Appointment and Removal

Myers v. United States

272 U.S. 52 (1926) · Westlaw

Frank Myers was a first-class postmaster in Portland, Oregon. An 1876 statute said such postmasters could be removed only “by and with the advice and consent of the Senate.” Wilson’s Postmaster General removed him anyway, and his administratrix sued for the unpaid salary. Chief Justice Taft — the only President ever to sit on the Court — wrote seventy pages holding the statute unconstitutional. This is where the module starts, and it is the maximalist position against which everything else is measured.

The holding. “Our conclusion on the merits… is that Article II grants to the President the executive power of the Government, i. e., the general administrative control of those executing the laws, including the power of appointment and removal of executive officers — a conclusion confirmed by his obligation to take care that the laws be faithfully executed.” 272 U.S. at 163–164. And Article II “excludes the exercise of legislative power by Congress to provide for appointments and removals, except only as granted therein to Congress in the matter of inferior offices.” Id. at 164.

The reasoning is functional before it is textual. “The vesting of the executive power in the President was essentially a grant of the power to execute the laws. But the President alone and unaided could not execute the laws. He must execute them by the assistance of subordinates.” Id. at 117. Therefore: “as his selection of administrative officers is essential to the execution of the laws by him, so must be his power of removing those for whom he can not continue to be responsible.” Ibid. Taft’s fear is stated plainly — that Congress would otherwise have “the means of thwarting the Executive… by fastening upon him, as subordinate executive officers, men who by their inefficient service under him, by their lack of loyalty to the service, or by their different views of policy, might make his taking care that the laws be faithfully executed most difficult or impossible.” Id. at 131.

The Decision of 1789 does the historical work, and it is worth seeing how much weight is placed on it. Taft says “the vote was, and was intended to be, a legislative declaration that the power to remove officers appointed by the President and the Senate vested in the President alone.” Id. at 114. Then acquiescence: “from 1789 until 1863, a period of 74 years, there was no act of Congress, no executive act, and no decision of this Court at variance with the declaration of the First Congress.” Id. at 163. Notice the form of this argument — an early practice, long unchallenged, treated as fixing constitutional meaning. It is Frankfurter’s gloss argument from Youngstown and Breyer’s from Noel Canning, and here it is deployed by the side claiming executive power rather than resisting it.

Three Justices dissented. Holmes’s dissent occupies a single page and is the most economical thing in the volume. The office, he says, “owes its existence to Congress and… Congress may abolish tomorrow. Its duration and the pay attached to it while it lasts depend on Congress alone… With such power over its own creation, I have no more trouble in believing that Congress has power to prescribe a term of life for it free from any interference than I have in accepting the undoubted power of Congress to decree its end.” Id. at 177. The Article II arguments “seem to me spider’s webs inadequate to control the dominant facts.” Ibid. And the closer: “The duty of the President to see that the laws be executed is a duty that does not go beyond the laws or require him to achieve more than Congress sees fit to leave within his power.” Ibid.

Brandeis supplies the sentence the whole module turns on: “The doctrine of the separation of powers was adopted by the Convention of 1787, not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was, not to avoid friction, but, by means of the inevitable friction incident to the distribution of the governmental powers among three departments, to save the people from autocracy.” Id. at 293. He adds a construction principle worth carrying: an implied inherent executive power “must… be limited to ‘the least possible power adequate to the end proposed.’” Id. at 246–247. McReynolds also dissented separately.

Two questions. First, Taft wrote far more broadly than the postmaster before him required, extending the holding to officials with “duties of a quasi-judicial character.” Nine years later Humphrey’s Executor disapproved exactly those passages — and a century later Trump v. Slaughter overruled Humphrey’s Executor and restored something close to Taft’s rule. Was Myers wrong for sixty years and then right, or was it always right and merely unenforced? Second, weigh Holmes against Taft directly. If Congress may abolish an office entirely, why may it not condition the tenure of the office it creates? Taft’s answer is that the removal power is constitutional rather than statutory and so cannot be conditioned by the body that creates the office. Is that answer available to anyone who accepts, as Taft did, that the office exists only by Congress’s grace?

A reporter note: no numerical vote is printed. The syllabus and the head of the opinion carry no tally. What the container supports is that three Justices dissented — Holmes at 177, McReynolds at 178, Brandeis at 240. If you have seen this cited as 6–3, that figure came from somewhere else.

Wiener v. United States

357 U.S. 349 (1958) · Westlaw

Congress created the War Claims Commission to adjudicate claims for injuries suffered at the hands of the enemy, gave it a fixed life, and said nothing whatever about removal. President Eisenhower removed a Commissioner because he wanted “[Commissioners] of my own selection.” Wiener sued for his salary. The reason this short case is assigned is that it takes Humphrey’s Executor and does something Humphrey’s Executor did not have to do: apply its principle to a statute with no for-cause clause at all.

Frankfurter’s opinion begins by clearing the ground. Myers was written far more broadly than its facts: “Speaking through a Chief Justice who himself had been President, the Court did not restrict itself to the immediate issue before it, the President’s inherent power to remove a postmaster, obviously an executive official.” 357 U.S. at 351. But “[t]he assumption was short-lived… Within less than ten years a unanimous Court, in Humphrey’s Executor v. United States, 295 U.S. 602, narrowly confined the scope of the Myers decision to include only ‘all purely executive officers.’” Id. at 352. (Read “unanimous Court” carefully — it describes the 1935 Court, not this one.)

The move that makes the case. In Humphrey’s Executor Congress had supplied a for-cause provision, so the Court could ask whether Congress may restrict removal. Here Congress supplied nothing, so the question is whether a restriction can be inferred. Frankfurter answers that silence is not neutral: “This is another instance in which the most appropriate legal significance must be drawn from congressional failure of explicitness. Necessarily this is a problem in probabilities.” Id. at 352–353. And then the controlling principle: “the most reliable factor for drawing an inference regarding the President’s power of removal in our case is the nature of the function that Congress vested in the War Claims Commission.” Id. at 353.

