Also known as: appointment powers · power of appointment
Written by attorneys — see sources below.
2 senses
A power granted to a beneficiary or other person to direct the disposition of trust property to designated objects. The power may be general, allowing appointment to the holder or the holder's creditors, or special, limited to a defined class. A presently exercisable general power of appointment qualifies as a power of withdrawal when the holder may demand trust assets unilaterally without trustee consent or an ascertainable standard.
The authority vested in the President by Article II to nominate and appoint ambassadors, public ministers, consuls, Supreme Court justices, and other officers of the United States. Principal officers require Senate confirmation while Congress may vest appointment of inferior officers in the President alone, courts of law, or heads of departments.
Each sense below has its own examples, sources, and questions.
A power granted to a beneficiary or other person to direct the disposition of trust property to designated objects. The power may be general, allowing appointment to the holder or the holder's creditors, or special, limited to a defined class. A presently exercisable general power of appointment qualifies as a power of withdrawal when the holder may demand trust assets unilaterally without trustee consent or an ascertainable standard.
Antonio Alvarado is the sole lifetime beneficiary of a trust holding Apex Dynamics shares. The instrument permits him to demand any amount of principal at any time by written notice alone. A judgment creditor seeks to reach the shares. Antonio's right constitutes a presently exercisable general power of appointment that qualifies as a power of withdrawal reachable by the creditor.
Adrian Aguilar is beneficiary of a trust holding Arcadia Retail property. He may withdraw parcels only after obtaining written consent from co-trustee Abigail Alvarez, who also holds a remainder interest. Because the withdrawal right requires consent from a person with an adverse interest, it does not qualify as a power of withdrawal.
2 common questions
A beneficiary's right qualifies when it is a presently exercisable general power of appointment that the beneficiary may exercise unilaterally. The definition excludes powers held by a trustee and limited by an ascertainable standard or powers exercisable only with the consent of a trustee or adverse party.
Supporting sources
The authority vested in the President by Article II to nominate and appoint ambassadors, public ministers, consuls, Supreme Court justices, and other officers of the United States. Principal officers require Senate confirmation while Congress may vest appointment of inferior officers in the President alone, courts of law, or heads of departments.
The Attorney General seeks appointment of an independent counsel to investigate executive branch officials. A special division of the court of appeals makes the appointment under a statute authorizing courts of law to appoint inferior officers. The appointment satisfies the Appointments Clause because the counsel is an inferior officer and the appointing body is a court of law.
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View caseCongress enacts a statute allowing one house to veto an executive suspension of deportation. An alien whose deportation is reinstated challenges the procedure. The one-house veto violates separation of powers because it interferes with the President's appointment and removal authority over executive officers executing the immigration laws.
2 common questions
Congress may vest appointment of inferior officers in the President alone, in the courts of law, or in heads of departments. The independent counsel statute validly authorized a special division of the court of appeals to appoint an inferior officer because the division is a court of law.
Supporting sources
Yes when the restriction prevents the President from exercising adequate control over an executive officer. A single-director agency structure with for-cause removal protection unconstitutionally limits the President's ability to supervise through appointment and removal authority.
…made on this motion was by Madison, who felt that the Clause did not go far enough in that it did not allow Congress to vest appointment powers in "Superior Officers below Heads of Departments." The first vote on Morris' motion ended in a tie. It was then put forward a second time, with the urging that "some such provision [was]…
…supra , at 118-124 ( per curiam ), and Myers v. United States , 272 U. S. 52 (1926), congressional action compromised the appointment power
…removal restrictions imposed by §§7211(e)(6) and 7217(d)(3) do. Under the traditional default rule, removal is incident to the power of appointment
…that Article II “grants to the President” the “general administrative control of those executing the laws, including the power of appointment
…and if the words ‘in such manner as the legislature thereof may direct,’ had been omitted, it would seem that the legislative power of appointment could not have been successfully questioned in the absence of any provision in the state constitution in that regard. Hence the insertion, of those words, while operating as a limitation…
Yes. When the trust instrument conditions withdrawal on consent from a trustee or other person holding an adverse interest, the power falls outside the statutory definition of a power of withdrawal even if it would otherwise resemble a general power of appointment.
Supporting sources
In 1966 Jagdish Rai Chadha, an East Indian born in Kenya who held a British passport, was lawfully admitted to the United States on a nonimmigrant student visa that expired on June 30, 1972. In October 1973, the District Director of the Immigration and Naturalization Service informed Chadha that he had remained longer than permitted and was therefore deportable. Chadha conceded deportability but applied for suspension under section 244(a)(1) of the Immigration and Nationality Act of 1952. On June 25, 1974, an Immigration Judge acting on behalf of the Attorney General suspended Chadha's deportation and adjusted his status to permanent resident after finding that he satisfied the statutory criteria of seven years' continuous presence, good moral character, and extreme hardship. A report of the suspension was transmitted to Congress as required by the Act. On December 16, 1975, the House of Representatives passed a resolution disapproving the suspension for Chadha and five other aliens on the ground that they did not meet the statutory requirements, particularly as to hardship. Pursuant to the House resolution, the Immigration Judge reopened the deportation proceedings. Chadha moved to terminate them on constitutional grounds, but the Immigration Judge ruled that he lacked authority to declare the resolution unconstitutional and ordered Chadha deported. Chadha appealed to the Board of Immigration Appeals, which likewise held that it had no authority to pass on the constitutionality of the resolution and dismissed the appeal. Chadha then filed a petition for review in the United States Court of Appeals for the Ninth Circuit. The Immigration and Naturalization Service appeared and urged the court to hold the House resolution unconstitutional. After inviting briefs from the Senate and House as amici curiae, the Court of Appeals held the resolution unconstitutional because it was a legislative act that failed to satisfy the requirements of Article I, sections 1 and 7, and set aside the deportation order. The Supreme Court granted certiorari in the consolidated cases to address the constitutional question.
