FREE ENTERPRISE FUND ET AL. v. PUBLIC COMPANY ACCOUNTING OVERSIGHT BOARD ET AL.
No. 08-861
SUPREME COURT OF THE UNITED STATES
Decided June 28, 2010
561 U. S. ____ (2010)
Argued December 7, 2009
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
Syllabus
FREE ENTERPRISE FUND ET AL. v. PUBLIC COMPANY ACCOUNTING OVERSIGHT BOARD ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Respondent, the Public Company Accounting Oversight Board, was created as part of a series of accounting reforms in the Sarbanes-Oxley Act of 2002. The Board is composed of five members appointed by the Securities and Exchange Commission. It was modeled on private self-regulatory organizations in the securities industry—such as the New York Stock Exchange—that investigate and discipline their own members subject to Commission oversight. Unlike these organizations, the Board is a Government-created entity with expansive powers to govern an entire industry. Every accounting firm that audits public companies under the securities laws must register with the Board, pay it an annual fee, and comply with its rules and oversight. The Board may inspect registered firms, initiate formal investigations, and issue severe sanctions in its disciplinary proceedings. The parties agree that the Board is “part of the Government” for constitutional purposes, Lebron v. National Railroad Passenger Corporation, 513 U. S. 374, 397, and that its members are “Officers of the United States” who “exercis[e] significant authority pursuant to the laws of the United States,” Buckley v. Valeo, 424 U. S. 1, 125-126. While the SEC has oversight of the Board, it cannot remove Board members at will, but only “for good cause shown,” “in accordance with” specified procedures.
The Board inspected petitioner accounting firm, released a report critical of its auditing procedures, and began a formal investigation.
Held:
1. The District Court had jurisdiction over these claims. The Commission may review any Board rule or sanction, and an aggrieved party may challenge the Commission‘s “final order” or “rule” in a court of appeals under
These considerations point against any limitation on review here. Section 78y provides only for review of Commission action, and petitioners’ challenge is “collateral” to any Commission orders or rules from which review might be sought. The Government advises petitioners to raise their claims by appealing a Board sanction, but petitioners have not been sanctioned, and it is no “meaningful” avenue of relief, Thunder Basin, supra, at 212, to require a plaintiff to incur a sanction in order to test a law‘s validity, MedImmune, Inc. v. Genentech, Inc., 549 U. S. 118, 129. Petitioners’ constitutional claims are
2. The dual for-cause limitations on the removal of Board members contravene the Constitution‘s separation of powers. Pp. 10-27.
(a) The Constitution provides that “[t]he executive Power shall be vested in a President of the United States of America.”
(b) Where this Court has upheld limited restrictions on the President‘s removal power, only one level of protected tenure separated the President from an officer exercising executive power. The President—or a subordinate he could remove at will—decided whether the officer‘s conduct merited removal under the good-cause standard. Here, the Act not only protects Board members from removal except for good cause, but withdraws from the President any decision on whether that good cause exists. That decision is vested in other tenured officers—the Commissioners—who are not subject to the President‘s direct control. Because the Commission cannot remove a Board member at will, the President cannot hold the Commission fully accountable for the Board‘s conduct. He can only review the Commissioner‘s determination of whether the Act‘s rigorous good-cause standard is met. And if the President disagrees with that determination, he is powerless to intervene—unless the determination is so unreasonable as to constitute “inefficiency, neglect of duty, or malfeasance in office.” Humphrey‘s Executor, supra, at 620.
This arrangement contradicts
(c) The “fact that a given law or procedure is efficient, convenient, and useful in facilitating functions of government, standing alone, will not save it if it is contrary to the Constitution.” Bowsher v. Synar, 478 U. S. 714, 736. The Act‘s multilevel tenure protections provide a blueprint for the extensive expansion of legislative power. Congress controls the salary, duties, and existence of executive offices, and only Presidential oversight can counter its influence. The Framers created a structure in which “[a] dependence on the people” would be the “primary controul on the government,” and that dependence is maintained by giving each branch “the necessary constitutional means and personal motives to resist encroachments of the others.” The Federalist No. 51, p. 349. A key “constitutional means” vested in the President was “the power of appointing, overseeing, and controlling those who execute the laws.” 1 Annals of Congress 463. While a government of “opposite and rival interests” may sometimes inhibit the smooth functioning of administration, The Federalist No. 51, at 349, “[t]he Framers recognized that, in the long term, structural protections against abuse of power were critical to preserving liberty.” Bowsher, supra, at 730. Pp. 17-21.
(d) The Government errs in arguing that, even if some constraints on the removal of inferior executive officers might violate the Constitution, the restrictions here do not. There is no construction of the Commission‘s good-cause removal power that is broad enough to avoid invalidation. Nor is the Commission‘s broad power over Board functions the equivalent of a power to remove Board members. Altering the Board‘s budget or powers is not a meaningful way to control an inferior officer; the Commission cannot supervise individual Board members if it must destroy the Board in order to fix it. Moreover, the Commission‘s power over the Board is hardly plenary, as the Board may take significant enforcement actions largely independently of the Commission. Enacting new SEC rules through the required notice and comment procedures would be a poor means of micro-managing the Board, and without certain findings, the Act forbids any general rule requiring SEC preapproval of Board actions. Finally, the Sarbanes-Oxley Act is highly unusual in committing substantial executive authority to officers protected by two layers of good-cause removal. Pp. 21-27.
4. The Board‘s appointment is consistent with the Appointments Clause. Pp. 29-33.
(a) The Board members are inferior officers whose appointment Congress may permissibly vest in a “Hea[d] of Departmen[t].” Inferior officers “are officers whose work is directed and supervised at some level” by superiors appointed by the President with the Senate‘s consent. Edmond v. United States, 520 U. S. 651, 662-663. Because the good-cause restrictions discussed above are unconstitutional and void, the Commission possesses the power to remove Board members at will, in addition to its other oversight authority. Board members are therefore directed and supervised by the Commission. Pp. 29-30.
(b) The Commission is a “Departmen[t]” under the Appointments Clause. Freytag v. Commissioner, 501 U. S. 868, 887, n. 4, specifically reserved the question whether a “principal agenc[y], such as” the SEC, is a “Departmen[t].” The Court now adopts the reasoning of the concurring Justices in Freytag, who would have concluded that the SEC is such a “Departmen[t]” because it is a freestanding component of the Executive Branch not subordinate to or contained within any other such component. This reading is consistent with the common, near-contemporary definition of a “department“; with the early practice of Congress, see
(c) The several Commissioners, and not the Chairman, are the Commission‘s “Hea[d].” The Commission‘s powers are generally vested in the Commissioners jointly, not the Chairman alone. The
537 F. 3d 667, affirmed in part, reversed in part, and remanded.
ROBERTS, C. J., delivered the opinion of the Court, in which SCALIA, KENNEDY, THOMAS, and ALITO, JJ., joined. BREYER, J., filed a dissenting opinion, in which STEVENS, GINSBURG, and SOTOMAYOR, JJ., joined.
NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
No. 08-861
FREE ENTERPRISE FUND AND BECKSTEAD AND WATTS, LLP, PETITIONERS v. PUBLIC COMPANY ACCOUNTING OVERSIGHT BOARD ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
[June 28, 2010]
CHIEF JUSTICE ROBERTS delivered the opinion of the Court.
Our Constitution divided the “powers of the new Federal Government into three defined categories, Legislative, Executive, and Judicial.” INS v. Chadha, 462 U. S. 919, 951 (1983).
Since 1789, the Constitution has been understood to empower the President to keep these officers accountable—by removing them from office, if necessary. See generally Myers v. United States, 272 U. S. 52 (1926). This Court has determined, however, that this authority is not without limit. In Humphrey‘s Executor v. United
We are asked, however, to consider a new situation not yet encountered by the Court. The question is whether these separate layers of protection may be combined. May the President be restricted in his ability to remove a principal officer, who is in turn restricted in his ability to remove an inferior officer, even though that inferior officer determines the policy and enforces the laws of the United States?
We hold that such multilevel protection from removal is contrary to
A
After a series of celebrated accounting debacles, Congress enacted the Sarbanes-Oxley Act of 2002 (or Act),
Unlike the self-regulatory organizations, however, the Board is a Government-created, Government-appointed entity, with expansive powers to govern an entire industry. Every accounting firm—both foreign and domestic—that participates in auditing public companies under the securities laws must register with the Board, pay it an annual fee, and comply with its rules and oversight.
The Board promulgates auditing and ethics standards, performs routine inspections of all accounting firms, demands documents and testimony, and initiates formal investigations and disciplinary proceedings.
Despite the provisions specifying that Board members are not Government officials for statutory purposes, the parties agree that the Board is “part of the Government” for constitutional purposes, Lebron v. National Railroad Passenger Corporation, 513 U. S. 374, 397 (1995), and that its members are “‘Officers of the United States‘” who “exercis[e] significant authority pursuant to the laws of the United States,” Buckley v. Valeo, 424 U. S. 1, 125-126 (1976) (per curiam) (quoting
The Act places the Board under the SEC‘s oversight, particularly with respect to the issuance of rules or the imposition of sanctions (both of which are subject to Commission approval and alteration).
Those procedures require a Commission finding, “on the record” and “after notice and opportunity for a hearing,” that the Board member
“(A) has willfully violated any provision of th[e] Act, the rules of the Board, or the securities laws;
“(B) has willfully abused the authority of that member; or
“(C) without reasonable justification or excuse, has failed to enforce compliance with any such provision or rule, or any professional standard by any registered public accounting firm or any associated person thereof.”
§7217(d)(3) .
Removal of a Board member requires a formal Commission order and is subject to judicial review. See
B
Beckstead and Watts, LLP, is a Nevada accounting firm registered with the Board. The Board inspected the firm, released a report critical of its auditing procedures, and
Before the District Court, petitioners argued that the Sarbanes-Oxley Act contravened the separation of powers by conferring wide-ranging executive power on Board members without subjecting them to Presidential control. Id., at 67-68. Petitioners also challenged the Act under the Appointments Clause, which requires “Officers of the United States” to be appointed by the President with the Senate‘s advice and consent.
A divided Court of Appeals affirmed. 537 F. 3d 667 (CADC 2008). It agreed that the District Court had jurisdiction over petitioners’ claims. Id., at 671. On the merits, the Court of Appeals recognized that the removal issue was “a question of first impression,” as neither that court nor this one “ha[d] considered a situation where a restriction on removal passes through two levels of control.” Id.,
Judge Kavanaugh dissented. He agreed that the case was one of first impression, id., at 698, but argued that “the double for-cause removal provisions in the [Act] combine to eliminate any meaningful Presidential control over the [Board],” id., at 697. Judge Kavanaugh also argued that Board members are not effectively supervised by the Commission and thus cannot be inferior officers under the Appointments Clause. Id., at 709-712.
We granted certiorari. 556 U. S. ____ (2009).
II
We first consider whether the District Court had jurisdiction. We agree with both courts below that the statutes providing for judicial review of Commission action did not prevent the District Court from considering petitioners’ claims.
The Sarbanes-Oxley Act empowers the Commission to review any Board rule or sanction. See
The Government reads
We do not see how petitioners could meaningfully pursue their constitutional claims under the Government‘s theory. Section 78y provides only for judicial review of Commission action, and not every Board action is encapsulated in a final Commission order or rule.
The Government suggests that petitioners could first have sought Commission review of the Board‘s “auditing standards, registration requirements, or other rules.” Brief for United States 16. But petitioners object to the Board‘s existence, not to any of its auditing standards.
Alternatively, the Government advises petitioners to raise their claims by appealing a Board sanction. Brief for United States 16-17. But the investigation of Beckstead and Watts produced no sanction, see id., at 7, n. 5; Reply Brief for Petitioners 29, n. 11 (hereinafter Reply Brief), and an uncomplimentary inspection report is not subject to judicial review, see
Petitioners’ constitutional claims are also outside the Commission‘s competence and expertise. In Thunder Basin, the petitioner‘s primary claims were statutory; “at root ... [they] ar[o]se under the Mine Act and f[e]ll squarely within the [agency‘s] expertise,” given that the agency had “extensive experience” on the issue and had “recently addressed the precise ... claims presented.” Id., at 214-215. Likewise, in United States v. Ruzicka, 329 U. S. 287 (1946), on which the Government relies, we reserved for the agency fact-bound inquiries that, even if
We therefore conclude that
III
We hold that the dual for-cause limitations on the removal of Board members contravene the Constitution‘s separation of powers.
A
The Constitution provides that “[t]he executive Power shall be vested in a President of the United States of
The removal of executive officers was discussed extensively in Congress when the first executive departments were created. The view that “prevailed, as most consonant to the text of the Constitution” and “to the requisite responsibility and harmony in the Executive Department,” was that the executive power included a power to oversee executive officers through removal; because that traditional executive power was not “expressly taken away, it remained with the President.” Letter from James Madison to Thomas Jefferson (June 30, 1789), 16 Documentary History of the First Federal Congress 893 (2004). “This Decision of 1789 provides contemporaneous and weighty evidence of the Constitution‘s meaning since many of the Members of the First Congress had taken part in framing that instrument.” Bowsher v. Synar, 478 U. S. 714, 723-724 (1986) (internal quotation marks omitted). And it soon became the “settled and well understood construction of the Constitution.” Ex parte Hennen, 13 Pet. 230, 259 (1839).
The landmark case of Myers v. United States reaffirmed the principle that
Nearly a decade later in Humphrey‘s Executor, this Court held that Myers did not prevent Congress from conferring good-cause tenure on the principal officers of
Humphrey‘s Executor did not address the removal of inferior officers, whose appointment Congress may vest in heads of departments. If Congress does so, it is ordinarily the department head, rather than the President, who enjoys the power of removal. See Myers, supra, at 119, 127; Hennen, supra, at 259-260. This Court has upheld for-cause limitations on that power as well.
