Lecture 12 The Executive

1. Lecture 12The Executive Part 4: Power to Remove And Executive Privilege

2. This lecture • Will cover • The Power to Remove • Executive Privilege • Pages 228-243

3. Power to Remove • When does the President have the authority to remove someone that he appointed? • Easy answer- Article II, Section 4- Impeachment • But the Constitution is silent on removal of an administration official • But the thought was that the executive officials under authority of the President are subject to being fired • Today, we see this as, “I asked for his resignation, and he did so” • This is easy, the President asked for a resignation and the official did so • Hamilton had suggested Senate approval to fire as well • Most disagreed- Madison • The War Department was to have a secretary who could be removed by the President alone- Hearings by the Senate and House said the President alone could remove the Secretary of State

4. Andrew Johnson • President that succeeded Lincoln • Was a pro-union addition to the ticket • Still a southerner, even though he was put on the ticket in 1864 for national unity • Tenure of Office Act- Limit the ability of the President to remove appointees without approval of the Senate • He had to get Senate consent • Johnson fired War Secretary Edwin Stanton • The Senate ordered him back • Johnson refused, and fired Stanton again • He was impeached, but the Senate failed to convict by one vote • Statute was repealed by 1887 • The Supreme Court never took up the issue

5. Myers v. United States (1926) • Myers v. United States (1926) • Background • Myers was appointed Postmaster of Portland, Oregon to a four year term by President Wilson, and the Senate confirmed the appointment • Wilson and the Postmaster asked for his resignation, and he refused • Wilson ordered the Postmaster General to fire him • Myers said the removal was illegal • An 1876 act said the Postmasters were to be subject to Senate vote to confirm them as well as to remove them • Wilson believed this power was not to be shared with the Senate to fire • Myers (and later his widow) sued for unpaid salary

6. Myers v. United States- II • Question • Was this law restricting the ability to remove executive officers by requiring Senate approval to do so violate the Constitution? • Arguments • For Mrs. Myers • Article II, Section 2 giving Congress advice and consent should be construed to allow them to have a say in their removal too • Congress has the right to prescribe methods for removal • Does this mean the President can ignore laws too?

7. Myers v. United States- III • Arguments • For the United States • Power to remove is fully vested in the President under Article II • What would stop a law prohibiting the President to remove a member of his cabinet? • Checks and balances • One party could leave all its Cabinet members in office when administrations changed hands by refusing to let the President dismiss them

8. Myers v. United States- IV • There was a 6-3 decision by Chief Justice Taft • Veto by disapproving removals is different than rejecting confirmation • The Senate’s check on the executive is at the confirmation process • This would be a new power granted to the Senate • “alter ego” of the President • Executive officials are subordinates of the President • If he loses confidence in them, he must replace them without delay • Power to remove necessary to "discharge his own constitutional duty of seeing that the laws be faithfully executed.” • The President may remove inferior officers too • The Tenure of Office Act of 1867 was invalid too • So is this law

9. Myers v. United States- V • Dissenting opinions • McReynolds, J. • Power to remove not mentioned in the Constitution • Postmasters are inferior officers- not • Brandeis, J. • Presidents since 1861 had approved of removal limitation statutes • Congress could share in removal power by statute

10. Humphrey’s Executor v. United States (1935) • Humphrey’s Executor v. United States (1935) • Background • The Federal Trade Commission- made of five members, who serve staggered seven year terms and are subject to confirmation by the Senate • It was to be more independent • President could fire only for cause • Humphrey was appointed by Hoover in 1931- term to expire in 1938 • FDR wanted him to resign, he refused • FDR fired him on the grounds he disagreed with his policies • Humphrey’s widow sued for back wages

11. Humphrey’s Executor v. United States- II • Question: Did not allowing the President to fire members of the FTC except for cause violate his executive authority? • Arguments • For Humphrey’s estate • FTC was to be an independent body, not subject to full removal power • Allowing full removal power would allow domination of the FTC by the executive • Myers does not apply- this is an independent agency • For the United States • Myers does apply- this interferes with executive authority • Nothing indicates that the FTC is any different from Myers

12. Humphrey’s Executor v. United States- III • Justice Sutherland rules for a unanimous Court • The nature of the FTC was to be independent • Staggered terms • Non-partisan- free from political domination or control • The intent of the act was to limit executive removal to cause • The officer in Myers was fully executive • The FTC carries out legislative and judicial duties • Designed to be free from executive control • Myers does not apply

13. Humphrey’s Executor v. United States- IV • This case distinguishes between offices the President can removal alone • Purely executive vs. independent ones • Weiner v. United States (1958) • War Claims Commission • Three members, appointed by the President, subject to confirmation • To expire in 1954 • Eisenhower wanted to replace all the members with Republicans • When they refused to resign, Eisenhower fired them and replaced them with recess appointments • The Court ruled for Weiner, saying this commissioner was more like Humphrey’s Estate than that in Myers

14. Executive Privilege • Executive privilege • The Administration may in some cases, not want to turn over certain documents or papers or information about some activities • It is to be invoked by the President to shield things • Congress and the courts often do not like this • It goes back to President Washington with the Jay Treaty • To today with the Bush and Obama administrations • Most of the disputes are negotiated between the Congress and Executive

15. United States v. Nixon (1974) • United States v. Nixon(1974) • Background • This case starts with the Watergate break of DNC headquarters in 1972 • The Senate Watergate Committee investigated • Special Counsel to the President John Dean implicated many officials • Advisor Alexander Butterfield testified as to a secret taping system in the White House • The tapes would settle who was telling the committee the truth • A special prosecutor- Archibald Cox was appointed to investigate • He wanted the tapes- he got a court order • Nixon offered summaries in the form of transcripts • When Cox continues to pursue it, he orders Cox fired

16. United States v. Nixon- II • More background • The new special prosecutor, Leon Jaworski also wanted the tapes • So did the House Judiciary Committee • Nixon produced some of the material, but they had been edited • The House Judiciary Committee was considering impeachment • Nixon still refused • They went to Court and won • The case went directly to the Supreme Court • Nixon thought since he was good friends with Burger and had appointed a majority of the Court, they would rule in his favor

17. United States v. Nixon- II • Question: Are the tapes protected by executive privilege? • Arguments • For the United States • The Courts have the final say in executive privilege claims • The President is not above the law- he must comply with court orders • Qualified executive privilege exists only to protect the legitimate functioning of government • For Nixon • Executive privilege is an inherent power to the executive branch • Separation of powers dictates that each branch should be free of coercion from the others • Presidential conversations are presumed to be privileged

18. United States v. Nixon- III • Chief Justice Burger rules for a unanimous Court • Justice Rehnquist did not participate since he was in the Nixon Justice Department • It is the Court, not the President, who interprets what the law says • They reject absolute executive privilege • Need for confidentially • Separation of powers • It could be subject of an in camera review • Cannot be used as a shield in a judicial proceeding • These do not involve military or diplomatic secrets • The criminal proceeding trumps executive privilege

19. Next lecture • We will cover more on privilege • Immunity for the President from lawsuits • Pages 243-256 • After than, we finish up on the Pardon Power