Thus, it appears that the federal defendants base their Appointments Clause argument on the plaintiff's being an "inferior officer." This argument assumes then that the members of a blue-ribbon panel charged with the use of their independent judgment in the crucial public service of selecting those candidates most fit to be the trial and appellate judges for the local courts of the Nation's capital are "inferior" officers. If one of them is an inferior officer of the United States, all of them are. Hence, under this argument, their appointment would have to be vested in either the President alone, the courts of law, or the head of a federal department. It would follow that five of the seven members of the Commission have been improperly appointed and are serving unlawfully, since neither the Mayor, the Bar, nor the City Council is president or a court of law or head of a federal department.
At the oral argument on the merits of this case, counsel for the federal defendants stated that their position is that only the President's appointee is an officer of the United States, and that none of the other Commission members is. That is based on the circular notion, for which there is some support in a number of old cases, see, e.g. United States v. Germaine, 99 U.S. 508, 25 L. Ed. 482 (1878), that the way to determine whether an official is an "officer of the United States" is to examine by whom he was appointed. First, that rule has been much criticized and is open to serious question today. Second, it clearly should not apply to the somewhat unusual context of this case. All seven Commission members have identical duties and offices (except that the presidential appointee has a term fixed at one year less than those of the others) created under the same statute.
The Court recognizes that one possibility is that no member is an "officer of the United States" as that term is used in the Appointments Clause, but rather that all are officers of the District of Columbia, or simply should not be deemed officers of the United States for that or some other reason.
The federal defendants appear to believe that the outcome of this case may hinge on whether members of the Commission are or are not "officers of the United States". They argue that Buckley v. Valeo, 424 U.S. 1, 96 S. Ct. 612, 46 L. Ed. 2d 659 (1976) (per curiam) controls this case and compels the result that members of the Commission are officers of the United States by virtue of the language in that opinion that "any appointee exercising significant authority pursuant to the laws of the United States" is such an officer. While the plaintiff's work on the Commission is "significant", he is hardly entrusted with enforcing the laws of the United States to the degree or in the sense as were the Federal Election Commissioners in Buckley. While they were charged with interpreting and enforcing the complex federal statutes regulating various aspects of elections, the plaintiff here is charged with the use of his best judgment in determining the merit of potential judges. Except for the fact that his position arises under federal law, which will often be the situation in cases where the question is whether a particular government official is an "officer of the United States," the faithful execution of his office and duties has no more to do with interpreting or applying the law of the United States than do the personnel decisions of a hiring co-ordinator at a law firm. Moreover, this Court concludes that Buckley is distinguishable from this case for a number of other reasons. For example, that case did not involve the unique home rule, federal/local problem that is presented by a case involving the District of Columbia, and that case involved the question whether all Federal Election Commissioners had been properly appointed, not whether one of them had been properly removed. "(T)he (Appointments) Clause controls the appointment of the members of a typical administrative agency even though its functions, as this Court recognized in Humphrey's
... may be "predominantly quasi-judicial and quasi-legislative' rather than executive.... In ... Humphrey's ..., the Court was careful to note that it was dealing with an agency intended to be independent of executive authority "except in its selection.' ... Wiener
... did not question in any respect that members of independent agencies are not independent of the Executive with respect to their appointments." Buckley, supra at 136, 96 S. Ct. at 690. (emphasis supplied).
More importantly, this Court's decision simply does not hinge on whether plaintiff is or is not an officer of the United States, and hence on an application of the Appointments Clause. Rather, the important constitutional principle that this case illustrates so well, and which controls the outcome of it, is that the President does not have the power to remove at will certain officers the function and duty of whose office is the exercise of independent judgment and decision-making in and for the District of Columbia.