That function was adjudication. “The fact that it chose to establish a Commission to ‘adjudicate according to law’ the classes of claims defined in the statute did not alter the intrinsic judicial character of the task with which the Commission was charged.” Id. at 355. Claims were to be decided “on the merits of each claim, supported by evidence and governing legal considerations, by a body that was ‘entirely free from the control or coercive influence, direct or indirect’” of either political branch. Ibid. Hence the a fortiori: if the President could not lean on the Commission in a particular claim, “a fortiori must it be inferred that Congress did not wish to have hang over the Commission the Damocles’ sword of removal by the President for no reason other than that he preferred to have on that Commission men of his own choosing.” Id. at 355–356.

The holding, at 356: “the claim that the President could remove a member of an adjudicatory body like the War Claims Commission merely because he wanted his own appointees on such a Commission… we are compelled to conclude that no such power is given to the President directly by the Constitution, and none is impliedly conferred upon him by statute simply because Congress said nothing about it.”

Three questions, and the third is the one that matters now. First, this is the high-water mark of the functional approach. Removal protection is inferred from the nature of the job, with no statutory hook at all. Compare Morrison, which asks whether a restriction impedes the President’s constitutional duty, and Seila Law, which starts from a presumption of unrestricted removal. Chart the direction of travel across those three and you have the module. Second, Frankfurter notes that Eisenhower’s stated ground “was precisely the same as President Roosevelt’s removal of Humphrey.” Id. at 354. Both wanted their own people. Is wanting your own appointees an illegitimate reason for removal, or the most ordinary reason there is?

Third: Trump v. Slaughter overruled Humphrey’s Executor in June 2026 on the ground that its quasi-legislative/quasi-judicial categories were a fiction. But Wiener’s reasoning is not about labels — it is about adjudication of individual claims on evidence. Ask whether Slaughter reaches a body like the War Claims Commission, and if it does, what happens to the adjudicators still scattered through the government: administrative law judges, the Merit Systems Protection Board, the Board of Veterans’ Appeals. Lucia, later in this module, expressly reserved the removal question for ALJs. That reservation is now where the action is.

A reporter note: no numerical vote is printed, and no separate opinion appears — no concurrence, no dissent, no recusal noted. The container supports saying the Court was unanimous in the sense that no Justice wrote or was recorded separately. It does not support printing “9–0,” because no tally and no count of participating Justices is given.

Buckley v. Valeo

424 U.S. 1 (1976) · Westlaw

You will meet Buckley again in the First Amendment course for what it did to campaign finance. Here it is assigned for one sentence. The Federal Election Commission had six voting members: two appointed by the President, two by the President pro tempore of the Senate, two by the Speaker of the House — and all six subject to confirmation by both Houses. The Court held that a body so composed could not exercise the enforcement, rulemaking and litigating powers Congress had given it.

The definition — this is the sentence the module is built on. “We think its fair import is that any appointee exercising significant authority pursuant to the laws of the United States is an ‘Officer of the United States,’ and must, therefore, be appointed in the manner prescribed by § 2, cl. 2, of that Article.” 424 U.S. at 126. Everything downstream in this module runs through it: Edmond asks which kind of officer, Lucia asks whether an ALJ clears the bar, Free Enterprise Fund and Seila Law ask what may be done about removing them. Learn it verbatim.

The Court is emphatic that the Clause admits of no functional carve-out. “Unless their selection is elsewhere provided for, all officers of the United States are to be appointed in accordance with the Clause… No class or type of officer is excluded because of its special functions.” Id. at 132. And it warns against reading the provision as ceremonial: “The Appointments Clause could, of course, be read as merely dealing with etiquette or protocol in describing ‘Officers of the United States,’ but the drafters had a less frivolous purpose in mind.” Id. at 125.

The officer/employee line lives in a footnote, and you should cite it as one. “Employees are lesser functionaries subordinate to officers of the United States,” whereas the Commissioners, “appointed for a statutory term, are not subject to the control or direction of any other executive, judicial, or legislative authority.” Id. at 126 n.162. Note how thin the distinction is as stated — subordination and direction — and notice that Edmond will later use exactly those concepts to draw a different line, between principal and inferior officers. The same vocabulary, doing two different jobs.

Why congressional appointment fails is a textual argument. The second part of the Clause lets Congress vest appointments in “the Courts of Law, or in the Heads of Departments,” and “neither the Speaker of the House nor the President pro tempore of the Senate comes within this language.” Id. at 127. The inference: “While the Clause expressly authorizes Congress to vest the appointment of certain officers in the ‘Courts of Law,’ the absence of similar language to include Congress must mean that neither Congress nor its officers were included.” Ibid. The holding, at 143: “most of the powers conferred by the Act upon the Federal Election Commission can be exercised only by ‘Officers of the United States,’ appointed in conformity with Art. II, § 2, cl. 2… and therefore cannot be exercised by the Commission as presently constituted.”

But note the limit the Court draws, because it is the seed of Chadha and Bowsher. Congress keeps what is genuinely legislative: nothing in the holding denies Congress “all power to appoint its own inferior officers to carry out appropriate legislative functions,” id. at 128, and a non-Article II appointee “may… properly perform duties only in aid of those functions that Congress may carry out by itself, or in an area sufficiently removed from the administration and enforcement of the public law,” id. at 139. The Court quotes Springer: “Not having the power of appointment, unless expressly granted or incidental to its powers, the legislature cannot engraft executive duties upon a legislative office, since that would be to usurp the power of appointment by indirection.” Id. at 139–140.

Two questions. First, “significant authority” is doing enormous work and the Court never defines it. Its only calibration is by example — if a first-class postmaster and a district court clerk are inferior officers, “surely the Commissioners before us are at the very least such ‘inferior Officers.’” Id. at 126. That sets a floor, not a test. Try to state the test in a form a court could apply to a federal employee who drafts guidance documents, or one who signs subpoenas, or one who decides a benefits claim. Second, Buckley is the appointments-side companion to Bowsher’s removal-side holding and Chadha’s presentment holding: three cases, one decade, all saying Congress may legislate but may not administer. State the common principle in a sentence. Then ask whether it is a principle or three applications of an intuition about where Congress should stop.