In Perkins, a naval cadet-engineer was honorably discharged from the Navy because his services were no longer required. 116 U. S. 483. He brought a claim for his salary under statutes barring his peacetime discharge except by a court-martial or by the Secretary of the Navy “for misconduct.” Rev. Stat. §§1229, 1525. This Court adopted verbatim the reasoning of the Court of Claims, which had held that when Congress “vests the appointment of infe-
We again considered the status of inferior officers in Morrison. That case concerned the Ethics in Government Act, which provided for an independent counsel to investigate allegations of crime by high executive officers. The counsel was appointed by a special court, wielded the full powers of a prosecutor, and was removable by the Attorney General only “for good cause.” 487 U. S., at 663 (quoting
B
As explained, we have previously upheld limited restrictions on the President‘s removal power. In those cases, however, only one level of protected tenure separated the President from an officer exercising executive power. It was the President—or a subordinate he could remove at will—who decided whether the officer‘s conduct merited removal under the good-cause standard.
The Act before us does something quite different. It not only protects Board members from removal except for good cause, but withdraws from the President any decision on whether that good cause exists. That decision is vested instead in other tenured officers—the Commissioners—none of whom is subject to the President‘s direct control. The result is a Board that is not accountable to the President, and a President who is not responsible for the Board.
The added layer of tenure protection makes a difference. Without a layer of insulation between the Commission and the Board, the Commission could remove a Board member at any time, and therefore would be fully responsible for what the Board does. The President could then hold the Commission to account for its supervision of the Board, to the same extent that he may hold the Commission to account for everything else it does.
A second level of tenure protection changes the nature of the President‘s review. Now the Commission cannot remove a Board member at will. The President therefore cannot hold the Commission fully accountable for the Board‘s conduct, to the same extent that he may hold the
This novel structure does not merely add to the Board‘s independence, but transforms it. Neither the President, nor anyone directly responsible to him, nor even an officer whose conduct he may review only for good cause, has full control over the Board. The President is stripped of the power our precedents have preserved, and his ability to execute the laws—by holding his subordinates accountable for their conduct—is impaired.
That arrangement is contrary to
Perhaps an individual President might find advantages in tying his own hands. But the separation of powers does not depend on the views of individual Presidents, see Freytag v. Commissioner, 501 U.S. 868, 879-880 (1991), nor on whether “the encroached-upon branch approves the encroachment,” New York v. United States, 505 U.S. 144, 182 (1992). The President can always choose to restrain himself in his dealings with subordinates. He cannot, however, choose to bind his successors by diminishing their powers, nor can he escape responsibility for his choices by pretending that they are not his own.
The diffusion of power carries with it a diffusion of accountability. The people do not vote for the “Officers of the United States.”
By granting the Board executive power without the Executive‘s oversight, this Act subverts the President‘s ability to ensure that the laws are faithfully executed—as well as the public‘s ability to pass judgment on his efforts. The Act‘s restrictions are incompatible with the Constitution‘s separation of powers.
C
Respondents and the dissent resist this conclusion, portraying the Board as “the kind of practical accommodation between the Legislature and the Executive that should be permitted in a ‘workable government.‘” Metropolitan Washington Airports Authority v. Citizens for Abatement of Aircraft Noise, Inc., 501 U.S. 252, 276 (1991) (MWAA) (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring)); see, e.g., post, at 6 (opinion of BREYER, J.). According to the dissent, Congress may impose multiple levels of for-cause tenure between the President and his subordinates when it “rests agency independence upon the need for technical expertise.” Post, at 18. The Board‘s mission is said to demand both “technical competence” and “apolitical expertise,” and its powers may only be exercised by “technical professional experts.” Post, at 18 (internal quotation marks omitted). In this respect the statute creating the
No one doubts Congress‘s power to create a vast and varied federal bureaucracy. But where, in all this, is the role for oversight by an elected President? The Constitution requires that a President chosen by the entire Nation oversee the execution of the laws. And the “‘fact that a given law or procedure is efficient, convenient, and useful in facilitating functions of government, standing alone, will not save it if it is contrary to the Constitution,‘” for “‘[c]onvenience and efficiency are not the primary objectives—or the hallmarks—of democratic government.‘” Bowsher, 478 U.S., at 736 (quoting Chadha, 462 U.S., at 944).
One can have a government that functions without being ruled by functionaries, and a government that benefits from expertise without being ruled by experts. Our Constitution was adopted to enable the people to govern themselves, through their elected leaders. 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. This concern is largely absent from the dissent‘s paean to the administrative state.
For example, the dissent dismisses the importance of removal as a tool of supervision, concluding that the President‘s “power to get something done” more often depends on “who controls the agency‘s budget requests and funding, the relationships between one agency or department and another, . . . purely political factors (including Con-
In fact, the multilevel protection that the dissent endorses “provides a blueprint for extensive expansion of the legislative power.” MWAA, supra, at 277. In a system of checks and balances, “[p]ower abhors a vacuum,” and one branch‘s handicap is another‘s strength. 537 F.3d, at 695, n. 4 (Kavanaugh, J., dissenting) (internal quotation marks omitted). “Even when a branch does not arrogate power to itself,” therefore, it must not “impair another in the performance of its constitutional duties.” Loving v. United States, 517 U.S. 748, 757 (1996).5 Congress has plenary control over the salary, duties, and even existence of executive offices. Only Presidential oversight can counter its influence. That is why the Constitution vests certain powers in the President that “the Legislature has no right to diminish or modify.” 1 Annals of Cong., at 463 (J. Madison).6
Calls to abandon those protections in light of “the era‘s perceived necessity,” New York, 505 U.S., at 187, are not unusual. Nor is the argument from bureaucratic expertise limited only to the field of accounting. The failures of accounting regulation may be a “pressing national problem,” but “a judiciary that licensed extraconstitutional government with each issue of comparable gravity would, in the long run, be far worse.” Id., at 187-188. Neither respondents nor the dissent explains why the Board‘s task, unlike so many others, requires more than one layer of insulation from the President—or, for that matter, why only two. The point is not to take issue with for-cause limitations in general; we do not do that. The question here is far more modest. We deal with the unusual situa-
The President has been given the power to oversee executive officers; he is not limited, as in Harry Truman‘s lament, to “persuad[ing]” his unelected subordinates “to do what they ought to do without persuasion.” Post, at 11 (internal quotation marks omitted). In its pursuit of a “workable government,” Congress cannot reduce the Chief Magistrate to a cajoler-in-chief.
D
The United States concedes that some constraints on the removal of inferior executive officers might violate the Constitution. See Brief for United States 47. It contends, however, that the removal restrictions at issue here do not.
To begin with, the Government argues that the Commission‘s removal power over the Board is “broad,” and could be construed as broader still, if necessary to avoid invalidation. See, e.g., id., at 51, and n. 19; cf. PCAOB Brief 22-23. But the Government does not contend that simple disagreement with the Board‘s policies or priorities could constitute “good cause” for its removal. See Tr. of Oral Arg. 41-43, 45-46. Nor do our precedents suggest as much. Humphrey‘s Executor, for example, rejected a removal premised on a lack of agreement “on either the policies or the administering of the Federal Trade Commission,” because the FTC was designed to be “independent in character,” “free from ‘political domination or control,‘” and not “subject to anybody in the government” or “to the orders of the President.” 295 U.S., at 619, 625. Accord, Morrison, 487 U.S., at 693 (noting that “the congressional determination to limit the removal power of the Attorney General was essential . . . to establish the neces-
Indeed, this case presents an even more serious threat to executive control than an “ordinary” dual for-cause standard. Congress enacted an unusually high standard that must be met before Board members may be removed. A Board member cannot be removed except for willful violations of the Act, Board rules, or the securities laws; willful abuse of authority; or unreasonable failure to enforce compliance—as determined in a formal Commission order, rendered on the record and after notice and an opportunity for a hearing.
The rigorous standard that must be met before a Board member may be removed was drawn from statutes con-
Broad power over Board functions is not equivalent to the power to remove Board members. The Commission may, for example, approve the Board‘s budget,
Even if Commission power over Board activities could substitute for authority over its members, we would still reject respondents’ premise that the Commission‘s power in this regard is plenary. As described above, the Board is empowered to take significant enforcement actions, and does so largely independently of the Commission. See supra, at 3-4. Its powers are, of course, subject to some latent Commission control. See supra, at 4-5. But the Act
The Government and the dissent suggest that the Commission could govern and direct the Board‘s daily exercise of prosecutorial discretion by promulgating new SEC rules, or by amending those of the Board. Brief for United States 27; post, at 15. Enacting general rules through the required notice and comment procedures is obviously a poor means of micromanaging the Board‘s affairs. See
Finally, respondents suggest that our conclusion is contradicted by the past practice of Congress. But the Sarbanes-Oxley Act is highly unusual in committing substantial executive authority to officers protected by two layers of for-cause removal—including at one level a sharply circumscribed definition of what constitutes “good
“Perhaps the most telling indication of the severe constitutional problem with the PCAOB is the lack of historical precedent for this entity. Neither the majority opinion nor the PCAOB nor the United States as intervenor has located any historical analogues for this novel structure. They have not identified any independent agency other than the PCAOB that is appointed by and removable only for cause by another independent agency.” 537 F.3d, at 669.
The dissent here suggests that other such positions might exist, and complains that we do not resolve their status in this opinion. Post, at 23-31. The dissent itself, however, stresses the very size and variety of the Federal Government, see post, at 7-8, and those features discourage general pronouncements on matters neither briefed nor argued here. In any event, the dissent fails to support its premonitions of doom; none of the positions it identifies are similarly situated to the Board. See post, at 28-31.
For example, many civil servants within independent agencies would not qualify as “Officers of the United States,” who “exercis[e] significant authority pursuant to the laws of the United States,” Buckley, 424 U.S., at 126.9 The parties here concede that Board members are executive “Officers,” as that term is used in the Constitution.
Nor do the employees referenced by the dissent enjoy the same significant and unusual protections from Presidential oversight as members of the Board. Senior or policymaking positions in government may be excepted from the competitive service to ensure Presidential control, see
Finally, the dissent wanders far afield when it suggests that today‘s opinion might increase the President‘s author-
There is no reason for us to address whether these positions identified by the dissent, or any others not at issue in this case, are so structured as to infringe the President‘s constitutional authority. Nor is there any substance to the dissent‘s concern that the “work of all these various officials” will “be put on hold.” Post, at 31. As the judgment in this case demonstrates, restricting certain officers to a single level of insulation from the President affects the conditions under which those officers might some day be removed, and would have no effect, absent a congressional determination to the contrary, on the validity of any officer‘s continuance in office. The only issue in this case is whether Congress may deprive the President of adequate control over the Board, which is the regulator of first resort and the primary law enforcement authority for a vital sector of our economy. We hold that it cannot.
IV
Petitioners’ complaint argued that the Board‘s “freedom from Presidential oversight and control” rendered it “and all power and authority exercised by it” in violation of the
“Generally speaking, when confronting a constitutional flaw in a statute, we try to limit the solution to the problem,” severing any “problematic portions while leaving the remainder intact.” Ayotte v. Planned Parenthood of Northern New Eng., 546 U.S. 320, 328-329 (2006). Because “[t]he unconstitutionality of a part of an Act does not necessarily defeat or affect the validity of its remaining provisions,” Champlin Refining Co. v. Corporation Comm‘n of Okla., 286 U.S. 210, 234 (1932), the “normal rule” is “that partial, rather than facial, invalidation is the required course,” Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 504 (1985). Putting to one side petitioners’ Appointments Clause challenges (addressed below), the existence of the Board does not violate the separation of powers, but the substantive removal restrictions imposed by
The Sarbanes-Oxley Act remains “fully operative as a law” with these tenure restrictions excised. New York, 505 U.S., at 186 (quoting Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684 (1987)). We therefore must sustain its remaining provisions “[u]nless it is evident that the Legis-
It is true that the language providing for good-cause removal is only one of a number of statutory provisions that, working together, produce a constitutional violation. In theory, perhaps, the Court might blue-pencil a sufficient number of the Board‘s responsibilities so that its members would no longer be “Officers of the United States.” Or we could restrict the Board‘s enforcement powers, so that it would be a purely recommendatory panel. Or the Board members could in future be made removable by the President, for good cause or at will. But such editorial freedom—far more extensive than our holding today—belongs to the Legislature, not the Judiciary. Congress of course remains free to pursue any of these options going forward.
V
Petitioners raise three more challenges to the Board under the Appointments Clause. None has merit.
First, petitioners argue that Board members are principal officers requiring Presidential appointment with the Senate‘s advice and consent. We held in Edmond v. United States, 520 U.S. 651, 662-663 (1997), that “[w]hether one is an ‘inferior’ officer depends on whether he has a superior,” and that ” ‘inferior officers’ are officers whose work is directed and supervised at some level” by other officers appointed by the President with the Senate‘s
But, petitioners argue, the Commission is not a “Departmen[t]” like the “Executive departments” (e.g., State, Treasury, Defense) listed in
Respondents urge us to adopt this reasoning as to those entities not addressed by our opinion in Freytag, see Brief for United States 37-39; PCAOB Brief 30-33, and we do. Respondents’ reading of the Appointments Clause is consistent with the common, near-contemporary definition of a “department” as a “separate allotment or part of business; a distinct province, in which a class of duties are allotted to a particular person.” 1 N. Webster, American Dictionary of the English Language (1828) (def. 2) (1995 facsimile ed.). It is also consistent with the early practice of Congress, which in 1792 authorized the Postmaster General to appoint “an assistant, and deputy postmasters,
But petitioners are not done yet. They argue that the full Commission cannot constitutionally appoint Board members, because only the Chairman of the Commission is the Commission‘s “Hea[d].”12 The Commission‘s powers, however, are generally vested in the Commissioners jointly, not the Chairman alone. See, e.g.,
As a constitutional matter, we see no reason why a multimember body may not be the “Hea[d]” of a “Departmen[t]” that it governs. The Appointments Clause necessarily contemplates collective appointments by the “Courts of Law,”
In light of the foregoing, petitioners are not entitled to broad injunctive relief against the Board‘s continued operations. But they are entitled to declaratory relief sufficient to ensure that the reporting requirements and auditing standards to which they are subject will be enforced only by a constitutional agency accountable to the Executive. See Bowsher, 478 U.S., at 727, n. 5 (concluding that a separation of powers violation may create a “here-and-now” injury that can be remedied by a court (internal quotation marks omitted)).
