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12/18/2020

Disqualifications and Officers [Updated with a Comment from Martin Lederman]
John Vlahoplus

Regarding this post about General Austin, Section 8 of the 1789 Act  creating the Treasury Department provided “[t]hat no person appointed to any office instituted by this act, shall directly or indirectly be concerned or interested in carrying on the business of trade or commerce, or be owner in whole or in part, of any sea vessel,” or carry on a variety of other conflict of interest transactions.  It punished violators by a fine, removal from office, and permanent disqualification from holding any office under the United States. 

The potential for a conflict of interest from a prior position differs little from that of a current outside interest.  Disqualification for either reason restricts the president’s selection power.  Permanent disqualification restricts the selection power of all presidents, current and future, even further.  Yet the First Congress thought that it had the power to disqualify candidates for presidentially appointed offices, both temporarily and permanently.

The Treasury Act specified violations to be high misdemeanors.  So violators could be impeached, which would be consistent with the sanctions of removal from office and disqualification from future offices.  But the Constitution forbids fines as sanctions for impeachment.  Congress created a shortcut to the Constitution's two step process of impeachment/conviction and subsequent criminal trial.  Moreover, it delegated its powers of removal and permanent disqualification to prosecutors and criminal courts--apparently without waiving its power to impeach and convict independently if it acted before a criminal prosecution or even after a criminal acquittal.  The First Congress was quite comfortable with delegation.

MICHAEL RAMSEY ADDS:  A supporting comment from Martin Lederman (Georgetown):

Check out pages 264-275 of Brandeis's opinion in Myers, listing countless such statutes (yup, eleven pages of footnotes worth).  And even Taft's opinion in Myers v. United States -- the high-water mark of executive authority pre-Seila Law -- concedes this power:

It is argued that the denial of the legislative power to regulate removals in some way involves the denial of power to prescribe qualifications for office, or reasonable classification for promotion, and yet that has been often exercised.  We see no conflict between the latter power and that of appointment and removal, provided, of course, that the qualifications do not so limit selection and so trench upon executive choice as to be, in effect, legislative designation. ...

Article II expressly and by implication withholds from Congress power to determine who shall appoint and who shall remove except as to inferior offices.  To Congress under its legislative power is given the establishment of offices, the determination of their functions and jurisdiction, the prescribing of reasonable and relevant qualifications and rules of eligibility of appointees, and the fixing of the term for which they are to be appointed, and their compensation—all except as otherwise provided by the Constitution. 

This is the modern Executive branch view, embracing the canonical statement by AG Akerman.