Partisan balance requirements in the age of new formalism.

Author:Krotoszynski, Ronald J., Jr.
Position:Introduction through II. A Historical Overview of Mandatory Partisan Balance Requirements for Independent Federal Agencies B. The Partisan Balance Requirement in the Twentieth Century, p. 971-979


This Article considers the constitutional status of mandatory partisan balance requirements for presidential appointments to independent federal agencies. Since the 1880s, Congress routinely has included partisan balance requirements, along with fixed terms of office and "good cause" limitations on the President's removal power, as standard design elements in its template for independent federal agencies. Until recently, both federal courts and most legal scholars have assumed the constitutionality of such restrictions on the President's appointment power--and with good reason, given the ubiquity of partisan balance requirements and the executive branch's historical acquiescence to them. However, the Supreme Court's decision in Free Enterprise Fund threatens to upend this well-settled consensus; the decision squarely holds that Congress may not unduly attenuate the President's power to supervise and control executive branch entities--including independent agencies--without violating the separation of powers doctrine. In this Article, we posit that partisan balance requirements, at least when used in conjunction with fixed terms of office and good cause removal limitations, create a problem of at least equal magnitude to the problem identified in Free Enterprise Fund (namely, unduly insulating executive officers with policymaking authority via a two-tiered good cause removal limitation). Under the logic of Free Enterprise Fund, requiring the President to appoint political opponents to principal offices within the executive branch, and then prohibiting the President from removing such appointees except for good cause, unduly compromises the President's ability to supervise and control these agencies. Although Humphrey's Executor settled the constitutional status of good cause limits on the President's removal power for principal officers serving on independent federal agencies, Free Enterprise Fund's broadly formalist reading of the Vesting and Faithful Execution Clauses strongly suggests that the combination of a partisan balance requirement with a good cause removal limit constitutes a bridge too far in the age of new formalism.


Since the 1880s and the creation of the Utah Commission and the Civil Service Commission, (1) Congress routinely has created federal regulatory entities that feature mandatory bipartisan agency heads. In fact, a partisan balance requirement, in conjunction with a fixed term of office and a "good cause" limitation on involuntary removal from office, constitutes a core element of the standard design that Congress uses when creating a so-called "independent" federal agency. (2) The entire purpose of these restrictions is to render the principal officers serving as the heads of such administrative entities less accountable to the President--notwithstanding the fact that these entities exercise executive power and constitute part of the executive branch of the federal government. (3) The imprimatur of history and practice notwithstanding, the Supreme Court's decision in Free Enterprise Fund v. Public Company Accounting Oversight Board (4) could force Congress to abandon the use of mandatory partisan balance requirements for independent federal agencies. (5)

In 1935, the Supreme Court sustained the use of good cause limitations on the President's power to remove a principal executive officer serving on an independent agency. (6) In so doing, it limited the scope of an earlier precedent, Myers v. United States, (7) that seemed to hold that the President must have an unfettered ability to remove executive officers in whom he lacks confidence. (8) Humphrey's Executor and Myers have coexisted, in some tension, since 1935. The standard account reads Myers to prevent Congress from aggrandizing itself by claiming a direct share in the President's removal power, but concurrently reads Humphrey's Executor to permit Congress to limit the President's removal power provided it does not attempt to reserve some part of that power for itself. Thus, and notwithstanding sustained scholarly criticism of Humphrey's Executor, (9) it is a settled aspect of the separation of powers doctrine that Article II's Vesting and Faithful Execution Clauses (10) do not require the President to have plenary power to fire any and all principal and inferior officers working within the executive branch.

