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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 No. 08–861. Argued December 7, 2009—Decided June 28, 2010

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. Maythe 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 iscontrary to Article II’s vesting of the executive power in the President. The President cannot "take Care that the Laws be faithfully executed" if he cannot oversee the faithfulness of the officers who execute them. Here the President cannot remove an officer who enjoys more thanone level of good-cause protection, even if the President determines that the officer is neglecting his duties or discharging them improperly. That judgment is insteadcommitted to another officer, who may or may not agree with the President’s determination, and whom the President cannot remove simply because that officer disagreeswith him. This contravenes the President’s "constitutional obligation to ensure the faithful execution of the laws."

Id., at 693.

Page 2 of the Opinion

 

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 ownresponsibilities; 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.

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 ownresponsibilities; 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.

Page 33 of the Opinion

TO READ BILL SINGER'S COMPREHENSIVE COMMENTARY, VISIT:

 

 

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