Aristotle Wurtz

Constitutional Law

Question 1

Should the President have a right to remove the director of FBI, the head of the CIA, and the
head of the N.S.A?

Introduction and Overview:

The President has various controls over agencies. The President has the duty to “take
care that the Laws be faithfully executed”. In order to take care of the laws, he has the
responsibility to appoint members to the agencies. Specifically, the president has the ability to
appoint with the advice and consent of the Senate all Principle/Superior Officers of the U.S. He
also has limited ability to appoint inferior officers, depending on whether Congress permits and
allows him to do so. The Congress has to vest him with this power, or he is unable to execute
these appointments. The difference between Principle/Superior officers and Inferior officers is
that Superior officers include heads of independents agencies in the executive branch and heads
of all executive departments. Superior officers also include other high level offices within these
departments. Inferior offices are subordinate to these superior officers, and have the ability to
exercise significant authority within the laws and attached to the laws of the United States. The
President doesn’t have the ability to appoint employees who can’t be considered “officers of the
United States”.

The removal of these appointed officers is somewhat the same, but there are some
differences. For, example the President doesn’t have unlimited power to remove all its
appointees. He is unable to remove individuals who Congress restricts the President from
removing them. These individuals or officers include ones who are involved with quasi-
legislative or quasi-judicial powers. In addition, the Congress has the authority to prevent the
President from removing various inferior officers. In the case of Morrison, the Supreme Court
decided that the presidential powers don’t extend to the removal of all inferior officers.

Answer:

Considering this, the President does have a right to remove the director of the FBI, the
head of the CIA, and the head of the NSA. He appoints both the heads of the CIA and FBI, and
has the right to consent to the appointment made by the Secretary of the Department of Defense
on who should be the head of the NSA. These are all superior officers who are not involved with
quasi-legislative or quasi-judicial matters.

The President shouldn’t have the power to remove all three of these head officers. With
this power, the President has a great deal of national security control. This could lead to radical
changes in national security authority. This may hurt consistency within the defense of our
country. One of the Constitution’s primary goals was to limit the power of the President and
maintain a balance of powers within the three branches of government. If the President has the
ability to appoint all the head of our defense agencies and the right to remove them, he has an
overwhelming amount of control. This extensive control may give the President a great deal of
ability to protect our nation in times of turmoil, but it goes against what our country was founded
upon.

Question 1

Special Prosecutor: Does President of the United States have a right to remove the one he
appointed or those appointed by others?

Answer:

This question was punted by the Supreme Court in the case of United States v Nixon. The
Congress gave the power to the attorney General to conduct criminal investigations involving
government officials. The Attorney General in the 1970 picked a Watergate Special Prosecutor
to investigate the details and situation involving the Watergate break-in. The Court gave the
authority of the Special Prosecutor to take a President to court, but it didn’t decide on the issue of
whether the President could remove the Special Prosecutor before the trial or anytime.

The Watergate Controversy.—A dispute arose regarding the discharge of the Special
Prosecutor appointed to investigate and prosecute violations of law in the Watergate matter.
Congress vested in the Attorney General the power to conduct the criminal litigation of the
Federal Government,522 and it further authorized him to appoint subordinate officers to
assist him in the discharge of his duties.523 Pursuant to presidential direction, the Attorney
General designated a Watergate Special Prosecutor with broad power to investigate and
prosecute offenses arising out of the Watergate break–in, the 1972 presidential election,
and allegations involving the President, members of the White House staff, or presidential
appointees. He was to remain in office until a date mutually agreed upon between the
Attorney General and himself, and the regulations provided that the Special Prosecutor “will
not be removed from his duties except for extraordinary improprieties on his part.”524 On
October 20, following the resignations of the Attorney General and the Deputy Attorney
General, the Solicitor General as Acting Attorney General formally dismissed the Special
Prosecutor525 and three days later rescinded the regulation establishing the office.526 In
subsequent litigation, it was held, by a federal district court, that the firing by the Acting
Attorney General had vio[p.528]lated the regulations, which were in force at the time and
which had to be followed until they were rescinded.527 The Supreme Court in United States
v. Nixon528 seemed to confirm this analysis by the district court in upholding the authority
of the new Special Prosecutor to take the President to court to obtain evidence in the
President’s possession. Left unsettled were two questions, the power of the President
 himself to go over the heads of his subordinates and to fire the Special Prosecutor himself,
whatever the regulations said, and the power of Congress to enact legislation establishing
an Office of Special Prosecutor free from direction and control of the President.529 When
Congress acted to create an office, first called the Special Prosecutor and then the
Independent Counsel, resolution of the question became necessary.

"CRS/LII Annotated Constitution Article II." LII | Legal Information Institute at Cornell Law School. Web. 28
Feb. 2011. <http://www.law.cornell.edu/anncon/html/art2frag28_user.html>.

"Delegation Doctrine." Google. Web. 28 Feb. 2011. <http://webcache.googleusercontent.com/search?

q=cache:3ha8rGXhZT8J:usf.usfca.edu/org/sba/outline_docs/2010/admin_law/Midterm-Honigsberg-Spring
%202010.doc delegation doectrine itelligeble
principle&cd=2&hl=en&ct=clnk&gl=us&source=www.google.com>.