                      The President’s Authority to Remove the Chairman of
                           the Consumer Product Safety Commission
             The Chairman of the Consumer Product Safety Commission serves at the pleasure of the President and
               the President has the constitutional authority to remove her for any reason.

                                                                                                July 31, 2001

                           MEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT

                You have asked for our opinion concerning the power of the President to
             remove the Chairman of the Consumer Product Safety Commission (“CPSC”). We
             conclude that the Chairman of the CPSC serves at the pleasure of the President,
             and that the President has the constitutional authority to remove her for any
             reason.

                                                             I.

                Section 2053 of title 15 of the U.S. Code provides that the CPSC shall consist
             of “five Commissioners who shall be appointed by the President, by and with the
             advice and consent of the Senate.” 15 U.S.C. § 2053(a). The President shall
             appoint a Chairman from among the members of the Commission, by and with the
             advice of the Senate, id. § 2053(a), and the members of the Commission annually
             elect a Vice Chairman to act in case of a vacancy in the office of the Chairman, id.
             § 2053(d). Members of the Commission serve seven-year terms. Id. § 2053(b)(1).
             The President may remove “[a]ny member of the Commission” for “neglect of
             duty or malfeasance in office but for no other cause.” Id. § 2053(a).
                The current Chairman of the Commission, Ann Brown, sworn in on March 10,
             1994, serves as both a member of the Commission and its seventh Chairman. In
             June 1999, President Clinton nominated Brown to her second term, which expires
             in October 2006. The Commission’s other members include Mary Sheila Gall,
             who was nominated by President Bush in July 1991 and renominated by President
             Clinton in May 1999. Her current term expires in October 2005. Thomas Hill
             More was nominated by President Clinton to complete a term that expired in
             October 1996. In August 1996, he was confirmed for his current full term, which
             expires in October 2003. According to the Commission’s Office of Public Affairs,
             the Commission elected More to a one-year term as Vice Chairman in June 2001.
             The other two positions on the Commission are currently vacant.

                                                            II.

                The President’s ability to remove subordinates is one of his most important
             constitutional powers. As head of the Executive Branch, the President has the duty




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         to “take Care that the Laws be faithfully executed.” U.S. Const. art. II, § 3. In
         order to fulfill this responsibility, the Chief Executive must be able to supervise
         subordinate officials and to coordinate Executive Branch policies and positions.
         See generally Myers v. United States, 272 U.S. 52 (1926). The power to remove is
         the power to control. As a result, the Supreme Court and the Executive Branch 1
         have consistently recognized that the Constitution restricts congressional efforts to
         limit the President’s removal authority, so as to preserve the President’s ability to
         enforce the laws. Morrison v. Olson, 487 U.S. 654, 690-91 (1988). As reflected in
         the great debate over removal in the very first Congress, the Framers rejected a
         legislative role in removal in favor of plenary presidential power over officers
         appointed by the President with the advice and consent of the Senate. See Bowsher
         v. Synar, 478 U.S. 714, 723-24 (1986); Myers, 272 U.S. at 111-44. Indeed, the
         power to remove should be seen as a necessary component of the vesting of all of
         the federal executive power in one President in Article II, Section 1 of the
         Constitution.
             To be sure, the Court has refused to invalidate all limitations on presidential
         authority over all Executive Branch officials. In Humphrey’s Executor v. United
         States, 295 U.S. 602 (1935), the Court upheld a for-cause removal provision over
         members of the Federal Trade Commission due to the Commission’s “quasi-
         legislative or quasi-judicial” functions. Id. at 628. In Wiener v. United States, 357
         U.S. 349 (1958), the Court inferred the existence of a for-cause limitation on
         removal, but again because the official in question, a member of the War Claims
         Commission, performed a quasi-judicial function. Most recently, in Morrison v.
         Olson, the Court upheld a for-cause removal provision for an independent counsel
         who performed investigatory and prosecutorial functions. The Court allowed a
         limitation on removal, however, only because the inferior officer involved
         performed a narrow, sharply limited, and highly unusual role that addressed the
         difficult issue of investigating the conduct of high-ranking Executive Branch
         officials. The Morrison Court further found that the limitation on the removal
         power did not unconstitutionally infringe on the President’s Article II powers, due
         to the Attorney General’s continuing ability to control and supervise the independ-
         ent counsel.
             In light of these cases, it is clear that the Constitution generally reserves to the
         President alone the power to remove officials within the Executive Branch, subject
         to certain narrow exceptions. Even the congressional efforts that were upheld in
         Humphrey’s Executor, Wiener, and Morrison were recognized by the Court as
         raising serious constitutional problems due to the possible infringement of the
         President’s powers under Article II of the Constitution. At a minimum, therefore,


            1
              See The Constitutional Separation of Powers Between the President and Congress, 20 Op. O.L.C.
         124, 166-70 (1996); Common Legislative Encroachments on Executive Branch Authority, 13 Op.
         O.L.C. 248, 252-53 (1989).




