Select Page

Administrative Law
SUNY Buffalo Law School
Boyer, Barry B.

Administrative Law
1.   Appointment Power
1.1.                    Officers of the United States-Art II § 2 U.S. Const (President shall nominate, and by and with the advice and consent of the Senate, shall appoint . . . all other Officers of the United States . . . but the Congress may vest the appointment of such inferior officers in the President, in the Courts, or in the Heads of Deparments)
1.2.                    Buckely v. Valeo 1976 pg 562 (Appointment power)
1.2.1.     After Watergate, Congress passed Federal Election Campaign Act 1971 (FEC) which required the reporting of campaign contributions and expenditures. Congress created the Federal Election Commission to administer the act. FEC could make rules, regulations, adjudicate violations. The commission had six members, two appointed by President of the Senate, two speaker of the house, two President. The issue turned on whether this Congressional body could enforce the law (like the Administratively controlled DOJ, or did this violate separation of powers) (Necessary and Proper clause usually shows your desperate)
1.2.1.1.          The Court- (Issue one the appointment clause) The appointment of Officers of the U.S. is governed by the appointment clause Art II § 2. Principal officers are selected by the President with the advice and consent of the the Senate. Inferior officers Congress may allow to be appointed by the Pres alone, by the department heads or the courts. The FEC argues that regardless of the appointment clause, it has authority under the Necessary and Proper Clause to make this appointments. The Court disagrees. Congress may not vest in itself the authority to appoint officers of the U.S., when the appointment clause prohibits it from doing so.
1.2.1.2.          The Court- (Issue two-the Commission’s Power) the present commission was not appointed pursuant to the Clause, so the powers exercised by them are limited to investigative and informative powers, the same as any committee in the Congress has. Law enforcement, civil suits and so on, is vested in the President Art II § 3. The Committee cannot conduct civil litigation in the courts, this power is vested only in Officers of the U.S.
1.2.1.2.1.                  Case note- After the committee was reconstituted to abide, more or less, with this opinion, they sued the NRA and it’s petition for certiorari was dismissed because only the Solicitor General petition for cert. on behalf of agencies.
1.2.1.2.2.                  Case problem 6-5 Legislative Appointment- Airport question, are members of the review board officer’s of the US -two categories; officers of US (Pres appointment/Senate confirmation), here the Airport Board reviewers can’t be principal officers; Inferior officers (no department here, the Pres or the courts then could appoint) However; they are appointed by house/senate-they could pass a law but not enforce the law.
1.3.                    Morrison v. Olson 1988 pg 567 (Appointment Power)
1.3.1.     Independent Counsel law- Ethics in Government Act 28 USC 591-599-requires the attorney general, upon sufficient information, investigate whether any person (cover by the act) has violated federal criminal law. He conducts preliminary investigation, then reports to Special Di

titution explains the appointment of officers, but, is silent on removal of officers-two sections infer President’s authority for removal- Art II § 1, 3- executive power; take care that the laws be faithfully executed.
2.2.                    Meyers v. United States, 1926 pg 572 (limitations on Presidential Removal)
2.2.1.     President fired the Post Master General-Congress forbade this. He sued for back pay, court of claims held for Pres. Pres has power of removal without consent of Congress. (functional argument is made by the Court, but this really seems thin-the Senate could run the post office, couldn’t it?
2.3.                    Humphrey’s Executor v. U.S. 1935 pg 573  (Removal)
2.3.1.     FDR fires FTC commissioner (Independent Agency). Statute says the he can be removed only for inefficiency, neglect of duty or malfeasance in officer 15 USC 41. Govt says statute unconstitutional, uses Meyers. (5 commissioners only 3 at most from one a party PAS appointments)
2.3.1.1.          The Court- Meyers was a Post Master, an executive officer, not controlling here. FTC is administrative body created by Congress to carry into effect legislative polices. FTC is not an arm of the executive. Separation of Powers requires departments be free from the coercive influence of the other branches.