View caseCongress creates an agency headed by a single director removable only for cause. A regulated entity challenges the structure after an enforcement action. The removal restriction violates Article II because it prevents the President from exercising sufficient control over an executive officer through the appointment and removal power.
Following the 2008 financial crisis, Congress created the Consumer Financial Protection Bureau as part of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010. The agency was tasked with implementing and enforcing a large body of federal consumer financial protection statutes, including the Fair Credit Reporting Act, the Fair Debt Collection Practices Act, and the Truth in Lending Act, along with a new prohibition on unfair, deceptive, or abusive acts or practices in the consumer-finance sector. The CFPB is led by a single Director appointed by the President with the advice and consent of the Senate for a five-year term, during which the President may remove the Director only for inefficiency, neglect of duty, or malfeasance in office. The agency receives its funding directly from the Federal Reserve rather than through the annual appropriations process. In 2017, the CFPB issued a civil investigative demand to Seila Law LLC, a California-based law firm that provides debt-related legal services to clients. The demand sought information and documents related to the firm’s business practices to determine whether Seila Law had engaged in unlawful acts or practices in the advertising, marketing, or sale of debt relief services. Seila Law asked the CFPB to set aside the demand on the ground that the agency’s single-Director structure with for-cause removal protection violated the separation of powers. When the CFPB declined, Seila Law refused to comply, and the CFPB filed a petition in federal district court to enforce the demand. The district court rejected Seila Law’s constitutional challenge and ordered the firm to comply with the demand. The Ninth Circuit affirmed, concluding that Seila Law’s arguments were foreclosed by Humphrey’s Executor v. United States and Morrison v. Olson. The Supreme Court granted certiorari to address the constitutionality of the CFPB’s structure and, if necessary, the severability of the Director’s removal protection from the remainder of the Dodd-Frank Act.
View caseA newly elected sheriff terminates nonpolicymaking employees solely because they supported the prior administration. The dismissed employees sue, claiming violation of their rights. The dismissals are unconstitutional because the appointment power does not extend to patronage terminations of employees whose positions do not involve policy formulation.
In December 1970, the Sheriff of Cook County, a Republican, was replaced by Richard Elrod, a Democrat. At that time, respondents, all Republicans, were employees of the Cook County Sheriff's Office. They were non-civil-service employees and therefore not covered by any statute, ordinance, or regulation protecting them from arbitrary discharge. One respondent, John Burns, was Chief Deputy of the Process Division and supervised all departments of the Sheriff's Office working on the seventh floor of the building housing that office. Frank Vargas was a bailiff and security guard at the Juvenile Court of Cook County. Fred L. Buckley was employed as a process server in the office. Joseph Dennard was an employee in the office. It has been the practice of the Sheriff of Cook County, when he assumes office from a Sheriff of a different political party, to replace non-civil-service employees of the Sheriff's Office with members of his own party when the existing employees lack or fail to obtain requisite support from, or fail to affiliate with, that party. Consequently, subsequent to Sheriff Elrod's assumption of office, respondents, with the exception of Buckley, were discharged from their employment solely because they did not support and were not members of the Democratic Party and had failed to obtain the sponsorship of one of its leaders. Buckley is in imminent danger of being discharged solely for the same reasons. Respondents allege that the discharges were ordered by Sheriff Elrod under the direction of the codefendants in this suit. Respondents brought this suit in the United States District Court for the Northern District of Illinois against petitioners, Richard J. Elrod, Richard J. Daley, the Democratic Organization of Cook County, and the Democratic County Central Committee of Cook County. Their complaint alleged that they were discharged or threatened with discharge solely for the reason that they were not affiliated with or sponsored by the Democratic Party. They sought declaratory, injunctive, and other relief for violations of the First and Fourteenth Amendments and 42 U.S.C. §§ 1983, 1985, 1986, 1988. Finding that the respondents failed to make an adequate showing of irreparable injury, the District Court denied their motion for a preliminary injunction and ultimately dismissed their complaint for failure to state a claim upon which relief could be granted. The United States Court of Appeals for the Seventh Circuit, relying on Illinois State Employees Union v. Lewis, 473 F.2d 561 (CA7 1972), reversed and remanded, holding that respondents' complaint stated a legally cognizable claim. The Court of Appeals instructed the District Court to enter appropriate preliminary injunctive relief. 509 F.2d 1133 (1975). The Supreme Court granted certiorari. 423 U.S. 821.
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