*
*
*
The Constitution that makes the President accountable to the people for executing the laws also gives him the power to do so. That power includes, as a general matter, the authority to remove those who assist him in carrying out his duties. Without such power, the President could not be held fully accountable for discharging his own responsibilities; the buck would stop somewhere else. Such diffusion of authority “would greatly diminish the intended and necessary responsibility of the chief magistrate himself.” The Federalist No. 70, at 478.
While we have sustained in certain cases limits on the President‘s removal power, the Act before us imposes a new type of restriction—two levels of protection from removal for those who nonetheless exercise significant executive power. Congress cannot limit the President‘s authority in this way.
The judgment of the United States Court of Appeals for the District of Columbia Circuit is affirmed in part and
It is so ordered.
The Court holds unconstitutional a statute providing that the Securities and Exchange Commission can remove members of the Public Company Accounting Oversight Board from office only for cause. It argues that granting the “inferior officer[s]” on the Accounting Board “more than one level of good-cause protection . . . contravenes the President‘s ‘constitutional obligation to ensure the faithful execution of the laws.‘” Ante, at 2. I agree that the Accounting Board members are inferior officers. See ante, at 28-29. But in my view the statute does not significantly interfere with the President‘s “executive Power.”
I
A
The legal question before us arises at the intersection of two general constitutional principles. On the one hand, Congress has broad power to enact statutes “necessary and proper” to the exercise of its specifically enumerated
On the other hand, the opening sections of Articles I, II, and III of the Constitution separately and respectively vest “all legislative Powers” in Congress, the “executive Power” in the President, and the “judicial Power” in the Supreme Court (and such “inferior Courts as Congress may from time to time ordain and establish“). In doing so, these provisions imply a structural separation-of-powers principle. See, e.g., Miller v. French, 530 U. S. 327, 341-342 (2000). And that principle, along with the instruction in
But neither of these two principles is absolute in its application to removal cases. The Necessary and Proper Clause does not grant Congress power to free all Executive Branch officials from dismissal at the will of the President. Id. Nor does the separation-of-powers principle grant the President an absolute authority to remove any and all Executive Branch officials at will. Rather, depending on, say, the nature of the office, its function, or its subject matter, Congress sometimes may, consistent with the Constitution, limit the President‘s authority to remove an officer from his post. See Humphrey‘s Executor v. United States, 295 U. S. 602 (1935), overruling in part Myers, supra; Morrison v. Olson, 487 U. S. 654 (1988). And we must here decide whether the circumstances surrounding the statute at issue justify such a limitation.
In answering the question presented, we cannot look to more specific constitutional text, such as the text of the Appointments Clause or the Presentment Clause, upon which the Court has relied in other separation-of-powers cases. See, e.g., Chadha, supra, at 946; Buckley, supra, at 124-125. That is because, with the exception of the general “vesting” and “take care” language, the Constitution is completely “silent with respect to the power of removal from office.” Ex parte Hennen, 13 Pet. 230, 258 (1839); see also Morrison, supra, at 723 (SCALIA, J., dissenting) (“There is, of course, no provision in the Constitution stating who may remove executive officers . . . “).
Nor does history offer significant help. The President‘s power to remove Executive Branch officers “was not discussed in the Constitutional Convention.” Myers, supra, at 109-110. The First Congress enacted federal statutes
Nor does this Court‘s precedent fully answer the question presented. At least it does not clearly invalidate the provision in dispute. See Part II-C, infra. In Myers, supra, the Court invalidated—for the first and only time—a congressional statute on the ground that it unduly limited the President‘s authority to remove an Executive Branch official. But soon thereafter the Court expressly disapproved most of Myers’ broad reasoning. See Humphrey‘s Executor, 295 U. S., at 626-627, overruling in part Myers, supra; Wiener v. United States, 357 U. S. 349, 352 (1958) (stating that Humphrey‘s Executor “explicitly ‘disapproved’ of much of the reasoning in Myers“). Moreover, the Court has since said that “the essence of the decision in Myers was the judgment that the Constitution prevents Congress from ‘draw[ing] to itself . . . the power to remove or the right to participate in the exercise of that power.‘” Morrison, supra, at 686 (emphasis added). And that feature of the statute—a feature that would aggrandize the power of Congress—is not present here. Congress has not granted itself any role in removing the members of the Accounting Board. Cf. Freytag, 501 U. S., at 878 (“separation-of-powers jurisprudence generally focuses on the danger of one branch‘s aggrandizing its power at the expense of another branch” (emphasis added)); Buckley, 424 U. S., at 129 (same); Schor, 478 U. S., at 856 (same); Bowsher v. Synar, 478 U. S. 714, 727 (1986) (same). Compare Myers, supra, (striking down statute where Congress granted itself removal authority over Executive Branch official), with Humphrey‘s Executor, supra, (upholding statute where such aggrandizing was absent); Wiener, supra (same); Morrison, supra (same).
In short, the question presented lies at the intersection of two sets of conflicting, broadly framed constitutional principles. And no text, no history, perhaps no precedent provides any clear answer. Cf. Chicago v. Morales, 527 U. S. 41, 106 (1999) (THOMAS, J., joined by Rehnquist, C. J., and SCALIA, J., dissenting) (expressing the view that “this Court” is “most vulnerable” when “it deals with judge-made constitutional law” that lacks “roots in the
B
When previously deciding this kind of nontextual question, the Court has emphasized the importance of examining how a particular provision, taken in context, is likely to function. Thus, in Crowell v. Benson, 285 U. S. 22, 53 (1932), a foundational separation-of-powers case, the Court said that “regard must be had, as in other cases where constitutional limits are invoked, not to mere matters of form, but to the substance of what is required.” The Court repeated this injunction in Schor and again in Morrison. See Schor, supra, at 854 (stating that the Court must look “‘beyond form to the substance of what’ Congress has done“); Morrison, 487 U. S., at 689-690 (“The analysis contained in our removal cases is designed not to define rigid categories of those officials who may or may not be removed at will by the President,” but rather asks whether, given the “functions of the officials in question,” a removal provision “interfere[s] with the President‘s exercise of the ‘executive power‘” (emphasis added)). The Court has thereby written into law Justice Jackson‘s wise perception that “the Constitution . . . contemplates that practice will integrate the dispersed powers into a workable government.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 635 (1952) (opinion concurring in judgment) (emphasis added). See also ibid. (“The actual art of governing under our Constitution does not and cannot conform to judicial definitions of the power of any of its branches based on isolated clauses or even single Articles torn from context“).
It is not surprising that the Court in these circumstances has looked to function and context, and not to bright-line rules. For one thing, that approach embodies the intent of the Framers. As Chief Justice Marshall long
For another, a functional approach permits Congress and the President the flexibility needed to adapt statutory law to changing circumstances. That is why the “powers conferred upon the Federal Government by the Constitution were phrased in language broad enough to allow for the expansion of the Federal Government‘s role” over time. New York v. United States, 505 U. S. 144, 157 (1992). Indeed, the Federal Government at the time of the founding consisted of about 2,000 employees and served a population of about 4 million. See Kaufman, The Growth of the Federal Personnel System, in The Federal Government Service 7, 8 (W. Sayre 2d ed. 1965); Dept. of Commerce, Census Bureau, Historical Statistics of the United States: Colonial Times to 1970, pt. 1, p. 8 (1975). Today, however, the Federal Government employs about 4.4 million workers who serve a Nation of more than 310 million people living in a society characterized by rapid technological, economic, and social change. See Office of Management and Budget, Analytical Perspectives, Budget of the U. S. Government, Fiscal Year 2010, p. 368 (2009).
Federal statutes now require or permit Government officials to provide, regulate, or otherwise administer, not only foreign affairs and defense, but also a wide variety of such subjects as taxes, welfare, social security, medicine, pharmaceutical drugs, education, highways, railroads, electricity, natural gas, nuclear power, financial instruments, banking, medical care, public health and safety, the environment, fair employment practices, consumer protection and much else besides. Those statutes create a host of different organizational structures. Sometimes
The upshot is that today vast numbers of statutes governing vast numbers of subjects, concerned with vast numbers of different problems, provide for, or foresee, their execution or administration through the work of administrators organized within many different kinds of administrative structures, exercising different kinds of administrative authority, to achieve their legislatively mandated objectives. And, given the nature of the Government‘s work, it is not surprising that administrative
The functional approach required by our precedents recognizes this administrative complexity and, more importantly, recognizes the various ways presidential power operates within this context—and the various ways in which a removal provision might affect that power. As human beings have known ever since Ulysses tied himself to the mast so as safely to hear the Sirens’ song, sometimes it is necessary to disable oneself in order to achieve a broader objective. Thus, legally enforceable commitments—such as contracts, statutes that cannot instantly be changed, and, as in the case before us, the establishment of independent administrative institutions—hold the potential to empower precisely because of their ability to constrain. If the President seeks to regulate through impartial adjudication, then insulation of the adjudicator from removal at will can help him achieve that goal. And to free a technical decisionmaker from the fear of removal without cause can similarly help create legitimacy with respect to that official‘s regulatory actions by helping to insulate his technical decisions from nontechnical political pressure.
Neither is power always susceptible to the equations of elementary arithmetic. A rule that takes power from a President‘s friends and allies may weaken him. But a rule that takes power from the President‘s opponents may strengthen him. And what if the rule takes power from a functionally neutral independent authority? In that case, it is difficult to predict how the President‘s power is affected in the abstract.
These practical reasons not only support our precedents’ determination that cases such as this should examine the specific functions and context at issue; they also indicate that judges should hesitate before second-guessing a “for cause” decision made by the other branches. See, e.g., Chadha, 462 U. S., at 944 (applying a “presumption that
There is no indication that the two comparatively more expert branches were divided in their support for the “for cause” provision at issue here. In this case, the Act embodying the provision was passed by a vote of 423 to 3 in the House of Representatives and a by vote of 99 to 0 in the Senate. 148 Cong. Rec. 14458, 14505 (2002). The creation of the Accounting Board was discussed at great length in both bodies without anyone finding in its structure any constitutional problem. See id., at 12035-12037, 12112-12132, 12315-12323, 12372-12377, 12488-12508, 12529-12534, 12612-12618, 12673-12680, 12734-12751, 12915-12960, 13347-13354, 14439-14458, 14487-14506. The President signed the Act. And, when he did so, he issued a signing statement that critiqued multiple provisions of the Act but did not express any separation-of-powers concerns. See President‘s Statement on Signing the Sarbanes-Oxley Act of 2002, 30 Weekly Comp. of Pres. Doc. 1286 (2002). Cf. ABA, Report of Task Force on Presidential Signing Statements and the Separation of Powers Doctrine 15 (2006), online at http://www.signingstatementsaba_final_signing_statements_recommendations-report_7-24-06.pdf (all Internet materials as visited June 24, 2010, and available in Clerk of Court‘s case file) (noting that President Bush asserted “over 500” “constitutional objections” through signing statements “in his first term,” including 82 “related to his theory of the ‘unitary executive‘“).
Thus, here, as in similar cases, we should decide the constitutional question in light of the provision‘s practical functioning in context. And our decision should take account of the Judiciary‘s comparative lack of institutional
II
A
To what extent then is the Act‘s “for cause” provision likely, as a practical matter, to limit the President‘s exercise of executive authority? In practical terms no “for cause” provision can, in isolation, define the full measure of executive power. This is because a legislative decision to place ultimate administrative authority in, say, the Secretary of Agriculture rather than the President, the way in which the statute defines the scope of the power the relevant administrator can exercise, the decision as to who controls the agency‘s budget requests and funding, the relationships between one agency or department and another, as well as more purely political factors (including Congress’ ability to assert influence) are more likely to affect the President‘s power to get something done. That is why President Truman complained that “‘the powers of the President amount to‘” bringing “‘people in and try[ing] to persuade them to do what they ought to do without persuasion.‘” C. Rossiter, The American Presidency 154 (2d rev. ed. 1960). And that is why scholars have written that the President “is neither dominant nor powerless” in his relationships with many Government entities, “whether denominated executive or independent.” Strauss, The Place of Agencies in Government: Separation of Powers and the Fourth Branch, 84 Colum. L. Rev. 573, 583 (1984) (hereinafter Strauss). Those entities “are all subject to presidential direction in significant aspects of their functioning, and [are each] able to resist presidential direction in others.” Ibid. (emphasis added).
Indeed, notwithstanding the majority‘s assertion that the removal authority is “the key” mechanism by which the President oversees inferior officers in the independent agencies, ante, at 20, it appears that no President has ever
But even if we put all these other matters to the side, we should still conclude that the “for cause” restriction before us will not restrict presidential power significantly. For one thing, the restriction directly limits, not the President‘s power, but the power of an already independent agency. The Court seems to have forgotten that fact when it identifies its central constitutional problem: According to the Court, the President “is powerless to intervene” if he has determined that the Board members’ “conduct merit[s] removal” because “[t]hat decision is vested instead in other tenured officers—the Commissioners—none of whom is subject to the President‘s direct control.” Ante, at 14-15. But so long as the President is legitimately foreclosed from removing the Commissioners except for cause (as the majority assumes), nullifying the Commission‘s power to remove Board members only for cause will not resolve the problem the Court has identified: The President will still be “powerless to intervene” by removing the Board members if the Commission reasonably decides not to do so.
