Article II of the Constitution provides the President’s power of Appointments and Removal:

“[The President] 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.”

In other words, the President has the power to appoint and remove anyone from office, which Congress has the ability to give certain officials the ability to appoint inferior officers. But just how powerful is Congress’s power?

Separation of Powers

Morrison v. Olson

487 U.S. 654 (1988).

Congress passed the Ethics in Government Act of 1978. The Court of Appeals invalidated the Act, leading to this appeal.


Is the independent counsel provision a violation of the Appointment and Removal clause?

  1. Whether removal for only good cause interferes with the President’s constitutional powers.
  2. Whether the Act violates separation of powers by reducing President’s prosecutorial powers.

The Act does not violate the Constitution, reversed.


The Ethics in Government Act of 1978 required the Attorney General to investigate if certain individuals had violated Federal Criminal Law, and report finding to a special court. If further action was necessary, the court, along with information from the Attorney General, would appoint an “independent counsel” whose job was to investigate and potentially prosecute the individual.

The independent counsel could be removed by the Attorney General for “good cause.” As such, the question arises as to whether the independent counsel is constitutional because of the limitation on the executive power to remove said counsel.


To determine the answer to the main question, the court examines the two subquestions.

First, the majority argues that the act does not interfere with the President’s exercise of his constitutionally appointed functions. The executive power is not dependent on the need to have sole exercise over removal, nor is there a Constitutional provision saying that the President has the power to remove any officer “at will.”

Second, the majority argues that the provision does not undermine the separation of powers. Even though some powers of the Attorney General may be limited, it also gives other powers. This give and take balance allows the provision to survive.

However, the dissent disagrees. They present two questions, that if answered affirmatively would lead to the demise of the provision. First, is the power to prosecute and investigate solely with the executive? Second, does the statute limit the exercise of the power. The dissent argues that both are answered affirmatively and thus the statute would be unconstitutional.

First, the Constitution vests all of the power to prosecute with the executive brach. Congress’s only role is to appoint inferior officers. As such, any limitation on that power would be unconstitutional.

Second, the majority already admits that there is a limitation on the power. The Attorney General is unable to exercise certain authorities, include the ability to freely dismiss the independent counsel. Consequently, the statute should be invalidated.

Additional Notes

Background cases and an overview on removal restrictions:

Myers v. United States – All executive functions remain with the executive branch. This is called the unitary executive theory.

Humphrey’s Executor v. United States – For lesser officials, the executive is limited to what extent they may remove those officials. This case is an example of a backtrack from Myers.

The question then becomes, what is the scope of the power to remove and by whom?

Case Notes

This case presents a problem where, after Watergate, there was a need to investigate executive officials. However, the people who are designed to investigate the executive are appointed by executive. So, there is a conflict of interest. Thus, the statute was created to set rules (limitations to remove) to minimize this conflict of interest.


  1. From the text of the Constitution – Courts have the authority (if granted by Congress) to establish inferior officers (Principle officers must be appointed by the President). These are individuals who are are limited in scope and powers. Thus, the appointment was proper.
  2. Indue interference test – Is the limitation going to interfere with the President’s ability to perform their constitutional duties? Here, the court says no because the removal is not central for the executive to function.
  3. Dissent – Basically the opposite of the majority. All power is invested into the executive, and therefore, any limitation would unduly interfere (which is a dumb standard according to the dissent). Additionally, this individual is not an inferior officer because of how much power the officer has.

Recess Appointments

National Labor Relations Board, v. Canning

34 S. Ct. 2550 (2014).

Article II, section 2, clause 3 provides:

“The President shall have the Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of Congress’s next session.”

In 2011, President Obama was constantly delayed by the Senate to make appointments. When the Senate called a temporary recess in December through January (only to meet twice a week to cover general business), President Obama took his opportunity to appoint delayed appointments.

Canning, was found by the board to have violated labor laws. However, he argued that this finding cannot be made because 3 of the 5 board members were appointed illegally through this recess appointment.

The majority argued that this was an invalid appointment. Although appointments may be made during an intra-session (mid session) recess, there must be significant time in-between meetings to make the appointment. An intra-session recess appointment could work because the President has repeatedly throughout history made appointments during intra-session recesses. Here, however, a two day break between meetings was not a sufficient amount of time to make the appointment.

However, the concurrence in judgment argues that a recess appointment may not be made intra-session but must be made during the annual inter-session recesses. Just because the practice has been utilized and not condemned before now does not make it legal (adverse-possession argument). Instead, the concurrence would ensure a more solid reading of the text and argues that the structure adopted by the majority would lead to separation of power issues. Therefore, the concurrence would invalidate the appointments, but differ regarding the timeline.

Additional Notes


  1. Inter-session – Appointments made in-between annual recess. These appointments have term limits to the end of the session. Constitutionally, not a problem (may have some issues politically).
  2. Intra-session – Taking a recess in the middle of the session. Appointments made during this time are more controversial. However, these appointments are allowed. However, there needs to be a sufficient recess time for these appointments to work. The problem here was that the Senate still met twice a week (need a gap of about 10 days).
  3. Dissent – Where did we come up with the 10 day rule? Not a fan based simply off of allowed historical practice.


Chiafalo v. Washington

591 U.S. __ (2020).

Chiafalo is challenging a sanction imposed on him. Both Washington courts refused to reverse and Chiafalo appealed.


Do the states have authority to require electoral college electors to vote in accordance with the state voters, or else face a penalty?


State electors have to vote in accordance with state voters. Otherwise, they may be fined.


The sanction is appropriate, affirmed.


This case presents a situation where Chiafalo and two others were selected as state electors for Washington as part of the electoral college. When voters chose who they want to be President, their vote is represented by the electors. Thus, the electors are to cast their vote in line with the state voters. To enforce this alignment, states will often require the electors to take a pledge to vote accordingly, dismiss for failure to do so, and impose sanctions.

In the 2016 election, the state voters chose to vote for Hillary Clinton. However, Chifalo and other electors chose to vote contrary to this opinion and were fined. Therefore, Chifalo challenged the fine, arguing that as an elector, he had the power to chose who to vote for.


There is nothing in the Constitution that says the electors may use their discretion to choose who to vote for. Consequently, state’s are authorized to compel electors to vote in accordance with the voice of the people. Additionally, longstanding practice has authorized such means to carry out a similar result. Therefore, the fine imposed is affirmed.

Additional Notes

The takeaway:

  1. It is permissible for a state to have sanctions against electors who do not vote along with the voice of the state voters.


The content contained in this article may contain inaccuracies and is not intended to reflect the opinions, views, beliefs, or practices of any academic professor or publication. Instead, this content is a reflection on the author’s understanding of the law and legal practices.

Will Laursen

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