Partisan Balance Requirements in the Age of New Formalism

79 Pages Posted: 5 Apr 2015

See all articles by Ronald J. Krotoszynski Jr.

Ronald J. Krotoszynski Jr.

University of Alabama - School of Law

Johnjerica Hodge

United States Court of Appeals, Fifth Circuit

Wesley Wintermyer

Government of the United States of America

Date Written: April 3, 2015

Abstract

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.

Keywords: Constitutional law, administrative law, separation of powers, formalism, functionalism, unitary executive, partisan balance requirements, independent federal agencies, Article II, expertise, agencies, confirmation, appointments, Free Enterprise Fund, presidency, bipartisanship, President, presidency

Suggested Citation

Krotoszynski, Ronald James and Hodge, Johnjerica and Wintermyer, Wesley, Partisan Balance Requirements in the Age of New Formalism (April 3, 2015). Notre Dame Law Review, Vol. 90, No. 3, 2015, U of Alabama Legal Studies Research Paper No. 2589534, Available at SSRN: https://ssrn.com/abstract=2589534

Ronald James Krotoszynski (Contact Author)

University of Alabama - School of Law ( email )

P.O. Box 870382
Tuscaloosa, AL 35487
United States

Johnjerica Hodge

United States Court of Appeals, Fifth Circuit ( email )

United States

Wesley Wintermyer

Government of the United States of America ( email )

Washington, DC 20551
United States

Do you have negative results from your research you’d like to share?

Paper statistics

Downloads
61
Abstract Views
653
Rank
637,858
PlumX Metrics