To return to the federal defendants' argument in this context, they assert that a fixed term of office, imposed by statute, even by the same statute creating the office, never limits by itself the President's power to remove at will the occupant of that office. Only if that office can be pigeonholed as a quasi-legislative or quasi-judicial one, that is, only if it is on all fours with the factual pattern presented in the two leading cases decided by the Supreme Court, Humphrey's Executor v. United States, 295 U.S. 602, 55 S. Ct. 869, 79 L. Ed. 1611 (1935) and Wiener v. United States, 357 U.S. 349, 78 S. Ct. 1275, 2 L. Ed. 2d 1377 (1958), would the federal defendants concede that there is any limitation on the President's right to remove at will a presidentially-named official.
This Court concludes that the federal defendants' constitutional argument on the President's "inherent, constitutional power" of removal takes an erroneous view of those cases in its suggestion that, basically, this Court should limit them to their facts. Consideration of those cases suggests, rather, that they establish the principle that there are some offices that by their nature and function are meant to be independent of control, direction, or interference from the President. At the same time, of course, the great bulk of nonlegislative, nonjudicial officers, by their nature and function, are meant to do the President's bidding. There can be no doubt, however, that in this unusual case of first impression, the Commission is, in terms of the nature and function of the office, of the small former group.
Demanding complete independence from Presidential direction, it is at least on a par with the Federal Trade Commission in Humphrey's or the War Claims Commission in Wiener. Indeed, the judicial commissioner may be an a fortiori instance of those cases, since there must not be in his case even the appearance of any direction of decision-making from the White House, and since his or her duties extend only to matters involving the District of Columbia, a jurisdiction treated differently by the Constitution and with respect to which Congress has clearly attempted to extend substantial home rule, and in particular, independence from the federal and presidential direction that had theretofore been the practice. Even though the concept of presidential oversight and direction would seem to be a necessarily included part of the concept of a "purely executive officer," this Court does not understand the federal defendants to contest the view that it would actually be improper for the President or any other Executive officer to attempt to oversee or direct any of the decisions of any member of the Commission. Rather, the federal defendants seem to freely concede that all the Commissioners, including the President's appointee, should operate entirely independent of the White House. Their brief notes prominently that "the record will not support any suggestion that the President has attempted to undermine the Commission's independence in its evaluation of particular prospective nominees." Federal Defendants' Opposition to Plaintiff's Motion for Preliminary Injunction at 10.
The Constitution has very little to say expressly about removal from office that is relevant to this case. As one author has written, "Aside from the reference to impeachment, the Constitution is silent on the subject of removal."
Interestingly, though, the Constitution vests the only removal power it mentions impeachment in different hands than the appointment of those officials. Article III judges, for instance, appointed by joint action of the President and the Senate, can only be removed by joint action of the Senate and the House. Not only is the Constitution not explicit on most removal matters, but neither were many of the early statutes. Hence, the question arose for the courts of the proper procedures for removing officials. Fairly early, the rule emerged that "in the absence of all constitutional provision or statutory regulation it would seem to be a sound and necessary rule, to consider the power of removal as incident to the power of appointment." In re Hennen, 38 U.S. (13 Pet.) 230, 259, 10 L. Ed. 138 (1839) (permitting a district court judge to remove a district court clerk he had appointed). Then, in Parsons v. United States, 167 U.S. 324, 17 S. Ct. 880, 42 L. Ed. 185 (1897), the Court ruled that it was proper for the President to discharge a U.S. Attorney he had appointed with the advice and consent of the Senate. To the argument that the statute fixing the term of a U.S. Attorney at four years constituted the sort of "statutory regulation" that would alter the rule of construction laid down in Hennen for removal at will, the Court held that that particular statute had intended the fixing of the four-year term as words "of limitation and not of grant". Id. 167 U.S. at 338, 17 S. Ct. at 885. In other words, the Court concluded that Congress' intent in fixing the term was not to keep U.S. Attorneys independent from direction by the President but apparently to keep them from becoming too independent. It is clear how different the intent of the statute in question in this case is from the statute in Parsons. As stated more fully in Part II, supra, the intent of this statute was to ensure complete independence of Commission members from any presidential direction so that the members could be single-minded in their pursuit and evaluation of merit.