In other words, the Court fails to show why two layers of “for cause” protection—Layer One insulating the Commissioners from the President, and Layer Two insulating the Board from the Commissioners—impose any more serious limitation upon the President‘s powers than one layer. Consider the four scenarios that might arise:
- The President and the Commission both want to
keep a Board member in office. Neither layer is relevant. - The President and the Commission both want to dismiss a Board member. Layer Two stops them both from doing so without cause. The President‘s ability to remove the Commission (Layer One) is irrelevant, for he and the Commission are in agreement.
- The President wants to dismiss a Board member, but the Commission wants to keep the member. Layer One allows the Commission to make that determination notwithstanding the President‘s contrary view. Layer Two is irrelevant because the Commission does not seek to remove the Board member.
- The President wants to keep a Board member, but the Commission wants to dismiss the Board member. Here, Layer Two helps the President, for it hinders the Commission‘s ability to dismiss a Board member whom the President wants to keep in place.
Thus, the majority‘s decision to eliminate only Layer Two accomplishes virtually nothing. And that is because a removal restriction‘s effect upon presidential power depends not on the presence of a “double-layer” of for-cause removal, as the majority pretends, but rather on the real-world nature of the President‘s relationship with the Commission. If the President confronts a Commission that seeks to resist his policy preferences—a distinct possibility when, as here, a Commission‘s membership must reflect both political parties,
In order to avoid this elementary logic, the Court creates two alternative scenarios. In the first, the Commission and the President both want to remove a Board member, but have varying judgments as to whether they have good “cause” to do so—i.e., the President and the Commission both conclude that a Board member should be removed, but disagree as to whether that conclusion (which they have both reached) is reasonable. Ante, at 14-15. In the second, the President wants to remove a Board member and the Commission disagrees; but, notwithstanding its freedom to make reasonable decisions independent of the President (afforded by Layer One), the Commission (while apparently telling the President that it agrees with him and would like to remove the Board member) uses Layer Two as an “excuse” to pursue its actual aims—an excuse which, given Layer One, it does not need. Ante, at 15, n. 4.
Both of these circumstances seem unusual. I do not know if they have ever occurred. But I do not deny their logical possibility. I simply doubt their importance. And the fact that, with respect to the President‘s power, the double layer of for-cause removal sometimes might help, sometimes might hurt, leads me to conclude that its overall effect is at most indeterminate.
But once we leave the realm of hypothetical logic and view the removal provision at issue in the context of the entire Act, its lack of practical effect becomes readily apparent. That is because the statute provides the Commission with full authority and virtually comprehensive control over all of the Board‘s functions. Those who created the Accounting Board modeled it, in terms of structure and authority, upon the semiprivate regulatory bodies prevalent in the area of financial regulation, such as the New York Stock Exchange and other similar self-regulating organizations. See generally Brief for Former Chairmen of the SEC as Amici Curiae (hereinafter Brief
Adhering to that model, the statute here gives the Accounting Board the power to adopt rules and standards “relating to the preparation of audit reports“; to adjudicate disciplinary proceedings involving accounting firms that fail to follow these rules; to impose sanctions; and to engage in other related activities, such as conducting inspections of accounting firms registered as the law requires and investigations to monitor compliance with the rules and related legal obligations. See
- No Accounting Board rule takes effect unless and until the Commission approves it,
§ 7217(b)(2) ; - The Commission may “abrogat[e], delet[e] or ad[d] to” any rule or any portion of a rule promulgated by the Accounting Board whenever, in the Commission‘s view, doing so “further[s] the purposes” of the securities and accounting-oversight laws,
§ 7217(b)(5) ; - The Commission may review any sanction the Board imposes and “enhance, modify, cancel, reduce, or require the remission of” that sanction if it finds the Board‘s action not “appropriate,”
§§ 7215(e) ,7217(c)(3) ; - The Commission may promulgate rules restricting or directing the Accounting Board‘s conduct of all inspections and investigations,
§§ 7211(c)(3) ,7214(h) ,7215(b)(1)-(4) ; - The Commission may itself initiate any investigation or promulgate any rule within the Accounting Board‘s purview,
§ 7202 , and may also remove anyAccounting Board member who has unreasonably “failed to enforce compliance with” the relevant “rule[s], or any professional standard,” § 7217(d)(3)(C) (emphasis added); - The Commission may at any time “relieve the Board of any responsibility to enforce compliance with any provision” of the Act, the rules, or professional standards if, in the Commission‘s view, doing so is in “the public interest,”
§ 7217(d)(1) (emphasis added).
As these statutory provisions make clear, the Court is simply wrong when it says that “the Act nowhere gives the Commission effective power to start, stop, or alter” Board investigations. Ante, at 23-24. On the contrary, the Commission‘s control over the Board‘s investigatory and legal functions is virtually absolute. Moreover, the Commission has general supervisory powers over the Accounting Board itself: It controls the Board‘s budget,
What is left? The Commission‘s inability to remove a Board member whose perfectly reasonable actions cause the Commission to overrule him with great frequency? What is the practical likelihood of that occurring, or, if it does, of the President‘s serious concern about such a matter? Everyone concedes that the President‘s control over the Commission is constitutionally sufficient. See Humphrey‘s Executor, 295 U. S. 602; Wiener, 357 U. S. 349; ante, at 1-2. And if the President‘s control over the Commission is sufficient, and the Commission‘s control over the Board is virtually absolute, then, as a practical matter, the President‘s control over the Board should prove sufficient as well.
B
At the same time, Congress and the President had good reason for enacting the challenged “for cause” provision. First and foremost, the Board adjudicates cases. See
Moreover, in addition to their adjudicatory functions, the Accounting Board members supervise, and are themselves, technical professional experts. See
In sum, Congress and the President could reasonably have thought it prudent to insulate the adjudicative Board members from fear of purely politically based removal. Cf. Civil Service Comm‘n v. Letter Carriers, 413 U. S. 548, 565 (1973) (“[I]t is not only important that the Government and its employees in fact avoid practicing political justice, but it is also critical that they appear to the public to be avoiding it, if confidence in the system of representative Government is not to be eroded to a disastrous extent“). And in a world in which we count on the Federal Government to regulate matters as complex as, say, nuclear-power production, the Court‘s assertion that we should simply learn to get by “without being” regulated “by ex-
C
Where a “for cause” provision is so unlikely to restrict presidential power and so likely to further a legitimate institutional need, precedent strongly supports its constitutionality. First, in considering a related issue in Nixon v. Administrator of General Services, 433 U. S. 425 (1977), the Court made clear that when “determining whether the Act disrupts the proper balance between the coordinate branches, the proper inquiry focuses on the extent to which it prevents the Executive Branch from accomplishing its constitutionally assigned functions.” Id., at 443. The Court said the same in Morrison, where it upheld a restriction on the President‘s removal power. 487 U. S., at 691 (“[T]he real question is whether the removal restrictions are of such a nature that they impede the President‘s ability to perform his constitutional duty, and the functions of the officials in question must be analyzed in that light“). Here, the removal restriction may somewhat diminish the Commission‘s ability to control the Board, but it will have little, if any, negative effect in respect to the President‘s ability to control the Board, let alone to coordinate the Executive Branch. See Part II-A, supra. Indeed, given Morrison, where the Court upheld a restriction that significantly interfered with the President‘s important historic power to control criminal prosecutions, a “purely executive” function, 487 U. S., at 687-689, the constitutionality of the present restriction would seem to follow a fortiori.
Second, as previously pointed out, this Court has repeatedly upheld “for cause” provisions where they restrict the President‘s power to remove an officer with adjudicatory responsibilities. Compare Humphrey‘s Executor, 295 U. S., at 623-628; Wiener, 357 U. S., at 355; Schor, 478
Third, consider how several cases fit together in a way that logically compels a holding of constitutionality here. In Perkins, 116 U. S., at 483, 484—which was reaffirmed in Myers, 272 U. S., at 127 and in Morrison, supra, at 689, n. 27—the Court upheld a removal restriction limiting the authority of the Secretary of the Navy to remove a “cadet-engineer,” whom the Court explicitly defined as an “inferior officer.” The Court said,
“We have no doubt that when Congress, by law, vests the appointment of inferior officers in the heads of Departments it may limit and restrict the power of removal as it deems best for the public interest. The constitutional authority in Congress to thus vest the appointment implies authority to limit, restrict, and regulate the removal by such laws as Congress may enact in relation to the officers so appointed.” Perkins, supra, at 485 (emphasis added; internal quotation marks omitted).
See also Morrison, supra, at 723-724 (SCALIA, J., dissenting) (agreeing that the power to remove an “inferior offi
In Humphrey‘s Executor, the Court held that Congress may constitutionally limit the President‘s authority to remove certain principal officers, including heads of departments. 295 U. S., at 627-629. And the Court has consistently recognized the validity of that holding. See Wiener, supra; United States v. Nixon, 418 U. S. 683, 706 (1974); Buckley, 424 U. S., at 133-136; Chadha, 462 U. S., at 953, n. 16; Bowsher, 478 U. S., at 725-726; Morrison, supra, at 686-693; Mistretta v. United States, 488 U. S. 361, 410-411 (1989).
And in Freytag, 501 U. S., at 921, JUSTICE SCALIA stated in a concurring opinion written for four Justices, including JUSTICE KENNEDY, that “adjusting the remainder of the Constitution to compensate for Humphrey‘s Executor is a fruitless endeavor.” In these Justices’ view, the Court should not create a separate constitutional jurisprudence for the “independent agencies.” That being so, the law should treat their heads as it treats other Executive Branch heads of departments. Consequently, as the Court held in Perkins, Congress may constitutionally “limit and restrict” the Commission‘s power to remove those whom they appoint (e.g., the Accounting Board members).
Fourth, the Court has said that “[o]ur separation-of-powers jurisprudence generally focuses on the danger of one branch‘s aggrandizing its power at the expense of another branch.” Freytag, supra, at 878 (emphasis added); accord, Buckley, supra, at 129; Schor, supra, at 856; Morrison, supra, at 686; cf. Bowsher, supra. Indeed, it has added that “the essence of the decision in Myers,” which is the only one of our cases to have struck down a “for cause” removal restriction, “was the judgment that the Constitution prevents Congress from ‘draw[ing] to itself . . . the power to remove.‘” Morrison, supra, at 686 (quoting
In sum, the Court‘s prior cases impose functional criteria that are readily met here. Once one goes beyond the Court‘s elementary arithmetical logic (i.e., “one plus one is greater than one“) our precedent virtually dictates a holding that the challenged “for cause” provision is constitutional.
D
We should ask one further question. Even if the “for cause” provision before us does not itself significantly interfere with the President‘s authority or aggrandize Congress’ power, is it nonetheless necessary to adopt a bright-line rule forbidding the provision lest, through a series of such provisions, each itself upheld as reasonable, Congress might undercut the President‘s central constitutional role? Cf. Strauss 625-626. The answer to this question is that no such need has been shown. Moreover, insofar as the Court seeks to create such a rule, it fails. And in failing it threatens a harm that is far more serious than any imaginable harm this “for cause” provision might bring about.
The Court fails to create a bright-line rule because of considerable uncertainty about the scope of its holding—an uncertainty that the Court‘s opinion both reflects and generates. The Court suggests, for example, that its rule may not apply where an inferior officer “perform[s] adjudicative . . . functions.” Cf. ante, at 26, n. 10. But the Accounting Board performs adjudicative functions. See
The Court further seems to suggest that its holding may not apply to inferior officers who have a different relationship to their appointing agents than the relationship between the Commission and the Board. See ante, at 22, 24-26. But the only characteristic of the “relationship” between the Commission and the Board that the Court apparently deems relevant is that the relationship includes two layers of for-cause removal. See, e.g., ante, at 23 (“Broad power over Board functions is not equivalent to the power to remove Board members“). Why then would any different relationship that also includes two layers of for-cause removal survive where this one has not? Cf. Part II-A, supra (describing the Commission‘s near absolute control over the Board). In a word, what differences are relevant? If the Court means to state that its holding in fact applies only where Congress has “enacted an unusually high standard” of for-cause removal—and does not otherwise render two layers of “ordinary” for-cause re
The Court begins to reveal the practical problems inherent in its double for-cause rule when it suggests that its rule may not apply to “the civil service.” Ante, at 26. The “civil service” is defined by statute to include “all appointive positions in . . . the Government of the United States,” excluding the military, but including all civil “officer[s]” up to and including those who are subject to Senate confirmation.
But even if I assume that the majority categorically excludes the competitive service from the scope of its new rule, cf. ante, at 26 (leaving this question open), the exclusion would be insufficient. This is because the Court‘s
The problem is not simply that the term “inferior officer” is indefinite but also that efforts to define it inevitably
Consider the definitional conclusion that the Department of Justice more recently reached: An “inferior officer” is anyone who holds a “continuing” position and who is “invested by legal authority with a portion of the sovereign powers of the federal Government,” including, inter alia, the power to “arrest criminals,” “seize persons or property,” “issue regulations,” “issue authoritative legal opinions,” “conduc[t] civil litigation,” “collec[t] revenue,” represent “the United States to foreign nations,” “command” military force, or enter into “contracts” on behalf “of the nation.” OLC Memo 1, 4, 12-13, 15-16 (internal quotation marks omitted; emphasis added).