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             this Office believes that Congress must state explicitly its intention to challenge
             the President’s authority to remove subordinate officials. Indeed, unless Congress
             signals a clear intention otherwise, a statute should be read to preserve the
             President’s removal power, so as to avoid any potential constitutional problems.
             Cf. Public Citizen v. U.S. Dep’t of Justice, 491 U.S. 440, 466 (1989) (construing
             statute to avoid unconstitutional infringement on executive powers); Ass’n of Am.
             Physicians & Surgeons v. Clinton, 997 F.2d 898, 906-11 (D.C. Cir. 1993) (same).
                Here, the statute establishing the CPSC does not include any limitation on the
             President’s power to remove the Chairman. In the absence of such a provision, the
             statute is best read as not interfering with the President’s plenary power to remove
             Executive Branch officials. Constitutional problems would arise if such a provi-
             sion were to be implied; even section 2053(a)’s for-cause removal provision for
             Commissioners itself could prove to be unconstitutional. For example, none of the
             factors that led the Morrison Court to uphold the independent counsel law—that
             the independent counsel was an inferior officer, that her jurisdiction and powers
             were narrowly limited, and that the Attorney General still had supervisory
             authority over the independent counsel—is present here. In order to avoid the
             difficult constitutional questions that would arise concerning the President’s
             Article II powers, section 2053 must be interpreted as creating no restrictions on
             the President’s ability to remove the CPSC Chairman.
                One might argue that Wiener—the sole Supreme Court case inferring a for-
             cause provision in the face of statutory silence—suggests a different outcome. It is
             clear, however, that the Wiener Court believed such protections necessary because
             the official in question performed purely adjudicatory duties affecting the rights of
             private individuals. 357 U.S. at 354-56. The CPSC’s powers do not remotely
             approach the discrete dispute-resolution functions of Wiener’s War Claims
             Commission, which heard claims by Americans who suffered personal injury or
             property damage at the hands of the enemy during World War II. Instead, the
             CPSC’s main responsibilities include conducting research and collecting data on
             product safety, 15 U.S.C. § 2054, promulgating product safety regulations, id.
             § 2056, banning hazardous products, id. § 2057, and the right to bring civil suits in
             federal court, id. § 2071. The CPSC has no adjudicatory functions, certainly none
             that resembles the pure claims-settlement role of the War Claims Commission. 2
                Conversely, the War Claims Commission had no rulemaking or law-
             enforcement functions like those of the CPSC. Indeed, the CPSC more closely
             resembles the structure of the FTC, whose for-cause removal provision was upheld

                 2
                   While the CPSC has issued regulations that discuss its “adjudicative proceedings,” see 16 C.F.R.
             § 1025.1, these rules appear to apply to hearings that the Commission conducts in connection with the
             exercise of its regulatory duties, rather than the adjudication of private rights similar to that performed
             by courts. In fact, private parties who suffer harm from CPSC rules, and suits by those injured by
             noncompliant products, must file lawsuits directly in federal court. See 15 U.S.C. §§ 2060(a), 2072,
             2073.




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         in Humphrey’s Executor. Even then, however, the Court required an explicit
         provision restricting the President’s removal authority, which is not present here.
         No for-cause removal protection for the CPSC Chairman can be inferred from the
         CPSC’s statutory duties. 3
             The Chairman’s specific functions further reinforce this interpretation. The
         CPSC’s statute provides that the Chairman “shall be the principal executive officer
         of the Commission, and he shall exercise all of the executive and administrative
         functions of the Commission.” Id. § 2053(f)(1). Thus, by statute, the Chairman is
         differentiated from those of the other Commissioners solely by her executive
         duties. The Wiener Court’s willingness to infer a limit on the President’s removal
         power, therefore, would be even less appropriate here. The purely executive
         functions of the Chairman qua Chairman also help explain why Congress would
         intend different conditions for the removal of the Chairman as opposed to removal
         of the Commissioners generally.

                                                         III.

             This reading is further bolstered by other parts of the CPSC’s statutory text.
         Section 2053(a) seeks to limit the President’s authority to remove Commission
         members by establishing a for-cause requirement. Under standard canons of
         statutory construction, the inclusion of a provision in one part of a statute, and its
         absence in another part, indicates that the first provision does not apply in the
         latter context. See, e.g., Lindh v. Murphy, 521 U.S. 320, 326-30 (1997) (applying
         canon of expressio unius); Cipollone v. Liggett Group, Inc., 515 U.S. 504, 517
         (1992) (same). Specification of grounds for the removal of a Commission member,
         and the failure to address the removal of the Chairman, demonstrate Congress’s
         intention not to limit the President’s removal powers over the Chairman. The
         Chairman serves at the pleasure of the President.
             Legislative history further confirms this reading of the text. In 1978, Congress
         amended the law establishing the CPSC to make clear that the Chairman served at
         the pleasure of the President. As originally enacted in 1972, the Consumer Product
         Safety Act had stated that:

                  An independent regulatory commission is hereby established, to be
                  known as the Consumer Product Safety Commission, consisting of
                  five Commissioners who shall be appointed by the President, by and
                  with the advice and consent of the Senate, one of whom shall be des-
                  ignated by the President as Chairman. The Chairman, when so des-


             3
               In other contexts, this Office has questioned whether Wiener’s rationale makes sense and whether
         the case remains good law. See The Constitutional Separation of Powers Between the President and
         Congress, 20 Op. O.L.C. at 168 n.115.




