BREYER, J., DISSENTING
FREE ENTERPRISE FUND V. PUBLIC COMPANYACCOUNTING OVERSIGHT BD.
561 U. S. ____ (2010)
SUPREME COURT OF THE UNITED STATES
NO. 08-861
FREE ENTERPRISE FUND and BECKSTEAD AND WATTS, LLP,
PETITIONERS
v. PUBLIC COMPANY ACCOUNTING OVERSIGHT BOARD
et al.
on writ of certiorari to the united states court of
appeals for the district of columbia circuit
[June 28, 2010]
Justice Breyer, with whom Justice
Stevens, Justice Ginsburg, and Justice Sotomayor join,
dissenting.
The Court holds unconstitutional
a statute providing that the Securities and Exchange Commission can
remove members of the Public Company Accounting Oversight Board
from office only for cause. It argues that granting the “inferior
officer[s]” on the Accounting Board “more than one level of
good-cause protection … contravenes the President’s ‘constitutional
obligation to ensure the faithful execution of the laws.’ ”
Ante, at 2. I agree that the Accounting Board members are
inferior officers. See
ante, at 28–29. But in my view the
statute does not significantly interfere with the President’s
“executive Power.” Art. II, §1. It violates no separation-of-powers
principle. And the Court’s contrary holding threatens to disrupt
severely the fair and efficient administration of the laws. I
consequently dissent.
I
A
The legal question before us
arises at the intersection of two general constitutional
principles. On the one hand, Congress has broad power to enact
statutes “necessary and proper” to the exercise of its specifically
enumerated constitutional authority. Art. I, §8, cl. 18. As
Chief Justice Marshall wrote for the Court nearly 200 years ago,
the Necessary and Proper Clause reflects the Framers’ efforts to
create a Constitution that would “endure for ages to come.”
McCulloch v.
Maryland, 4 Wheat. 316, 415 (1819).
It embodies their recognition that it would be “unwise” to
prescribe “the means by which government should, in all future
time, execute its powers.”
Ibid. Such “immutable rules”
would deprive the Government of the needed flexibility to respond
to future “exigencies which, if foreseen at all, must have been
seen dimly.”
Ibid. Thus the Necessary and Proper Clause
affords Congress broad authority to “create” governmental
“ ‘offices’ ” and to structure those offices “as it
chooses.”
Buckley v.
Valeo,
424 U. S. 1, 138 (1976)
(per curiam); cf.
Lottery Case,
188 U. S. 321, 355
(1903). And Congress has drawn on that power over the past century
to create numerous federal agencies in response to “various crises
of human affairs” as they have arisen.
McCulloch, supra,
at 415 (emphasis deleted). Cf.
Wong Yang Sung v.
McGrath,
339
U. S. 33, 36–37 (1950).
On the other hand, the opening
sections of Articles I, II, and III of the Constitution separately
and respectively vest “all legislative Powers” in Congress, the
“executive Power” in the President, and the “judicial Power” in the
Supreme Court (and such “inferior Courts as Congress may from time
to time ordain and establish”). In doing so, these provisions imply
a structural separation-of-powers principle. See,
e.g.,
Miller v.
French,
530 U. S. 327, 341–342
(2000). And that principle, along with the instruction in Article
II, §3 that the President “shall take Care that the Laws be
faithfully executed,” limits Congress’ power to structure the
Federal Government. See,
e.g., INS v.
Chadha,
462
U. S. 919, 946 (1983);
Freytag v.
Commissioner,
501 U. S. 868, 878
(1991);
Northern Pipeline Constr. Co. v.
Marathon Pipe
Line Co.,
458 U.
S. 50, 64 (1982);
Commodity Futures Trading Comm’n v.
Schor,
478
U. S. 833, 859–860 (1986). Indeed, this Court has held that the
separation-of-powers principle guarantees the President the
authority to dismiss certain Executive Branch officials at will.
Myers v.
United States,
272 U. S. 52 (1926).
But neither of these two principles is
absolute in its application to removal cases. The Necessary and
Proper Clause does not grant Congress power to free
all
Executive Branch officials from dismissal at the will of the
President.
Ibid. Nor does the separation-of-powers
principle grant the President an absolute authority to remove
any and all Executive Branch officials at will. Rather,
depending on, say, the nature of the office, its function, or its
subject matter, Congress sometimes may, consistent with the
Constitution, limit the President’s authority to remove an officer
from his post. See
Humphrey’s Executor v.
United
States,
295 U. S. 602 (1935), overruling in
part
Myers, supra;
Morrison v.
Olson,
487 U. S. 654
(1988). And we must here decide whether the circumstances
surrounding the statute at issue justify such a limitation.
In answering the question presented, we cannot
look to more specific constitutional text, such as the text of the
Appointments Clause or the Presentment Clause, upon which the Court
has relied in other separation-of-powers cases. See,
e.g.,
Chadha, supra, at 946;
Buckley, supra, at
124–125. That is because, with the exception of the general
“vesting” and “take care” language, the Constitution is completely
“silent with respect to the power of removal from office.”
Ex
parte Hennen, 13 Pet. 230, 258 (1839); see also
Morrison,
supra, at 723 (Scalia, J., dissenting)
(“There is, of course, no provision in the Constitution stating who
may remove executive officers … ”).
Nor does history offer significant help. The
President’s power to remove Executive Branch officers “was not
discussed in the Constitutional Convention.”
Myers, supra,
at 109–110. The First Congress enacted federal statutes that
limited the President’s ability to
oversee Executive
Branch officials, including the Comptroller of the United States,
federal district attorneys (precursors to today’s United States
Attorneys), and, to a lesser extent, the Secretary of the Treasury.
See,
e.g., Lessig, Readings By Our Unitary Executive, 15
Cardozo L. Rev. 175, 183–184 (1993); Teifer, The
Constitutionality of Independent Officers as Checks on Abuses of
Executive Power, 63 B. U. L. Rev. 59, 74–75 (1983); Casper, An
Essay in Separation of Powers: Some Early Versions and Practices,
30 Wm. & Mary L. Rev. 211, 240–241 (1989) (hereinafter
Casper); H. Bruff, Balance of Forces: Separation of Powers in the
Administrative State 414–417 (2006). But those statutes did not
directly limit the President’s authority to
remove any of
those officials—“a subject” that was “much disputed” during “the
early history of this government,” “and upon which a great
diversity of opinion was entertained.”
Hennen,
supra, at 259; see also
United States ex rel.
Goodrich v.
Guthrie, 17 How. 284, 306 (1855) (McLean,
J., dissenting); Casper 233–237 (recounting the Debate of 1789).
Scholars, like Members of this Court, have continued to disagree,
not only about the inferences that should be drawn from the
inconclusive historical record, but also about the nature of the
original disagreement. Compare
ante, at 11;
Myers,
supra, at 114 (majority opinion of Taft, C. J.); and
Prakash, New Light on the Decision of 1789, 91 Cornell L. Rev.
1021 (2006), with,
e.g., Myers, supra, at 194
(McReynolds, J., dissenting); Corwin, Tenure of Office and the
Removal Power Under the Constitution, 27 Colum. L. Rev. 353,
369 (1927); Lessig & Sunstein, The President and the
Administration, 94 Colum. L. Rev. 1, 25–26 (1994) (hereinafter
Lessig & Sunstein); and L. Fisher, President and Congress:
Power and Policy 86–89 (1972).
Nor does this Court’s precedent fully answer
the question presented. At least it does not clearly invalidate the
provision in dispute. See Part II–C,
infra. In
Myers,
supra, the Court invalidated—for the first and only time—a
congressional statute on the ground that it unduly limited the
President’s authority to remove an Executive Branch official. But
soon thereafter the Court expressly disapproved most of
Myers’ broad reasoning. See
Humphrey’s Executor,
295 U. S., at 626–627, overruling in part
Myers, supra;
Wiener v.
United States,
357 U. S. 349, 352 (1958) (stating
that
Humphrey’s Executor “explicitly ‘disapproved’ ”
of much of the reasoning in
Myers). Moreover, the Court
has since said that “the essence of the decision in
Myers
was the judgment that the Constitution prevents Congress from
‘draw[ing] to itself … the power to remove or the right to
participate in the exercise of that power.’ ”
Morrison,
supra, at 686 (emphasis added). And
that feature of the statute—a feature that would
aggrandize the power of Congress—is not present here.
Congress has not granted itself any role in removing the members of
the Accounting Board. Cf.
Freytag, 501 U. S., at 878
(“separation-of-powers jurisprudence generally focuses on the
danger of one branch’s
aggrandizing its power at the
expense of another branch” (emphasis added));
Buckley, 424
U. S., at 129 (same);
Schor, 478 U. S., at 856 (same);
Bowsher v.
Synar,
478 U. S. 714, 727
(1986) (same). Compare
Myers, supra, (striking down
statute where Congress granted
itself removal authority
over Executive Branch official), with
Humphrey’s Executor,
supra, (upholding statute where such aggrandizing was
absent)
; Wiener, supra (same)
; Morrison, supra
(same).
In short, the question presented lies at the
intersection of two sets of conflicting, broadly framed
constitutional principles. And no text, no history, perhaps no
precedent provides any clear answer. Cf.
Chicago v.
Morales,
527
U. S. 41, 106 (1999) (Thomas, J., joined by Rehnquist,
C. J., and Scalia, J., dissenting) (expressing the view that
“this Court” is “most vulnerable” when “it deals with judge-made
constitutional law” that lacks “roots in the language” of the
Constitution (internal quotation marks omitted)).
B
When previously deciding this
kind of nontextual question, the Court has emphasized the
importance of examining how a particular provision, taken in
context, is likely to function. Thus, in
Crowell v.
Benson, 285
U. S. 22, 53 (1932), a foundational separation-of-powers case,
the Court said that “regard must be had, as in other cases where
constitutional limits are invoked, not to mere matters of form, but
to the substance of what is required.” The Court repeated this
injunction in
Schor and again in
Morrison. See
Schor, supra, at 854 (stating that the Court must look
“ ‘beyond form to the substance of what’ Congress has done”);
Morrison, 487 U. S., at 689–690 (“The analysis contained
in our removal cases is designed
not to define rigid
categories of those officials who may or may not be removed at
will by the President,” but rather asks whether, given the
“functions of the officials in question,” a removal provision
“interfere[s] with the President’s exercise of the ‘executive
power’ ” (emphasis added)). The Court has thereby written into
law Justice Jackson’s wise perception that “the Constitution …
contemplates that practice will integrate the dispersed powers into
a workable government.”
Youngstown Sheet & Tube
Co. v.
Sawyer,
343 U. S. 579, 635 (1952) (opinion
concurring in judgment) (emphasis added). See also
ibid.
(“The actual art of governing under our Constitution does not and
cannot conform to judicial definitions of the power of any of its
branches based on isolated clauses or even single Articles torn
from context”).
It is not surprising that the
Court in these circumstances has looked to function and context,
and not to bright-line rules. For one thing, that approach embodies
the intent of the Framers. As Chief Justice Marshall long ago
observed, our Constitution is fashioned so as to allow the three
coordinate branches, including this Court, to exercise practical
judgment in response to changing conditions and “exigencies,” which
at the time of the founding could be seen only “dimly,” and perhaps
not at all.
McCulloch, 4 Wheat., at 415.
For another, a functional approach permits
Congress and the President the flexibility needed to adapt
statutory law to changing circumstances. That is why the “powers
conferred upon the Federal Government by the Constitution were
phrased in language broad enough to allow for the expansion of the
Federal Government’s role” over time.
New York v.
United States,
505 U. S. 144, 157
(1992). Indeed, the Federal Government at the time of the founding
consisted of about 2,000 employees and served a population of about
4 million. See Kaufman, The Growth of the Federal Personnel System,
in The Federal Government Service 7, 8 (W. Sayre 2d ed. 1965);
Dept. of Commerce, Census Bureau, Historical Statistics of the
United States: Colonial Times to 1970, pt. 1, p. 8 (1975). Today,
however, the Federal Government employs about
4.4 million
workers who serve a Nation of more than 310 million people
living in a society characterized by rapid technological, economic,
and social change. See Office of Management and Budget, Analytical
Perspectives, Budget of the U. S. Government, Fiscal Year 2010,
p. 368 (2009).
Federal statutes now require or permit
Government officials to provide, regulate, or otherwise administer,
not only foreign affairs and defense, but also a wide variety of
such subjects as taxes, welfare, social security, medicine,
pharmaceutical drugs, education, highways, railroads, electricity,
natural gas, nuclear power, financial instruments, banking, medical
care, public health and safety, the environment, fair employment
practices, consumer protection and much else besides. Those
statutes create a host of different organizational structures.
Sometimes they delegate administrative authority to the President
directly,
e.g., 10 U. S. C. §2031(a)(1); 42 U.
S. C. §5192(c); sometimes they place authority in a
long-established Cabinet department,
e.g., 7 U. S. C.
§1637b(c)(1); 12 U. S. C. §5221(b)(2) (2006 ed., Supp. II);
sometimes they delegate authority to an independent commission or
board,
e.g., 15 U. S. C. §4404(b); 28 U. S. C.
§994; sometimes they place authority directly in the hands of a
single senior administrator,
e.g., 15 U. S. C.
§657d(c)(4); 42 U. S. C. §421; sometimes they place it in a
sub-cabinet bureau, office, division or other agency,
e.g., 18 U. S. C. §4048; sometimes they vest it in
multimember or multiagency task groups,
e.g. 5 U.
S. C. §§593–594; 50 U. S. C. §402 (2006 ed. and Supp.
II); sometimes they vest it in commissions or advisory committees
made up of members of more than one branch,
e.g., 20 U.
S. C. §42(a); 28 U. S. C. §991(a) (2006 ed., Supp. II);
42 U. S. C. §1975; sometimes they divide it among groups of
departments, commissions, bureaus, divisions, and administrators,
e.g., 5 U. S. C. §9902(a) (2006 ed., Supp. II); 7 U.
S. C. §136i–1(g); and sometimes they permit state or local
governments to participate as well,
e.g., 7 U. S. C.
§2009aa–1(a). Statutes similarly grant administrators a wide
variety of powers—for example, the power to make rules, develop
informal practices, investigate, adjudicate, impose sanctions,
grant licenses, and provide goods, services, advice, and so forth.
See generally 5 U. S. C. §500
et seq.
The upshot is that today vast numbers of
statutes governing vast numbers of subjects, concerned with vast
numbers of different problems, provide for, or foresee, their
execution or administration through the work of administrators
organized within many different kinds of administrative structures,
exercising different kinds of administrative authority, to achieve
their legislatively mandated objectives. And, given the nature of
the Government’s work, it is not surprising that administrative
units come in many different shapes and sizes.
The functional approach required by our
precedents recognizes this administrative complexity and, more
importantly, recognizes the various ways presidential power
operates within this context—and the various ways in which a
removal provision might affect that power. As human beings have
known ever since Ulysses tied himself to the mast so as safely to
hear the Sirens’ song, sometimes it is necessary to disable oneself
in order to achieve a broader objective. Thus, legally enforceable
commitments—such as contracts, statutes that cannot instantly be
changed, and, as in the case before us, the establishment of
independent administrative institutions—hold the potential to
empower precisely because of their ability to constrain. If the
President seeks to regulate through impartial adjudication, then
insulation of the adjudicator from removal at will can help him
achieve that goal. And to free a technical decisionmaker from the
fear of removal without cause can similarly help create legitimacy
with respect to that official’s regulatory actions by helping to
insulate his technical decisions from nontechnical political
pressure.
Neither is power always susceptible to the
equations of elementary arithmetic. A rule that takes power from a
President’s friends and allies may weaken him. But a rule that
takes power from the President’s opponents may strengthen him. And
what if the rule takes power from a functionally
neutral
independent authority? In that case, it is difficult to predict how
the President’s power is affected in the abstract.
These practical reasons not only support our
precedents’ determination that cases such as this should examine
the specific functions and context at issue; they also indicate
that judges should hesitate before second-guessing a “for cause”
decision made by the other branches. See,
e.g.,
Chadha, 462 U. S., at 944 (applying a “presumption that
the challenged statute is valid”);
Bowsher, 478 U. S., at
736 (Stevens, J., concurring in judgment). Compared to Congress and
the President, the Judiciary possesses an inferior understanding of
the realities of administration, and the manner in which power,
including and most especially political power, operates in
context.
There is no indication that the two
comparatively more expert branches were divided in their support
for the “for cause” provision at issue here. In this case, the Act
embodying the provision was passed by a vote of 423 to 3 in the
House of Representatives and a by vote of 99 to 0 in the Senate.
148 Cong. Rec. 14458, 14505 (2002). The creation of the Accounting
Board was discussed at great length in both bodies without anyone
finding in its structure any constitutional problem. See
id., at 12035–12037, 12112–12132, 12315–12323,
12372–12377, 12488–12508, 12529–12534, 12612–12618, 12673–12680,
12734–12751, 12915–12960, 13347–13354, 14439–14458, 14487–14506.
The President signed the Act. And, when he did so, he issued a
signing statement that critiqued multiple provisions of the Act but
did not express any separation-of-powers concerns. See President’s
Statement on Signing the Sarbanes-Oxley Act of 2002, 30 Weekly
Comp. of Pres. Doc. 1286 (2002). Cf. ABA, Report of Task Force on
Presidential Signing Statements and the Separation of Powers
Doctrine 15 (2006), online at
http://www.signingstatementsaba_final_signing_
statements_recommendations-report_7-24-06.pdf (all Inter- net
materials as visited June 24, 2010, and available in Clerk of
Court’s case file) (noting that President Bush asserted “over 500”
“constitutional objections” through signing statements “in his
first term,” including 82 “related to his theory of the ‘unitary
executive’ ”).
Thus, here, as in similar cases, we should
decide the constitutional question in light of the provision’s
practical functioning in context. And our decision should take
account of the Judiciary’s comparative lack of institutional
expertise.
II
A
To what extent then is the Act’s
“for cause” provision likely, as a practical matter, to limit the
President’s exercise of executive authority? In practical terms no
“for cause” provision can, in isolation, define the full measure of
executive power. This is because a legislative decision to place
ultimate administrative authority in, say, the Secretary of
Agriculture rather than the President, the way in which the statute
defines the scope of the power the relevant administrator can
exercise, the decision as to who controls the agency’s budget
requests and funding, the relationships between one agency or
department and another, as well as more purely political factors
(including Congress’ ability to assert influence) are more likely
to affect the President’s power to get something done. That is why
President Truman complained that “ ‘the powers of the
President amount to’ ” bringing “ ‘people in and try[ing]
to persuade them to do what they ought to do without
persuasion.’ ” C. Rossiter, The American Presidency 154 (2d
rev. ed. 1960). And that is why scholars have written that the
President “is neither dominant nor powerless” in his relationships
with many Government entities, “whether denominated executive or
independent.” Strauss, The Place of Agencies in Government:
Separation of Powers and the Fourth Branch, 84 Colum. L. Rev.
573, 583 (1984) (hereinafter Strauss). Those entities “are
all subject to presidential direction in significant
aspects of their functioning, and [are each] able to resist
presidential direction in others.”
Ibid. (emphasis
added).
Indeed, notwithstanding the
majority’s assertion that the removal authority is “
the
key” mechanism by which the President oversees inferior officers in
the independent agencies,
ante, at 20, it appears that no
President has ever actually sought to exercise that power by
testing the scope of a “for cause” provision. See Bruff, Bringing
the Independent Agencies in from the Cold, 62 Vanderbilt
L. Rev. En Banc 63, 68 (2009), online at
http://vanderbiltlawreview.
org/articles/2009/11/Bruff-62-Vand-L-Rev-En-Banc-63.pdf (noting
that “Presidents do not test the limits of their power by removing
commissioners … ”); Lessig & Sunstein 110–112 (noting that
courts have not had occasion to define what constitutes “cause”
because Presidents rarely test removal provisions).
But even if we put all these other matters to
the side, we should still conclude that the “for cause” restriction
before us will not restrict presidential power significantly. For
one thing, the restriction directly limits, not the President’s
power, but the power of an already independent agency. The Court
seems to have forgotten that fact when it identifies its central
constitutional problem: According to the Court, the President “is
powerless to intervene” if he has determined that the Board
members’ “conduct merit[s] removal” because “[t]hat decision is
vested instead in other tenured officers—the Commissioners—none of
whom is subject to the President’s direct control.”
Ante,
at 14–15. But so long as the President is
legitimately
foreclosed from removing the
Commissioners except for
cause (as the majority assumes), nullifying the Commission’s power
to remove Board members only for cause will not resolve the problem
the Court has identified: The President will
still be
“powerless to intervene” by removing the Board members if the
Commission reasonably decides not to do so.
In other words, the Court fails to show why
two layers of “for cause” protection—Layer One insulating
the Commissioners from the President, and Layer Two insulating the
Board from the Commissioners—impose any more serious limitation
upon the
President’s powers than
one layer.
Consider the four scenarios that might arise:
1. The President and the Commission both want
to keep a Board member in office. Neither layer is relevant.
2. The President and the Commission both want
to dismiss a Board member
. Layer Two stops them both from
doing so without cause. The President’s ability to remove the
Commission (Layer One) is irrelevant, for he and the Commission are
in agreement.
3. The President wants to dismiss a Board
member, but the Commission wants to keep the member. Layer One
allows the Commission to make that determination notwithstanding
the President’s contrary view. Layer Two is irrelevant because the
Commission does not seek to remove the Board member.
4. The President wants to keep a Board member,
but the Commission wants to dismiss the Board member. Here, Layer
Two
helps the President, for it hinders the
Commission’s ability to dismiss a Board member whom the President
wants to keep in place.
Thus, the majority’s decision to eliminate
only
Layer Two accomplishes virtually nothing. And that is
because a removal restriction’s effect upon presidential power
depends not on the presence of a “double-layer” of for-cause
removal, as the majority pretends, but rather on the real-world
nature of the President’s relationship with the Commission. If the
President confronts a Commission that seeks to
resist his
policy preferences—a distinct possibility when, as here, a
Commission’s membership must reflect both political parties, 15 U.
S. C. §78d(a)—the restriction on the
Commission’s
ability to remove a Board member is either irrelevant (as in
scenario 3) or may actually help the President (as in scenario 4).
And if the President faces a Commission that seeks to
implement his policy preferences, Layer One is irrelevant,
for the President and Commission see eye to eye.
In order to avoid this elementary logic, the
Court creates two alternative scenarios. In the first, the
Commission and the President
both want to remove a Board
member, but have varying judgments as to whether they have good
“cause” to do so—
i.e., the President and the Commission
both conclude that a Board member should be removed, but disagree
as to whether that conclusion (which they have both reached) is
reasonable.
Ante, at 14–15. In the second, the
President wants to remove a Board member and the Commission
disagrees; but, notwithstanding its freedom to make reasonable
decisions independent of the President (afforded by Layer One), the
Commission (while apparently telling the President that it agrees
with him and would like to remove the Board member) uses Layer Two
as an “excuse” to pursue its actual aims—an excuse which, given
Layer One, it does not need.
Ante, at 15, n. 4.
Both of these circumstances seem unusual. I do
not know if they have ever occurred. But I do not deny their
logical possibility. I simply doubt their importance. And the fact
that, with respect to the President’s power, the double layer of
for-cause removal sometimes might help, sometimes might hurt, leads
me to conclude that its overall effect is at most
indeterminate.
But once we leave the realm of hypothetical
logic and view the removal provision at issue in the context of the
entire Act, its lack of practical effect becomes readily apparent.
That is because the statute provides the Commission with full
authority and virtually comprehensive control over all of the
Board’s functions. Those who created the Accounting Board modeled
it, in terms of structure and authority, upon the semiprivate
regulatory bodies prevalent in the area of financial regulation,
such as the New York Stock Exchange and other similar
self-regulating organizations. See generally Brief for Former
Chairmen of the SEC as
Amici Curiae (hereinafter Brief for
Former SEC Chairmen)
. And those organizations—which rely
on private financing and on officers drawn from the private
sector—exercise rulemaking and adjudicatory authority that is
pervasively controlled by, and is indeed “entirely derivative” of,
the SEC. See
National Assn. of Securities Dealers, Inc. v.
SEC, 431 F. 3d 803, 806 (CADC 2005).
Adhering to that model, the statute here gives
the Accounting Board the power to adopt rules and standards
“relating to the preparation of audit reports”; to adjudicate
disciplinary proceedings involving accounting firms that fail to
follow these rules; to impose sanctions; and to engage in other
related activities, such as conducting inspections of accounting
firms registered as the law requires and investigations to monitor
compliance with the rules and related legal obligations. See 15 U.
S. C. §§7211–7216. But, at the same time,
• No Accounting Board rule takes effect unless
and until the Commission approves it, §7217(b)(2);
• The Commission may “abrogat[e], delet[e] or
ad[d] to” any rule or any portion of a rule promulgated by the
Accounting Board whenever, in the Commission’s view, doing so
“further[s] the purposes” of the securities and
accounting-oversight laws, §7217(b)(5);
• The Commission may review any sanction the
Board imposes and “enhance, modify, cancel, reduce, or require the
remission of” that sanction if it find’s the Board’s action not
“appropriate,” §§7215(e), 7217(c)(3);
•
The Commission may promulgate rules
restricting or directing the Accounting Board’s conduct of all
inspections and investigations, §§7211(c)(3), 7214(h),
7215(b)(1)–(4);
•
The Commission may itself initiate any
investigation or promulgate any rule within the Accounting Board’s
purview, §7202, and may also
remove any Accounting Board
member who has unreasonably “failed to enforce compliance with” the
relevant “rule[s], or any professional standard,”
§7217(d)(3)(C) (emphasis added)
;
• The Commission may at any time “relieve
the Board of any responsibility to enforce compliance with any
provision” of the Act, the rules, or professional standards if, in
the Commission’s view, doing so is in “the public interest,”
§7217(d)(1) (emphasis added).
As these statutory provisions make clear, the
Court is simply wrong when it says that “the Act nowhere gives the
Commission effective power to start, stop, or alter” Board
investigations.
Ante, at 23–24. On the contrary, the
Commission’s control over the Board’s investigatory and legal
functions is virtually absolute. Moreover, the Commission has
general supervisory powers over the Accounting Board itself: It
controls the Board’s budget, §§7219(b), (d)(1); it can assign to
the Board any “duties or functions” that it “determines are
necessary or appropriate,” §7211(c)(5); it has full “oversight and
enforcement authority over the Board,” §7217(a),
including the
authority to inspect the Board’s activities whenever it believes it
“appropriate” to do so, §7217(d)(2) (emphasis added). And it
can censure the Board or its members, as well as remove the members
from office, if the members, for example, fail to enforce the Act,
violate any provisions of the Act, or abuse the authority granted
to them under the Act, §7217(d)(3). Cf.
Shurtleff v.
United States,
189 U. S. 311, 314–319
(1903) (holding that removal authority is not always “restricted to
a removal for th[e] causes” set forth by statute);
Bowsher, 478 U. S., at 729 (rejecting the “arguable
premis[e]” “that the enumeration of certain specified causes of
removal excludes the possibility of removal for other causes”).
Contra,
ante, at 22, n. 7. See generally Pildes,
Putting Power Back into Separation of Powers Analysis: Why the
SEC-PCAOB Structure is Constitutional, 62 Vand. L. Rev. En
Banc 85 (2009), online at
http://vanderbiltlawreview.org1/articles/2009/11/Pildes-62-Vand-L-Rev-En-Banc-85.pdf
(explaining further the comprehensive nature of the Commission’s
powers).
What is left? The Commission’s inability to
remove a Board member whose perfectly
reasonable actions
cause the Commission to overrule him with great frequency? What is
the practical likelihood of that occurring, or, if it does, of the
President’s serious concern about such a matter? Everyone concedes
that the President’s control over the Commission is
constitutionally sufficient. See
Humphrey’s Executor,
295 U. S. 602;
Wiener,
357 U. S. 349;
ante, at 1–2.
And if the President’s control over the Commission is sufficient,
and the Commission’s control over the Board is virtually absolute,
then, as a practical matter, the President’s control over the Board
should prove sufficient as well.
B
At the same time, Congress and
the President had good reason for enacting the challenged “for
cause” provision. First and foremost, the Board adjudicates cases.
See 15 U. S. C. §7215. This Court has long recognized the
appropriateness of using “for cause” provisions to protect the
personal independence of those who even only sometimes engage in
adjudicatory functions.
Humphrey’s Executor,
supra, at 623–628; see also
Wiener,
supra, at 355–356;
Morrison, 487 U. S., at
690–691, and n. 30;
McAllister v.
United States,
141 U. S. 174,
191–201 (1891) (Field, J., dissenting). Indeed, as early as 1789
James Madison stated that “there may be strong reasons why an”
executive “officer” such as the Comptroller of the United States
“should not hold his office at the pleasure of the Executive
branch” if one of his “principal dut[ies]” “partakes strongly of
the judicial character.” 1 Annals of Congress 611–612; cf.
ante, at 19, n. 6 (noting that the statute Congress
ultimately enacted limited Presidential control over the
Comptroller in a different fashion); see
supra, at 4. The
Court, however, all but ignores the Board’s adjudicatory functions
when conducting its analysis. See,
e.g., ante, at
17–18. And when it finally does address that central function (in a
footnote), it simply asserts that the Board
does not
“perform adjudicative … functions,” a
nte, at 26,
n. 10 (emphasis added), an assertion that is inconsistent with
the terms of the statute. See §7215(c)(1) (governing “proceeding[s]
by the Board to determine whether a registered public accounting
firm, or an associated person thereof, should be disciplined”).
Moreover, in addition to their
adjudicative functions, the Accounting Board members supervise, and
are themselves, technical professional experts. See §7211(e)(1)
(requiring that Board members “have a demonstrated” technical
“understanding of the responsibilities” and “obligations of
accountants with respect to the preparation and issuance of audit
reports”). This Court has recognized that the “difficulties
involved in the preparation of” sound auditing reports require the
application of “scientific accounting principles.”
United
States v.
Anderson,
269 U. S. 422, 440
(1926). And this Court has recognized the constitutional legitimacy
of a justification that rests agency independence upon the need for
technical expertise. See
Humphrey’s Executor,
supra, at 624–626; see also Breger & Edles,
Established by Practice: The Theory and Operation of Independent
Federal Agencies, 52 Admin. L. Rev. 1111, 1131–1133 (2000)
(explaining how the need for administrators with “technical
competence,” “apolitical expertise,” and skill in “scientific
management” led to original creation of independent agencies)
(hereinafter Breger & Edles); J. Landis, The Administrative
Process 23 (1938) (similar); Woodrow Wilson, Democracy and
Efficiency, 87 Atlantic Monthly 289, 299 (1901) (describing need
for insulation of experts from political influences).
Here, the justification for insulating the
“technical experts” on the Board from fear of losing their jobs due
to political influence is particularly strong. Congress
deliberately sought to provide that kind of protection. See,
e.g., 148 Cong. Rec. 12036, 12115, 13352–13355. It did so
for good reason. See
ante, at 3 (noting that the
Accounting Board was created in response to “a series of celebrated
accounting debacles”); H. R. Rep. No. 107–414, pp. 18–19
(2002) (same); Brief for Former SEC Chairmen 8–9. And historically,
this regulatory subject matter—financial regulation—has been
thought to exhibit a particular need for independence. See
e.g., 51 Cong. Rec. 8857 (1914) (remarks of Sen. Morgan
upon creation of the Federal Trade Commission) (“[I]t is unsafe for
an … administrative officer representing a great political party …
to hold the power of life and death over the great business
interests of this country… . That is … why I believe in …
taking these business matters out of politics”). And Congress, by,
for example, providing the Board with a revenue stream independent
of the congressional appropriations process, §7219, helped insulate
the Board from congressional, as well as other, political
influences. See,
e.g., 148 Cong. Rec. 12036 (statement of
Sen. Stabenow).
In sum, Congress and the President could
reasonably have thought it prudent to insulate the adjudicative
Board members from fear of purely politically based removal. Cf.
Civil Service Comm’n v.
Letter Carriers,
413 U. S. 548, 565
(1973) (“[I]t is not only important that the Government and its
employees in fact avoid practicing political justice, but it is
also critical that they appear to the public to be avoiding it, if
confidence in the system of representative Government is not to be
eroded to a disastrous extent”). And in a world in which we count
on the Federal Government to regulate matters as complex as, say,
nuclear-power production, the Court’s assertion that we should
simply learn to get by “without being” regulated “by experts” is,
at best, unrealistic—at worst, dangerously so.
Ante, at
18.
C
Where a “for cause” provision is
so unlikely to restrict presidential power and so likely to further
a legitimate institutional need, precedent strongly supports its
constitutionality. First, in considering a related issue in
Nixon v.
Administrator of General Services,
433 U. S. 425
(1977), the Court made clear that when “determining whether the Act
disrupts the proper balance between the coordinate branches, the
proper inquiry focuses on the extent to which it prevents the
Executive Branch from accomplishing its constitutionally assigned
functions.”
Id., at 443. The Court said the same in
Morrison, where it upheld a restriction on the President’s
removal power. 487 U. S., at 691 (“[T]he real question is whether
the removal restrictions are of such a nature that they impede the
President’s ability to perform his constitutional duty, and the
functions of the officials in question must be analyzed in that
light”). Here, the removal restriction may somewhat diminish the
Commission’s ability to control the Board, but it will
have little, if any, negative effect in respect to the President’s
ability to control the Board, let alone to coordinate the Executive
Branch. See Part II–A,
supra. Indeed, given
Morrison, where the Court upheld a restriction that
significantly interfered with the President’s important historic
power to control criminal prosecutions, a “ ‘purely
executive’ ” function, 487 U. S., at 687–689, the
constitutionality of the present restriction would seem to follow
a fortiori.
Second, as previously pointed
out, this Court has repeatedly upheld “for cause” provisions where
they restrict the President’s power to remove an officer with
adjudicatory responsibilities. Compare Humphrey’s Executor,
295 U. S., at 623–628;
Wiener, 357 U. S., at 355;
Schor, 478 U. S., at 854;
Morrison, supra, at
691, n. 30, with
ante, at 17–18 (ignoring these
precedents). And we have also upheld such restrictions when they
relate to officials with technical responsibilities that warrant a
degree of special independence.
E.g., Humphrey’s Executor,
supra, at 624. The Accounting Board’s functions involve both
kinds of responsibility. And, accordingly, the Accounting Board’s
adjudicatory responsibilities, the technical nature of its job, the
need to attract experts to that job, and the importance of
demonstrating the nonpolitical nature of the job to the public
strongly justify a statute that assures that Board members need not
fear for their jobs when competently carrying out their tasks,
while still maintaining the Commission as the ultimate authority
over Board policies and actions. See Part II–B,
supra.
Third, consider how several cases fit together
in a way that logically compels a holding of constitutionality
here. In
Perkins, 116 U. S., at 483, 484—which was
reaffirmed in
Myers, 272 U. S., at 127 and in
Morrison,
supra, at 689, n. 27—the Court upheld a
removal restriction limiting the authority of the Secretary of the
Navy to remove a “cadet-engineer,” whom the Court explicitly
defined as an “inferior officer.” The Court said,
“We have no doubt that when
Congress, by law, vests the appointment of inferior officers in the
heads of Departments
it may limit and restrict the power of
removal as it deems best for the public interest. The
constitutional authority in Congress to thus vest the appointment
implies authority to limit, restrict, and regulate the removal by
such laws as Congress may enact in relation to the officers so
appointed.”
Perkins, supra, at 485 (emphasis added;
internal quotation marks omitted).
See also
Morrison, supra, at 723–724
(Scalia, J., dissenting) (agreeing that the power to remove an
“inferior officer” who is appointed by a department head can be
restricted). Cf.
ante, at 30–33 (holding that SEC
Commissioners are “Heads of Departments”).
In
Humphrey’s Executor, the Court
held that Congress may constitutionally limit the President’s
authority to remove certain principal officers, including heads of
departments. 295 U. S., at 627–629. And the Court has consistently
recognized the validity of that holding. See
Wiener,
supra;
United States v.
Nixon,
418 U. S. 683, 706
(1974);
Buckley, 424 U. S., at 133–136
;
Chadha, 462 U. S., at 953, n. 16;
Bowsher,
478 U. S., at 725–726;
Morrison,
supra, at
686–693;
Mistretta v.
United States,
488 U. S. 361, 410–411
(1989).
And in
Freytag, 501 U. S., at 921,
Justice Scalia stated in a concurring opinion written for four
Justices, including Justice Kennedy, that “adjusting the remainder
of the Constitution to compensate for
Humphrey’s Executor
is a fruitless endeavor.” In these Justices’ view, the Court should
not create a
separate constitutional jurisprudence for the
“independent agencies.” That being so, the law should treat their
heads as it treats other Executive Branch heads of departments.
Consequently, as the Court held in
Perkins, Congress may
constitutionally “limit and restrict” the Commission’s power to
remove those whom they appoint (
e.g, the Accounting Board
members).
Fourth, the Court has said that “[o]ur
separation-of-powers jurisprudence generally focuses on the danger
of one branch’s
aggrandizing its power at the expense of
another branch.”
Freytag, supra, at 878 (emphasis added);
accord,
Buckley, supra, at 129;
Schor, supra, at
856;
Morrison,
supra, at 686; cf.
Bowsher,
supra. Indeed, it has added that “the
essence of the decision in
Myers,” which is the only one
of our cases to have struck down a “for cause” removal restriction,
“was the judgment that the Constitution prevents Congress from
‘draw[ing] to itself …
the power to
remove.’ ” Morrison,
supra, at 686
(quoting
Myers,
supra, at 161; emphasis added).
Congress here has “drawn” no power to itself to remove the Board
members. It has instead sought to
limit its own power, by,
for example, providing the Accounting Board with a revenue stream
independent of the congressional appropriations process. See
supra, at 19; see also Brief for Former SEC Chairmen 16.
And this case thereby falls outside the ambit of the Court’s most
serious constitutional concern.
In sum, the Court’s prior cases impose
functional criteria that are readily met here. Once one goes beyond
the Court’s elementary arithmetical logic (
i.e., “one plus
one is greater than one”) our precedent virtually dictates a
holding that the challenged “for cause” provision is
constitutional.
D
We should ask one further
question. Even if the “for cause” provision before us does not
itself significantly interfere with the President’s authority or
aggrandize Congress’ power, is it nonetheless necessary to adopt a
bright-line rule forbidding the provision lest, through a series of
such provisions, each itself upheld as reasonable, Congress might
undercut the President’s central constitutional role? Cf. Strauss
625–626. The answer to this question is that no such need has been
shown. Moreover, insofar as the Court seeks to create such a rule,
it fails. And in failing it threatens a harm that is far more
serious than any imaginable harm this “for cause” provision might
bring about.
The Court fails to create a
bright-line rule because of considerable uncertainty about the
scope of its holding—an uncertainty that the Court’s opinion both
reflects and generates. The Court suggests, for example, that its
rule may not apply where an inferior officer “perform[s]
adjudicative … functions.” Cf.
ante, at 26, n. 10.
But the Accounting Board performs adjudicative functions.
See
supra, at 17–18. What, then, are we to make of the Court’s
potential exception? And would such an exception apply to an
administrative law judge who also has important administrative
duties beyond pure adjudication? See,
e.g., 8 CFR §1003.9,
34 CFR §81.4 (2009). The Court elsewhere suggests that its rule may
be limited to removal statutes that provide for “judicial review of
a[n] effort to remove” an official for cause.
Ante, at 22;
ante, at 25. But we have previously stated that
all officers protected by a for-cause removal provision
and later subject to termination are entitled to “notice and [a]
hearing” in the “courts,” as without such review “the appointing
power” otherwise “could remove at pleasure or for such cause as
[only] it deemed sufficient.”
Reagan v.
United
States,
182 U.
S. 419, 425 (1901);
Shurtleff, 189 U. S., at 314; cf.
Humphrey’s Executor, supra (entertaining civil suit
challenging removal). But cf.
Bowsher, supra, at
729. What weight, then, should be given to this hint of an
exception?
The Court further seems to suggest that its
holding may not apply to inferior officers who have a different
relationship to their appointing agents than the relationship
between the Commission and the Board. See
ante, at 22,
24–26. But the only characteristic of the “relationship” between
the Commission and the Board that the Court apparently deems
relevant is that the relationship includes two layers of for-cause
removal. See,
e.g., ante, at 23 (“Broad power
over Board functions is not equivalent to the power to remove Board
members”). Why then would any different relationship that also
includes two layers of for-cause removal survive where this one has
not? Cf. Part II–A,
supra (describing the Commission’s
near absolute control over the Board). In a word, what differences
are relevant? If the Court means to state that its holding in fact
applies only where Congress has “enacted an
unusually
high standard” of for-cause removal—and does not
otherwise render two layers of “ ‘ordinary’ ” for-cause
removal unconstitutional—I should welcome the statement.
Ante, at 22 (emphasis added); see also
ante, at
24–25, 15, 22, (underscoring this statute’s “sharply circumscribed
definition of what constitutes ‘good cause’ ” and its
“rigorous,” “significant and unusual [removal] protections”). But
much of the majority’s opinion appears to avoid so narrow a holding
in favor of a broad, basically mechanical rule—a rule that, as I
have said, is divorced from the context of the case at hand.
Compare Parts III–A, III–B, III–C,
ante, with Parts II–A,
II–B, II–C,
supra. And such a mechanical rule cannot be
cabined simply by saying that,
perhaps, the rule does not
apply to instances that, at least at first blush, seem highly
similar. A judicial holding by its very nature is not “a restricted
railroad ticket, good for” one “day and train only.”
Smith
v.
Allwright,
321 U. S. 649, 669
(1944) (Roberts, J., dissenting).
The Court begins to reveal the practical
problems inherent in its double for-cause rule when it suggests
that its rule may not apply to “the civil service.”
Ante,
at 26. The “civil service” is defined by statute to include “all
appointive positions in … the Government of the United States,”
excluding the military, but including
all civil
“officer[s]” up to and including those who are subject to Senate
confirmation. 5 U. S. C. §§2101, 2102(a)(1)(B), 2104. The
civil service thus includes many officers indistinguishable from
the members of both the Commission and the Accounting Board.
Indeed, as this Court recognized in
Myers, the
“competitive service”—the class within the broader civil service
that enjoys the most robust career protection—“includes a
vast
majority of all the civil officers” in the United States. 272
U. S., at 173 (emphasis added); 5 U. S. C. §2102(c).
But even if I assume that the majority
categorically excludes the competitive service from the scope of
its new rule, cf.
ante, at 26 (leaving this question
open), the exclusion would be insufficient. This is because the
Court’s “double for-cause” rule applies to appointees who are
“inferior officer[s].”
Ante, at 2. And who are they?
Courts and scholars have struggled for more than a century to
define the constitutional term “inferior officers,” without much
success. See 2 J. Story, Commentaries on the Constitution §1536,
pp. 397–398 (3d ed. 1858) (“[T]here does not seem to have been any
exact line drawn, who are and who are not to be deemed
inferior officers, in the sense of the constitution”);
Edmond v.
United States,
520 U. S. 651, 661 (1997) (“Our cases
have not set forth an exclusive criterion for [defining] inferior
officers”); Memorandum from Steven G. Bradbury, Acting Assistant
Attorney General, Office of Legal Counsel, to the General Counsels
of the Executive Branch: Officers of the United States Within the
Meaning of the Appointments Clause, p. 3 (Apr. 16, 2007)
(hereinafter OLC Memo), online at
http://www.justice.gov/olc/2007/appointmentsclausev10.pdf (“[T]he
Supreme Court has not articulated the precise scope and application
of the [Inferior Officer] Clause’s requirements”); Konecke, The
Appointments Clause and Military Judges: Inferior Appointment to a
Principal Office, 5 Seton Hall Const. L. J. 489, 492 (1995)
(same); Burkoff, Appointment and Removal Under the Federal
Constitution: The Impact of Buckley v. Valeo, 22 Wayne L. Rev.
1335, 1347, 1364 (1976) (describing our early precedent as
“circular” and our later law as “not particularly useful”). The
Court does not clarify the concept. But without defining who is an
inferior officer, to whom the majority’s new rule applies, we
cannot know the scope or the coherence of the legal rule that the
Court creates. I understand the virtues of a common-law
case-by-case approach. But here that kind of approach (when applied
without more specificity than I can find in the Court’s opinion)
threatens serious harm.
The problem is not simply that the term
“inferior officer” is indefinite but also that efforts to define it
inevitably conclude that the term’s sweep is unusually broad.
Consider the Court’s definitions: Inferior officers are,
inter
alia, (1) those charged with “the administration and
enforcement of the public law,”
Buckley, 424 U. S., at
139;
ante, at 2; (2) those granted “significant
authority,” 424 U. S., at 126;
ante, at 25; (3) those with
“responsibility for conducting civil litigation in the courts of
the United States,” 424 U. S.
, at 140; and (4) those “who
can be said to hold an office,”
United States v.
Germaine,
99
U. S. 508, 510 (1879), that has been created either by
“regulations” or by “statute,”
United States v.
Mouat,
124
U. S. 303, 307–308 (1888).
Consider the definitional conclusion that the
Department of Justice more recently reached: An “inferior officer”
is anyone who holds a “continuing” position and who is “invested by
legal authority with a portion of the sovereign powers of the
federal Government,” including,
inter alia, the power to
“arrest criminals,” “seize persons or property,” “issue
regulations,” “issue … authoritative legal opinions,”
“conduc[t] civil litigation,” “collec[t] revenue,”
represent “the United States to foreign nations,” “command”
military force, or
enter into “contracts” on behalf “of
the nation.” OLC Memo 1, 4, 12–13, 15–16 (internal quotation marks
omitted; emphasis added).
And consider the fact that those whom this
Court has
held to be “officers” include: (1) a district
court clerk,
Hennen, 13 Pet., at 258; (2) “thousands of
clerks in the Departments of the Treasury, Interior and the
othe[r]” departments,
Germaine,
supra, at 511,
who are responsible for “the records, books, and papers
appertaining to the office,”
Hennen, supra, at 259; (3) a
clerk to “the assistant treasurer” stationed “at Boston,”
United States v.
Hartwell, 6 Wall. 385, 392
(1868); (4 & 5) an “assistant-surgeon” and a “cadet-engineer”
appointed by the Secretary of the Navy,
United States v.
Moore,
95 U.
S. 760, 762 (1878);
Perkins, 116 U. S., at 484; (6)
election monitors,
Ex parte Siebold,
100 U. S. 371, 397–399
(1880); (7) United States attorneys,
Myers,
supra, at 159; (8) federal marshals,
Sieblod,
supra, at 397;
Morrison, 487 U. S., at 676; (9)
military judges,
Weiss v.
United States, 510 U.
S., 163, 170 (1994); (10) judges in Article I courts,
Freytag, 501 U. S., at 880–881; and (11) the general
counsel of the Department of Transportation,
Edmond v.
United States,
520 U. S. 651 (1997). Individual
Members of the Court would add to the list the Federal
Communication Commission’s managing director, the Federal Trade
Commission’s “secretary,” the general counsel of the Commodity
Futures Trading Commission, and more generally, bureau chiefs,
general counsels, and administrative law judges, see
Freytag,
supra, at 918–920 (Scalia, J.,
concurring in part and concurring in judgment), as well as
“ordinary commissioned military officers,”
Weiss, supra,
at 182 (Souter, J., concurring).
Reading the criteria above as stringently as
possible, I still see no way to avoid sweeping hundreds, perhaps
thousands of high level government officials within the scope of
the Court’s holding, putting their job security and their
administrative actions and decisions constitutionally at risk. To
make even a conservative estimate, one would have to begin by
listing federal departments, offices, bureaus and other agencies
whose heads are by statute removable only “for cause.” I have found
48 such agencies, which I have listed in Appendix A,
infra. Then it would be necessary to identify the senior
officials in those agencies (just below the top) who themselves are
removable only “for cause.” I have identified 573 such high-ranking
officials, whom I have listed in Appendix B,
infra. They
include most of the leadership of the Nuclear Regulatory Commission
(including that agency’s executive director as well as the
directors of its Office of Nuclear Reactor Regulation and Office of
Enforcement), virtually all of the leadership of the Social
Security Administration, the executive directors of the Federal
Energy Regulatory Commission and the Federal Trade Commission, as
well as the general counsels of the Chemical Safety Board, the
Federal Mine Safety and Health Review Commission, and the National
Mediation Board.
This list is a conservative estimate because
it consists only of career appointees in the Senior Executive
Service (SES), see 5 U. S. C. §§2101a, 3132(a)(2), a group of
high-ranking officials distinct from the “competitive service,” see
§2101(a)(1)(C), who “serve in the key positions just below the top
Presidential appointees,” Office of Personnel Management, About the
Senior Executive Service, online at
http://www.opm.gov/ses/about_ses/index.asp; §2102(a)(1)(C), and who
are, without exception, subject to “removal” only for cause.
§§7542–7543; see also §2302(a)(2) (substantially limiting
conditions under which “a career appointee in the Senior Executive
Service” may be “transfer[red], or reassign[ed]”). SES officials
include, for example, the Director of the Bureau of Prisons, the
Director of the National Drug Intelligence Center, and the Director
of the Office of International Monetary Policy in the Treasury
Department. See Senate Committee on Homeland Security and
Government Affairs, United States Government Policy and Supporting
Positions (2008), pp. 99, 103, 129 (hereinafter Plum Book). And by
virtually any definition, essentially all SES officials qualify as
“inferior officers,” for their duties, as defined by statute,
require them to “direc[t] the work of an organizational unit,”
carry out high-level managerial functions, or “
otherwise
exercis[e] important policy-making, policy-determining, or other
executive functions.” §3132(a)(2) (emphasis added). Cf.
ante, at 2 (describing an “inferior officer” as someone
who “determines the policy and enforces the laws of the United
States”);
ante, at 26 (acknowledging that career SES
appointees in independent agencies may be rendered unconstitutional
in future cases). Is the SES exempt from today’s rule or is it not?
The Court, after listing reasons why the SES may be different,
simply says that it will not “addres[s]” the matter.
Ante,
at 27. Perhaps it does not do so because it cannot do so without
revealing the difficulty of distinguishing the SES from the
Accounting Board and thereby also revealing the inherent
instability of the legal rule it creates.
The potential list of those whom today’s
decision affects is yet larger. As Justice Scalia has observed,
administrative law judges (ALJs) “are all executive officers.”
Freytag, 501 U. S., at 910 (opinion concurring in part and
concurring in judgment) (emphasis deleted); see also,
e.g.,
id., at 881 (majority opinion) (“[A] [tax-court] special trial
judge is an ‘inferior Officer’ ”);
Edmond, supra, at
654 (“[M]ilitary trial and appellate judges are [inferior]
officers”). But cf.
ante, at 26, n. 10. And ALJs are
each removable “only for good cause established and determined by
the Merit Systems Protection Board,” 5 U. S. C. §§7521(a)–(b).
But the members of the Merit Systems Protection Board are
themselves protected from removal by the President absent good
cause. §1202(d).
My research reflects that the Federal
Government relies on 1,584 ALJs to adjudicate administrative
matters in over 25 agencies. See Appendix C,
infra; see
also Memorandum of Juanita Love, Office of Personnel Management, to
Supreme Court Library (May 28, 2010) (available in Clerk of Court’s
case file). These ALJs adjudicate Social Security benefits,
employment disputes, and other matters highly important to
individuals. Does every losing party before an ALJ now have grounds
to appeal on the basis that the decision entered against him is
unconstitutional? Cf.
ante, at 26, n. 10 (“[O]ur holding
also does not address” this question).
And what about the military? Commissioned
military officers “are ‘inferior officers.’ ”
Weiss,
510 U. S., at 182 (Souter, J., concurring);
id., at
169–170 (majority opinion). There are over 210,000 active-duty
commissioned officers currently serving in the armed forces. See
Dept. of Defense, Active Duty Military Personnel by Rank (Apr. 30,
2010), online at http://siadapp.dmdc.osd.mil/personnel/MILITARY/
rg1004.pdf. Numerous statutory provisions provide that such
officers may not be removed from office except for cause (at least
in peacetime). See,
e.g., 10 U. S. C. §§629–632, 804,
1161, 1181–1185. And such officers can generally be so removed only
by
other commissioned officers, see §§612, 825, 1187, who
themselves enjoy the same career protections.
The majority might simply say that the
military is different. But it will have to explain
how it
is different. It is difficult to see why the Constitution would
provide a President who is the military’s “commander-in-chief,”
Art. II, §2, cl. 1, with
less authority to
remove “inferior” military “officers” than to remove comparable
civil officials. See Barron & Lederman, The Commander in Chief
at the Lowest Ebb—A Constitutional History, 121 Harv. L. Rev.
941, 1102–1106 (2008) (describing President’s “superintendence
prerogative” over the military). Cf.
ante, at 26–27 (not
“expressing any view whatever” as to whether military officers’
authority is now unconstitutional).
The majority sees “no reason … to address
whether” any of “these positions,” “or any others,” might be deemed
unconstitutional under its new rule, preferring instead to leave
these matters for a future case.
Ante, at 27. But what is
to happen in the meantime? Is the work of all these various
officials to be put on hold while the courts of appeals determine
whether today’s ruling applies to them? Will Congress have to act
to remove the “for cause” provisions? Cf.
Buckley, 424 U.
S., at 142–143. Can the President then restore them via executive
order? And, still, what about the military? A clearer line would
help avoid these practical difficulties.
The majority asserts that its opinion will not
affect the Government’s ability to function while these many
questions are litigated in the lower courts because the Court’s
holding concerns only “the conditions under which th[e]se officers
might some day be removed.”
Ante, at 27. But this case was
not brought by federal officials challenging their potential
removal. It was brought by private individuals who were
subject
to regulation “ ‘
here-and-now’ ”
and who “object to the” very “existence” of the regulators
themselves.
Ante, at 33, 8 (emphasis added). And those
private individuals have prevailed. Thus, any person similarly
regulated by a federal official who is potentially subject to the
Court’s amorphous new rule will be able to bring an “implied
private right of action directly under the Constitution” “seeking …
a declaratory judgment that” the official’s actions are
“unconstitutional and an injunction preventing the” official “from
exercising [his] powers.”
Ante, at 10, n. 2, 6; cf.,
e.g., Legal Services Corporation v.
Velazquez,
531 U. S. 533,
546 (2001) (affirming grant of preliminary injunction to cure,
inter alia, a separation-of-powers violation);
Youngstown Sheet & Tube Co.,
343 U. S. 579 (same). Such a plaintiff
need not even first exhaust his administrative remedies.
Ante, at 7–10.
Nor is it clear that courts will always be
able to cure such a constitutional defect merely by severing an
offending removal provision. For a court’s “ability to devise
[such] a judicial remedy … often depends on how clearly” the
“background constitutional rules at issue” have been “articulated”;
severance will be unavailable “in a murky constitutional context,”
which is precisely the context that the Court’s new rule creates.
Ayotte v.
Planned Parenthood of Northern New
Eng.,
546 U. S.
320, 329, 330 (2006). Moreover, “the touchstone” of the
severability analysis “is legislative intent,”
id., at
330, and Congress has repeatedly expressed its judgment “over the
last century that it is in the best interest of the country, indeed
essential, that federal service should depend upon meritorious
performance rather than political service,”
Civil Service
Comm’n, 413 U. S., at 557; see also
Bush v.
Lucas,
462
U. S. 367, 380–388 (1983) (describing the history of
“Congressional attention to the problem of politically-motivated
removals”). And so it may well be that courts called upon to
resolve the many questions the majority’s opinion raises will not
only apply the Court’s new rule to its logical conclusion, but will
also determine that the only available remedy to certain double
for-cause problems is to invalidate entire agencies.
Thus, notwithstanding the majority’s
assertions to the contrary, the potential consequences of today’s
holding are worrying. The upshot, I believe, is a legal dilemma. To
interpret the Court’s decision as applicable only in a few
circumstances will make the rule less harmful but arbitrary. To
interpret the rule more broadly will make the rule more rational,
but destructive.
III
One last question: How can the
Court simply
assume without deciding that the SEC
Commissioners themselves are removable only “for cause?” See
ante, at 5 (“[W]e decide the case with th[e]
understanding” “that the Commissioners cannot themselves
be removed by the President except” for cause (emphasis added)).
Unless the Commissioners themselves are
in fact protected
by a “for cause” requirement, the Accounting Board statute, on the
Court’s own reasoning, is not constitutionally defective. I am not
aware of any other instance in which the Court has similarly (on
its own or through stipulation)
created a constitutional
defect in a statute and then relied on that defect to strike a
statute down as unconstitutional. Cf.
Alabama v.
North
Carolina, 560 U. S. ___, ___ (2010) (opinion for the Court by
Scalia, J.) (slip op., at 20) (“We do not—we cannot—add provisions
to a federal statute … especially [if] … separation-of-powers
concerns … would [thereby] arise”);
The Anaconda v.
American Sugar Refining Co.,
322 U. S. 42, 46 (1944)
(describing parties’ inability to “stipulate away” what “the
legislation declares”).
It is certainly not obvious that
the SEC Commissioners enjoy “for cause” protection. Unlike the
statutes establishing the 48 federal agencies listed in Appendix A,
infra, the statue that established the Commission says
nothing about removal. It
is silent on the
question. As far as its text is concerned, the President’s
authority to remove the Commissioners is no different from his
authority to remove the Secretary of State or the Attorney General.
See
Shurtleff, 189 U. S., at 315 (“To take away th[e]
power of removal … would require very clear and explicit language.
It should not be held to be taken away by mere inference or
implication”); see also Memorandum from David J. Barron, Acting
Assistant Attorney General, Office of Legal Counsel, to the
Principal Deputy Counsel to the President: Removability of the
Federal Coordinator for Alaska Natural Gas Transportation Projects,
p. 2 (Oct. 23, 2009), online at
http://justice.gov/olc/2009/gas-transport- project.pdf (“[Where]
Congress did not explicitly provide tenure protection … the
President, consistent with … settled principles, may remove …
without cause”); The Constitutional Separation of Powers Between
the President and Congress, 20 Op. Legal Counsel 124, 170 (1996)
(same).
Nor is the absence of a “for cause” provision
in the statute that created the Commission likely to have been
inadvertent. Congress created the Commission during the 9-year
period
after this Court decided
Myers, and
thereby cast serious doubt on the constitutionality of all “for
cause” removal provisions, but
before it decided
Humphrey’s Executor, which removed any doubt in respect to
the constitutionality of making commissioners of independent
agencies removable only for cause. In other words, Congress created
the SEC at a time when, under this Court’s precedents, it would
have been
unconstitutional to make the Commissioners
removable only for cause. And, during that 9-year period, Congress
created at least three major federal agencies without making
any of their officers removable for cause. See 48 Stat.
885, 15 U. S. C. §78d (Securities and Exchange Commission), 48
Stat. 1066, 47 U. S. C. §154 (Federal Communications
Commission); 46 Stat. 797 (Federal Power Commission) (reformed
post-
Humphrey’s Executor as the Federal Energy Regulatory
Commission
with “for cause” protection, 91 Stat. 582, 42
U. S. C. §7171). By way of contrast, only
one month
after
Humphrey’s Executor was decided, Congress returned
to its pre-
Myers practice of including such provisions in
statutes creating independent commissions. See §3, 49 Stat. 451, 29
U. S. C. §153 (establishing National Labor Relations Board
with an explicit removal limitation).
The fact that Congress did not make the SEC
Commissioners removable “for cause” does not mean it intended to
create a dependent, rather than an independent agency. Agency
independence is a function of several different factors, of which
“for cause” protection is only one. Those factors include,
inter alia, an agency’s separate (rather than
presidentially dependent) budgeting authority, its separate
litigating authority, its composition as a multimember bipartisan
board, the use of the word “independent” in its authorizing
statute, and, above all, a political environment, reflecting
tradition and function, that would impose a heavy political cost
upon any President who tried to remove a commissioner of the agency
without cause. See generally Breger & Edles 1135–1155.
The absence of a “for cause” provision is thus
not fatal to agency independence. Indeed, a “Congressional Research
Service official suggests that there are
at least 13
‘independent’ agencies without a removal provision in their
statutes.”
Id., at 1143, n. 161 (emphasis added) (citing
congressional testimony). But it does draw the majority’s rule into
further confusion. For not only are we left without a definition of
an “inferior officer,” but we are also left to guess which
department heads will be deemed by the majority to be subject to
for-cause removal notwithstanding statutes containing no such
provision. If any agency deemed “independent” will be similarly
treated, the scope of the majority’s holding is even broader still.
See Appendix D,
infra (listing agencies potentially
affected).
The Court then, by assumption, reads
into the statute books a “for cause removal” phrase that
does not appear in the relevant statute and which Congress probably
did not intend to write. And it does so in order to strike down,
not to uphold, another statute. This is not a statutory
construction that seeks to avoid a constitutional question, but its
opposite. See
Ashwander v.
TVA,
297 U. S. 288, 347
(1936) (Brandeis, J., concurring) (“It is not the habit of the
Court to decide questions of a constitutional nature unless
absolutely necessary to a decision of the case” (internal quotation
marks omitted));
NLRB v.
Catholic Bishop of
Chicago,
440 U.
S. 490, 500 (1979) (“[A]n Act of Congress ought not to be
construed to violate the Constitution if any other possible
construction remains available”).
I do not need to decide whether the
Commissioners are in fact removable only “for cause” because I
would uphold the Accounting Board’s removal provision as
constitutional regardless. But were that not so, a determination
that the silent SEC statute means no more than it says would
properly avoid the determination of unconstitutionality that the
Court now makes.
* * *
In my view the Court’s decision
is wrong—very wrong. As Parts II–A, II–B, and II–C of this opinion
make clear, if the Court were to look to the proper functional and
contextual considerations, it would find the Accounting Board
provision constitutional. As Part II–D shows, insofar as the Court
instead tries to create a bright-line rule, it fails to do so. Its
rule of decision is both imprecise and overly broad. In light of
the present imprecision, it must either narrow its rule
arbitrarily, leaving it to apply virtually alone to the Accounting
Board, or it will have to leave in place a broader rule of decision
applicable to many other “inferior officers” as well. In doing the
latter, it will undermine the President’s authority. And it will
create an obstacle, indeed pose a serious threat, to the proper
functioning of that workable Government that the Constitution seeks
to create—in provisions this Court is sworn to uphold.
With respect I dissent.
APPENDIXES
A
There are 24 stand-alone federal
agencies (
i.e., “departments”) whose heads are,
by statute, removable by the President only “for
cause.” Moreover, there are at least 24 additional offices, boards,
or bureaus situated within departments that are similarly subject,
by statute, to for-cause removal provisions. The chart
below first lists the 24 departments and then lists the 24
additional offices, boards, and bureaus. I have highlighted those
instances in which a “for-cause” office is situated within a
“for-cause” department—
i.e., instances of “double
for-cause” removal that are essentially indistinguishable from this
case (with the notable exception that the Accounting Board may
not be
statutorily subject to two layers of
for-cause removal, cf. Part III,
supra). This list does
not include instances of “double for-cause” removal that arise in
Article I courts, although such instances might also be affected by
the majority’s holding, cf.
ante, at 26, n. 10.
Compare 48 U. S. C. §§1424(a), 1614(a), with 28 U. S. C.
§§631(a), (i), and 18 U. S. C. §§23, 3602(a).
Department
Statutory Removal Provision
1
Chemical Safety Board
“Any member of the Board, including the Chairperson,
may be removed for inefficiency, neglect of duty, or malfeasance in
office.” 42 U. S. C. §7412(r)(6)(B)
2
Commission on Civil Rights
“The President may remove a member of the Commission
only for neglect of duty or malfeasance in office.” 42 U.
S. C. §1975(e)
3
Consumer Product Safety Commission
“Any member of the Commission may be removed by the
President for neglect of duty or malfeasance in office but for no
other cause.” 15 U. S. C. §2053(a)
4
Federal Energy Regulatory Commission
“Members shall hold office for a term of 5 years and
may be removed by the President only for inefficiency, neglect of
duty, or malfeasance in office.” 42 U. S. C.
§7171(b)(1)
5
Federal Labor Relations Authority
“Members of the Authority shall be appointed by the
President by and with the advice and consent of the Senate, and may
be removed by the President only upon notice and hearing and only
for inefficiency, neglect of duty, or malfeasance in office.” 5 U.
S. C. §7104(b)
6
Federal Maritime Commission
“The President may remove a Commissioner for
inefficiency, neglect of duty, or malfeasance in office.” 46 U.
S. C. §301(b)(3)
7
Federal Mine Safety and Health Review
Commission
“Any member of the Commission may be removed by the
President for inefficiency, neglect of duty, or malfeasance in
office.” 30 U. S. C. §823(b)(1)
8
Federal Reserve Board
“[E]ach member shall hold office for a term of
fourteen years from the expiration of the term of his predecessor,
unless sooner removed for cause by the President.” 12 U. S. C.
§242
9
Federal Trade Commission
“Any commissioner may be removed by the President
for inefficiency, neglect of duty, or malfeasance in office.” 15 U.
S. C. §41
10
Independent Medicare Advisory Board
“Any appointed member may be removed by the
President for neglect of duty or malfeasance in office, but for no
other cause.” Pub. L. 111–148, §3403.
11
Merit Systems Protection Board
“Any member may be removed by the President only for
inefficiency, neglect of duty, or malfeasance in office.” 5 U.
S. C. §1202(d)
12
National Labor Relations Board
“Any member of the Board may be removed by the
President, upon notice and hearing, for neglect of duty or
malfeasance in office, but for no other cause.” 29 U. S. C.
§153(a)
13
National Mediation Board
“A member of the Board may be removed by the
President for inefficiency, neglect of duty, malfeasance in office,
or ineligibility, but for no other cause.” 45 U. S. C.
§154
14
National Transportation Safety Board
“The President may remove a member for inefficiency,
neglect of duty, or malfeasance in office.” 49 U. S. C.
§1111(c)
15
Nuclear Regulatory Commission
“Any member of the Commission may be removed by the
President for inefficiency, neglect of duty, or malfeasance in
office.” 42 U. S. C. §5841(e)
16
Occupational Safety and Health Review
Commission
“A member of the Commission may be removed by the
President for inefficiency, neglect of duty, or malfeasance in
office.” 29 U. S. C. §661(b)
17
Office of Special Counsel
“The Special Counsel may be removed by the President
only for inefficiency, neglect of duty, or malfeasance in office.”
5 U. S. C. §1211(b)
18
Postal Regulatory Commission
“The Commissioners shall be chosen solely on the
basis of their technical qualifications, professional standing, and
demonstrated expertise in economics, accounting, law, or public
administration, and may be removed by the President only for
cause.” 39 U. S. C. §502(a)
19
Postal Service*
“The exercise of the power of the
Postal Service shall be directed by a Board of Governors composed
of 11 members … . The Governors shall not be representatives
of specific interests using the Postal Service, and may be removed
only for cause.” 39 U. S. C. §202
20
Social Security
Administration
“[The] Commissioner may be removed
from office only pursuant to a finding by the President of neglect
of duty or malfeasance in office.” 42 U. S. C.
§902(a)(3)
21
United States Institute of
Peace*
“A member of the
Board appointed under subsection (b)(5) … may be removed by the
President . . . in consultation with the Board, for conviction of a
felony, malfeasance in office, persistent neglect of duties, or
inability to discharge duties.” 22 U. S. C.
§4605(f)
22
United States
Sentencing
Commission
“The Chair, Vice
Chairs, and members of the Commission shall be subject to removal
from the Commission by the President only for neglect of duty or
malfeasance in office or for other good cause shown.” 28 U.
S. C. §991(a)
23
Legal Services
Corporation*
“A
member of the Board may be removed by a vote of seven members for
malfeasance in office or for persistent neglect of or inability to
discharge duties, or for offenses involving moral turpitude, and
for no other cause.” 42 U. S. C.
§2996c(e)
24
State Justice Institute*
“A member of the Board may be removed by a vote
of seven members for malfeasance in office, persistent neglect of,
or inability to discharge duties, or for any offense involving
moral turpitude, but for no other cause.” 42 U. S. C.
§10703(h)
Office Within
Department
Statutory Removal
Provision
25
Department of
Agriculture:
National Appeals
Division
“The Division shall be headed by a
Director, appointed by the Secretary from among persons who have
substantial experience in practicing administrative law. . . . The
Director shall not be subject to removal during the term of office,
except for cause established in accordance with law.” 7 U.
S. C.
§§6992(b)(1)–(2)
26
Department of
Agriculture:
Regional Fishery Management
Councils
“The Secretary may remove for cause
any member of a Council required to be appointed by the Secretary .
. . .” 16 U. S. C.
§1852(b)(6)
27
Department of
Commerce:
Corporation for Travel
Promotion†
“The Secretary of
Commerce may remove any member of the board [of the Corporation]
for good cause.” 124 Stat.
57
28
Department of
Defense:
Office of Navy
Reserve
“The Chief of Navy
Reserve is appointed for a term determined by the Chief of Naval
Operations, normally four years, but may be removed for cause at
any time.” 10 U. S. C.
§5143(c)(1)
29
Department of
Defense:
Office of Marine
Forces Reserve
“The Commander,
Marine Forces Reserve, is appointed for a term determined by the
Commandant of the Marine Corps, normally four years, but may be
removed for cause at any time.” 10 U. S. C.
§5144(c)(1)
30
Department of
Defense:
Office of Air Force
Reserve
“The Chief of Air
Force Reserve is appointed for a period of four years, but may be
removed for cause at any time.” 10 U. S. C.
§8038(c)(1)
31
Department of
Defense:
Joint Staff of the
National Guard
Bureau
“[A]n officer
appointed as Director of the Joint Staff of the National Guard
Bureau serves for a term of four years, but may be removed from
office at any time for cause.” 10 U. S. C.
§10505(a)(3)(A)
Office
Within
Department
Statutory Removal
Provision
32
Department of
Defense:
Board
of
Actuaries
“A
member of the Board may be removed by the Secretary of Defense only
for misconduct or failure to perform functions vested in the
Board.” 10 U. S. C. A. §183(b)(3)
(2010)
33
Department of
Defense:
Medicare-Eligible Retiree Health Care Board of
Actuaries
“A
member of the Board may be removed by the Secretary of Defense for
misconduct or failure to perform functions vested in the Board, and
for no other reason.” 10 U. S. C.
§1114(a)(2)(A)
34
Department of
Education:
Performance-Based Organization for the Delivery of Federal
Student Financial
Assistance
“The
Chief Operating Officer may be removed by … the President; or … the
Secretary, for misconduct or failure to meet performance goals set
forth in the performance agreement in paragraph (4).” 20 U.
S. C.
§1018(d)(3)
35
Federal Labor Relations
Authority:
Foreign
Service Labor Relations Board (see supra, row
5)
“The
Chairperson [of the FLRA, who also chairs the Board] may remove any
other Board member … for corruption, neglect of duty, malfeasance,
or demonstrated incapacity to perform his or her functions
… .” 22 U. S. C.
§4106(e)
36
General Services
Administration:
Civilian Board of Contract Appeals (see supra, row
11)
“Members of the Civilian Board shall be subject to removal in
the same manner as administrative law judges, [i.e., ‘only
for good cause established and determined by the Merit Systems
Protection Board.’] ” 41 U. S. C. §438(b)(2)
(emphasis
added)
37
Department of Health and Human
Services:
National Advisory Council on National Health Service
Corps
“No
member shall be removed, except for cause.” 42 U. S. C.
§254j(b)
38
Department of Health and Human
Services:
Medicare & Medicaid Office of the Chief
Actuary
“The
Chief Actuary may be removed only for cause.” 42 U. S. C.
§1317(b)(1)
39
Department of Homeland
Security:
Office
of the Coast Guard
Reserve
“An
officer may be removed from the position of Director for cause at
any time.” 14 U. S. C.
§53(c)(1)
40
Department of the
Interior:
National Indian Gaming
Commission
“A
Commissioner may only be removed from office before the expiration
of the term of office of the member by the President (or, in the
case of associate member, by the Secretary) for neglect of duty, or
malfeasance in office, or for other good cause shown.” 25 U.
S. C.
§2704(b)(6)
41
Library of
Congress:
Copyright Royalty
Judgeships
“The
Librarian of Congress may sanction or remove a Copyright Royalty
Judge for violation of the standards of conduct adopted under
subsection (h), misconduct, neglect of duty, or any disqualifying
physical or mental disability.” 17 U. S. C.
§802(i)
42
Postal
Service:
Inspector General (see supra, row
19)
“The
Inspector General may at any time be removed upon the written
concurrence of at least 7 Governors, but only for cause.” 39 U.
S. C.
§202(e)(3)
43
Securities and Exchange
Commission:
Public
Company Accounting Oversight
Board
“A
member of the Board may be removed by the Commission from office …
for good cause shown . . . .” 15 U. S. C.
§7211(e)(6)
44
Social Security
Administration:
Office
of the Chief Actuary (see supra, row
20)
“The
Chief Actuary may be removed only for cause.” 42 U. S. C.
§902(c)(1)
45
Department of
State:
Foreign
Service Grievance
Board
“The
Secretary of State may, upon written notice, remove a Board member
for corruption, neglect of duty, malfeasance, or demonstrated
incapacity to perform his or her functions, established at a
hearing (unless the right to a hearing is waived in writing by the
Board member).” 22 U. S. C.
§4135(d)
46
Department of
Transportation:
Air
Traffic Services
Committee
“Any
member of the Committee may be removed for cause by the Secretary.”
49 U. S. C.
§106(p)(6)(G)
47
Department of
Transportation:
Surface
Transportation
Board
“The
President may remove a member for inefficiency, neglect of duty, or
malfeasance in office.” 49 U. S. C.
§701(b)(3)
48
Department of Veterans
Affairs:
Board
of Veterans
Appeals
“The
Chairman may be removed by the President for misconduct,
inefficiency, neglect of duty, or engaging in the practice of law
or for physical or mental disability which, in the opinion of the
President, prevents the proper execution of the Chairman’s duties.
The Chairman may not be removed from office by the President on any
other grounds.” 38 U. S. C.
§7101(b)(2)
B
The table that follows lists the
573 career appointees in the Senior Executive Service (SES) who
constitute the upper level management of the independent agencies
listed in Appendix A, supra. Each of these officials is,
under any definition—including the Court’s—an inferior officer, and
is, by statute, subject to two layers of for-cause removal. See
supra, at
25–30.
The data are organized into three
columns: The first column lists the “office” to which the
corresponding official is assigned within the respective agency
and, where available, the provision of law establishing that
office. Cf. supra, at 27 (citing Mouat, 124 U.
S., at 307–308; Germaine, 99 U. S., at 510). The second
and third columns respectively list the career appointees in each
agency who occupy “general” and “reserved” SES positions. A
“general” position is one that could be filled by either a career
appointee or by a noncareer appointee were the current (career)
occupant to be replaced. See 5 U. S. C. §3132(b)(1). Because
90% of all SES positions must be filled by career
appointees, §3134(b), “most General positions are filled by career
appointees,” Plum Book 200. A “reserved” position, by contrast,
must always be filled by a career appointee. §3132(b)(1). The data
for the “general position” column come from the 2008 Plum Book, a
quadrennial manual prepared by the congressional committees
responsible for government oversight. See supra, at 29.
Positions listed as vacant in that source are not included. The
data for the “reserved position” column come from a list
periodically published by the Office of Personnel Management and
last published in 2006. See 72 Fed. Reg. 16154–16251 (2007);
§3132(b)(4). Given the Federal Government’s size and the temporal
lag between the underlying sources, the list that follows is
intended to be illustrative, not
exact.
Nuclear Regulatory Commission
(192)
Office
General
Position
Reserved
Position
Office of the Executive Director for Operations 10
CFR §1.32
(2009)
Executive
Director
Director of Nuclear Security
Projects
Deputy Executive Director for Reactor and
Preparedness
Programs
Deputy Executive Director for Materials, Waste,
Research, State, Tribal, and Compliance,
Programs
Deputy Executive Director for Corporate
Management
Assistant for
Operations
Director for Strategic Organizational Planning and
Optimization
Office of the Secretary 10 CFR
§1.25
Secretary
Office of the Chief Financial Officer 10 CFR
§1.31
Chief Financial
Officer
Director, Division of Planning, Budget and
Analysis
Director, Division of Financial
Services
Deputy Chief Financial
Officer
Director, Division of Financial
Management
Office of the Inspector General 10 CFR
§1.12
Deputy Inspector
General
Assistant Inspector General for
Audits
Assistant Inspector General for
Investigations
Office of the General Counsel 10 CFR
§1.23
General
Counsel
Director, Commission Adjudicatory Technical
Support
Deputy General
Counsel
Deputy Assistant General Counsel for Rulemaking and
Fuel
Cycle
Solicitor
Deputy Assistant General Counsel for
Administration
Associate General Counsel for Licensing and
Regulation
Assistant General Counsel for Operating
Reactors
Assistant General Counsel for Rulemaking and Fuel
Cycle
Office
General
Position
Reserved
Position
Office of the General
Counsel
(Continued)
Assistant General Counsel for Legal Counsel,
Legislation, and Special
Projects
Associate General Counsel for Hearings,
Enforcement, and
Administration
Assistant General Counsel for New Reactor
Programs
Assistant General Counsel for Operating
Reactors
Assistant General Counsel for the High-Level Waste
Repository
Programs
Office of Commission Appellate Adjudication 10 CFR
§1.24
Director
Office of Congressional Affairs 10 CFR
§1.27
Director
Office of Public Affairs 10 CFR
§1.28
Director
Office of International Programs 10 CFR
§1.29
Director
Deputy
Director
Office of Investigations 10 CFR
§1.36
Director
Deputy
Director
Office of Enforcement 10 CFR
§1.33
Director
Office of Administration 10 CFR
§1.34
Director
Deputy
Director
Director, Division of
Contracts
Director, Division of Administrative
Services
Director, Division of Facilities and
Security
Office of Human Resources 10 CFR
§1.39
Director
Deputy
Director
Associate Director for Training and
Development
Office
General
Position
Reserved
Position
Office of Information Services 10 CFR
§1.35
Director
Deputy
Director
Director, Information and Records Services
Division
Director, High-Level Waste Business and Program
Integration
Staff
Director, Business Process Improvement and
Applications
Director, Program Management, Policy Development
and Analysis
Staff
Director, Infrastructure and Computer
Operations
Office of Nuclear Security and Incident Response 10
CFR
§1.46
Director
Deputy Director
(2)
Director, Program Management, Policy
Development
(Division of Security
Policy)
Director
Deputy
Director
Project Director, Nuclear Security
Policy
Project Director, Nuclear Security
Operations
Deputy Director for Material
Security
Deputy Director for Reactor Security and
Rulemaking
(Division of Preparedness and
Response)
Director
Deputy Director
(2)
Deputy Director for Emergency
Preparedness
(Division of Security
Operations)
Director
Deputy Director for Security
Oversight
Deputy Director for Security
Programs
Office of Nuclear Reactor Regulation 10 CFR
§1.43
Director
Director, Program Management,
etc.
Deputy
Director
Deputy Director, Program Management,
etc.
Office
General
Position
Reserved
Position
Office of Nuclear Reactor
Regulation
(Continued)
Associate Director, Operating Reactor Oversight and
Licensing
Associate Director, Risk Assessment and New
Projects
Associate Director, Engineering and Safety
Systems
(Division of Safety
Systems)
Director
Deputy Director
(2)
(Division of License
Renewal)
Director
Deputy
Director
(Division of Operating Reactor
Licensing)
Director
Deputy Director
(2)
(Division of Inspection and Regional
Support)
Director
Deputy Director
(2)
(Division of New Reactor
Licensing)
Director
Deputy Director
(2)
(Division of
Engineering)
Director
Deputy Director
(3)
(Division of Risk
Assessment)
Director
Deputy Director
(2)
(Division of Policy and
Rulemaking)
Director
Deputy Director
(2)
(Division of Component
Integrity)
Director
Deputy
Director
Office of New Reactors 10 CFR
§1.44
Director
Assistant to the Director for Transition
Management
Office of Nuclear Material Safety and Safeguards 10
CFR
§1.42
Director
Director, Program Planning,
etc.
Deputy
Director
(Division of Fuel Cycle Safety and
Safeguards)
Chief, Special Projects
Branch
Chief, Safety and Safeguards Support
Branch
Chief, Fuel Cycle Facilities
Branch
Office
General
Position
Reserved
Position
(Division of Industrial and Medical Nuclear
Safety)
Chief, Rulemaking and Guidance
Branch
Chief, Materials Safety and Inspection
Branch
(Division of High Level Waste Repository
Safety)
Deputy Director, Licensing and
Inspection
Deputy Director, Technical Review Directorate
(2)
(Spent Fuel Project
Office)
Deputy Director, Technical Review
Directorate
Deputy Director, Licensing and
Inspection
Office of Federal and State Materials and
Environmental Management Programs 10 CFR
§1.41
Director
Deputy
Director
Director, Program Planning,
etc.
(Division of Waste Management and Environmental
Protection)
Director
Deputy Director, Decommissioning
(2)
Deputy Director, Environmental Protection
(2)
Chief, Environmental and Performance
Assessment
(Division of Materials Safety and State
Agreements)
Director
Deputy
Director
(Division of Intergovernmental Liaison and
Rulemaking)
Director
Deputy
Director
Office of Nuclear Regulatory Research 10 CFR
§1.45
Director
Director, Program Management,
etc.
Deputy
Director
Deputy Director for Materials
Engineering
Regional Administrator
(4)
Deputy Director for Engineering Research
Applications
Deputy Director for New Reactors and Computational
Analysis
Deputy Director for Probabilistic Risk and
Applications
Office
General
Position
Reserved
Position
Office of Nuclear Regulatory Research
(Continued)
Deputy Director for Operating Experience and Risk
Analysis
Deputy Director for Radiation Protection,
Environmental Risk and Waste
Management
(Division of Engineering
Technology)
Chief, Generic Safety Issues
Branch
Chief, Electrical, Mechanical, and Materials
Branch
Chief, Structural and Geological Engineering
Branch
Chief, Materials Engineering
Branch
Chief, Engineering Research Applications
Branch
(Division of Systems Analysis and Regulatory
Effectiveness)
Deputy
Director
Chief, Advanced Reactors and Regulatory
Effectiveness
Chief, Safety Margins and Systems Analysis
Branch
Chief, Radiation Protection,
etc.
(Division of Risk Analysis and
Application)
Deputy
Director
Chief, Operating Experience Risk Analysis
Branch
Chief, Probabilistic Risk Analysis
Branch
(Division of Risk Assessment and Special
Projects)
Director
Assistant
Director(2)
(Division of Fuel, Engineering and Radiological
Research)
Director
Assistant
Director
Office of Small Business and Civil Rights 10 CFR
§1.37
Director
Advisory Committee on Reactor Safeguards 10 CFR
§1.13
Executive
Director
Deputy Executive
Director
Office
General
Position
Reserved
Position
Regional Offices 10 CFR
§1.47
Deputy Regional Administrator
(5)
Director, Division of Fuel Facility Inspection
(1)
Director, Division of Reactor Projects
(4)
Deputy Director, Division of Reactor Projects
(5)
Director, Division of Reactor Safety
(4)
Deputy Director, Division of Reactor Safety
(4)
Director, Division of Nuclear Materials Safety
(3)
Deputy Director, Division of Nuclear Materials
Safety
Deputy Director, Division of Radiation Safety,
etc.
Social Security Administration
(143)
Office
General
Position
Reserved
Position
Office of the Commissioner 33 Fed. Reg. 5828
(1968)
Executive Counselor to the
Commissioner
Deputy Chief of
Staff
Director for
Regulations
Senior Advisor to the Deputy
Commissioner
Senior Advisor to the
Commissioner
Office of International Programs 63 Fed. Reg. 41888
(1998)
Associate Commissioner for International
Programs
Office of Executive Operations 56 Fed. Reg. 15888
(1991)
Assistant Inspector
General
Office of the Chief Actuary 42 U. S. C. §902(c)(1)
33 Fed. Reg.
5828
Chief
Actuary
Deputy Chief Actuary,
Long-Range
Deputy Chief Actuary,
Short-Range
Office
General
Position
Reserved
Position
Office of the Chief Information Officer 33 Fed.
Reg.
5829
Deputy Chief Information
Officer
Director, Office of Information Technology Systems
Review
Office of Information Technology Investment
Management
Associate Chief Information
Officer
Office of Budget, Finance and Management 60 Fed.
Reg. 22099
(1995)
Deputy
Commissioner
Assistant Deputy
Commissioner
Office of Acquisition and Grants 60 Fed. Reg.
22099
Associate
Commissioner
Office of Budget 60 Fed. Reg.
22099
Associate
Commissioner
Deputy Associate
Commissioner
Office of Facilities Management 60 Fed. Reg.
22099
Associate
Commissioner
Deputy Associate
Commissioner
Office of Financial Policy and Operations 56 Fed.
Reg.
15888
Associate
Commissioner
Deputy Associate
Commissioner
Office of Publications and Logistics Management 60
Fed. Reg.
22099
Associate
Commissioner
Deputy Associate
Commissioner
Office of Communications 62 Fed. Reg. 9476
(1997)
Assistant Deputy
Commissioner
Press
Officer
Office of Communications Planning and Technology 63
Fed. Reg.
15476
Associate
Commissioner
Office of Public Inquiries 62 Fed. Reg.
9477
Associate
Commissioner
Office
General
Position
Reserved
Position
Office of Disability Adjudication and
Review
Deputy
Commissioner
Assistant Deputy
Commissioner
Office of Appellate Operations 53 Fed. Reg. 29778
(1988)
Executive
Director
Office of the General Counsel 65 Fed. Reg. 39218
(2000)
Deputy General
Counsel
Office of General Law 65 Fed. Reg.
39218
Associate General
Counsel
Office of Public Disclosure 67 Fed. Reg. 63186
(2002)
Executive
Director
Office of Regional Chief Counsels 65 Fed. Reg.
39219
Regional Chief Counsel
(7)
Office of Human Resources 60 Fed. Reg.
22128
Deputy
Commissioner
Assistant Deputy
Commissioner
Office of Civil Rights and Equal Opportunity 60
Fed. Reg.
22128
Associate
Commissioner
Office of Labor Management and Employee
Relations
Associate
Commissioner
Deputy Associate
Commissioner
Office of Personnel 60 Fed. Reg.
22128
Associate
Commissioner
Deputy Associate
Commissioner
Office of Training 60 Fed. Reg.
22128
Associate
Commissioner
Office of the Inspector General 42 U. S. C.
§902(e) 60 Fed. Reg.
22133
Deputy Inspector
General
Counsel to the Inspector
General
Office
General
Position
Reserved
Position
Office of Audits 60 Fed. Reg.
22133
Assistant Inspector General for
Audit
Deputy Assistant Inspector General for
Audit
Office of Investigations 60 Fed. Reg.
22133
Assistant Inspector
General
Deputy Assistant Inspector General for Field
Investigations
Deputy Assistant Inspector General for National
Investigative
Operations
Office of Legislation and Congressional Affairs 60
Fed. Reg.
22152
Senior Advisor to the Deputy
Commissioner
Office of Legislative Development 65 Fed. Reg.
10846
Associate
Commissioner
Office of Operations 60 Fed. Reg.
22107
Deputy
Commissioner
Assistant Deputy
Commissioner
Office of Automation Support 60 Fed. Reg.
22108
Associate
Commissioner
Office of Central Operations 63 Fed. Reg.
32275
Associate
Commissioner
Deputy Associate
Commissioner
Assistant Associate
Commissioner
Assistant Associate Commissioner for Management and
Operations
Support
Office of Disability Determinations 67 Fed. Reg.
69288
Associate
Commissioner
Deputy Associate
Commissioner
Office of Electronic Services 66 Fed. Reg. 29618
(2001)
Associate
Commissioner
Office of Public Service and Operations Support 59
Fed. Reg. 56511
(1994)
Associate
Commissioner
Deputy Associate
Commissioner
Office
General
Position
Reserved
Position
Office of Telephone Services 60 Fed. Reg.
22108
Associate
Commissioner
Deputy Associate
Commissioner
Office of Regional Commissioners 60 Fed. Reg.
22108
Regional Commissioners
(10)
Deputy Regional Commissioner
(10)
Assistant Regional Commissioner
(15)
Office of Retirement and Disability
Policy
Deputy
Commissioner
Assistant Deputy Commissioner
(2)
Senior Advisor for Program
Outreach
Office of Disability Programs 67 Fed. Reg.
69289
Associate
Commissioner
Office of Employment Support Programs 64 Fed. Reg.
19397
(1999)
Associate
Commissioner
Office of Income Security Programs 67 Fed. Reg.
69288
Associate
Commissioner
Deputy Associate
Commissioner
Office of Medical and Vocational
Expertise
Associate
Commissioner
Office of Research, Evaluation and Statistics 61
Fed. Reg. 35847
(1996)
Associate
Commissioner
Office of Systems 60 Fed. Reg.
22116
Deputy
Commissioner
Assistant Deputy
Commissioner
Office of Disability Systems 61 Fed. Reg.
35849
Associate
Commissioner
Deputy Associate
Commissioner
Office of Supplemental Security Income
Systems
67 Fed. Reg.
37892
Associate
Commissioner
Deputy Associate
Commissioner
Office
General
Position
Reserved
Position
Office of Earnings, Enumeration and Administrative
Systems 67 Fed. Reg.
37892
Associate
Commissioner
Deputy Associate
Commissioner
Office of Enterprise Support, Architecture and
Engineering 67 Fed. Reg.
37892
Associate
Commissioner
Deputy Associate Commissioner
(2)
Office of Retirement and Survivors Insurance
Systems 67 Fed. Reg.
37892
Associate
Commissioner
Deputy Associate
Commissioner
Office of Systems Electronic Services 66 Fed. Reg.
10766
(2001)
Associate
Commissioner
Deputy Associate
Commissioner
Office of Quality Performance 63 Fed. Reg.
32035
Deputy
Commissioner
Chief Quality
Officer
Assistant Deputy
Commissioner
Deputy Chief Quality
Officer
Deputy Associate
Commissioner
Office of Quality Data
Management
Associate
Commissioner
Office of Quality
Improvement
Associate
Commissioner
Deputy Associate
Commissioner
Office of Quality
Review
Associate
Commissioner
Deputy Associate
Commissioner
Office of the Chief Strategic Officer 67 Fed. Reg.
79950
Chief Strategic
Officer
National Labor Relations Board
(60)
Office
General
Position
Reserved
Position
Office of the Board 29 U. S. C.
§153(a)
Director, Office of Representation
Appeals and
Advice
Executive
Secretary
Solicitor
Deputy Executive
Secretary
Deputy Chief Counsel to Board Member
(4)
Inspector
General
Chief Information
Officer
Office
General
Position
Reserved
Position
Office of the General Counsel 29 U.
S. C.
§153(d)
Deputy General
Counsel
(Division of Enforcement
Litigation)
Associate General
Counsel
Deputy Associate General
Counsel
Deputy Associate General Counsel,
Appellate Court
Branch
Director, Office of
Appeals
(Division of
Advice)
Associate General
Counsel
Deputy Associate General
Counsel
(Division of
Administration)
Director
Deputy
Director
(Division of Operations
Management)
Associate General
Counsel
Deputy Associate
General
Assistant General Counsel
(6)
Regional Offices 29 U. S. C.
§153(b)
Regional Director
(33)
Federal Energy Regulatory
Commission
(44)
Office
General
Position
Reserved
Position
Office of the Executive
Director 18 CFR §1.101(e)
(2009)
Executive
Director
Deputy Executive
Director
Deputy Chief Information
Officer
Office of General Counsel
18 CFR
§1.101(f)
General
Counsel
Deputy General
Counsel
Associate General Counsel
(3)
Deputy Associate General
Counsel
(4)
Solicitor
Office of Energy Market
Regulation 18 CFR
§376.204(b)(2)(ii)
Director
Deputy
Director
Director, Tariffs and
Market Development
(3)
Director, Policy Analysis
and
Rulemaking
Director, Administration,
Case Management, and Strategic
Planning
Office
General
Position
Reserved
Position
Office of Energy Projects
18 CFR
§376.204(b)(2)(iii)
Director
Director, Dam Safety and
Inspections
Principal Deputy
Director
Deputy
Director
Director, Hydropower
Licensing
Director, Pipeline
Certificates
Director, Gas Environment
and
Engineering
Director, Hydropower
Administration and
Compliance
Office of Enforcement 18
CFR
§376.204(b)(2)(vi)
Director
Chief Accountant and
Director, Division of Financial
Regulations
Deputy
Director
Chief, Regulatory
Accounting
Branch
Director,
Investigations
Deputy Director,
Investigations
Director,
Audits
Director, Energy Market
Oversight
Office of Electric
Reliability 18 CFR
§376.204(b)(2)(iv)
Director
Deputy
Director
Director,
Compliance
Director, Logistics and
Security
Office of Administrative
Litigation
64 Fed. Reg. 51226
(1999)
68 Fed. Reg. 27056
(2003)
Director
Director, Technical
Division
Director, Legal
Division
Senior Counsel for
Litigation
Federal Trade
Commission
(31)
Office
General
Position
Reserved
Position
Office of the
Chairman 16 CFR §0.8
(2010)
Secretary
Office of the
Executive Director 16 CFR
§0.10
Executive
Director
Deputy
Executive
Director
Chief Financial
Officer
Chief
Information
Officer
Office
General
Position
Reserved
Position
Office of the
General Counsel 16 CFR
§0.11
Principal
Deputy General
Counsel
Deputy General
Counsel for Policy
Studies
Deputy General
Counsel for
Litigation
Deputy General
Counsel for Legal
Counsel
Office of
International Affairs 16 CFR
§0.20
Director
Deputy
Director
Bureau of
Competition 16 CFR
§0.16
Associate
Director
Associate
Director,
Policy
Assistant
Director, Mergers
(2)
Assistant
Director,
Compliance
Bureau of
Consumer Protection 16 CFR
§0.17
Director
Associate
Director for International
Division
Deputy Director
(2)
Associate
Director for Privacy and Identity
Protection
Associate
Director for Advertising
Practices
Associate
Director for Marketing
Practices
Associate
Director for Financial
Practices
Associate
Director for Consumer and Business
Education
Associate
Director for Planning and
Information
Associate
Director for
Enforcement
Bureau of
Economics 16 CFR
§0.18
Deputy Director
for Research and Development and
Operations
Deputy Director
for
Antitrust
Associate
Director for Consumer Protection and
Research
Office of the
Inspector General 16 CFR
§0.13
Inspector
General
Consumer Product Safety Commission
(16)
Office
General
Position
Reserved
Position
Office of the Executive Director 16 CFR §1000.18
(2010)
Deputy Executive
Director
Assistant Executive Director for Compliance and Administrative
Litigation
Chief Financial
Officer
Associate Executive Director for Field
Operations
Executive
Assistant
Office of Compliance and Field Operations 16 CFR
§1000.21
Deputy
Director
Office of Hazard Identification and Reduction 16 CFR
§1000.25
Assistant Executive
Director
Deputy Assistant Executive
Director
Associate Executive Director for Economic
Analysis
Associate Executive Director for Engineering
Sciences
Associate Executive Director for
Epidemiology
Directorate for Health
Sciences
16
CFR
§1000.27
Associate Executive
Director
Directorate for Laboratory
Sciences
16
CFR
§1000.30
Associate Executive
Director
Office of International Programs and Intergovernmental
Affairs
16
CFR
§1000.24
Director
Office of Information and Technology
Services
16
CFR
§1000.23
Assistant Executive
Director
Office of the General Counsel 16 CFR
§1000.14
General
Counsel
Federal Labor Relations Authority
(14)
Office
General
Position
Reserved
Position
Office of the Chairman 5 CFR §2411.10(a)
(2010)
Director, Human Resources, Policy and Performance
Management
Chief
Counsel
Senior
Advisor
Office
General
Position
Reserved
Position
Office of the Solicitor 5 CFR
§2417.203(a)
Solicitor
Offices of Members 5 U. S. C.
§7104(b)
Chief Counsel
(2)
Office of the Executive
Director
5 U. S. C.
§7105(d)
5 CFR
§2421.7
Executive
Director
Federal Services Impasses Panel 5 U. S. C.
§7119(c)
Executive
Director
Office of the General Counsel 5 U. S. C.
§7104(f)
Deputy General
Counsel
Regional Offices 5 U. S. C.
§7105(d)
5 CFR
§2421.6
Regional Director
(5)
National Transportation Safety Board
(14)
Office
General
Position
Reserved
Position
Office of the Managing Director 49 CFR
§800.2(c)
(2009)
Managing
Director
Associate Managing Director for Quality
Assurance
Office of the General Counsel 49 CFR
§800.2(c)
General
Counsel
Office of Administration 60 Fed. Reg.
61488
Director
Director, Bureau of Accident
Investigation
Office of Aviation Safety 49 CFR
§800.2(e)
Deputy Director, Technology and
Investment
Operations
Deputy Director, Regional
Operations
Office of Research and Engineering 49
CFR
§800.2(j)
Director
Deputy
Director
Office of Chief Financial Officer 49 U.
S. C.
§1111(h)
49 CFR
§800.28
Chief Financial
Officer
Office of Safety Recommendations and
Accomplishments 49 CFR
§800.2(k)
Director
Office
General
Position
Reserved
Position
Office of Railroad, Pipeline and
Hazardous Materials Investigations 49 CFR §§800.2(f),
(i)
Director
National Transportation Safety Board
Academy 49 U. S. C.
§1117
Director
President and Academic
Dean
Performance-Based
Organization for the Delivery of Federal Student Financial
Assistance
(13)
Office
General
Position
Reserved
Position
Office of the Chief
Operating Officer 20 U. S. C.
§§1018(d)–(e)
Deputy Chief Operating
Officer
Director, Student Aid
Awareness
Chief Financial
Officer
Chief Compliance
Officer
Director, Policy Liaison
and Implementation
Staff
Audit
Officer
Director, Financial
Management
Group
Director, Budget
Group
Deputy Chief Information
Officer
Director, Application
Development
Group
Internal Review
Officer
Director, Strategic
Planning and Reporting
Group
Senior
Adviser
Merit Systems
Protection Board
(11)
Office
General
Position
Reserved
Position
Office of the
Clerk of the Board 5 CFR
§1200.10(a)(4)
(2010)
Clerk of the
Board
Office of
Financial and Administrative Management 5 CFR
§1200.10(a)(8)
Director
Office of
Policy and Evaluation 5 CFR
§1200.10(a)(6)
Director
Office
General
Position
Reserved
Position
Office of
Information Resources Management 5 CFR
§1200.10(a)(9)
Director
Office of
Regional Operations 5 CFR
§1200.10(a)(1)
Director
Regional
Director
(6)
Office of Special Counsel
(8)
Office
General
Position
Reserved
Position
Office of Special Counsel 5 U. S. C.
§1211
Deputy Special
Counsel
Associate Special Counsel for Investigation and Prosecution
(3)
Senior Associate Special Counsel for Investigation and
Prosecution
Associate Special Counsel, Planning and
Oversight
Associate Special Counsel for Legal Counsel and
Policy.
Director of Management and
Budget
Postal Regulatory Commission
(10)*
Office
General
Position
Reserved
Position
Office of the General Counsel 39 CFR §3002.13
(2009)
General
Counsel
Assistant General
Counsel
Office of Accountability and
Compliance
Director
Assistant Director, Analysis and Pricing
Division
Assistant Director, Auditing and Costing
Division
Office of Public Affairs and Governmental Relations
39 CFR
§3002.15
Director
Office
General
Position
Reserved
Position
Office of the Secretary and Administration 48 Fed.
Reg.
13167
(1983)
Secretary and
Director
Assistant Director, Human Resources and
Infrastructure
Assistant Director, Strategic Planning,
etc.
Office of the Inspector General 39 CFR
§3002.16
Inspector
General
Federal Maritime Commission
(8)
Office
General
Position
Reserved
Position
Office of the Managing Director 46 CFR
§501.3(h)
(2010)
75 Fed. Reg.
29452
Director
Office of the Secretary 46 CFR
§501.3(c)
Secretary
Office of the General Counsel 46 CFR
§501.3(d)
Deputy General Counsel for Reports,
Opinions and
Decisions
Bureau of Certification and Licensing
46 CFR
§501.3(h)(5)
Director
Bureau of Trade Analysis 46 CFR
§501.3(h)(6)
Director
Bureau of Enforcement 46 CFR
§501.3(h)(7)
Director
Deputy
Director
Office of Administration 70 Fed. Reg.
7660
(2005)
Director
Surface Transportation
Board
(4)
Office
General
Position
Reserved
Position
Office of the Chairman 49
CFR
§1011.3
(2009)
Director of Public
Assistance, Governmental Affairs and
Compliance
Office of the General
Counsel 49 CFR
§1011.6(c)(3)
General
Counsel
Deputy General
Counsel
Office of Proceedings 49
CFR
§1011.6(h)
Director
Federal Mine
Safety and Health Review Commission
(1)
Office
General
Position
Reserved
Position
Office of the
General Counsel 29 CFR
§2706.170(c)
(2009)
General
Counsel
Chemical Safety and Hazard Investigation Board
(1)
Office
General
Position
Reserved
Position
Office of the General Counsel 40 CFR §1600.2
(b)(3)
(2009)
General
Counsel
National Mediation Board
(1)
Office
General
Position
Reserved
Position
Office of the General Counsel 29 CFR
§1209.06(e)
(2009)
General
Counsel
Commission on Civil Rights
(1)
Office
General
Position
Reserved
Position
Office of the Staff Director 42 U.
S. C.
§1975b(a)(2)(A)
Associate Deputy Staff
Director
Board of Veterans Appeals
(1)
Office
General
Position
Reserved
Position
Office of the Vice Chairman
38 U. S. C.
§7101(a)
Vice
Chairman
C
According to data provided by the Office of
Personnel Management, reprinted below, there are 1,584
administrative law judges (ALJs) in the Federal Government. Each of
these ALJs is an inferior officer and each is subject, by statute,
to two layers of for-cause removal. See supra, at 30. The
table below lists the 28 federal agencies that rely on ALJs to
adjudicate individual administrative cases. The source is available
in the Clerk of Court’s case file. See
ibid.
AGENCY
TOTAL NUMBER OF
ALJs
Commodity
Futures Trading
Commission
2
Department of
Agriculture
4
Department of
Education
1
Department of
Health and Human Services (Departmental Appeals
Board)
7
Department of
Health and Human Services (Food and Drug
Administration)
1
Department of
Health and Human Services (Office of Medicare Hearings and
Appeals)
65
Department of
Homeland Security (United States Coast
Guard)
6
Department of
Housing and Urban
Development
2
Department of
the
Interior
9
Department of
Justice (Drug Enforcement
Administration)
3
Department of
Justice (Executive Office for Immigration
Review)
1
Department of
Labor
(Office of the
Secretary)
44
Department of
Transportation
3
Environmental
Protection
Agency
4
Federal
Communications
Commission
1
Federal Energy
Regulatory
Commission
14
Federal Labor
Relations
Authority
3
Federal
Maritime
Commission
1
Federal Mine
Safety and Health Review
Commission
11
Federal Trade
Commission
1
International
Trade
Commission
6
National Labor
Relations
Board
39
National
Transportation Safety
Board
4
Occupational
Safety and Health Review
Commission
12
Office of
Financial Institution
Adjudication
1
Securities and
Exchange
Commission
4
Social Security
Administration
1,334
United States
Postal
Service
1
TOTAL
1,584
D
The table below lists 29
departments and other agencies the heads of which are not
subject to any statutory for-cause removal provision, but that do
bear certain other indicia of
independence.
The table identifies six criteria
that may suggest independence: (1) whether the agency consists of a
multi-member commission; (2) whether its members are required, by
statute, to be bipartisan (or nonpartisan); (3) whether eligibility
to serve as the agency’s head depends on statutorily defined
qualifications; (4) whether the agency has independence in
submitting budgetary and other proposals to Congress (thereby
bypassing the Office of Management and Budget); (5) whether the
agency has authority to appear in court independent of the
Department of Justice, cf. 28 U. S. C. §§516–519; and (6)
whether the agency is explicitly classified as “independent” by
statute. See generally Breger & Edles 1135–1155;
supra, at 35–36. Unless otherwise noted, all information
refers to the relevant agency’s organic statute, which is cited in
the first column. The list of agencies is
nonexhaustive.
Department or
Agency
Multi-Member
Bi-partisan
Statutory Eligibility
Criteria
OMB
Bypass
Litigation
Authority
Explicit
Statement
Securities and Exchange Commission 15 U. S. C.
§78d
Yes
Yes
Yes
12 U. S. C.
§250
Yes
15 U. S. C.
§78u
Architectural and Transportation Barriers Compliance Board 29
U. S. C.
§792
Yes
Yes
(related
experience)
Yes
Arctic Research Commission 15 U. S. C.
§4102
Yes
Yes
(related knowledge,
experience)
Department or
Agency
Multi-Member
Bi-partisan
Statutory Eligibility
Criteria
OMB
Bypass
Litigation
Authority
Explicit
Statement
Broadcasting Board of Governors 22 U. S. C.
§6203
Yes
Yes
Yes
(citizenship; related
knowledge)
Yes
Central Intelligence Agency 50 U. S. C.
§403–4
Cf.
Freytag, 501 U. S., at
887,n. 4
Commission of Fine Arts 40 U. S. C.
§9101
Yes
Yes
(related
knowledge)
Commodity Futures Trading Commission 7 U. S. C.
§2(a)(2)
Yes
Yes
Yes
(related
knowledge)
Yes
§2(a)(4)
Yes
Defense Nuclear Facilities Safety Board 42 U. S. C.
§2286
Yes
Yes
Yes
(citizenship; expert
knowledge)
Yes
Equal Employment Opportunity Commission 42 U. S. C.
§2000e–4
Yes
Yes
Yes
§2000e–5(f)
Export-Import Bank of the United States*12 U. S. C.
§635a
Yes
Yes
Yes
§635(a)(1)
Yes
Farm Credit Administration 12 U. S. C. §§2241,
2242
Yes
Yes
Yes
(citizenship)
Yes
§2244(c)
Yes
Federal Communications Commission 47 U. S. C. §§151,
154
Yes
Yes
Yes
(citizenship)
Yes
§401(b)
Federal Deposit Insurance Corporation 12 U. S. C. §§1811,
1812
Yes
Yes
Yes
(citizenship; related
experience)
Yes
§250
Yes
§1819(a)
Department or
Agency
Multi-Member
Bi-partisan
Statutory Eligibility
Criteria
OMB
Bypass
Litigation
Authority
Explicit
Statement
Federal Election Commission 2 U. S. C.
§437c
Yes
Yes
Yes
(general)
Yes
§437d(d)
Yes
§437d
(a)(6)
Federal Housing Finance Agency 12 U. S. C. A. §4511
(Supp.
2010)
Yes
§250
Yes
Federal Retirement Thrift Investment Board 5 U. S. C.
§8472
Yes
Cf.
§8472(b)(2)
Yes
(related
knowledge)
International Trade Commission 19 U. S. C.
§1330
Yes
Yes
Yes
(citizenship; expert
knowledge)
Yes
§2232
Yes
§1333(g)
Yes
Marine Mammal Commission 16 U. S. C.
§1401
Yes
Yes
(related
knowledge)
Millennium Challenge Corporation†22 U. S. C.
§7703
Yes
Cf.
§7703(c)
(3)(B)
Yes
(related
experience)
National Credit Union Administration 12 U. S. C.
§1752a
Yes
Yes
Yes
(related
experience)
Yes
§250
Yes
National Archives and Records Administration 44 U. S. C.
§§2102,
2103
Yes
Yes
(related
knowledge)
Yes
National Council on Disability 29 U. S. C.
§780
Yes
Yes
(related
experience)
National Labor-Management Panel 29 U. S. C.
§175
Yes
Yes
(related
knowledge)
Department or
Agency
Multi-Member
Bi-partisan
Statutory Eligibility
Criteria
OMB
Bypass
Litigation
Authority
Explicit
Statement
National Science Foundation 42 U. S. C. §§1861, 1863,
1864
Yes
Yes
(related
expertise)
Yes
Peace Corps 22 U. S. C.
§2501–1
Yes
Pension Benefit Guaranty Corporation‡29 U. S. C.
§1302
Yes
Yes
Railroad Retirement Board 45 U. S. C.
§231f
Yes
Yes
Yes
* See
Lebron v. National Railroad Passenger
Corporation, 513 U. S. 374
(1995).
†See Lebron,
supra.
* The officers in this agency are part of the “excepted
service,” but enjoy tenure protection similar to that enjoyed by
career SES appointees. See 5 U. S. C. §2302(a)(2)(B); Plum
Book, p. v (distinguishing “excepted service” from “Schedule C”);
id., at 202 (describing schedule C
positions).
* See Lebron, 513 U. S.
374.
† See Lebron,
supra.
‡ See Lebron,
supra.
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