A reporter note, and this one is unusual. No numerical vote is printed for any part of the case. In place of a tally the reporter prints a part-by-part join line-up at 424 U.S. 5, in which different Justices joined different Parts — the Appointments Clause discussion is Part IV. The opinion is per curiam, so there is no named author. Stevens, J., took no part, printed twice, at 5 and 144. Any “8–0” figure for this case comes from outside the reporter.

Bowsher v. Synar

478 U.S. 714 (1986) · Westlaw

The Gramm-Rudman-Hollings deficit control act set declining deficit targets and, if they were missed, required across-the-board cuts in amounts calculated by the Comptroller General. The Comptroller General heads the General Accounting Office and is removable by Congress by joint resolution for enumerated causes. The Court held that Congress could not assign him that job.

The holding. “[W]e conclude that Congress cannot reserve for itself the power of removal of an officer charged with the execution of the laws except by impeachment. To permit the execution of the laws to be vested in an officer answerable only to Congress would, in practical terms, reserve in Congress control over the execution of the laws.” 478 U.S. at 726. And the syllogism that closes it: “The structure of the Constitution does not permit Congress to execute the laws; it follows that Congress cannot grant to an officer under its control what it does not possess.” Ibid.

The Chadha link is explicit, and this is why the case sits next to Chadha in the course. “To permit an officer controlled by Congress to execute the laws would be, in essence, to permit a congressional veto. Congress could simply remove, or threaten to remove, an officer for executing the laws in any fashion found to be unsatisfactory to Congress. This kind of congressional control over the execution of the laws, Chadha makes clear, is constitutionally impermissible.” Id. at 726–727. Later, the general principle: “once Congress makes its choice in enacting legislation, its participation ends. Congress can thereafter control the execution of its enactment only indirectly — by passing new legislation.” Id. at 734.

Why the Comptroller General’s task counts as execution. “Interpreting a law enacted by Congress to implement the legislative mandate is the very essence of ‘execution’ of the law… He must also interpret the provisions of the Act to determine precisely what budgetary calculations are required. Decisions of that kind are typically made by officers charged with executing a statute.” Id. at 733. That sentence is broader than the case needs, and you should notice how broad it is — on its face it makes every agency interpretation an exercise of executive power, which is precisely the premise Trump v. Slaughter deploys forty years later to overrule Humphrey’s Executor.

White’s dissent is the strongest thing in the volume, and it turns the majority’s own analogy against it. He concedes the label: “I have no quarrel with the proposition that the powers exercised by the Comptroller under the Act may be characterized as ‘executive.’” Id. at 765. What he denies is the inference — that a for-cause-removable officer is thereby Congress’s agent. Then the decisive point: the removal provision requires a joint resolution, “which by definition must be passed by both Houses and signed by the President.” Id. at 767. “In other words, a removal of the Comptroller under the statute satisfies the requirements of bicameralism and presentment laid down in Chadha.” Ibid. So the very case the majority relies on supplies the answer to it. His conclusion: “the threat to separation of powers conjured up by the majority is wholly chimerical.” Id. at 774. He also rejects the majority’s method: “Such meaningless labels are quite obviously irrelevant to the question whether in actuality the Comptroller is so subject to congressional domination that he may not participate in the execution of the laws.” Ibid.

Stevens, concurring in the judgment, rejects both the majority’s and the dissent’s shared premise: “Nor do I agree with the conclusion of both the majority and the dissent that the analysis depends on a labeling of the functions assigned to the Comptroller General as ‘executive powers.’” Id. at 737. He would have decided the case on the ground that the Comptroller General is an agent of Congress exercising legislative power without bicameralism and presentment.

Three questions. First, answer White. If removal requires a law — passed by both Houses and signed by the President — in what sense does Congress “control” the officer? The majority’s answer is about the threat of removal rather than its exercise. Is a threat that requires the President’s own signature a threat? Second, note that the Comptroller General had never been removed by joint resolution in the sixty-five years the provision had existed. The Court invalidates a statute on the strength of a power never used. Is that a strength of formalism (structural rules should not wait for abuse) or its weakness (a rule detached from any real dynamic)? Third, place this case in the trio with Chadha and Buckley: Congress may not veto, may not appoint, may not remove. Each holding is defensible alone. Is there a single principle underneath, or three?

A reporter note: no numerical vote is printed. The reporter gives the narrative line-up at 716 — Burger, C. J., with Brennan, Powell, Rehnquist and O’Connor; Stevens concurring in the judgment, joined by Marshall; White and Blackmun dissenting separately. Derive the arithmetic yourself; do not quote a tally to the reporter.

Edmond v. United States

520 U.S. 651 (1997) · Westlaw

The Secretary of Transportation appointed civilian judges to the Coast Guard Court of Criminal Appeals. If those judges were principal officers, the appointment was invalid — only the President with Senate confirmation could make it. If they were inferior officers, Congress could vest the appointment in a department head, and it had. So the case required the Court to do what Morrison had expressly declined to do: draw the line.

The test — this is why the case is assigned, and the pin cite is 663, not 662. “[I]n the context of a Clause designed to preserve political accountability relative to important Government assignments, we think it evident that ‘inferior officers’ are officers whose work is directed and supervised at some level by others who were appointed by Presidential nomination with the advice and consent of the Senate.” 520 U.S. at 663. The setup, one page earlier: “Generally speaking, the term ‘inferior officer’ connotes a relationship with some higher ranking officer or officers below the President: Whether one is an ‘inferior’ officer depends on whether he has a superior. It is not enough that other officers may be identified who formally maintain a higher rank, or possess responsibilities of a greater magnitude.” Id. at 662.

