“officers.” The above analysis simply points out that whatever view the
Court holds on removal of adjudicators within “independent” agencies—an
oxymoron under first principles, incidentally142—the Court should not let its
removal jurisprudence distort its holdings in Appointments Clause cases.
Even if the Court is reticent to apply its double for-cause removal ban to
“independent” agency adjudicators, the Court should clean up its
Appointments Clause jurisprudence and clearly make a greater swath of
officials wielding federal power subject to “officer” appointments. This
would ensure more federal “officers” are properly subject to democratic
accountability, at least on the front end.
Lastly, Professor Gary Lawson has contended that the real measure of
agency accountability is not whether the President or his subordinates can
effectively remove officers, but whether the President can direct the actions
of executive branch actors.143 In other words, if an officer disregards the law,
may a department head remove that officer but not undo his action?144 If so,
the President really is not in charge and cannot properly take care that laws
Even under this theory of accountability, it makes more sense for Congress
to assign the President or department heads to appoint agency adjudicators
rather than giving the appointing authority to a court of law. Presumably an
agency adjudicator is more likely to comply with the law in his executive
branch duties if he is subject to the direction of the entity who may appoint
or remove him. Moreover, any theoretical benefit of impartiality gained by
having the D.C. Circuit rather than a department head appoint an ALJ is lost
if Article II’s grant of “executive Power” nonetheless permits the President
or his department heads to correct an unlawful executive adjudicative action.
2. Presidential or Departmental Head Appointment of ALJs Might
Still Permissibly Be Subject to a Merit-Based System, Consistent
with First Principles.
142. Cf. Amar, supra note 24, at 810 n.241 (noting the disconnect between the concepts
of independence and inferior officer status: “A truly inferior independent calls to mind a truly
square circle.”); Calabresi & Rhodes, supra note 98, at 1165–66.
143. Lawson, Rise and Rise, supra note 19, at 1243–45 (concluding that the removal
debate has “relatively little constitutional significance” and removal is “either constitutionally
superfluous or constitutionally inadequate”).
144. See id. at 1244.
145. Id. (contending that if an official is removed for “exercis[ing] power contrary to the
President’s directives” but the insubordinate act nonetheless remains “legally valid,” the “
ex-official will have effectively exercised executive power contrary to the President’s wishes,
which contravenes the vesting of that power in the President”).