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"Such a principle, we apprehend, is not, and certainly cannot be claimed by the

president." Ibid.

The President has greatest control over officers who assist him in



executive power in the constitutional sense." Humphrey's Executor v. United States, 295 U.S. 602, 628 (1935). Chief among these

functions are the Constitution's textual commitments to the President to "be Commander in Chief of the Army and Navy," Art. II, sec. 2, cl. 1, to negotiate treaties, Art. II, sec. 2, cl. 2, and to "receive Ambassadors and other public Ministers." Art. II, sec. 3. In fulfilling his constitutional role in national defense and foreign relations, the President" is accountable only to his country in his political character, and to his own conscience." Marbury, supra 5 U.S. at 166.

The establishment of the original departments of the executive branch by the First Congress, which "numbered among its leaders those who had been members of the (Constitutional) Convention," Myers v. United States, supra 272 U.S. at 136, reflects the early understanding of the President's constitutional prerogative to control officers responsible for these areas. When Congress established the Departments of Foreign Affairs and War, it charged each department's secretary to "perform and execute such duties as shall from time to time be enjoined on, or entrusted to him by the President of the United States" and to "conduct the business of the said department in such manner, as the President of the United States shall from time to time order or instruct." Act of Aug. 7, 1789, ch. 7, sec. 1, 1 Stat. 49, 50; Act of July 27, 1789, ch. 4, sec. 1, 1 Stat. 28, 29. As Representative Vining explained, "The Departments of Foreign Affairs and War are peculiarly within the powers of the President, and he must be responsible for them." 1 Annals of Cong. 512 (J.


Gales ed. 1789); accord Marbury, supra, 5 U.S. at 166.

But the First Congress's decisions regarding the organization of other executive duties reflect a different view of the President's relation to the officers who performed them. When Congress contemporaneously created the Department of the Treasury, it assigned to the secretary specific statutory duties and omitted the open-ended requirement that the Treasury secretary perform duties at the direction of the President. Act of Sept. 2, 1789, ch. 12, sec 2, 1 Stat. 65. Madison explained the constitutional principle that underlay the legislative difference among the departments. The secretaries of War and Foreign Relations were placed under the complete control of the President because they "were merely to assist him in the performance of duties, which .. ... he had an unquestionable right to do [himself] ... if he were able." Annals of Cong. 614. However, regarding responsibilities of the Treasury Department, such as the comptroller's duty to adjust and settle claims, Madison stated "that the nature of this office differed" and "question[ed] very much whether [the President] can or ought to have any interference." Ibid. Moreover, the Treasury Department statute did not even mention the President: it required the Secretary to report to Congress "and generally perform all such services relative to the finances, as he shall be directed to perform." Act of Sept. 2, 1789, ch. 12, sec. 2, 1 Stat. 65, 66. Such direction, the context makes clear, was to come from Congress, not the President. Indeed, for a significant period in our early history, the President did not see departmental budget estimates before the Treasury Department transmitted them to Congress, and the Secretary recommended tax policy directly to Congress. L. White, The Jacksonians 78 (1954); L. White, The Federalists 326 (1948). Similarly, the Postmaster General was given detailed


discretionary duties with no suggestion that he was to be under other than

congressional direction in performing these tasks. Act of May 8, 1784, ch. 23, sec. 3, 1 Stat. 357.

Although the link between meaningful independence of an executive official and tenure is evident, and was in its most emphatic form first established by law in 1887 with the creation of the Interstate Commerce Commission whose members could be removed only for cause, the Supreme Court only addressed the constitutional tie between duties and tenure for the first time in Myers v. United States, 272 U.S. 52 (1926), a case involving the removal of a postmaster contrary to a statute requiring Senate acquiescence in such presidential removals. The Court recognized in Myers that "[t]he degree of guidance in the discharge of their duties that the President may exercise over executive officers varies with the character of their service as prescribed in the law under which they act," id. at 132, but it nevertheless held that this difference did not affect officers' amenability to discharge. The Court believed that "[t]he imperative reasons requiring an unrestricted power to remove the most important of [the President's] subordinates in their most important duties must ... control the interpretation of the Constitution as to all appointed by him." Id. at 134.