Do not confuse this line with Buckley’s. Scalia says so directly: “The exercise of ‘significant authority pursuant to the laws of the United States’ marks, not the line between principal and inferior officer for Appointments Clause purposes, but rather, as we said in Buckley, the line between officer and nonofficer.” Ibid. Two questions, two tests. Buckley: officer or employee. Edmond: principal or inferior. Students routinely collapse them; the exam will not.

What happens to Morrison’s four factors. Scalia restates them — removal by a higher officer, limited duties, narrow jurisdiction, limited tenure, 487 U.S. at 671–672 — then concedes that “the last two of these conclusions do not hold with regard to the office of military judge at issue here.” 520 U.S. at 661. So he must neutralize them: “Morrison did not purport to set forth a definitive test for whether an office is ‘inferior’ under the Appointments Clause.” Ibid. And he quotes Morrison against itself: “We need not attempt here to decide exactly where the line falls between the two types of officers.” Id. at 661–662. This is a lesson in technique. A later Court did not overrule Morrison’s factors; it read them as an observation about one case rather than a rule, and then supplied the rule. Watch for the same move in Seila Law’s treatment of Humphrey’s Executor, and in Slaughter’s treatment of Morrison.

The application turns on finality, not on importance. The Court concedes these judges exercise significant authority. What matters is control: the Judge Advocate General may remove a judge from his assignment without cause — “The power to remove officers, we have recognized, is a powerful tool for control,” id. at 664, citing Bowsher and Myers — though he “may not attempt to influence (by threat of removal or otherwise) the outcome of individual proceedings,” ibid. The decisive criterion: “What is significant is that the judges of the Court of Criminal Appeals have no power to render a final decision on behalf of the United States unless permitted to do so by other Executive officers.” Id. at 665.

Souter’s separate opinion is the necessary caution, and it is why the “Edmond test” is less settled than it sounds. He joins Parts I and II only. His point is logical: “Because the term ‘inferior officer’ implies an official superior, one who has no superior is not an inferior officer. It does not follow, however, that if one is subject to some supervision and control, one is an inferior officer. Having a superior officer is necessary for inferior officer status, but not sufficient to establish it.” Id. at 667. His counterexample: “under Morrison, the Solicitor General of the United States, for example, may well be a principal officer, despite his statutory ‘inferiority’ to the Attorney General.” Id. at 668. He declines “the convenience of a single sufficient condition” and would look in detail at powers and duties. Ibid.

Three questions. First, Souter is plainly right as a matter of logic — everyone below the President has a superior of some kind, so supervision cannot by itself distinguish. What saves Scalia’s test from proving that every officer but a department head is inferior? Look again at the finality criterion at 665 and ask whether that, rather than supervision, is doing the work. Second, apply the test to the Special Counsel operating under Justice Department regulations, to an SEC administrative law judge (compare Lucia), and to the Director of the CFPB (compare Seila Law). Third, note the structural irony: Scalia dissented alone in Morrison and nine years later wrote the opinion that quietly displaced its test. Ask whether Edmond is a faithful reading of Morrison or a polite overruling, and what turns on the difference.

A reporter note: no numerical vote is printed, and the structure is unusual. The judgment was unanimous, but Souter joined only Parts I and II — so eight Justices joined Part III, which contains the test. The reporter’s narrative line-up is at 652.

Free Enterprise Fund v. Public Company Accounting Oversight Board

561 U.S. 477 (2010) · Westlaw

Sarbanes-Oxley created the Public Company Accounting Oversight Board to regulate the auditors of public companies. Board members were removable by the Securities and Exchange Commission only for good cause; the Commissioners themselves were understood to be removable by the President only for cause. Two layers. The Court held the combination unconstitutional — and in doing so wrote the accountability argument that Seila Law and Trump v. Slaughter would later run on.

The question, and it was genuinely new. “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?” 561 U.S. at 483–484. The holding: “We hold that such multilevel protection from removal is contrary 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.” Id. at 484. Formally, at 492: “the dual for-cause limitations on the removal of Board members contravene the Constitution’s separation of powers.”

Why the second layer matters — the passage to learn. “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.” Id. at 495. And even if he disagrees with the Commission’s judgment, “he is powerless to intervene — unless that determination is so unreasonable as to constitute ‘inefficiency, neglect of duty, or malfeasance in office.’” Id. at 496.

The reasoning is about accountability to the public, not merely control: “Without the ability to oversee the Board, or to attribute the Board’s failings to those whom he can oversee, the President is no longer the judge of the Board’s conduct… He can neither ensure that the laws are faithfully executed, nor be held responsible for a Board member’s breach of faith.” Ibid. Hence “The diffusion of power carries with it a diffusion of accountability,” id. at 497–498, and without a clear chain of command the public cannot “determine on whom the blame or the punishment of a pernicious measure… ought really to fall,” id. at 498. The slippery-slope point is real and the Government conceded it: “if Congress can shelter the bureaucracy behind two layers of good-cause tenure, why not a third? At oral argument, the Government was unwilling to concede that even five layers between the President and the Board would be too many.” Id. at 497.

The remedy is severance, and it decides much of the case’s practical significance. “Concluding that the removal restrictions are invalid leaves the Board removable by the Commission at will, and leaves the President separated from Board members by only a single level of good-cause tenure.” Id. at 509. The Act “remains ‘fully operative as a law’” without them. Ibid. Note the pattern: the Court finds a structural violation and then cures it by deleting the tenure protection rather than the agency. Seila Law does the same, and Collins extends the logic to past agency action. A separation-of-powers holding remedied by severance leaves the institution standing and strips the independence — which is a choice about who wins that the constitutional analysis does not itself compel.

Breyer’s dissent, joined by Stevens, Ginsburg and Sotomayor, makes two arguments. The conceptual one: “the Court fails to show why two layers of ‘for cause’ protection… impose any more serious limitation upon the President’s powers than one layer.” Id. at 525. And he notes the remedy does not even fix the identified problem: so long as the President cannot remove the Commissioners except for cause, “The President will still be ‘powerless to intervene’ by removing the Board members if the Commission reasonably decides not to do so.” Ibid.