Then in Reagan v. United States, 182 U.S. 419, 21 S. Ct. 842, 45 L. Ed. 1162 (1901), the Court upheld the President's dismissal of a U.S. Commissioner in the Indian Territories, because Congress had not conditioned discharge from that office on prescribed "causes." Had Congress done so, however, the Court implied in Reagan and other cases decided between Parsons and Myers v. United States, 272 U.S. 52, 47 S. Ct. 21, 71 L. Ed. 160 (1926), the President would have to abide by those restrictions on removal even for those who would later be termed "purely executive" officers. Indeed, in Shurtleff v. United States, 189 U.S. 311, 23 S. Ct. 535, 47 L. Ed. 828 (1903), the Court, while making clear that its holding was a very limited one that it was proper for the President to remove an appraiser of merchandise for reasons other than those stated in the statute involved in that case, stated in dictum that by using "very clear and explicit language," Congress could limit the President's power to remove even "purely executive" officers like the plaintiff appraiser there.
It was into this background that the lengthy, expansive, dictum-filled opinion in Myers v. United States, supra, fell. Justices Holmes, Brandeis, and McReynolds
dissented strenuously. Justice Brandeis in dissent took sharp issue with the spirit of Myers of vesting the removal power exclusively in the President. In his view not only was there a lack of historical, precedential, and analogical
support for a presidential right of removal illimitable by conditions set by Congress, but there was nothing in the doctrine of the separation of powers that "make(s) each branch completely autonomous. (Rather, that doctrine) left each, in some measure, dependent upon the others, as it left to each power to exercise, in some respects, functions in their nature executive, legislative and judicial." Myers, supra, 272 U.S. at 291, 47 S. Ct. at 84 (Brandeis, J., dissenting).
The federal defendants would like this Court to read the Myers decision broadly. Yet it is quite clear from an analysis of the fairly narrow limits of the actual dispute in Myers, and from the subsequent Supreme Court cases of Humphrey's and Wiener rejecting the bulk of Myers as dictum and elaborating a functional approach hinging on the legitimate need for independence from executive control in the nature of certain offices, that indeed Myers should be read narrowly. As noted above, Myers was a 5-3 decision of a sharply divided Court. Humphrey's and Wiener, on the other hand, were subsequent unanimous decisions. In retrospect, it is clear that the issue in Myers was quite limited. An inferior officer, a postmaster, who was indisputably "purely executive" in the sense that his charge was not to be independent of the President or of Executive direction in any way, but rather was clearly meant to be the "eyes and arms of the President", Humphrey's, supra, 295 U.S. at 628, 55 S. Ct. at 874, was held to be removable at the will of the President when the President concluded that he was no longer serving well as his "extension". That was so even though a statute sought to tie the President's hands in removing subordinates. The counterargument on the real issue in Myers, made pithily by Justice Holmes in his separate dissent, was that if an office, as was the case with the postmastership in Myers, "owes its existence to Congress, and ... may (be) abolish(ed) to-morrow (by) Congress," and if "its duration and the pay attached to it while it lasts depend on Congress alone," and if "Congress alone confers on the President the power to appoint to it and at any time may transfer the power to other hands," then "Congress has power to prescribe a term of life for it free from any interference." Id. 272 U.S. at 177, 47 S. Ct. at 46 (Holmes, J., dissenting). Limited by later Supreme Court decisions, Myers stands for only this: Even though Congress has established an office, has the power to abolish it, sets its pay and prescribes a desirable duration for it, if that federal office performs purely executive functions, that is, if it is the eyes and arms of the President, then, consistent with the doctrine of the separation of powers, the Congress may not restrict the President in removing the occupants of that office. It is worth noting that the majority opinion's dictum in Myers exceeded the position argued by the Solicitor General of the United States on behalf of the President. Interestingly, the Solicitor General in Myers argued for a "middle position". He urged on the Supreme Court the view that "Congress may guide and direct the discretion of the President by such statutory qualifications as are properly inherent in the nature of an office," but that the nature of Mr. Myers' office as a postmaster was to be merely the eyes and arms of the President and thus it followed that the President could remove Mr. Myers at will. Myers, supra 272 U.S. at 96.