And consider the fact that those whom this Court has held to be “officers” include: (1) a district court clerk, Hennen, 13 Pet., at 258; (2) “thousands of clerks in the Departments of the Treasury, Interior and the othe[r]” departments, Germaine, supra, at 511, who are responsible for “the records, books, and papers appertaining to the office,” Hennen, supra, at 259; (3) a clerk to “the assistant treasurer” stationed “at Boston,” United States v. Hartwell, 6 Wall. 385, 392 (1868); (4 & 5) an “assistant-surgeon” and a “cadet-engineer” appointed by the Secretary of the Navy, United States v. Moore, 95 U. S. 760, 762 (1878); Perkins, 116 U. S., at 484; (6) election monitors,
Reading the criteria above as stringently as possible, I still see no way to avoid sweeping hundreds, perhaps thousands of high level government officials within the scope of the Court‘s holding, putting their job security and their administrative actions and decisions constitutionally at risk. To make even a conservative estimate, one would have to begin by listing federal departments, offices, bureaus and other agencies whose heads are by statute removable only “for cause.” I have found 48 such agencies, which I have listed in Appendix A, infra. Then it would be necessary to identify the senior officials in those agencies (just below the top) who themselves are removable only “for cause.” I have identified 573 such high-ranking officials, whom I have listed in Appendix B, infra. They include most of the leadership of the Nuclear Regulatory Commission (including that agency‘s executive director as well as the directors of its Office of Nuclear Reactor Regulation and Office of Enforcement), virtually all of the leadership of the Social Security Administration, the
This list is a conservative estimate because it consists only of career appointees in the Senior Executive Service (SES), see
The potential list of those whom today‘s decision affects is yet larger. As JUSTICE SCALIA has observed, administrative law judges (ALJs) “are all executive officers.” Freytag, 501 U. S., at 910 (opinion concurring in part and concurring in judgment) (emphasis deleted); see also, e.g., id., at 881 (majority opinion) (“[A] [tax-court] special trial judge is an ‘inferior Officer‘“); Edmond, supra, at 654 (“[M]ilitary trial and appellate judges are [inferior] officers“). But cf. ante, at 26, n. 10. And ALJs are each removable “only for good cause established and determined by the Merit Systems Protection Board,”
My research reflects that the Federal Government relies on 1,584 ALJs to adjudicate administrative matters in over 25 agencies. See Appendix C, infra; see also Memorandum of Juanita Love, Office of Personnel Management, to Supreme Court Library (May 28, 2010) (available in Clerk of Court‘s case file). These ALJs adjudicate Social Security benefits, employment disputes, and other matters highly important to individuals. Does every losing party before an ALJ now have grounds to appeal on the basis that the decision entered against him is unconstitutional? Cf. ante, at 26, n. 10 (“[O]ur holding also does not address” this question).
And what about the military? Commissioned military officers “are ‘inferior officers.‘” Weiss, 510 U. S., at 182 (Souter, J., concurring); id., at 169-170 (majority opinion). There are over 210,000 active-duty commissioned officers
The majority might simply say that the military is different. But it will have to explain how it is different. It is difficult to see why the Constitution would provide a President who is the military‘s “commander-in-chief,” Art. II, §2, cl. 1, with less authority to remove “inferior” military “officers” than to remove comparable civil officials. See Barron & Lederman, The Commander in Chief at the Lowest Ebb—A Constitutional History, 121 Harv. L. Rev. 941, 1102-1106 (2008) (describing President‘s “superintendence prerogative” over the military). Cf. ante, at 26-27 (not “expressing any view whatever” as to whether military officers’ authority is now unconstitutional).
The majority sees “no reason . . . to address whether” any of “these positions,” “or any others,” might be deemed unconstitutional under its new rule, preferring instead to leave these matters for a future case. Ante, at 27. But what is to happen in the meantime? Is the work of all these various officials to be put on hold while the courts of appeals determine whether today‘s ruling applies to them? Will Congress have to act to remove the “for cause” provisions? Cf. Buckley, 424 U. S., at 142-143. Can the President then restore them via executive order? And, still, what about the military? A clearer line would help avoid these practical difficulties.
The majority asserts that its opinion will not affect the Government‘s ability to function while these many ques
Nor is it clear that courts will always be able to cure such a constitutional defect merely by severing an offending removal provision. For a court‘s “ability to devise [such] a judicial remedy . . . often depends on how clearly” the “background constitutional rules at issue” have been “articulated“; severance will be unavailable “in a murky constitutional context,” which is precisely the context that the Court‘s new rule creates. Ayotte v. Planned Parenthood of Northern New Eng., 546 U. S. 320, 329, 330 (2006). Moreover, “the touchstone” of the severability analysis “is legislative intent,” id., at 330, and Congress has repeatedly expressed its judgment “over the last century that it is in the best interest of the country, indeed essential, that federal service should depend upon meritorious performance rather than political service,” Civil Service Comm‘n, 413 U. S., at 557; see also Bush v. Lucas, 462 U. S. 367, 380-388 (1983) (describing the history of “Congressional attention to the problem of politically-motivated removals“). And so it may well be that courts called upon to resolve the many questions the majority‘s opinion raises will not only apply the Court‘s new rule to its logical conclusion, but will also determine that the only available remedy to certain double for-cause problems is to invalidate entire agencies.
Thus, notwithstanding the majority‘s assertions to the contrary, the potential consequences of today‘s holding are worrying. The upshot, I believe, is a legal dilemma. To interpret the Court‘s decision as applicable only in a few circumstances will make the rule less harmful but arbitrary. To interpret the rule more broadly will make the rule more rational, but destructive.
III
One last question: How can the Court simply assume without deciding that the SEC Commissioners themselves are removable only “for cause“? See ante, at 5 (“[W]e decide the case with th[e] understanding” “that the Commissioners cannot themselves be removed by the President except for cause” (emphasis added)). Unless the Commissioners themselves are in fact protected by a “for cause” requirement, the Accounting Board statute, on the Court‘s own reasoning, is not constitutionally defective. I am not aware of any other instance in which the Court has similarly (on its own or through stipulation) created a constitutional defect in a statute and then relied on that defect to strike a statute down as unconstitutional. Cf. Alabama v. North Carolina, 560 U. S. ___, ___ (2010) (opinion for the Court by SCALIA, J.) (slip op., at 20) (“We do not—we cannot—add provisions to a federal statute . . . especially [if] . . . separation-of-powers concerns . . . would [thereby] arise“); The Anaconda v. American Sugar Refining Co., 322 U. S. 42, 46 (1944) (describing parties’ inabil
It is certainly not obvious that the SEC Commissioners enjoy “for cause” protection. Unlike the statutes establishing the 48 federal agencies listed in Appendix A, infra, the statute that established the Commission says nothing about removal. It is silent on the question. As far as its text is concerned, the President‘s authority to remove the Commissioners is no different from his authority to remove the Secretary of State or the Attorney General. See Shurtleff, 189 U. S., at 315 (“To take away th[e] power of removal . . . would require very clear and explicit language. It should not be held to be taken away by mere inference or implication“); see also Memorandum from David J. Barron, Acting Assistant Attorney General, Office of Legal Counsel, to the Principal Deputy Counsel to the President: Removability of the Federal Coordinator for Alaska Natural Gas Transportation Projects, p. 2 (Oct. 23, 2009), online at http://justice.gov/olc/2009/gas-transport-project.pdf (“[Where] Congress did not explicitly provide tenure protection . . . the President, consistent with . . . settled principles, may remove . . . without cause“); The Constitutional Separation of Powers Between the President and Congress, 20 Op. Legal Counsel 124, 170 (1996) (same).
Nor is the absence of a “for cause” provision in the statute that created the Commission likely to have been inadvertent. Congress created the Commission during the 9-year period after this Court decided Myers, and thereby cast serious doubt on the constitutionality of all “for cause” removal provisions, but before it decided Humphrey‘s Executor, which removed any doubt in respect to the constitutionality of making commissioners of independent agencies removable only for cause. In other words, Congress created the SEC at a time when, under this Court‘s precedents, it would have been unconstitutional to make the Commissioners removable only for cause. And, during
The fact that Congress did not make the SEC Commissioners removable “for cause” does not mean it intended to create a dependent, rather than an independent agency. Agency independence is a function of several different factors, of which “for cause” protection is only one. Those factors include, inter alia, an agency‘s separate (rather than presidentially dependent) budgeting authority, its separate litigating authority, its composition as a multi-member bipartisan board, the use of the word “independent” in its authorizing statute, and, above all, a political environment, reflecting tradition and function, that would impose a heavy political cost upon any President who tried to remove a commissioner of the agency without cause. See generally Breger & Edles 1135-1155.
The absence of a “for cause” provision is thus not fatal to agency independence. Indeed, a “Congressional Research Service official suggests that there are at least 13 ‘independent’ agencies without a removal provision in their statutes.” Id., at 1143, n. 161 (emphasis added) (citing congressional testimony). But it does draw the majority‘s rule into further confusion. For not only are we left without a definition of an “inferior officer,” but we are also left
The Court then, by assumption, reads into the statute books a “for cause removal” phrase that does not appear in the relevant statute and which Congress probably did not intend to write. And it does so in order to strike down, not to uphold, another statute. This is not a statutory construction that seeks to avoid a constitutional question, but its opposite. See Ashwander v. TVA, 297 U. S. 288, 347 (1936) (Brandeis, J., concurring) (“It is not the habit of the Court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case” (internal quotation marks omitted)); NLRB v. Catholic Bishop of Chicago, 440 U. S. 490, 500 (1979) (“[A]n Act of Congress ought not to be construed to violate the Constitution if any other possible construction remains available“).
I do not need to decide whether the Commissioners are in fact removable only “for cause” because I would uphold the Accounting Board‘s removal provision as constitutional regardless. But were that not so, a determination that the silent SEC statute means no more than it says would properly avoid the determination of unconstitutionality that the Court now makes.
*
*
*
In my view the Court‘s decision is wrong—very wrong. As Parts II-A, II-B, and II-C of this opinion make clear, if the Court were to look to the proper functional and contextual considerations, it would find the Accounting Board provision constitutional. As Part II-D shows, insofar as the Court instead tries to create a bright-line rule, it fails to do so. Its rule of decision is both imprecise and overly
With respect I dissent.
A
There are 24 stand-alone federal agencies (i.e., “departments“) whose heads are, by statute, removable by the President only “for cause.” Moreover, there are at least 24 additional offices, boards, or bureaus situated within departments that are similarly subject, by statute, to for-cause removal provisions. The chart below first lists the 24 departments and then lists the 24 additional offices, boards, and bureaus. I have highlighted those instances in which a “for-cause” office is situated within a “for-cause” department—i.e., instances of “double for-cause” removal that are essentially indistinguishable from this case (with the notable exception that the Accounting Board may not be statutorily subject to two layers of for-cause removal, cf. Part III, supra). This list does not include instances of “double for-cause” removal that arise in Article I courts, although such instances might also be affected by the majority‘s holding, cf. ante, at 26, n. 10. Compare
| Department | Statutory Removal Provision | |
|---|---|---|
| 1 | Chemical Safety Board | “Any member of the Board, including the Chairperson, may be removed for inefficiency, neglect of duty, or malfeasance in office.” |
| 2 | Commission on Civil Rights | “The President may remove a member of the Commission only for neglect of duty or malfeasance in office.” |
| 3 | Consumer Product Safety Commission | “Any member of the Commission may be removed by the President for neglect of duty or malfeasance in office but for no other cause.” |
| 4 | Federal Energy Regulatory Commission | “Members shall hold office for a term of 5 years and may be removed by the President only for inefficiency, neglect of duty, or malfeasance in office.” |
| 5 | Federal Labor Relations Authority | “Members of the Authority shall be appointed by the President by and with the advice and consent of the Senate, and may be removed by the President only upon notice and hearing and only for inefficiency, neglect of duty, or malfeasance in office.” |
| 6 | Federal Maritime Commission | “The President may remove a Commissioner for inefficiency, neglect of duty, or malfeasance in office.” |
| 7 | Federal Mine Safety and Health Review Commission | “Any member of the Commission may be removed by the President for inefficiency, neglect of duty, or malfeasance in office.” |
| 8 | Federal Reserve Board | “[E]ach member shall hold office for a term of fourteen years from the expiration of the term of his predecessor, unless sooner removed for cause by the President.” |
| 9 | Federal Trade Commission | “Any commissioner may be removed by the President for inefficiency, neglect of duty, or malfeasance in office.” |
| 10 | Independent Medicare Advisory Board | “Any appointed member may be removed by the President for neglect of duty or malfeasance in office, but for no other cause.” Pub. L. 111-148, §3403. |
| 11 | Merit Systems Protection Board | “Any member may be removed by the President only for inefficiency, neglect of duty, or malfeasance in office.” |
| 12 | National Labor Relations Board | “Any member of the Board may be removed by the President, upon notice and hearing, for neglect of duty or malfeasance in office, but for no other cause.” |
| 13 | National Mediation Board | “A member of the Board may be removed by the President for inefficiency, neglect of duty, malfeasance in office, or ineligibility, but for no other cause.” |
| 14 | National Transportation Safety Board | “The President may remove a member for inefficiency, neglect of duty, or malfeasance in office.” |
| 15 | Nuclear Regulatory Commission | “Any member of the Commission may be removed by the President for inefficiency, neglect of duty, or malfeasance in office.” |
| 16 | Occupational Safety and Health Review Commission | “A member of the Commission may be removed by the President for inefficiency, neglect of duty, or malfeasance in office.” |
| 17 | Office of Special Counsel | “The Special Counsel may be removed by the President only for inefficiency, neglect of duty, or malfeasance in office.” |
| 18 | Postal Regulatory Commission | “The Commissioners shall be chosen solely on the basis of their technical qualifications, professional standing, and demonstrated expertise in economics, accounting, law, or public administration, and may be removed by the President only for cause.” |
Appendix A to opinion of BREYER, J.
| Department | Statutory Removal Provision | |
|---|---|---|
| 19 | Postal Service* | “The exercise of the power of the Postal Service shall be directed by a Board of Governors composed of 11 members . . . . The Governors shall not be representatives of specific interests using the Postal Service, and may be removed only for cause.” |
| 20 | Social Security Administration | “[The] Commissioner may be removed from office only pursuant to a finding by the President of neglect of duty or malfeasance in office.” |
| 21 | United States Institute of Peace* | “A member of the Board appointed under subsection (b)(5) . . . may be removed by the President . . . in consultation with the Board, for conviction of a felony, malfeasance in office, persistent neglect of duties, or inability to discharge duties.” |
| 22 | United States Sentencing Commission | “The Chair, Vice Chairs, and members of the Commission shall be subject to removal from the Commission by the President only for neglect of duty or malfeasance in office or for other good cause shown.” |
| 23 | Legal Services Corporation* | “A member of the Board may be removed by a vote of seven members for malfeasance in office or for persistent neglect of or inability to discharge duties, or for offenses involving moral turpitude, and for no other cause.” |
| 24 | State Justice Institute* | “A member of the Board may be removed by a vote of seven members for malfeasance in office, persistent neglect of, or inability to discharge duties, or for any offense involving moral turpitude, but for no other cause.” |
*See Lebron v. National Railroad Passenger Corporation, 513 U. S. 374 (1995).
