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How are key agency personnel appointed and removed?
In both executive and independent administrative agencies, the President has the authority to nominate the governing personnel (directors, secretaries, boards, commissioners, etc.) for appointment and to remove those individuals.
Appointment of Administrative Agency Officials
Following nomination for appointment by the President, the Senate must vote to confirm the nominee. Congress cannot take part in the appointment process outside of providing advice about the nomination during the confirmation hearing. To keep the key personnel somewhat independent of the President, the individuals generally serve staggered terms that are longer than the President’s 4-year term. This prevents the sitting President from appointing all of the leadership of an agency at one time. Further, federal statutes often require that the governing board or commission of independent agencies be bipartisan, with a certain number of individuals coming from outside of the President’s political party.
Removal of Administrative Agency Officials
The President generally has the authority to remove key leaders from administrative agencies. While the President’s authority to remove individuals from executive agencies is unlimited, there may be any number of limitations on the ability to remove members of independent agencies. For instance, Congress may pass a statute limiting this authority. These statutes normally require proof of incapacity, neglect of duty, malfeasance, or good cause before the President can remove an official. This is particularly true if the agency primarily serves a regulatory function. Congress may also reserve the ability to vote to remove an independent administrative official. This authority is limited by the function of the agency. If the independent agency exercises any executive powers, such as enforcement or statutes, Congress cannot take part in removing the agent. If Congress wants to remove an agency official acting in an executive capacity (any of the heads of executive agencies), it must initiate impeachment proceedings.
Discussion: What do you think about the requirement for bipartisan representation on administrative boards? Do you agree with the broad authority of the President to remove members of executive agencies? Do you think Congress should have greater authority in this regard? Conversely, do you think statutes limiting the President’s removal authority are excessive?
- Your opinion may be skewed by your political preference and the political party of the executive in office at any point in time. There is a sound argument for greater Executive autonomy in this regard; however, there is an equally sound argument that the executive is checked by the Judicial and Legislative Branches in this regard. While Congress retains the ability to impeach appointed officials, having the ability to approve or reject the the removal of officials would certain expand its authority.
Practice Question: David is an executive member of a federal administrative agency. He was nominated by the President and confirmed by the Senate. What information about the agency and David’s position is required to determine the process or procedure for removing David from his position?
- The first question is whether it is an executive or an independent agency. If an executive agency, the President can unilaterally remove him from office for any reason. If it is an independent agency, the President may be limited by statute regarding his ability to remove David.
Magill, M. Elizabeth and Vermeule, Adrian, Allocating Power Within Agencies (March 24, 2010). Yale Law Journal, Vol. 120, p. 1032, 2011; Harvard Public Law Working Paper No. 10-20. Available at SSRN: https://ssrn.com/abstract=1577723
Bertelli, Anthony M. and Feldmann, Sven E., Strategic Appointments. Journal of Public Administration Research and Theory, Forthcoming. Available at SSRN: https://ssrn.com/abstract=896599
Froomkin, A. Michael, Note, In Defense of Administrative Agency Autonomy (1987). Yale Law Journal, Vol. 96, 1987. Available at SSRN: https://ssrn.com/abstract=2715762