In Humphrey's, President Roosevelt purported to dismiss Mr. Humphrey less than two years into the latter's seven-year term as a member of an independent regulatory agency, the Federal Trade Commission (FTC). The Congress had made clear in the Act establishing the FTC that the FTC was intended to be "independent of any department of the government." As the Court stated, "the language of the act, the legislative reports, and the general purposes of the legislation as reflected by the debates, all combine to demonstrate the congressional intent to create a body of experts who shall gain experience by length of service; a body which shall be independent of executive authority, except in its selection, and free to exercise its judgment without the leave or hindrance of any other official or any department of the government." Humphrey's, supra, 295 U.S. at 625-26, 55 S. Ct. at 872-73 (emphasis in original). As this Court noted in discussing the intent and the language of the statute in question in this case, the same is true of its language, its legislative history and its general purposes as the Court said of the FTC Act in Humphrey's.
It was likewise clear in Humphrey's, as it is undisputed in this case, that the reason for the attempt to dismiss the officeholder was not inefficiency, incompetence, corruption or other "cause".
Though called upon to decide Humphrey's less than a decade after Myers, the Supreme Court, in a unanimous decision
repudiated much of what had been said in Myers and held that the President's purported removal of Commissioner Humphrey had been unlawful. On the facts of Humphrey's, involving a position on an administrative agency, the Court had occasion to distinguish the quasi-legislative, quasi-judicial and quasi-executive FTC from the "eyes and arms of the President" postmaster in Myers. The reasoning of the opinion, though, was not that the relevant judicial inquiry is to determine whether an agency from which an officeholder had been removed could be pigeonholed as either an administrative agency or an executive one. Rather, as Justice Frankfurter wrote for a unanimous Court in Wiener, supra 357 U.S. at 352, 78 S. Ct. at 1277, in describing the Humphrey's reasoning (emphasis supplied):
The assumption was short-lived that the Myers case recognized the President's inherent constitutional power to remove officials, no matter what the relation of the executive to the discharge of their duties and no matter what restrictions Congress may have imposed regarding the nature of their tenure.
Although given the facts of Humphrey's and Wiener, it was natural that some have tended to adopt the shorthand of comparing "quasi-legislative" offices with "purely executive" ones, the focus for deciding "whether the power of the President to remove an officer shall prevail over the authority of Congress to condition the power by fixing a definite term and precluding a removal except for cause will depend upon the character of the office ...." Humphrey's, supra, 295 U.S. at 631, 55 S. Ct. at 875. This Court concludes that by that phrase, the Court meant that the following analysis is appropriate. First, the court should determine whether the statute creating the office was designed to ensure those serving in that office independence from executive direction and control. Once the court has determined, as it has in this case, that that was the design of Congress, and that such a design was legitimate, thereby distinguishing the situation under the Tenure in Office Acts involved in Myers where a Congress had arrogated the President's power to remove at will subordinates charged with doing his bidding, then the Court should uphold congressional circumscription of presidential removal at will since the "coercive influence" of that power would "threaten ... independence." Id. 295 U.S. at 630, 55 S. Ct. at 875 (emphasis supplied). And again: "(O)ne 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." Id. at 629, 55 S. Ct. at 874 (emphasis supplied). Significantly, the Humphrey's Court cited with approval dictum in Marbury v. Madison, 5 U.S. (1 Cranch) 137, 162 & 165-66, 2 L. Ed. 60 (1803), where Chief Justice Marshall drew a distinction between those officers of whom it could legitimately be said that "their acts are his (the President's) acts" and where his will should therefore control, and those officers of whom that could not be said and where, in the interest of giving meaning to independence, removal could be circumscribed. Finally, it was clear in Humphrey's, as it later was in Wiener, that the President had no inherent constitutional power, flowing from either the Appointments Clause or the duty to faithfully execute the laws of the United States, to remove officials serving in offices intended to be independent from Executive direction, control or influence.
