Clause mechanism—presidential nomination with Senate advice and
consent.113 (Farrand’s Records of the Constitutional Convention includes
only one-half page of information about consideration of the “inferior
Officer” appointments clause, which was inserted into the Constitution
during the final stages of the Convention.)114 But it seems the Framer’s desire
to ensure highly qualified officers were selected also would have caused the
Framers to want the President or a department head to pick high-quality
officers to serve under them, carrying out aspects of the executive power.
Would a court of law, within this accountability framework, have as much
incentive to pick highly qualified executive “officers” who are not in any way
subject to that court’s direction or responsible for helping the judicial branch
carry out its duties?115
ii. Removal and Supervision
Further, the Supreme Court and numerous scholars have observed that one
key mechanism for ensuring executive control over agency action is the
preservation of some ability for the chief executive to effectuate the removal
of insubordinate actors.116 Under longstanding Supreme Court precedent,
“the power to remove is incident to the power to appoint, unless Congress
has placed the removal power elsewhere.”117 Professor Barnett has observed
that, under this doctrine, assigning ALJ appointment power to the D.C.
Circuit presumably would transfer the default removal power to the D.C.
Circuit as well.118
113. See, e.g., 1 FARRAND’S RECORDS, supra note 86, at 119 (June 5) (Wilson: opposing
judicial appointments by the legislature because of the intrigue and partiality associated with
“numerous bodies”); id. (Madison: also expressing disapproval for the appointment of judges
by a “numerous body”); see also Free Enter. Fund, 561 U.S. at 513 (observing that the litigants
in the case had introduced evidence showing the Framers’ distaste for collective appointments
only with respect to the principal appointments process involving advice and consent—not
with respect to the inferior officer nominating process).
114. 2 FARRAND’S RECORDS, supra note 86, at 627–28 (Sept. 15).
115. See Amar, supra note 24, at 809 (“[W]hen an appointing authority is picking its own
assistant, it obviously has strong incentives to pick well. If the subordinate does a bad job,
other government officials and ordinary citizens will and should blame the boss.”).
116. Free Enter. Fund, 561 U.S. at 483–84; Steven G. Calabresi & Saikrishna B. Prakash,
The President’s Power to Execute the Laws, 104 YALE L.J. 541, 599 (1994) (listing removal
as one of the mechanisms that the President needs to maintain adequate control over executive
officers); cf. Neomi Rao, Removal: Necessary and Sufficient for Presidential Control, 65 ALA.
L. REV. 1205, 1207–08 (2014) (noting the importance of removal at will for principal officers).
117. See Barnett, supra note 9, at 844, n. 278; see also U.S. v. Perkins, 116 U.S 483, 484–
85 (1886) (making the related point that Congress’s power to choose the appointment method
for inferior officers carries, incident to it, the power to impose limitations on the removal of
118. See Barnett, supra note 9, at 844–45 (contending that if the D.C. Circuit acquires
the power to appoint ALJs, “the President loses any constitutional power he may have had to