The practical argument is the one that has aged best, and it is worth the numbers. “I still see no way to avoid sweeping hundreds, perhaps thousands of high-level Government officials within the scope of the Court’s holding.” Id. at 540–541. He counted: 48 agencies whose heads are removable only for cause, 573 senior officials just below the top, 1,584 administrative law judges across more than 25 agencies, and over 210,000 active-duty commissioned officers. Id. at 541, 542–543. Then the question that is still open: “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?” Id. at 543. And: “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?” Id. at 544.

Two questions. First, take Breyer’s counting seriously as a legal argument rather than a policy complaint. Does the number of officials a rule unsettles bear on whether the rule is right? The majority says no and defers the applications; Collins v. Yellen, later in this module, is the Court finally answering the remedial half. Second, this case is the hinge between the old framework and the new one. It does not overrule anything — it identifies a “new type of restriction” and forbids it. Ten years later Seila Law reduces the exceptions to two; sixteen years later Slaughter removes them. Read the accountability passage at 496 and ask whether it contains any limiting principle at all, or whether, once accepted, it entails everything that followed.

A reporter note: no numerical vote is printed. The reporter gives only the narrative line-up at 482 — Roberts, C. J., with Scalia, Kennedy, Thomas and Alito; Breyer dissenting with Stevens, Ginsburg and Sotomayor. The familiar “5–4” appears nowhere in the U.S. Reports text.

NLRB v. Noel Canning

573 U.S. 513 (2014) · Westlaw

The President made three recess appointments to the National Labor Relations Board during a three-day break between pro forma Senate sessions held every few days precisely to prevent recess appointments. The Court held the appointments invalid — unanimously in result — but split five to four on why, and the disagreement is a disagreement about method that runs through this whole module.

Three holdings, all of them the President’s way except the last. (1) “[T]he phrase ‘the recess’ includes an intra-session recess of substantial length.” 573 U.S. at 527. (2) On which vacancies qualify: “we conclude that the phrase ‘all vacancies’ includes vacancies that come into existence while the Senate is in session.” Id. at 549. (3) But: “a recess of more than 3 days but less than 10 days is presumptively too short to fall within the Clause. We add the word ‘presumptively’ to leave open the possibility that some very unusual circumstance — a national catastrophe, for instance, that renders the Senate unavailable but calls for an urgent response — could demand the exercise of the recess-appointment power during a shorter break.” Id. at 538. And (4), the holding that decided the case: “the Senate is in session when it says it is, provided that, under its own rules, it retains the capacity to transact Senate business.” Id. at 550. That deference is not unlimited — “When the Senate is without the capacity to act, under its own rules, it is not in session even if it so declares.” Id. at 516.

The historical-practice passage is why this case is in this module. “Second, in interpreting the Clause, we put significant weight upon historical practice. For one thing, the interpretive questions before us concern the allocation of power between two elected branches of Government.” Id. at 524. Breyer grounds it in McCulloch — a doubtful question about “the respective powers of those who are equally the representatives of the people… if not put at rest by the practice of the government, ought to receive a considerable impression from that practice” — and in The Pocket Veto Case: “[l]ong settled and established practice is a consideration of great weight in a proper interpretation of constitutional provisions.” Ibid. And the Court makes the Youngstown connection itself, citing Frankfurter’s concurrence directly and quoting through Mistretta that “traditional ways of conducting government… give meaning” to the Constitution. Id. at 525. Note how far the Court is willing to go: practice counts “even when the nature or longevity of that practice is subject to dispute, and even when that practice began after the founding era.” Ibid. Applied here, “three-quarters of a century of settled practice is long enough.” Id. at 533.

Scalia, concurring in the judgment, joined by Roberts, C. J., Thomas and Alito, would read the Clause narrowly on both questions: “the Recess of the Senate” means “the intermission between two formal legislative sessions,” and “happen during the Recess” means “offices that become vacant during that intermission.” Id. at 569. “Both conditions are clear from the Constitution’s text and structure, and both were well understood at the founding.” Ibid.

His attack on the majority’s method is the passage to hold against Breyer’s. He calls it “an adverse-possession theory of executive authority: Presidents have long claimed the powers in question, and the Senate has not disputed those claims with sufficient vigor.” Id. at 570. The decision “transforms the recess-appointment power from a tool carefully designed to fill a narrow and specific need into a weapon to be wielded by future Presidents against future Senates.” Ibid. His principle: ”‘[p]ast practice does not, by itself, create power.’” Id. at 573. And the limiting condition — “a self-aggrandizing practice adopted by one branch well after the founding, often challenged, and never before blessed by this Court… does not relieve us of our duty to interpret the Constitution in light of its text, structure, and original understanding.” Ibid. The summation: “What the majority needs to sustain its judgment is an ambiguous text and a clear historical practice. What it has is a clear text and an at-best-ambiguous historical practice.” Id. at 613.

Three questions. First, state the conditions under which practice should count. Both opinions accept that it sometimes does; they disagree about when. Scalia offers three disqualifiers — self-aggrandizing, post-founding, contested. Are those the right three, and would they leave anything of Frankfurter’s gloss in Youngstown? Second, notice that here practice is invoked to expand executive power, whereas in Youngstown Frankfurter’s gloss was invoked to expand it and Vinson’s catalogue likewise. Is the practice argument structurally biased toward the branch that acts? Congress legislates rarely and the President acts constantly, so practice accumulates asymmetrically. Third, the ten-day rule is a number found nowhere in the Constitution. Ask what kind of interpretive move produces it, and whether a court that will not draw a line at 5% versus 10% of a state budget in NFIB should be drawing one here.

A reporter note: no numerical tally is printed. The line-up is at 517. The judgment was unanimous — all nine agreed the appointments were invalid — while the Court divided five to four in reasoning, four Justices concurring only in the judgment. “Unanimous” and “5–4” are both true of this case and describe different things; say which you mean.

Lucia v. Securities and Exchange Commission

585 U.S. 237 (2018) · Westlaw

The SEC charged Raymond Lucia under the Investment Advisers Act and assigned the case to one of its administrative law judges, who had been hired by staff rather than appointed by the Commission. Lucia argued the ALJ was an Officer of the United States and had therefore never been validly appointed. He won.

