Transcript Slides for Class 20

CONSTITUTIONAL LAW
SPRING 2008
Prof. Fischer
Class 20
Executive Appointment and
Removal Power
Morrison v. Olsen (1988) [C p. 307]
• Case arose after claims
of executive privilege by
EPA Administrator Anne
Gorsuch in relation to
documents subpoenaed
by a House oversight
subcommittee
investigating the EPA’s
enforcement of the
Superfund law
• Gorsuch was cited for
contempt of Congress by
the House (259-105)
Morrison v. Olsen (1988) [C p. 307]
• House Judiciary
Committee requested
Attorney General to seek
the appointment of an
independent counsel to
investigate allegations
that Ted Olson, assistant
Attorney General for the
OLC, had obstructed the
work of the Committee by
giving false and
misleading testimony
before a subcommittee
investigating the
executive privilege
dispute
Morrison v. Olsen (1988)[C p. 307]
• Majority opinion by
Rehnquist, joined by
Brennan, White, Marshall,
Blackmun, Stevens,
O’Connor
• Kennedy did not
participate
Morrison v. Olsen (1988) [C p. 307]
• Scalia was the only
dissenter
Removal Power:
• No provision in Constitution expressly
mentions the President’s authority to
remove executive branch officials
• Only mention of removal: impeachement
in Art. 2 s. 4
Tenure of Office Act
• Enacted in 1867 –
Why?
• President Johnson’s
violation of this Act
led to his
impeachment, but he
was not convicted in
the Senate (1 vote
short!)
Myers v. United States (1926) [C p.
313]
• An 1876 federal law
provided that
"Postmasters of the
first, second, and third
classes shall be
appointed and may
be removed by the
President with the
advice and consent of
the Senate."
Myers v. United States (1926) [C p.
313]
• Chief Justice William
Howard Taft (a former
president from 19091913) wrote the majority
opinion joined by Van
Devanter, Sutherland,
Butler, Sanford, Stone
Dissent by: Holmes
Dissent by: McReynolds
Dissent by: Brandeis
Humphrey’s Executor v. United
States (1935) [C p. 314]
• Unanimous opinion
written by Justice
Sutherland
• FTC Act provided
“any commissioner
may be removed by
the President for
inefficiency, neglect of
duty, or malfeasance
while in office.”
Wiener v. United States (1958) [C
p. 315]
• Did the Court apply
the Humphrey’s or
Myers rule?
• Did it take a
formalistic or
functional approach?
• Unanimous opinion
by Justice Frankfurter
Bowsher v. Synar (1986) [C p.
317]
• BURGER delivered the
opinion of the Court, in
which BRENNAN,
POWELL, REHNQUIST,
and O'CONNOR joined.
STEVENS filed an
opinion concurring in the
judgment in which
MARSHALL joined.
WHITE and BLACKMUN,
filed dissenting opinions
Morrison v. Olson (1988) [C p. 307,
318]
• Justice Rehnquist
delivered the majority
opinion
• Justice Kennedy did
not participate
• Justice Scalia
dissented
Executive Powers and Foreign
Policy
• Are the inherent powers
powers greater in foreign
policy affairs than
domestic affairs?
• United States v. CurtissWright Corp. (1935)
(opinion by Sutherland;
McReynolds dissented;
Stone did not participate)
Treaties
• Article II s. 2 gives the president “Power,
by and with the Advice and Consent of the
Senate, to make Treaties, provided two
thirds of the Senators present concur.”
When may president use executive
agreements instead of treaties?
• Dames & Moore v.
Regan (1981) [C p.
370
• Rehnquist wrote the
opinion of the Court
A. FOREIGN RELATIONS:
Goldwater v. Carter (1979)