Bar Exam — MBE (Multistate Bar Exam)Constitutional LawHard
A federal law establishes a national commission to investigate and prosecute violations of environmental regulations. The law provides that commissioners are appointed by the President and confirmed by the Senate, but can only be removed by a vote of both houses of Congress. A commissioner, after disagreeing with the President's policy, is removed by a joint resolution of Congress. The commissioner sues, alleging unconstitutional removal. How should the court rule?
- AThe removal is constitutional because Congress has the power to create and define the terms of office for federal commissions.
- BThe removal is unconstitutional because Congress cannot reserve to itself the power to remove executive officers.
- CThe removal is unconstitutional because the President has the sole power to remove executive officers.
- DThe removal is constitutional because the President's removal power is not absolute and can be limited by statute.
Show answer & explanationAnswer & explanation
Correct answer: B. The removal is unconstitutional because Congress cannot reserve to itself the power to remove executive officers.
This question tests the separation of powers regarding executive appointments and removals. While Congress can limit the President's removal power for 'inferior' officers or those in independent agencies, it cannot reserve a removal power for itself over officers charged with executing the law. This would violate the separation of powers by allowing the legislature to intrude upon executive functions (Bowsher v. Synar).
Why the other options are wrong
- A. While Congress creates commissions, it cannot structure them in a way that violates the separation of powers regarding removal.
- C. The President's removal power is not always sole; for independent agencies or inferior officers, Congress can (within limits) restrict it. However, Congress itself cannot exercise it.
- D. The President's removal power can be limited, but not by granting Congress a direct role in removing executive officers.
Congressional Removal Power
The ability of Congress to remove executive officers, which is generally unconstitutional except through impeachment.
- Congress cannot reserve a removal power for itself over officers executing federal law.
- Violates separation of powers.
- The only constitutional removal power for Congress is impeachment.
Memory trick: No Congressional Chains on Executive Hands for Removal.