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Administrative Law
SUNY Buffalo Law School
Boyer, Barry B.

Appointment and Removal of Government employees (p. 561 – 577)
The Appointment Powers:
Officers of the US:
 Article II of the Constitution mandates that the President shall possess all power to appoint “Officers of the US, with the advice and consent of the Senate”.
 All “Officers of the US” or those who exercise substantial power in enforcing the laws through criminal or civil proceedings, must be appointed by the President pursuant to the Appointments Clause, regardless of which branch created the office. Buckley v. Valeo.
 Even the ex officio, or non-voting members, of the FEC at issue in Buckley must be appointed pursuant to the Appointments Clause according to the DC circuit in FEC v. NRA Political Victory fund.
d.      Buckley v. Valeo
Facts: After Watergate, Congress passed the FEC act and the FE commission to implement the act. Congress appointed two of the members, the Senate appointed two and the President appointed the last two.
Issue: Does Congress have the authority to provide that its own officers may make appointments to an administrative office with widespread rulemaking and enforcement powers as well as?
ROL: No, Congress is precluded by the appointments clause from doing so. Only the President may appoint officers of an agency with enforcement powers.
Reasoning: The separation of powers doctrine precludes Congress from making laws or creating agencies and also enforcing them. Congress would have control over enforcement because they would appoint the members.
Notes and questions: Congress may appoint officers whose functions are limited to an investigative or informative nature because Congress would need this information to make laws. They may not appoint other officers because of the separation of powers doctrine. The FEC commissioners are officers because of their ability to enforce the laws. The court adopts the definition that someone who enforces the law is an officer of the united states.
[Note : Ex officio: by virtue of office. — Congress can not put on ex officio members of an executive committee or a committee with enforcement powers because even though these members are ‘harmless’, they still have influence.]  
Inferior Officers:
Article II states that Congress ‘may by law vest the appointment of such inferior, as they think proper, in the president alone, in the courts of law, or in the heads of departments.
Congress may provide for appointment by one branch of ‘inferior officers’ in another branch, so long as the powers of such inferior officers are limited so as not to violate separation of powers doctrine.
Morrison v Olsen
Facts: Two House of Reps subcommittees subpoenaed the EPA and the DOJ requesting documents about their efforts to enforce the Superfund law. Olsen was AAG for the Office of Legal Counsel for Justice. Acting on advice from Justice, the President ordered an EPA administrator to withhold the documents on the grounds that they contained enforcement sensitive information. The House voted to hold the EPA administrator in contempt; the Administrator and the U.S. filed a countersuit. The next year the House Judiciary Committee began an investigation into Justice’s role in the withholding of the documents, alleging that Olsen had given false and misleading testimony. The Chairman of the House Judiciary Committee forwarded a report to the Attorney General. The AG requested an appointment of an independent counsel to investigate the matters. Morrison was appointed. Olsen moved to have the subpoenas dismissed alleging that the independent counsel provisions of the act were unconstitutional and that appellant had no authority to proceed.
Issue: Is the independent counsel an inferior officer that the judiciary may appoint?
ROL: 1. An inferior officer is subject to removal by a higher executive branch official and performs only certain, limited duties. 2. The Congress may vest appointment powers where they are traditionally vested; they should not be called in to question if there is no incongruity between the functions normally performed and the Congressional appointment.
Reasoning: 1. The fact that the AG can remove the independent counsel means that she is inferior. The independent counsel also only acts in a limited investigative and prosecutorial capacity. Lastly, the jurisdiction of the independent counsel is very limited. When the independent counsel’s task is performed, then the job is over. 2. The framers of the constitution were trying to solve conflict of interest cases. If there were allegations of misconduct in the Judicial Branch, than the Congress may want to give appointment power to the Judiciary.
d.      Appointment of Inferior Officers
At the top is Presidential Appointments / principal federal offices.
            –next is excepted service; “schedule c”
            — Then managers (senior executive service)
Civil service
–Inferior officers — employee
C.      The Removal Power:
1.      Limits on President’s ability to remove officers.
a.      Removal –The constitution is silent about the President’s authority to remove but it is implied in the President’s executive power and art. II, §§ 1, 3, requiring that the President ‘take care that the laws be faithfully executed’.
In Humphrey’s Executor v. US, the Court changed course when it ruled that the President doesn’t have unlimited power of removal with respect to officers of quasi legislative or quasi judicial agencies created by congress.
                                                              i.      Humphrey’s Executor v. U.S.
Facts: The president fired the FTC commissioner, in contravention of a statute that said he could only be fired for cause. The president relied on the Myers holding, alleging that the ‘for cause’ statute was unconstitutional. The FTC is an independent regulatory commission. 
ROL: The president may only remove officials who perform a core executive function.
The Court, subsequent Humphrey’s E

uires a hearing if requested, the parties are arguing about what type of hearing the NRC is required to conduct.
ROL: Formal hearings are not statutorily required for amendments to materials licenses. 
Is this equally adjudicative?
n § 554 doesn’t by its terms dictate the type of hearing to which a party is entitled; rather it triggers the formal hearing provisions of § 556 and § 557 of the APA if the adjudication in question is required by the agency’s governing statute to be determined on the record after opportunity for an agency hearing.
n Although § 554 specifies that the governing statute must satisfy the ‘on the record’ requirement, those three magic words need not appear for a court to determine that formal hearings are required, if the legislative history indicates a formal hearing is required. Seacoast.
3.        Chemical Waste Management, Inc. v. U.S. Environmental Protection Agency:
ROL: The EPA is not required to use formal procedures for administrative hearings concerning the issuance of corrective action orders (where there are no civil penalties).
Reasoning: The enabling statute, RCRA § 3008 allows EPA to enter orders assessing civil penalties, including suspension or revocation of licenses for violation of the RCRA regulations. § b of the RCRA provides that upon request made within 30 days of issuance of a § a (penalty) order, EPA shall promptly conduct a public hearing. EPA promulgated procedural regulations to implement the public hearing provision of § a. EPA promulgated 40 CFR Part 24; formal adjudicatory procedures are only available to challenges of suspension, revocation or civil penalty. All other corrective action orders are subject to informal rather than formal adjudicatory procedures.
n The court analyzed the EPA promulgations under Chevron; did Congress directly speak to the precise question at issue? If not, is the agencies answer based on a permissible construction of the statute; deference to agency?
1.      Frequently, there is little objective justification for when formal and informal adjudication is required.
2.       Agencies lobby Congress for informal adjudication, rather than formal adjudication authority, because agencies believe that the adjudications will be faster, simpler and easier if the requirements of the APA need not be followed.
III.             Adjudicatory Procedures:
1.      NOTICE: