Constitution of the United States/Art. II/Sec. 2/Clause 2 Advice and Consent
Article II Executive Branch
Section 2 Powers
Clause 2 Advice and Consent
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| He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments. |
Treaty-Making Power[edit | edit source]
Overview of President's Treaty-Making Power[edit | edit source]
In the Treaty Clause, the Constitution returns to the realm of foreign affairs and vests the power to make treaties in the national government. Earlier in the Constitution, Article I prohibits the states from concluding treaties and limits the states' role in other forms of international relations.[1] Article I also assigns several foreign affairs-related powers to the Legislative Branch, including powers to regulate commerce with foreign nations, define and punish offenses against the Law of Nations and on the high seas, and regulate many aspects of the military.[2] In Article II's Treaty Clause, the Constitution, for the first time, addresses international affairs from the vantage of the President's powers. The clause vests the President, acting with the advice and consent of the Senate, with the authority to make treaties for the United States.
Treaties--which the Supreme Court traditionally defines as pacts among sovereign countries[3]--have been tools of international relations since antiquity.[4] After the United States won its independence from Great Britain, many Americans viewed the Articles of Confederation as a form of a treaty among the individual states of the union.[5] But the Framers criticized how the Articles of Confederation addressed the new union's treaty obligations to foreign countries.[6] The Articles lacked a mechanism to ensure individual states complied with the United States' international obligations, particularly its obligations to England under the 1783 Treaty of Peace that ended the Revolutionary War.[7] When drafting the Constitution, the Framers sought to remedy this problem by including treaties among the sources of the "supreme Law of the Land" in the Supremacy Clause.[8] Because of this change, treaties occupy a unique place in the constitutional system: they can operate simultaneously as domestic law of the United States and as tools of foreign policy in the form of pacts between nations.[9]
Elements of the treaty-making process may vary depending on the treaty, but the standard process generally operates as follows:[10] a member of the Executive Branch negotiates the terms of a treaty, and the President or another Executive Branch official signs the completed draft when negotiations conclude.[11] Next, the President submits the treaty to the Senate.[12] If "two thirds of the Senators present" pass a resolution of advice and consent, the process shifts back to the Executive Branch.[13] At this stage, the President decides whether to make the final decision to enter the treaty on behalf of the United States.[14] It is thus the President, and not the Senate, who has final responsibility for completing the treaty-making process.[15] However, the President has no obligation to ratify a Senate-approved treaty, and, in some cases, the President has declined to do so.[16]
Although many important events in U.S. foreign relations have culminated in treaties,[17] the United States does not conclude all agreements with foreign nations through the process outlined in the Treaty Clause. The President regularly enters into executive agreements, which do not receive the Senate's advice and consent, and "political commitments" and other nonlegal pacts that are not intended to be binding.[18] Since the turn of the twentieth century, Presidents have increasingly used alternatives to treaties,[19] which are examined in the discussion of the President's inherent power over foreign affairs.[20] The following essay focuses on treaties in the constitutional sense, meaning international agreements[21] that the President concludes after receiving the Senate's advice and consent through the process defined in the Treaty Clause.[22]
Historical Background on Treaty-Making Power[edit | edit source]
Jurists, courts, and legal analysts have long viewed a country's capacity to enter into international pacts as an essential element of national sovereignty.[23] Under the British system of treaty-making, the power to conclude and ratify treaties falls within the prerogative of the Crown.[24] After the United States achieved its independence from Great Britain, the treaty-making power was transferred to the newly established Congress under the Articles of Confederation.[25] But the United States soon faced practical difficulties in attempting to negotiate treaties through a large legislative body.[26] And even when the national government was able to conclude treaties, the new nation often found itself unable to perform its treaty obligations without the cooperation of the state governments.[27]
By the time of the Constitutional Convention, the delegates had largely come to agree that the national government required a stronger power to enforce treaties throughout the United States, but there were many differences of opinion as to where the newly enhanced treaty power should reside.[28] In August 1787, the Committee of Detail proposed an early draft of the Constitution that would have provided the Senate alone with the power to make treaties.[29] But the delegates raised widespread objections to the provision.[30] Some delegates proposed that treaty-making include a role for the President or be granted to the President exclusively.[31] Others argued that both chambers of Congress should be included in the process.[32] Ultimately, the delegates decided that the Executive Branch was best equipped to act with the confidentiality and efficiency necessary for treaty negotiations.[33] In the Federalist No. 64, John Jay expanded on this rationale, arguing that individuals with useful information in treaty negotiations would "rely on the secrecy of the President, but . . . would not confide in that of the Senate, and still less in that of a large popular Assembly."[34]
While the delegates to the Constitutional Convention concluded that the President should play a role in treaty-making, they also decided that no single component of the government should have the power to bind the United States to a treaty.[35] Because of treaties' dual nature as tools of foreign policy and part of the law of the land, the Federalist Papers describe treaty-making as a "peculiar" combination of two functions that did not fit neatly into the founding era understanding of separation of powers.[36] In the Federalist Papers, Alexander Hamilton and John Jay argued that treaty-making contains elements of executive power because it involves diplomacy and the management of foreign relations.[37] Hamilton and Jay also believed treaty-making invokes the legislative power because treaties can have the force of domestic law.[38] As Hamilton summarized in the Federalist No. 75, the power to make treaties belongs "neither to the legislative nor to the executive."[39] For that reason, the delegates to the Constitutional Convention saw fit to divide this dual natured power between dual branches.[40]
The delegates chose to include the Senate in the treaty-making process rather than the House of Representatives because they believed the House would be too large and that its membership would change too often to act with the secrecy and speed necessary for treaty-making.[41] The delegates also believed the Senate would represent and protect the interests of the states,[42] which the Constitution denies the power to make treaties.[43]
The delegates viewed the requirement that a supermajority of two thirds of Senators present provide their advice and consent as a method to prevent the federal government from making treaties that would promote regional interests or discriminate against a minority of states.[44] In particular, the Southern states were concerned that the federal government would give Spain navigation rights on the Mississippi River, which were essential to the Southern economy, in exchange for trade concessions that would benefit the Northern economy.[45] And the Northern states feared they could lose access to fisheries in Newfoundland through a treaty.[46] The Treaty Clause's supermajority requirement--one of several in the Constitution[47]--was designed to alleviate these concerns by allowing a minority of states, through their representatives in the Senate, to block treaties that could disproportionately disadvantage segments of the nation.[48]
The exact number of Senators required to approve a treaty under the Treaty Clause differs from its predecessor provision in the Articles of Confederation. Whereas the Articles of Confederation required nine of thirteen states to approve all treaties, the Framers deliberately changed the advice and consent threshold to "two thirds of the Senators present[.]"[49] Hamilton explained in the Federalist No. 75 that the change from a fixed number to a percentage would account for the possibility that new states would join the union.[50] Hamilton also argued that it would limit individual Senators' ability to block a treaty simply by declining to appear in the Senate for a vote.[51] And whereas each state voted as a unit under the Articles, the Treaty Clause permits Senators to vote individually, creating the possibility that one state's Senator could vote for a treaty and the other against it.[52]
Many scholars have concluded that the Framers intended "advice" and "consent" to be separate aspects of the treaty-making process, although there is still some debate on the issue.[53] According to the prevailing interpretation, the "advice" element required the President to consult with the Senate during treaty negotiations before seeking the Senate's final "consent."[54] President George Washington appears to have understood that the Senate had such a consultative role,[55] but he and other early Presidents soon declined to seek the Senate's input during the negotiation process.[56] In modern treaty-making practice, the Executive Branch generally is responsible for negotiations, and the Supreme Court stated in dicta that the President's power over treaty negotiations is exclusive.[57]
Although Presidents since Washington have not formally consulted with the Senate as a body, the Senate maintains an aspect of its "advice" function through its conditional consent authority.[58] In considering when to provide its advice and consent to a treaty, the Senate may condition its approval on reservations,[59] declarations,[60] understandings,[61] and provisos[62] concerning the treaty's application.[63] Under established U.S. practice, the President cannot ratify a treaty unless the President accepts the Senate's conditions.[64] If accepted by the President, these conditions may modify or define U.S. rights and obligations under the treaty.[65] The Senate also may propose to amend the text of the treaty itself, after which other nations that are parties to the treaty must consent to the changes for them to take effect.[66]
Scope of Treaty-Making Power[edit | edit source]
The Articles of Confederation limited the scope of the treaty power by carving out two acts that the United States could not take in a treaty: limiting the states' power to impose "imposts on duties on foreigners" and "prohibiting the exportation or importation of any species of goods or commodities whatsoever[.]"[67] The Constitution's Treaty Clause, by contrast, contains no such restrictions.[68] During the Constitutional Convention and the ratification debates, some delegates expressed concern that the treaty power was too broad and subject to abuse.[69] But James Madison and others defended the structure of the treaty power, arguing that it was not possible to enumerate all circumstances in which the government could misuse the treaty power,[70] and that other checks and balances would provide appropriate limitations.[71] In the end, the Framers did not include express limitations in the Treaty Clause on the types of subjects that may be addressed in a treaty.[72]
Despite the absence of subject matter limitations in the Treaty Clause's text, there have been suggestions since the founding era that the treaty-making power is implicitly limited to matters that traditionally have been the subject of intercourse between sovereign nations.[73] The status and scope of such a limitation, however, remains unclear. In several cases from the turn of the nineteenth century, the Supreme Court stated that the treaty power is not limited to a set of enumerated subjects in the way that Congress's legislative powers are so constrained.[74] Yet, in those same cases, the Court suggested that the treaty power might only extend to topics that "properly pertain" to foreign relations[75] or are the "proper subjects"[76] of negotiations between the United States and foreign nations.
Some jurists and commentators assert that the only proper subjects for treaties under the Constitution are "matters of international concern."[77] Under this view, treaties must relate to "external concerns," as distinguished from "purely internal" subjects.[78] In 2014, three Supreme Court Justices joined a concurring opinion arguing that the treaty power "can be used to arrange intercourse with other nations, but not to regulate purely domestic affairs."[79] But the Court has not ruled on the issue, and there is no consensus on whether the Constitution contains such a limitation.[80] Nor has the Supreme Court defined what, if any, matters are insufficiently international in nature to be an improper subject for a treaty.
To the extent there once was a common understanding of the line between internal and external matters, changes in international treaty practice have complicated this distinction.[81] Early U.S. treaties often were bilateral and addressed matters such as relations with Indian tribes,[82] military alliances, international trade, and military neutrality.[83] But treaties have expanded greatly in number and in the scope of their subject matter since World War II.[84] Treaties often now take the form of multilateral instruments that address matters that were not common subjects of international intercourse during the founding era, such as environmental protection and human rights.[85] Scholars actively debate whether the Constitution limits the scope of modern treaties and multilateral instruments to "international" matters.[86]
Self-Executing and Non-Self-Executing Treaties[edit | edit source]
The Supremacy Clause of the Constitution, Article VI, Clause 2, states that treaties concluded in accordance with constitutional requirements have the status of the "supreme Law of the Land[.]"[87] The Founders included treaties in the Supremacy Clause in direct response to one of the major weaknesses of the Articles of Confederation: the national government's inability to enforce the United States' treaty obligations.[88] Although the Articles of Confederation gave exclusive treaty-making power to Congress,[89] the United States depended on state legislatures to enact laws necessary to ensure compliance with the Nation's treaty commitments.[90] When states ignored or violated the United States' obligations--most famously, by refusing to permit British citizens' to collect pre-Revolutionary War debts[91]--some foreign nations considered the United States an unreliable treaty partner[92] or cited U.S. noncompliance as grounds to disregard their own treaty commitments.[93] The Framers sought to remedy this problem by making treaties part of the "supreme Law of the Land" to which "the Judges in every State shall be bound[.]"[94] The Supremacy Clause marked a shift from the British system under which treaties generally have domestic effect only after being implemented by Parliament.[95]
Despite the Supremacy Clause's seeming simplicity, not all treaties have the status of domestic law that is enforceable in U.S. courts.[96] Some treaties or (provisions within treaties[97]) are "self-executing," meaning domestic courts can enforce them directly.[98] Other treaty provisions are "non-self-executing" and occupy a more complex status in the U.S. legal system.[99] Non-self-executing treaty provisions are not directly enforceable in U.S. courts, and Congress generally must pass legislation implementing the provision in a domestic statute to make it judicially enforceable.[100]
The Supreme Court first recognized the self-execution dichotomy in an 1829 decision, Foster v. Neilson.[101] In his opinion for the Court, Chief Justice John Marshall explained: "[o]ur [C]onstitution declares a treaty to be the law of the land. It is, consequently to be regarded in courts of justice as equivalent to an act of the legislature[.]"[102] But Chief Justice Marshall then immediately qualified this explanation, stating that a treaty is only the equivalent of a legislative act when the treaty "operates of itself without the aid of any legislative provision."[103] When the terms of treaty "import a contract" or suggest that some future legislative act is necessary, Marshall explained, "the treaty addresses itself to the political, not the judicial department; and the legislature must execute the contract before it can become a rule for the Court."[104] Using this test, the Foster Court held that the treaty provision at issue--which stated that certain land grants from the King of Spain "shall be ratified and confirmed"--was non-self-executing because it suggested that Congress would ratify the land grants through a future legislative act.[105]
The Supreme Court revisited the self-execution doctrine in a 2008 decision, Medellin v. Texas.[106] In that case, the United Nation's principal judicial body, the International Court of Justice (ICJ), had entered a judgment directing the United States to reconsider the criminal convictions and sentences of a group of Mexican nationals.[107] The ICJ concluded that U.S. state and local authorities had not afforded the foreign nationals their rights to communicate with Mexican consular officials as required by the Vienna Convention on Consular Relations.[108] One of the foreign nationals, Ernesto Medellin, argued that the ICJ's judgment was directly enforceable in U.S. courts because of a provision in another treaty, Article 94 of the Charter of the United Nations. That article provides that the United States (and any member nation of the United Nations) "undertakes to comply with the decision of the [ICJ] in any case to which it is a party."[109] Medellin argued that Article 94 required Texas state authorities to reevaluate his conviction and stay his upcoming execution, but the Supreme Court disagreed.[110] The Court held that Article 94 of the Charter of the United Nations was not self-executing, in part, because Article 94 states that a party to the Charter "undertakes to comply" with ICJ decisions, rather than stating that a country "shall" or "must" comply.[111] Article 94 was not self-executing because it was not "a directive to domestic courts" and could not be judicially enforced in the face of contrary state law, the Supreme Court concluded.[112]
Determining whether a treaty provision is self-executing is not always a straightforward task.[113] In some cases, a treaty may specify whether it is intended to be given immediate domestic legal effect without further action.[114] However, the Medellin Court disapproved of the notion that certain special words or phrases are necessary to make a treaty self-executing.[115] Medellin also rejected a multi-factor analysis, advanced by three Justices in a dissent, which would look outside the treaty's text and analyze a variety of "practical, context-specific criteria"[116] to determine self-execution.[117] Instead, the Medellin Court explained that the primary question is whether the President and Senate intended the treaty to be self-executing.[118] The Supreme Court has deemed a treaty non-self-executing when the text manifested an intent that the treaty would not be directly enforceable in U.S. courts,[119] or when the Senate conditioned its advice and consent on the understanding that the treaty was non-self-executing.[120] Other relevant factors include whether the treaty provisions are suitably precise or obligatory to be capable of judicial enforcement and whether the provision contemplates that implementing legislation or other legal measures, such as administrative action, will follow the treaty's ratification.[121]
Many courts and commentators agree that treaty provisions that would require the United States to exercise authority that the Constitution assigns to Congress exclusively must be deemed non-self-executing.[122] Although the Supreme Court has not addressed these constitutional limitations, lower courts have concluded that, because Congress controls the power of the purse,[123] a treaty provision that requires expenditure of funds must be treated as non-self-executing.[124] Other lower courts have suggested that treaty provisions that purport to create criminal liability[125] or raise revenue[126] must be non-self-executing because those powers are the exclusive prerogative of Congress.
The doctrine of non-self-execution appears to be in some tension with the Supremacy Clause's declaration that "all treaties" are part of the supreme law of the land.[127] The Supreme Court has never fully explained the relationship between non-self-executing treaties and the Supremacy Clause.[128] Opinions from some lower courts and the Office of Legal Counsel (OLC) in the Department of Justice[129] suggest non-self-executing treaties lack any domestic legal status.[130] However, other courts and scholars contend that, although non-self-executing treaties may not be enforced in courts, they may still form part of the supreme law of the land that is carried out and enforced outside the judicial system.[131]
Despite the importance of the self-execution doctrine in U.S. domestic law, self-execution does not impact treaties' status under international law.[132] Under international law, treaties create rights and obligations that nations owe to one another that are independent of each nation's domestic law.[133] International law generally allows each country to decide how to implement its treaty commitments into its own domestic legal system.[134] The self-execution doctrine concerns domestic enforcement of treaties, but it does not affect the United States' obligation to comply with the provision under international law.[135] Thus, even if courts cannot enforce a treaty provision in domestic courts because it is non-self-executing, that provision may still be binding under international law, and the United States may still have an international legal obligation to comply.
Congressional Implementation of Treaties[edit | edit source]
When a treaty provision requires implementing legislation or appropriation of funds to carry out the United States' obligations, the task of providing that legislation falls to Congress.[136] In the early years of constitutional practice, debate arose over whether Congress was obligated--rather than simply empowered--to enact legislation implementing non-self-executing treaty provisions into domestic law.[137] But the issue has not been resolved in any definitive way.[138]
By contrast, the Supreme Court did address the scope of Congress's power to enact legislation implementing a treaty in a 1920 case. In Missouri v. Holland,[139] the Supreme Court considered a constitutional challenge to a federal statute that implemented a treaty prohibiting the killing, capturing, or selling of certain birds that traveled between the United States and Canada.[140] In the preceding decade, two federal district courts had held that similar statutes enacted prior to the treaty violated the Tenth Amendment because they infringed on the reserved powers of the states to control natural resources within their borders.[141] But the Holland Court determined that, even if those district court decisions were correct, their reasoning no longer applied once the United States concluded a valid migratory bird treaty.[142] In an opinion authored by Justice Oliver Wendell Holmes, the Holland Court concluded that the federal government can use the treaty power to regulate matters that the Tenth Amendment otherwise might reserve to the states.[143] And if the treaty itself is constitutional, the Holland Court held, Congress has the power under the Necessary and Proper Clause[144] to enact legislation implementing the treaty into domestic law of the United States without restraint by the Tenth Amendment.[145]
Some legal commentators and jurists have questioned aspects of the Justice Holmes's reasoning in Holland.[146] Some of Holland's critics contend that the decision gives the federal government too broad a power to legislate in areas reserved to the states, especially when coupled with twentieth century changes in international lawmaking that have expanded the types of issues addressed in treaties.[147] Others argue that a combined reading of the Necessary and Proper Clause and the Treaty Clause only permits Congress to pass laws necessary to make treaties, not to implement them, as Justice Holmes reasoned.[148] Under this view, Congress could use the Necessary and Proper Clause to, for example, appropriate funds for U.S. diplomats to engage in overseas treaty negotiations, but Congress must rely on its other Article I powers to implement treaties that have been signed and ratified.[149] Other legal scholars respond to these critiques by contending that the power to make treaties is hollow without the power to implement them,[150] that political and structural checks safeguard federalism,[151] and that Holland comports with the Constitution's text and historical practice.[152]
As the academic debate continues, the Supreme Court has not overturned Holland's holding related to Congress's power to implement treaties.[153] Rather, the Court has sometimes discussed it favorably.[154] Nevertheless, principles of federalism embodied in the Tenth Amendment continue to influence constitutional challenges to U.S. treaties and their implementing statutes, including in the 2014 Supreme Court decision, Bond v. United States.[155]
Bond concerned a criminal prosecution arising from a case of "romantic jealousy" when a jilted spouse spread toxic chemicals on the mailbox of a woman with whom her husband had an affair.[156] Although the victim only suffered a minor thumb burn, the United States brought criminal charges under the Chemical Weapons Convention Implementation Act of 1998--a federal statute that implemented a multilateral treaty prohibiting the use of chemical weapons.[157] The accused asserted that the Tenth Amendment reserved the power to prosecute her "purely local" crime to the states, and she asked the Court to overturn or limit Holland's holding on the relationship between treaties and the Tenth Amendment.[158]
A majority in Bond declined to revisit Holland's interpretation of the Tenth Amendment,[159] but the Bond Court ruled in the accused's favor based on principles of statutory interpretation.[160] When construing a statute interpreting a treaty, Bond explained, "it is appropriate to refer to basic principles of federalism embodied in the Constitution to resolve ambiguity in a federal statute"[161] Applying these principles through a presumption that Congress did not intend to intrude on areas of traditional state authority, the Bond Court held that the Chemical Weapons Convention Implementation Act did not apply to the jilted spouse's actions.[162] In other words, the majority in Bond did not disturb Holland's conclusion that the Tenth Amendment does not limit Congress's power to enact legislation implementing treaties, but Bond did hold that principles of federalism reflected in the Tenth Amendment may dictate how courts interpret such implementing statutes.[163]
Interpreting Treaties[edit | edit source]
All three branches of government play a part in treaty interpretation. When analyzing a treaty for purposes of applying it as domestic law of the United States, U.S. courts have final authority to interpret the treaty's meaning.[164] The Supreme Court has stated that its goal in interpreting a treaty is to discern the intent of the nations that are parties to the treaty.[165] The interpretation process begins by examining "the text of the treaty and the context in which the written words are used."[166] When a treaty provides that it is to be concluded in multiple languages, the Supreme Court has analyzed foreign language versions to help understand the treaty's terms.[167] The Court also considers the broader "object and purpose" of a treaty.[168] In some cases, the Supreme Court examines extratextual materials, such as drafting history,[169] the views of other state parties,[170] and the post-ratification practices of other nations.[171] But the Court has cautioned that consulting sources outside the text may not be appropriate when the treaty is unambiguous.[172]
In the context of treaties made with Indian Tribes, the Court has held that such treaties impose judicially enforceable duties on the federal government only when the treaties contain "specific rights-creating or duty-imposing" language.[173] In Arizona v. Navajo Nation the Court held that an 1868 treaty establishing a reservation and reserving water rights for the Navajo Nation did not impose judicially enforceable affirmative duties on the federal government to assess or secure those water rights.[174]
The Executive Branch also plays a role in interpreting treaties, especially outside the context of domestic litigation and when operating in the realm of international affairs. The Executive Branch generally is responsible for carrying out treaties' requirements and determining whether other countries fulfill their obligations to the United States.[175] In performing this role, the Executive Branch often must interpret treaties' provisions and mandates.[176] In addition, some questions of treaty interpretation may involve presidential discretion or otherwise may present "political questions" that are more appropriately resolved in the political branches than in the courts.[177]
Within the Executive Branch, the Department of Justice participates in treaty interpretation as part of its statutory responsibilities to provide legal opinions within the Executive Branch[178] and represent the United States in litigation.[179] The Department of State, which oversees treaty negotiations,[180] often is able to provide authoritative interpretations based on its access to information about negotiating history and the views of treaty partners.[181] Because the Executive Branch may have special insight into a treaty's meaning, the Supreme Court has stated that the Executive Branch's views are entitled to "great weight."[182] But the Court has not adopted the Executive Branch's interpretation in every case.[183] And interbranch disputes may arise if the Executive Branch changes its interpretation and departs from the shared understanding of the executive and the Senate at the time of ratification.[184]
The Legislative Branch also influences treaty interpretation. The Senate may directly shape interpretation during the advice-and-consent process by making its consent to ratification conditioned upon a particular understanding of a treaty's terms.[185] The President may not ratify a treaty unless he accepts the Senate's interpretation or the Senate agrees to withdraw it.[186] After the advice-and-consent process, however, the Senate's ability to influence treaty interpretation is more restrained. According to a 1901 Supreme Court decision, Senate resolutions that purport to interpret a treaty after ratification are "without legal significance" because the "meaning of the treaty cannot be controlled by subsequent explanations of some of those who may have voted to ratify it."[187] That said, the Legislative Branch may still play a role in treaty interpretation when it passes implementing legislation or other treaty-related laws.[188] For example, when treaties require countries to ensure certain actions are criminalized in domestic law, Congress might interpret the treaty during the legislative process when it defines the prohibited actions in U.S. law; determines appropriate punishments; and decides whether domestic law already prohibits the conduct.[189]
Legal Effect of Treaties on Prior Acts of Congress[edit | edit source]
The Constitution provides that both federal statutes and treaties are part of the supreme law of the land, but it does not define the relationship between federal legislation and treaties.[190] As a result, disputes have arisen over which law governs when there are differences between a self-executing treaty and a federal statute. The Supreme Court has resolved this issue through what has become known as the "last-in-time" or "later-in-time" rule: when there is a conflict between a self-executing treaty and a federal statute, U.S. courts must apply whichever of the two reflects the "latest expression of the sovereign will" of the United States.[191]
The Supreme Court has frequently applied the last-in-time rule to give effect to a statute that conflicts with an earlier ratified treaty.[192] Although the situation has arisen less often, the Supreme Court has also held that a treaty can override an earlier-in-time federal statute.[193] The last-in-time rule, however, only applies when the treaty at issue is self-executing.[194] Because a non-self-executing treaty is not judicially enforceable,[195] courts will apply a federal statute over a non-self-executing treaty regardless of the timing of the statute's enactment.[196]
Preemptive Effect of Treaties[edit | edit source]
One of the Framers' primary objectives in including treaties in the Supremacy Clause was to ensure that the United States' treaty obligations would prevail over inconsistent state legislation.[197] During the pre-constitutional period, some states resisted complying with the 1783 Treaty of Peace with Great Britain, which prohibited the United States from placing "legal impediments" on British citizens' attempts to collect pre-Revolutionary War debts.[198] Soon after the states adopted the Constitution, the Supreme Court addressed whether this treaty obligation would prevail over a state statute that allowed Virginians to satisfy debts to British creditors by making payment to a state loan office rather than to the creditors themselves.[199] In Ware v. Hylton--the first Supreme Court case to address the legal effect of treaties--the Court struck down the Virginia law on the ground that it conflicted with the Treaty of Peace.[200] "A treaty cannot be the Supreme law of the land, that is of all the United States, if any act of a State Legislature can stand in its way[,]" Justice Samuel Chase explained.[201]
Since Ware, the Supreme Court has held that treaty provisions preempt contrary state or local laws on many occasions.[202] But just as only self-executing treaty provisions can prevail over earlier-in-time federal statutes, a treaty provision must be self-executing to preempt inconsistent state law.[203] Before the mid-twentieth century, courts routinely held that treaties displaced state or local law without examining closely whether the treaty provision was self-executing.[204] But in more recent cases, courts have closely considered whether a treaty provision is self-executing before applying it to preempt state law.[205]
Effect of Treaties on the Constitution[edit | edit source]
While treaties may preempt contradictory state law and supplant earlier-in-time federal legislation, the treaty power is not so broad as to override the Constitution.[206] The Supreme Court stated in dicta in several cases that treaties may not alter the Constitution or authorize acts that the Constitution expressly prohibits.[207] Although the Court has never invalidated a treaty itself on constitutional grounds,[208] it has held that courts may not give treaties domestic effect in a way that interferes with individual rights guaranteed in the Constitution.[209] In Boos v. Berry, the Supreme Court held that a treaty-based obligation to protect foreign embassies did not authorize Congress to enact legislation that infringed on individuals' First Amendment right to freedom of speech.[210] Similarly, in Reid v. Covert, a plurality of the Court determined that the United States could not rely on international agreements as authority to conduct criminal proceedings that did not comply with the grand-jury and jury-trial guarantees in the Fifth and Sixth Amendments.[211] The Supreme Court has since cited the Reid plurality opinion and described its conclusions related to the constitutional constraints on the treaty power as "well established."[212]
Breach and Termination of Treaties[edit | edit source]
The Constitution sets forth a definite procedure by which the President has the power to make treaties with the advice and consent of the Senate, but it is silent on who has the power to terminate them and how this power should be exercised.[213] The United States terminated a treaty under the Constitution for the first time in 1798. On the eve of possible hostilities with France, Congress passed, and President John Adams signed, legislation stating that four U.S. treaties with France "shall not henceforth be regarded as legally obligatory on the government or citizens of the United States."[214] When he was Vice-President, Thomas Jefferson referred to the episode as support for the notion that only an "act of the legislature" can terminate a treaty.[215] But commentators have since come to view the 1798 statute as a historical anomaly because it is the only instance in which Congress purported to terminate a treaty directly through legislation without relying on the President to provide a notice of termination to the foreign government.[216] Moreover, because the 1798 statute was part of a series of congressional measures authorizing limited hostilities against the French Republic, some view the statute as an exercise of Congress's war powers rather than precedent for a permanent congressional power to terminate treaties.[217]
During the nineteenth century, government practice treated the power to terminate treaties as shared between the Legislative and Executive Branches.[218] Congress often authorized[219] or instructed[220] the President to provide notice of treaty termination to foreign governments during this time. On rare occasions, the Senate alone passed a resolution authorizing the President to terminate a treaty.[221] Presidents often complied with the Legislative Branch's authorization or direction,[222] although they sometimes resisted attempts to compel termination of specific articles in treaties when the treaties did not authorize partial termination.[223] On other occasions, Congress or the Senate approved the President's termination after-the-fact, when the Executive Branch had already provided notice of termination to the foreign government.[224]
At the turn of the twentieth century, a new form of treaty termination emerged: unilateral termination by the President without approval by the Legislative Branch. This method first occurred in 1899, when the McKinley Administration terminated certain articles in a commercial treaty with Switzerland,[225] and then again in 1927, when the Coolidge Administration withdrew the United States from a convention to prevent smuggling with Mexico.[226] During the Franklin Roosevelt Administration and World War II, unilateral presidential termination increased markedly.[227] Although Congress at times enacted legislation authorizing or instructing the President to terminate treaties during the twentieth century,[228] unilateral presidential termination became the norm.[229]
Some scholars and Members of Congress have challenged the President's assertion of unilateral authority to terminate treaties under the rationale that treaty termination is analogous to the termination of federal statutes.[230] Because domestic statutes may be terminated only through the same process in which they were enacted[231]--i.e., through a majority vote in both houses and with the signature of the President or a veto override--these observers contend that treaties likewise must be terminated through a procedure that resembles their making and that includes the Legislative Branch.[232] On the other hand, treaties do not share every feature of federal statutes. Whereas statutes can be enacted over the President's veto, treaties can never be concluded without the President's final act of ratification.[233] Moreover, some argue that, just as the President has some unilateral authority to remove Executive Officers who were appointed with senatorial consent,[234] the President may unilaterally terminate treaties made with the Senate's advice and consent.[235]
The President's exercise of treaty termination authority has not generated opposition from the Legislative Branch in most cases, but there have been occasions in which Members of Congress sought to block unilateral presidential action. In 1978, a group of Members filed suit in Goldwater v. Carter[236] seeking to prevent President Jimmy Carter from terminating a mutual defense treaty with the government of Taiwan[237] as part of the United States' recognition of the government of mainland China.[238] A divided Supreme Court ultimately ruled that the litigation should be dismissed, but it did so without reaching the merits of the constitutional question and with no majority opinion.[239] Citing a lack of clear guidance in the Constitution's text and a reluctance "to settle a dispute between coequal branches of our Government each of which has resources available to protect and assert its interests[,]" four Justices concluded that the case presented a nonjusticiable political question.[240] This four-Justice opinion, written by Justice William Rehnquist, has proven influential since Goldwater, and federal district courts have invoked the political question doctrine as a basis to dismiss challenges to unilateral treaty terminations by President Ronald Reagan[241] and President George W. Bush.[242]
Regardless of whether constitutional disputes over treaty termination are resolved in federal courts or through the political process, the power of treaty termination may depend on the specific features of the treaty at issue.[243] For example, if termination of a particular treaty implicates the exercise of independent executive powers--such as the power to recognize foreign governments[244]--the President perhaps may have a stronger claim to unilateral authority.[245] On the other hand, if the Senate were to condition its advice and consent to a treaty on a requirement that termination only occur with the approval of the Legislative Branch, some commentators argue that the President would be bound by that condition.[246] Finally, when Congress has passed legislation implementing a treaty into domestic law of the United States, the President likely lacks the authority to terminate the domestic effect of that legislation without going through the full legislative process for repeal of the statute.[247]
A party's breach of treaty obligations also can affect termination and withdrawal. Under international law, a party may suspend or terminate a treaty if another party materially breaches its obligations.[248] The Supreme Court has appeared to recognize that, at least in the absence of direction from Congress, the President has the power to deem a treaty that has been breached by a foreign nation void and therefore no longer binding.[249] The Court also has stated that Congress possesses the power to breach and abrogate a treaty by passing later-in-time legislation that conflicts with U.S. treaty obligations.[250]
When considering all elements of the treaty-making process, the treaty power remains an area in which all three branches of government shape constitutional practice and influence foreign relations. The Judicial Branch determines treaties' effect on domestic law and enforces self-executing treaty provisions in U.S. courts.[251] Presidents claim authority to negotiate with foreign countries, ratify treaties approved by the Senate, interpret treaties' terms outside the context of domestic litigation, and terminate the United States' treaty commitments.[252] The Senate maintains its authority to provide (or withhold) consent to treaties proposed by the President, and it shapes treaties' scope and meaning through its power to condition consent on reservations, understandings, and declarations.[253] Congress also plays a role when it enacts legislation implementing treaties' requirements into U.S. statutes.[254] While unresolved questions about the treaty power have persisted since the Constitution was written, treaty-making remains a unique and dynamic part of American constitutional law and practice.
Alternatives to Treaties[edit | edit source]
Overview of Alternatives to Treaties[edit | edit source]
The capacity of the United States to enter into agreements with other nations is not exhausted in the treaty-making power. The Constitution recognizes a distinction between "treaties" and "agreements" or "compacts" but does not indicate what the difference is.[255] The differences, which once may have been clearer, have been seriously blurred in practice within recent decades. Once a stepchild in the family in which treaties were the preferred offspring, the executive agreement has surpassed in number and perhaps in international influence the treaty formally signed, submitted for ratification to the Senate, and proclaimed upon ratification.
During the first half-century of its independence, the United States was party to sixty treaties but to only twenty-seven published executive agreements. By the beginning of World War II, there had been concluded approximately 800 treaties and 1,200 executive agreements. In the period 1940-1989, the Nation entered into 759 treaties and into 13,016 published executive agreements. Cumulatively, in 1989, the United States was a party to 890 treaties and 5,117 executive agreements. To phrase it comparatively, in the first 50 years of its history, the United States concluded twice as many treaties as executive agreements. In the 50-year period from 1839 to 1889, a few more executive agreements than treaties were entered into. From 1889 to 1939, almost twice as many executive agreements as treaties were concluded. Between 1939 and 1993, executive agreements comprised more than 90% of the international agreements concluded.[256]
One must, of course, interpret the raw figures carefully. Only a very small minority of all the executive agreements entered into were based solely on the powers of the President as Commander in Chief and organ of foreign relations; the remainder were authorized in advance by Congress by statute or by treaty provisions ratified by the Senate.[257] Thus, consideration of the constitutional significance of executive agreements must begin with a differentiation among the kinds of agreements which are classed under this single heading.[258]
Legal Basis for Executive Agreements[edit | edit source]
Many types of executive agreements comprise the ordinary daily grist of the diplomatic mill. Among these are such as apply to minor territorial adjustments, boundary rectifications, the policing of boundaries, the regulation of fishing rights, private pecuniary claims against another government or its nationals, in Justice Joseph Story's words, "the mere private rights of sovereignty."[259] Crandall lists scores of such agreements entered into with other governments by the authorization of the President.[260] Such agreements were ordinarily directed to particular and comparatively trivial disputes and by the settlement they effect of these cease ipso facto to be operative. Also, there are such time-honored diplomatic devices as the "protocol" which marks a stage in the negotiation of a treaty, and the modus vivendi, which is designed to serve as a temporary substitute for one. Executive agreements become of constitutional significance when they constitute a determinative factor of future foreign policy and hence of the country's destiny. In consequence particularly of our participation in World War II and our immersion in the conditions of international tension which prevailed both before and after the war, Presidents have entered into agreements--some of which have approximated temporary alliances--with other governments. It cannot be justly said, however, that in so doing they have acted without considerable support from precedent.
An early instance of executive treaty-making was the agreement by which President James Monroe in 1817 defined the limits of armaments on the Great Lakes. The arrangement was effected by an exchange of notes, which nearly a year later were laid before the Senate with a query as to whether it was within the President's power, or whether advice and consent of the Senate was required. The Senate approved the agreement by the required two-thirds vote, and it was forthwith proclaimed by the President without there having been a formal exchange of ratifications.[261] Commenting on a treaty with Russia providing that U.S. authorities would assist in arresting and returning Russian deserters, the Court remarked, a bit uncertainly: "While no act of Congress authorizes the executive department to permit the introduction of foreign troops, the power to give such permission without legislative assent was probably assumed to exist from the authority of the President as commander in chief of the military and naval forces of the United States. It may be doubted, however, whether such power could be extended to the apprehension of deserters [from foreign vessels] in the absence of positive legislation to that effect."[262] Justice Horace Gray and three other Justices believed that such action by the President must rest upon express treaty or statute.[263]
Notable expansion of presidential power in this field first became manifest in the administration of President William McKinley. At the outset of war with Spain, the President proclaimed that the United States would consider itself bound for the duration by the last three principles of the Declaration of Paris, a course which, as Professor Wright observes, "would doubtless go far toward establishing these three principles as international law obligatory upon the United States in future wars."[264] Hostilities with Spain were brought to an end in August, 1898, by an armistice the conditions of which largely determined the succeeding treaty of peace,[265] just as did the Armistice of November 11, 1918, determine in great measure the conditions of the final peace with Germany in 1918. It was also President McKinley who in 1900, relying on his own sole authority as Commander in Chief, contributed a land force of 5,000 men and a naval force to cooperate with similar contingents from other Powers to rescue the legations in Peking from the Boxers; a year later, again without consulting either Congress or the Senate, he accepted for the United States the Boxer Indemnity Protocol between China and the intervening Powers.[266] Commenting on the Peking protocol, Willoughby quotes with approval the following remark: "This case is interesting, because it shows how the force of circumstances compelled us to adopt the European practice with reference to an international agreement, which, aside from the indemnity question, was almost entirely political in character . . . purely political treaties are, under constitutional practice in Europe, usually made by the executive alone. The situation in China, however, abundantly justified President McKinley in not submitting the protocol to the Senate. The remoteness of Peking, the jealousies between the allies, and the shifting evasive tactics of the Chinese Government, would have made impossible anything but an agreement on the spot."[267]
It was also during this period that John Hay, as McKinley's Secretary of State, initiated his "Open Door" policy, by notes to Great Britain, Germany, and Russia, which were soon followed by similar notes to France, Italy, and Japan. These in substance asked the recipients to declare formally that they would not seek to enlarge their respective interests in China at the expense of any of the others; and all responded favorably.[268] Then, in 1905, the first Roosevelt, seeking to arrive at a diplomatic understanding with Japan, instigated an exchange of opinions between Secretary of War William Howard Taft, then in the Far East, and Count Katsura, amounting to a secret treaty, by which the Roosevelt administration assented to the establishment by Japan of a military protectorate in Korea.[269] Three years later, Secretary of State Elihu Root and the Japanese ambassador at Washington entered into the Root-Takahira Agreement to uphold the status quo in the Pacific and maintain the principle of equal opportunity for commerce and industry in China.[270] Meantime, in 1907, by a "Gentleman's Agreement," the Mikado's government had agreed to curb the emigration of Japanese subjects to the United States, thereby relieving the Washington government from the necessity of taking action that would have cost Japan loss of face. The final result of this series of executive agreements touching American relations in and with the Far East was the product of President Woodrow Wilson's diplomacy. This was the Lansing-Ishii Agreement, embodied in an exchange of letters dated November 2, 1917, by which the United States recognized Japan's "special interests" in China, and Japan assented to the principle of the Open Door in that country.[271]
The executive agreement attained its modern development as an instrument of foreign policy under President Franklin D. Roosevelt, at times threatening to replace the treaty-making power, not formally but in effect, as a determinative element in the field of foreign policy. The President's first important utilization of the executive agreement device took the form of an exchange of notes on November 16, 1933, with Maxim M. Litvinov, the USSR Commissar for Foreign Affairs, whereby American recognition was extended to the Soviet Union and certain pledges made by each official.[272]
With the fall of France in June, 1940, President Roosevelt entered into two executive agreements the total effect of which was to transform the role of the United States from one of strict neutrality toward the European war to one of semi-belligerency. The first agreement was with Canada and provided for the creation of a Permanent Joint Board on Defense which would "consider in the broad sense the defense of the north half of the Western Hemisphere."[273] Second, and more important than the first, was the Hull-Lothian Agreement of September 2, 1940, under which, in return for the lease for ninety-nine years of certain sites for naval bases in the British West Atlantic, the United States handed over to the British Government fifty over-age destroyers which had been reconditioned and recommissioned.[274] And on April 9, 1941, the State Department, in consideration of the just-completed German occupation of Denmark, entered into an executive agreement with the Danish minister in Washington, whereby the United States acquired the right to occupy Greenland for purposes of defense.[275]
Post-war diplomacy of the United States was greatly influenced by the executive agreements entered into at Cairo, Teheran, Yalta, and Potsdam.[276] For a period, the formal treaty--the signing of the United Nations Charter and the entry into the multinational defense pacts, like NATO, SEATO, CENTRO, and the like--re-established itself, but soon the executive agreement, as an adjunct of treaty arrangement or solely through presidential initiative, again became the principal instrument of United States foreign policy, so that it became apparent in the 1960s that the Nation was committed in one way or another to assisting over half the countries of the world protect themselves.[277] Congressional disquietude did not result in anything more substantial than passage of a "sense of the Senate" resolution expressing a desire that "national commitments" be made more solemnly in the future than in the past.[278]
Legal Effect of Executive Agreements[edit | edit source]
When the President enters into an executive agreement, what sort of obligation does it impose on the United States? That it may impose international obligations of potentially serious consequences is obvious and that such obligations may linger for long periods of time is equally obvious.[279] Not so obvious is the nature of the domestic obligations imposed by executive agreements. Do treaties and executive agreements have the same domestic effect? Treaties preempt state law through operation of the Supremacy Clause. Although it may be that executive agreements entered into pursuant to congressional authorization or treaty obligation also derive preemptive force from the Supremacy Clause, that textual basis for preemption is arguably lacking for executive agreements resting solely on the President's constitutional powers.
Initially, it was the view of most judges and scholars that executive agreements based solely on presidential power did not become the "law of the land" pursuant to the Supremacy Clause because such agreements are not "treaties" ratified by the Senate.[280] The Supreme Court, however, found another basis for holding state laws to be preempted by executive agreements, ultimately relying on the Constitution's vesting of foreign relations power in the national government.
A different view seemed to underlie the Supreme Court decision in United States v. Belmont,[281] giving domestic effect to the Litvinov Assignment. The Court's opinion by Justice George Sutherland built on his Curtiss-Wright[282] opinion. A lower court had erred, the Court ruled, in dismissing an action by the United States, as assignee of the Soviet Union, for certain moneys which had once been the property of a Russian metal corporation the assets of which had been appropriated by the Soviet government. The President's act in recognizing the Soviet government, and the accompanying agreements, constituted, said the Justice, an international compact which the President, "as the sole organ" of international relations for the United States, was authorized to enter upon without consulting the Senate. Nor did state laws and policies make any difference in such a situation; while the supremacy of treaties is established by the Constitution in express terms, the same rule holds "in the case of all international compacts and agreements from the very fact that complete power over international affairs is in the National Government and is not and cannot be subject to any curtailment or interference on the part of the several States."[283]
The Court elaborated on these principles five years later in United States v. Pink,[284] another case involving the Litvinov Assignment and recognition of the Soviet Government. The question presented was whether the United States was entitled to recover the assets of the New York branch of a Russian insurance company. The company argued that the Soviet Government's decrees of confiscation did not apply to its property in New York and could not apply consistently with the Constitution of the United States and that of New York. The Court, speaking by Justice William O. Douglas, brushed these arguments aside. An official declaration of the Russian government itself settled the question of the extraterritorial operation of the Russian decree of nationalization and was binding on American courts. The power to remove such obstacles to full recognition as settlement of claims of our nationals was "a modest implied power of the President who is the 'sole organ of the Federal Government in the field of international relations'. . . . It was the judgment of the political department that full recognition of the Soviet Government required the settlement of outstanding problems including the claims of our nationals. . . . We would usurp the executive function if we held that the decision was not final and conclusive on the courts. . . ."
"It is, of course, true that even treaties with foreign nations will be carefully construed so as not to derogate from the authority and jurisdiction of the States of this nation unless clearly necessary to effectuate the national policy. . . . But state law must yield when it is inconsistent with, or impairs the policy or provisions of, a treaty or of an international compact or agreement. . . . Then, the power of a State to refuse enforcement of rights based on foreign law which runs counter to the public policy of the forum . . . must give way before the superior Federal policy evidenced by a treaty or international compact or agreement. . . ."
"The action of New York in this case amounts in substance to a rejection of a part of the policy underlying recognition by this nation of Soviet Russia. Such power is not accorded a State in our constitutional system. To permit it would be to sanction a dangerous invasion of Federal authority. For it would 'imperil the amicable relations between governments and vex the peace of nations.' . . . It would tend to disturb that equilibrium in our foreign relations which the political departments of our national government has diligently endeavored to establish. . . ."
"No State can rewrite our foreign policy to conform to its own domestic policies. Power over external affairs is not shared by the States; it is vested in the national government exclusively. It need not be so exercised as to conform to state laws or state policies, whether they be expressed in constitutions, statutes, or judicial decrees. And the policies of the States become wholly irrelevant to judicial inquiry when the United States, acting within its constitutional sphere, seeks enforcement of its foreign policy in the courts."[285]
This recognition of the preemptive reach of executive agreements was an element in the movement for a constitutional amendment in the 1950s to limit the President's powers in this field, but that movement failed.[286]
Belmont and Pink were reinforced in American Ins. Ass'n v. Garamendi.[287] In holding that California's Holocaust Victim Insurance Relief Act was preempted as interfering with the Federal Government's conduct of foreign relations, as expressed in executive agreements, the Court reiterated that "valid executive agreements are fit to preempt state law, just as treaties are."[288] The preemptive reach of executive agreements stems from "the Constitution's allocation of the foreign relations power to the National Government."[289] Because there was a "clear conflict" between the California law and policies adopted through the valid exercise of federal executive authority (settlement of Holocaust-era insurance claims being "well within the Executive's responsibility for foreign affairs"), the state law was preempted.[290]
State Laws Affecting Foreign Relations[edit | edit source]
If the foreign relations power is truly an exclusive federal power, with no role for the states, a logical consequence, the Supreme Court has held, is that some state laws impinging on foreign relations are invalid even in the absence of a relevant federal policy. There is, in effect, a "dormant" foreign relations power. The scope of this power remains undefined, however, and its constitutional basis is debated by scholars.
The exclusive nature of the federal foreign relations power has long been asserted by the Supreme Court. In 1840, for example, the Court declared that "it was one of the main objects of the constitution to make us, so far as regarded our foreign relations, one people, and one nation; and to cut off all communications between foreign governments, and the several state authorities."[291] A hundred years later the Court remained emphatic about federal exclusivity. "No State can rewrite our foreign policy to conform to its own domestic policies. Power over external affairs is not shared by the States; it is vested in the national government exclusively. It need not be so exercised as to conform to state laws or state policies, whether they be expressed in constitutions, statutes, or judicial decrees. And the policies of the States become wholly irrelevant to judicial inquiry when the United States, acting within its constitutional sphere, seeks enforcement of its foreign policy in the courts."[292]
It was not until 1968, however, that the Court applied the general principle to invalidate a state law for impinging on the Nation's foreign policy interests in the absence of an established federal policy. In Zschernig v. Miller[293] the Court invalidated an Oregon escheat law that operated to prevent inheritance by citizens of Communist countries. The law conditioned inheritance by nonresident aliens on a showing that U.S. citizens would be allowed to inherit estates in the alien's country, and that the alien heir would be allowed to receive payments from the Oregon estate "without confiscation."[294] Although a Justice Department amicus brief asserted that application of the Oregon law in this one case would not cause any "undu[e] interfer[ence] with the United States' conduct of foreign relations," the Court saw a "persistent and subtle" effect on international relations stemming from the "notorious" practice of state probate courts in denying payments to persons from Communist countries.[295] Regulation of descent and distribution of estates is an area traditionally regulated by states, but such "state regulations must give way if they impair the effective exercise of the Nation's foreign policy." If there are to be travel, probate, or other restraints on citizens of Communist countries, the Court concluded, such restraints "must be provided by the Federal Government."[296]
Zschernig lay dormant for some time, and, although it has been addressed recently by the Court, it remains the only holding in which the Court has applied a dormant foreign relations power to strike down state law. There was renewed academic interest in Zschernig in the 1990s, as some state and local governments sought ways to express dissatisfaction with human rights policies of foreign governments or to curtail trade with out-of-favor countries.[297] In 1999, the Court struck down Massachusetts's Burma sanctions law on the basis of statutory preemption, and declined to address the appeals court's alternative holding applying Zschernig.[298] Similarly, in 2003, the Court held that California's Holocaust Victim Insurance Relief Act was preempted as interfering with federal foreign policy reflected in executive agreements, and, although the Court discussed Zschernig at some length, it saw no need to resolve issues relating to its scope.[299]
Dictum in Garamendi recognizes some of the questions that can be raised about Zschernig. The Zschernig Court did not identify what language in the Constitution mandates preemption, and commentators have observed that a respectable argument can be made that the Constitution does not require a general foreign affairs preemption not tied to the Supremacy Clause, and broader than and independent of the Constitution's specific prohibitions[300] and grants of power.[301] The Garamendi Court raised "a fair question whether respect for the executive foreign relations power requires a categorical choice between the contrasting theories of field and conflict preemption evident in the Zschernig opinions." Instead, Justice David Souter suggested for the Court, field preemption may be appropriate if a state legislates "simply to take a position on a matter of foreign policy with no serious claim to be addressing a traditional state responsibility," and conflict preemption may be appropriate if a state legislates within an area of traditional responsibility, "but in a way that affects foreign relations."[302] We must await further litigation to see whether the Court employs this distinction.[303]
Congressional Executive Agreements[edit | edit source]
Congress early authorized officers of the Executive Branch to enter into negotiations and to conclude agreements with foreign governments, authorizing the borrowing of money from foreign countries[304] and appropriating money to pay off the government of Algiers to prevent pirate attacks on United States shipping.[305] Perhaps the first formal authorization in advance of an executive agreement was enactment of a statute that permitted the Postmaster General to "make arrangements with the Postmasters in any foreign country for the reciprocal receipt and delivery of letters and packets, through the post offices."[306] Congress has also approved, usually by resolution, other executive agreements, such as the annexing of Texas and Hawaii and the acquisition of Samoa.[307] A prolific source of executive agreements has been the authorization of reciprocal arrangements between the United States and other countries for the securing of protection for patents, copyrights, and trademarks.[308]
The most copious source of executive agreements has been legislation which provided authority for entering into reciprocal trade agreements with other nations.[309] Such agreements in the form of treaties providing for the reciprocal reduction of duties subject to implementation by Congress were frequently entered into,[310] but beginning with the Tariff Act of 1890,[311] Congress began to insert provisions authorizing the Executive to bargain over reciprocity with no necessity of subsequent legislative action. The authority was widened in successive acts.[312] Then, in the Reciprocal Trade Agreements Act of 1934,[313] Congress authorized the President to enter into agreements with other nations for reductions of tariffs and other impediments to international trade and to put the reductions into effect through proclamation.[314]
In Field v. Clark,[315] legislation conferring authority on the President to conclude trade agreements was sustained against the objection that it attempted an unconstitutional delegation "of both legislative and treaty-making powers." The Court met the first objection with an extensive review of similar legislation from the inauguration of government under the Constitution. The second objection it met with a curt rejection: "What has been said is equally applicable to the objection that the third section of the act invests the President with treaty-making power. The Court is of opinion that the third section of the act of October 1, 1890, is not liable to the objection that it transfers legislative and treaty-making power to the President."[316] Although two Justices disagreed, the question has never been revived. However, in B. Altman & Co. v. United States,[317] decided twenty years later, a collateral question was passed upon. This was whether an act of Congress that gave the federal circuit courts of appeal jurisdiction of cases in which "the validity or construction of any treaty . . . was drawn in question" embraced a case involving a trade agreement which had been made under the sanction of the Tariff Act of 1897. The Court answered: "While it may be true that this commercial agreement, made under authority of the Tariff Act of 1897, § 3, was not a treaty possessing the dignity of one requiring ratification by the Senate of the United States, it was an international compact, negotiated between the representatives of two sovereign nations and made in the name and on behalf of the contracting countries, and dealing with important commercial relations between the two countries, and was proclaimed by the President. If not technically a treaty requiring ratification, nevertheless, it was a compact authorized by the Congress of the United States, negotiated and proclaimed under the authority of its President. We think such a compact is a treaty under the Circuit Court of Appeals Act, and, where its construction is directly involved, as it is here, there is a right of review by direct appeal to this court."[318]
The most extensive delegation of authority ever made by Congress to the President to enter into executive agreements occurred within the field of the cognate powers of the two departments, the field of foreign relations, and took place at a time when war appeared to be in the offing and was in fact only a few months away. The legislation referred to is the Lend-Lease Act of March 11, 1941,[319] by which the President was empowered for over two years--and subsequently for additional periods whenever he deemed it in the interest of the national defense to do so--to authorize "the Secretary of War, the Secretary of the Navy, or the head of any other department or agency of the Government," to manufacture in the government arsenals, factories, and shipyards, or "otherwise procure," to the extent that available funds made possible, "defense articles"--later amended to include foodstuffs and industrial products--and "sell, transfer title to, exchange, lease, lend, or otherwise dispose of," the same to the "government of any country whose defense the President deems vital to the defense of the United States," and on any terms that he "deems satisfactory." Under this authorization the United States entered into Mutual Aid Agreements under which the government furnished its allies in World War II with 40 billion dollars' worth of munitions of war and other supplies.
Overlapping of the treaty-making power through congressional-executive cooperation in international agreements is also demonstrated by the use of resolutions approving the United States joining of international organizations[320] and participating in international conventions.[321]
Appointments[edit | edit source]
Overview of Appointments Clause[edit | edit source]
The Appointments Clause requires that "Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States" be appointed by the President subject to the advice and consent of the Senate, although Congress may vest the appointment of "inferior" officers "in the President alone, in the Courts of Law, or in the Heads of Departments."[322] The Supreme Court has interpreted these requirements as distinguishing between two types of officers: (1) "principal" officers who must be appointed by the President and confirmed by the Senate to their position, and (2) "inferior" officers, whose appointment Congress may place with the President, judiciary, or department heads.[323] These constitutional provisions are instrumental in ensuring the separation of powers, as the Framers of the Constitution deliberately separated Congress's power to create offices in the federal government from the President's authority to nominate officers to fill those positions.[324] At the same time, placing the power to appoint principal officers with the President alone ensures a measure of accountability for his choices in staffing important government positions.[325]
While the Constitution specifies that certain persons, such as Supreme Court Justices, qualify as "Officers of the United States," the Appointments Clause does not specify all persons who fall under its purview. Thus, the Appointments Clause's reach and scope has been disputed. In the 1976 case of Buckley v. Valeo, the Supreme Court explained that whether an individual wields "significant authority" informs the assessment of whether that person is an officer, but the Court has not significantly elaborated on this test since that decision.[326] Likewise, determining the difference between "principal" and "inferior" officers has generated controversy. Examining the history of the appointment power in the United States and the treatment of the Appointments Clause by the Supreme Court can shed light on the structural makeup of the federal government and the balancing of power between the branches.
Historical Background on Appointments Clause[edit | edit source]
The deliberations at the Constitutional Convention in Philadelphia, major writings of the prominent supporters of ratification,[327] and the words and records of the state ratifiers of the federal Constitution reveal careful consideration about the proper method of appointment for federal offices. The delegates to the Constitutional Convention, in designing a system of appointments for federal government offices, drew on "their experiences with two flawed methods of appointment."[328]
First, the colonists who lived during the American Revolution resented the often unilateral power of the English Crown and the royal governors in the colonies to create and fill government offices.[329] The "manipulation of official appointments"--generally achieved by creating and filling the key offices of government with political favorites, who were in turn dependent on the entity who appointed them--was "one of the American revolutionary generation's greatest grievances against executive power."[330]
Second, many early state constitutions, adopted after the Declaration of Independence was written, reacted to the perceived abuses of the appointment power by the Crown and royal governors by lodging the power to appoint officials with the state legislature alone.[331] But placing the appointment power with state representative assemblies also caused considerable turmoil.[332] Those legislatures were seen as consolidating all governmental power--executive, judicial, and legislative--for themselves.[333] This consolidation of power "had become the principal source of division and faction in the states."[334] At least in the views of many delegates to the Constitutional Convention, the failure to give governors a stronger role in the appointment process was damaging to many state governments whose legislatures "had fallen easy prey to demagogues, provincialism, and factions" in their exercise of appointments.[335] Likewise, the Articles of Confederation--which provided the governing framework for the young Republic before the adoption of the federal Constitution--authorized the Continental Congress to appoint officers.[336]
The delegates to the Constitutional Convention at Philadelphia were aware of the weaknesses of these models of appointment, and thus chose instead to separate "the power to create federal offices . . . from the power to fill them."[337] They chose to vest Congress with the legislative power, including the authority to create federal offices, while the power "to appoint the most important officers" was placed with the single-person President, subject to confirmation by the Senate.[338] Separating the power to create offices from the authority to appoint officers would, in the words of James Madison, provide "[o]ne of the best securities against the creation of unnecessary offices or tyrannical powers."[339]
At the Constitutional Convention, an early general consensus emerged among the delegates that the chief executive should play a more prominent role in the appointment of officers whose method of appointment was "not otherwise provided for" specifically in the Constitution.[340] The delegates also debated where the power of appointment should be vested for a number of federal offices, including ambassadors, judges (including judges on the Supreme Court), as well as a treasurer.[341] Some argued that placing the appointment power with the legislature would result in factional disputes and partisanship; others that granting such authority to the Executive would tend too much towards a monarchical system of government.[342] The compromise that was eventually reached authorized the President to appoint high-level officers in the federal government, including certain postions named explicitly, as well as "all other officers" not mentioned, subject to Senate confirmation.[343] This arrangement avoided the potential weaknesses of a legislative body making appointments, but preserved a check on the excesses of the Executive by preventing the President from making appointments unilaterally.[344] Congress was also permitted to place the appointment of "inferior" officers with "the President alone, in the courts of law, or in the Heads of Departments."[345]
The Framers' decision to place the power to appoint principal officers with the President ensures accountability for his choices.[346] Placing the power of nomination with the President alone guarantees that the public knows who to blame for poor (or corrupt) choices.[347] Alexander Hamilton's arguments in the Federalist Papers, which "contain the most thorough contemporary justification for the method of appointing principals officers that the Framers adopted,"[348] stressed that placing the appointment power with a single individual, rather than a multi-member body, ensured a measure of accountability for those appointments.[349] Although the public can reasonably hold a single individual accountable for his appointment choices, doing so for a multi-member body is much more difficult as the individual ultimately responsible for an appointment is "impenetrable to the public eye."[350] Granting the appointment power to a single President was preferable to "a body of men" because a single individual would have a "livelier sense of duty and a more exact regard to reputation" in making appointments. A single President would have "fewer personal attachments to gratify[ ] than a body of men," and "cannot be distracted and warped by that diversity of views, feelings, and interests, which frequently distract and warp the resolutions of a collective body."[351] Rather than selecting the best candidate for an office on the merits, a collective body could simply trade votes in order to select their personal favorites based on "friendship and of affection."[352] On the other hand, requiring Senate concurrence with regard to major appointments served as "an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters."[353]
The Framers of the Constitution thus placed the power of appointment for principal officers with a single individual--the President--because a single actor would more likely be held accountable for his choices.[354] This principle of accountability extended to the Framers' provision that inferior officers may be appointed by the heads of executive departments, as the latter "possess a reputational stake in the quality of the individuals they appoint [and] are directly answerable to the President, who is responsible to his constituency."[355] Further, at the Constitutional Convention, the delegates were also careful to prevent the "diffusion" of the appointment power by strictly limiting who can make appointments.[356] The Framers' careful "husbanding [of] the appointment power to limit its diffusion . . . ensure[d] that those who wielded it were accountable to political force and the will of the people."[357] The importance of accountability for federal appointments and the crucial check the Appointments Clause provides between the branches of government are principles that have informed subsequent Supreme Court jurisprudence concerning the appointment of federal officials.
Process of Appointment for Principal Officers[edit | edit source]
The appointment of principal officers of the United States consists of three steps.[358] First, the President nominates an individual to an office; second, the Senate decides whether to confirm that person to the office; [359] and third, the President commissions the officer to the post.[360] The Supreme Court has made clear that compliance with the procedures established in the Constitution for the appointment of officers, both principal and inferior, is not a mere formality. Indeed, the Court has sometimes invalidated actions taken by individuals whose selection conflicts with the requirements of the Appointments Clause and has severed provisions of statutes that violate those constraints.[361]
As an initial matter, Senate confirmation of an individual nominated to an office is insufficient to vest an individual with an appointment to that office absent a final act of appointment by the President.[362] In other words, the President retains discretion not to appoint an individual even after Senate confirmation.[363] In the seminal Supreme Court case of Marbury v. Madison, the Supreme Court held that the relevant final act of appointment for principal officers is the signing of a commission by the President, which is expressly required by Article II, Section 3 of the Constitution.[364]
The controversy in Marbury arose when President Thomas Jefferson ordered his Secretary of State, James Madison, not to deliver a commission to William Marbury, even though his predecessor, President John Adams, had already signed the commission.[365] Marbury filed suit seeking a writ of mandamus to compel Madison to deliver the commission.[366] The Court, in an opinion by Chief Justice John Marshall, ultimately held that it lacked jurisdiction to issue mandamus because the statute authorizing the Court to do so violated Article III by improperly expanding the original jurisdiction of the Supreme Court.[367] Before reaching this conclusion, however, the Court ruled that Marbury did have a right to the commission because it had been signed by the President, thereby becoming "conclusive evidence" of Marbury's appointment.[368] Justice John Marshall reasoned that an appointment is complete once the "last act" required of the appointing authority is completed.[369] Because the last act required of the President, as the relevant appointing authority, was the signing of the commission, Marbury's appointment was completed when the President signed the commission.[370]
Ambassadors, Ministers, and Consuls Appointments[edit | edit source]
The appointment of foreign diplomats stands in some contrast to the appointment of most domestic officers. Given the lack of Supreme Court precedent on the appointment of foreign diplomats, it appears that the appointment of such positions is primarily informed by the historical practice of the political branches. As discussed later, while positions in the federal government occupied by "officers of the United States" are typically established through statute by Congress or via authority delegated by Congress,[371] the Executive Branch has generally taken the view that the President enjoys an independent, inherent authority to create diplomatic offices.[372] The Executive Branch has espoused this view for most of the Republic's history,[373] and it appears to find support in the earliest governmental practices.[374] The first Congresses appropriated money for conducting foreign relations but did not create any diplomatic posts; instead, Presidents simply appointed diplomats, subject to Senate confirmation.[375] Generally speaking, it seems that Congress has acceded to this practice.[376] In other words, the President has often appointed ambassadors to foreign countries even though no congressional statute explicitly created a particular diplomatic office to fill. At the same time, Congress has exercised some control over the creation and operation of foreign diplomatic posts, including by appropriating specific sums of money for salaries, creating particular offices which are then filled by the President, and imposing requirements for the selection of foreign officers via statute.[377]
Notwithstanding the practice of presidential appointment of diplomats to posts not necessarily created by statute, those diplomatic offices are generally considered to possess "the delegated sovereign authority to speak and act on behalf of the United States" and their selection must comply with the requirements of the Appointments Clause.[378] Writing in the Federalist Papers, Alexander Hamilton noted that ambassadors and other public ministers are "the immediate representatives of their sovereigns" and consuls are the "public agents" of the nation.[379] The view that such foreign diplomats constitute officers whose appointment must comply with the Appointments Clause is confirmed by the earliest historical practices of the Republic. For instance, President George Washington nominated William Short to be "charge d'affaires"[380] for France in 1789, and nominated ministers to London, Paris, and the Hague in 1791.[381] All were confirmed by the Senate.[382] The Executive Branch has consistently expressed its view that ambassadors, ministers, and consuls constitute officers of the United States whose appointments must conform to the Appointments Clause.[383]
In contrast, Presidents have routinely dispatched envoys, emissaries, and secret (sometimes known as special) agents on limited diplomatic missions without nominating them to the Senate.[384] In one of his first acts as President, George Washington unilaterally appointed Gouverneur Morris as a "special agent" to England to consider the possibility of a commercial treaty.[385] Additionally, President Thomas Jefferson unilaterally appointed Senator Daniel Smith to negotiate treaties with the Cherokee Indians.[386] The justification for this historical practice appears to be that such agents are not officers of the United States under the Appointments Clause because their duties are limited in duration and exist only for a temporary purpose.[387]
Appointments of Justices to the Supreme Court[edit | edit source]
The Appointments Clause provides that the President shall appoint, subject to Senate confirmation, "Judges of the supreme Court, and all other officers of the United States."[388] Thus Supreme Court Justices are officers of the United States whose appointment must comply with the requirements of the Appointments Clause. Importantly, the Constitution provides that presidential nominees are subject to the "advice and consent" of the Senate. A range of matters are potentially relevant when the Senate considers whether to give its consent for nominations to the Nation's highest court, including political considerations, a nominee's judicial philosophy, fitness for the bench, past statements on issues relevant to the Court, and the overall balance of power between political factions.
Since the beginning of the Nation's history, just as the confirmation of Executive Branch officers has included political considerations, so to have nominees to the Supreme Court been accepted or rejected on political grounds.[389] For instance, the Senate rejected President George Washington's choice to replace the first Chief Justice of the Supreme Court on largely political considerations.[390] In 1795, President Washington chose John Rutledge, who had previously served on the Supreme Court as an Associate Justice from 1789 to 1791, to replace John Jay, who had been elected Governor of New York.[391] After serving on the Court from 1789 to 1791, Rutledge had resigned his seat in order to serve as the chief justice of South Carolina's Supreme Court.[392] Prior to receiving a nomination to serve as Chief Justice on the U.S. Supreme Court, however, Rutledge gave a speech critical of the Jay Treaty reached with Great Britain, which had recently been approved for ratification by the Senate on June 24, 1795.[393] The Federalists strongly supported the treaty, and their opposition in the Senate to Rutledge's views ultimately sunk his nomination.[394] The Senate voted to reject the nomination in December 1795.[395] Of course, the Senate is not unique in considering politics and partisan considerations in this arena--every one of the twelve appointments President Washington made to the Supreme Court came from the Federalist Party,[396] and subsequent Presidents have considered politics in making their own appointments.[397]
Indeed, the political landscape profoundly informs and shapes the Supreme Court nomination and confirmation process. For instance, the timing of a Supreme Court vacancy can be crucially important: a vacancy occurring shortly before an election can alter the type of candidate that can realistically be confirmed; and prominent legal issues facing the country can affect the scope of appropriate views that a nominee must have.[398] The Senate's composition can also restrict a President's choices of who to nominate. A shift in party control of the Senate can dramatically alter the type of nominees a President can expect to be confirmed.[399] Likewise, public opinion of the President can shape the type of nominee a President can expect the Senate to support: a President with strong approval ratings, for instance, might face an easier task in achieving confirmation for a Justice, or might enjoy broader leeway in the type of Justice he could nominate in the first place.[400] An outgoing Justice's attributes can narrow the options available to a President. The President might find himself limited to moderate nominees when replacing a Justice seen as a swing vote on the Court. He might also find replacing a pillar of the right or left to require a nominee that appeals to one political side more strongly.[401] Finally, traditional norms of professional expectations play a role in circumscribing the eligible range of potential Supreme Court nominees--every single Justice has been a lawyer (though this is not required by the Constitution); since 1943, all Justices have graduated from accredited law schools; and most modern Justices graduated from top-ranked law schools and served on federal courts or in academia before confirmation.[402]
The rise of interest groups influencing the selection of Supreme Court Justices also reflects the increasing role of issue partisanship in the process. The nomination of Louis Brandeis to the Court in 1916 sparked a four month struggle with opposition from big business and past presidents of the American Bar Association.[403] Objections to his nomination included his judicial temperament and character, the alleged radicalism of his views, and also arguably reflected an anti-Semitic character.[404] He was eventually confirmed with the support of labor, consumer, and some religious groups.[405] Opposition to President Ronald Reagan's nomination of Robert Bork to the Supreme Court is a particularly prominent example of the role interest groups may play.[406] Both labor and civil rights groups mounted significant opposition to the nomination. In the wake of that opposition's success, conservative groups were organized to counteract the perceived role of liberal interest organizations in influencing judicial nominations.[407]
Another important development regarding the selection of Supreme Court nominees is the increasingly public nature of the process. It was not until the twentieth century that open hearings were held over a Supreme Court nomination.[408] In 1916, the Senate did so for the nomination of Louis Brandeis.[409] Nine years later, Harlan Fiske Stone was the first nominee to appear personally before the Senate Judiciary Committee.[410] Stone's testimony was limited to the Teapot Dome Scandal. In 1939, Felix Frankfurter appeared before the Senate Judiciary Committee and was "the first nominee to take unrestricted questions in an open, transcribed, public hearing."[411] Almost all nominees since 1955 have testified formally before the Senate Judiciary Committee.[412] Those hearings have been televised since 1981.[413] Finally, the particular procedures used by the Senate in considering nominations can affect the likelihood of confirmation for a Supreme Court Justice. In cases where the Senate has eliminated the sixty vote threshold necessary for confirmation, it may be easier to confirm a nominee to the bench (notwithstanding accompanying political ramifications).[414]
Creation of Federal Offices[edit | edit source]
The Constitution gives Congress substantial power to establish federal government offices. As an initial matter, the Constitution vests the legislative power in Congress.[415] Article I bestows on Congress certain specified, or enumerated, powers.[416] The Court has recognized that these powers are supplemented by the Necessary and Proper Clause, which provides Congress with "broad power to enact laws that are 'convenient, or useful' or 'conducive' to [the] beneficial exercise" of its more specific authorities.[417] The Supreme Court has observed that the Necessary and Proper Clause authorizes Congress to establish federal offices.[418] Congress accordingly enjoys broad authority to create government offices to carry out various statutory functions and directives.[419] The legislature may establish government offices not expressly mentioned in the Constitution in order to carry out its enumerated powers.[420]
The Appointments Clause supplies the method of appointment for certain specified officials, but also for "other [o]fficers" whose positions are "established by [l]aw." Although principal officers must be nominated by the President and confirmed by the Senate, Congress "may by [l]aw" place the appointing power for inferior officers with the President alone, a department head, or a court.[421] As this section will explain, the Supreme Court has recognized Congress's discretion to establish a wide variety of governmental entities in the Executive, Legislative, and Judicial Branches.
Congress's authority to establish offices is limited by the terms of the Appointments Clause. The structure of federal agencies must comply with the requirement that the President appoint officers, subject to Senate confirmation, although the appointment of "inferior officers" may rest with the President alone, department heads, or the courts.[422] More broadly, the Supreme Court has made clear that the Constitution imposes important limits on Congress's ability to influence or control the actions of officers once they are appointed. Likewise, it is widely believed that the President must retain a certain amount of independent discretion in selecting officers that Congress may not impede. These principles ensure that the President may fulfill his constitutional duty under Article II to "take [c]are" that the laws are faithfully executed.[423]
Creation of Federal Offices with Blended Features[edit | edit source]
The Supreme Court has recognized that the Constitution grants broad discretion to Congress to establish various offices across the federal government. Aside from Congress's clear authority to create Executive Branch offices to be filled by officers that execute the law,[424] as well as federal courts filled with judicial officers to adjudicate cases and controversies,[425] Congress may sometimes merge features of various federal entities and establish unique agencies within the federal government. For instance, in the 1989 case of Mistretta v. United States, the Court ruled that the structure of the United States Sentencing Commission, an entity placed by Congress in the Judicial Branch and charged with promulgating sentencing guidelines for the federal courts, did not violate the separation of powers.[426] The Commission was composed of seven voting members appointed by the President with Senate confirmation.[427] The law required at least three members to be federal judges, and the President could remove Commission members for cause.[428] The challenger in that case argued, among other things,[429] that Congress's delegation of power to the Judiciary, and individual Article III judges, to promulgate sentencing guidelines was unconstitutional as it enlisted the Judiciary in exercising legislative authority.[430] In addition, the challenger argued that Congress had "eroded the integrity and independence of the Judiciary" by forcing Article III judges to share their power with non-judges and engage in the political work of promulgating sentencing guidelines. Further, while Article III judges enjoy constitutional protection from removal except for impeachment, here the statute required Article III judges to serve on the Commission subject to removal by the President.[431]
Acknowledging that the Commission constituted "an unusual hybrid in structure and authority" within the federal government, the Supreme Court upheld, in a vote of 8-1, the constitutionality of the Commission's design and duties.[432] In an opinion by Justice Harry Blackmun, the Court first examined whether creating an independent body, placed in the Judicial Branch, with the power to issue sentencing guidelines "vested in the Commission powers that are more appropriately performed by the other Branches or . . . undermine[d] the integrity of the judiciary."[433] The Court noted that "Congress may delegate to the Judicial Branch nonadjudicatory functions that do not trench upon the prerogatives of another Branch and that are appropriate to the central mission of the Judiciary."[434] Because judges have historically exercised discretion in sentencing decisions and the Judiciary has long exercised authority to issue rules "for carrying into execution [its] judgments," the Court reasoned that Congress could combine these features in the Commission and entrust it with the power to promulgate sentencing guidelines.[435] Although technically located in the Judicial Branch, the Commission's powers, the Court observed, were not unconstitutionally "united with the powers of the Judiciary."[436] The Commission was not a court, did not exercise judicial power, and was not controlled by the Judicial Branch; instead, the Commission was an independent agency accountable to Congress and its members were removable by the President.[437] In addition, placement of the Commission in the Judicial Branch did not increase that branch's authority.[438] Judges had historically decided sentencing questions in individual cases; the Commission simply did this via the promulgation of sentencing guidelines.[439]
The Court next turned to the composition of the Commission and concluded that its design did not undermine the integrity of the Judicial Branch.[440] The service of three federal judges on the Commission, though "somewhat troublesome" in the eyes of the Court, did not on balance interfere with the integrity of the federal Judiciary as a whole.[441] The Court looked to the early historical practices of the country and determined that Article III of the Constitution did not bar judges from undertaking certain extrajudicial duties.[442] The judges on the Commission did not serve "pursuant to their status and authority as Article III judges, but solely because of their appointment by the President as the Act directs."[443] The power wielded by the judges as Commissioners thus was not judicial in nature, but administrative, pursuant to the legislation creating the commission.[444] The judges' service did not ultimately undermine the impartiality of the Judiciary because the Commission's task did "not enlist the resources or reputation of the Judicial Branch in either the legislative business of determining what conduct should be criminalized or the executive business of enforcing the law."[445] Instead, the Commission was dedicated to promulgating rules for sentencing, a topic traditionally within the province of the Judiciary.[446]
Finally, the Court examined the extent of the President's control over the Commission's functioning.[447] The Court determined that the President's power to remove the Commissioners for cause did not "compromise the impartiality" of the Judiciary or prevent that branch from performing its constitutional function because, even if removed as a Commissioner, a judge retained the status of an Article III judge.[448]
Federal Versus Territorial Officers[edit | edit source]
Not every office created by Congress is a federal office subject to the Appointments Clause.[449] In Financial Oversight & Management Board for Puerto Rico v. Aurelius Investment, LLC, the Court considered the constitutionality of an oversight board (the Board) that Congress created in 2016 to manage financial issues of the Commonwealth of Puerto Rico, a U.S. territory.[450] Writing for the Court, Justice Stephen Breyer explained that provisions in Articles I and IV of the Constitution "empower Congress to create local offices for the District of Columbia and for Puerto Rico and the Territories."[451] Based on the Constitution's text, structure, and history, the Court reasoned that creating a local office "does not automatically make its holder an 'Officer of the United States'" within the meaning of Article II's Appointments Clause.[452] At the same time, an official's location in a territory does not, standing alone, exempt that office from the Appointment Clause's reach.[453] Instead, when Congress exercises its Article I or IV powers to create a local or territorial office, the Court examines whether Congress vested that official with "primarily local powers and duties."[454] If so, the official is not an "Officer of the United States" subject to the Appointments Clause.[455]
Based on the text of the 2016 law, the Aurelius Court concluded that when Congress created the Board, it exercised its Article IV powers under the Territories Clause.[456] And the Court concluded that the powers and duties that Congress assigned to the Board were "primarily local in nature."[457] Justice Breyer cited several factors that "taken together" demonstrated the Board's local nature: (1) the government of Puerto Rico paid the Board's expenses; (2) the Board developed fiscal plans with the elected government of Puerto Rico and could initiate bankruptcy proceedings for Puerto Rico; and (3) the Board's "broad investigatory powers"--akin to what federal officers exercise--were "backed by Puerto Rican, not federal, law."[458] Accordingly, the Court held that Board members were territorial officers, not federal "Officers," and thus their selection need not comply with the Appointments Clause.[459]
Restrictions on Congress's Authority[edit | edit source]
While Congress enjoys a certain amount of discretion when designing federal agencies, the Supreme Court has regularly invalidated congressional attempts to "aggrandiz[e] its own power at the expense of another branch."[460] For instance, while Congress may undoubtedly establish a wide variety of federal offices to carry out statutory duties, it may not appoint its own Members to carry out executive functions or reserve for itself the power of appointment.[461] In the 1991 case of Metropolitan Washington Airports Authority v. Citizens for the Abatement of Aircraft Noise, the Supreme Court examined the constitutionality of legislation that authorized a review board composed of Members of Congress to review and reverse decisions of the Metropolitan Washington Airports Authority (MWAA).[462] The MWAA is a regional body established to oversee the management and operations of Ronald Reagan Washington National Airport and Dulles International Airport.
The Court first ruled that Members of Congress on the Board exercised federal authority, even though the law specified that they would serve "in their individual capacities"[463] as opposed to serving in their official role as legislators.[464] In support of this conclusion, the Court noted that control over the airports in question was originally placed with the federal government and was transferred to the MWAA on condition that the States create the Board; the federal government has a significant interest in the operation of airports, which are crucial to government operations; and membership on the Board was limited to federal officials.[465]
Moreover, Congress exercised significant power over the appointment and removal of the Board members. The law required that the Board consist of nine members of Congress, eight of whom had to sit on specific congressional committees, chosen from a list provided by congressional leadership.[466] There was no requirement that the lists contain more recommendations than openings on the Board.[467] The Court concluded that this structure ensured congressional control of appointments.[468] Further, by controlling committee assignments, Congress had removal power over the Board "because depriving a Board member of membership in the relevant committees deprives the member of authority to sit on the Board."[469]
The Court ruled that the statute's provision requiring Members of Congress to sit on the Board violated the separation of powers.[470] The Court did not expressly decide whether the Board's power was executive or legislative in nature, but reasoned that, no matter how it was characterized, the statute's grant of authority to the Board was not constitutional.[471] If the Board's power was executive in nature, the Court explained, the Constitution barred an agent of Congress from exercising it; and if the Board's power was legislative, then the Board could not operate without following the constitutional requirements of bicameralism and presentment for legislative action.[472]
Congress's control over appointments is further limited on the question of who can remove an incumbent officer.[473] In the 1986 case of Bowsher v. Synar, the Supreme Court invalidated a statute that gave an official controlled by Congress the power to order a decrease in federal spending.[474] A 1985 act[475] gave the Comptroller General authority, in the event of a budget shortfall, to issue a report detailing federal revenue and expenditure estimates, along with the specific reductions needed to cut the deficit to meet a statutory target.[476] The President was then required to order the "sequestration" of those funds pursuant to the Comptroller General's report.[477] The Court held that the Comptroller's power to trigger sequestration violated the separation of powers because a preexisting provision authorized Congress to remove the Comptroller General, who Congress viewed as an officer of the legislature,[478] through a joint resolution.[479] The High Court explained that the Constitution's division of power among the three branches of government barred "an active role for Congress in the supervision of officers charged with the execution of the laws it enacts."[480] The Court rejected the argument that the Comptroller Generalwas sufficiently independent from Congress such that there was no constitutional violation. The power of removal, for the Court, is a crucial tool of control; Congress's ability to remove the Comptroller General "dictate[s] that he will be subservient to Congress."[481] As a remedy for this constitutional defect, the Court left Congress's removal power in place, but invalidated the executive functions given to the Comptroller General.[482]
Just as Congress may not appoint Members to wield executive power or exercise direct control over Executive Branch officers, its authority to impose procedural restrictions on the President's nomination of an officer may also be limited. This issue arose in the 1989 Supreme Court case of Public Citizen v. Department of Justice, which examined whether the Federal Advisory Committee Act (FACA) applied to consultations between the Department of Justice (DOJ) and the American Bar Association's Standing Committee on Federal Judiciary (ABA Committee).[483] The FACA required committees that advise the President, or other officers and agencies in the federal government, to follow a number of procedural requirements, such as filing a charter; keeping detailed minutes of meetings; and having meetings chaired by a federal government employee or officer authorized to adjourn any meeting.[484] The Court considered whether the Act covered consultations between DOJ and the ABA Committee regarding presidential nominations of federal judges. It noted that a strictly literal interpretation of the statute would conceivably reach every instance in which the President or an agency sought advice from "any group of two or more persons, or at least any formal organization," including private entities.[485] The Court concluded that Congress did not intend that result, as it would mean the procedural requirements of FACA applied every time the President sought the views of a group of two or more people, "or at least any formal organization."[486]
Accordingly, the Court examined Congress's intention in passing the FACA, including that Act's legislative history as well as the history of other efforts "to regulate the Federal Government's use of advisory committees."[487] The Court reasoned that it ultimately was a "close question whether FACA should be construed to apply to the ABA Committee," but constitutional considerations "tip[ped] the balance decisively against FACA's application."[488] The Court invoked the concept of constitutional avoidance, which essentially teaches that when faced with statutory ambiguity, if one interpretation of a statute would raise constitutional problems, but another, fairly possible interpretation does not, courts should adopt the latter construction.[489] The Court concluded that applying FACA to DOJ's consultations with the ABA Committee "would present formidable constitutional difficulties," namely, potentially infringing on the President's constitutional duty under Article II to nominate federal judges.[490] The Court accordingly concluded that FACA did not apply to DOJ's confidential consultations with the ABA Committee.[491]
Officer and Non-Officer Appointments[edit | edit source]
Supreme Court case law concerning which individuals in the federal government constitute "Officers of the United States"--and thus must be appointed pursuant to the requirements of the Appointments Clause--has been relatively sparse over the course of the Nation's history,[492] with many of the key Supreme Court decisions occurring in the late twentieth and early twenty-first centuries.[493] In one of the earliest cases addressing the issue, Chief Justice John Marshall, riding circuit in the 1823 case of United States v. Maurice, defined an officer as one entrusted with a duty that is "a continuing one, which is defined by rules prescribed by the government, and not by contract, which an individual is appointed by government to perform."[494] A similar principle was espoused in an opinion issued by Attorney General Hugh Legare in 1843, wherein he contrasted the appointment of "permanent" customs inspectors who qualify as officers of the United States, with the appointment by customs collectors of "occasional inspectors" who do not.[495] In 1878, the Supreme Court held in United States v. Germaine that federal civil surgeons were employees not subject to the constitutional requirements of the Appointments Clause, rather than officers, because their positions were "occasional and intermittent," rather than "continuing and permanent."[496] However, some of the Court's early decisions addressing which individuals constitute officers tended not to examine closely the substantive differences between officers and non-officers, and instead simply relied on an individual's method of appointment.[497] In other words, according to some of these early cases, no matter the duties assigned to a position, if an individual was not appointed according to the strictures of the Appointments Clause, then by definition he or she could not constitute an officer; but if an individual was appointed pursuant to the Appointments Clause, then he or she did qualify as an officer.[498]
In the 1976 case of Buckley v. Valeo, the Court established that "Officers of the United States" are those persons "exercising significant authority pursuant to the laws of the United States."[499] In that case, the Court examined the appointment of members of the Federal Election Commission (FEC) charged with regulating federal elections by enforcing the Federal Election Campaign Act.[500] The FEC was composed of six members: four nominated by congressional leadership and two by the President, all of whom were subject to confirmation by both the Senate and House.[501] In examining whether the FEC members wielded significant authority, the Buckley Court distinguished among three types of powers the members exercised: functions concerning (1) the flow of information--"receipt, dissemination, and investigation"; (2) the implementation of the statute--"rulemaking and advisory opinions"; and (3) the enforcement of the statute"informal procedures, administrative determinations and hearings, and civil suits."[502]
The Buckley Court held that the first category of FEC duties could be performed by non-officers because they were "investigative and informative," essentially "in aid of the legislative function of Congress."[503] Such functions could therefore be exercised by individuals not appointed in conformity with the Appointments Clause.[504] The latter two categories of functions, however, were executive in nature and constituted "significant authority." The duties regarding implementation of the statute--including rulemaking, disbursal of funds, and decisions about who may run for a federal office--constituted significant authority that could be executed only by "Officers of the United States."[505] Likewise, the power to enforce the underlying statute, "exemplified by [the Commissioner's] discretionary power to seek judicial relief" by instituting civil litigation to vindicate public rights, amounted to authority that, according to the Court, must be exercised by an officer appointed pursuant to the Appointments Clause.[506] In a footnote, the Court contrasted the duties of officers with "employees of the United States," who are "lesser functionaries subordinate to officers" and may be selected outside of the requirements of the Appointments Clause.[507] The Court thus concluded that most of the powers granted to the FEC could only be wielded by officers of the United States, and therefore could not be exercised by the FEC because the selection of its members did not comply with the Appointments Clause.[508]
Nearly fifteen years after Buckley, the Supreme Court's opinion in Freytag v. Commissioner of Internal Revenue again examined what responsibilities make an individual an officer of the United States, concluding that a special trial judge of the U.S. Tax Court qualified as such an officer.[509] The Court ruled that special trial judges were officers because of the "significance of the duties and discretion" they possessed.[510] First, the Court noted that the office of special trial judge was "established by Law"[511] and its "duties, salary, and means of appointment" were specified in statute.[512] The Court contrasted the special trial judges with the position of special masters, who temporarily assisted Article III judges on an "episodic" basis, and whose positions, duties, and functions were not "delineated in a statute."[513] Second, special trial judges were entrusted with duties beyond "ministerial tasks," exercising significant discretion in taking testimony, conducting trials, ruling on evidence, and enforcing compliance with discovery orders.[514] In addition, the Court noted that, even leaving aside these duties, special trial judges qualified as officers because the underlying statute authorized special trial judges, in certain circumstances, to render independently binding decisions.[515] The Commissioner conceded that for these purposes, special trial judges acted as officers, but argued that the petitioners lacked standing to challenge those aspects of the judges' power.[516] The Court rejected this contention, concluding that it made no sense to consider special trial judges to operate as officers for some purposes, but not others.[517]
In the 2018 case of Lucia v. SEC, the Supreme Court reaffirmed its analysis in Freytag and concluded that administrative law judges (ALJs) within the Securities and Exchange Commission (SEC) qualified as officers of the United States.[518] The Court reasoned that because the duties of SEC ALJs essentially mirrored those of the special trial judges in Freytag, the SEC ALJs also constituted officers.[519] As an initial matter, both held "a continuing office established by law."[520] Further, special trial judges and SEC ALJs "exercise[d] the same 'significant discretion' when carrying out the same 'important functions.'"[521] Both types of officials were authorized to (1) "take testimony,"[522] (2) "conduct trials,"[523] (3) "rule on the admissibility of evidence,"[524] and (4) were entrusted with "the power to enforce compliance with discovery orders."[525] Moreover, the Court observed, SEC ALJs actually had somewhat more independent authority to render decisions than did the special trial judges in Freytag: while a major decision made by the special trial judges had no force unless a Tax Court judge adopted it as his own, the SEC could decline to review an ALJ's decision, in which case the decision became final and was "deemed the action of the Commission."[526] Accordingly, because SEC ALJs were "near-carbon-copies" of the special trial judges in Freytag, they were officers who must be appointed pursuant to the Appointments Clause.[527] Importantly, the Court declined to elaborate on the significant authority test for determining whether an individual is an officer, reasoning that its analysis in Freytag resolved the case before it.[528] Because the petitioner had raised a "timely" Appointments Clause challenge, the Court remanded the case for a new hearing before a properly appointed ALJ or the Commission itself.[529]
In addition, while not directly applying the significant authority test to determine whether an individual counts as an officer, at least one other case discussed previously may at least shed some light on what types of duties might be relevant in determining if an individual qualifies as an officer, at least in the Executive Branch. In the 1986 case of Bowsher v. Synar,[530] the Court held that a statute authorizing an official controlled by Congress to carry out duties that were executive in nature violated the separation of powers.[531] The statute entrusted the Comptroller General with preparing a report detailing estimates of projected federal revenues and outlays as well as any necessary reductions to reduce the projected deficit to a specified target.[532] The Court reasoned that this required the Comptroller to "exercise judgment concerning facts that affect the application of the Act [and] interpret the provisions of the Act to determine precisely what budgetary calculations are required."[533] The Comptroller enjoyed the final authority to determine budgetary cuts; and the President himself had to carry out the official's directives.[534] The Court concluded that these duties were executive in nature.[535] However, under a statute passed years before, only Congress could remove the Comptroller through a joint resolution.[536] The Court ruled that, by placing executive power in an officer that Congress itself controlled, the legislature had "intruded into the executive function" and violated the Constitution's separation of powers.[537]
Principal and Inferior Officers[edit | edit source]
Overview of Principal and Inferior Officers[edit | edit source]
The Appointments Clause[538] establishes two tiers of officers:[539] (1) principal (or superior) officers, who must be appointed by the President with the Senate's advice and consent;[540] and (2) inferior officers, who must be appointed in the same manner unless Congress, by law, has vested their appointment in the President alone, in a court, or in a department head.[541] Both types of "officers" are those individuals who occupy positions that wield "significant authority."[542] The difference between the two is nevertheless important as the Constitution provides different requirements for their appointment. The Supreme Court has observed that the Framers provided "little guidance" into where the line between principal and inferior officers "should be drawn."[543] Accordingly, the Court has fashioned its own standards for distinguishing these officers which have evolved over time.
The focus of the Court's analysis in cases addressing the difference between principal and inferior officers has varied over time. The Court's early Appointments Clause cases did not present a clear picture of the differences between principal and inferior officers, often focusing on the method Congress prescribed for a given officer's appointment or the duration of an officer's tenure.[544] When questions concerning the principal-inferior officer distinction surfaced again in the second half of the twentieth century, the Court applied a functional, mulit-factor analysis, which emphasized that inferior officers, relative to principal officers, had more constrained duties and less discretion.[545] In 1997, the Court took a more formalist approach in defining the line between principal and inferior officers, holding that an inferior officer is one "whose work is directed and supervised at some level by others who were appointed by presidential nomination with the advice and consent of the Senate."[546]
Early Doctrine on Principal and Inferior Officers[edit | edit source]
In cases arising in the nineteenth century and the early twentieth century, the Supreme Court--when it analyzed the issue at all--considered a range of factors in determining whether an official was a principal or an inferior officer, including who appointed the individual, the nature and purpose of the position established by Congress, the historical practice surrounding the appointment of such officials, and the practical consequences of requiring a particular method of appointment.[547] The following cases illustrate the Court's varied approaches to the question.
In Ex parte Hennen, the Supreme Court considered the authority of the U.S. District Court for the Eastern District of Louisiana (Louisiana district court) to appoint, and later to remove, the clerk of that court.[548] The Court held that without question, "a clerk is one of the inferior officers contemplated by [the] provision" in the Appointments Clause allowing Congress to vest the appointment of inferior officers in the courts of law.[549] The Court appeared to base its holding on the fact that Congress, through a series of statutes, established the Louisiana district court and directed the judge of that court to appoint a clerk.[550] In other words, Congress may have thought that clerks did not need to be appointed by the President because they did not constitute principal officers.
In Ex parte Siebold, the Supreme Court considered, among other issues, whether Congress had the authority to enact a law that required federal circuit courts to appoint election supervisors, who would monitor voting precincts within states where elections for congressional office were held. The challengers alleged that the election supervisors' duties were "entirely executive" (rather than judicial) in nature, so courts should not be permitted to appoint such officers.[551] The Court analyzed the constitutionality of the allegedly interbranch appointments on the apparent assumption that election supervisors were inferior officers.[552] The Court reasoned that although "[i]t is no doubt usual and proper to vest the appointment of inferior officers in that department of the government, executive or judicial, or in that particular executive department to which the duties of such officers appertain," the Constitution does not contain an "absolute requirement to this effect."[553]
Just before the turn of the century, in United States v. Eaton, the Supreme Court considered the constitutionality of a statute allowing the President to "provide for the appointment of vice-consuls . . . in such manner and under such regulations as he shall deem proper," in view of the Appointments Clause's requirement of presidential nomination and Senate confirmation for the appointment of "consuls."[554] The Court held that vice-consuls, as defined in the statute, were inferior officers.[555] The Court looked to the nature of the office and noted that it was temporary and subordinate to other offices. In particular, the President could only appoint vice-consuls in temporary situations, when there was an absence or vacancy. Even though vice-consuls assumed the duties of their superior officers in those circumstances,[556] the Court reasoned that the delegation was "for a limited time and under special and temporary conditions," and thus did not "transform[ ]" the vice-consuls into principal officers.[557]
The Court also examined historical practices concerning the vice-consul position. The Court noted that while vice-consuls were nominated by the President and confirmed by the Senate in "the earlier periods of the Government," those vice-consuls served as "permanent and in reality principal officers."[558] The Executive's prevailing practice in the case of consular office vacancies was to pay the acting officials as "de facto officers" for their temporary service, without requiring an appointment.[559] Finally, the Court expressed concern that "the discharge of administrative duties would be seriously hindered" if the Court invalidated "any and every delegation of power to an inferior to perform under any circumstances or exigency the duties of a superior officer."[560]
The Court thus concluded that the Appointments Clause's reference to "consuls" (who appear to qualify as principal officers) "does not embrace a subordinate and temporary office like that of vice-consul as defined in the statute."[561] Because vice-consuls qualified as inferior officers, Congress could place the power to appoint them with the President alone as provided in the Appointments Clause.
In its 1931 decision in Go-Bart Importing Co. v. United States, the Court determined that a United States commissioner was an inferior officer based on his relationship with the federal district court that appointed him.[562] At that time, a federal statute authorized federal district courts to appoint commissioners, and authorized the commissioners to perform numerous functions, including making arrests, imposing pretrial imprisonment or bail, issuing warrants, and enforcing the arbitration awards of foreign consuls in certain disputes.[563] The Court held that, at least on the facts of the Go-Bart case, in considering the commissioner's ability to issue an arrest warrant and conducted an arraignment, the commissioner was an inferior officer.[564] The Court reasoned that all of the commissioner's acts "were preparatory and preliminary to a consideration of the charge by a grand jury and . . . [upon indictment,] the final disposition of the case in the district court."[565] In this regard, the Court reasoned, the commissioner "acted not as a court, or as a judge of any court, but as a mere officer of the district court in proceedings of which that court had authority to take control at any time."[566]
As the foregoing cases demonstrate, no clear line separated principal from inferior officers during this time.
Modern Doctrine on Principal and Inferior Officers[edit | edit source]
In the late twentieth century, in cases addressing the difference between principal and inferior officers, the Court began to emphasize the duties and discretion accompanying each office in a multi-factor analysis.[567]
In the 1988 case of Morrison v. Olson, the Court considered the constitutionality of the "independent counsel" provisions of the Ethics in Government Act.[568] The Act required the Attorney General to conduct a preliminary investigation into potential violations of certain federal criminal laws by certain high-ranking federal officials and to report his findings to a special court created by the act called the Special Division.[569] It also authorized the Special Division to appoint an independent counsel upon the Attorney General's application.[570]
In considering whether this independent counsel was a principal or an inferior officer, the Court declined to decide "exactly where the line falls" between the two types of officers.[571] However, in the Court's view, "several factors" placed the independent counsel squarely on the "'inferior officer' side of that line."[572] First, the Attorney General had the authority to remove the independent counsel, which suggested that the latter was "to some degree 'inferior' in rank and authority."[573] Second, Congress, through the Ethics in Government Act, limited the independent counsel's role to investigating and prosecuting specific federal crimes, granting him or her no authority to formulate federal policy or to exercise administrative duties apart from those necessary to operate this office.[574] Third, the Special Division defined and thereby circumscribed the independent counsel's prosecutorial jurisdiction to a "limited" sphere.[575] And fourth, the independent counsel's office was temporary in that it terminated upon the conclusion of the investigation.[576] The Court held that "these factors relating to the 'ideas of tenure, duration . . . and duties' of the independent counsel are sufficient to establish that appellant is an 'inferior' officer in the constitutional sense."[577]
In Edmond v. United States, the Supreme Court considered whether judges of the Coast Guard Court of Criminal Appeals (Coast Guard Court) were principal or inferior officers in order to determine the constitutionality of the Secretary of Transportation's appointments of civilian judges to that court.[578] The Supreme Court began by observing that its cases up to that point had "not set forth an exclusive criterion for distinguishing between principal and inferior officers"[579] and that Coast Guard Court judges did not share all of the characteristics of officials previously held to be inferior officers.[580] For instance, the position of Coast Guard Court judge was not limited in tenure or jurisdiction in the same way as the independent counsel position deemed to be an inferior office in Morrison.[581] Although the Supreme Court acknowledged that the Coast Guard Court judges exercised "significant authority on behalf of the United States" (and were therefore officers), it held that such authority is a shared feature of inferior and principal officers and "marks, not the line between principal and inferior officer[s] . . . [but] the line between officer and non-officer."[582] Departing from its functional analysis in Morrison, the Court applied a more formal test--inferior officers are those "whose work is directed and supervised at some level by others who were appointed by presidential nomination with the advice and consent of the Senate."[583]
The Supreme Court proceeded to identify two entities that directed and supervised the Coast Guard Court judges' work.[584] The first, the Judge Advocate General, exercised "administrative oversight" over the court by prescribing procedural rules for the court and formulating policies applicable to appeals of court-martial cases.[585] The Judge Advocate General also had authority to remove Coast Guard Court judges from their judicial assignments at will.[586] The Supreme Court observed that the second entity exercising supervisory authority--the Court of Appeals for the Armed Forces (Appeals Court)--reviewed decisions of the Coast Guard Court in certain circumstances. In such cases, the Appeals Court deferred to the factual findings of the Coast Guard Court when there was "some competent evidence in the record to establish each element of the offense beyond a reasonable doubt" but ultimately had the power to reverse the Coast Guard Court's decisions.[587] The Supreme Court held that in view of the supervisory roles of the Judge Advocate General and the Appeals Court, and notwithstanding the limitations on the latter's scope of review, the Coast Guard Court judges had "no power to render a final decision on behalf of the United States unless permitted to do so by other executive officers," and thus were inferior, not principal, officers.[588] Accordingly, the Court affirmed the validity of the Secretary of Transportation's civilian appointments to the Coast Guard Court.[589]
In 2010, the Supreme Court decided Free Enterprise Fund v. Public Company Accounting Oversight Board (PCAOB or Board), a case centrally concerned with the constitutionality of limitations on the removal of members of the PCAOB, a board overseen by the Securities and Exchange Commission (SEC) and charged with, among other things, enforcing federal securities laws and promulgating professional accounting standards.[590] The Court first invalidated a statutory restriction on removing the PCAOB members, concluding that this good-cause removal protection violated Article II when combined with a second good-cause restriction on removing SEC members.[591] With this provision severed from the statute, the Court then rejected an additional constitutional challenge to the method of appointment of PCAOB members: the plaintiffs argued that, due to the significance of the duties the PCAOB members had, they were principal officers who must be appointed by the President and confirmed by the Senate.[592] The Court held, however, that the Board members were inferior, rather than principal, officers based on its reasoning in Edmond.[593] Specifically, the Court held that "[g]iven that the Commission is properly viewed, under the Constitution, as possessing the power to remove Board members at will, and given the Commission's other oversight authority, we have no hesitation in concluding that under Edmond the Board members are inferior officers."[594]
The Court considered the potential for review by a superior, Executive Branch official to be similarly critical in its 2021 decision in United States v. Arthrex, Inc..[595] Arthrex held that administrative patent judges' ability to render unreviewable decisions in certain proceedings, combined with protections against at-will removal, was "incompatible" with their appointment as inferior officers.[596] To remedy the constitutional defect, the Court ruled that the Director of the Patent and Trademark Office could review administrative patent judges' decisions unilaterally in the proceedings at issue, rendering "unenforceable" a particular statutory provision limiting the Director's review.[597]
Departments Heads and Courts of Law[edit | edit source]
A related, recurring issue in the Court's Appointments Clause jurisprudence is the meaning of the terms "Heads of Departments" and "Courts of Law." For example, the Court in Freytag v. Commissioner analyzed whether the United States Tax Court was a "department" (headed by the Chief Judge) or a "court of law" in discussing the appointing authority for special trial judges of that court.[598] All nine Justices agreed that the Chief Judge could constitutionally appoint special trial judges, but they disagreed on the rationale. The five Justices in the majority opined that the Tax Court could not be a department because "departments" usually were denominated as such and headed by a cabinet officer.[599] The Court also observed that "[c]onfining the term 'Heads of Departments' . . . to executive divisions like the Cabinet-level departments constrains the distribution of the appointment power" because "Cabinet-level departments are limited in number and easily identified" and their heads "are subject to the exercise of political oversight and share the President's accountability to the people."[600] In the end, the Court sustained the challenged provision by holding that the Tax Court, as an Article I court, was a "Court of Law" within the meaning of the Appointments Clause.[601] The other four Justices would have held that the Tax Court, as an independent establishment in the Executive Branch, was a "Department" for purposes of the Appointments Clause.[602]
The Court has also indicated that for purposes of the Appointments Clause, "Heads of Departments" can be understood more broadly than simply applying to the head of a traditional Cabinet-level agency. In Free Enterprise Fund v. Public Company Accounting Oversight Board, the Court invalidated as unconstitutional the combination of two layers of removal protection for members of the PCAOB.[603] The underlying statute provided that PCAOB members could only be removed for cause by the Securities and Exchange Commission (SEC). But the SEC members themselves could not be removed by the President except for cause. After invalidating the statutory removal protection for the PCAOB members, the Court ruled that appointment by the SEC of the PCAOB members was permissible under the Constitution.[604]
Because the Court had invalidated the removal protections for the PCAOB members, they were now removable at will by the SEC. And combined with the other oversight authority the SEC had over the PCAOB, according to its reasoning in Edmond v. United States, discussed earlier,[605] the Court concluded that the Board members were inferior officers eligible to be appointed by head of a department under the Appointments Clause.[606] Finally, the Court ruled that because the SEC "is a freestanding component of the Executive Branch, not subordinate to or contained within any other such component," the SEC members qualified as a "Head" of a "Department" under the Appointments Clause.[607]
Changing the Duties of an Existing Officer[edit | edit source]
Once an individual has been appointed to an office pursuant to the Appointments Clause, questions can arise concerning the circumstances in which an officer's duties may be altered after the officer's appointment. In the 1893 case of Shoemaker v. United States, the Court examined a statute that established a commission to oversee development of Rock Creek Park in the District of Columbia.[608] The Commission included two government officials who had already been appointed by the President and confirmed by the Senate to other positions, but the plaintiffs argued that they needed to be separately appointed and confirmed in order to serve on the Commission.[609] They argued that while Congress may create offices, it may not circumvent the Appointments Clause by vesting additional powers in an existing officer. The Court ruled that because the officers in question had already been appointed through advice and consent, new duties "germane" to their offices could be assigned to them without a subsequent appointment and confirmation.[610] The Court rejected the appointments challenge because the new duties assigned to the officers were not "dissimilar to, or outside of the sphere of, their official duties."[611] Congress thus enjoys some discretion to "increase the power and duties of an existing office" without the necessity of a new appointment.[612]
Similarly, in the 1994 case of Weiss v. United States, the Court considered whether the selection of military judges to try criminal cases in the military justice system violated the Appointments Clause.[613] Like the commissioners in Shoemaker, the military judges were already appointed by the President and confirmed by the Senate when they received their commissions as military officers.[614] Selection for the role of military judges was made by the Judge Advocate General for each of the military service branches.[615] The question in Weiss was whether serving as a military judge necessitated another appointment consistent with the Appointments Clause.[616] The Court distinguished the situation in Shoemaker. Shoemaker germaneness test, the Court explained, helped to "ensure that Congress was not circumventing the Appointments Clause by unilaterally appointing an incumbent to a new and distinct office."[617] Unlike in Shoemaker where Congress had assigned specific, incumbent officers to new roles, here Congress had authorized the selection of an "indefinite number" of military judges "from among hundreds or perhaps thousands" of qualified commissioned officers.[618] Thus, in Weiss, the Court found "no ground for suspicion" that "Congress was trying to both create an office and also select a particular individual to fill" that office.[619]
Further, even if Shoemaker's germaneness standard applied, the Court concluded that the test was nevertheless satisfied in Weiss.[620] All military officers, the Court reasoned, "play a role in the operation of the military justice system," as they are authorized to impose punishments and act as a summary court-martial or president of a court-martial without a judge.[621] In the Court's view, the military judge position is less distinct from other positions in the military than a judge in civilian society is from other civilian offices. Unless detailed to a court-martial, military judges have no more authority than another commissioned military officer.[622] The Court concluded that the Appointments Clause did not require a separate appointment for military officers to the position of military judge.[623]
The Constitution thus does not give Congress unfettered discretion to augment the powers of existing offices. However, it may permit Congress to add duties that are germane to an office or to make an existing category of officers eligible for a new assignment akin to their existing duties, without requiring a new appointment. Given the paucity of case law on these issues, there may be limits that have not received extensive treatment by the Supreme Court. For instance, the Court has not had occasion to squarely address the hypothetical situation where Congress grants additional duties to an inferior officer (who was not subject to Senate advice and consent) such that the new duties transform the position to that of a principal officer.[624]
Interbranch Appointments[edit | edit source]
The Appointments Clause provides that Congress may vest the appointment of inferior officers with the President alone, department heads, or the courts of law.[625] Both the Executive and Judicial Branches may thus be vested with authority to appoint inferior officers, as that term has been understood by the Supreme Court.[626] One recurring issue in litigation in this area has been whether Congress may authorize one branch of government to appoint inferior officers in another branch. For instance, may Congress entrust the courts of law with the power to appoint officers in the Executive Branch? The Supreme Court first squarely addressed the issue in the 1879 case of Ex parte Siebold, which examined the constitutionality of placing the power to appoint election supervisors--officers whose duties were allegedly "entirely executive in character"--with the Circuit Courts.[627] At issue was whether the Constitution permits "the courts of the United States to appoint officers whose duties are not connected with the judicial department."[628] The Supreme Court noted that the Constitution included no "absolute requirement" that Congress vest the "appointment of inferior officers in that department of the government . . . to which the duties of such officers pertain."[629] The Court reasoned that there was no "incongruity" between the judicial function and the appointment of election supervisors.[630] Therefore, the Court ruled, the interbranch appointment by the Judiciary of election supervisors did not violate the Constitution.
Likewise, the 1987 Supreme Court case of Young v. United States ex rel. Vuitton et Fils S.A. affirmed the inherent power of the Judiciary to appoint individuals to prosecute certain crimes--namely, contempt proceedings.[631] In that case, a federal district court appointed private attorneys to prosecute the defendants in a criminal contempt proceeding for violating a judicial injunction.[632] The Court ultimately reversed the convictions because those private attorneys represented the beneficiary of the injunction and were thus unable to function as disinterested prosecutors on behalf of the government.[633] However, it first expounded on the inherent power of the Judiciary to appoint private attorneys to prosecute criminal contempt proceedings.[634] Although the power of prosecution is traditionally an executive function, the Judiciary nevertheless retains the inherent power to appoint attorneys to prosecute a contempt action in order to "vindicate" the Judiciary's authority to "enforce orders and to punish acts of disobedience."[635] The Court reasoned that a court's power to initiate prosecutions for contempt was not limited to punishing "in-court contempts that interfere with the judicial process," but included "out-of-court contempt[s], which require prosecution by a party other than the court."[636]
One year later in 1988, the Supreme Court also upheld Congress's power to vest the appointment of an independent prosecutor with the Judiciary. In Morrison v. Olson,[637] the Court considered the constitutionality of the independent counsel statute,[638] which required the Attorney General to apply in certain circumstances to a Special Division of the U.S. Court of Appeals for the D.C. Circuit for the appointment of an independent counsel.[639] The Special Division was composed of three federal judges[640] and enjoyed final authority to appoint and define the jurisdiction of an independent counsel, who would investigate and prosecute crimes committed by certain Executive Branch officials as well as individuals connected to presidential campaign committees.[641] In considering a challenge to Congress's authority to vest the appointment of the independent counsel outside the Executive Branch, the Court observed that the text of the Constitution appeared to give Congress broad discretion in choosing whether to place the appointment of inferior officers with the Judiciary, department heads, or the President.[642] Further, the Court noted that its prior decision in Siebold rejected a requirement that the appointment of inferior officers be vested in the specific branch of government to which the duties of those officers relate.[643] The Court explained that its prior decision in Vuitton had recognized a court's inherent power to appoint private attorneys to prosecute criminal contempt proceedings. The Court also noted with approval Congress's vestment of power with district courts to make interim appointments of United States Attorneys.[644] In light of these considerations, combined with the fact that the independent counsel statute barred judges of the Special Division from participating in any judicial proceeding concerning matters that involve an independent counsel they appointed, the appointment of the independent counsel by the Judiciary did not infringe upon "the constitutional limitation on 'incongruous' interbranch appointments."[645]
Removals[edit | edit source]
Overview of Removal of Executive Branch Officers[edit | edit source]
The Appointments Clause delineates the method of appointment for "Officers of the United States." Other provisions of the Constitution indicate that both judges and Executive Officers may be removed through impeachment;[646] and both may also voluntarily retire from their positions.[647] However, while the Constitution elsewhere provides that judicial officers maintain their office for life,[648] it is silent as to the tenure for Executive Branch officers.[649] Historical practice and judicial decisions acknowledge that the President is empowered to remove those officers he appoints without assent from Congress.[650] Congress has, however, historically enacted legislation that shields certain Executive Branch officials from removal except for cause, although exactly which types of officials may be protected is not settled definitively. Even for those officers who may be protected from at-will removal, Congress's ability to insulate them from presidential control is not unlimited; for instance, Congress generally may not impose two layers of removal protection on a specific office (i.e., Congress may not provide that an inferior officer may only be removed for cause if his superior officer is also protected by a for-cause removal provision).[651] As explained infra, in examining statutory protections from removal for Executive Branch officers, the Court has sometimes applied a formalist approach to interpreting the Constitution, stressing the importance of the text's division of powers among the three branches.[652] At other times it has applied a more functional analysis, giving Congress more room to design agencies as long as the broad background principle of a balance of power between the branches is respected.[653]
Decision of 1789 and Removals in Early Republic[edit | edit source]
While the Constitution provides that federal judges shall retain their "offices during good behavior," which the Court has interpreted to mean that judges are entitled to life tenure absent resignation or impeachment,[654] it does not expressly specify how long Executive Branch officers may remain in office (although they may retire and are subject to impeachment).[655] The Framers' understanding of the removal power--regarding both who wields the power to remove Executive Branch officers as well as the circumstances in which they may be removed--is not clear from the records of the Constitutional Convention or other contemporaneous documents.[656] However, a major debate and decision of the First Congress on the matter, commonly known as the "Decision of 1789," has informed the Nation's understanding of where the removal power is placed,[657] although scholars and judges disagree about the best understanding of that decision.[658] The implications of the Decision of 1789 are particularly important because the Supreme Court has made clear that the views of the First Congress are "weighty evidence" of the Constitution's meaning since many of the Framers were elected to that body.[659]
The Decision of 1789 concerns the debate in the First Congress over whether the Constitution authorizes the President to remove Executive Branch officers unilaterally.[660] On May 19, 1789, Representative Elias Boudinot proposed establishing the executive departments of the Treasury, War, and Foreign Affairs;[661] Representative James Madison subsequently proposed that the Secretaries of these Departments be removable by the President alone.[662] The House debated the issue for over a month,[663] focusing in particular on whether the President enjoyed power under the Constitution to remove government officers absent legislation specifically authorizing him to do so.[664] Congress eventually passed bills for each department that removed any explicit mention of removal authority, but provided that a lower-level department official would take custody of the department's records whenever the department head "shall be removed from office by the President of the United States" or in any other case of a vacancy.[665]
The Supreme Court has cited the Decision of 1789 a number of times as congressional acknowledgment that Congress does not possess a direct role in the removal process.[666] There is some dispute over whether a majority of legislators affirmed that the Constitution vests the President with removal authority, or whether no majority actually supported a specific position on the issue.[667] Still, early historical practice confirms that the President's power to appoint Executive Branch officers includes authority to remove them. In the 1926 case of Myers v. United States, the Supreme Court opined that the Decision of 1789 affirmed that the President is entrusted with power to remove those officers he appoints, a proposition that "was soon accepted as a final decision of the question by all branches of the government."[668]
The Nation's first two Presidents, George Washington and John Adams, each unilaterally removed Executive Branch officers, although neither of them removed a large number of officials.[669] President Thomas Jefferson, although initially considered an opponent of a powerful Executive, likewise exercised this power, removing more officials than either Washington or Adams.[670] Presidents James Madison, James Monroe, and John Quincy Adams also exercised the power of removal over Executive Branch officers, although they appear to have each removed a smaller number than Jefferson.[671] This historical practice of presidential removal of Executive Branch officers was reinforced by Attorney General opinions affirming the President's constitutional power to do so.[672] Congress, however, asserted some control over the tenure of certain Executive Branch positions. During the Administration of President Monroe, Congress passed the Tenure of Office Act of 1820, which provided that certain Executive Officers be appointed for a term of four years, "but shall be removable from office at pleasure."[673]
Removals in Jacksonian America Through the Nineteenth Century[edit | edit source]
While the first six Presidents of the young Republic exercised the power of removal over Executive Branch officers on a somewhat limited basis, President Andrew Jackson replaced more officials than all Presidents before him combined.[674] He instituted what was commonly known as the "spoils system," wherein a new presidential administration would remove a large number of federal officials and replace them with supporters.[675] Jackson embraced the Tenure of Office Act of 1820[676] and argued that "rotation in office" would improve government operations and serve a democratizing function that would curb the importance of privilege in governmental offices.[677] Perhaps most famously, amidst conflict with Congress over the status of the Second Bank of the United States, Jackson dismissed Treasury Secretary William Duane.[678] Duane had effectively refused to withdraw federal monies from the Bank as instructed by President Jackson, so he was replaced by Roger Taney, who did.[679] A major fight with Congress ensued, and the Senate eventually passed a resolution in 1834 condemning Jackson's actions.[680] Congress did not, however, reverse Jackson's decision or pass legislation preventing such action in the future. Following a change in party control, the Senate expunged the prior censure in 1837.[681]
Presidents that followed Jackson largely continued the practice of removing Executive Branch officers, although their stated reasons for doing so varied. For example, President Martin Van Buren, who succeeded Jackson in office, continued the spoils system, removing Executive Branch officers at will and replacing them with party loyalists.[682] In contrast, the Nation's ninth president, William Henry Harrison, who had defeated Van Buren in 1841 and became the first Whig elected president, pledged not to replace Executive Branch officers for political reasons. Though Harrison died within a month after his inauguration, his brief record is somewhat mixed on the matter.[683] Harrison was succeeded by his Vice President John Tyler.[684] Although Tyler initially vowed, consistent with Harrison's Whig principles, not to remove Executive Branch officials for partisan reasons, he quickly did exactly that during his nearly four full years in office.[685] Opinions from his Attorney General issued during Tyler's time in office affirmed presidential removal authority in opinions that have informed subsequent practice and consideration of the removal power.[686] Attorney General Hugh S. Legare argued that, following the Decision of 1789, the whole country had acquiesced to the power of the President to remove Executive Branch officers.[687] One year later, he reaffirmed this conviction, noting that "Whatever I might have thought of the power of removal from office, if the subject were res integra, it is now too late to dispute the settled construction of 1789."[688] Likewise, President Zachary Taylor, also a member of the Whig party, removed nearly two-thirds of the prior President James Polk's appointees in his first year in office.[689]
The scope of the President's removal authority was at the center of the first impeachment of a United States President.[690] Congress on March 2, 1867 reauthorized (and amended), over the veto of President Andrew Johnson, the Tenure of Office Act.[691] That law provided that Executive Branch officers who had been Senate-confirmed (as well as future such officers) were entitled to remain in their position until a replacement was confirmed.[692] The law also provided that certain positions would retain their offices for the full term of the President who appointed them, plus one month thereafter, unless the Senate consented to their removal.[693] Johnson subsequently fired his Secretary of War Edwin Stanton without Senate approval. On February 24, 1868, the House voted to impeach President Johnson.[694] An important point of contention at the trial in the Senate was whether the Tenure of Office Act protected Stanton at all due to his appointment by President Abraham Lincoln, rather than President Johnson.[695] The Senate ultimately failed to convict President Johnson by one vote on three different articles, and it failed to vote on the remaining eight.[696] The Tenure of Office Act of 1867 was amended in 1869[697] and requirements concerning Senate approval for removal were repealed in 1887.[698]
By the end of the nineteenth century, the Supreme Court affirmed that the President enjoyed the sole power of removal over Executive Branch officers.[699] In the 1897 case of Parsons v. United States, the Court concluded that the President was authorized to remove a U.S. attorney, even though the Tenure of Office Act of 1820 provided that the term of appointment was four years.[700] The Court reasoned that the Decision of 1789 and consistent government practice since indicated that the President enjoys the power of removal.[701] It thus interpreted the statute to establish that a term of office expired after four years, but did not bar the President from removing a U.S. attorney before that time.[702] Likewise, in 1903, the Court in Shurtleff v. United States reaffirmed this understanding of the President's power.[703] That case concerned a suit for back pay by a Senate-confirmed Executive Branch official who was removed without notice or a hearing. The statute establishing the officer's position provided that the President could remove him "for inefficiency, neglect of duty, or malfeasance in office."[704] The Court concluded that while notice and a hearing might be required when an officer is removed for the reasons specified in the statute, the President also had authority to remove the officer for other reasons entirely and, in those circumstances, was not required to provide such procedural protection.[705] The Court thus rejected the suit because the President removed the officer for reasons other than those mentioned in the statute.[706]
Removals in the 1920s[edit | edit source]
Congress's authority to restrict the President's power to remove Executive Branch officers was squarely addressed by the Supreme Court in the 1926 case of Myers v. United States.[707] Myers concerned a postmaster who was removed from office in violation of a statute providing that postmasters could only be removed with the Senate's consent.[708] Chief Justice William Taft, a former President, writing for the Court in an opinion that took a formalist approach to the separation of powers, espoused a broad view of the President's authority under Article II.[709] His opinion examined the history of removals of Executive Branch officials as well as the constitutional text, and concluded that Article II's vestment of executive power in the President bestowed on him "the general administrative control of those executing the laws,"[710] including the "exclusive power of removal."[711] The Chief Justice described the Decision of 1789 at length, concluding that the First Congress had determined that "the power of appointment carried with it the power of removal," a rule that was "acquiesce[d] [to] for nearly three-quarters of a century by all branches of the government."[712] Congress had, Chief Justice Taft noted, disrupted this understanding by passing the Tenure of Office Act in 1867--which required Senate approval to remove Executive Branch officials and resulted in the impeachment of President Andrew Johnson--but, in the view of the Court, the Executive Branch never acquiesced to this assertion of power.[713]
The Court in Myers reasoned that Article II's vestment of executive power in the President authorized him to select subordinate officers and direct them in executing the law; and just as it was "essential" to select officers to execute the law, "so must be his power of removing those for whom he cannot continue to be responsible."[714] In the Court's reading of the Constitution, the grant of the executive power to the President, supplemented by the duty to take care that the law is faithfully executed, meant that executive power includes "the exclusive power of removal."[715] The Court thus invalidated the statute before it insofar as the law denied to the President "the unrestricted power of removal" of Executive Branch officers.[716]
Removals in the 1930s[edit | edit source]
Nine years after its decision in Myers v. United States, in which the Court invalidated a statute that prohibited the President from removing an executive official absent Senate approval,[717] the Supreme Court applied a much more functionalist approach in its analysis in another case addressing Congress's authority to restrict the President's removal authority.[718] In the 1935 case of Humphrey's Executor v. United States, the Court upheld a statute that limited the President's power to remove a Commissioner of the Federal Trade Commission (FTC).[719] The statute in question provided that a Commissioner could be removed for "inefficiency, neglect of duty, or malfeasance in office."[720] The Commissioner's estate brought suit seeking backpay after President Franklin Roosevelt dismissed him.[721] In an opinion by Justice George Sutherland, the Court ruled that the President violated the statute because the law's specification of reasons for removal was meant to be exclusive and he did not base his removal of the Commissioner on any of the grounds listed in the statute.[722] The Court distinguished its prior decision in Shurtleff v. United States, which interpreted a statutory list of grounds for removal not to be exclusive,[723] noting that while FTC Commissioners in Humphrey's Executor were appointed to a specific term of office, the officer in Shurtleff had no such restriction on his tenure.[724] In addition, the Court observed that Congress intended the Commission to be nonpartisan and not subject to the direction of the President.[725]
Turning to the constitutionality of limiting the President's power of removal, the Court read its recent decision in Myers narrowly to establish only that Congress could not condition the President's power to remove an Executive Branch officer on Senate approval.[726] Because the statute before it did not do that, it did not run afoul of Myers. The Court determined that the officer in that case, a postmaster, was charged solely with executive functions, whereas the office of an FTC Commissioner was tasked with "quasi-legislative" and "quasi-judicial" functions. The Commission was not "an arm or an eye of the executive" and it "must be free from executive control" "in the exercise of its duties."[727] The Court ruled that the Constitution permitted Congress, with respect to officers charged with quasi-legislative and quasi-judicial functions, to "fix the period during which they shall continue in office, and to forbid their removal except for cause . . . ."; and that the President's removal of a FTC Commissioner for reasons not listed in the statute thus violated the law.[728]
The Court's approval in Humphrey's Executor of restrictions on the President's power of removal over the heads of certain federal agencies has influenced the structure of the modern administrative state.[729] Congress has established a number of "independent" agencies that are headed by multi-member bodies whose officers may only be removed by the President for cause.[730] These independent agencies stand in contrast to what may be considered traditional Executive Branch agencies, with a single head who is removable at will by the President.[731] Because Congress has created a variety of agencies with various structural features,[732] certain functions of a particular agency may (at least for constitutional purposes) be considered "executive" while others in the same agency may not.[733]
In the years following Humphrey's Executor, scholars have debated the constitutionality of independent agencies whose heads are insulated from presidential control, as well as what limits the Constitution may place on Congress's power to shield Executive Branch officers from removal.[734] As discussed infra, Congress in the twentieth century has also enacted legislation insulating agency officials other than the heads of multimember boards from removal.[735] However, Supreme Court decisions in the twenty-first century appear to reflect an increasing skepticism of such congressional limits on the President's power to remove agency officials.[736]
Later Twentieth Century Cases on Removal[edit | edit source]
Although the number of cases squarely presenting the validity of for-cause removal protections is limited, the Court applied a functional analysis similar to Humphrey's Executor in a number of twentieth-century cases that affirmed the constitutionality of statutory independence from the President for certain Executive Branch officers.[737] For instance, in the 1958 case of Wiener v. United States,[738] the Court ruled that even in the absence of an express statutory restriction on removal, the President acted illegally by removing a member of the War Claims Commission on the grounds that the President simply wanted a member of his own choosing.[739] The Court read Humphrey's Executor as limiting the scope of Myers to "purely executive officers" and approving for-cause protections for "quasi-judicial" officers.[740] Examining the scope of the President's power to remove members of the Commission, the Court focused on the "nature of the function[s] Congress vested" in the Commission and concluded that its purpose was judicial--adjudicating claims free from presidential or congressional influence.[741] Even though the statute was silent as to removal, the Court reasoned that because, "as one must take for granted," the President was precluded from influencing the Commission with regard to adjudicating claims, Congress must not have intended "to have hang over the Commission the Damocles' sword of removal" at will.[742] The Court thus concluded that, due to its judicial character, the President lacked an inherent power of removal at will over the Commission.
The Court also took a functional approach in upholding the constitutionality of a statute insulating a federal prosecutor from executive control. Following the scandal of Watergate and resignation of President Richard Nixon, Congress passed the Ethics of Government Act of 1978.[743] Title VI of that Act, the independent counsel statute, established a statutory mechanism for the appointment of a prosecutor by a Special Division of the U.S. Court of Appeals for the D.C. Circuit vested with a measure of independence from the Executive Branch.[744] The Special Division enjoyed authority to appoint and define the jurisdiction of the prosecutor, who could only be removed "by the personal action of the Attorney General and only for good cause, physical or mental disability . . . , or any other condition that substantially impairs the performance of such independent counsel's duties."[745]
In the 1988 case of Morrison v. Olson, the Supreme Court upheld the independent counsel statute against a constitutional challenge.[746] Writing for the Court, Chief Justice William Rehnquist concluded that the independent counsel was an inferior, rather than a principal, officer, whose appointment was not required to be made by the President subject to Senate confirmation.[747]
The Court also held that the Independent Counsel Act's provision limiting the authority of the Attorney General to remove the independent counsel for good cause did not impermissibly intrude on the President's power under Article II.[748] The Court rejected a formalist rule that would bar statutory for-cause removal protections for any individual tasked with "purely executive" functions; instead, it applied a functional test and asked whether Congress has "interfere[d] with the President's" executive power and his "duty to 'take care that the laws be faithfully executed.'"[749] The Court recognized that the independent counsel exercised "law enforcement functions that typically have been undertaken by officials within the Executive Branch,"[750] but noted that the position nevertheless has a "limited jurisdiction and tenure and lack[ed] policymaking or significant administrative authority."[751] The Court reasoned that it did "not see how the President's need to control" the independent counsel's discretion "is so central to the functioning of the Executive Branch" as to demand a constitutional rule mandating removal at will.[752] The Court also concluded that the removal provision did not "impermissibly burden[ ]" the President's ability to control the independent counsel because the position could still be eliminated for cause.[753]
In addition, the Court concluded that the statute did not violate the separation of powers by undermining the Executive Branch's powers or prohibiting that branch from carrying out its constitutional duties.[754] The majority opinion reasoned that the statute ultimately gave "the Executive Branch sufficient control over the independent counsel to ensure that the President is able to perform his constitutionally assigned duties."[755] This control, the Court concluded, arose from the ability of the Attorney General to remove the independent counsel for good cause.[756]
While the Court's functional analyses in Humphrey's Executor, Wiener, and Morrison effectively allow removal protections for a range of federal entities, Congress's power to create agencies independent from executive control is far from absolute. For instance, in the 1986 case of Bowsher v. Synar, the Supreme Court applied a much more formalist approach to a separation of powers dispute and invalidated a statute that gave an official controlled by Congress power to order decreases in federal spending.[757] The Balanced Budget and Emergency Deficit Control Act of 1985[758] gave the Comptroller General authority, in the event of a budget shortfall, to issue a report detailing federal revenue and expenditure estimates and the specific reductions needed to reduce the deficit to a statutory target.[759] The President was then required to order the "sequestration" of those funds pursuant to the Comptroller General's report.[760]
The Court held that vesting the Comptroller General with these authorities violated the separation of powers in light of Congress's removal authority; a prior law had authorized Congress to remove the Comptroller General through a joint resolution.[761] The High Court explained that the Constitution's division of power among the three branches of government barred "an active role for Congress in the supervision of officers charged with the execution of the laws it enacts."[762] The Constitution explicitly provides no role for Congress in the removal of officers beyond impeachment.[763] Allowing Congress to exercise removal power over an officer engaged in executive functions "would, in practical terms, reserve in Congress control over the execution of the laws."[764] Just as Congress may not itself execute the law, the Court said that it may not indirectly do so by "grant[ing] to an officer under its control what it does not possess."[765] The Court reasoned that the Comptroller General's duties under the statute amounted to "execution of the law" because he was charged with interpreting statutory provisions and exercising independent judgment in preparing budget estimates and reductions. Additionally, the Comptroller General had "the ultimate authority to determine the budget cuts to be made," given that the President was required to carry out the Comptroller General's report through a sequestration order.[766] The Court concluded that by entrusting an officer "subject to removal only by itself" with execution of the law, "Congress in effect has retained control over the execution of the Act and has intruded into the executive function."[767]
Twenty-First Century Cases on Removal[edit | edit source]
In the twenty-first century, the Court has applied a somewhat formalist approach to removal cases, invalidating removal protections for Executive Branch officials in three different decisions. In the 2010 case of Free Enterprise Fund v. Public Company Accounting Oversight Board, the Court ruled that two layers of removal protection for an Executive Branch official impermissibly interfered with the President's powers under Article II of the Constitution.[768] In that case, the Court examined the Public Company Accounting Oversight Board (PCAOB or Board), an entity created by the Sarbanes-Oxley Act of 2002 to oversee aspects of the accounting industry.[769] The Board's members were appointed by the Securities and Exchange Commission (SEC) and were subject to the Commission's oversight when issuing rules and sanctions.[770] But the members of the PCAOB could not be removed from office except for good cause shown by the SEC in a formal proceeding.[771] Because the President could not remove the SEC Commissioners themselves without cause,[772] the Board members were thus insulated by two layers of removal protection.[773]
The Court's opinion stressed the importance of accountability for government officers that the Appointments Clause and its concomitant power of removal ensure. The Court acknowledged that it had upheld removal restrictions for the principal officers of independent agencies in Humphrey's Executor and for certain inferior officers in Morrison, but concluded that the "novel" combination of dual for-cause removal restrictions "tranform[ed]" the independence of the Board in a manner that impaired the President's duty to execute the law.[774] A second layer of removal protection meant that "[n]either the President, nor anyone directly responsible to him, nor even an officer whose conduct he may review only for good cause, has full control of the Board."[775] Dual for-cause removal protections inhibit the principle of accountability for Executive Branch officers because they infringe on the President's "ability to execute the laws," by preventing him from "holding his subordinates accountable for their conduct."[776] The Court emphasized that the public does not vote for agency officials, but "look[s] to the President to guide the 'assistants or deputies . . . subject to his superintendence.'"[777] In other words, the President must be able to hold agency officers accountable for their actions, because it is ultimately the President who is accountable to the people for actions of the Executive Branch, rather than Executive Branch officers.[778] Because the statute "grant[ed] the Board executive power without the Executive's oversight," Congress had "subvert[ed] the President's ability to ensure that the laws are faithfully executed" in violation of Article II's vestment of executive power in the President.[779]
The Court's turn in the modern era toward a more formalist approach to interpreting the strictures of the Appointments Clause has been applied in two recent cases that further limit Congress's ability to shape the administrative state. These decisions concluded that an independent agency with a single director insulated from presidential control violated the separation of powers.
In Seila Law LLC v. Consumer Financial Protection Bureau (CFPB), the Supreme Court concluded that Congress could not provide for-cause removal protections for the head of the CFPB, an independent financial regulatory agency led by a single Director.[780] The Court described the President's removal power as "unrestricted,"[781] rejecting the view that Humphrey's Executor and Morrison "establish a general rule that Congress may impose 'modest' restrictions on the President's removal power."[782] Instead, "the President's removal power is the rule, not the exception."[783] The Court explained that after Free Enterprise Fund, only "two exceptions" to the rule requiring removability remained.[784] First, under Humphrey's Executor, Congress may sometimes "create expert agencies led by a group of principal officers removable by the President only for good cause" if the agency does not exercise substantial executive power.[785] In interpreting this 1935 case, the Seila Law Court interpreted Humphrey's Executor narrowly, saying that this exception permitted for-cause removal protections for "a multimember body of experts, balanced along partisan lines, that performed legislative and judicial functions and was said not to exercise any executive power."[786] The Court said that the second exception to the President's removal power allowed at least some removal protections for inferior officers, as in Morrison, if those officers have "limited duties and no policymaking or administrative authority."[787]
The Court concluded in Seila Law that the CFPB Director did not fall within either of these two exceptions.[788] The single Director was not a multimember expert body, and, in the view of the Court, could not be considered "a mere legislative or judicial aid."[789] Rather than performing merely reporting and advisory functions, the CFPB Director exercised executive power, possessing the authority "to promulgate binding rules fleshing out 19 federal statutes, [to] issue final decisions awarding legal and equitable relief in administrative adjudications," and to seek "daunting monetary penalties" in enforcement actions in federal court.[790] Neither could the CFPB Director be considered an inferior officer with limited duties.[791] And the Court ruled that it would not recognize a new exception to the President's removal authority for "an independent agency led by a single Director and vested with significant executive power."[792] The Court described the CFPB's structure as "unprecedented"[793] and "incompatible with our constitutional structure,"[794] saying that the agency's structure violated the Constitution "by vesting significant governmental power in the hands of a single individual accountable to no one."[795] Consequently, the Court concluded that the provision insulating the Director from removal was unconstitutional, severing the for-cause removal provision from the governing statute.[796]
Shortly thereafter, in Collins v. Yellen, the Supreme Court ruled that the structure of the Federal Housing Finance Agency (FHFA) violated the Constitution's separation of powers.[797] Like the CFPB, the FHFA is headed by a single Director whom, under the statute establishing the agency, the President could remove only for cause.[798] The Collins Court considered Seila Law to be "all but dispositive" of the constitutional question, reasoning that differences in the "nature and breadth" of the agencies' respective regulatory authorities did not justify the constraint on the President's removal power.[799] The Court remanded the case for the lower courts to decide whether the challengers--shareholders of FHFA-regulated entities--were actually harmed by the existence of the statutory removal protection.[800]
- ↑ See Art. I, Sec. 10, Cl. 1: Foreign Policy by States.
- ↑ Id.
- ↑ See, e.g., Lozano v. Montoya Alvarez, 572 U.S. 1, 11, (2014) ("[T]reaties . . . are primarily 'compact[s] between independent nations[.]'") (first set of brackets in original) (quoting Medellin v. Texas, 552 U.S. 491, 505 (2008)); Altman & Co. v. United States, 224 U.S. 583, 600 (1912) ("Generally, a treaty is defined as 'a compact made between two or more independent nations, with a view to the public welfare.'") (citation omitted)); Whitney v. Robertson, 124 U.S. 190, 194 (1888) ("A treaty is primarily a contract between two or more independent nations, and is so regarded by writers on public law."); Head Money Cases (Edye v. Robertson, 112 U.S. 580, 598 (1884) ("A treaty is primarily a compact between independent nations."). Although sovereign nations are the primary subject of treaties, in modern practice, other entities, such as international organizations, occasionally have joined treaties. See generally James Crawford, Brownlie's Principles of Public International Law 115-16 (8th ed. 2012) [hereinafter Brownlie's Principles].
- ↑ See generally Arthur Nussbaum, A Concise History of the Law of Nations (1954).
- ↑ See Introduction: Continental Congress and Adoption of the Articles of Confederation. See also David Golove, The New Confederalism: Treaty Delegations of Legislative, Executive, and Judicial Authority, 55 Stan. L. Rev. 1697, 1706-10 (2003) (discussing historical evidence for the conclusion that the predominant, but not universal, view at the time of the Framing was that the Articles of Confederation formed a treaty-based body); Richard Beeman, Plain, Honest Men: The Making of The American Constitution 8 (2009) ("The Articles of Confederation, America's first 'constitution,' was not really a proper constitution, but rather a peace treaty among thirteen separate and sovereign states." ); John C. Yoo, The Continuation of Politics by Other Means: The Original Understanding of War Powers, 84 Cal. L. Rev. 167, 237 (1996) ("[T]he [Confederation] Congress had judicial, legislative, and executive functions more typical of a treaty organization than a sovereign government.").
- ↑ See Art. II, Sec. 2, Cl. 2: Self-Executing and Non-Self-Executing Treaties.
- ↑ See id.
- ↑ Article VI Supreme Law. For discussion of the relationship between treaties and the Supremacy Clause, see Art. II, Sec. 2, Cl. 2: Self-Executing and Non-Self-Executing Treaties, and for broader analysis of the Supremacy Clause, see Art. VI, Cl. 2: Overview of Supremacy Clause.
- ↑ See Foster v. Neilson, 27 U.S. (2 Pet.) 253, 314 (1829) ("A treaty is in its nature a contract between two nations, not a legislative act. . . . In the United States a different principle is established. Our constitution declares a treaty to be the law of the land. It is, consequently, to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself without the aid of any legislative provision."); The Head Money Cases, 112 U.S. at 598 ("A treaty is primarily a compact between independent nations. . . . But a treaty may also . . . partake of the nature of municipal law[.]"); Validity of Congressional-Executive Agreements That Substantially Modify the United States' Obligations Under an Existing Treaty, 20 Op. O.L.C. 389, 390 (1996) (discussing the "dual nature of treaties, as instruments of both domestic and international law").
- ↑ For analysis of the U.S. treaty-making process, see Cong. Rsch. Serv., Treaties and Other International Agreements: The Role of the United States Senate, S. Rep. No. 106-71, at 107-56 (2001) [hereinafter Treaties and Other International Agreements].
- ↑ Id. at 96-97. See also Zivotofsky v. Kerry, 576 U.S. 1, 13 (2015) [hereinafter Zivotofsky II] ("The President has the sole power to negotiate treaties[.]"); United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319 (1936) ("[T]he President . . . makes treaties with the advice and consent of the Senate; but he alone negotiates."); Procedures for Exchanging Instruments of Ratification for Bilateral Law Enforcement Treaties, 8 Op. O.L.C. 157, 157 (1984) (discussing the "President's negotiating authority with respect to bilateral treaties"). Although the Executive Branch generally is responsible for treaty negotiations, Congress occasionally plays a role by, among other things, enacting legislation encouraging the Executive Branch to pursue certain objectives in its international negotiations. See Treaties and Other International Agreements, supra note here, at 100-02.
- ↑ Id. at 118 ("All treaties are transmitted to the Senate in the President's name").
- ↑ See Zivotofsky II ("[T]he Senate may not conclude or ratify a treaty without Presidential action."); Procedures for Exchanging Instruments of Ratification for Bilateral Law Enforcement Treaties, 8 Op. O.L.C. 157, 158 (1984) ("Once the Senate gives its advice and consent, the treaty is returned to the President, who must ratify it by signing the instrument of ratification.").
- ↑ See supra note here. See also Restatement (Fourth) of Foreign Relations Law § 303(3) (2018) [hereinafter Fourth Restatement] ("After the Senate provides its advice and consent, the President determines whether to ratify or otherwise make the treaty on behalf of the United States."). While the Restatement of Foreign Relations Law of the United States is nonbinding and prepared by a private organization, the Supreme Court has cited it on several occasions, e.g., United States v. Stuart, 489 U.S. 353, 375 (1989) (citing Restatement (Third) of Foreign Relations Law § 314 (1987)); Trans World Airlines, Inc. v. Franklin Mint Corp., 466 U.S. 243, 259 (1984) (citing Restatement (Second) of the Foreign Relations Law § 147(1)(f) (1965)), and commentators often describe it as authoritative, e.g., Anthony S. Winer et al., International Law Legal Research 242-43 (2013).
- ↑ See, e.g., Samuel B. Crandall, Treaties, Their Making and Enforcement 81 (2d ed. 1916) ("[T]he approval, whether qualified or unqualified, of the treaty by the Senate is not to be confused with the act of ratification. The latter is performed by the President[.]"); Fourth Restatement, supra note here, § 303 reporters' n.5 ("Properly speaking, the Senate does not ratify a treaty; the Senate gives its advice and consent to ratification. It is the President who then 'ratifies,' or makes, the treaty by signing an instrument of ratification and then arranging for the deposit or exchange of the instrument, as indicated by the treaty's terms."). Although the President is the final actor in expressing the United States' assent to be bound to a treaty, additional action by Congress may be necessary to implement the treaty into domestic law. See Art. II, Sec. 2, Cl. 2: Congressional Implementation of Treaties. Once the parties to the treaty complete the processes necessary to express their final assent to be bound--often through an exchange of instruments of ratification--the President may "proclaim" the treaty, and declare it to be in force by Executive Order. See Procedures for Exchanging Instruments of Ratification for Bilateral Law Enforcement Treaties, 8 Op. O.L.C. 157, 158 (1984).
- ↑ For examples when the President declined to ratify treaties that received the Senate's advice and consent, see Crandall and Fourth Restatement, supra note here, § 303 reporters' n.5.
- ↑ See, e.g., Treaty of Peace, U.S.-Gr. Brit., Sept. 3, 1783, 8 Stat. 80 (peace treaty with Great Britain following the Revolutionary War); Cessation of Louisiana: A Financial Arrangement--Convention Between the United States and the French Republic, U.S.-Fr., Apr. 30, 1803, 8 Stat. 206 (treaty defining the terms of the Louisiana Purchase); Peace, Friendship, Limits, and Settlement (Treaty of Guadalupe Hidalgo), U.S.-Mex., Feb. 2, 1848, 9 Stat. 922 (Treaty of Guadalupe Hidalgo ending the Mexican-American War and giving the United States control over what would become several southwestern U.S. states).
- ↑ For discussion of international pacts that are not concluded through the process defined in the Treaty Clause, see Art. II, Sec. 2, Cl. 2: Legal Basis for Executive Agreements.
- ↑ See Treaties and Other International Agreements, supra note here, at 38-41; Curtis A. Bradley & Jack L. Goldsmith, Presidential Control Over International Law, 131 Harv. L. Rev. 1201, 1209-12 (2018).
- ↑ See Art. II, Sec. 2, Cl. 2: Overview of Alternatives to Treaties; Art. II, Sec. 2, Cl. 2: Legal Basis for Executive Agreements; Art. II, Sec. 2, Cl. 2: Legal Effect of Executive Agreements; Art. II, Sec. 2, Cl. 2: Congressional Executive Agreements.
- ↑ As used in this essay, the term "international agreements" refers to agreements between two or more countries (or between one or more countries and an entity, such as a public international organization, with capacity to conclude an international agreement) that is intended to be legally binding and is governed by international law. See Fourth Restatement, supra note here, § 302 cmt. a.
- ↑ The meaning of the term "treaty" differs in its constitutional usage when compared to international law. Under international law, the term "treaty" refers to an international agreement that is binding and governed by international law regardless of how the agreement is brought into force. See Weinberger v. Rossi, 456 U.S. 25, 31-32 (1982); Validity of Congressional-Executive Agreements That Substantially Modify the United States' Obligations Under an Existing Treaty, supra note here, at 389 n.2. Under U.S. law, "treaty" generally refers to a narrower subset of international agreements that receive senatorial advice and consent under the process defined in the Treaty Clause. See Weinberger, 456 U.S. at 30; Fourth Restatement, supra note here, § 302 cmt. a. But courts occasionally have interpreted the term "treaty" in U.S. statutes to encompass executive agreements. See Weinberger, 456 U.S. at 31-32 (interpreting statute barring discrimination except where permitted by "treaty" to refer to both treaties and executive agreements); B. Altman & Co. v. United States, 224 U.S. 583, 601 (1912) (construing "treaty," as used in statute conferring appellate jurisdiction, to also refer to executive agreements).
- ↑ See, e.g., Emer De Vattel, The Law of Nations, or Principles of the Law of Nations, Applied to the Conduct and Affairs of Nations and Sovereigns 67 (Liberty Fund ed., 2008) (originally published 1758) (defining "what is meant by a nation or state" and including the ability to be "susceptible of obligations and rights"). See also (U.K., Fr., Italy, Japan v. Germany), Judgment, 1923 P.C.I.J. (ser. A) No. 1, at 25 (Aug. 17) ("[T]he right of entering into international engagements is an attribute of State sovereignty."); Anne Peters, Treaty-Making Power, in 10 The Max Planck Encyclopedia of Public International Law 57 (Rudiger Wolfrum ed., 2012) ("Treaty-making power is often considered as a corollary, or as a fundamental attribute, of the international legal personality understood as the ability to have rights and obligations under international law."); Rosalyn Higgins, The Development of International Law Through the Political Organs of the United Nations 13 (1963) (describing the "capacity to enter into international relations with other states" as one of the traditional criteria necessary for independent statehood).
- ↑ See James Crawford, Brownlie's Principles of Public International Law 63 (8th ed. 2012). See also 1 William Blackstone, Commentaries on the Laws of England 257 (Lippincott ed., 1859) ("It is also the king's prerogative to make treaties, leagues, and alliances with foreign states and princes."). In modern usage, "the Crown" generally refers to the Executive Branch of the British government rather than an individual monarch. See Arthur Bestor, Respective Roles of Senate and President in the Making and Abrogation of Treaties--The Original Intent of the Framers of the Constitution Historically Examined, 55 Wash. L. Rev. 1, 75 & n.290 (1979) [hereinafter Bestor, Respective Roles].
- ↑ Articles of Confederation of 1781 art. IX, para. 1.
- ↑ See Bestor, Respective Roles, supra note here, at 49-72.
- ↑ See Art. II, Sec. 2, Cl. 2: Self-Executing and Non-Self-Executing Treaties.
- ↑ See, e.g., 2 The Records of the Federal Convention of 1787 297, 392-93, 495, 498-99, 438, 540-41, 538-50, 638 (Max Farrand ed., 1911) [hereinafter Farrand's Records] (debate over treaty-making power during the Constitutional Convention); 4 The Debates in the Several State Conventions on the Adoption of the Federal Constitution 263-65 (Jonathan Elliot ed., 1836) [hereinafter Debates in the Several State Conventions] (discussion of treaty-making power during the South Carolina ratifying convention); id. at 306 (statements concerning the treaty-making power by Alexander Hamilton to the New York ratifying convention); 2 Documentary History of the Ratification of the Constitution 563 (Merrill Jensen et al., eds.) (arguments concerning the Treaty Clause to the Pennsylvania ratifying convention).
- ↑ See 2 Farrand's Records, supra note here, at 176, 183.
- ↑ Id. at 393 ("Mr. [Edmund] Randolph observing that almost every Speaker had made objections to the clause as it stood, moved in order to a further consideration of the subject[.]"). See also Bestor, Respective Roles, supra note here, at 93-96 (discussing objections to the Senate the exclusive treaty-making authority).
- ↑ For example, John Mercer of Maryland argued that the "Senate ought not to have the power of treaties" at all, contending that the power should reside in the Executive alone. 2 Farrand's Records, supra note here, at 297. And James Madison argued that "the President should be an agent in Treaties" because "the Senate represented the States alone" rather than the federal government. Id. at 392-93.
- ↑ See id. at 538 (motion by James Wilson of Pennsylvania to require the advice and consent of both chambers of Congress before conclusion of a treaty).
- ↑ See id. at 499 (proposal by the Committee of Postponed Parts to allow presidential participation in treaty-making). See also The Federalist No. 75 (Alexander Hamilton) (explaining the rationale for the "union of the Executive with the Senate" in treaty-making); The Federalist No. 64 (John Jay) ("[W]e see that the Constitution provides that our negotiations for treaties shall have every advantage which can be derived from [the Senate's] talents, information, integrity, and deliberate investigations, on the one hand, and from [the President's] secrecy and despatch on the other.").
- ↑ The Federalist No. 64 (John Jay).
- ↑ See, e.g., 2 Debates in the Several State Conventions, supra note here, at 507 (statement of James Wilson) ("Neither the President nor the Senate, solely, can complete a treaty; they are checks upon each other, and are so balanced as to produce security to the people.").
- ↑ See The Federalist No. 75 (Alexander Hamilton) ("[T]he particular nature of the power of making treaties indicates a peculiar propriety in that union" of the Executive with the Senate in making treaties.).
- ↑ Id. ("The qualities elsewhere detailed as indispensable in the management of foreign negotiations, point out the Executive as the most fit agent in those transactions[.] . . . [T]he ministerial servant of the Senate could not be expected to enjoy the confidence and respect of foreign powers in the same degree with the constitutional representatives of the nation[.]"); The Federalist No. 64 (John Jay) (discussing the benefits of authorizing the President to negotiate treaties).
- ↑ See The Federalist No. 75 (Alexander Hamilton) ("[T]he vast importance of the trust, and the operation of treaties as laws, plead strongly for the participation of the whole or a portion of the legislative body in the office of making them.").
- ↑ Id.
- ↑ Id. See also supra notes here, here.
- ↑ See at 2 Farrand's Records, supra note here, at 534 (vote 475) (voting, ten states to one, against the motion to include the House of Representatives in the treaty-making process); Id. at 538 ("[Roger Sherman of Connecticut] thought . . . that the necessity of secrecy in the case of treaties forbade a reference of them to the whole Legislature."); The Federalist No. 75 (Alexander Hamilton) ("The fluctuating and, taking its future increase into the account, the multitudinous composition of [the House of Representatives], forbid us to expect in it those qualities which are essential to the proper execution of such a trust [necessary to conclude a treaty]."); The Federalist No. 64 (John Jay) ("They who wish to commit the [treaty] power under consideration to a popular assembly, composed of members constantly coming and going in quick succession, seem not to recollect that such a body must necessarily be inadequate to the attainment of those great objects[.]").
- ↑ See 3 Farrand's Records, supra note here, at 348 (statement of William Davie to the North Carolina Ratifying Convention) ("[T]he extreme jealousy of the little states, and between the commercial states and the non-importing states, produced the necessity of giving an equality of suffrage to the Senate. The same causes made it indispensable to give to the senators, as representatives of states, the power of making, or rather ratifying, treaties. Although it militates against every idea of just proportion that the little state of Rhode Island should have the same suffrage with Virginia, or the great commonwealth of Massachusetts, yet the small states would not consent to confederate without an equal voice in the formation of treaties. . . . It therefore became necessary to give them an absolute equality in making treaties."); 2 Farrand's Records, supra note here, at 392 (James Madison advocating for the President to play a role in treaty-making because "the Senate represents the States alone.").
- ↑ See Art. I, Sec. 10, Clause 1 Proscribed Powers. See also Art. I, Sec. 10, Cl. 1: Foreign Policy by States.
- ↑ See infra notes here-here; Oona A. Hathaway, Treaties' End: The Past, Present, and Future of International Lawmaking in the United States 117 Yale L.J. 1236, 1282 (2008) [hereinafter Hathaway, Treaties' End] (stating that the focus of the supermajority requirement in the Senate "was not the result of general or theoretical concerns. It was, instead, formed in direct response to a recent controversy over treaty negotiations with Spain" implicating regional interests); Bestor, Respective Roles, supra note here, at 100 (discussing the role of sectional interests in the crafting of the treaty power at the constitutional convention); Jack N. Rakove, Solving a Constitutional Puzzle: The Treatymaking Clause as a Case Study, in 1 Perspectives in American History 272-74 (1984) (analyzing historical events influencing the two-thirds requirement in the Treaty Cause).
- ↑ For analysis of the impact of negotiations with Spain over navigation rights to the Mississippi, see Charles Warren, The Mississippi River and the Treaty Clause of the Constitution, 2 Geo. Wash. L. Rev. 271, 274 (1934).
- ↑ See, e.g., 3 Debates in the Several State Conventions, supra note here, at 604 (statement of George Mason) ("The Newfoundland fisheries will require that kind of security which we are now in want of. The Eastern States therefore agreed, at length, that treaties should require the consent of two thirds of the members present in the Senate."); R. Earl McClendon, Origin of the Two-Thirds Rule in Senate Action Upon Treaties, 36 Am. Hist. Rev. 768, 768-69 (1931) (providing a historical analysis of the importance of Newfoundland fisheries and their role in leading to the two-thirds requirement in the Treaty Clause).
- ↑ See Art. I, Sec. 3, Clause 6 Impeachment Trials (convictions on impeachment); Id. § 5, cl. 2 (expulsion of a Member of Congress); Id. § 7, cl. 2 (overriding presidential veto); Id. art. V (proposing a constitutional amendment in Congress); Id. amend. XIV, § 3 (restoring the ability of those who "engaged in insurrection or rebellion against the [United States], or given aid or comfort to the enemies thereof" to serve in public office); Id. amend. XXV, § 4 (congressional approval of removal of the President for inability to discharge powers and duties of the office after the Vice President and the Cabinet approve such removal and after the President contests removal).
- ↑ See supra notes here-here.
- ↑ Compare Articles of Confederation of 1781 art. IX, with Art. II, Sec. 2, Clause 2 Advice and Consent.
- ↑ See The Federalist No. 75 (Alexander Hamilton) (discussing the "probable augmentation of the Senate, by the erection of new States").
- ↑ Id. ("[M]aking a determinate number at all times requisite to a resolution, diminishes the motives to punctual attendance. . . . [M]aking the capacity of the body to depend on a PROPORTION which may be varied by the absence or presence of a single member, has the contrary effect.")
- ↑ For example, in voting on the first treaty that was to be ratified by the United States after the adoption of the Constitution--dubbed the Jay Treaty because it was negotiated by the first Chief Supreme Court Justice of the United States, John Jay, who was appointed a special envoy to Great Britain despite his role in the Judicial Branch--Senators from six states split their votes. See Amity, Commerce, and Navigation (Jay Treaty): Treaty of Amity, Commerce and Navigation, between His Britannick Majesty;--and The United States of America, by Their President, with the Advice and Consent of Their Senate, Nov. 19, 1794, U.S.-Gr. Brit., 8 Stat. 116; 4 Annals of Cong. 862 (1795).
- ↑ Compare, e.g., Louis Henkin, Foreign Affairs and the U.S. Constitution 177 (2d ed. 1996) ("As originally conceived, no doubt, the Senate was to be a kind of Presidential council, affording him advice throughout the treaty-making process and on all aspects of it[.]"); Arthur Bestor, "Advice" from the Very Beginning, "Consent" When the End Is Achieved, 83 Am. J. Int'l L. 718, 726 (1989) ("[T]he use of the phrase 'advice and consent' to describe the relationship between the two partners clearly indicated that the Framers' conception was of a council-like body in direct and continuous consultation with the Executive on matters of foreign policy."); Rakove, supra note here, at 249 ("Advice . . . was to be given at every stage of diplomacy, from the framing of policy and instructions [to treaty negotiators] to the final bestowal of consent."); Ralston Hayden, The Senate and Treaties, 1789-1817, at 6 (1920) ("[T]he [Senate] really was a council of advice upon treaties and appointments--a council which expected to discuss these matters directly with the other branch of the government."); Hathaway, Treaties' End, supra note here, at 1278-81 (discussing the Senate's role as a "Council of Advice" to the President), with Michael D. Ramsey, The Constitution's Text in Foreign Affairs 139 (2007) ("'[A]dvice and consent' . . . seems capable of . . . meaning[ ] an after-the-fact review of the President's proposal, coupled with 'advice' that the President process or adopt an alternate course.").
- ↑ See, e.g., Henkin, supra note here, at 177; Bestor, supra note 31, at 726; Rakove, supra note here, at 249; Hathaway, Treaties' End, supra note here, at 1278-81; Hayden, supra note here, at 6.
- ↑ On an occasion that has been described as the first and last time the President personally visited the Senate chamber to receive the Senate's advice on a treaty, President Washington went to the Senate in August 1789 to consult about proposed treaties with the Southern Indians. See 1 Annals of Cong. 65-71 (1789). But observers reported that he was so frustrated with the experience that he vowed never to appear in person to discuss a treaty again. See, e.g., William Maclay, Sketches of Debate in the First Senate of the United States 122-24 (George W. Harris ed., 1880) (record of the President's visit by Senator William Maclay of Pennsylvania); Hayden, supra note here, at 21-26 (providing a historical account of Washington's visit to the Senate).
- ↑ See VI Memoirs of John Quincy Adams 427 (Charles Francis Adams ed., 1875) ("[E]ver since [President Washington's first visit to the Senate to seek its advice], treaties have been negotiated by the Executive before submitting them to the consideration of the Senate.").
- ↑ See Zivotofsky v. Kerry, 576 U.S. 1, 13 (2015) ("The President has the sole power to negotiate treaties, . . . and the Senate may not conclude or ratify a treaty without Presidential action."); United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319 (1936) ("[T]he President . . . makes treaties with the advice and consent of the Senate; but he alone negotiates.").
- ↑ See Curtis A. Bradley & Jack L. Goldsmith, Treaties, Human Rights, and Conditional Consent, 149 U. Pa. L. Rev. 399, 405 (2000) ("The exercise of the conditional consent power has been in part a response by the Senate to its loss of any substantial 'advice' role in the treaty process."); Samuel B. Crandall, Treaties, Their Making and Enforcement 81 (2d ed. 1916) ("Not usually consulted as to the conduct of negotiations, the Senate has freely exercised its co-ordinate power in treaty making by means of amendments."). Not all legal scholars view the Senate's conditional consent authority as an effective substitute for the role as a council of advice. See Bruce Ackerman & David Golove, Is NAFTA Constitutional?, 108 Harv. L. Rev. 799, 905 (1995) (describing the Senate's assertion of conditional consent power as a "dysfunctional" and counterproductive system generated after "the Senate lost its effective capacity to give advice").
- ↑ As a general matter, "[r]eservations change U.S. obligations without necessarily changing the text, and they require the acceptance of the other party." See Cong. Research Serv., Treaties and Other International Agreements: The Role of the United States Senate, S. Rep. No. 106-71, at 11 (2001) [hereinafter Treaties and Other International Agreements]. See also Restatement (Fourth) of Foreign Relations Law § 305 reporters' n.2 (2018) [hereinafter Fourth Restatement] ("Although the Senate has not been entirely consistent in its use of the labels, in general the label . . . 'reservation' [has been used] when seeking to limit the effect of the existing text for the United States[.]").
- ↑ Declarations are "statements expressing the Senate's position or opinion on matters relating to issues raised by the treaty rather than to specific provisions." Treaties and Other International Agreements, supra note here, at 11. See also Fourth Restatement, supra note here, § 305 reporters' n.2 (describing declarations as the Senate's "policy statements about a treaty" or statements concerning the treaty's domestic status).
- ↑ Understandings are "interpretive statements that clarify or elaborate provisions but do not alter them." Treaties and Other International Agreements, supra note here, at 11. See also Fourth Restatement, supra note here, § 305 reporters' n.2 ("[I]n general [the Senate uses] the label . . . 'understanding' when seeking to set forth the U.S. interpretation of a treaty provision[.]").
- ↑ Provisos concern "issues of U.S. law or procedure and are not intended to be included in the instruments of ratification to be deposited or exchanged with other countries." Treaties and Other International Agreements, supra note here, at 11. See also Fourth Restatement, supra note here, § 305 reporters' n.2 (stating that the Senate uses the term "proviso" when "setting forth a condition relating to the process by which the President makes the treaty or the process by which it is implemented within the United States, or to impose reporting or other obligations on the President").
- ↑ Haver v. Yaker, 76 U.S. (9 Wall.) 32, 35 (1869) (stating that "the Senate are not required to adopt or reject [a treaty] as a whole, but may modify or amend it, as was done with the treaty under consideration"); The Diamond Rings, 183 U.S. 176, 183 (1901) (Brown, J., concurring) (noting that the Senate may "make . . . ratification conditional upon the adoption of amendments to the treaty"); Fourth Restatement, supra note here, § 305 reporters' n.3 (collecting lower court cases giving effect to the Senate's conditions when interpreting or applying a treaty).
- ↑ See United States v. Stuart, 489 U.S. 353, 374-75 (1989) (Scalia, J., concurring) ("[The Senate] may, in the form of a resolution, give its consent on the basis of conditions. If these are agreed to by the President and accepted by the other contracting parties, they become part of the treaty and of the law of the United States[.]"); Relevance of Senate Ratification History to Treaty Interpretation, 11 Op. O.L.C. 28, 32-33 (1987) ("[S]uch understandings or other conditions expressly imposed by the Senate are generally included by the President with the treaty documents deposited for ratification or communicated to the other parties at the same time the treaty is deposited for ratification. Because such conditions are considered to be part of the United States's position in ratifying the treaty, they are generally binding on the President, both internationally and domestically, in his subsequent interpretation of the treaty.") (citations and footnotes omitted).
- ↑ For discussion of historical examples of conditions attached by the Senate to treaties, see Fourth Restatement, supra note here, § 305 reporters' n.5.
- ↑ For example, in giving its advice and consent to the Jay Treaty, the Senate insisted on suspending an article allowing Great Britain to restrict U.S. trade in the British West Indies. See Amity, Commerce, and Navigation (Jay Treaty): Treaty of Amity, Commerce and Navigation, between His Britannick Majesty;--and The United States of American, by Their President, with the Advice and Consent of Their Senate, Nov. 19, 1794, U.S.-Gr. Brit., 8 Stat. 116; S. Exec. J., 4th Cong. (1795). Great Britain ratified the Jay Treaty without objection to the Senate's changes. See Hayden, supra note here, at 86-88.
- ↑ Articles of Confederation of 1781, art. IX, para. 1.
- ↑ See U.S. Const. art II, § 2, cl. 2.
- ↑ See, e.g., 3 The Debates in the Several State Conventions on the Adoption of the Federal Constitution 509 (Jonathan Elliot ed., 1836) [hereinafter Debates in the Several State Conventions] (George Mason arguing for more stringent limits on the treaty power, stating "[t]he President and Senate can make any treaty whatsoever. We wish . . . to guard, this power[.]"); id. at 504 (Patrick Henry calling the treaty power so broad as to be "dangerous and destructive."); 2 The Records of the Federal Convention of 1787, at 393 (Max Farrand ed., 1911) [hereinafter Farrand's Records] (statement of James Wilson) ("Under the clause, without the amendment, the Senate alone can make a Treaty, requiring all the Rice of S. Carolina to be sent to some one particular port.").
- ↑ See, e.g., 3 Debates in the Several State Conventions, supra note here, at 514-15 (James Madison arguing that an attempt to "enumerate all the cases" in which treaty power should be restrained "might, and probably would be defective"); id. at 504 (statement of Edmund Randolph: "It is said there is no limitation of treaties. I defy the wisdom . . . to show how they ought to be limited.").
- ↑ See, e.g., id. at 516 (James Madison arguing that impeachment, criminal convictions, and regular elections in the Senate were checks on abuse of the treaty power.).
- ↑ See Art. II, Sec. 2, Clause 2 Advice and Consent. See also Alexander Hamilton, The Defence No. XXXVI (Jan. 2, 1796), reprinted in 20 Papers of Alexander Hamilton 6 (Harold C. Syrett ed., 1974) ("A power 'to make treaties,' granted in these indefinite terms, extends to all kinds of treaties and with all the latitude which such a power under any form of Government can possess.").
- ↑ See, e.g., 2 Debates in the Several State Conventions, supra note here, at 378 (statement of James Madison: "The object of treaties is the regulation of intercourse with foreign nations, and is external."); Thomas Jefferson, A Manual of Parliamentary Practice 310 (Samuel Harrison Smith ed., 1801) ("[T]he Constitution must have intended to comprehend only those subjects which are usually regulated by treaty, and cannot otherwise be regulated.").
- ↑ See infra note here.
- ↑ See Santovincenzo v. Egan, 284 U.S. 30, 40 (1931) ("There can be no question as to the power of the government of the United States to make the treaty with Persia or the Consular Convention with Italy. The treatymaking power is broad enough to cover all subjects that properly pertain to our foreign relations[.]").
- ↑ See Asakura v. City of Seattle, 265 U.S. 332, 341 (1924) ("The treaty-making power of the United States is not limited by any express provision of the Constitution, and, . . . it does extend to all proper subjects of negotiation between our government and other nations."); Holden v. Joy, 84 U.S. (17 Wall.) 211, 243 (1872) ("[T]he [treaty] power is given, in general terms, without any description of the objects intended to be embraced within its scope, it must be assumed that the framers of the Constitution intended that it should extend to all those objects which in the intercourse of nations had usually been regarded as the proper subjects of negotiation and treaty."). See also De Geofroy v. Riggs, 133 U.S. 258, 267 (1890) ("[I]t is not perceived that there is any limit to the questions which can be adjusted touching any matter which is properly the subject of negotiation with a foreign country."); Ross v. McIntyre, 140 U.S. 453, 463 (1891) ("The treaty-making power vested in our government extends to all proper subjects of negotiation with foreign governments."); Holmes v. Jennison, 39 U.S. (14 Pet.) 540, 569 (1840) (Taney, C.J.) ("The power to make treaties is given by the Constitution in general terms, without any description of the objects intended to be embraced by it; and, consequently, it was designed to include all those subjects, which in the ordinary intercourse of nations had usually been made subjects of negotiation and treaty.") (affirmed by equally divided court).
- ↑ The "international concern" requirement is most often associated with remarks by Charles Evans Hughes shortly before Hughes became Chief Justice of the Supreme Court, and after he served as an Associate Justice and as Secretary of State. See Statement of Charles Evans Hughes, 1929 Am. Soc. Int'l. L. Proc. 194, 194-96 (1929). See also infra notes here-here, 20.
- ↑ See, e.g., Power Auth. of N.Y. v. Fed. Power Comm'n, 247 F.2d 538, 542-43 (D.C. Cir.1957) ("No court has ever said . . . that the treaty power can be exercised without limit to affect matters which are of purely domestic concern and do not pertain to our relations with other nations."), vacated as moot, 355 U.S. 64, 78 (1957) (per curiam); Hughes, supra note here, at 194 ("[The treaty power] is not a power intended to be exercised . . . with respect to matters that have no relation to international concerns."); Treaties and Executive Agreements: Hearing on S.J. Res. 1 Before the Subcomm. of the S. Comm. on the Judiciary, 84th Cong. 183 (1955) (statement of John Foster Dulles, Sec'y of State) (stating that a treaty cannot regulate issues that "do not essentially affect the actions of nations in relation to international affairs, but are purely internal").
- ↑ See Bond v. United States, 572 U.S. 844, 884 (2014) (Thomas, J., concurring in the judgment joined by Scalia & Alito, JJ.).
- ↑ For example, the authors of the Restatement of Foreign Relations Law changed their view of the "international concern" requirement in each iteration of the Restatement. See Restatement (Second) of Foreign Relations Law § 117(1) (1965) ("The United States has the power under the Constitution to make an international agreement if . . . the matter is of international concern[.]"); Restatement (Third) of Foreign Relations § 302 cmt. c (1987) ("Contrary to what was once suggested, the Constitution does not require that an international agreement deal only with 'matters of international concern.'"); Restatement (Fourth) of Foreign Relations Law § 312 reporters' n.8 (2018) [hereinafter Fourth Restatement] ("Unlike in the prior two Restatements, this Section does not take a position on whether there is some sort of subject-matter limitation on the treaty power. . . . The Reporters for the present Restatement concluded that the issue had not been sufficiently addressed in judicial decisions and other relevant legal materials to warrant taking a definitive position.").
- ↑ Some scholars have argued that the divide between internal and external affairs was not well-defined even in the Founding era. See, e.g., David M. Golove & Daniel J. Hulsebosch, A Civilized Nation: The Early American Constitution, the Law of Nations, and the Pursuit of International Recognition, 85 N.Y.U. L. Rev. 954, 989 (2010). Others contend the Framers had a clearer conception of the distinction. See, e.g., Duncan B. Hollis, An Intersubjective Treaty Power, 90 Notre Dame L. Rev. 1415, 1420-25 (2015); Curtis A. Bradley, The Treaty Power and American Federalism, 97 Mich. L. Rev. 390, 411-17 (1998) [hereinafter Bradley, American Federalism Part I].
- ↑ For the first eighty years after the adoption of the Constitution, it was the United States' practice to negotiate and conclude treaties with Indian tribes through the process outlined in the Treaty Clause. See 2 C. Butler, The Treaty Making Power of the United States § 404, at 198-99 (1902). That practice ended when Congress passed the Indian Appropriations Act of March 3, 1871, which affirmed the continued validity of prior Indian treaties, but also declared that hereafter "[n]o Indian nation or tribe within the territory of the United States shall be acknowledged or recognized as an independent nation, tribe, or power with whom the United States may contract by treaty." Act of Mar. 3, 1871, ch. 120, § 1, 16 Stat. 566, codified at 25 U.S.C. § 71. See also Art. I, Sec. 8, Cl. 3: Scope of Commerce Clause Authority and Indian Tribes (analyzing Congress's power to regulate commerce with Indian tribes).
- ↑ See, e.g., Ralston Hayden, The Senate and Treaties, 1789-1817, at 1-168 (1920) (analyzing the development of the treaty-making power in the Washington, Adams, and Jefferson Administrations); William Rawle, A View of the Constitution of the United States 578-88 (1825) (stating that the treaty power was appropriate for those subjects "which properly arise from intercourse with foreign nations" and listing as subjects "peace, alliance, commerce, neutrality, and others of a similar nature"). See also The Federalist No. 64 (John Jay) ("The power of making treaties is an important one, especially as it relates to war, peace, and commerce[.]").
- ↑ See, e.g., David M. Golove, Treaty-Making and the Nation: The Historical Foundations of the Nationalist Conception of the Treaty Power, 98 Mich. L. Rev. 1075, 1304 (2000) ("[I]nternational treaty practice has greatly expanded in the past half century and promises to expand further in the decades ahead as globalization proceeds."); Bradley, American Federalism Part I, supra note here, at 396 ("[A]t one time in American history . . . treaties were generally bilateral and regulated matters such as diplomatic immunity, military neutrality, and removal of trade barriers. The nature of treaty-making, however, has undergone a radical transformation, especially in the years since World War II.").
- ↑ See, e.g., United Nations Framework Convention on Climate Change art. 25, May 9, 1992, 1771 U.N.T.S. 107; United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 23 I.L.M. 1027, 1465 U.N.T.S. 85. Scholars debate the extent to which modern treaties are more likely to address matters that historically were regulated by domestic governments. Compare, e.g., Bradley, American Federalism Part I, supra note here, at 396-97 ("While many treaties continue to concern matters traditionally viewed as inter-national in nature, numerous others concern matters that in the past countries would have addressed wholly domestically."), with Golove, supra note here, at 1101 ("[F]rom the beginning, treaties have invaded the most sensitive spheres of state autonomy[.]").
- ↑ See, e.g., Nicholas Quinn Rosenkranz, Executing the Treaty Power, 118 Harv. L. Rev. 1867, 1876 (2005) (describing the issue of whether the Constitution limits the subject matter of treaties as one of the "great academic debates about the treaty power"); Hollis, supra note here, at 1415-34 (contending that the Constitution requires modern treaties to address matters of international concern, but suggesting a revision of the traditional understanding of the international concern requirement); Louis Henkin, "International Concern" and the Treaty Power of the United States, 63 Am. J. Int'l L. 272, 273 (1969) ("[T]he 'international concern' limitation may not in fact exist; . . . if there is some such limitation, it has been unduly and needlessly elevated to independent doctrine and its scope exaggerated[.]"). Much of the recent debate over the scope of the treaty power concerns whether the Constitution's federalism limitations apply to treaty-making, which is discussed Art. II, Sec. 2, Cl. 2: Congressional Implementation of Treaties.
- ↑ Article VI Supreme Law. For analysis of the Supremacy Clause, see Art. VI, Cl. 2: Overview of Supremacy Clause.
- ↑ See Arthur Bestor, Respective Roles of Senate and President in the Making and Abrogation of Treaties--The Original Intent of the Framers of the Constitution Historically Examined, 55 Wash. L. Rev. 1, 49-72 (1979); Sarah H. Cleveland & William S. Dodge, Defining and Punishing Offenses Under Treaties, 124 Yale L. J. 2202, 2204 (2015) ("One of the principal aims of the U.S. Constitution was to give the federal government authority to comply with the United States's international legal commitments."); David M. Golove, Treaty-Making and the Nation: The Historical Foundations of the Nationalist Conception of the Treaty Power, 98 Mich. L. Rev. 1075, 1102 (2000) ("It was famously the difficulty of obtaining state compliance with treaties that was among the foremost reasons impelling the movement toward Philadelphia, and that experience left an unmistakable imprint on the text adopted.").
- ↑ Articles of Confederation of 1781, arts. VI, IX.
- ↑ See infra notes here-here. See also Frederick W. Marks III, Independence on Trial: Foreign Affairs and the Making of the Constitution 3 (1973) ("Among the most important defensive powers which the United States lacked in 1783 was the power to enforce treaties."); David M. Golove & Daniel J. Hulsebosch, A Civilized Nation: The Early American Constitution, the Law of Nations, and the Pursuit of International Recognition, 85 N.Y.U. L. Rev. 932, 989-90 (2010) ("Because the foreign affairs powers were, for the most part, already nominally in the Confederation under the Articles, the main goal [of the Constitution] was to make those powers effective by eliminating the national government's dependence on the states for carrying its powers into effect and by enabling it to discipline state obstructionism.").
- ↑ See Report of Secretary of Foreign Affairs, John Jay (Oct. 13, 1786), reprinted in Secret Journals of the Congress of the Confederation 185-287 (Boston, Thomas B. Wait 1820) (report of John Jay, then-Secretary of Foreign Affairs under the Articles of Confederation, regarding state laws that violated the United States' treaty obligations to Great Britain); Letter from John Jay to John Adams (Nov. 1, 1786) in 2 The Diplomatic Correspondence of the United States from the Signing of the Definitive Treaty of Peace, 10th September 1783, to the Adoption of the Constitution, March 4, 1789, at 674 (1837) ("[T]here has not been a single day, since [the 1783 Treaty of Peace] took effect, on which it has not been violated in America, by one or other of the States.").
- ↑ See, e.g., 1 The Records of the Federal Convention of 1787, at 316 (Max Farrand ed., 1911) [hereinafter Farrand's Records (records of James Madison) ("The files of [Congress under the Articles of Confederation] contain complaints already, from almost every nation with which treaties have been formed."); The Federalist No. 22 (Alexander Hamilton) (suggesting that, under the Articles of Confederation, foreign nations could not "respect or confide" in the United States because U.S. treaties were "liable to the infractions" by state governments).
- ↑ For example, Great Britain cited U.S. state laws impeding British citizens' debt-collection abilities as grounds for not complying with Britain's treaty-based obligations to withdraw its forces from military forts in the northwestern United States. See Marks, supra note here, at 3-51.
- ↑ Article VI Supreme Law. Early in the Constitutional Convention, the Framers considered giving Congress the power to "negative" (i.e., veto) state law that contravened any treaty, 1 Farrand's Records, supra note here, at 47, 54, but they later adopted language originating in the New Jersey plan making treaties part of the "supreme law" that is binding upon state courts, id. at 245; 2 Farrand's Records, supra note here, at 27-29, 182-83, 389-90, 603.
- ↑ See James Crawford, Brownlie's Principles of Public International Law 63 (8th ed. 2012) (quoting Thomas v. Baptiste [2000] 2 AC 1 PC, 23 (Lord Millett)).
- ↑ See, e.g., Bond v. United States, 572 U.S. 844, 850-51 (2014) (recognizing that the Convention on Chemical Weapons "creates obligations only for State Parties and 'does not by itself give rise to domestically enforceable federal law'") (quoting Medellin v. Texas, 552 U.S. 491, 505 n.2 (2008)); Cameron Septic Tank Co. v. City of Knoxville, 227 U.S. 39, 50 (1913) (holding that a provision in an industrial property convention regulating patents was not self-executing and did not govern the date of expiration of a challenged patent).
- ↑ See, e.g., United States v. Postal, 589 F.2d 862, 884 n.35 (5th Cir. 1979) ("A treaty need not be wholly self-executing . . . . [A] self-executing interpretation of [one article] would not necessarily call for a similar interpretation of [a different article in the same treaty]."), cert. denied, 44 U.S. 832 (1979); Authority of the Federal Bureau of Investigation to Override International Law in Extraterritorial Law Enforcement Activities, 13 Op. O.L.C. 163, 179 n.28 (1989) ("[T]he question should be whether individual provisions of the treaty are self-executing.").
- ↑ See, e.g., Medellin, 552 U.S. at 505 n.2 ("What we mean by 'self-executing' is that the treaty has automatic domestic effect as federal law upon ratification."); Cook v. United States, 288 U.S. 102, 119 (1933) ("For in a strict sense the [t]reaty was self-executing, in that no legislation was necessary to authorize executive action pursuant to its provisions."); Whitney v. Robertson, 124 U.S. 190, 194 (1888) ("When the [treaty] stipulations are not self-executing, they can only be enforced pursuant to legislation to carry them into effect.").
- ↑ See, e.g., Medellin, 552 U.S. at 516 ("The point of a non-self-executing treaty is that it 'addresses itself to the political, not the judicial department; and the legislature must execute the contract before it can become a rule for the Court.'") (quoting Foster v. Neilson, 27 U.S. (2 Pet.) 253, 254 (1829), overruled on other grounds by United States v. Percheman, 32 U.S. (7 Pet.) 51 (1833)).
- ↑ See Medellin, 552 U.S. at 525-26 ("The responsibility for transforming an international obligation arising from a non-self-executing treaty into domestic law falls to Congress."); id. at 526 ("[T]he terms of a non-self-executing treaty can become domestic law only in the same way as any other law--through passage of legislation by both Houses of Congress, combined with either the President's signature or a congressional override of a Presidential veto."). Apart from implementing legislation, compliance with non-self-executing treaty provisions may be achieved through other avenues, including by judicial enforcement of legislation that pre-dates the treaty or through other executive or administrative action outside the judicial system. See Restatement (Fourth) of Foreign Relations Law § 310(1) (2018) [hereinafter Fourth Restatement]; Jean Galbraith, Making Treaty Implementation More Like Statutory Implementation, 115 Mich. L. Rev. 1309, 1333-63 (2017).
- ↑ See Foster, 27 U.S. (2 Pet.) at 273-74. The Court's Percheman decision is discussed infra note here. While Foster first articulated the concept that some treaties require implementing legislation to be made judicially enforceable, the Supreme Court did not use the term "self-executing" when discussing treaties until 1887. See Bartram v. Robertson, 122 U.S. 116, 120 (1887). See also Galbraith, supra note here, at 1341-42 (discussing development and usage of the term "self-executing" in the context of treaties, statutes, and constitutional law).
- ↑ Foster, 27 U.S. (2 Pet.) at 314.
- ↑ Id.
- ↑ Id.
- ↑ Id. at 315. Four years after Foster, the Supreme Court reviewed the Spanish language version of the same treaty, which was translated to state that the land grants "shall remain ratified and confirmed." Percheman, 32 U.S. (7 Pet.) at 69 (emphasis added). Using the Spanish language version, the Court concluded that the same obligation was self-executing, explaining that the subtle difference in translations led to a different result in its holding: The difference between declaring that these grants shall be ratified and confirmed to the persons in possession of the lands, . . . and saying that all concessions of land shall remain confirmed and acknowledged to the persons in possession . . . is sufficiently obvious and important; the sense is materially different. The English side of the treaty leaves the ratification of the grants executory--they shall be ratified; the Spanish, executed. Id.
- ↑ 552 U.S. 491.
- ↑ Avena and Other Mexican Nationals (Mex. v. U.S.), Judgment, 2004 I.C.J. Rep. 12, ¶ 64 (Mar. 31).
- ↑ Id. ¶ 128. See also Vienna Convention on Consular Relations art. 36, Apr. 24, 1963, 21 U.S.T. 77, 596 U.N.T.S. 261 [hereinafter Consular Convention].
- ↑ Charter of the United Nations art. 94(1), 59 Stat. 1051 (June 26, 1945).
- ↑ See Medellin, 552 U.S. at 508-09.
- ↑ Id.
- ↑ Id.
- ↑ See, e.g., Postal, 589 F.2d at 876 ("The self-execution question is perhaps one of the most confounding in treaty law."); Oona A. Hathaway et al., International Law at Home: Enforcing Treaties in U.S. Courts, 37 Yale J. Int'l L. 51, 51-52 (2012) (describing the self-execution doctrine as "[o]ne of the great challenges for scholars, judges, and practitioners alike"); Carlos Manuel Vazquez, The Four Doctrines of Self-Executing Treaties, 89 Am. J. Int'l L. 695, 722 (1995) ("The distinction between self-executing and non-self-executing treaties has particularly confounded the lower courts, whose decisions on the issue have produced a body of law that can only be described as being in a state of disarray.").
- ↑ See, e.g., Trademark and Commercial Protection; Registration of Trademarks (Inter-American): General Inter-American Convention for Trade Mark and Commercial Protection art. 3, Feb. 20, 1929, 46 Stat. 2907 ("The provisions of this Convention shall have the force of law in those States in which international treaties possess that character, as soon as they are ratified by their constitutional organs.").
- ↑ See Medellin, 552 U.S. at 521 ("[N]either our approach nor our cases require that a treaty provide for self-execution in so many talismanic words.").
- ↑ Id. at 549 (Breyer, J., dissenting joined by Souter & Ginsberg, JJ.).
- ↑ Id. at 514-16.
- ↑ See id. at 509, 523.
- ↑ See supra note here.
- ↑ See, e.g., Sosa v. Alvarez-Machain, 542 U.S. 692, 735 (2004) ("[T]he United States ratified the [International Covenant on Civil and Political Rights] on the express understanding that it was not self-executing and so did not itself create obligations enforceable in the federal courts.").
- ↑ See Fourth Restatement, supra note here, § 310(2) & reporters' nn.5, 6.
- ↑ See, e.g., id. § 310(3) & reporters' n.11. See also infra notes here-here.
- ↑ For discussion of the Appropriations Clause and Congress's power of the purse, see Art. I, Sec. 9, Cl. 7: Overview of Appropriations Clause.
- ↑ See Edwards v. Carter, 580 F.2d 1055, 1058 (D.C. Cir. 1978) (per curiam) ("[E]xpenditure of funds by the United States cannot be accomplished by self-executing treaty; implementing legislation appropriating such funds is indispensable."), cert. denied, 436 U.S. 907 (1978); The Over the Top (Schroeder v. Bissell), 5 F.2d 838, 845 (D. Conn. 1925) ("All treaties requiring payments of money have been followed by acts of Congress appropriating the amount. The treaties were the supreme law of the land, but they were ineffective to draw a dollar from the treasury."); Turner v. Am. Baptist Missionary Union, 24 F. Cas. 344, 345 (C.C.D. Mich. 1852) (No. 14251) ("[M]oney cannot be appropriated by the treaty-making power. This results from the limitations of our government.").
- ↑ See Hopson v. Kreps, 622 F.2d 1375, 1380 (9th Cir. 1980) ("Treaty regulations that penalize individuals . . . require domestic legislation before they are given any effect."); Postal, 589 F.2d at 877 (noting that constitutional restrictions on the use of a self-executing treaty to withdraw money from the treasury would also "be the case with respect to criminal sanctions"), cert. denied, 444 U.S. 832 (1979).
- ↑ See Edwards, 580 F.2d at 1058 ("[T]he constitutional mandate that 'all Bills for raising Revenue shall originate in the House of Representatives,' . . . appears, by reason of the restrictive language used, to prohibit the use of the treaty power to impose taxes.") (quoting Art. I, Sec. 7, Clause 1 Revenue); Swearingen v. United States, 565 F. Supp. 1019, 1022 (D. Colo. 1983) ("[A] treaty which created an exemption from the taxation of income of United States citizens . . . would be in contravention of the exclusive constitutional authority of the House of Representatives to originate all bills for raising revenues."). For analysis of the Origination Clause and Congress's power to raise revenue, see discussion supra Art. I, Sec. 7, Cl. 1: Origination Clause and Revenue Bills.
- ↑ Article VI Supreme Law
- ↑ See, e.g., Fourth Restatement, supra note here, § 310 reporters' n.12. Some passages of Medellin suggest non-self-executing treaties have no status in domestic law. See, e.g., Medellin, 552 U.S. at 504 ("This Court has long recognized the distinction between treaties that automatically have effect as domestic law, and those that--while they constitute international law commitments--do not by themselves function as binding federal law."); id. at 526 ("[A] non-self-executing treaty can become domestic law only in the same way as any other law--through passage of legislation by both Houses of Congress, combined with either the President's signature or a congressional override of a Presidential veto."). Other passages suggest self-execution addresses whether the treaty is enforceable in U.S. courts rather than whether the treaty constitutes "law" in the constitutional sense. See, e.g., id. at 519 ("[W]hether the treaties underlying a judgment are self-executing so that the judgment is directly enforceable as domestic law in our courts is, of course, a matter for this Court to decide."); id. at 523 ("[T]he [ICJ's] judgment is not a rule of domestic law binding in state and federal courts.").
- ↑ OLC has stated that its opinions are "controlling" on questions of law within the Executive Branch, subject to the ultimate authority of the President. See Memorandum from David J. Barron, Acting Asst. Att'y Gen., Office of Legal Couns. to Att'ys of the Office, Re: Best Practices for OLC Legal Advice and Written Opinions 1 (July 16, 2010), [1] ("OLC's core function . . . is to provide controlling advice to Executive Branch officials on questions of law."); Memorandum from Steven G. Bradbury, Principal Deputy Asst. Att'y Gen., Office of Legal Counsel to Att'ys of the Office, Re: Best Practices for OLC Opinions 1 (May 16, 2005), [2] ("[S]ubject to the President's authority under the Constitution, OLC opinions are controlling on questions of law within the Executive Branch."). See also Trevor W. Morrison, Stare Decisis in the Office of Legal Counsel, 110 Colum. L. Rev. 1448, 1525 n.31 (2010) (collecting statements from OLC and its officials on the status of OLC opinions). However, OLC's opinions are not "law" that is binding outside of the Executive Branch. See, e.g., McElroy v. United States ex rel. Guagliardo, 361 U.S. 281, 285-86 (1960) (declining to follow an Attorney General opinion and noting that such opinions are "entitled to some weight," but "do not have the force of judicial decisions").
- ↑ See ITC Ltd. v. Punchgini, Inc.,, 482 F.3d 135, 162 n.21 (2d Cir. 2007) ("Non-self-executing treaties do not become effective as domestic law until implementing legislation is enacted."), certified question answered, 880 N.E.2d 852 (2007); Renkel v. United States, 456 F.3d 640, 643 (6th Cir. 2006) ("'[N]on-self-executing' treaties do require domestic legislation to have the force of law."); Authority of the Federal Bureau of Investigation to Override International Law in Extraterritorial Law Enforcement Activities, supra note here, at 178-79 ("[T]he decision whether to act consistently with an unexecuted treaty is a political issue rather than a legal one, and unexecuted treaties . . . are not legally binding on the political branches.") (footnote omitted).
- ↑ See, e.g., The Over the Top, 5 F.2d at 845 ("The treaties were the supreme law of the land, but they were ineffective to draw a dollar from the treasury."); Fourth Restatement, supra note here, § 310 reporters' n.12 ("[T]here is no clear reason at present to conclude that non-self-executing provisions are, as a general matter, less than supreme law."); Curtis Bradley, International Law in the U.S. Legal System 44 (2d ed. 2015) (summarizing the debate of the domestic status of non-self-executing treaties).
- ↑ See, e.g., Medellin, 552 U.S. at 504-06 (discussing the distinction between the binding effect of treaties under international law versus domestic law).
- ↑ See id.; Fourth Restatement, supra note here, § 301(3) & cmt. d. See also Validity of Congressional-Executive Agreements That Substantially Modify the United States' Obligations Under an Existing Treaty, 20 Op. O.L.C. 389, 391 (1996) ("A 'treaty,' . . . has two aspects: insofar as it is self-executing, it prescribes a rule of domestic or municipal law; and, as a compact or contract between nations, it gives rise to binding obligations in international law.") (footnote omitted).
- ↑ See, e.g., Head Money Cases (Edye v. Robertson), 112 U.S. 580, 598 (1884) ("[A treaty] depends for the enforcement of its provisions on the interest and the honor of the governments which are parties to it."); Fourth Restatement, supra note here, § 310 cmt. c ("It is ordinarily up to each nation to decide how to implement domestically its international obligations.").
- ↑ See Medellin, 552 U.S. at 522-23 (explaining that, although the ICJ's judgment was non-self-executing and did "not of its own force constitute binding federal law[,]" the judgment "create[d] an international law obligation" for the United States); Fourth Restatement, supra note here, § 310(1) ("Whether a treaty provision is self-executing concerns how the provision is implemented domestically and does not affect the obligation of the United States to comply with it under international law.").
- ↑ See Medellin v. Texas, 552 U.S. 491, 525-26 (2008). See also Art. II, Sec. 2, Cl. 2: Self-Executing and Non-Self-Executing Treaties (discussing Congress's role in implementing non-self-executing treaties).
- ↑ Whereas Alexander Hamilton argued that the House of Representatives was obligated to appropriate funds for the Jay Treaty, James Madison, then a Member of the House, and others disagreed. Compare Enclosure to Letter from Alexander Hamilton to George Washington (Mar. 29, 1796), in 20 Papers of Alexander Hamilton 98 (Harold C. Syrett ed., 1974) ("[T]he [H]ouse of [R]epresentatives have no moral power to refuse the execution of a treaty, which is not contrary to the [C]onstitution, because it pledges the public faith, and have no legal power to refuse its execution because it is a law--until at least it ceases to be a law by a regular act of revocation of the competent authority."), with 5 Annals of Cong. 493-94 (1796) (statement of Rep. Madison) ("[T]his House, in its Legislative capacity, must exercise its reason; it must deliberate; for deliberation is implied in legislation. If it must carry all Treaties into effect, . . . it would be the mere instrument of the will of another department, and would have no will of its own."); 5 Annals of Cong. 771 (1796) (proposed resolution of Rep. William Blount) ("[W]hen a Treaty stipulates regulations on any of the subjects submitted by the Constitution to the power of Congress, it must depend, for its execution, as to such stipulations, on a law or laws to be passed by Congress. And it is the Constitutional right and duty of the House of Representatives, in all such cases, to deliberate on the expediency or inexpediency of carrying such Treaty into effect, and to determine and act thereon, as, in their judgment, may be most conducive to the public good.").
- ↑ See Louis Henkin, Foreign Affairs and the U.S. Constitution 205 (2d ed. 1996).
- ↑ 252 U.S. 416 (1920).
- ↑ See Migratory Bird Treaty Act, ch. 128, 40 Stat. 755 (1918); Convention for the Protection of Migratory Birds art. VIII, Aug. 16, 1916, U.S.-Gr. Brit., 39 Stat. 1702.
- ↑ United States v. McCullagh, 221 F. 288, 295-96 (D. Kan. 1915); United States v. Shauver, 214 F. 154, 160 (E.D. Ark. 1914).
- ↑ See Holland, 252 U.S. at 433.
- ↑ See id at 433-34 (concluding that the "treaty in question does not contravene any prohibitory words to be found in the Constitution" and is not "forbidden by some invisible radiation from the general terms of the Tenth Amendment").
- ↑ See Art. I, Section 8 Enumerated Powers. See also Art. I, Sec. 8, Cl. 18: Overview of Necessary and Proper Clause (analyzing the Necessary and Proper Clause).
- ↑ See Holland, 252 U.S. at 432 ("If the treaty is valid there can be no dispute about the validity of the statute under Article 1, Section 8, as a necessary and proper means to execute the powers of the Government."). Accord Neely v. Henkel, 180 U.S. 109, 121 (1901) ("The power of Congress to make all laws necessary and proper . . . includes the power to enact such legislation as is appropriate to give efficacy to any stipulations which it is competent for the President by and with the advice and consent of the Senate to insert in a treaty with a foreign power.").
- ↑ See Bond v. United States, 572 U.S. 844, 873 (2014) (Scalia, J., concurring in the judgment joined by Thomas, J.) (describing Holland's interpretation of the Necessary and Proper Clause as consisting of an "unreasoned and citation-less sentence" that is unsupported by the Constitution's text or structure); Nicholas Quinn Rosenkranz, Executing the Treaty Power, 118 Harv. L. Rev. 1867, 1868 (2005) (arguing that Holland's interpretation of the Necessary and Proper Clause "is wrong and the case should be overruled"). See also Art. II, Sec. 2, Cl. 2: Effect of Treaties on the Constitution, at n.1 (discussing subsequent Supreme Court decisions responding to questions raised in Holland concerning the Supremacy Clause). In the 1950s, there was an effort, led by Senator John Bricker of Ohio, to limit the scope of the treaty power as described in Holland through a constitutional amendment. One version of the proposed amendment, which became known as the "Bricker Amendment," would have provided that a "treaty shall become effective as internal law in the United States only through legislation which would be valid in the absence of a treaty." See S. Comm. on the Judiciary, 83d Cong., Proposals to Amend the Treaty-Making Provisions of the Constitution: Views of Deans and Professors of Law 3 (Comm. Print 1953). No version of the Bricker Amendment was ever adopted.
- ↑ See, e.g., Curtis A. Bradley, The Treaty Power and American Federalism, 97 Mich. L. Rev. 390, 433 (1998); Curtis A. Bradley, The Treaty Power and American Federalism, Part II, 99 Mich. L. Rev. 98, 98-99 (2000); John C. Eastman, Will Mrs. Bond Topple Missouri v. Holland?, Cato Sup. Ct. Rev. 185, 202 (2010-2011). For discussion of changes in international treaty practice, see Art. II, Sec. 2, Cl. 2: Scope of Treaty-Making Power.
- ↑ See, e.g., Bond v. United States, 572 U.S. 844, 874-76 (2014) (Scalia, J., concurring in the judgment joined by Thomas, J.) ("[A] power to help the President make treaties is not a power to implement treaties already made."); Rosenkranz, supra note here, at 1882 ("The power granted to Congress is emphatically not the power to make laws for carrying into execution 'the treaty power,' let alone the power to make laws for carrying into execution 'all treaties.' Rather, on the face of the conjoined text, Congress has power 'To make all Laws which shall be necessary and proper for carrying into Execution . . . [the] Power . . . to make Treaties.'") (alterations in original).
- ↑ See Bond, 572 U.S. at 876 (Scalia, J., concurring in the judgment joined by Thomas, J.) ("Once a treaty has been made, Congress's power to do what is 'necessary and proper' to assist the making of treaties drops out of the picture. To legislate compliance with the United States' treaty obligations, Congress must rely upon its independent (though quite robust) Article I, § 8, powers."); Rosenkranz, supra note here, at 1882-85 (discussing the scope of legislation Congress could pass under a more restrictive view of the Necessary and Proper Clause and its relationship to the Treaty Clause).
- ↑ See, e.g., Edward T. Swaine, Putting Missouri v. Holland on the Map, 73 Mo. L. Rev. 1007, 1012-18 (2008) (critiquing the view that Congress has the power to pass legislation necessary to make treaties but not to enforce or implement them); Michael D. Ramsey, Congress's Limited Power to Enforce Treaties, 90 Notre Dame L. Rev. 1539, 1542-43 (2015) (contending that the power to make treaties includes the power to enforce them "because absent reliable methods of enforcement, the power to make treaties as a practical matter would be greatly impaired").
- ↑ See, e.g., David Sloss, International Agreements and the Political Safeguards of Federalism, 55 Stan. L. Rev. 1963, 1964 (2003); Oona A. Hathaway et al., The Treaty Power: Its History, Scope, and Limits, 98 Cornell L. Rev. 239, 324-26 (2013).
- ↑ See, e.g., David M. Golove, Treaty-Making and the Nation: The Historical Foundations of the Nationalist Conception of the Treaty Power, 98 Mich. L. Rev. 1075, 1313-15 (2000).
- ↑ See Bond, 572 U.S. at 855-56 (declining to revisit Holland or decide that a prosecution under legislation implementing a treaty was not "a necessary and proper means of executing the National Government's power to make treaties").
- ↑ See United States v. Lara, 541 U.S. 193, 201 (2004) ("[A]s Justice Holmes pointed out, treaties made pursuant to [the treaty] power can authorize Congress to deal with 'matters' with which otherwise 'Congress could not deal.'") (quoting Missouri v. Holland, 252 U.S. 416, 433 (1920)); Reid v. Covert, 354 U.S. 1, 18 (1957) (plurality opinion) ("To the extent that the United States can validly make treaties, the people and the States have delegated their power to the National Government and the Tenth Amendment is no barrier.").
- ↑ 572 U.S. 844.
- ↑ See Id. at 861.
- ↑ Chemical Weapons Convention Implementation Act of 1998, Pub. L. No. 105-277, div. I, tit. II, § 201(a), 112 Stat. 2681-856, 2681-866 (codified at 22 U.S.C. § 6701 et seq.); Convention on the Prohibition of the Development, Production, Stockpiling, and Use of Chemical Weapons and on Their Destruction art. 1, Jan. 13, 1993, S. Treaty Doc. No. 103-21, 1974 U.N.T.S. 317.
- ↑ Bond, 572 U.S. at 848.
- ↑ See id. at 855-66. Justice Scalia and Justice Thomas criticized Holland and argued that the Supreme Court should depart from its interpretation of congressional power to enact legislation that is necessary and proper to implement treaties. See Id. at 873-81 (Scalia, J., concurring in the judgment joined by Thomas, J.).
- ↑ See id. at 859.
- ↑ Id. at 855-60.
- ↑ See id.
- ↑ Accord William S. Dodge, Bond v. United States and Congress's Role in Implementing Treaties, 108 AJIL Unbound 86, 87 (2014) ("The central holding of Bond is that statutes implementing treaties are not exceptions to the rules of statutory interpretation that the Supreme Court has developed to protect federalism.").
- ↑ See Sanchez-Llamas v. Oregon, 548 U.S. 331, 353-54 (2006) ("If treaties are to be given effect as federal law under our legal system, determining their meaning as a matter of federal law 'is emphatically the province and duty of the judicial department.'") (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803)).
- ↑ See, e.g., BG Grp., PLC v. Republic of Argentina, 572 U.S. 25, 37 (2014); Lozano v. Montoya Alvarez, 572 U.S. 1, 11 (2014); Sumitomo Shoji Am., Inc. v. Avagliano, 457 U.S. 176, 183 (1982); Wright v. Henkel, 190 U.S. 40, 57 (1903).
- ↑ See, e.g., Monasky v. Taglieri, No. 18-935, slip. op. 1, 7 (U.S. Feb. 25, 2020) (quoting Air France v. Saks, 470 U.S. 392, 397 (1985)); Water Splash, Inc. v. Menon, No. 16-254, 581 U.S. 271, 272 (2017) (quoting Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 699 (1988)); Societe Nationale Industrielle Aerospatiale v. U.S. Dist. Ct. for S. Dist. of Iowa, 482 U.S. 522, 534 (1987).
- ↑ See, e.g., Water Splash, No. 18-935, slip. op. at 7-8; Schlunk, 486 U.S. at 699. In one case, the Supreme Court changed its conclusion about the self-executing effect of a provision in an 1819 treaty with Spain after analyzing an authenticated Spanish-language version of the text. See supra Art. II, Sec. 2, Cl. 2: Effect of Treaties on the Constitution, at n.19.
- ↑ See, e.g., Abbott v. Abbott, 560 U.S. 1, 20 (2010); Sanchez-Llamas, 548 U.S. at 347; Societe Nationale Industrielle Aerospatiale, 482 U.S. at 530; E. Airlines, Inc. v. Floyd, 499 U.S. 530, 552 (1991).
- ↑ See, e.g., Monasky, No. 18-935, slip. op. at 8-9; Water Splash, No. 18-935, slip. op. at 7-8; Medellin v. Texas, 552 U.S. 491, 507 (2008); Air France, 470 U.S. at 400; Schlunk, 486 U.S. at 700.
- ↑ See, e.g., Water Splash, No. 18-935, slip. op. at 7-9; Abbott, 560 U.S. at 16; Lozano, 572 U.S. at 12; Air France, 470 U.S. at 404.
- ↑ See, e.g., Medellin, 552 U.S. at 507; Trans World Airlines, Inc. v. Franklin Mint Corp., 466 U.S. 243, 259 (1984).
- ↑ See Chan v. Korean Air Lines, Ltd., 490 U.S. 122, 134 (1989) ("We must thus be governed by the text--solemnly adopted by the governments of many separate nations--whatever conclusions might be drawn from the intricate drafting history that petitioners and the United States have brought to our attention. The latter may of course be consulted to elucidate a text that is ambiguous . . . . But where the text is clear, as it is here, we have no power to insert an amendment.").
- ↑ Arizona v. Navajo Nation, No. 21-1484 (citing United States v. Navajo Nation, 537 U.S. 488, 506 (2003)).
- ↑ Id. at 2, 13.
- ↑ See Cong. Rsch. Serv., Treaties and Other International Agreements: The Role of the United States Senate, S. Rep. No. 106-71, at 12-13 (2001) [hereinafter Treaties and Other International Agreements] ("The executive branch has the primary responsibility for carrying out treaties and ascertaining that other parties fulfill their obligations after treaties and other international agreements enter into force . . . . The executive branch interprets the requirements of an agreement as it carries out its provisions."); Constitutionality of Legislative Provision Regarding ABM Treaty, 20 Op. O.L.C. 246, 248-49 (1996) (discussing the Executive Branch's view on the President's power over treaty interpretation and execution); Restatement (Fourth) of Foreign Relations Law §306 cmt. g (2018) ("Execution of a treaty requires interpretation, and the President often determines what a treaty means in the first instance.").
- ↑ See supra note here.
- ↑ In Charlton v. Kelly, for example, the Supreme Court declined to decide whether Italy violated its extradition treaty with the United States, reasoning that, even if a violation occurred, the President "elected to waive any right" to respond to the breach by voiding the treaty. See 229 U.S. 447, 475 (1913). For discussion of Charlton and the political question doctrine, see Art. III, Sec. 2, Cl. 1: Overview of Political Question Doctrine.
- ↑ See 28 U.S.C. § 512 ("The head of an executive department may require the opinion of the Attorney General on questions of law arising in the administration of his department."). For background on the Department of Justice's advice-giving function, see Art. II, Sec. 2, Cl. 2: Self-Executing and Non-Self-Executing Treaties, at n.43.
- ↑ See 28 U.S.C. § 516 ("Except as otherwise authorized by law, the conduct of litigation in which the United States, an agency, or officer thereof is a party, or is interested, and securing evidence therefor, is reserved to officers of the Department of Justice, under the direction of the Attorney General.").
- ↑ See U.S. Dep't of State, 11 Foreign Affairs Manual § 724.1 (2006), [3] ("Negotiations of treaties . . . are not to be undertaken, nor any exploratory discussions undertaken with representatives of another government or international organization, until authorized in writing by the Secretary [of State] or an officer specifically authorized by the Secretary for that purpose.").
- ↑ See, e.g., Lozano, 572 U.S. at 21-22 (accepting the State Department's interpretation of the Hague International Child Abduction Convention); Sumitomo Shoji Am., 457 U.S. at 184-85 (adopting the State Department's interpretation of a Treaty of Friendship, Commerce and Navigation between Japan and the United States); Kolovrat v. Oregon, 366 U.S. 187, 194-95 (1961) (examining the State Department's diplomatic notes and correspondence in examining an 1881 Treaty between the United States and Serbia for Developing Commercial Relations).
- ↑ See Water Splash, No. 18-935, slip. op. at 7-8 (quoting Abbott, 560 U.S. at 15); Medellin, 552 U.S. at 513; Sumitomo Shoji Am., 457 U.S. at 184-85; Kolovrat, 366 U.S. at 194.
- ↑ See BG Grp., 572 U.S. at 37 (construing a dispute resolution provision in an investment treaty between the United Kingdom and Argentina and concluding "[w]e do not accept the Solicitor General's view as applied to the treaty before us"); Hamdan v. Rumsfeld, 548 U.S. 557, 629-30 (2006) (declining to adopt the Executive Branch's interpretation of Common Article 3 of the 1949 Geneva Conventions).
- ↑ For example, the Reagan Administration proposed to advance a new interpretation of the 1972 Treaty on the Limitation of Anti-Ballistic Missile Systems (AMB Treaty) with the Soviet Union that would have allowed the U.S. to test a space-based missile defense system. See generally ABM Treaty Interpretation Dispute: Hearing Before the Subcomm. on Arms Control, Int'l Sec. & Sci. of the H. Comm. on Foreign Affs., 99th Cong. (1985); Strategic Defense Initiative: Hearing Before the Subcomm. on Strategic & Theater Nuclear Forces of the S. Comm. on Armed Servs., 99th Cong. (1985); ABM Treaty and the Constitution: Joint Hearings Before the S. Comm. on Foreign Rel. & the S. Comm. on the Judiciary, 100th Cong. 81-105 (1987); Abraham D. Sofaer, The ABM Treaty and the Strategic Defense Initiative, 99 Harv. L. Rev. 1972 (1986). Some in Congress argued that the new interpretation contradicted the shared understanding of the Executive Branch and the Senate when the ABM Treaty was ratified, and the Reagan Administration ultimately decided not to rely on its new interpretation. See Treaties and Other International Agreements, supra note here, at 128-29; John Yoo, Politics As Law?: The Anti-Ballistic Missile Treaty, the Separation of Powers, and Treaty Interpretation, 89 Cal. L. Rev. 851, 860 (2001). Since this controversy, the Senate at times has conditioned its advice and consent to treaties on what has become known as the "Biden Condition," which provides that "the United States shall interpret the Treaty in accordance with the common understanding of the Treaty shared by the President and the Senate at the time the Senate gave its advice and consent to ratification." See, e.g., 134 Cong. Rec. 12849 (1988).
- ↑ See, e.g., 164 Cong. Rec. S8052 (daily ed. Jan. 2, 2019) (providing the Senate's advice and consent to ratification of the U.N. Convention on Assignment of Receivables in International Trade conditioned on, among other things, the understanding that the treaty would not regulate securities); 143 Cong. Rec. 22795 (1997) (resolution of advice and consent to the Constitution and Convention of the International Telecommunications Union conditioned on, among other things, the understanding that the treaty's reference to "geographical situation of particular countries" would not "imply a recognition of claim to any preferential rights to the geostationary-satellite orbit"). For discussion of the Senate's conditional consent authority and its ability to issue reservations, understandings, and declarations, see Art. II, Sec. 2, Cl. 2: Historical Background on Treaty-Making Power
- ↑ See Art. II, Sec. 2, Cl. 2: Historical Background on Treaty-Making Power.
- ↑ See The Diamond Rings, 183 U.S. 176, 180 (1901).
- ↑ Accord Louis Henkin, Foreign Affairs and the U.S. Constitution 206 (2d ed. 1996) ("Congress . . . has occasion to interpret a treaty when it considers enacting implementing legislation, or other legislation to which the treaty might be relevant.").
- ↑ For example, the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment (Torture Convention) requires countries to make torture and other defined offenses punishable by "appropriate" penalties in domestic law. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment art. 4, Dec. 10, 1984, 23 I.L.M. 1027, 1465 U.N.T.S. 85 [hereinafter Torture Convention] ("Each State Party shall make these offences punishable by appropriate penalties which take into account their grave nature."). The legislation implementing the Torture Convention appears to interpret this provision by making torture resulting in death a capital offense and torture that does not result in death punishable by imprisonment up to 20 years. 18 U.S.C. § 2340A(a).
- ↑ Article VI Supreme Law.
- ↑ Whitney v. Robertson, 124 U.S. 190, 195 (1888). See also Chinese Exclusion Case (Ping v. United States) ("[T]he last expression of the sovereign will must control.").
- ↑ See, e.g., Breard v. Greene, 523 U.S. 371, 376 (1998) (per curiam on denial of certiorari); Chinese Exclusion Case, 130 U.S. at 600-01; Whitney, 124 U.S. at 194-95; Head Money Cases (Edye v. Robertson), 112 U.S. 580, 596-99.
- ↑ See Cook v. United States, 288 U.S. 102, 118-19 (1933) (holding that a 1924 treaty between the United States and Great Britain superseded the terms of the Tariff Act of 1922 and limited the authority of the Coast Guard to board a British vessel outside U.S. territorial waters). See also The Cherokee Tobacco, 78 U.S. (11 Wall.) 616, 621 (1870) ("A treaty may supersede a prior act of Congress, and an act of Congress may supersede a prior treaty.") (footnote omitted).
- ↑ Whitney, 124 U.S. at 194 ("[I]f the [treaty and statute] are inconsistent, the one last in date will control the other: provided, always, the stipulation of the treaty on the subject is self-executing."). See also Medellin v. Texas, 552 U.S. 491, 505-06 (2008) ("Only '[i]f the treaty contains stipulations which are self-executing, that is, require no legislation to make them operative, [will] they have the force and effect of a legislative enactment.'") (quoting Whitney, 124 U.S. at 194); Apparatus for Radio Communication on Steam Vessels, 30 Op. Att'y Gen. 84, 86 (1913) ("[U]nless a treaty is self-executing, it will not necessarily repeal a prior and inconsistent statute on the same subject.").
- ↑ See Art. II, Sec. 2, Cl. 2: Self-Executing and Non-Self-Executing Treaties.
- ↑ See supra note here. See also Restatement (Fourth) of Foreign Relations Law § 109 cmt. c (2018); David M. Golove, Treaty-Making and the Nation: The Historical Foundations of the Nationalist Conception of the Treaty Power, 98 Mich. L. Rev. 1075, 1100-04 (2000).
- ↑ See Art. II, Sec. 2, Cl. 2: Self-Executing and Non-Self-Executing Treaties.
- ↑ Treaty of Peace art. 4, Sept. 3, 1783, Gr. Brit.-U.S., 8 Stat. 80.
- ↑ See Act for Sequestering British Property, in 9 The Statutes at Large; Being a Collection of All the Laws of Virginia in the Year 1619, at 379 (William Waller Hening ed., 1821) (passed Oct. 20, 1777).
- ↑ 3 U.S. (3 Dall.) 199 (1796).
- ↑ Id. at 236-37 (Chase, J.).
- ↑ See Restatement (Fourth) of Foreign Relations Law § 108 reporters' n.1 (2018) [hereinafter Fourth Restatement] (collecting Supreme Court cases).
- ↑ See Medellin, 552 U.S. at 513. See also Buell v. Mitchell, 274 F.3d 337, 372 (6th Cir. 2001) (concluding that certain human rights treaties to which the United States is a party did not prevail over an Ohio death penalty statute because, inter alia, the treaties were non-self-executing).
- ↑ See, e.g., Asakura v. City of Seattle, 265 U.S. 332, 341 (1924); Hauenstein v. Lynham, 100 U.S. 483, 490 (1879). See also David Sloss, The Death of Treaty Supremacy 85-95 (2016) (finding no cases between 1800 and 1945 in which state or local law prevailed over an inconsistent treaty because the treaty was deemed non-self-executing); Fourth Restatement, supra note here, § 308 cmt. b ("Before the mid-20th century, courts routinely enforced treaty obligations to displace contrary State or local law, often without focusing on the question of self-execution. . . . In more recent cases, once courts have identified a conflict between a treaty and State or local law, they tend to consider whether a treaty provision is self-executing before applying it to preempt State or local law.").
- ↑ See supra note here.
- ↑ In Missouri v. Holland, the Supreme Court noted that, whereas the Supremacy Clause gives acts of Congress the status of supreme law of the land only when "made in pursuance" of the Constitution, treaties are deemed supreme law of the land when made "under the authority of the United States." See 252 U.S. 416, 432 (1920) (discussing U.S. Const. art VI, cl. 2). Holland described it as "an open question" whether the "authority" underlying the treaty power could extend beyond what the Constitution permits. Id. But the Court clarified in subsequent decisions that the treaty power is subject to certain constitutional restraints, and the variation in language in the Supremacy Clause was intended to ensure that treaties made under the Articles of Confederation would remain in effect under the Constitution. See Reid v. Covert, 354 U.S. 1, 16-17 (1957) (plurality opinion).
- ↑ See Doe v. Braden, 57 U.S. (16 How.) 635, 657 (1853) ("The treaty is . . . a law made by the proper authority, and the courts of justice have no right to annul or disregard any of its provisions, unless they violate the Constitution of the United States."); The Cherokee Tobacco, 78 U.S. (11 Wall.) 616, 620 (1870) ("It need hardly be said that a treaty cannot change the Constitution or be held valid if it be in violation of that instrument."); De Geofroy v. Riggs, 133 U.S. 258, 267 (1890) ("It would not be contended that [the treaty power] extends so far as to authorize what the constitution forbids."); Asakura v. City of Seattle, 265 U.S. 332, 341 (1924) ("The treaty-making power of the United States . . . does not extend 'so far as to authorize what the Constitution forbids.'") (quoting De Geofroy, 133 U.S. at 267). See also Reid ("This Court has regularly and uniformly recognized the supremacy of the Constitution over a treaty.").
- ↑ See Louis Henkin, Foreign Affairs and the U.S. Constitution 185 (2d ed. 1996); Restatement (Fourth) of Foreign Relations § 307 cmt. a (2018).
- ↑ See Boos v. Barry, 485 U.S. 312, 324 (1988) ("It is well established that 'no agreement with a foreign nation can confer power on the Congress, or on any other branch of Government, which is free from the restraints of the Constitution.'") (quoting Reid (plurality opinion)). See also Am. Ins. Ass'n v. Garamendi, 539 U.S. 396, 416-17 & n.9 (2003) (stating that the power of a treaty to preempt state law is "[s]ubject . . . to the Constitution's guarantees of individual rights").
- ↑ See Boos, 484 U.S. at 324, 334. Although the Supreme Court has not addressed the issue, several lower courts and commentators have concluded that the United States cannot exercise powers that the Constitution assigns exclusively to Congress, such as the appropriations of funds, through a treaty. See Art. II, Sec. 2, Cl. 2: Self-Executing and Non-Self-Executing Treaties.
- ↑ The plurality in Reid rejected the argument that an executive agreement between the United States and Great Britain and the North American Treaty Organization Status of Forces Agreement permitted military courts to try the dependents of U.S. military personnel living at overseas posts when the criminal process did not comport with constitutional guarantees of the Fifth and Sixth Amendments. See Reid, 354 U.S. at 15-19 & n.29. See also Fifth Amend.: Historical Background on Grand Jury Clause and Sixth Amend.: Historical Background on Right to Trial by Jury (discussing the constitutional guarantees of a grand jury and trial by jury). While only four Justices joined the Reid plurality opinion, none of the separately concurring or dissenting Justices questioned the plurality's analysis of the treaty power. See 354 U.S. at 41-64 (1957) (Frankfurter, J., concurring in the judgment); Id. at 65-78 (Harlan, J., concurring in the judgment); Id. at 78-90 (Clark, J., dissenting joined by Burton, J.).
- ↑ Boos, 484 U.S. at 324. See also Garamendi, 539 U.S. at 417 n.9 (citing plurality opinion in Reid).
- ↑ See, e.g., Goldwater v. Carter (plurality opinion) ("[W]hile the Constitution is express as to the manner in which the Senate shall participate in the ratification of a treaty, it is silent as to that body's participation in the abrogation of a treaty.").
- ↑ Act of July 7, 1798, ch. 67, 1 Stat. 578 (An Act To Declare the Treaties Heretofore Concluded with France, No Longer Obligatory on the United States).
- ↑ See Thomas Jefferson, A Manual of Parliamentary Practice 52 (Samuel Harrison Smith ed., 1801) ("Treaties being declared, equally with the laws of the U[nited] States, to be the supreme law of the land, it is understood that an act of the legislature alone can declare them infringed and rescinded. This was accordingly the process adopted in the case of France in 1798.").
- ↑ See, e.g., Curtis A. Bradley, Treaty Termination and Historical Gloss, 92 Tex. L. Rev. 773, 789 (2014) [hereinafter Bradley, Historical Gloss]; Restatement (Fourth) of Foreign Relations Law § 313, reporters' n.2 (2018) [hereinafter Fourth Restatement]; Cong. Rsch. Serv., Treaties and Other International Agreements: The Role of the United States Senate, S. Rep. No. 106-71, at 207 (2001).
- ↑ See S. Rep. No. 34-97, at 5 (1856) (Senate Foreign Relations Committee describing the 1798 treaty abrogation statute as a "rightful exercise of the war power, without viewing it in any manner as a precedent establishing in Congress alone, and under any circumstances, the power to annul a treaty."). Cf. Bas v. Tingy, 4 U.S. (4 Dall.) 37, 40 (1800) (opinion of Washington, J.) (treating the 1798 statute as one in a bundle of congressional acts declaring a limited "public war" on the French Republic).
- ↑ For analysis of nineteenth century understanding and practice related to treaty termination, see Bradley, Historical Gloss, supra note here, at 788-801; Samuel B. Crandall, Treaties, Their Making and Enforcement 423-66 (2d ed. 1916).
- ↑ See, e.g., Joint Resolution of April 27, 1846 Concerning the Oregon Territory, 9 Stat. 109 (providing that the President "is hereby authorized, at his discretion, to give to the government of Great Britain the notice required by" a convention allowing for joint occupancy of parts of the Oregon Territory); Joint Resolution of June 17, 1874, 18 Stat. 287 (authorizing the President to give notice of termination of a Treaty of Commerce with Belgium).
- ↑ See, e.g., Joint Resolution of January 18, 1865, 13 Stat. 566 ("Resolved . . . That notice be given of the termination of the Reciprocity Treaty . . . and the President of the United States is hereby charged with the communication of such notice to the government of the United Kingdom."); Joint Resolution of March 3, 1883, 22 Stat. 641 ("[T]he President . . . hereby is directed to give notice to the Government of Her Britannic Majesty that the provisions of each and every of the articles aforesaid will terminate . . . on the expiration of two years next after the time of giving such notice.").
- ↑ In 1855, the Senate authorized President Franklin Pierce to terminate a Friendship, Commerce, and Navigation Treaty with Denmark, and the President subsequently relied on the Senate's action in carrying out the termination. Franklin Pierce, Third Annual Message (Dec. 31, 1855) in 7 A Compilation of the Messages and Papers of the Presidents 2860, 2867 (James D. Richardson ed., 1897) ("In pursuance of the authority conferred by a resolution of the Senate of the United States passed on the 3d of March last, notice was given to Denmark" that the United States would "terminate the [treaty] at the expiration of one year from the date of notice for that purpose.").
- ↑ For example, after Congress enacted a joint resolution calling for the termination of the Oregon Territory Treaty, supra note here, the Secretary of State informed the U.S. Ambassador to Great Britain that "Congress have spoken their will upon the subject, in their joint resolution; and to this it is his (the President's) and your duty to conform." S. Doc. No. 29-489, at 15 (1846). As required by the Joint Resolution of January 18, 1865, see supra note here, the Andrew Johnson Administration terminated an 1854 treaty with Great Britain concerning trade with Canada. Letter from William H. Seward, U.S. Sec'y of State to Charles Francis Adams, Minister to the U.K. (Jan. 18, 1865) in Papers Relating to Foreign Affairs, pt. 1, at 93 (1866).
- ↑ See, e.g., Rutherford B. Hayes, Veto of the Chinese Immigration Bill, H.R. Exec. Doc. No. 45-102, at 5 (1879) (disputing that Congress can direct the abrogation of specific articles in a treaty, but accepting that the "authority of Congress to terminate a treaty with a foreign power, by expressing the will of the nation no longer to adhere to it, is . . . free from controversy under our Constitution ").
- ↑ See, e.g., Joint Resolution to Terminate the Treaty of 1817 Regulating the Naval Force on the Lakes, 13 Stat. 568 (1865) ("[T]he notice given by the President of the United States to [the] government of Great Britain and Ireland to terminate the treaty . . . is hereby adopted and ratified as if the same had been authorized by Congress."); Joint Resolution of Dec. 21, 1911, 37 Stat. 627 (1911) (stating that President Taft's notice of termination of a treaty with Russia was "adopted and ratified").
- ↑ See Letter from John Hay, U.S. Sec'y of State to Ambassador Leishman (Mar. 8, 1899) in Papers Relating to the Foreign Relations of the United States 753-54 (1901).
- ↑ See Letter from Frank B. Kellogg, U.S. Sec'y of State to Ambassador Sheffield (Mar. 21, 1927) in 3 Papers Relating to the Foreign Relations of the United States, 1927, at 230, 230-31 (1942).
- ↑ See Bradley, Historical Gloss, supra note here, at 807-09; Authority to Withdraw from the North American Free Trade Agreement, 42 Op. O.L.C. slip op. at 11 (Oct. 17, 2018); Fourth Restatement, supra note here, § 303 reporters' n.3.
- ↑ See, e.g., Comprehensive Anti-Apartheid Act of 1986, Pub. L. No. 99-440, § 313, 100 Stat. 1086, 1104 (mandating that "[t]he Secretary of State shall terminate immediately" a tax treaty and protocol with South Africa), repealed by South African Democratic Transition Support Act of 1993, Pub. L. No. 103-149, § 4, 107 Stat. 1503, 1505; Fishery Conservation and Management Act of 1976, Pub. L. No. 94-265, § 202(b), 90 Stat. 331, 340-41 (authorizing the Secretary of State to renegotiate certain fishing treaties and expressing the "sense of Congress that the United States shall withdraw from any such treaty, in accordance with its provisions, if such treaty is not so renegotiated within a reasonable period of time after such date of enactment").
- ↑ See Bradley, Historical Gloss, supra note here, at 807-15.
- ↑ See, e.g., Barry M. Goldwater, Treaty Termination is a Shared Power, 65 A.B.A. J. 198, 199-200 (1979).
- ↑ See, e.g., Clinton v. City of New York, 524 U.S. 417, 438 (1998) ("There is no provision in the Constitution that authorizes the President to enact, to amend, or to repeal statutes."); INS v. Chadha, 462 U.S. 919, 954 (1983) ("[R]epeal of statutes, no less than enactment, must conform with Art. I.").
- ↑ See, e.g., David Gray Adler, The Constitution and the Termination of Treaties 89-110 (1986).
- ↑ For discussion of the federal law-making process, see Art. I, Sec. 7, Cl. 2: Overview of Presidential Approval or Veto of Bills.
- ↑ For further discussion of the presidential power to remove officers, see Art. II, Sec. 2, Cl. 2: Overview of Removal of Executive Branch Officers.
- ↑ See, e.g., Adler, supra note here, at 94; Kristen E. Eichensehr, Treaty Termination and the Separation of Powers, 53 Va. J. Int'l L. 247, 269 (2013).
- ↑ 444 U.S. 996.
- ↑ Mutual Defense Treaty Between the United States of America and the Republic of China, Dec. 2, 1954, 6 U.S.T. 433.
- ↑ For background on Goldwater, see Victoria Marie Kraft, The U.S. Constitution and Foreign Policy: Terminating the Taiwan Treaty 1-52 (1991).
- ↑ See Goldwater, 444 U.S. at 996 (vacating with instructions to dismiss with no majority opinion).
- ↑ See id. at 1002-05 (Rehnquist, J., concurring joined by Stewart & Stevens, JJ. & Burger, C.J.). Justice Lewis Powell also voted for dismissal, but did so based on the ground that the case was not ripe for judicial review until the Senate passed a resolution disapproving of the President's termination. See id. at 998 (Powell, J., concurring). Justice William Brennan would have held that President Carter possessed the power to terminate the Mutual Defense Treaty with Taiwan, but his opinion centered on the President's power over recognition of foreign governments, and not because he believed the President possessed a general, constitutional power to terminate treaties. See id.. at 1006-07 (Brennan, J., dissenting). For discussion of Goldwater in the context of the political question doctrine, see Art. III, Sec. 2, Cl. 1: Foreign Affairs as a Political Question.
- ↑ In 1986, a federal district court dismissed a group of private plaintiffs' suit seeking to prevent President Reagan from unilaterally terminating a Treaty of Friendship, Commerce, and Navigation with Nicaragua. See Beacon Prods. Corp. v. Reagan, 633 F. Supp. 1191, 1198-99 (D. Mass. 1986), aff'd on other grounds, 814 F.2d 1 (1st Cir. 1987).
- ↑ In 2002, the United States District Court for the District of Columbia dismissed as nonjusticable a challenge brought by 32 Members of Congress to President George W. Bush's termination of the Anti-Ballistic Missile Treaty with Russia. See Kucinich v. Bush, 236 F. Supp. 2d 1, 14-17 (D.D.C. 2002).
- ↑ See, e.g., Goldwater, 444 U.S. at 1003 ("[D]ifferent termination procedures may be appropriate for different treaties."); Curtis Bradley, International Law in the U.S. Legal System 71 (2d ed. 2015) [hereinafter Bradley, U.S. Legal System] ("It is possible that the President has the authority to terminate treaties in some situations but not others.").
- ↑ See Art. II, Sec. 3: Modern Doctrine on Receiving Ambassadors and Public Ministers.
- ↑ Compare, e.g., Bradley, U.S. Legal System, supra note here, at 71 ("[E]ven if the President does not have the authority to terminate treaties in all instances, the president may be able to terminate a treaty when the termination is related to the exercise of some other presidential power, such as the recognition of a foreign government."), with Goldwater, supra note here, at 199 (arguing that separation of powers principles call for joint termination of treaties).
- ↑ See Fourth Restatement, supra note here, § 313, reporters' n.6 ("If treaty termination is a concurrent, rather than exclusive, power, it is possible that it could be limited by the Senate in its advice and consent to a particular treaty, and possibly also by Congress through statute."); Michael J. Glennon, Constitutional Diplomacy 156 (1990) ("Where the Senate specifies a procedure for termination, the President is compelled constitutionally to adhere to that procedure."). But see Congressionally Mandated Notice Period for Withdrawing from the Open Skies Treaty, 44 Op. O.L.C. slip op. at 10 (Sept. 22, 2020) (contending that treaty withdrawal is an exclusive presidential power that cannot be regulated by the Legislative Branch).
- ↑ See Julian Ku & John Yoo, Bond, The Treaty Power, and the Overlooked Value of Non-Self-Executing Treaties, 90 Notre Dame L. Rev. 1607, 1628 (2015) ("A President's termination of a treaty will dissolve the formal legal obligation, but the policy of the United States will still continue because he cannot repeal the implementing legislation."); John Setear, The President's Rational Choice of a Treaty's Preratification Pathway: Article II, Congressional-Executive Agreement, or Executive Agreement?, 31 J. Legal Stud. S5, S15 n.20 (2002) ("If only legislation can repeal legislation, then the formal status of implementing legislation does not change merely because the president takes some action, namely, terminating the treaty that the legislation implements.").
- ↑ Vienna Convention on the Law of Treaties art. 2, Apr. 24, 1970, 1155 U.N.T.S. 331. Although the United States has not ratified the Vienna Convention on the Law of Treaties, U.S. officials have stated that its provisions concerning treaty termination and withdrawal reflect customary international law. See Fourth Restatement, supra note here, § 303 reporters' n.1 (collecting statements).
- ↑ See Charlton v. Kelly, 229 U.S. 447, 473-76 (1913) (concluding that, because the "Executive Department . . . elected to waive any right to free itself" from its obligations under an extradition treaty, the Supreme Court must enforce the treaty even if had been breached and made voidable.).
- ↑ See, e.g., La Abra Silver Mining Co. v. United States, 175 U.S. 423, 460 (1899) ("It has been adjudged that Congress by legislation, and so far as the people and authorities of the United States are concerned, could abrogate a treaty made between this country and another country which had been negotiated by the President and approved by the Senate."). See also Art. II, Sec. 2, Cl. 2: Legal Effect of Treaties on Prior Acts of Congress (discussing the last-in-time rule).
- ↑ See Art. II, Sec. 2, Cl. 2: Self-Executing and Non-Self-Executing Treaties-Art. II, Sec. 2, Cl. 2: Interpreting Treaties.
- ↑ See Art. II, Sec. 2, Cl. 2: Historical Background on Treaty-Making Power-Art. II, Sec. 2, Cl. 2: Interpreting Treaties.
- ↑ See Art. II, Sec. 2, Cl. 2: Historical Background on Treaty-Making Power-Art. II, Sec. 2, Cl. 2: Interpreting Treaties.
- ↑ See Art. II, Sec. 2, Cl. 2: Congressional Implementation of Treaties.
- ↑ Compare Art. II, Sec. 2, Clause 2 Advice and Consent, and Article VI Supreme Law, with Art. I, Section 10 Powers Denied States. Cf. Holmes v. Jennison, 39 U.S. (14 Pet.) 540, 570-72 (1840). And note the discussion in Weinberger v. Rossi, 456 U.S. 25, 28-32 (1982).
- ↑ Not all such agreements, of course, are published, either because of national-security/secrecy considerations or because the subject matter is trivial. In a 1953 hearing exchange, Secretary of State John Foster Dulles estimated that about 10,000 executive agreements had been entered into in connection with the NATO treaty. "Every time we open a new privy, we have to have an executive agreement." Hearing on S.J. Res. 1 and S.J. Res. 43 Before a Subcomm. of the S. Judiciary Comm., 83d Cong. 877 (1953).
- ↑ One authority concluded that of the executive agreements entered into between 1938 and 1957, only 5.9 percent were based exclusively on the President's constitutional authority. C.H. McLaughlin, The Scope of the Treaty Power in the United States--II, 43 Minn. L. Rev. 651, 721 (1959). Another, somewhat overlapping study found that in the period 1946-1972, 88.3 percent of executive agreements were based at least in part on statutory authority; 6.2% were based on treaties, and 5.5 percent were based solely on executive authority. International Agreements: An Analysis of Executive Regulations and Practices, S. Comm. on Foreign Rels., 95th Cong. 22 (Comm. Print) (1977).
- ↑ "[T]he distinction between so-called 'executive agreements' and 'treaties' is purely a constitutional one and has no international significance." Harvard Research in International Law, Draft Convention on the Law of Treaties, 29 Amer. J. Int. L. 697 (Supp.) (1935). Many scholars have aggressively promoted the use of executive agreements, in contrast to treaties, as a means of enhancing the role of the United States, especially the role of the President, in the international system. See Myers McDougal & Asher Lans, Treaties and Congressional-Executive or Presidential Agreements: Interchangeable Instruments of National Policy (Pts. I & II), 54 Yale L. J. 181, 534 (1945).
- ↑ 3 Joseph Story, Commentaries on the Constitution of the United States 1397 (1833).
- ↑ Samuel B. Crandall, Treaties, Their Making and Enforcement ch. 8 (2d ed. 1916); see also W. McClure, International Executive Agreements chs. 1 and 2 (1941).
- ↑ Id. at 49-50.
- ↑ Tucker v. Alexandroff, 183 U.S. 424, 435 (1902).
- ↑ Id. at 467. The first of these conventions, signed July 29, 1882, had asserted its constitutionality in very positive terms. Q. Wright, supra at 239 (quoting Watts v. United States, 1 Wash. Terr. 288, 294 (1870)).
- ↑ Id. at 245.
- ↑ S. Crandall, supra note here, at 103-04.
- ↑ Id. at 104.
- ↑ 1 W. Willoughby, The Constitutional Law of the United States 539 (1910).
- ↑ McClure, supra note here at 98.
- ↑ Id. at 96-97.
- ↑ Id. at 98-99.
- ↑ Id. at 99-100.
- ↑ Id. at 140-44.
- ↑ Id. at 391.
- ↑ Id. at 391-93. Attorney General Robert Jackson's defense of the presidential power to enter into the arrangement placed great reliance on the President's "inherent" powers under the Commander in Chief Clause and as sole organ of foreign relations but ultimately found adequate statutory authority to take the steps deemed desirable. 39 Ops. Atty. Gen. 484 (1940).
- ↑ 4 Dept. State Bull. 443 (1941).
- ↑ See A Decade of American Foreign Policy, Basic Documents 1941-1949, S. Doc. No. 123, 81st Cong. pt. 1 (1950).
- ↑ For a congressional attempt to evaluate the extent of such commitments, see United States Security Agreements and Commitments Abroad: Hearings Before a Subcomm. of the S. Foreign Rel. Comm., 91st Cong. 10 (1969); see also U.S. Commitments to Foreign Powers: Hearings on S. Res. 151 Before the S. Foreign Rel. Comm., 90th Cong. (1967).
- ↑ The "National Commitments Resolution," S. Res. 85, 91st Cong. (1969). See also S. Rep. No. 797, 90th Cong. (1967).
- ↑ In 1918, Secretary of State Robert Lansing assured the Senate Foreign Relations Committee that the Lansing-Ishii Agreement had no binding force on the United States, that it was simply a declaration of American policy so long as the President and State Department might choose to continue it. 1 W. Willoughby, The Constitutional Law of the United States 547 (1910). In fact, it took the Washington Conference of 1921, two formal treaties, and an exchange of notes to eradicate it, while the "Gentlemen's Agreement" was finally ended after seventeen years only by an act of Congress. W. McClure, International Executive Agreements 97, 100 (1941).
- ↑ E.g., United States v. One Bag of Paradise Feathers, 256 F. 301, 306 (2d Cir. 1919); 1 W. Willoughby, supra note here at 589. The State Department held the same view. G. Hackworth, 5 Digest of International Law 426 (1944).
- ↑ 301 U.S. 324 (1937). In B. Altman & Co. v. United States, 224 U.S. 583 (1912), the Court had recognized that a jurisdictional statute's reference to a "treaty" encompassed an executive agreement.
- ↑ United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936).
- ↑ 301 U.S. at 330-31.
- ↑ 315 U.S. 203 (1942).
- ↑ Id. at 229-31, 233-34.
- ↑ There were numerous variations in language for the Bricker Amendment, but typical was S.J. Res. 1, § 3, 83d Cong. (1953), which provided: "Congress shall have power to regulate all executive and other agreements with any foreign power or international organization. All such agreements shall be subject to the limitations imposed on treaties by this article." The limitation relevant on this point was in § 2, which provided: "A treaty shall become effective as internal law in the United States only through legislation which would be valid in the absence of treaty."
- ↑ 539 U.S. 396 (2003). The Court's opinion in Dames & Moore v. Regan, 453 U.S. 654 (1981), was rich in learning on many topics involving executive agreements, but the preemptive force of agreements resting solely on presidential power was not at issue, the Court concluding that Congress had either authorized various presidential actions or had long acquiesced in others.
- ↑ 539 U.S. at 416.
- ↑ Id. at 413.
- ↑ Id. at 420.
- ↑ Holmes v. Jennison, 39 U.S. (14 Pet.) 540, 575-76 (1840). See also United States v. Belmont, 301 U.S. 324, 331 (1937) ("The external powers of the United States are to be exercised without regard to state laws or policies. . . . [I]n respect of our foreign relations generally, state lines disappear"); The Chinese Exclusion Case, 130 U.S. 581, 606 (1889) ("For local interests the several States of the Union exist; but for national purposes, embracing our relations with foreign nations, we are but one people, one nation, one power"); Hines v. Davidowitz, 312 U.S. 52, 63 (1941) ("Our system of government . . . requires that federal power in the field affecting foreign relations be left entirely free from local interference").
- ↑ United States v. Pink, 315 U.S. 203, 233-34 (1942). Chief Justice Harlan Stone and Justice Owen Roberts dissented.
- ↑ 389 U.S. 429 (1968).
- ↑ In Clark v. Allen, 331 U.S. 503 (1947), the Court had upheld a simple reciprocity requirement that did not have the additional requirement relating to confiscation.
- ↑ 389 U.S. at 440.
- ↑ Id. at 440, 441.
- ↑ See, e.g., Michael D. Ramsey, The Power of the States in Foreign Affairs: The Original Understanding of Foreign Policy Federalism, 75 Notre Dame L. Rev. 341 (1999); Carlos Manuel Vazquez, Whither Zschernig?, 46 Vill. L. Rev. 1259 (2001); Jack L. Goldsmith, Federal Courts, Foreign Affairs, and Federalism, 83 Va. L. Rev. 1617 (1997); Peter J. Spiro, Foreign Relations Federalism, 70 U. Colo. L. Rev. 1223 (1999). See also Louis Henkin, Foreign Affairs and the Constitution 149-69 (2d ed. 1996).
- ↑ Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363, 374 n.8 (2000). For the appeals court's application of Zschernig, see Nat'l Foreign Trade Council v. Natsios, 181 F.3d 38, 49-61 (1st Cir. 1999).
- ↑ Am. Ins. Ass'n v. Garamendi, 539 U.S. at 419 & n.11 (2003).
- ↑ It is contended, for example, that Article I, § 10's specific prohibitions against states engaging in war, making treaties, keeping troops in peacetime, and issuing letters of marque and reprisal would have been unnecessary if a more general, dormant foreign relations power had been intended. Similarly, there would have been no need to declare treaties to be the supreme law of the land if a more generalized foreign affairs preemptive power existed outside of the Supremacy Clause.
- ↑ Arguably, part of the "executive power" vested in the President by Art. II, § 1 is a power to conduct foreign relations.
- ↑ 539 U.S. at 419 n.11.
- ↑ Justice Ruth Bader Ginsburg's dissent in Garamendi, joined by the other three Justices, suggested limiting Zschernig in a manner generally consistent with Justice David Souter's distinction. Zschernig preemption, Justice Ginsburg asserted, "resonates most audibly when a state action 'reflects a state policy critical of foreign governments and involve[s] sitting in judgment on them.'" 539 U.S. at 439 (quoting Henkin, supra note here, at 164). But Justice Ginsburg also voiced more general misgivings about judges' becoming "the expositors of the Nation's foreign policy." Id. at 442. In this context, see Goldsmith, supra, at 1631, describing Zschernig preemption as "a form of the federal common law of foreign relations."
- ↑ Act of Aug. 4, 1790, 1 Stat. 138.
- ↑ W. McClure, International Executive Agreements 41 (1941).
- ↑ Id. at 38-40. The statute was 1 Stat. 232, 239, 246 (1792).
- ↑ McClure, supra note here, at 62-70.
- ↑ Id. at 78-81; Samuel B. Crandall, Treaties, Their Making and Enforcement 127-131 (2d ed. 1916).
- ↑ Id. at 121-27; McClure, supra note here, at 83-92, 173-89.
- ↑ Id. at 8, 59-60.
- ↑ Tariff Act of 1890, Pub. L. No. 51-1243, § 3, 26 Stat. 567, 612.
- ↑ Tariff Act of 1897, Pub. L. No. 55-11, § 3, 30 Stat. 151, 203; Tariff Act of 1909, Pub. L. No. 61-5, 36 Stat. 11, 82.
- ↑ Trade Agreements Act, Pub. L. No. 73-316, 48 Stat. 943, § 350(a) (1934) (codified at 19 U.S.C. §§ 1351-1354).
- ↑ See the continued expansion of the authority. Trade Expansion Act of 1962, Pub. L. No. 87-794, 76 Stat. 872, § 201 (codified as amended at 19 U.S.C. § 1821); Trade Act of 1974, Pub. L. No. 93-618, 88 Stat. 1982 (codified as amended at 19 U.S.C. §§ 2111, 2115, 2131(b), 2435). Congress has, with respect to the authorization to the President to negotiate multilateral trade agreements under the auspices of GATT, constrained itself in considering implementing legislation, creating a "fast-track" procedure under which legislation is brought up under a tight timetable and without the possibility of amendment. 19 U.S.C. §§ 2191-2194.
- ↑ 143 U.S. 649 (1892).
- ↑ 143 U.S. at 694. See also Dames & Moore v. Regan, 453 U.S. 654 (1981), in which the Court sustained a series of implementing actions by the President pursuant to executive agreements with Iran in order to settle the hostage crisis. The Court found that Congress had delegated to the President certain economic powers underlying the agreements and that his suspension of claims powers had been implicitly ratified over time by Congress's failure to set aside the asserted power. See also Weinberger v. Rossi, 456 U.S. 25, 29-30 n.6 (1982).
- ↑ 224 U.S. 583 (1912).
- ↑ Id. at 601.
- ↑ Pub. L. No. 77-11, 55 Stat. 31 (1941).
- ↑ E.g., S. J. Res. 131, 48 Stat. 1182 (1934), authorizing the President to accept membership for the United States in the International Labor Organization.
- ↑ See Edward S. Corwin, Presidential Power and the Constitution 216 (Richard Loss, ed., 1976).
- ↑ Art. II, Sec. 2, Clause 2 Advice and Consent.
- ↑ Buckley v. Valeo, 424 U.S. 1, 132 (1976) (per curiam) ("Principal officers are selected by the President with the advice and consent of the Senate. Inferior officers Congress may allow to be appointed by the President alone, by the heads of departments, or by the Judiciary."), superseded by statute, Bipartisan Campaign Reform Act of 2002, Pub. L. No. 107-155, 116 Stat. 81.
- ↑ See Art. II, Sec. 2, Cl. 2: Historical Background on Appointments Clause.
- ↑ See Art. II, Sec. 2, Cl. 2: Historical Background on Appointments Clause.
- ↑ Buckley, 424 U.S. at 126.
- ↑ See The Federalist Papers.
- ↑ Weiss v. United States, 510 U.S. 163, 184 (1994) (Souter, J., concurring).
- ↑ See Gordon Wood, The Creation of The American Republic, 1776-1787, at 143-48 (1969); Freytag v. Comm'r, 501 U.S. 868, 883-84 (1991); Edward Corwin, The President: Office and Powers 1787-1957, at 69-70 (4th ed. 1957); Saikrishna B. Prakash, Imperial From the Beginning 171 (2015).
- ↑ Freytag, 501 U.S. at 883 (quoting Wood, supra note here, at 79).
- ↑ Wood, supra note here, at 143-50; Michael J. Gerhardt, The Federal Appointments Process 16-20 (2003). See, e.g., Va. Const. (1776). Some state constitutions provided that the appointment power was shared between the governor and state assembly. Wood, supra note here, at 148-50; Gerhardt, supra, at 17-20.
- ↑ See Wood, supra note here, at 407; Freytag, 501 U.S. at 903-07 (Scalia, J., concurring in part and concurring in the judgment); Weiss v. United States, 510 U.S. 163, 184 (1994) (Souter, J., concurring).
- ↑ Wood, supra note here, at 407.
- ↑ Wood, supra note here, at 407.
- ↑ See Gerhardt, supra note here, at 18.
- ↑ Articles of Confederation of 1781, art. IX, para. 5 ("The united states in congress assembled shall have authority . . . to appoint such . . . civil officers as may be necessary for managing the general affairs of the united states under their direction . . . .").
- ↑ Weiss, 510 U.S. at 184 (Souter, J., concurring); see Myers v. United States, 272 U.S. 52, 111 (1926).
- ↑ Weiss, 510 U.S. at 184 (Souter, J., concurring).
- ↑ Madison's Observations on Jefferson's Draft of a Constitution for Virginia (1788), reprinted in 6 Papers of Thomas Jefferson 308, 311 (J. Boyd ed., 1952).
- ↑ 1 The Records Of The Federal Convention Of 1787, at 67 (Max Farrand ed., 1966). See Joseph P. Harris, The Advice and Consent of the Senate 18 (1953). During the proceedings, the Convention adopted a motion to authorize judges to be appointed by the Senate, but ultimately rejected this framework in favor of Presidential appointment of all principal officers. Id. at 19.
- ↑ See Harris, supra note here, at 19-24; Gerhardt, supra note here, at 16-23.
- ↑ Gerhardt, supra note here, at 16-23.
- ↑ See Weiss, 510 U.S. at 184 (Souter, J., concurring) ("With error and overcorrection behind them, the Framers came to appreciate the necessity of separating at least to some degree the power to create federal offices (a power they assumed would belong to Congress) from the power to fill them, and they came to see good reason for placing the initiative to appoint the most important federal officers in the single-person presidency, not the multimember Legislature."); see Art. II, Sec. 2, Cl. 2: Creation of Federal Offices to Art. II, Sec. 2, Cl. 2: Restrictions on Congress's Authority.
- ↑ See Weiss, 510 U.S. at 184-85 (Souter, J., concurring). See The Federalist No. 76 (Alexander Hamilton); 3 Joseph Story, Commentaries on the Constitution of the United States §§ 1522-1525 (1833).
- ↑ Art. II, Sec. 2, Clause 2 Advice and Consent.
- ↑ See 1 The Records of the Federal Convention of 1787, at 70 (Max Farrand ed., 1911) [hereinafter Farrand's Records] (Mr. Wilson: "If appointments of Officers are made by a sing. Ex he is responsible for the propriety of the same. [N]ot so where the Executive is numerous."); Id. at 42 ("As the Executive will be responsible in point of character at least, . . . he will be careful to look through all the States for proper characters.") (statement of Mr. Ghorum); Freytag v. Comm'r, 501 U.S. 868, 884 (1991) ("The Framers understood, however, that by limiting the appointment power, they could ensure that those who wielded it were accountable to political force and the will of the people."); see Jennifer L. Mascott, Who Are "Officers of the United States"?, 70 Stan. L. Rev. 443, 456 (2018).
- ↑ See Mascott, supra note here, at 456.
- ↑ See Weiss, 510 U.S. at 185 n.1 (Souter, J., concurring).
- ↑ See The Federalist No. 76 (Alexander Hamilton) ("I proceed to lay it down as a rule, that one man of discernment is better fitted to analyze and estimate the peculiar qualities adapted to particular offices, than a body of men of equal or perhaps even of superior discernment.").
- ↑ Id. See Freytag, 501 U.S. at 884 (majority opinion); id. at 903-07 (Scalia, J., concurring in part and concurring in the judgment). See also 1 Works of James Wilson 359-360 (J. Andrews ed., 1896) (arguing that placing the appointment power in a multi-member executive would inhibit holding that body accountable for its appointments).
- ↑ See The Federalist No. 76 (Alexander Hamilton).
- ↑ Id.
- ↑ Id.
- ↑ See, e.g., 2 Farrand's Records, supra note here, at 42 ("As the Executive will be responsible in point of character at least, . . . he will be careful to look through all the States for proper characters.") (statement of Mr. Ghorum). See Mascott, supra note here, at 456.
- ↑ See Freytag, 501 U.S. at 907 (Scalia, J., concurring in part and concurring in the judgment). Inferior officers may also sometimes be appointed by the President alone or the courts of law. Art. II, Sec. 2, Clause 2 Advice and Consent. The appointment of Judicial Branch officials might raise distinct issues from the accountability demanded for Executive Branch officers. See Art. III, Sec. 1: Overview of Good Behavior Clause to Art. III, Sec. 1: Good Behavior Clause Doctrine; The Federalist No. 78 (Alexander Hamilton).
- ↑ See Freytag, 501 U.S. at 883 (majority opinion).
- ↑ See id. at 883-84 (majority opinion); Weiss v. United States, 510 U.S. 163, 188 n.3 (1994) (Souter, J., concurring) ("And if Congress, with the President's approval, authorizes a lower level Executive Branch official to appoint a principal officer, it again has adopted a more diffuse and less accountable mode of appointment than the Constitution requires; this time it has violated the bar on abdication."); see, e.g., Ryder v. United States, 515 U.S. 177, 179 (1995) (holding invalid the affirmance of a conviction by a military court whose members, though appointed by Executive Branch officials, were not appointed in accordance with the Appointments Clause).
- ↑ United States v. Le Baron, 60 U.S. 73, 78 (1856) ("When a person has been nominated to an office by the President, confirmed by the Senate, and his commission has been signed by the President, and the seal of the United States affixed thereto, his appointment to that office is complete."). The appointment of inferior officers, by contrast, may be vested in the President alone, the courts of law, or the heads of departments. Art. II, Sec. 2, Clause 2 Advice and Consent.
- ↑ Art. II, Sec. 2, Clause 2 Advice and Consent. See also United States v. Smith, 286 U.S. 6, 30-49 (1932) (concluding that the Senate's rules did not authorize that body to revoke a previously-given confirmation).
- ↑ Art. II, Section 3 Duties. See Quackenbush v. United States, 177 U.S. 20, 27 (1900) ("The appointment and the commission are distinct acts . . . ."); Appointment of a Senate-Confirmed Nominee, 23 Op. O.L.C. 232, 232 (1999).
- ↑ See Ryder v. United States, 515 U.S. 177, 182-83 (1995) ("We think that one who makes a timely challenge to the constitutional validity of the appointment of an officer who adjudicates his case is entitled to a decision on the merits of the question and whatever relief may be appropriate if a violation indeed occurred."); Buckley v. Valeo, 424 U.S. 1, 140 (1976) (per curiam) (invalidating sections of the Federal Election Campaign Act that violated the Appointments Clause), superseded by statute, Bipartisan Campaign Reform Act of 2002, Pub. L. No. 107-155, 116 Stat. 81. But see United States v. Arthrex, Inc., No. 19-1434, slip op. at 23 (U.S. June 21, 2021) (plurality opinion) ("Because the source of the constitutional violation is the restraint on the review authority of the Director, rather than the appointment of APJs by the Secretary, Arthrex is not entitled to a hearing before a new panel of APJs.").
- ↑ Marbury v. Madison, 5 U.S. (1 Cranch) 137, 157 (1803) ("The last act to be done by the President, is the signature of the commission. He has then acted on the advice and consent of the senate to his own nomination. The time for deliberation has then passed. He has decided. His judgment, on the advice and consent of the senate concurring with his nomination, has been made, and the officer is appointed."); D'Arco v. United States, 441 F.2d 1173, 1175 (Ct. Cl. 1971) ("Chief Justice Marshall's reasoning teaches that, even if the office had been for a term of years, like Marbury's, the executive could still refuse to complete the appointment, after Senate confirmation, by failing to prepare or sign the commission."); Appointment of a Senate-Confirmed Nominee, 23 Op. O.L.C. 232, 232-34 (1999).
- ↑ D'Arco, 441 F.2d at 1175; Appointment of a Senate-Confirmed Nominee, 23 Op. O.L.C. 232, 232-34 (1999).
- ↑ Marbury, 5 U.S. (1 Cranch) at 162. See also Art. II, Section 3 Duties (stating that the President "shall Commission all the Officers of the United States").
- ↑ See Marbury, 5 U.S (1 Cranch) at 153-55.
- ↑ Id. at 153-54.
- ↑ Id. at 176-80.
- ↑ Id. at 158, 162.
- ↑ Id. at 157.
- ↑ See United States v. Le Baron, 60 U.S. 73, 78 (1856) ("The transmission of the commission to the officer is not essential to his investiture of the office. If, by any inadvertence or accident, it should fail to reach him, his possession of the office is as lawful as if it were in his custody.").
- ↑ See Art. II, Sec. 2, Cl. 2: Creation of Federal Offices to Art. II, Sec. 2, Cl. 2: Restrictions on Congress's Authority.
- ↑ See Nomination of Sitting Member of Cong. to Be Ambassador to Vietnam, 20 Op. O.L.C. 284, 286 (1996).
- ↑ See Ambassadors and Other Pub. Ministers, 7 Op. Att'ys Gen. 186, 189, 193 (1855) ("Hence, the President has power by the Constitution to appoint diplomatic agents of the United States of any rank, at any place, and at any time, in his discretion, subject always to the constitutional conditions of relation to the Senate. The power to make such appointments is not derived from, and cannot be limited by, any act of Congress, except in so far as appropriations of money are necessary to provide means for defraying the expense of this as of any other business of the Government.").
- ↑ See Letter from President George Washington to the Senate (June 15, 1789), in 1 A Compilation of the Messages and Papers of the Presidents 58 (James D. Richardson ed., 1896); see Saikrishna B. Prakash & Michael D. Ramsey, The Executive Power over Foreign Affairs, 111 Yale L.J. 231, 304-10 (2001) ("Washington went beyond merely instructing and firing diplomats, however. He also effectively created them."); Saikrishna B. Prakash, Imperial From the Beginning 172-73 (2015).
- ↑ See Byers v. United States, 22 Ct. Cl. 59, 63-64 (1887) ("During the whole of the administration of President Jefferson, and part of the terms of other early Presidents, Congress annually appropriated a sum in gross 'for the expenses of intercourse with foreign nations,' leaving it to the Executive to fix the salaries of its several appointees. In some cases appropriations have been made for particular officers not to exceed the sums named, still leaving to the Executive a discretion to determine the amounts to be paid.") (quoting 7 Op. Att'ys Gen. 186 (1855); David Currie, The Constitution in Congress: The Federalist Period 1789-1801, at 44 (1997); Ambassadors and Other Pub. Ministers, 7 Op. Att'ys Gen. 186, 189, 193 (1855); Nomination of Sitting Member of Cong. to Be Ambassador to Vietnam, 20 Op. O.L.C. 284, 286-92 (1996).
- ↑ See Francis v. United States, 22 Ct. Cl. 403, 405 (1887) ("In the diplomatic service, Congress seems to have practically conceded, whether on constitutional grounds rightly or wrongly taken or otherwise, the duty, power, or right of the Executive to appoint diplomatic agents, of any rank or title, at any time and at any place, subject to such compensation, or none at all, as the legislative branch of the Government should in its wisdom see fit to provide . . . ."); Byers, 22 Ct. Cl. at 63-64.
- ↑ See Byers, 22 Ct. Cl. at 63-67 ("The Executive, again conforming to the wishes of Congress, duly appointed a secretary of legation to Italy and a consul-general at Rome, superseding the combined office, which thereupon ceased to exist."); Foreign Service Act of 1980, 22 U.S.C. § 3942. Congress has sometimes asserted authority in the past to control the creation of diplomatic offices. See Act of Mar. 2, 1909, ch. 235, Pub. L. No. 60-292, 35 Stat. 672 ("[H]ereafter no new ambassadorship shall be created unless the same shall be provided for by an Act of Congress.") (repealed 1946). But the Executive Branch has not complied. Graham H. Stuart, American Diplomatic and Consular Practice 137 (1952). Nomination of Sitting Member of Cong. to Be Ambassador to Vietnam, 20 Op. O.L.C. 284, 286 (1996).
- ↑ See Officers of the United States Within the Meaning of the Appointments Clause, 31 Op. O.L.C. 73, 91-93 (2007); Nomination of Sitting Member of Cong. to Be Ambassador to Vietnam, 20 Op. O.L.C. 284, 286 (1996); Ambassadors and Other Pub. Ministers of the United States, 7 Op. Att'ys Gen. 186, 190 (1855).
- ↑ See The Federalist No. 81 (Alexander Hamilton). See Appointment of Consuls, 7 Op. Att'ys Gen. 242, 248 (1855) ("We may conveniently regard the word of the Constitution, 'consuls,' as the generic designation of a class of public officers existing by public law, and recognised by numerous treaties, who are appointed by their government to reside in foreign countries, and especially in seaports, and other convenient points, to discharge administrative, and sometimes judicial, functions in regard to their fellow-citizens, merchants, mariners, travellers, and others, who dwell or happen to be in such places; to aid, by the authentication of documents abroad, in the collection of the public revenue; and, generally, to perform such other duties as may be assigned to them by the laws and orders of their government. Congress cannot, by legislative act, appoint or remove consuls any more than ministers; but it may increase at will the descriptions of consular officers; it may enlarge or diminish their functions; it may regulate their compensation; it may distinguish between some officers appointable with advice of the Senate, and others appointable by the President alone, or by a Head of Department.").
- ↑ A charge d'affaires refers to a "person accredited by letter to the secretary of state or minister for foreign affairs of one country by the secretary of state or minister for foreign affairs of another country, in place of a duly accredited ambassador or minister." U.S. Dep't of State, Foreign Affairs Manual and Handbook, 5 FAH-1 Exhibit H-611 (2021), [4].
- ↑ Joseph P. Harris, The Advice and Consent of the Senate 36-40 (1953).
- ↑ Id.
- ↑ Officers of the United States Within the Meaning of the Appointments Clause, 31 Op. O.L.C. 73, 91-93 (2007); Appointment of Consuls, 7 Op. Att'ys Gen. 242, 248 (1855).
- ↑ See Officers of the United States Within the Meaning of the Appointments Clause, 31 Op. O.L.C. 73, 102 (2007). But see 22 U.S.C. § 7817 (establishing a "special envoy for North Korean human rights issues" who shall be appointed by the President and confirmed by the Senate).
- ↑ Currie, supra note here, at 44.
- ↑ See 7 American State Papers: Indian Affairs 697-98 (1805).
- ↑ See Officers of the United States Within the Meaning of the Appointments Clause, 31 Op. O.L.C. 73, 102-05 (2007); Edward Corwin, The President: Office and Powers 1787-1957, at 71 (4th ed. 1957); see 39 Annals of Cong. 1407, 1409-10 (1822) (finding by a House Select Committee that Senator Smith's position negotiating the treaty did not constitute an office); S. Rep. No. 53-227 at 25 (1894) (finding of a Senate Committee that the appointment of J.H. Blount to Hawaii did not require Senate confirmation).
- ↑ Art. II, Sec. 2, Clause 2 Advice and Consent.
- ↑ See generally Joseph P. Harris, The Advice and Consent of the Senate 303 (1953).
- ↑ 1 Charles Warren, The Supreme Court in United States History 1789-1835, at 124-27 (1926).
- ↑ Harris, supra note here, at 43; U.S. S. Ct., About the Court, [5] (last visited June 22, 2022). Rutledge served as Chief Justice on a recess appointment during the Court's 1795 August term. Michael J. Gerhardt, The Federal Appointments Process 51 (2003).
- ↑ Harris, supra note here, at 42.
- ↑ Harris, supra note here, at 43.
- ↑ Gerhardt, supra note here, at 51-52; Harris, supra note here, at 43; Warren, supra note here, at 128-37.
- ↑ U.S. Sen., Chief Justice Nomination Rejected, [6] (last visited June 22, 2022).
- ↑ Gerhardt, supra note here, at 51-52.
- ↑ Harris, supra note here, at 302-03. See generally Henry Abraham, Justices, Presidents, and Senators: A History of the U.S. Supreme Court Appointments from Washington to Bush II (2007).
- ↑ See David Alistair Yalof, Pursuit of Justices: Presidential Politics and the Selection of Supreme Court Nominees 4 (1999). More recently, following the death of Associate Justice Antonin Scalia, President Barack Obama's nomination of Merrick Garland in 2016 to the High Court did not receive a hearing or a vote in the Republican-controlled Senate. That body refused to consider a Supreme Court nomination until after the fall's election. In 2017, President Donald Trump nominated and the Senate confirmed Neil Gorsuch to the Court. Sarah Lyall, Liberals Are Still Angry, but Merrick Garland Has Reached Acceptance, N.Y. Times (Feb. 19, 2017), [7]; Audrey Carlsen & Wilson Andrews, How Senators Voted on the Gorsuch Nomination, N.Y. Times (Apr. 7, 2017), [8]
- ↑ Yalof, supra note here, at 5.
- ↑ Yalof, supra note here, at 5.
- ↑ Yalof, supra note here, at 5.
- ↑ Yalof, supra note here, at 6, 170; Adrian Vermeule, Should We Have Lay Justices?, 59 Stan. L. Rev. 1569, 1574 (2007); Lee Epstein, et. al, The Supreme Court Compendium: Data, Decisions, and Developments 321-85 (6th ed. 2015).
- ↑ Gerhardt, supra note here, at 69.
- ↑ Gerhardt, supra note here, at 69.
- ↑ Gerhardt, supra note here, at 69-70.
- ↑ Gerhardt, supra note here, at 71-72.
- ↑ Gerhardt, supra note here, at 71-72.
- ↑ Yalof, supra note here, at 14-15.
- ↑ Yalof, supra note here, at 14-15. Brandeis did not testify in the hearings, which were quite contentious and lasted months. See Harris, supra note here, at 99-114.
- ↑ Yalof, supra note here, at 14-15.
- ↑ Paul M. Collins, Jr. & Lori A. Ringhand, Supreme Court Confirmation Hearings and Constitutional Change 35 (2013).
- ↑ Yalof, supra note here, at 14-15. In 1987, Douglas Ginsburg withdrew his nomination before a formal hearing was conducted. In 2016, Merrick Garland was nominated but was not given a hearing in the Senate.
- ↑ Yalof, supra note here, at 14-15.
- ↑ 163 Cong. Rec. S2390 (daily ed. Apr. 6, 2017).
- ↑ Art. I, Section 1 Legislative Vesting Clause
- ↑ Id. art. I; United States v. Morrison, 529 U.S. 598, 607 (2000).
- ↑ United States v. Comstock, 560 U.S. 126, 134 (2010) (quoting McCulloch v. Maryland, 17 U.S. (Wheat.) 316, 413, 418 (1819)). See Art. I, Sec. 8, Cl. 18: Overview of Necessary and Proper Clause.
- ↑ See Freytag v. Comm'r, 501 U.S. 868, 883 (1991) (noting "Congress's authority to create offices and to provide for the method of appointment to those offices"); Buckley v. Valeo, 424 U.S. 1, 138 (1976) (per curiam) ("Congress may undoubtedly under the Necessary and Proper Clause create 'offices' in the generic sense and provide such method of appointment to those 'offices' as it chooses."), superseded by statute, Bipartisan Campaign Reform Act of 2002, Pub. L. No. 107-155, 116 Stat. 81.
- ↑ See Myers v. United States, 272 U.S. 52, 129 (1926) ("To Congress under its legislative power is given the establishment of offices, the determination of their functions and jurisdiction, the prescribing of reasonable and relevant qualifications and rules of eligibility of appointees, and the fixing of the term for which they are to be appointed and their compensation--all except as otherwise provided by the Constitution.").
- ↑ See Freytag, 501 U.S. at 883; Buckley, 424 U.S. at 138.
- ↑ Art. II, Sec. 2, Clause 2 Advice and Consent.
- ↑ Art. II, Sec. 2, Clause 2 Advice and Consent.
- ↑ Art. II, Section 3 Duties.
- ↑ See Myers, 272 U.S. 52, 129 (1926).
- ↑ Art. III, Section 1 Vesting Clause; Judiciary Act of 1789, 1 Stat. 73 (codified as amended at 28 U.S.C. § 1350).
- ↑ 488 U.S. 361, 412 (1989).
- ↑ 28 U.S.C. § 991(a).
- ↑ Id.
- ↑ The Court also rejected the argument that the Commission's structure violated the "nondelegation" doctrine. See Art. I, Sec. 1: Historical Background on Nondelegation Doctrine.
- ↑ Mistretta, 488 U.S. at 383.
- ↑ Id. at 384.
- ↑ Id. at 412. The Court also held that Congress's grant of authority to the Commission did not violate the nondelegation doctrine. Id. at 379.
- ↑ Id. at 385.
- ↑ Id. at 388.
- ↑ Id. at 384-97.
- ↑ Id. at 393.
- ↑ Id. at 393-94.
- ↑ Id. at 395.
- ↑ Id.
- ↑ Id. at 397-408.
- ↑ Id. at 397.
- ↑ Id. at 398-99 ("The first Chief Justice, John Jay, served simultaneously as Chief Justice and as Ambassador to England, where he negotiated the treaty that bears his name. Oliver Ellsworth served simultaneously as Chief Justice and as Minister to France. While he was Chief Justice, John Marshall served briefly as Secretary of State and was a member of the Sinking Fund Commission with responsibility for refunding the Revolutionary War debt.").
- ↑ Id. at 404.
- ↑ Id.
- ↑ Id. at 407-08.
- ↑ Id.
- ↑ Id. at 408-11.
- ↑ Id. at 409-11.
- ↑ See generally S.F. Arts & Athletics, Inc. v. U.S. Olympic Comm., 483 U.S. 522, 526, 543-44 (1987) (reasoning that the congressional grant of a corporate charter, as well as "the right to prohibit certain commercial and promotional uses of the word 'Olympic,'" did not render the Olympic Committee a government actor subject to constitutional challenge).
- ↑ No. 18-1334, slip op. at 2-6 (U.S. June 1, 2020). Congress created the Board as part of the Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA), Pub. L. No. 114-187, 130 Stat. 549 (2016) (codified at 48 U.S.C. § 2101 et seq.).
- ↑ Aurelius Inv., LLC, slip op. at 2.
- ↑ Id. at 10.
- ↑ Id. at 6-9.
- ↑ Id. at 14.
- ↑ Id. at 14-17
- ↑ Id. at 4-8; see also Art. IV, Sec. 3, Clause 2 Territory and Other Property.
- ↑ Aurelius Inv., LLC, slip op. at 16.
- ↑ Id. at 15, 17.
- ↑ Id. at 15-17.
- ↑ Ryder v. United States, 515 U.S. 177, 182 (1995); Buckley v. Valeo, 424 U.S. 1, 122 (1976) (per curiam), superseded by statute, Bipartisan Campaign Reform Act of 2002, Pub. L. No. 107-155, 116 Stat. 81; INS v. Chadha, 462 U.S. 919, 951 (1983); Bowsher v. Synar, 478 U.S. 714, 735-36 (1986).
- ↑ In Buckley v. Valeo, discussed in more detail at Art. II, Sec. 2, Cl. 2: Officer and Non-Officer Appointments, the Court ruled that statutory provisions authorizing members of Congress to appoint Commissioners to the Federal Elections Commission were unconstitutional. 424 U.S. at 143 (per curiam).
- ↑ 501 U.S. 252, 255-61 (1991). See Metropolitan Washington Airports Act of 1986, Pub. L. No. 99-591, 100 Stat. 3341. The legislation authorized the transfer of Dulles International Airport and Washington National Airport from federal control to the MWAA conditioned on the creation of a Board of Review created by the MWAA. Wash. Airports, 501 U.S. at 255-61. Virginia and the District of Columbia passed legislation authorizing the MWAA to create the Review Board. Id. at 261.
- ↑ Metropolitan Washington Airports Act of 1986, Pub. L. No. 99-500, 100 Stat. 3341, § 6007(f)(1).
- ↑ Wash. Airports, 501 U.S. at 265-71.
- ↑ Id. at 266-69.
- ↑ One member was "chosen alternately . . . from a list provided by the Speaker of the House or the President pro tempore of the Senate, respectively." Id. at 268.
- ↑ Id.
- ↑ Id. at 268-69.
- ↑ Id. at 268-70.
- ↑ Id. at 274-76.
- ↑ Id. at 275-76.
- ↑ Id.
- ↑ Springer v. Gov't of Philippine Islands, 277 U.S. 189, 202 (1928) ("Legislative power, as distinguished from executive power, is the authority to make laws, but not to enforce them or appoint the agents charged with the duty of such enforcement. The latter are executive functions.").
- ↑ 478 U.S. 714, 735-36 (1986). For more on the Court's decision in Bowsher v. Synar, see Art. II, Sec. 2, Cl. 2: Later Twentieth Century Cases on Removal.
- ↑ Balanced Budget and Emergency Deficit Control Act of 1985, Pub. L. 99-177, 99 Stat. 1038.
- ↑ Bowsher.
- ↑ Id. at 718.
- ↑ Id. at 731.
- ↑ Id. at 736.
- ↑ Id. at 722.
- ↑ Id. at 730.
- ↑ Id. at 734-36.
- ↑ 491 U.S. 440, 443 (1989).
- ↑ See 5 U.S.C. App. § 1, § 3(2) ("The term "advisory committee" means any committee, board, commission, council, conference, panel, task force, or other similar group, or any subcommittee or other subgroup thereof (hereafter in this paragraph referred to as "committee"), which is--(A) established by statute or reorganization plan, or (B) established or utilized by the President, or (C) established or utilized by one or more agencies, in the interest of obtaining advice or recommendations for the President or one or more agencies or officers of the Federal Government.").
- ↑ Pub. Citizen, 491 U.S. at 452, 455-64.
- ↑ Id. at 452-53.
- ↑ Id. at 452-64.
- ↑ Id. at 465.
- ↑ Id. at 465-66 (citing Crowell v. Benson, 285 U.S. 22, 62 (1932)).
- ↑ Id. at 466-67.
- ↑ Id. at 467; id. at 467-88 (1989) (Kennedy, J., concurring) (concluding that the statute did apply to the ABA's consultations with DOJ but that this was an unconstitutional interference with the President's power to nominate judges).
- ↑ Stacy M. Lindstedt, Developing the Duffy Defect: Identifying Which Government Workers Are Constitutionally Required to Be Appointed, 76 Mo. L. Rev. 1143, 1151 (2011). The Executive Branch has taken the position, which does not appear to contradict Supreme Court case law, that temporary designations to offices are permissible without complying with the Appointments Clause. Officers of the United States Within the Meaning of the Appointments Clause, 31 Op. O.L.C. 73, 106 (2007); Designation of Acting Dir. of the Off. of Mgmt. & Budget, 27 Op. O.L.C. 121, 123-25 (2003); Auth. of Lieutenant Colonel Commandant of Marine Corps, 2 Op. Att'ys Gen. 77, 78-79 (1828). Appointment & Removal of Inspectors of Customs, 4 Op. Att'ys Gen. 162, 163 (1843); The Reconstruction Acts, 12 Op. Att'ys Gen. 141, 155-56 (1867). But see NLRB v. SW Gen., Inc., No. 15-1251, slip op. at 1-2 (U.S. Mar. 21, 2017) (Thomas, J., concurring) (arguing that a temporary designation under the Federal Vacancies Reform Act was unconstitutional because the procedures of the Appointments Clause were not followed).
- ↑ See Gary Lawson, Federal Administrative Law 190 (7th ed. 2016).
- ↑ 26 F. Cas. 1211, 1214 (C.C.D. Va. 1823).
- ↑ Appointment & Removal of Inspectors of Customs, 4 Op. Att'ys Gen. 162, 163 (1843); see also Tenure of Off. of Inspectors of Customs, 1 Op. Att'ys Gen. 459, 459 (1821); Tenure of Off. of Inspectors of Customs, 2 Op. Att'ys Gen. 410, 412 (1831). In 1865, Attorney General James Speed reasoned that a statute which vested in assessors the power to appoint assistant assessors of the internal revenue service was unconstitutional because the former were not Heads of Departments. Appointment of Assistant Assessors of Internal Revenue, 11 Op. Att'ys Gen. 209, 209-12 (1865); see Act of Mar. 3, 1865, § 1, 13 Stat. 469. He concluded that assistant assessors constituted officers because Congress has created their office and they exercised independent authority. Appointment of Assistant Assessors of Internal Revenue, 11 Op. Att'ys Gen. 209, 211 (1865). The following year, Congress amended the statute to authorize the Treasury Secretary to appoint assistant assessors. Act of Jan. 15, 1866, 14 Stat. 2. For more on early Attorney General opinions regarding the Appointments Clause, see Aditya Bamzai, The Attorney General and Early Appointments Clause Practice, 93 Notre Dame L. Rev. 1501, 1504-14 (2018).
- ↑ 99 U.S. 508, 511-12 (1878) (noting that the term officer "embraces the ideas of tenure, duration, emolument, and duties") (citing United States v. Hartwell, 73 U.S. (6 Wall.) 385, 393-94 (1867)); see Auffmordt v. Hedden, 137 U.S. 310, 327 (1890) ("His position is without tenure, duration, continuing emolument, or continuous duties, and he acts only occasionally and temporarily. Therefore, he is not an 'officer,' within the meaning of the clause of the constitution referred to."); Officers of the United States Within the Meaning of the Appointments Clause, 31 Op. O.L.C. 73, 100-11 (2007).
- ↑ See Landry v. FDIC, 204 F.3d 1125, 1132-33 (D.C. Cir. 2000) ("In fact, the earliest Appointments Clause cases often employed circular logic, granting officer status to an official based in part upon his appointment by the head of a department.") (citing United States v. Mouat, 124 U.S. 303, 307 (1888); Germaine, 99 U.S. at 510; United States v. Hartwell, 73 U.S. (6 Wall) 385, 393 (1867)); Wise v. Withers, 7 U.S. (3 Cranch) 331 (1806); John M. Burkoff, Appointment and Removal Under the Federal Constitution: The Impact of Buckley v. Valeo, 22 Wayne L. Rev. 1335, 1347 (1976).
- ↑ See, e.g., United States v. Smith, 124 U.S. 525, 531-32 (1888); Mouat, 124 U.S. at 307; Burnap v. United States, 252 U.S. 512, 516 (1920).
- ↑ 424 U.S. 1, 126 (1976) (per curiam) (emphasis added), superseded by statute, Bipartisan Campaign Reform Act of 2002, Pub. L. No. 107-155, 116 Stat. 81. Subsequent cases have followed the Court's analysis of "significant authority." See, e.g., Edmond v. United States, 520 U.S. 651, 662 (1997) (acknowledging that military appellate judges exercise "significant authority"); Freytag v. Comm'r, 501 U.S. 868, 881-82 (1991) (holding that special trial judges of Article I tax courts are "Officers of the United States" based on the degree of authority they exercise).
- ↑ Buckley, 424 U.S. at 126. Congress had provided that the FEC be composed of eight members, which included six voting members and two nonvoting ex officio members. Id. at 113.
- ↑ Id.
- ↑ Id. at 137.
- ↑ Id. at 138.
- ↑ Id.
- ↑ Id. at 140-41. The Court also noted with approval that prior decisions had found that a postmaster first class and the clerk of a district court qualified as officers. Id. at 126 (citing Myers v. United States, 272 U.S. 52 (1926) (postmaster) and Ex parte Hennen, 38 U.S. (13 Pet.) 225 (1839) (clerk)).
- ↑ Buckley, 424 U.S. at 138, 140-41.
- ↑ Id. at 126 n.162.
- ↑ Id. at 143; see id. at 267-82 (White, J., concurring in part and dissenting in part) (confirming the majority opinion's analysis on this point). While Buckley's "significant authority" definition of an officer went beyond the Court's prior jurisprudence on the matter, it arguably did not establish a conclusive test for what precisely constitutes significant authority. It bears mention in this vein that a Department of Justice Office of Legal Counsel (OLC) opinion, issued after Buckley, argued that two characteristics define an office of the United States. See Officers of the United States Within the Meaning of the Appointments Clause, 31 Op. O.L.C. 73, 73 (2007). According to the OLC, the position must first be endowed with delegated sovereign authority, such as the power to "bind third parties, or the Government itself, for the public benefit." Id. at 87. In addition, the position must be "continuing." Id. at 74. The OLC opinion offers two indicia of a continuing position. A position is continuing if it is "permanent, meaning that it is not limited by time or by being of such a nature that it will terminate by the very act of performance." Id. at 111cite> (internal quotations omitted). Alternatively, even if a position is temporary (because of an expiration date, or due to the nature of its duties), the presence of three factors can nevertheless indicate a "continuing" position: (1) the existence of the position is not personal, meaning that the duties continue even if the person changes; (2) it is not a "transient" position, meaning that the more enduring the position is the more likely it constitutes an office; and (3) the duties of the position are more than "incidental" to the government's operations. Id. at 100, 112.
- ↑ The Court held that the special trial judge was an inferior officer, rather than an employee. Freytag v. Comm'r, 501 U.S. 868, 881-82 (1991). The Court subsequently made clear that the exercise of significant authority establishes the line not between inferior and principal officers, but between "officer and non-officer." Edmond v. United States, 520 U.S. 651, 662 (1997). In other words, whether a position qualifies as an "inferior officer" under Freytag concerns the difference between employees and officers and is conceptually distinct from whether an officer is properly viewed as a principal or inferior officer. See Art. II, Sec. 2, Cl. 2: Overview of Principal and Inferior Officers.
- ↑ Freytag, 501 U.S. at 881.
- ↑ Id. (quoting Art. II, Sec. 2, Clause 2 Advice and Consent).
- ↑ Freytag, 501 U.S. at 881.
- ↑ Id.
- ↑ Id. at 881-82.
- ↑ Id. at 882.
- ↑ Id.
- ↑ Id.
- ↑ Lucia v. SEC, No. 17-130, slip op. at 1-4 (U.S. June 21, 2018).
- ↑ Id. at 6-8.
- ↑ Id. at 8.
- ↑ Id. (quoting Freytag, 501 U.S. at 878).
- ↑ Id. at 9 (quoting Freytag, 501 U.S. at 881) (quotation marks omitted). The Court noted that this included the authority to "receive evidence," "examine witnesses," and conduct pre-hearing depositions. Id. (quoting 17 C.F.R. §§ 201.111(c), 200.14(a)(4)) (quotation marks omitted).
- ↑ Id. at 9 (quoting Freytag, 501 U.S. at 882) (quotation marks omitted). This power includes the ability to administer oaths, rule on motions, and determine the course of the hearing. Id.
- ↑ Id. (quoting Freytag, 501 U.S. at 882) (quotation marks omitted).
- ↑ Id. (quoting Freytag, 501 U.S. at 882) (quotation marks omitted). In arguing that SEC ALJs are not officers under Freytag, the amicus appointed by the Court to argue that SEC ALJs were employees (the Solicitor General agreed with the challengers in the case) proffered two distinctions between the power of Tax Court special trial judges and SEC ALJs. First, the amicus noted that the Tax Court special trial judges have more expansive power to compel compliance with discovery orders--including ordering fines and imprisonment--than do SEC ALJs. Writing for the Court, Justice Elena Kagan rejected this argument, noting that Freytag did not reference any particular method of compelling compliance with discovery, and observing that the less stringent power wielded by SEC ALJs, including the power to exclude parties and attorneys from the proceedings, was sufficient under the reasoning of Freytag. Id. at 9-11. Second, the amicus noted that the Tax Court's rules provide that a special trial judge's factual finding "shall be presumed" correct, Tax Court Rule 183(d), whereas the SEC regulations do not contain a similar deferential standard. Justice Kagan rejected this argument as well, noting that the level of deference given to factual findings was not relevant to the Freytag Court's analysis. Further, Justice Kagan noted, the SEC frequently does afford a similar deference to its ALJs as a matter of practice. Id. at 9-13.
- ↑ Id. at 10 (quoting 15 U.S.C. § 78d-1(c)). See 17 C.F.R. §§ 201.360(d)(2).
- ↑ Id. at 6.
- ↑ Id.
- ↑ Id. at 12; see also Ryder v. United States, 515 U.S. 177, 182 (1995) (holding that "one who makes a timely challenge to the constitutional validity of the appointment of an officer who adjudicates his case is entitled to a decision on the merits of the question and whatever relief may be appropriate if a violation indeed occurred"). Cf. Carr v. Saul, Nos. 19-1442, 20-105, slip op. at 2 (U.S. Apr. 22, 2021) (holding that petitioners, Social Security claimants, did not forfeit their Appointments Clause challenges by raising them for the first time in federal court and not before the administrative law judges who presided over their agency hearings).
- ↑ See Art. II, Sec. 2, Cl. 2: Later Twentieth Century Cases on Removal for additional discussion of the Bowsher decision.
- ↑ 478 U.S. 714, 717 (1986).
- ↑ Id. at 732.
- ↑ Id. at 733.
- ↑ Id.
- ↑ Id. at 732-33.
- ↑ The Comptroller could also have been removed through impeachment. Id. at 728.
- ↑ Id. at 734.
- ↑ Art. II, Sec. 2, Clause 2 Advice and Consent.
- ↑ See United States v. Germaine, 99 U.S. 508, 509 (1878) ("The Constitution for purposes of appointment very clearly divides all its officers into two classes.").
- ↑ See Buckley v. Valeo, 424 U.S. 1, 132 (1976) (per curiam) ("Principal officers are selected by the President with the advice and consent of the Senate."), superseded by statute, Bipartisan Campaign Reform Act of 2002, Pub. L. No. 107-155, 116 Stat. 81. Although the Supreme Court has long used the term "principal officer" to describe the first category of officers subject to the Appointments Clause, the term itself derives, not from the Appointments Clause, but from the first clause of article II, section 2, which allows the President to require the written opinion of "the principal Officer in each of the executive Departments," on subjects relating to the duties of their respective offices. See Art. II, Sec. 2, Clause 1 Military, Administrative, and Clemency; NLRB v. SW Gen., Inc., No. 15-1251, slip op. at 1-2 (U.S. Mar. 21, 2017) (Thomas, J., concurring) (noting that the Court has "long denominated" the noninferior officers referenced in the Appointments Clause "principal" officers (citing Germaine, 99 U.S. at 509, 511)); Germaine, 99 U.S. at 511 (noting that in the same section of the Constitution that contains the Appointments Clause, "the President may require the opinion in writing of the principal officer in each of the executive departments, relating to the duties of their respective offices"); Tucker v. Comm'r, 135 T.C. 114, 122 (2010) (stating that "[t]he term 'principal officer' is not in the Appointments Clause but is borrowed from the immediately preceding clause (i.e., Art. II, Section 1 Function and Selection)"). Similarly, the Twenty-Fifth Amendment mentions the "principal officers of the executive departments. However, while the term "departments" is found in both clauses, it is unclear precisely how much relevance either provision has for interpreting the Appointments Clause." Compare Freytag v. Comm'r, 501 U.S. 868, 886 (1991) (concluding that the Court should interpret the meaning of "Heads of Departments" "consistently with its interpretation in other constitutional provisions" and ruling that the Tax Court was not a department), with id. at 915 (Scalia, J., concurring in part and concurring in judgment) (arguing that the Tax Court is a Department because it is a "free-standing, self-contained entity in the Executive Branch"); Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 511 (2010) (adopting the reasoning of Justice Antonin Scalia's concurrence in Freytag and concluding that because the Securities and Exchange Commission "is a freestanding component of the Executive Branch, not subordinate to or contained within any other such component, it constitutes a 'Departmen[t]' for the purposes of the Appointments Clause"). Likewise, while the Opinions Clause includes the term "principal officer" and the Twenty-Fifth Amendment includes "principal officers," whether the substantive construction of either term is relevant to the Appointments Clause is unclear. See Morrison v. Olson, 487 U.S. 654, 722 (Scalia, J., dissenting) ("Even an officer who is subordinate to a department head can be a principal officer."); Edmond v. United States, 520 U.S. 651, 667 (1997) (Souter, J., concurring in part and concurring in the judgment) (reasoning that an individual may be a principal officer even if he has a superior); NLRB v. SW Gen., Inc. (Thomas, J., concurring) (arguing that the general counsel of the NLRB may be a principal officer).
- ↑ Art. II, Sec. 2, Clause 2 Advice and Consent; see also Edmond, 520 U.S. at 660 ("The prescribed manner of appointment for principal officers is also the default manner of appointment for inferior officers."). By default all "Officers of the United States"--both those specifically enumerated in the Clause (e.g., ambassadors) and "all other Officers . . . whose Appointments are not . . . otherwise provided for"--must be appointed by the President with the Senate's advice and consent, subject to Congress's power to vest the appointment of "such inferior Officers, as they think proper" in the President alone, the courts of law, or department heads. Art. II, Sec. 2, Clause 2 Advice and Consent; see also Myers v. United States, 272 U.S. 52, 126-27 (1926) ("[T]he appointment of all officers, whether superior or inferior, by the President is declared to be subject to the advice and consent of the Senate. . . . [T]he legislative power of Congress . . . is excluded save by the specific exception as to inferior offices in the clause that follows, viz, 'but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.'").
- ↑ See Art. II, Sec. 2, Cl. 2: Officer and Non-Officer Appointments. See also Freytag, 501 U.S. at 880-81 (examining the division between inferior officers and employees and analyzing the duties of particular inferior officers).
- ↑ Morrison, 487 U.S. at 671.
- ↑ The Court's early focus on who appointed an individual has led some courts and commentators to describe the Court's early Appointments Clause decisions as "circular." See Landry v. FDIC, 204 F.3d 1125, 1132-33 (D.C. Cir. 2000) (stating that "the earliest Appointments Clause cases often employed circular logic, granting officer status to an official based in part upon his appointment by the head of a department"); John M. Burkoff, Appointment and Removal Under the Federal Constitution: The Impact of Buckley v. Valeo, 22 Wayne L. Rev. 1335, 1347 (1976) (arguing that the Court's reasoning in its 1878 decision in United States v. Germaine "like much of the early law in this area, is entirely circular" because the Germaine Court had reasoned that a civil surgeon was an employee, not an inferior officer, because "none of the prescribed modes of appointment was used" in the surgeon's hiring). See United States v. Germaine, 99 U.S. 508, 509 (1878).
- ↑ The Supreme Court's shift in focus to an official's duties and discretion is also reflected in the test the Court announced in Buckley for who constitutes an officer (rather than a mere employee) under the Appointments Clause: an officer is "any appointee exercising significant authority pursuant to the laws of the United States." Buckley v. Valeo, 424 U.S. 1, 126 (1976) (per curiam), superseded by statute, Bipartisan Campaign Reform Act of 2002, Pub. L. No. 107-155, 116 Stat. 81; see also Art. II, Sec. 2, Cl. 2: Officer and Non-Officer Appointments.
- ↑ Edmond v. United States, 520 U.S. 651, 662-63 (1997). For more on the difference between functional and formalist approaches in separation of powers cases, see Introduction: Separation of Powers Under the Constitution.
- ↑ See, e.g., United States v. Germaine, 99 U.S. 508, 510 (1878) (considering whether a civil surgeon appointed by the Commissioner of Pensions was an "Officer of the United States" by examining who appointed him and the nature of his employment); Rice v. Ames, 180 U.S. 371, 378 (1901) (holding that Congress had the authority to invest federal courts with the power to appoint "commissioners," whose position Congress created and "who are not judges in the constitutional sense"); see generally John M. Burkoff, Appointment and Removal Under the Federal Constitution: The Impact of Buckley v. Valeo, 22 Wayne L. Rev. 1335, 1349 n.61 (1976) (positing that "[a]t this point in our constitutional history, the Supreme Court was rather clearly deferring to established appointment practice rather than leading the way in defining on its own who were officers and who were not through the exercise of certain substantive duties").
- ↑ 38 U.S. (13 Pet.) 230, 256-61 (1839).
- ↑ Id. at 258.
- ↑ Id. The Court noted that Louisiana was not a state when Congress first established federal district courts and authorized them to appoint clerks who would serve in both the district courts and the circuit courts located in those districts. Id. However, through subsequent laws concerning Louisiana (i.e., providing for a temporary government, admitting Louisiana into the Union, and including it in the circuit court system), Congress established the Louisiana district court and gave the judge of that court the authority to appoint a clerk for the district who would also serve as the circuit court clerk. Id. The Court ultimately held that although the Louisiana district court had appointed the petitioner as its clerk, the court's subsequent appointment of a different clerk and notice to the petitioner effected his removal from that office. Id. at 258-61.
- ↑ 100 U.S. 371, 397 (1879).
- ↑ See id. (citing the portion of the Appointments Clause allowing Congress to vest the appointment of inferior officers in the President, the courts, or department heads).
- ↑ Id.; see also id. at 398 ("The observation in the case of Hennen . . . that the appointing power in the clause referred to 'was no doubt intended to be exercised by the department of the government to which the official to be appointed most appropriately belonged,' was not intended to define the constitutional power of Congress in this regard, but rather to express the law or rule by which it should be governed.").
- ↑ 169 U.S. 331, 336 (1898) (internal quotation marks and citation omitted); Art. II, Sec. 2, Clause 2 Advice and Consent; see also Eaton, 169 U.S. at 339, 343-44.
- ↑ Eaton, 169 U.S. at 343. The President subsequently delegated the appointment of vice-consuls, through regulations, to the Secretary of State. Id. at 337. The Eaton Court did not question the constitutionality of this delegation or the resulting method of appointment. See id. at 339, 343-44.
- ↑ Id. at 336-37, 339.
- ↑ Id. at 343.
- ↑ Id. at 343-44.
- ↑ Id. at 344.
- ↑ Id. at 343.
- ↑ Id.
- ↑ 282 U.S. 344, 352-53 (1931).
- ↑ Id. at 353 n.2.
- ↑ Id. at 352 ("United States commissioners are inferior officers."); see also id. at 353-54 (declining to consider the relationship between the district court and its commissioners in "matters unlike that now before us").
- ↑ Id. at 354.
- ↑ Id.
- ↑ See, e.g., Weiss v. United States, 510 U.S. 163, 194 (1994) (Souter, J., concurring) (concluding that military judges were inferior officers under the functional reasoning of Morrison). See supra Introduction: Separation of Powers Under the Constitution.
- ↑ 487 U.S. 654, 659 (1988).
- ↑ Id. at 660-61.
- ↑ Id. at 661.
- ↑ Id. at 671.
- ↑ Id.
- ↑ Id.
- ↑ Id. at 671-72.
- ↑ Id. at 661, 672.
- ↑ Id. at 672.
- ↑ Id. (internal citation omitted) (quoting United States v. Germaine, 99 U.S. 508, 511 (1878)). The Court went on to hold that Congress had the authority to vest the power to appoint the independent counsel in the Special Division, a "specially created federal court," because the Appointments Clause allows Congress to vest the appointment of inferior officers in, among other entities, the "Courts of Law." Id. at 673-76.
- ↑ 520 U.S. 651, 658 (1997). At the time, the Coast Guard was situated within the Department of Transportation during times of peace. In 2002, Congress transferred the Coast Guard to the Department of Homeland Security for peacetime operations. Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135, 2249 (codified at 6 U.S.C. § 468(b)).
- ↑ Edmond, 520 U.S. at 661.
- ↑ See id.
- ↑ Id.
- ↑ Id. at 662 (citing Buckley v. Valeo, 424 U.S. 1, 126 (1976) (per curiam), superseded by statute, Bipartisan Campaign Reform Act of 2002, Pub. L. No. 107-155, 116 Stat. 81).
- ↑ Id. at 662-63. See Introduction: Separation of Powers Under the Constitution.
- ↑ Edmond, 520 U.S. at 664.
- ↑ Id.
- ↑ Id.
- ↑ Id. at 654-55.
- ↑ Id. at 655.
- ↑ Id. at 666.
- ↑ 561 U.S. 477, 485-86 (2010).
- ↑ The Court held that Congress could constitutionally limit the President's power to remove a principal officer at will in certain circumstances, and it could likewise limit a principal officer's power to remove an inferior officer at will, but it could not do both. Id. at 484, 495-96. Such "dual" limitations on removal were unconstitutional. Id. at 484, 492. For additional discussion of the Free Enterprise Fund decision as it relates to the removal of officers, see Art. II, Sec. 2, Cl. 2: Twenty-First Century Cases on Removal.
- ↑ Free Enter. Fund, 561 U.S. at 510. The Court held that the multi-member Commission is a department head for purposes of the Appointments Clause. Id. at 510-13.
- ↑ Id. at 510.
- ↑ Id. at 503-04 ("The Commission may, for example, approve the Board's budget, § 7219(b), issue binding regulations, §§ 7202(a), 7217(b)(5), relieve the Board of authority, § 7217(d)(1), amend Board sanctions, § 7217(c), or enforce Board rules on its own, §§ 7202(b)(1), (c).").
- ↑ No. 19-1434 (U.S. June 21, 2021).
- ↑ Id. at 14.
- ↑ Id. at 22.
- ↑ Freytag v. Comm'r, 501 U.S. 868, 884 (1991).
- ↑ Id.
- ↑ Id. at 886
- ↑ Id. at 890-92.
- ↑ Id. at 901 (Scalia, J., concurring in part and concurring in the judgment).
- ↑ See Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 484 (2010).
- ↑ Id. at 510-13.
- ↑ See Art. II, Sec. 2, Cl. 2: Modern Doctrine on Principal and Inferior Officers.
- ↑ Free Enter. Fund, 561 U.S. at 510.
- ↑ Id. at 511.
- ↑ 147 U.S. 282, 298-99 (1893).
- ↑ Id. at 300-01.
- ↑ Id.
- ↑ Id. at 301.
- ↑ Id.
- ↑ 510 U.S. 163, 165-69 (1994).
- ↑ Id. at 170.
- ↑ Id. at 168-69. The Court declined to rule on the constitutionality of a statutory provision authorizing the selection of civilians as military judges as that issue was not presented here, as the relevant military judges were military officers. Id. at 170 n.4. See 10 U.S.C. § 866(a)(1).
- ↑ Weiss, 510 U.S. at 165.
- ↑ Id. at 174.
- ↑ Id.
- ↑ Id.
- ↑ Id.
- ↑ Id. at 175-76.
- ↑ Id.
- ↑ Id. at 176. See also Ortiz v. United States, No. 16-1423 (U.S. June 22, 2018) (rejecting the argument that a military judge's dual service on the military Court of Criminal Appeals (CCA) and the Court of Military Commission Review (CMCR) violated the Appointments Clause).
- ↑ See generally Weiss, 510 U.S. at 182-83 (Souter, J., concurring) (explaining that such a situation, though not presented in the case, would violate the Constitution).
- ↑ Art. II, Sec. 2, Clause 2 Advice and Consent.
- ↑ See Art. II, Sec. 2, Cl. 2: Overview of Principal and Inferior Officers to Art. II, Sec. 2, Cl. 2: Modern Doctrine on Principal and Inferior Officers.
- ↑ 100 U.S. 371, 397-99 (1879).
- ↑ Id. at 397. The Court distinguished a prior case, Ex parte Hennen, which stated that the appointment power "was no doubt intended to be exercised by the department of the government to which the official to be appointed most appropriately belonged," 38 U.S. (13 Pet.) 230, 258 (1839), as "not intended to define the constitutional power of Congress in this regard, but rather to express the law or rule by which it should be governed." Ex parte Siebold, 100 U.S. at 398.
- ↑ Ex parte Siebold, 100 U.S. at 397.
- ↑ Id. at 398. The Court also appeared to approve of the judicial appointment of United States commissioners, who were granted certain executive powers by Congress, in Go-Bart Importing Co. v. United States, 282 U.S. 344, 353-54, 353 n.2 (1931). See Morrison v. Olson, 487 U.S. 654, 676 (1988) (describing the Court's decision in Go-Bart as "approv[ing] [the] court appointment of United States commissioners, who exercised certain limited prosecutorial powers").
- ↑ 481 U.S. 787, 793-801 (1987). See also 28 U.S.C. § 546(d) (authorizing district courts to appoint United States attorneys to fill vacancies in certain situations).
- ↑ 481 U.S. at 789-92.
- ↑ Id. at 803-14.
- ↑ Id. at 793-801.
- ↑ Id. at 796 (quoting Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 450 (1911)).
- ↑ Id. at 797.
- ↑ 487 U.S. 654 (1988).
- ↑ 28 U.S.C. §§ 591-599.
- ↑ Id. §§ 591-593. For more on Morrison v. Olson, see Art. II, Sec. 2, Cl. 2: Later Twentieth Century Cases on Removal.
- ↑ 28 U.S.C. §§ 49, 593.
- ↑ Id. § 593.
- ↑ Morrison, 487 U.S. at 673-74.
- ↑ Id.
- ↑ Id. at 676-77; see 28 U.S.C. § 546.
- ↑ Morrison, 487 U.S. at 677.
- ↑ See Art. II, Sec. 4: Overview of Impeachment Clause.
- ↑ See Mimmack v. United States, 97 U.S. 426, 436-37 (1878).
- ↑ Art. III, Section 1 Vesting Clause.
- ↑ Id. art. II, § 2, cl. 2.
- ↑ The assent of the Senate is required when an individual's appointment to an office serves to replace an existing principal officer. In that case, the prior officer is removed through the new appointment. Blake v. United States, 103 U.S. 227, 230, 237 (1880) ("It results that the appointment of Gilmore, with the advice and consent of the Senate, to the office held by Blake, operated in law to supersede the latter, who thereby, in virtue of the new appointment, ceased to be an officer in the army from and after, at least, the date at which that appointment took effect . . . .'"); Keyes v. United States, 109 U.S. 336, 339 (1883); Mullan v. United States, 140 U.S. 240, 246-247 (1891); Wallace v. United States, 257 U.S. 541, 545 (1922). This principle does not extend to Article III judges, who enjoy life tenure. See Auth. of the President to Prospectively Appoint a Sup. Ct. Justice, 46 Op. O.L.C. 1, 1-2 (2022). In addition, the lawful appointment of a new inferior officer by the proper appointing authority can serve to remove the prior inferior officer from his position. Ex parte Hennen, 38 U.S. (13 Pet.) 230, 261 (1839) ("The power vested in the Court was a continuing power; and the mere appointment of a successor would, per se, be a removal of the prior incumbent, so far at least as his rights were concerned.").
- ↑ See Art. II, Sec. 2, Cl. 2: Twenty-First Century Cases on Removal.
- ↑ See, e.g., Seila Law LLC v. Consumer Fin. Prot. Bureau, No. 19-7, slip op. at 11 (U.S. June 29, 2020) ("The entire 'executive Power' belongs to the President alone."). For more on the difference between functional and formalist approaches in separation of powers cases, see Introduction: Separation of Powers Under the Constitution.
- ↑ See, e.g., Morrison v. Olson, 487 U.S. 654, 689-90 (1988) ("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 to ensure that Congress does not interfere with the President's exercise of the "executive power" and his constitutionally appointed duty to "take care that the laws be faithfully executed" under Article II."); see John F. Manning, Separation of Powers As Ordinary Interpretation, 124 Harv. L. Rev. 1939, 1952 (2011).
- ↑ See Wellness Int'l Network, Ltd. v. Sharif, 575 U.S. 665, 668 (2015) (describing "the protections of Article III" enjoyed by federal judges as including "life tenure and pay that cannot be diminished").
- ↑ Compare Art. III, Section 1 Vesting Clause (federal judges) with id. art. II, § 2, cl. 2 (officers generally).
- ↑ For instance, courts and scholars have debated the significance of Alexander Hamilton's understanding, expressed in the Federalist Papers, of the scope of the President's removal power and the role of the Senate in removal decisions. See The Federalist No. 77 (Alexander Hamilton) (appearing to argue that the President would require Senate consent under the Constitution to remove Executive Branch officers); Alexander Hamilton, Pacificus No. I (June 29, 1793), in 4 The Works of Alexander Hamilton 432, 439 (Henry C. Lodge ed., 1971); Myers v. United States, 272 U.S. 52, 136-37 (1926) (majority opinion) (arguing that Hamilton originally believed that Senate consent was required to remove Executive Branch officers, but that he later changed his mind); id. at 293 & n.86 (Brandeis, J., dissenting) (noting Hamilton's position in the Federalist No. 77); Seth Barrett Tillman, The Puzzle of Hamilton's Federalist No. 77, 33 Harv. J.L. & Pub. Pol'y 149, 151 (2010) (arguing against the "standard or consensus view . . . that Hamilton was speaking to removal, [which] has been adopted by Supreme Court majorities and dissents, lower federal courts, and by academics in law and in other fields"); Jeremy D. Bailey, The New Unitary Executive and Democratic Theory: The Problem of Alexander Hamilton, 102 Am. Pol. Sci. Rev. 453, 458 (2008) ("If Hamilton is the father of the unitary executive, why did he write in The Federalist that the president would share the removal power with the Senate?").
- ↑ Saikrishna Prakash, New Light on the Decision of 1789, 91 Cornell L. Rev. 1021, 1022 (2006) ("One of the most significant yet less-well-known constitutional law decisions is the 'Decision of 1789.'"); Lawrence Lessig & Cass R. Sunstein, The President and the Administration, 94 Colum. L. Rev. 1, 23 (1994) (noting the "great debate about the President's removal powers that occurred when the first Congress created the first departments in the new government--a debate known as the Decision of 1789").
- ↑ See Prakash, supra note here, at 1023-25 (describing different understandings of the debate espoused by scholars and judges). Compare Myers v. United States, 272 U.S. 52, 114 (1926) (Taft, J.) ("[T]here is not the slightest doubt, after an examination of the record, that the vote was, and was intended to be, a legislative declaration that the power to remove officers appointed by the President and the Senate vested in the President alone, and until the Johnson impeachment trial in 1868 its meaning was not doubted, even by those who questioned its soundness."), and 5 John Marshall, The Life of George Washington 200 (1807), with David P. Currie, The Constitution in Congress: The Federalist Period 1789-1801, at 41 (1997) (arguing that "there was no consensus" in the House regarding whether the President received the removal power from "Congress or the Constitution itself"), and 1 Corwin on the Constitution 332 (Richard Loss ed., 1981).
- ↑ Bowsher v. Synar, 478 U.S. 714, 723 (1986) (quoting Marsh v. Chambers, 463 U.S. 783, 790 (1983)); Myers v. United States, 272 U.S. 52, 146 (1926).
- ↑ See Josh Chafetz, Congress's Constitution, Legislative Authority and the Separation of Powers 100 (2017); Jerry L. Mashaw, Recovering American Administrative Law: Federalist Foundations, 1787-1801, 115 Yale L.J. 1256, 1282-89 (2006). For a record of the debate in Congress, see 1 Annals of Cong. 384-412, 473-608, 614-31, 635-39 (1789).
- ↑ 1 Annals of Cong. 368-69 (1789).
- ↑ 1 Annals of Cong. 371 (1789).
- ↑ Currie, supra note here, at 36.
- ↑ Currie, supra note here, at 36-41.
- ↑ See Act of Jul. 27, 1789, ch. 4, § 2, 1 Stat. 28, 29; Act of Sept. 2, 1789, ch. 12, § 7, 1 Stat. 65, 67; Act of Aug. 7, 1789, ch. 7, § 2, 1 Stat. 49, 50.
- ↑ See, e.g., Bowsher v. Synar, 478 U.S. 714, 723 (1986); Myers v. United States, 272 U.S. 52, 146 (1926); Parsons v. United States, 167 U.S. 324, 338-43 (1897).
- ↑ Chafetz, supra note here, at 100-01; Prakash, supra note here, at 1023-25.
- ↑ 272 U.S. 52, 136 (1926).
- ↑ 3 Joseph Story, Commentaries on the Constitution of the United States § 1537 (1833).
- ↑ Story, supra note here, § 1537; Steven G. Calabresi & Christopher S. Yoo, The Unitary Executive During the First Half-Century, 47 Case W. Res. L. Rev. 1451, 1478-95, 1499-1501 (1997); Leonard D. White, The Federalists: A Study in Administrative History 285-88 (1948).
- ↑ Story, supra note here, § 1537; Calabresi & Yoo, supra note here, at 1507-26; Leonard D. White, The Jeffersonians: A Study in Administrative History 1801-1829, at 379-80 (1951).
- ↑ See, e.g., Dismission of a Paymaster Under Act of 1823, 2 Op. Att'ys Gen. 67 (1828) ("Mr. Clark held his commission as paymaster during the pleasure of the President; and the power of the President to dismiss him, at pleasure, is not disputed.").
- ↑ Act of May 15, 1820, ch. 102, § 1, 3 Stat. 582, 582.
- ↑ Daniel Walker Howe, What Hath God Wrought: The Transformation of America, 1815-1848 at 331-34 (2007); Michael J. Gerhardt, The Federal Appointments Process 52-53 (2003) [hereinafter Gerhardt, Appointments]; Carl R. Fish, The Civil Service and the Patronage 74 (1905). It appears that although President Jackson removed more officers than all his predecessors had combined, due to the smaller size of government at the time, President Jefferson removed a larger percentage of federal officers. Paul P. Van Riper, History of the United States Civil Service 30, 34-36 (1958); Steven G. Calabresi & Christopher S. Yoo, The Unitary Executive During the First Half-Century, 47 Case W. Res. L. Rev. 1451, 1533 (1997).
- ↑ Howe, supra note here, at 333-34; Arthur Schlesinger, Jr., The Age of Jackson 46-47 (1945).
- ↑ Gerhardt, Appointments, supra note here, at 52-53.
- ↑ Andrew Jackson, First Annual Message (Dec. 8, 1829), in 3 A Compilation of the Messages and Papers of the Presidents 309, 310 (James D. Richardson ed., 1897); Calabresi & Yoo, supra note here, at 1478-95, 1531-32; Howe, supra note here, at 333-34. It appears that Presidents Jefferson and Monroe also embraced rotation in office. Michael J. Gerhardt, Forgotten Presidents 32 (2013) [hereinafter Gerhardt, Forgotten].
- ↑ Howe, supra note here, at 373-92; Calabresi & Yoo, supra note here, at 1538-59.
- ↑ Howe, supra note here, at 388.
- ↑ 10 Reg. Deb. 58 (1833); 10 Reg. Deb. 1187 (1834). See Claude G. Bowers, The Party Battles of the Jackson Period 330 (1965).
- ↑ 13 Reg. Deb. 504-05 (1837); Calabresi & Yoo, supra note here, at 1558-59; see U.S. Sen., Party Division, [9] (last visited June 27, 2022).
- ↑ Gerhardt, Forgotten, supra note here, at 18-19; Leonard D. White, The Jacksonians: A Study in Administrative History, 1829-1861, at 309 (1954).
- ↑ Gerhardt, Forgotten, supra note here, at 31-33; White, supra note here, at 311.
- ↑ Gerhardt, Forgotten, supra note here, at 37-45. Tyler was initially a member of the Democratic party, but left and was elected on the newly-formed Whig ticket. He was expelled from the Whigs after vetoing a legislative bill. Id.
- ↑ Gerhardt, Forgotten, supra note here, at 50-51.
- ↑ Gerhardt, Forgotten, supra note here, at 50-51.
- ↑ Power of President to Fill Vacancies, 3 Op. Att'ys Gen. 673, 673-76 (1841).
- ↑ Military Power of the President to Dismiss From Serv., 4 Op. Att'ys Gen. 1, 1-2 (1842).
- ↑ Gerhardt, Forgotten, supra note here, at 74; Gerhardt, Appointments, supra note here, at 52-55.
- ↑ See Art. II, Sec. 4: President Andrew Johnson and Impeachable Offenses.
- ↑ Tenure of Office Act, Pub. L. No. 39-154, ch. 154, 14 Stat. 430 (1867).
- ↑ Id.
- ↑ Id.
- ↑ Cong. Globe, 40th Cong. 1400 (1868).
- ↑ William H. Rehnquist, Grand Inquests: The Historic impeachments of Justice Samuel Chase and President Andrew Johnson 221 (1992).
- ↑ 3 Hinds' Precedents of the House of Representatives § 2443 (1907); see Rehnquist, supra note here, at 234-35.
- ↑ See Act of Apr. 5, 1869, ch. 10, §§ 1-2, Pub. L. No. 41-10, 16 Stat. 6, 6-7. See Rev. Stat. 1767 (1875) ("Every person holding any civil office . . . by and with the advice and consent of the Senate . . . shall be entitled to hold such office during the term for which he was appointed, unless" removed with Senate consent or replaced with Senate consent).
- ↑ Act of Mar. 3, 1887, ch. 353, Pub. L. No. 49-354, 24 Stat. 500.
- ↑ Parsons v. United States, 167 U.S. 324, 338-43 (1897). The Court in 1886 affirmed the authority of Congress to restrict the removal of inferior officers by the head of a department for cause. United States v. Perkins, 116 U.S. 483, 485 (1886).
- ↑ Parsons, 167 U.S. at 338-43.
- ↑ Id. at 338-39.
- ↑ Id.
- ↑ 189 U.S. 311 (1903).
- ↑ Id. at 313.
- ↑ Id. at 315-19.
- ↑ Id.
- ↑ 272 U.S. 52 (1926). See Ex parte Hennen, 38 U.S. (13 Pet.) 230, 261 (1839) (concluding that courts authorized to appoint their own clerks also were empowered to remove them).
- ↑ Myers, 272 U.S. at 106-07. The case was brought by the postmaster's intestate and sought backpay. Id.
- ↑ Id. at 131-77.
- ↑ Id. at 163-64 ("[T]o hold otherwise would make it impossible for the President, in case of political or other differences with the Senate or Congress, to take care that the laws be faithfully executed.").
- ↑ Id. at 122.
- ↑ Id. at 119, 148.
- ↑ Id. at 166-71.
- ↑ Id. at 117.
- ↑ Id. at 122.
- ↑ Id. at 176.
- ↑ 272 U.S. 52 (1926).
- ↑ John F. Manning, Separation of Powers As Ordinary Interpretation, 124 Harv. L. Rev. 1939, 1952 (2011) (describing the Court in Humphrey's Executor as "using functionalist reasoning to sustain independent regulatory agencies").
- ↑ 295 U.S. 602 (1935). It appears that the only instances of a President expressly removing an officer with for-cause protection after notice, a hearing, and finding that the statutory reasons for removal were met occurred in late 1912 and early 1913 when President Taft removed two members of the Board of General Appraisers. See Aditya Bamzai, Taft, Frankfurter, and the First Presidential For-Cause Removal, 52 U. Rich. L. Rev. 691, 691-737 (2018). President Richard Nixon removed Raymond Lapin from his position as President of the Federal National Mortgage Association for "good cause," but without conducting a hearing for articulating what behavior constituted that cause. Id. at 746-47. Lapin brought suit challenging the action but eventually dropped his challenge. Id. Following the Supreme Court's 2021 decision in Collins v. Yellen, in which the Court ruled that a statutory removal protection for an agency with a single director was unconstitutional, President Biden removed the heads of two other agencies that had similar structural features and protection. See Matthew Goldstein et al., Biden Removes Chief of Housing Agency After Supreme Court Ruling, N.Y. Times (June 23, 2021), [10]; Andrew Ackerman & Brent Kendall, Biden Administration Removes Fannie, Freddie Overseer After Court Ruling, Wall St. J. (June 23, 2021), [11]. Jim Tankersley, Biden Fires Trump Appointee as Head of Social Security Administration, N.Y. Times (July 9, 2021), [12]; Andrew Restuccia & Richard Rubin, Biden Ousts Social Security Chief, Wall St. J. (July 9, 2021), [13].
- ↑ See 15 U.S.C. § 41.
- ↑ Humphrey's Ex'r, 295 U.S. at 618-19.
- ↑ Id. at 625-26.
- ↑ See 189 U.S. 311 (1903).
- ↑ Humphrey's Ex'r, 295 U.S. at 622-24. The Court indicated that for the Shurtleff Court to interpret the removal provision as ensuring the life tenure of the appraiser "was so extreme as to forbid, in the opinion of the court, any ruling which would produce that result if it reasonably could be avoided." Id. at 23.
- ↑ Id. at 624-25.
- ↑ Id. at 626.
- ↑ Id. at 628.
- ↑ Id. at 629-32.
- ↑ The Court's view in Humphrey's Executor that the FTC did not wield executive power is no longer shared by the modern Court. Seila Law LLC v. Consumer Fin. Prot. Bureau, No. 19-7, slip op. at 14 n.2 (U.S. June 29, 2020) ("The Court's conclusion that the FTC did not exercise executive power has not withstood the test of time."); City of Arlington v. FCC, No. 11-1545, slip op. at 13 n.4 (U.S. May 20, 2013) (noting that agency "activities take 'legislative' and 'judicial' forms, but they are exercises of--indeed, under our constitutional structure they must be exercises of--the 'executive Power'"); id. at 4 (Roberts, C. J. dissenting, joined by Kennedy & Alito, JJ.) ("What the Court says in footnote 4 of its opinion is good, and true . . . The Framers did divide governmental power in the manner the Court describes, for the purpose of safeguarding liberty.").
- ↑ There are other indicia of independence for federal agencies, although for cause removal protection is likely the most prominent indicator. See Elena Kagan, Presidential Administration, 114 Harv. L. Rev. 2245, 2376 (2001) (describing the "core legal difference" between independent and Executive Branch agencies as "the strength of the President's removal power"); Kirti Datla & Richard L. Revesz, Deconstructing Independent Agencies (and Executive Agencies), 98 Cornell L. Rev. 769, 775-76 (2013) ("[T]he conventional wisdom is that there are two types of agencies: executive and independent. Each type of agency comes with a set of rules that govern how the President can interact with them. The consensus view is that the dividing line is the presence of a for-cause removal protection clause."). But see Adrian Vermeule, Conventions of Agency Independence, 113 Colum. L. Rev. 1163, 1166 (2011) ("Legally enforceable for-cause tenure protection is neither necessary nor sufficient for operational independence.").
- ↑ Kagan, supra note here, at 2376-77.
- ↑ Anne Joseph O'Connell, Bureaucracy at the Boundary, 162 U. Pa. L. Rev. 841, 846 (2014) ("And there are organizations entirely within the federal government that do not fit squarely within the Executive Branch, including but encompassing far more than independent regulatory commissions and boards.").
- ↑ See, e.g., Intercollegiate Broad. Sys., Inc. v. Copyright Royalty Bd., 684 F.3d 1332, 1341-42 (D.C. Cir. 2012) (concluding that "the powers in the Library [of Congress] and the [Copyright Royalty] Board to promulgate copyright regulations, to apply the statute to affected parties, and to set rates and terms case by case are ones generally associated in modern times with executive agencies rather than legislators. In this role the Library is undoubtedly a 'component of the Executive Branch'") (quoting Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 511 (2010)).
- ↑ Compare Lawrence Lessig & Cass R. Sunstein, The President and the Administration, 94 Colum. L. Rev. 1, 2-4 (1994) (asserting that the Framers did not envision a unitary Executive), with Steven G. Calabresi & Saikrishna B. Prakash, The President's Power to Execute the Laws, 104 Yale L.J. 541, 547-50 (1994) (arguing that the theory of a unitary Executive flows from an originalist interpretation of the Constitution's meaning). See also Neomi Rao, Removal: Necessary and Sufficient for Presidential Control, 65 Ala. L. Rev. 1205, 1276 (2014).
- ↑ See Art. II, Sec. 2, Cl. 2: Later Twentieth Century Cases on Removal.
- ↑ See Art. II, Sec. 2, Cl. 2: Later Twentieth Century Cases on Removal.
- ↑ See, e.g., Morrison v. Olson, 487 U.S. 654, 659-60 (1988).
- ↑ The case presented another suit for backpay premised on an allegedly illegal removal.
- ↑ 357 U.S. 349 (1958).
- ↑ Id. at 352 (quoting Humphrey's Ex'r v. United States, 295 U.S. 602, 628 (1935).
- ↑ Id. at 353-56.
- ↑ Id. at 356.
- ↑ See Ethics in Government Act of 1978, Pub. L. No. 95-521, 92 Stat. 1824.
- ↑ Id. §§ 601-04, 92 Stat. at 1867-75 (codified at 28 U.S.C. §§ 591-99). The independent counsel provisions have since expired. 28 U.S.C. § 599. The statute required the Attorney General to apply in certain circumstances to a Special Division of the U.S. Court of Appeals for the D.C. Circuit for the appointment of an independent prosecutor. Id. § 593(a).
- ↑ Id. § 596(a)(1).
- ↑ 487 U.S. 654, 659-60 (1988). This issue was foreshadowed in the experiences of the special prosecutor charged with investigating events connected to the break-in at the Watergate Hotel and Office Building. See Art. II, Sec. 4: President Richard Nixon and Impeachable Offenses.
- ↑ Morrison, 487 U.S. at 671. The Court concluded that the independent counsel was an inferior officer because the independent counsel (1) was removable by the Attorney General for cause; (2) had a limited scope of duties; (3) possessed limited jurisdiction; and (4) was limited in tenure. Id. at 671-72. For more on the distinction between principal and inferior officers, see Art. II, Sec. 2, Cl. 2: Modern Doctrine on Principal and Inferior Officers.
- ↑ Morrison.
- ↑ Id. at 690 (quoting Art. II, Section 3 Duties).
- ↑ Id. at 691.
- ↑ Id.
- ↑ Id. at 691-92.
- ↑ Id. at 692-93.
- ↑ Id. at 695.
- ↑ Id. at 693-96.
- ↑ Id. at 695-96; cf. Id. at 706 (Scalia, J., dissenting) (characterizing the Court's assertion as "somewhat like referring to shackles as an effective means of locomotion").
- ↑ 478 U.S. 714, 735-36 (1986). See Art. II, Sec. 2, Cl. 2: Creation of Federal Offices to Art. II, Sec. 2, Cl. 2: Restrictions on Congress's Authority.
- ↑ Balanced Budget and Emergency Deficit Control Act of 1985, Pub. L. No. 99-177, 99 Stat. 1038 (codified at 2 U.S.C. § 901 et seq.).
- ↑ Bowsher, 478 U.S. at 718, 732.
- ↑ Id. at 718.
- ↑ Id. at 736.
- ↑ Id. at 722.
- ↑ Id.
- ↑ Id. at 726. Cf. Id. at 740 (Stevens, J., concurring in the judgment) ("The fact that Congress retained for itself the power to remove the Comptroller General thus is not necessarily an adequate reason for concluding that his role in the Gramm-Rudman-Hollings budget reduction process is unconstitutional. It is, however, a fact that lends support to my ultimate conclusion that, in exercising his functions under this Act, he serves as an agent of the Congress."); Id. at 765 (White, J., dissenting) ("I cannot accept, however, that the exercise of authority by an officer removable for cause by a joint resolution of Congress is analogous to the impermissible execution of the law by Congress itself, nor would I hold that the congressional role in the removal process renders the Comptroller an 'agent' of the Congress, incapable of receiving 'executive' power.").
- ↑ Id. at 726.
- ↑ Id. at 732-33.
- ↑ Id. at 734.
- ↑ See 561 U.S. 477, 484 (2010).
- ↑ 15 U.S.C. §§ 7211-20.
- ↑ Id. § 7217.
- ↑ Free Enter. Fund, 561 U.S. at 486.
- ↑ SEC Commissioners do not actually have an explicit statutory removal protection, but both parties agreed and the Court decided the case with the understanding that the Commissioners nonetheless may not be removed by the President except for the standard enunciated in Humphrey's Executor. Id. at 487.
- ↑ Id. at 495-98.
- ↑ Id. at 496.
- ↑ Id.
- ↑ Id.
- ↑ Id. at 497-98 (quoting The Federalist No. 72 (Alexander Hamilton)).
- ↑ Id. at 499 ("The growth of the Executive Branch, which now wields vast power and touches almost every aspect of daily life, heightens the concern that it may slip from the Executive's control, and thus from that of the people.").
- ↑ Id. at 498.
- ↑ No. 19-7, slip op. at 2-3 (U.S. June 29, 2020). This case also involved questions of standing. Id. at 9. Among other arguments, a court-appointed amicus curiae claimed that "a litigant wishing to challenge an executive act on the basis of the President's removal power must show that the challenged act would not have been taken if the responsible official had been subject to the President's control." Id. The Court rejected the idea that such a challenger has to prove this type of counterfactual, finding it sufficient to demonstrate an injury "from an executive act that allegedly exceeds the official's authority." Id. at 10.
- ↑ Id. at 2.
- ↑ Id. at 26. The court-appointed amicus curiae argued that the Court's precedent established that Congress may generally limit the President's removal power, with two exceptions: (1) "Congress may not reserve a role for itself in individual removal decisions"; and (2) Congress may not completely eliminate the President's removal power. Id. at 26-27.
- ↑ Id. at 27.
- ↑ Id. at 13.
- ↑ Id. at 2, 15-16. The Court said its decision in Wiener also fell within this exception. Id. at 15 (discussing Wiener v. United States, 357 U.S. 349 (1958).
- ↑ Id. at 15 (emphasis added). The Court stressed that "[r]ightly or wrongly, the Court viewed the [Federal Trade Commission ('FTC')] (as it existed in 1935) as exercising 'no part of the executive power.'" Id. at 14 (quoting Humphrey's Ex'r v. United States, 295 U.S. 602, 628 (1935). However, the Court also said that this conclusion has not withstood the test of time, and that the powers of the FTC--even as they existed in 1935--are now considered executive. Id. at 14 n.2.
- ↑ Id. at 16. This principle also extended to Perkins. Id. at 15 (discussing United States v. Perkins, 116 U.S. 483 (1886).
- ↑ Id. at 16-18.
- ↑ Id.
- ↑ Id. at 17.
- ↑ Id.
- ↑ Id. at 18.
- ↑ Id. The Court acknowledged that there were four other relatively recent historical examples of Congress providing good-cause tenure to principal officers leading an agency, but dismissed these examples as also being controversial. Id. at 18-21 (discussing the Comptroller of the Currency, Office of the Special Counsel, Social Security Administration, and Federal Housing Finance Agency).
- ↑ Id. at 21.
- ↑ Id. at 23. The Court noted that the Executive Branch is the only branch led by a unitary head, and that the President's power is checked through democratic and political accountability. Id. at 22-23. Individual Executive Branch officials may still wield significant authority, but that authority remains subject to the ongoing supervision and control of the elected President. Id. at 23.
- ↑ Id. at 30-33 (plurality opinion); id. at 1 (Kagan, J., concurring in the judgment with respect to severability and dissenting in part).
- ↑ No. 19-422, slip op. at 26-32 (U.S. June 23, 2021).
- ↑ 12 U.S.C. § 4512(b)(2).
- ↑ Collins, slip op. at 26-29.
- ↑ Id. at 36.