Appendix A to opinion of BREYER, J.
| Office Within Department | Statutory Removal Provision | |
|---|---|---|
| 25 | Department of Agriculture: National Appeals Division | “The Division shall be headed by a Director, appointed by the Secretary from among persons who have substantial experience in practicing administrative law. . . . The Director shall not be subject to removal during the term of office, except for cause established in accordance with law.” |
| 26 | Department of Agriculture: Regional Fishery Management Councils | “The Secretary may remove for cause any member of a Council required to be appointed by the Secretary. . . .” |
| 27 | Department of Commerce: Corporation for Travel Promotion† | “The Secretary of Commerce may remove any member of the board [of the Corporation] for good cause.” 124 Stat. 57 |
| 28 | Department of Defense: Office of Navy Reserve | “The Chief of Navy Reserve is appointed for a term determined by the Chief of Naval Operations, normally four years, but may be removed for cause at any time.” |
| 29 | Department of Defense: Office of Marine Forces Reserve | “The Commander, Marine Forces Reserve, is appointed for a term determined by the Commandant of the Marine Corps, normally four years, but may be removed for cause at any time.” |
| 30 | Department of Defense: Office of Air Force Reserve | “The Chief of Air Force Reserve is appointed for a period of four years, but may be removed for cause at any time.” |
| 31 | Department of Defense: Joint Staff of the National Guard Bureau | “[A]n officer appointed as Director of the Joint Staff of the National Guard Bureau serves for a term of four years, but may be removed from office at any time for cause.” |
†See Lebron, supra.
Appendix A to opinion of BREYER, J.
| Office Within Department | Statutory Removal Provision | |
|---|---|---|
| 32 | Department of Defense: Board of Actuaries | “A member of the Board may be removed by the Secretary of Defense only for misconduct or failure to perform functions vested in the Board.” |
| 33 | Department of Defense: Medicare-Eligible Retiree Health Care Board of Actuaries | “A member of the Board may be removed by the Secretary of Defense for misconduct or failure to perform functions vested in the Board, and for no other reason.” |
| 34 | Department of Education: Performance-Based Organization for the Delivery of Federal Student Financial Assistance | “The Chief Operating Officer may be removed by . . . the President; or . . . the Secretary, for misconduct or failure to meet performance goals set forth in the performance agreement in paragraph (4).” |
| 35 | Federal Labor Relations Authority: Foreign Service Labor Relations Board (see supra, row 5) | “The Chairperson [of the FLRA, who also chairs the Board] may remove any other Board member . . . for corruption, neglect of duty, malfeasance, or demonstrated incapacity to perform his or her functions . . . .” |
| 36 | General Services Administration: Civilian Board of Contract Appeals (see supra, row 11) | “Members of the Civilian Board shall be subject to removal in the same manner as administrative law judges, [i.e., ‘only for good cause established and determined by the Merit Systems Protection Board.‘]” |
| 37 | Department of Health and Human Services: National Advisory Council on National Health Service Corps | “No member shall be removed, except for cause.” |
Appendix A to opinion of BREYER, J.
| Office Within Department | Statutory Removal Provision | |
|---|---|---|
| 38 | Department of Health and Human Services: Medicare & Medicaid Office of the Chief Actuary | “The Chief Actuary may be removed only for cause.” |
| 39 | Department of Homeland Security: Office of the Coast Guard Reserve | “An officer may be removed from the position of Director for cause at any time.” |
| 40 | Department of the Interior: National Indian Gaming Commission | “A Commissioner may only be removed from office before the expiration of the term of office of the member by the President (or, in the case of associate member, by the Secretary) for neglect of duty, or malfeasance in office, or for other good cause shown.” |
| 41 | Library of Congress: Copyright Royalty Judgeships | “The Librarian of Congress may sanction or remove a Copyright Royalty Judge for violation of the standards of conduct adopted under subsection (h), misconduct, neglect of duty, or any disqualifying physical or mental disability.” |
| 42 | Postal Service: Inspector General (see supra, row 19) | “The Inspector General may at any time be removed upon the written concurrence of at least 7 Governors, but only for cause.” |
| 43 | Securities and Exchange Commission: Public Company Accounting Oversight Board | “A member of the Board may be removed by the Commission from office . . . for good cause shown . . . .” |
| 44 | Social Security Administration: Office of the Chief Actuary (see supra, row 20) | “The Chief Actuary may be removed only for cause.” |
Appendix A to opinion of BREYER, J.
| Office Within Department | Statutory Removal Provision | |
|---|---|---|
| 45 | Department of State: Foreign Service Grievance Board | “The Secretary of State may, upon written notice, remove a Board member for corruption, neglect of duty, malfeasance, or demonstrated incapacity to perform his or her functions, established at a hearing (unless the right to a hearing is waived in writing by the Board member).” |
| 46 | Department of Transportation: Air Traffic Services Committee | “Any member of the Committee may be removed for cause by the Secretary.” |
| 47 | Department of Transportation: Surface Transportation Board | “The President may remove a member for inefficiency, neglect of duty, or malfeasance in office.” |
| 48 | Department of Veterans Affairs: Board of Veterans Appeals | “The Chairman may be removed by the President for misconduct, inefficiency, neglect of duty, or engaging in the practice of law or for physical or mental disability which, in the opinion of the President, prevents the proper execution of the Chairman‘s duties. The Chairman may not be removed from office by the President on any other grounds.” |
Appendix B to opinion of BREYER, J.
B
The table that follows lists the 573 career appointees in the Senior Executive Service (SES) who constitute the upper level management of the independent agencies listed in Appendix A, supra. Each of these officials is, under any definition—including the Court‘s—an inferior officer, and is, by statute, subject to two layers of for-cause removal. See supra, at 25-30.
The data are organized into three columns: The first column lists the “office” to which the corresponding official is assigned within the respective agency and, where available, the provision of law establishing that office. Cf. supra, at 27 (citing Mouat, 124 U. S., at 307-308; Germaine, 99 U. S., at 510). The second and third columns respectively list the career appointees in each agency who occupy “general” and “reserved” SES positions. A “general” position is one that could be filled by either a career appointee or by a noncareer appointee were the current (career) occupant to be replaced. See
Appendix B to opinion of BREYER, J.
| Nuclear Regulatory Commission (192) | ||
|---|---|---|
| Office | General Position | Reserved Position |
| Office of the Executive Director for Operations 10 CFR §1.32 (2009) | Executive Director | Director of Nuclear Security Projects |
| Deputy Executive Director for Reactor and Preparedness Programs | ||
| Deputy Executive Director for Materials, Waste, Research, State, Tribal, and Compliance, Programs | ||
| Deputy Executive Director for Corporate Management | ||
| Assistant for Operations | ||
| Director for Strategic Organizational Planning and Optimization | ||
| Office of the Secretary 10 CFR §1.25 | Secretary | |
| Office of the Chief Financial Officer 10 CFR §1.31 | Chief Financial Officer | Director, Division of Planning, Budget and Analysis |
| Director, Division of Financial Services | ||
| Deputy Chief Financial Officer | ||
| Director, Division of Financial Management | ||
| Office of the Inspector General 10 CFR §1.12 | Deputy Inspector General | |
| Assistant Inspector General for Audits | ||
| Assistant Inspector General for Investigations | ||
| Office of the General Counsel 10 CFR §1.23 | General Counsel | Director, Commission Adjudicatory Technical Support |
| Deputy General Counsel | Deputy Assistant General Counsel for Rulemaking and Fuel Cycle | |
| Solicitor | Deputy Assistant General Counsel for Administration | |
| Associate General Counsel for Licensing and Regulation | Assistant General Counsel for Operating Reactors | |
| Assistant General Counsel for Rulemaking and Fuel Cycle | ||
Appendix B to opinion of BREYER, J.
| Office | General Position | Reserved Position |
|---|---|---|
| Office of the General Counsel (Continued) | Assistant General Counsel for Legal Counsel, Legislation, and Special Projects | |
| Associate General Counsel for Hearings, Enforcement, and Administration | ||
| Assistant General Counsel for New Reactor Programs | ||
| Assistant General Counsel for Operating Reactors | ||
| Assistant General Counsel for the High-Level Waste Repository Programs | ||
| Office of Commission Appellate Adjudication 10 CFR §1.24 | Director | |
| Office of Congressional Affairs 10 CFR §1.27 | Director | |
| Office of Public Affairs 10 CFR §1.28 | Director | |
| Office of International Programs 10 CFR §1.29 | Director | |
| Deputy Director | ||
| Office of Investigations 10 CFR §1.36 | Director | Deputy Director |
| Office of Enforcement 10 CFR §1.33 | Director | |
| Office of Administration 10 CFR §1.34 | Director | Deputy Director |
| Director, Division of Contracts | ||
| Director, Division of Administrative Services | ||
| Director, Division of Facilities and Security | ||
| Office of Human Resources 10 CFR §1.39 | Director | |
| Deputy Director | ||
| Associate Director for Training and Development |
Appendix B to opinion of BREYER, J.
| Office | General Position | Reserved Position |
|---|---|---|
| Office of Information Services 10 CFR §1.35 | Director | Deputy Director |
| Director, Information and Records Services Division | ||
| Director, High-Level Waste Business and Program Integration Staff | ||
| Director, Business Process Improvement and Applications | ||
| Director, Program Management, Policy Development and Analysis Staff | ||
| Director, Infrastructure and Computer Operations | ||
| Office of Nuclear Security and Incident Response 10 CFR §1.46 | Director | Deputy Director (2) |
| Director, Program Management, Policy Development | ||
| Director | ||
| (Division of Security Policy) | Deputy Director | |
| Project Director, Nuclear Security Policy | ||
| Project Director, Nuclear Security Operations | ||
| Deputy Director for Material Security | ||
| Deputy Director for Reactor Security and Rulemaking | ||
| (Division of Preparedness and Response) | Director | |
| Deputy Director (2) | ||
| Deputy Director for Emergency Preparedness | ||
| (Division of Security Operations) | Director | |
| Deputy Director for Security Oversight | ||
| Deputy Director for Security Programs | ||
| Office of Nuclear Reactor Regulation 10 CFR §1.43 | Director | Director, Program Management, etc. |
| Deputy Director | Deputy Director, Program Management, etc. |
Appendix B to opinion of BREYER, J.
| Office | General Position | Reserved Position |
|---|---|---|
| Office of Nuclear Reactor Regulation (Continued) | Associate Director, Operating Reactor Oversight and Licensing | |
| Associate Director, Risk Assessment and New Projects | ||
| Associate Director, Engineering and Safety Systems | ||
| (Division of Safety Systems) | Director | |
| Deputy Director (2) | ||
| (Division of License Renewal) | Director | |
| Deputy Director | ||
| (Division of Operating Reactor Licensing) | Director | |
| Deputy Director (2) | ||
| (Division of Inspection and Regional Support) | Director | |
| Deputy Director (2) | ||
| (Division of New Reactor Licensing) | Director | |
| Deputy Director (2) | ||
| (Division of Engineering) | Director | |
| Deputy Director (3) | ||
| (Division of Risk Assessment) | Director | |
| Deputy Director (2) | ||
| (Division of Policy and Rulemaking) | Director | |
| Deputy Director (2) | ||
| (Division of Component Integrity) | Director | |
| Deputy Director | ||
| Office of New Reactors 10 CFR §1.44 | Director | Assistant to the Director for Transition Management |
| Office of Nuclear Material Safety and Safeguards 10 CFR §1.42 | Director | Director, Program Planning, etc. |
| Deputy Director | ||
| (Division of Fuel Cycle Safety and Safeguards) | Chief, Special Projects Branch | |
| Chief, Safety and Safeguards Support Branch | ||
| Chief, Fuel Cycle Facilities Branch |
Appendix B to opinion of BREYER, J.