The holding. “This case requires us to decide whether administrative law judges (ALJs) of the Securities and Exchange Commission (SEC or Commission) qualify as such ‘Officers.’ In keeping with Freytag v. Commissioner, 501 U.S. 868 (1991), we hold that they do.” Opinion of the Court. The framing is narrow and worth noting: “The sole question here is whether the Commission’s ALJs are ‘Officers of the United States’ or simply employees of the Federal Government.”

The framework is Germaine plus Buckley. Germaine supplies the tenure element — an individual “must occupy a ‘continuing’ position established by law to qualify as an officer.” Buckley supplies the power element: officers are those who “exercis[ed] significant authority pursuant to the laws of the United States,” so “[t]he inquiry thus focused on the extent of power an individual wields in carrying out his assigned functions.” Opinion of the Court.

Then the Court declines to say what “significant authority” means. Both sides asked it to elaborate. “The standard is no doubt framed in general terms, tempting advocates to add whatever glosses best suit their arguments… And maybe one day we will see a need to refine or enhance the test Buckley set out so concisely. But that day is not this one.” Ibid. Instead it decides by analogy: the special trial judges in Freytag were “near-carbon copies of the Commission’s ALJs,” and Freytag’s analysis “necessarily decides this case.” SEC ALJs “take testimony,” “conduct trials,” “rule on the admissibility of evidence,” and “have the power to enforce compliance with discovery orders.” This is worth sitting with as a matter of judicial method. Forty-two years after Buckley announced the governing test, the Court still will not define its operative term, and resolves the case by finding a sufficiently similar prior case. Ask whether that is admirable minimalism or an abdication that guarantees another forty years of litigation.

One point of distinction actually strengthens the ALJs’ claim: unlike the Freytag judges, “the SEC can decide against reviewing an ALJ’s decision, and when it does so the ALJ’s decision itself ‘becomes final’ and is ‘deemed the action of the Commission.’” Compare Edmond, where the absence of final decisionmaking authority made military judges inferior officers. Finality does different work in the two cases; be able to say what.

The remedy has teeth. A litigant who makes a timely Appointments Clause challenge gets “a new ‘hearing before a properly appointed’ official” — “And we add today one thing more. That official cannot be Judge Elliot, even if he has by now received (or receives sometime in the future) a constitutional appointment… He cannot be expected to consider the matter as though he had not adjudicated it before.” Opinion of the Court. The reason is candidly instrumental: remedies are “designed not only to advance those purposes directly, but also to create ’[ ]incentive[s] to raise Appointments Clause challenges.’” Id. n.5. Set that against Collins v. Yellen, the last reading in this module, where a removal violation produces no automatic relief at all. Appointments defects void the action; removal defects, after Collins, generally do not. Whether that distinction survives scrutiny is the question Collins leaves you.

What the Court refused to decide is now the whole ballgame. In a footnote it declined, twice, to address “whether the statutory restrictions on removing the Commission’s ALJs are constitutional,” because “[n]o court has addressed that question, and we ordinarily await ‘thorough lower court opinions.’” Opinion of the Court n.1. Breyer, concurring in the judgment in part, thought that reservation untenable: “If the Free Enterprise Fund Court’s holding applies equally to the administrative law judges — and I stress the ‘if’ — then to hold that the administrative law judges are ‘Officers of the United States’ is, perhaps, to hold that their removal protections are unconstitutional. This would risk transforming administrative law judges from independent adjudicators into dependent decisionmakers, serving at the pleasure of the Commission.”

Two questions. First, Breyer’s “if” was answered in stages — Seila Law, Collins, and then Trump v. Slaughter in June 2026. Work out what remains of ALJ independence, and remember that ALJs decide Social Security claims, immigration matters and veterans’ benefits for individuals with no other forum. Second, hold Wiener beside this case. There, adjudicative function generated removal protection by implication from silence. Here, adjudicative function generates officer status — which is the doorway to losing removal protection. The same characteristic, sixty years apart, cutting opposite ways. Explain how that happened.

A note on citation: the case cite is 585 U.S. 237, confirmed against the Court’s own bound volume. But this note quotes no page, because the text was taken from the slip opinion, which restarts its pagination in each opinion and prints the reporter page as a blank. Quotations are attributed by opinion — the Court’s, Breyer’s, Sotomayor’s — and you should pin to the reporter if you cite a passage in written work.

Collins v. Yellen

594 U.S. 220 (2021) · Westlaw

Shareholders of Fannie Mae and Freddie Mac challenged an amendment to the enterprises’ agreements with Treasury, and argued that the Federal Housing Finance Agency’s structure — a single Director removable only for cause — was unconstitutional under Seila Law. They won on the merits and got almost nothing for it. This case is assigned for two propositions, and the second one is the one students miss.

One: the merits, which were easy. “The Recovery Act’s for-cause restriction on the President’s removal authority violates the separation of powers. Indeed, our decision last Term in Seila Law is all but dispositive.” Opinion of the Court, Part III–B. “The FHFA (like the CFPB) is an agency led by a single Director, and the Recovery Act (like the Dodd-Frank Act) restricts the President’s removal power.”

And the sentence that shows how far Seila Law reached. Amicus argued the FHFA is different — it administers one statute rather than nineteen, regulates a handful of government-sponsored enterprises rather than millions of private actors, has little rulemaking and enforcement authority, and a much smaller budget. The Court answered: “the nature and breadth of an agency’s authority is not dispositive in determining whether Congress may limit the President’s power to remove its head. The President’s removal power serves vital purposes even when the officer subject to removal is not the head of one of the largest and most powerful agencies.” Ibid. The practical reason given is that “[c]ourts are not well-suited to weigh the relative importance of the regulatory and enforcement authority of disparate agencies” — and even “modest” tenure protection is forbidden for an agency with a single top officer.