To be sure, this standard effort at reconciling Myers and Humphrey's Executor has left more than a little play in the joints. (11) For starters, Humphrey's Executor characterizes the office at issue, serving as a Federal Trade Commission (FTC) member, as not constituting service within the executive branch. Subsequent decisions, such as Morrison v. Olson, (12) wisely abandoned this effort to locate independent agencies in some sort of constitutional Never-land--not a part of Congress, not a part of the executive branch, and not a part of the judiciary. Today, we understand that independent federal agencies do in fact comprise part of the executive branch; (13) even so, however, good cause removal limitations are not unconstitutional provided that the President retains a sufficient ability to oversee and direct the operation of a particular independent agency. (14)

On the other hand, important questions about attenuating presidential control over agencies exist and lack concrete answers. (15) Most significantly, the precise boundary dividing Myers and Humphrey's Executor remains both ambiguous and disputed. Simply put, we do not know with certainty how far Congress may go in limiting the President's ability to direct and supervise the work of independent federal agencies--or, for that matter, the scope of Congress's discretion to insulate other executive branch officers from presidential control. (16)

Until Free Enterprise Fund, a reasonable working assumption would have been that Congress could set any limits it desired on the President's ability to control an independent federal agency provided that Congress did not seek to claim for itself any supervisory authority over the administrative body. (17) After Free Enterprise Fund, however, the world has changed. (18) Now, it has become necessary to inquire not only into whether Congress has aggrandized itself by claiming supervisory authority over a federal regulatory entity, but also to inquire into whether a particular limitation--or combination of limits--on the President's supervisory powers unduly attenuates presidential control and accountability. (19)

In this Article, we consider whether Free Enterprise Fund raises constitutional problems for mandatory partisan balance requirements applicable to the President's appointment of principal and inferior federal executive officers. Congress has not infrequently required the President to name members of the opposition party to principal offices within the executive branch; (20) partisan balance requirements have the purpose and effect of rendering executive agencies less responsive to the President by requiring the President to staff such entities with no more than a majority of her own political cal supporters. If Congress may not constitutionally limit the President's oversight powers by unduly restricting her removal power, it seems quite reasonable to ask whether it is permissible to limit the President's appointment power at the front end of things.

Judge Janice Rogers Brown of the United States Court of Appeals for the D.C. Circuit has forcefully argued for a broad reading of Free Enterprise Fund and suggested that design elements that are constitutional in isolation might be unconstitutional when combined. (21) As she states the proposition, "just because two structural features raise no constitutional concerns independently does not mean Congress may combine them in a single statute." (22) We believe that, at least under a broad reading of Free Enterprise Fund, this premise could well be correct. And, as Professor Huq aptly has noted, "[t]he Free Enterprise Fund principle cannot easily be limited to 'dual for-cause' regimes" (23) and could easily be read broadly to disallow other, even more commonplace structural design elements for independent agencies. (24)

Along similar lines, Professor Peter L. Strauss, a leading scholar of administrative law, has suggested that Free Enterprise Fund could have "enormous" implications for the ability of Congress to insulate federal executive agencies from direct forms of presidential oversight and control. (25) Professor Kevin M. Stack, also a leading administrative law scholar, posits that after Free Enterprise Fund, "[separation of powers has a new endeavor" (26) and that the decision "has the potential to restructure the constitutional footing for agencies with a single level of good-cause removal protection, preserving that protection for dedicated adjudicators but casting it aside for agencies with more than just adjudicative functions." (27) And, yet another administrative law scholar, Professor Kent H. Barnett, has characterized Free Enterprise Fund as portending "independent agency armageddon." (28)

In this Article, we do not claim that Free Enterprise Fund necessarily or inevitably portends "independent agency armageddon" or anything even approaching it (if by "armageddon" one means the end of such entities as we have come to know them since the 1880s). Our claims and ambitions are more modest; the seven seals may well remain intact and the four horsemen unsaddled. The Supreme Court often makes broad pronouncements, thought to indicate a revolution in an important area of the law, such as the separation of powers or federalism, and yet, in the end, little (or nothing) ever really comes of the decision. (29) If read and applied narrowly, the decision could mean only that Congress cannot insulate principal or inferior executive officers from removal through a multilayered system of...

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