@Setanta,
Setanta wrote:Article Two, Section Two, second paragraph, reads, in it's entirety:
He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
All cabinet departments have been created by public law as passed by Congress, in pursuance of the powers granted to Congress by Article One, Section eight. The only power the president would have would be to refuse to sign a bill creating a cabinet department, which could be over-ridden by a two thirds vote of both houses.
That there are executive branch officers in implied by the constitution, but is not specifically mentioned, other than in Article II, Section Two, first and second clauses. The First Congress created the initial executive branch departments by public law.
For the record, I voted this post that I am responding too back UP. It was a politely stated argument, and did not deserve any votedown so far as I can see.
Anyway, I agree with what was said above, but I also don't see anything in it that contradicts the President's absolute power to fire anyone in the federal executive branch. Or his similar absolute power to order executive branch officers to not pursue an investigation.
Setanta wrote:I've already mentioned Andrew Johnson, and Humphrey's Executor v. United States (1935)
And I've already pointed out that the law in the Andrew Johnson case was blatantly unconstitutional, and that the 1935 Humphrey case dealt only with the President's power to fire judicial and legislative officers, and not with officers in the executive branch.
Setanta wrote:--additionally, the Court denied the president's right to fire executive branch officers below cabinet level in Wiener v. United States (1958),
That is incorrect. That case dealt only with the President's ability to fire judicial officers.
Setanta wrote:and a district court confirmed Nixon's lack of power to fire the special counsel in Nader v. Bork, 1973.
District court judges spout all sorts of unconstitutional nonsense. Higher courts set them straight.
Setanta wrote:The Court has held that Congress cannot create an executive branch department which is not under the authority of the president, but since the latter half of the 19th century, enabling acts for cabinet level positions have reserved the right of dismissal of inferior officers to Congress,
Clearly contrary to the Constitution, and therefore invalid.
Setanta wrote:and in some cases, have reserved the right of appointment--the power for which stipulation, Federal courts and the Supreme Court have upheld.
Well yes. The Constitution gives Congress a bit of say regarding the
appointment of executive officers. This power doesn't extend any further than approving of appointments though. The power to command and fire executive officers lies entirely with the President.