Notice what that does. Seila Law had emphasized the CFPB’s vast power; a reader could have thought the holding was about concentrated authority in one insulated person. Collins removes that limit. Justice Kagan, concurring in part, says so plainly: the rule does not “hinge[ ]” on “the nature and breadth of an agency’s authority… Any ‘agency led by a single Director,’ no matter how much executive power it wields, now becomes subject to the requirement of at-will removal. And the majority’s broadening is gratuitous — unnecessary to resolve the dispute here.” Justice Sotomayor, dissenting in part, joined by Breyer: “Never before, however, has the Court forbidden simple for-cause tenure protection for an Executive Branch officer who neither exercises significant executive power nor regulates the affairs of private parties.” Watch the mechanism: a case is decided on narrow facts, and the next case strips the narrowing rationale away. You saw the same sequence from Free Enterprise Fund to Seila Law to Slaughter.

Two: the remedy, and this is the part to learn cold. “All the officers who headed the FHFA during the time in question were properly appointed. Although the statute unconstitutionally limited the President’s authority to remove the confirmed Directors, there was no constitutional defect in the statutorily prescribed method of appointment to that office. As a result, there is no reason to regard any of the actions taken by the FHFA… as void.” Part III–C. The Appointments Clause cases are distinguished because they “involved a Government actor’s exercise of power that the actor did not lawfully possess” — Lucia is cited by name. And a warning against misreading Seila Law: its standing holding “does not mean that actions taken by such an officer are void ab initio and must be undone.” Id. n.24.

What a plaintiff must show instead. “[I]t is still possible for an unconstitutional provision to inflict compensable harm.” The Court offers two illustrations: a President who “attempted to remove a Director but was prevented from doing so by a lower court decision holding that he did not have ‘cause’”; or one who “made a public statement expressing displeasure with actions taken by a Director and had asserted that he would remove the Director if the statute did not stand in the way. In those situations, the statutory provision would clearly cause harm.” Ibid. So the remedy for an unconstitutional removal restriction turns on proving counterfactual presidential intent.

Gorsuch, alone, would not join that. “Either way, governmental action is taken by someone erroneously claiming the mantle of executive power — and thus taken with no authority at all. The Court points to not a single precedent in 230 years of history for the distinction it would have us draw.” And on the test itself: “Instead of applying our traditional remedy for constitutional violations like these, the Court supplies a novel and feeble substitute,” requiring courts to run “some guessing game about what might have transpired in another timeline.” Thomas, concurring, would go the other way — that a removal restriction’s invalidity does not by itself taint anything, because “the President always had the legal power to remove the Director in a manner consistent with the Constitution.”

Two questions. First, is the appointment/removal distinction defensible? An improperly appointed officer never held the office; an improperly insulated one did. That is a real difference — but Gorsuch’s answer is that in both cases the action is taken by someone the Constitution did not authorize to take it. Decide which, and notice that your answer determines whether Slaughter unsettles decades of agency action or none of it. Second, put the two halves of this case together: the merits rule is maximally broad and the remedy is nearly empty. Is that a coherent package — a Court serious about structure and unwilling to impose chaos — or a way of announcing a constitutional principle while ensuring it costs nothing? Say which, and say what it implies for whether anyone will bother to litigate the next one.

A note on citation: the case cite is 594 U.S. 220, confirmed against the Court’s own preliminary print. But this note quotes no page, because the text was taken from the slip opinion, which restarts its pagination in each opinion and prints the reporter page as a blank; quotations are attributed by opinion and part, and you should pin to the reporter if you cite a passage in written work. Note also that no single vote number describes this case: the joinders are part-by-part, with Kagan and Breyer joining all but Part III–B, Gorsuch all but Part III–C, and Sotomayor only Parts I, II and III–C.

United States v. Arthrex, Inc.

594 U.S. 1 (2021) · Westlaw

The Patent Trial and Appeal Board decides, in a proceeding called inter partes review, whether a patent the Patent Office already granted should be canceled. It sits in panels of administrative patent judges. More than two hundred of those judges are appointed by the Secretary of Commerce, not by the President with the Senate’s consent. Their decisions were final within the Executive Branch: the statute gave no one above them, not even the Director of the Patent Office, the power to review a panel’s decision. Arthrex lost a patent and argued that judges with that much unreviewable power were principal officers, whom only the President can appoint with Senate confirmation. The case is assigned because it applies Edmond’s supervision test to agency judges, and because its remedy shows how the Court now fixes an Appointments Clause problem: by giving a politically accountable officer the last word.

The holding. Roberts, for five on the merits: “the unreviewable authority wielded by APJs during inter partes review is incompatible with their appointment by the Secretary to an inferior office.” Opinion of the Court, Part II. The Court did not decide whether the judges are principal officers who were improperly appointed or inferior officers wielding power only a principal officer may wield. It held that the combination could not stand. The reason runs straight through Edmond: an inferior officer is one “whose work is directed and supervised at some level” by a Senate-confirmed officer. Here the Director could pick the panel and set policy, but could not change the result in a case. And “it certainly is the norm for principal officers to have the capacity to review decisions made by inferior adjudicative officers.” 594 U.S. at 20 (as quoted in Kennedy v. Braidwood Management, Inc., 606 U.S. 748, 774 (2025)).

The remedy — learn this part. The Court did not strike down the Board or order a new panel. It refused to enforce only the statutory bar on review, so the Director may now review a panel’s final decision and issue a decision himself for the Board. Arthrex got a remand so the Acting Director could decide whether to rehear the case — not a new hearing before new judges: “Because the source of the constitutional violation is the restraint on the review authority of the Director, rather than the appointment of APJs by the Secretary, Arthrex is not entitled to a hearing before a new panel of APJs.” Opinion of Roberts, C.J., Part III. The rule, in the Court’s own summary: “the exercise of executive power by inferior officers must at some level be subject to the direction and supervision of an officer nominated by the President and confirmed by the Senate.” Ibid. Part III was Roberts for four; Breyer, Sotomayor and Kagan concurred in that part of the judgment, which gave the remedy seven votes. Compare Lucia, where the defect was the appointment itself and the remedy was a new hearing before a different judge.

