U.S. Const. Art. II, § 3. The
historical context suggests that the clause was intended to impose upon the president
a duty to enforce the law. Perhaps that duty went so far as to categorically reject
both suspending and dispensing powers—but the word “faithfully” leaves ambiguous
how far that duty extends. Moreover, some subsequent interpreters have argued that
the Take Care Clause should be read as a power rather than (or in addition to) a
duty.
We next present three episodes of enforcement discretion. There are two cases
about an executive refusal to enforce the law. In one, United States v. Cox, the court
did not interfere with the executive decision. In the other, Adams v. Richardson, the
court ordered a series of enforcement actions. After these, we present a recent
memorandum from the Office of Legal Counsel defending the president’s discretion
not to enforce the immigration laws. This non-enforcement policy caused a major
political controversy—as well as extensive federal litigation—during the second term
of the Obama administration. As you read these materials, continue to consider
whether the Take Care Clause contains a power or a duty, and of what sort. And

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156 THE CONSTITUTION OF THE UNITED STATES (3D ED.

B. SUPERVISING THE EXECUTIVE BRANCH: “IN A PRESIDENT . . . ”

Foundations of The Removal Power: The Decision of 1789

The Supreme Court and the Removal Power: Doctrinal History

Myers v. United States

■ MR. CHIEF JUSTICE TAFT delivered the opinion of the Court.

legislative bodies. It exhibited in a clear degree the paralysis to which a partisan

Other acts of Congress are referred to which contain provisions said to be

the President the constitutional power of suspension. . . . Power to remove, as well

Humphrey’s Executor v. United States

■ MR. JUSTICE SUTHERLAND delivered the opinion of the Court.

■ CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.

President alone, in the Courts of Law, or in the Heads of Departments.”

executed” by an independent counsel. No independent counsel may be appointed

appointing a surefire enthusiastic prosecutor could hardly be considered an

Seila Law, L.L.C. v. Consumer Financial Protection

We have recognized a second exception for inferior officers in two cases,

United States in federal court—a quintessentially executive power not

scattered examples”—four to be exact—shed little light. NLRB v. Noel Canning,

influence its activities . . . . To make matters worse, the agency’s single-Director

from removal by the Attorney General absent a showing of “good cause.”

as Professor Prakash writes, “Madison maintained that Congress had the

embodied by [a statute’s] general standard.” 295 U.S. at 627–628. In addition,

William Wirt, Opinion on the Accounting Officers

[Accounting officers in the Department of the Treasury made a decision that

Roger Taney, Opinion on the Jewels

To the SECRETARY OF STATE.

in the President. A presidential removal power, even an unlimited removal

C. SUSPENDING AND DISPENSING POWERS?: “HE SHALL TAKE

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