| Office | General Position | Reserved Position |
|---|---|---|
| (Division of Industrial and Medical Nuclear Safety) | Chief, Rulemaking and Guidance Branch | |
| Chief, Materials Safety and Inspection Branch | ||
| (Division of High Level Waste Repository Safety) | Deputy Director, Licensing and Inspection | |
| Deputy Director, Technical Review Directorate (2) | ||
| (Spent Fuel Project Office) | Deputy Director, Technical Review Directorate | |
| Deputy Director, Licensing and Inspection | ||
| Office of Federal and State Materials and Environmental Management Programs 10 CFR §1.41 | Director | Deputy Director |
| Director, Program Planning, etc. | ||
| (Division of Waste Management and Environmental Protection) | Director | |
| Deputy Director, Decommissioning (2) | ||
| Deputy Director, Environmental Protection (2) | ||
| Chief, Environmental and Performance Assessment | ||
| (Division of Materials Safety and State Agreements) | Director | |
| Deputy Director | ||
| (Division of Intergovernmental Liaison and Rulemaking) | Director | |
| Deputy Director | ||
| Office of Nuclear Regulatory Research 10 CFR §1.45 | Director | Director, Program Management, etc. |
| Deputy Director | Deputy Director for Materials Engineering | |
| Regional Administrator (4) | Deputy Director for Engineering Research Applications | |
| Deputy Director for New Reactors and Computational Analysis | ||
| Deputy Director for Probabilistic Risk and Applications |
Appendix B to opinion of BREYER, J.
| Office | General Position | Reserved Position |
|---|---|---|
| Office of Nuclear Regulatory Research (Continued) | Deputy Director for Operating Experience and Risk Analysis | |
| Deputy Director for Radiation Protection, Environmental Risk and Waste Management | ||
| Chief, Generic Safety Issues Branch | ||
| (Division of Engineering Technology) | Chief, Electrical, Mechanical, and Materials Branch | |
| Chief, Structural and Geological Engineering Branch | ||
| Chief, Materials Engineering Branch | ||
| Chief, Engineering Research Applications Branch | ||
| Deputy Director | ||
| (Division of Systems Analysis and Regulatory Effectiveness) | Chief, Advanced Reactors and Regulatory Effectiveness | |
| Chief, Safety Margins and Systems Analysis Branch | ||
| Chief, Radiation Protection, etc. | ||
| (Division of Risk Analysis and Application) | Deputy Director | |
| Chief, Operating Experience Risk Analysis Branch | ||
| Chief, Probabilistic Risk Analysis Branch | ||
| (Division of Risk Assessment and Special Projects) | Director | |
| Assistant Director (2) | ||
| (Division of Fuel, Engineering and Radiological Research) | Director | |
| Assistant Director | ||
| Office of Small Business and Civil Rights 10 CFR §1.37 | Director | |
| Advisory Committee on Reactor Safeguards 10 CFR §1.13 | Executive Director | Deputy Executive Director |
Appendix B to opinion of BREYER, J.
| Office | General Position | Reserved Position |
|---|---|---|
| Regional Offices 10 CFR §1.47 | Deputy Regional Administrator (5) | |
| Director, Division of Fuel Facility Inspection (1) | ||
| Director, Division of Reactor Projects (4) | ||
| Deputy Director, Division of Reactor Projects (5) | ||
| Director, Division of Reactor Safety (4) | ||
| Deputy Director, Division of Reactor Safety (4) | ||
| Director, Division of Nuclear Materials Safety (3) | ||
| Deputy Director, Division of Nuclear Materials Safety | ||
| Deputy Director, Division of Radiation Safety, etc. | ||
| Social Security Administration (143) | ||
| Office | General Position | Reserved Position |
| Office of the Commissioner 33 Fed. Reg. 5828 (1968) | Executive Counselor to the Commissioner | |
| Deputy Chief of Staff | ||
| Director for Regulations | ||
| Senior Advisor to the Deputy Commissioner | ||
| Senior Advisor to the Commissioner | ||
| Office of International Programs 63 Fed. Reg. 41888 (1998) | Associate Commissioner for International Programs | |
| Office of Executive Operations 56 Fed. Reg. 15888 (1991) | Assistant Inspector General | |
| Office of the Chief Actuary | Chief Actuary | |
| Deputy Chief Actuary, Long-Range | ||
| Deputy Chief Actuary, Short-Range | ||
Appendix B to opinion of BREYER, J.
| Office | General Position | Reserved Position |
|---|---|---|
| Office of the Chief Information Officer 33 Fed. Reg. 5829 | Deputy Chief Information Officer | Director, Office of Information Technology Systems Review |
| Office of Information Technology Investment Management | Associate Chief Information Officer | |
| Office of Budget, Finance and Management 60 Fed. Reg. 22099 (1995) | Deputy Commissioner | |
| Assistant Deputy Commissioner | ||
| Office of Acquisition and Grants 60 Fed. Reg. 22099 | Associate Commissioner | |
| Office of Budget 60 Fed. Reg. 22099 | Associate Commissioner | |
| Deputy Associate Commissioner | ||
| Office of Facilities Management 60 Fed. Reg. 22099 | Associate Commissioner | |
| Deputy Associate Commissioner | ||
| Office of Financial Policy and Operations 56 Fed. Reg. 15888 | Associate Commissioner | |
| Deputy Associate Commissioner | ||
| Office of Publications and Logistics Management 60 Fed. Reg. 22099 | Associate Commissioner | |
| Deputy Associate Commissioner | ||
| Office of Communications 62 Fed. Reg. 9476 (1997) | Assistant Deputy Commissioner | |
| Press Officer | ||
| Office of Communications Planning and Technology 63 Fed. Reg. 15476 | Associate Commissioner | |
| Office of Public Inquiries 62 Fed. Reg. 9477 | Associate Commissioner |
Appendix B to opinion of BREYER, J.
| Office | General Position | Reserved Position |
|---|---|---|
| Office of Disability Adjudication and Review | Deputy Commissioner | |
| Assistant Deputy Commissioner | ||
| Office of Appellate Operations 53 Fed. Reg. 29778 (1988) | Executive Director | |
| Office of the General Counsel 65 Fed. Reg. 39218 (2000) | Deputy General Counsel | |
| Office of General Law 65 Fed. Reg. 39218 | Associate General Counsel | |
| Office of Public Disclosure 67 Fed. Reg. 63186 (2002) | Executive Director | |
| Office of Regional Chief Counsels 65 Fed. Reg. 39219 | Regional Chief Counsel (7) | |
| Office of Human Resources 60 Fed. Reg. 22128 | Deputy Commissioner | |
| Assistant Deputy Commissioner | ||
| Office of Civil Rights and Equal Opportunity 60 Fed. Reg. 22128 | Associate Commissioner | |
| Office of Labor Management and Employee Relations | Associate Commissioner | |
| Deputy Associate Commissioner | ||
| Office of Personnel 60 Fed. Reg. 22128 | Associate Commissioner | |
| Deputy Associate Commissioner | ||
| Office of Training 60 Fed. Reg. 22128 | Associate Commissioner | |
| Office of the Inspector General | Deputy Inspector General | |
| Counsel to the Inspector General |
Appendix B to opinion of BREYER, J.
| Office | General Position | Reserved Position |
|---|---|---|
| Office of Audits 60 Fed. Reg. 22133 | Assistant Inspector General for Audit | |
| Deputy Assistant Inspector General for Audit | ||
| Office of Investigations 60 Fed. Reg. 22133 | Assistant Inspector General | |
| Deputy Assistant Inspector General for Field Investigations | ||
| Deputy Assistant Inspector General for National Investigative Operations | ||
| Office of Legislation and Congressional Affairs 60 Fed. Reg. 22152 | Senior Advisor to the Deputy Commissioner | |
| Office of Legislative Development 65 Fed. Reg. 10846 | Associate Commissioner | |
| Office of Operations 60 Fed. Reg. 22107 | Deputy Commissioner | |
| Assistant Deputy Commissioner | ||
| Office of Automation Support 60 Fed. Reg. 22108 | Associate Commissioner | |
| Office of Central Operations 63 Fed. Reg. 32275 | Associate Commissioner | |
| Deputy Associate Commissioner | ||
| Assistant Associate Commissioner | ||
| Assistant Associate Commissioner for Management and Operations Support | ||
| Office of Disability Determinations 67 Fed. Reg. 69288 | Associate Commissioner | |
| Deputy Associate Commissioner | ||
| Office of Electronic Services 66 Fed. Reg. 29618 (2001) | Associate Commissioner | |
| Office of Public Service and Operations Support 59 Fed. Reg. 56511 (1994) | Associate Commissioner | |
| Deputy Associate Commissioner |
Appendix B to opinion of BREYER, J.
| Office | General Position | Reserved Position |
|---|---|---|
| Office of Telephone Services 60 Fed. Reg. 22108 | Associate Commissioner | |
| Deputy Associate Commissioner | ||
| Office of Regional Commissioners 60 Fed. Reg. 22108 | Regional Commissioners (10) | |
| Deputy Regional Commissioner (10) | ||
| Assistant Regional Commissioner (15) | ||
| Office of Retirement and Disability Policy | Deputy Commissioner | |
| Assistant Deputy Commissioner (2) | ||
| Senior Advisor for Program Outreach | ||
| Office of Disability Programs 67 Fed. Reg. 69289 | Associate Commissioner | |
| Office of Employment Support Programs 64 Fed. Reg. 19397 (1999) | Associate Commissioner | |
| Office of Income Security Programs 67 Fed. Reg. 69288 | Associate Commissioner | |
| Deputy Associate Commissioner | ||
| Office of Medical and Vocational Expertise | Associate Commissioner | |
| Office of Research, Evaluation and Statistics 61 Fed. Reg. 35847 (1996) | Associate Commissioner | |
| Office of Systems 60 Fed. Reg. 22116 | Deputy Commissioner | |
| Assistant Deputy Commissioner | ||
| Office of Disability Systems 61 Fed. Reg. 35849 | Associate Commissioner | |
| Deputy Associate Commissioner | ||
| Office of Supplemental Security Income Systems 67 Fed. Reg. 37892 | Associate Commissioner | |
| Deputy Associate Commissioner |
Appendix B to opinion of BREYER, J.
| Office | General Position | Reserved Position |
|---|---|---|
| Office of Earnings, Enumeration and Administrative Systems 67 Fed. Reg. 37892 | Associate Commissioner | |
| Deputy Associate Commissioner | ||
| Office of Enterprise Support, Architecture and Engineering 67 Fed. Reg. 37892 | Associate Commissioner | |
| Deputy Associate Commissioner (2) | ||
| Office of Retirement and Survivors Insurance Systems 67 Fed. Reg. 37892 | Associate Commissioner | |
| Deputy Associate Commissioner | ||
| Office of Systems Electronic Services 66 Fed. Reg. 10766 (2001) | Associate Commissioner | |
| Deputy Associate Commissioner | ||
| Office of Quality Performance 63 Fed. Reg. 32035 | Deputy Commissioner | Chief Quality Officer |
| Assistant Deputy Commissioner | Deputy Chief Quality Officer | |
| Deputy Associate Commissioner | ||
| Office of Quality Data Management | Associate Commissioner | |
| Office of Quality Improvement | Associate Commissioner | |
| Deputy Associate Commissioner | ||
| Office of Quality Review | Associate Commissioner | |
| Deputy Associate Commissioner | ||
| Office of the Chief Strategic Officer 67 Fed. Reg. 79950 | Chief Strategic Officer | |
| National Labor Relations Board (60) | ||
| Office | General Position | Reserved Position |
| Office of the Board | Director, Office of Representation Appeals and Advice | Executive Secretary |
| Solicitor | Deputy Executive Secretary | |
| Deputy Chief Counsel to Board Member (4) | Inspector General | |
| Chief Information Officer | ||
Appendix B to opinion of BREYER, J.
| Office | General Position | Reserved Position |
|---|---|---|
| Office of the General Counsel | Deputy General Counsel | |
| (Division of Enforcement Litigation) | Associate General Counsel | Deputy Associate General Counsel |
| Deputy Associate General Counsel, Appellate Court Branch | ||
| Director, Office of Appeals | ||
| (Division of Advice) | Associate General Counsel | |
| Deputy Associate General Counsel | ||
| (Division of Administration) | Director | |
| Deputy Director | ||
| (Division of Operations Management) | Associate General Counsel | |
| Deputy Associate General Counsel | ||
| Assistant General Counsel (6) | ||
| Regional Offices | Regional Director (33) | |
| Federal Energy Regulatory Commission (44) | ||
| Office | General Position | Reserved Position |
| Office of the Executive Director 18 CFR §1.101(e) (2009) | Executive Director | |
| Deputy Executive Director | ||
| Deputy Chief Information Officer | ||
| Office of General Counsel 18 CFR §1.101(f) | General Counsel | |
| Deputy General Counsel | ||
| Associate General Counsel (3) | ||
| Deputy Associate General Counsel (4) | ||
| Solicitor | ||
| Office of Energy Market Regulation 18 CFR §376.204(b)(2)(ii) | Director | |
| Deputy Director | ||
| Director, Tariffs and Market Development (3) | ||
| Director, Policy Analysis and Rulemaking | ||
| Director, Administration, Case Management, and Strategic Planning | ||
Appendix B to opinion of BREYER, J.
| Office | General Position | Reserved Position |
|---|---|---|
| Office of Energy Projects 18 CFR §376.204(b)(2)(iii) | Director | Director, Dam Safety and Inspections |
| Principal Deputy Director | ||
| Deputy Director | ||
| Director, Hydropower Licensing | ||
| Director, Pipeline Certificates | ||
| Director, Gas Environment and Engineering | ||
| Director, Hydropower Administration and Compliance | ||
| Office of Enforcement 18 CFR §376.204(b)(2)(vi) | Director | Chief Accountant and Director, Division of Financial Regulations |
| Deputy Director | Chief, Regulatory Accounting Branch | |
| Director, Investigations | ||
| Deputy Director, Investigations | ||
| Director, Audits | ||
| Director, Energy Market Oversight | ||
| Office of Electric Reliability 18 CFR §376.204(b)(2)(iv) | Director | |
| Deputy Director | ||
| Director, Compliance | ||
| Director, Logistics and Security | ||
| Office of Administrative Litigation 64 Fed. Reg. 51226 (1999) 68 Fed. Reg. 27056 (2003) | Director | |
| Director, Technical Division | ||
| Director, Legal Division | ||
| Senior Counsel for Litigation | ||
| Federal Trade Commission (31) | ||
| Office | General Position | Reserved Position |
| Office of the Chairman 16 CFR §0.8 (2010) | Secretary | |
| Office of the Executive Director 16 CFR §0.10 | Executive Director | Deputy Executive Director |
| Chief Financial Officer | Chief Information Officer | |
Appendix B to opinion of BREYER, J.