The dissents. Thomas would have held the judges to be inferior officers, validly appointed by the Secretary, because they have superiors who direct their work in other ways. Breyer, joined by Sotomayor and Kagan, dissented from the merits. He argued that the Court had invented a function-by-function rule and saw the decision as “one part of a larger shift in our separation-of-powers jurisprudence.” Breyer, J., concurring in the judgment in part and dissenting in part. Gorsuch joined the merits but not the remedy: he would not have rewritten the statute’s review structure to save it.

Where this sits in the module. Put three cases side by side. Edmond: supervision by a principal officer makes you inferior. Arthrex: power no principal officer can review makes you something an inferior-officer appointment cannot support. Braidwood (2025): removal at will plus power to review the output makes you inferior, even when the statute calls you “independent.” The through-line is the one Free Enterprise Fund, Seila Law and Slaughter run on for removal: someone the President controls must be answerable for what the agency finally does.

Two questions. First, the Court fixed the problem by making the Director — a political appointee — the final word on whether a patent survives. Is that better for a patent owner than a panel of expert judges no one can overrule? Say who gains and who loses. Second, after Arthrex, could Congress make the Board’s decisions final again by requiring Senate confirmation of every patent judge? What would that cost, and is the cost the point?

A note on citation: the case is 594 U.S. 1. The text consulted is the slip opinion, which prints the reporter page as a blank, so quotations from it are attributed by part; the two pins given are as Braidwood quotes them from the bound volume. The line-up: Roberts for the Court on the merits (Parts I and II), joined by Alito, Gorsuch, Kavanaugh and Barrett; Part III joined by Alito, Kavanaugh and Barrett; Gorsuch concurring in part and dissenting in part; Breyer, joined by Sotomayor and Kagan, concurring in the judgment in part and dissenting in part; Thomas dissenting, joined by Breyer, Sotomayor and Kagan as to Parts I and II.

Kennedy v. Braidwood Management, Inc.

606 U.S. 748 (2025) · Westlaw

The U.S. Preventive Services Task Force is a panel of sixteen medical experts. When it recommends a preventive service — a cancer screening, a medication that prevents HIV — the Affordable Care Act requires most health insurers to cover that service at no cost to the patient. So the Task Force’s recommendations bind millions of insurance contracts. Its members were appointed by the Secretary of Health and Human Services, not by the President with the Senate’s consent, and the statute says they “shall be independent and, to the extent practicable, not subject to political pressure.” Braidwood, an employer that objected to covering one of the recommended services, argued that officers whose recommendations bind the whole insurance market, and whom the statute calls independent, must be principal officers. The Fifth Circuit agreed. The Supreme Court reversed, six to three. The case is assigned because it is the newest application of Edmond, and because it shows what “independent” can and cannot mean after Seila Law and Arthrex.

The holding, in one paragraph of the opinion. Kavanaugh, for the Court: “The Task Force members are removable at will by the Secretary of HHS, and their recommendations are reviewable by the Secretary before they take effect. So Task Force members are supervised and directed by the Secretary, who in turn answers to the President, preserving the chain of command in Article II.” 606 U.S. at 754 (citing Edmond, 520 U.S. at 663). Two levers make an officer inferior: the superior can fire him at will, and the superior can stop his work from taking effect. The Task Force members had both.

What “independent” means now. The hard part of the case was the statute’s promise of independence. The Court read it narrowly: it “means at most that Task Force members can exercise independent judgment in generating recommendations on the front end — in the same way that the Coast Guard judges in Edmond and the patent judges in Arthrex made initial adjudicative decisions free from direction by superiors.” Id. at 774. That is the model of agency adjudication the Court endorses: an expert or a judge decides first, and a politically accountable superior can review before anything becomes final. Quoting Arthrex: “it certainly is the norm for principal officers to have the capacity to review decisions made by inferior adjudicative officers.” Ibid. (quoting 594 U.S. at 20). And the Court chose that reading partly to save the statute. A reading under which the members exercise independent judgment but the Secretary “maintains authority to review and block” their recommendations “is at the very least a reasonable one,” and it “avoids making the statute’s method of appointment … unconstitutional.” Id. at 776.

Notice who argued what. “The Executive Branch under both President Trump and President Biden has argued that the Preventive Services Task Force members are inferior officers.” Id. at 754. Both administrations wanted the Secretary in control. The side asking for independence was the private challenger, because independence was what made the appointment unconstitutional.

The dissent. Thomas, joined by Alito and Gorsuch, fought on different ground. The Appointments Clause’s default is appointment by the President with the Senate’s approval, and Congress may depart from it for inferior officers “but only if it does so expressly.” Id. at 794 (Thomas, J., dissenting). No statute expressly gave the Secretary this appointment power; the Government built it on appeal out of “two ambiguously worded statutes enacted decades apart.” Id. at 795. He would not have ruled on that new theory at all.

Where this sits in the module. Braidwood completes the set. Edmond (1997) says supervision makes you inferior. Arthrex (2021) says a principal officer must be able to review your final decisions. Braidwood (2025) says that removal at will plus power to block your output is enough, whatever the statute calls you. Put it next to Slaughter (2026), and the pattern is plain: for both appointment and removal, the Court now asks one question — does a line of control run from this officer to the President?

Two questions. First, the statute said the Task Force should be free from “political pressure.” After this case, a Secretary who disagrees with a recommendation can block it and fire the members who made it. Is there anything left of Congress’s instruction, or did the Court save the statute by reading its central promise out of it? Second, the Court read the statute to avoid a constitutional problem. When a court does that, whose preferences end up in the statute — Congress’s, or the Court’s?

A note on citation: pins are to the preliminary print of 606 U.S., which is subject to formal revision before the bound volume. The opinion is Kavanaugh’s for the Court, joined by Roberts, Sotomayor, Kagan, Barrett and Jackson. Thomas dissents, joined by Alito and Gorsuch.