Towards the end of class, we discussed a number of different issues regarding the appointment and removal of Officers of the United States, and in particular how the analysis regarding the two issues might at times overlap. This brief note is just meant to clarify one particular point in our discussion.
Under the Appointments Clause, the relevant issue can often be whether the official is a principal or inferior officer (as was the case in Morrison v. Olsen). If the person is a principal officer, she must be appointed by the President and confirmed by the Senate. But if she is an inferior officer, Congress can (if it so chooses) vest her appointment in the President alone, a court of law, or a head of a department. Morrison illustrates the analysis for how one assesses whether a given official is a principal or inferior officer.
With respect to removal, the inquiry is a bit more amorphous. The relevant question, as the Court explains in Morrison, is whether the limitation on the President's power to remove the officer "unduly trammels on executive authority" such that it "interfere[s] impermissibly with his constitutional obligation to ensure the faithful execution of the laws." Whether a given removal limitation crosses this line will necessarily depend on (a) the nature of the limitation, and (b) the nature of the office in question.
As to the latter inquiry -- the nature of the office in question -- the relevant factors are apt to be much like those that inform whether a given officer is properly labeled "principal" or "inferior." Importantly, though, they are not the same inquiry. That is, it is not true that every possible limitation on the removal of a principal officer would necessarily be unconstitutional. Nor is it the case that every possible limitation on the removal of an inferior officer would be permissible. While the inquiries might look at similar facts regarding the nature of the office (breadth of authority and jurisdiction, etc.), they are logically (and constitutionally) distinct.