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                      ignated shall act as Chairman until the expiration of his term of
                      office as Commissioner. Any member of the Commission may be
                      removed by the President for neglect of duty or malfeasance in office
                      but for no other cause.

             Pub. L. No. 92-573, § 4(a), 86 Stat. 1207, 1210 (1972) (emphasis added). It was
             thought that this provision did not make clear whether the Chairman served at the
             pleasure of the President, or whether he held the chairmanship as long as his term
             as a Commissioner. One might construe the Act as requiring that in order to
             remove a Chairman, the President would have to remove him as a Commissioner
             as well. Because the statute limited the removal of commissioners, the original
             version of the Act thus might have been understood as limiting the President’s
             removal power over the Chairman.
                In amending the statute in 1978, Congress clarified the CPSC removal provi-
             sions. While Congress decided to subject the selection of the Chairman to
             senatorial advice and consent, it also made clear that the Chairman served at the
             pleasure of the President. The statutory language was changed to:

                      An independent regulatory commission is hereby established, to be
                      known as the Consumer Product Safety Commission, consisting of
                      five Commissioners who shall be appointed by the President, by and
                      with the advice and consent of the Senate. The Chairman shall be
                      appointed by the President, by and with the advice and consent of the
                      Senate, from among the Members of the Commission. An individual
                      may be appointed as a member of the Commission and as Chairman
                      at the same time. Any member of the Commission may be removed
                      by the President for neglect of duty or malfeasance in office but for
                      no other cause.

             Pub. L. No. 95-631, § 2(a), 92 Stat. 3742, 3742 (1978) (emphasis added). The
             statute removed the provision that had tied the term of the chairmanship to the
             term of the commissioner appointed to the post. This had the additional effect of
             delinking the conditions of the Chairman’s removal, if there had been any, from
             the conditions under which the President could remove Commissioners. 4
                Congress fully appreciated the importance of the new language. In its report on
             the 1978 Act, the Senate Commerce Committee observed that this change made
             clear that the “chairman of the agency shall serve at the pleasure of the President.”


                 4
                   The 1990 amendments to the Act added the following sentence: “In making such appointments,
             the President shall consider individuals who, by reason of their background and expertise in areas
             related to consumer products and protection of the public from risks to safety, are qualified to serve as
             members of the Commission.” Pub. L. No. 101-608, § 102, 104 Stat. 3110, 3110 (1990). This part of
             section 2053(a) is not involved in this matter.




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         S. Rep. No. 95-889, at 10 (1978). In introducing the bill on the floor, Senator Ford
         declared that “[t]his legislation amends the act to provide that the Commission
         Chairman serve at the pleasure of the President with the advice and consent of the
         Senate.” 124 Cong. Rec. 24,362 (1978). In introducing the House version,
         Representative Eckhardt stated that the legislation “would provide that the
         Chairman of the Commission serve at the pleasure of the President and be
         appointed with the advice and consent of the Senate.” 124 Cong. Rec. 38,620
         (1978). In agreeing to the House version, which contained the same language on
         removal as the Senate’s bill, Senator Ford told the Senate that the legislation
         continued to provide “that the Chairman of the Commission serve at the pleasure
         of the President with Senate advice and consent.” 124 Cong. Rec. 37,646 (1978).
         It seems clear that Senator Ford’s references to the Senate’s advice and consent
         role relate to the appointment of the Chairman (as it is settled that the Senate
         cannot condition removal of executive officials on its own advice and consent),
         while his discussion of the service of the Chairman at the pleasure of the President
         refers to removal. The Senate Report and Representative Eckhardt’s description of
         the 1978 amendments made clear the new change: that the appointment of the
         Chairman would require the Senate’s advice and consent, but that otherwise he
         would serve at the pleasure of the President.

                                                       IV.

            We conclude that the President has the authority to remove the Chairman of the
         CPSC for any reason. Upon her removal, she will still continue to serve as a
         Commissioner. Under 15 U.S.C. § 2053(d), the Vice Chairman of the Commission
         will assume the post of Chairman.

                                                                JOHN C. YOO
                                                        Deputy Assistant Attorney General
                                                            Office of Legal Counsel




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