Wiener presented a situation fairly akin to the one in Humphrey's, and produced a second unanimous holding invalidating a President's purported removal of an official meant to be independent of the Executive Branch. The case is particularly significant since it was the Court's last word on the subject of removal of officials meant to be independent, since it further repudiated any idea of reading Myers expansively, and since it involved a situation where, as in this case but unlike in Humphrey's, Congress had not specified anything in the statute establishing and structuring the War Claims Commission about the grounds for removal. As is the case with the statutes in question here then, the Court should not assume that Congress meant thereby to leave the matter to, or to recognize, an inherent constitutional power to remove a Commissioner at will. Rather, a unanimous Court instructed, the proper judicial response to the lack of express language in the statute, in a removal case, is to determine from the statute, the legislative history, and the general purpose of the legislation "the nature of the function that Congress vested in the ... Commission." Wiener, supra 357 U.S. at 353, 78 S. Ct. at 1278. Hence, the Court invalidated President Eisenhower's purported dismissal of a member of the War Claims Commission who was to serve until the Commission wound up its business of "receiv(ing) and adjudicat(ing) according to law" claims for compensating internees, prisoners of war, and religious organizations which had suffered harm at the hands of the enemy in connection with World War II. Under the Act establishing the Commission
the task of distributing funds from the Treasury for that compensatory purpose was given to a Commission "established as an adjudicating body with all the paraphernalia by which legal claims are put to the test of proof, with finality of determination...." Id. Again, as in Humphrey's, because of the facts of the particular case before the Court, comment has naturally revolved around a "quasi-judicial" agency. But in again dismissing Myers unanimously as having had its "scope" "narrowly confined" "to include only "all purely executive officers,' " id. 357 U.S. at 352, 78 S. Ct. at 1277, and in again stressing independence, the Court made clear that the crucial consideration was that the statutory scheme had sought to ensure the independence of a Commission that Congress had created, and that it was legitimate for Congress to have made that office independent. As the Court put in in its conclusion in Wiener, Congress set up "a body that was (to be) "entirely free from the control or coercive influence, direct or indirect,' (citing Humphrey's, supra, 295 U.S. at 629, 55 S. Ct. at 874) of either the Executive or the Congress."
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.
Id. 357 U.S. at 355-56, 78 S. Ct. at 1279. And again a unanimous Court left little doubt that since the concern was preservation of legitimate independence, the analytical mode should not be pigeonholing, but rather the "philosophy" of the cases and their implications. Commentators on what was to become the Supreme Court's last pronouncement on this subject, recognized the demise of technical considerations and particularly of Myers, and the centrality to the inquiry of whether there is a legitimate need for independence in the functioning of an agency or commission whose member(s) the President seeks to remove at will. As the Harvard Law Review commented in its annual summary of the Court Term:
The Government, in support of its position that the members of the War Claims Commission performed "purely executive" functions, contended that the settlement of claims against foreign nations had traditionally been an executive function, related to the power to conduct foreign affairs. The Court, however, indicated that Congress could have given the Commission's function to any branch of the Government. * * * (In sum, the statute) involved in (Myers ) was enacted in a period of extreme antagonism between Congress and the President and seemed to be aimed only at undermining the position of the President. It seems likely that if a congressional restriction of the President's power to discharge government officials other than high policy-making officials is designed to achieve a purpose reasonably related to the sound administration of the Government, it will be sustained. Only in the extremely rare instance of clear congressional abuse would the constitutional limitation of the Myers case be applied.