However, "[t]he assumption was short-lived that the President [][has] inherent constitutional power to remove officials, no matter what the relation of the executive to the discharge of their duties." Wiener v. United States, 357 U.S. 349, 352 (1958). Only nine years after Myers the Court unanimously repudiated the President's illimitable right of discharge and held that the nature of an officer's duties controls the officer's constitutional status within the executive branch. Humphrey's Executor v. United States, 295 U.S. 602


(1935). As in Meyers the Court held in Humphrey's Executor that an officer who

"exercises ... executive power in the constitutional sense" and hence can "be characterized as an arm or an eye of the executive," id. at 628, is "inherently

subject to the exclusive and illimitable power of removal by the Chief Executive, whose subordinate and aid he is." Id. at 627. But for those officers who do not exercise "executive power in the Constitutional sense," the Constitution does not mandate that the President have an unrestricted right of discharge in all cases. The Court held that Congress's power to require officers to "act in discharge of their duties independently of executive control," which "cannot well be doubted," necessitates the ability "to forbid their removal except for cause." 295 U.S. at 629. Limiting presidential removal is, in the Court's words, "an appropriate incident," 295 U.S. at 629, of Congress's power to subject nonpolitical officers "to the control of the law, and not to the direction of the president," Kendall, supra, 37 U.S. at 610, "[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." 295 U.S. at 629.

Firstly, it may be noted that Humphrey's cannot be limited to officers performing adjudicatory duties. The Court understood that the FTC at that time was "filling in and administering the details" of the law prohibiting "unfair methods of competition," 295 U.S. at 628, which is an executive, not an

ad judicatory task. Further, as the Court recognized, the FTC had power to initiate cases by "issu[ing] a complaint stating its charges," id. at 620, a power much closer to prosecution than adjudication.

The Court reaffirmed Humphrey's Executor in Wiener v. United States, 357 U.S. 349 (1958), reiterating the distinctions it made there. It found that


Congress intended the War Claims Commission to be protected from presidential review because it was an adjudicating body charged with deciding claims on the merits, entirely free of influence from any other branch of government.

And what is the essence of the decision in Humphrey's case?
It drew a sharp line of cleavage between officials who were
part of the Executive establishment and thus removable by
virtue of the President's constitutional powers and those
who are members of a body 'to exercise its judgment without
the leave of hindrance of any other official or any
department of government' ... as to whom a power of removal
exists only if Congress may fairly be said to have
conferred it. This sharp differentiation derives from the
difference in functions between those who were part of the
Executive establishment and those whose tasks require
absolute freedom from Executive interference. 357 U.S. at

Further, the Wiener Court held that the President lacked authority to remove a member of the Commission even though the enabling legislation contained no removal provision. Because the official performed adjudicative tasks more closely allied to the judicial than the executive power, the Court reasoned that Congress intended to deny the President the power of removal. Justice Frankfurter's opinion for a unanimous Court concluded as follows:

... If, as one must take for granted, the War Claims Act
precluded the President from influencing the Commission in
passing on a particular claim, a fortiori must it be
inferred that Congress did not wish to have hang over the
Commission the Damocles' sword of removal by the President
for no reason other than that he preferred to have on that
Commission men of his own choosing?

For such is this case. We have not a removal for
cause involving the rectitude of a member of an
adjudicatory body... Judging the matter in all the
nakedness in which it is presented, namely, the claim that
the President could remove a member of an adjudicatory body
like the War Claims Commission merely because he wanted his
own appointees on such a commission, we are compelled to
conclude that no such power is given to the President
directly by the Constitution, and none is impliedly
conferred upon him by statute simply because Congress said

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