| Office | General Position | Reserved Position |
|---|---|---|
| Office of the General Counsel | Principal Deputy General Counsel Deputy General Counsel for Litigation Deputy General Counsel for Legal Counsel | Deputy General Counsel for Policy Studies |
| Office of International Affairs | Director Deputy Director | |
| Bureau of Competition | Associate Director Associate Director, Policy Assistant Director, Mergers (2) Assistant Director, Compliance | |
| Bureau of Consumer Protection | Director Deputy Director (2) Associate Director for Privacy and Identity Protection Associate Director for Advertising Practices Associate Director for Marketing Practices Associate Director for Financial Practices Associate Director for Consumer and Business Education Associate Director for Planning and Information Associate Director for Enforcement | Associate Director for International Division |
| Bureau of Economics | Deputy Director for Research and Development and Operations Deputy Director for Antitrust Associate Director for Consumer Protection and Research | |
| Office of the Inspector General | Inspector General |
Appendix B to opinion of BREYER, J.
| Consumer Product Safety Commission (16) | ||
|---|---|---|
| Office | General Position | Reserved Position |
| Office of the Executive Director | Deputy Executive Director Chief Financial Officer | Assistant Executive Director for Compliance and Administrative Litigation Associate Executive Director for Field Operations Executive Assistant |
| Office of Compliance and Field Operations | Deputy Director | |
| Office of Hazard Identification and Reduction | Assistant Executive Director Deputy Assistant Executive Director Associate Executive Director for Economic Analysis Associate Executive Director for Engineering Sciences Associate Executive Director for Epidemiology | |
| Directorate for Health Sciences | Associate Executive Director | |
| Directorate for Laboratory Sciences | Associate Executive Director | |
| Office of International Programs and Intergovernmental Affairs | Director | |
| Office of Information and Technology Services | Assistant Executive Director | |
| Office of the General Counsel | General Counsel | |
| Federal Labor Relations Authority (14) | ||
|---|---|---|
| Office | General Position | Reserved Position |
| Office of the Chairman | Director, Human Resources, Policy and Performance Management Chief Counsel Senior Advisor | |
Appendix B to opinion of BREYER, J.
| Office | General Position | Reserved Position |
|---|---|---|
| Office of the Solicitor | Solicitor | |
| Offices of Members | Chief Counsel (3) | |
| Office of the Executive Director | Executive Director | |
| Federal Services Impasses Panel | Executive Director | |
| Office of the General Counsel | Deputy General Counsel | |
| Regional Offices | Regional Director (5) |
| National Transportation Safety Board (14) | ||
|---|---|---|
| Office | General Position | Reserved Position |
| Office of the Managing Director | Managing Director Associate Managing Director for Quality Assurance | |
| Office of the General Counsel | General Counsel | |
| Office of Administration 60 Fed. Reg. 61488 | Director Director, Bureau of Accident Investigation | |
| Office of Aviation Safety | Deputy Director, Technology and Investment Operations Deputy Director, Regional Operations | |
| Office of Research and Engineering | Director Deputy Director | |
| Office of Chief Financial Officer | Chief Financial Officer | |
| Office of Safety Recommendations and Accomplishments | Director | |
Appendix B to opinion of BREYER, J.
| Office | General Position | Reserved Position |
|---|---|---|
| Office of Railroad, Pipeline and Hazardous Materials Investigations | Director | |
| National Transportation Safety Board Academy | Director President and Academic Dean |
| Performance-Based Organization for the Delivery of Federal Student Financial Assistance (13) | ||
|---|---|---|
| Office | General Position | Reserved Position |
| Office of the Chief Operating Officer | Deputy Chief Operating Officer Chief Financial Officer Chief Compliance Officer Director, Policy Liaison and Implementation Staff Audit Officer Director, Financial Management Group Director, Budget Group Deputy Chief Information Officer Director, Application Development Group Internal Review Officer Director, Strategic Planning and Reporting Group Senior Adviser | Director, Student Aid Awareness |
| Merit Systems Protection Board (11) | ||
|---|---|---|
| Office | General Position | Reserved Position |
| Office of the Clerk of the Board | Clerk of the Board | |
| Office of Financial and Administrative Management | Director | |
| Office of Policy and Evaluation | Director | |
Appendix B to opinion of BREYER, J.
| Office | General Position | Reserved Position |
|---|---|---|
| Office of Information Resources Management | Director | |
| Office of Regional Operations | Director Regional Director (6) |
| Office of Special Counsel (8) | ||
|---|---|---|
| Office | General Position | Reserved Position |
| Office of Special Counsel | Deputy Special Counsel | Associate Special Counsel for Investigation and Prosecution (3) Senior Associate Special Counsel for Investigation and Prosecution Associate Special Counsel, Planning and Oversight Associate Special Counsel for Legal Counsel and Policy Director of Management and Budget |
| Postal Regulatory Commission (10)* | ||
|---|---|---|
| Office | General Position | Reserved Position |
| Office of the General Counsel | General Counsel Assistant General Counsel | |
| Office of Accountability and Compliance | Director Assistant Director, Analysis and Pricing Division Assistant Director, Auditing and Costing Division | |
| Office of Public Affairs and Governmental Relations | Director | |
*The officers in this agency are part of the “excepted service,” but enjoy tenure protection similar to that enjoyed by career SES appointees. See
Appendix B to opinion of BREYER, J.
| Office | General Position | Reserved Position |
|---|---|---|
| Office of the Secretary and Administration 48 Fed. Reg. 13167 (1983) | Secretary and Director Assistant Director, Human Resources and Infrastructure Assistant Director, Strategic Planning, etc. | |
| Office of the Inspector General | Inspector General |
| Federal Maritime Commission (8) | ||
|---|---|---|
| Office | General Position | Reserved Position |
| Office of the Managing Director 75 Fed. Reg. 29452 | Director | |
| Office of the Secretary | Secretary | |
| Office of the General Counsel | Deputy General Counsel for Reports, Opinions and Decisions | |
| Bureau of Certification and Licensing | Director | |
| Bureau of Trade Analysis | Director | |
| Bureau of Enforcement | Director Deputy Director | |
| Office of Administration 70 Fed. Reg. 7660 (2005) | Director | |
| Surface Transportation Board (4) | ||
|---|---|---|
| Office | General Position | Reserved Position |
| Office of the Chairman | Director of Public Assistance, Governmental Affairs and Compliance | |
| Office of the General Counsel | General Counsel Deputy General Counsel | |
| Office of Proceedings | Director | |
Appendix B to opinion of BREYER, J.
| Federal Mine Safety and Health Review Commission (1) | ||
|---|---|---|
| Office | General Position | Reserved Position |
| Office of the General Counsel | General Counsel | |
| Chemical Safety and Hazard Investigation Board (1) | ||
|---|---|---|
| Office | General Position | Reserved Position |
| Office of the General Counsel | General Counsel | |
| National Mediation Board (1) | ||
|---|---|---|
| Office | General Position | Reserved Position |
| Office of the General Counsel | General Counsel | |
| Commission on Civil Rights (1) | ||
|---|---|---|
| Office | General Position | Reserved Position |
| Office of the Staff Director | Associate Deputy Staff Director | |
| Board of Veterans Appeals (1) | ||
|---|---|---|
| Office | General Position | Reserved Position |
| Office of the Vice Chairman | Vice Chairman | |
Appendix C to opinion of BREYER, J.
C
According to data provided by the Office of Personnel Management, reprinted below, there are 1,584 administrative law judges (ALJs) in the Federal Government. Each of these ALJs is an inferior officer and each is subject, by statute, to two layers of for-cause removal. See supra, at 30. The table below lists the 28 federal agencies that rely on ALJs to adjudicate individual administrative cases. The source is available in the Clerk of Court‘s case file. See ibid.
| AGENCY | TOTAL NUMBER OF ALJs |
|---|---|
| Commodity Futures Trading Commission | 2 |
| Department of Agriculture | 4 |
| Department of Education | 1 |
| Department of Health and Human Services (Departmental Appeals Board) | 7 |
| Department of Health and Human Services (Food and Drug Administration) | 1 |
| Department of Health and Human Services (Office of Medicare Hearings and Appeals) | 65 |
| Department of Homeland Security (United States Coast Guard) | 6 |
| Department of Housing and Urban Development | 2 |
| Department of the Interior | 9 |
| Department of Justice (Drug Enforcement Administration) | 3 |
| Department of Justice (Executive Office for Immigration Review) | 1 |
| Department of Labor (Office of the Secretary) | 44 |
| Department of Transportation | 3 |
| Environmental Protection Agency | 4 |
| Federal Communications Commission | 1 |
Appendix C to opinion of BREYER, J.
| AGENCY | TOTAL NUMBER OF ALJs |
|---|---|
| Federal Energy Regulatory Commission | 14 |
| Federal Labor Relations Authority | 3 |
| Federal Maritime Commission | 1 |
| Federal Mine Safety and Health Review Commission | 11 |
| Federal Trade Commission | 1 |
| International Trade Commission | 6 |
| National Labor Relations Board | 39 |
| National Transportation Safety Board | 4 |
| Occupational Safety and Health Review Commission | 12 |
| Office of Financial Institution Adjudication | 1 |
| Securities and Exchange Commission | 4 |
| Social Security Administration | 1,334 |
| United States Postal Service | 1 |
| TOTAL | 1,584 |
Appendix D to opinion of BREYER, J.
D
The table below lists 29 departments and other agencies the heads of which are not subject to any statutory for-cause removal provision, but that do bear certain other indicia of independence.
The table identifies six criteria that may suggest independence: (1) whether the agency consists of a multi-member commission; (2) whether its members are required, by statute, to be bipartisan (or nonpartisan); (3) whether eligibility to serve as the agency‘s head depends on statutorily defined qualifications; (4) whether the agency has independence in submitting budgetary and other proposals to Congress (thereby bypassing the Office of Management and Budget); (5) whether the agency has authority to appear in court independent of the Department of Justice, cf.
| Department or Agency | Multi-Member | Bipartisan | Statutory Eligibility Criteria | OMB Bypass | Litigation Authority | Explicit Statement |
|---|---|---|---|---|---|---|
| Securities and Exchange Commission | Yes | Yes | Yes | Yes | ||
| Architectural and Transportation Barriers Compliance Board | Yes | Yes (related experience) | Yes | |||
| Arctic Research Commission | Yes | Yes (related knowledge, experience) |
Appendix D to opinion of BREYER, J.
| Department or Agency | Multi-Member | Bipartisan | Statutory Eligibility Criteria | OMB Bypass | Litigation Authority | Explicit Statement |
|---|---|---|---|---|---|---|
| Broadcasting Board of Governors | Yes | Yes | Yes (citizenship; related knowledge) | Yes | ||
| Central Intelligence Agency | Cf. Freytag, 501 U. S., at 887, n. 4 | |||||
| Commission of Fine Arts | Yes | Yes (related knowledge) | ||||
| Commodity Futures Trading Commission | Yes | Yes | Yes (related knowledge) | Yes | Yes | |
| Defense Nuclear Facilities Safety Board | Yes | Yes | Yes (citizenship; expert knowledge) | Yes | ||
| Equal Employment Opportunity Commission | Yes | Yes | Yes | |||
| Export-Import Bank of the United States* | Yes | Yes | Yes | Yes | ||
| Farm Credit Administration | Yes | Yes | Yes (citizenship) | Yes | Yes | |
| Federal Communications Commission | Yes | Yes | Yes (citizenship) | Yes | ||
| Federal Deposit Insurance Corporation | Yes | Yes | Yes (citizenship; related experience) | Yes | Yes |
* See Lebron, 513 U. S. 374.
Appendix D to opinion of BREYER, J.
| Department or Agency | Multi-Member | Bipartisan | Statutory Eligibility Criteria | OMB Bypass | Litigation Authority | Explicit Statement |
|---|---|---|---|---|---|---|
| Federal Election Commission | Yes | Yes | Yes (general) | Yes | Yes | Yes |
| Federal Housing Finance Agency | Yes | Yes | ||||
| Federal Retirement Thrift Investment Board | Yes | Cf. | Yes (related knowledge) | |||
| International Trade Commission | Yes | Yes | Yes (citizenship; expert knowledge) | Yes | Yes | Yes |
| Marine Mammal Commission | Yes | Yes (related knowledge) | ||||
| Millennium Challenge Corporation† | Yes | Cf. | Yes (related experience) | |||
| National Credit Union Administration | Yes | Yes | Yes (related experience) | Yes | Yes | |
| National Archives and Records Administration | Yes | Yes (related knowledge) | Yes | |||
| National Council on Disability | Yes | Yes (related experience) | ||||
| National Labor-Management Panel | Yes | Yes (related knowledge) |
†See Lebron, supra.
Appendix D to opinion of BREYER, J.
| Department or Agency | Multi-Member | Bipartisan | Statutory Eligibility Criteria | OMB Bypass | Litigation Authority | Explicit Statement |
|---|---|---|---|---|---|---|
| National Science Foundation | Yes | Yes (related expertise) | Yes | |||
| Peace Corps | Yes | |||||
| Pension Benefit Guaranty Corporation† | Yes | Yes | ||||
| Railroad Retirement Board | Yes | Yes | Yes |
† See Lebron, supra.