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

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

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

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Johnson refused, and fired Stanton again He was impeached, but the Senate failed to convict by one vote Statute was repealed by 1887 The Supreme Court never took up the issue

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

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?

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

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

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

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

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

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

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

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

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

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

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

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

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