Partisan Balance Requirements in the Age of New Formalism

Notre Dame Law Review Volume 90 | Issue 3 Article 1 2-1-2015 Partisan Balance Requirements in the Age of New Formalism Ronald J. Krotoszynski University of Alabama School of Law Follow this and additional works at: http://scholarship.law.nd.edu/ndlr Part of the Constitutional Law Commons, and the President/Executive Department Commons Recommended Citation Ronald J. Krotoszynski, Partisan Balance Requirements in the Age of New Formalism, 90 Notre Dame L. Rev. 941 (2015). Available at: http://scholarship.law.nd.edu/ndlr/vol90/iss3/1 This Article is brought to you for free and open access by the Notre Dame Law Review at NDLScholarship. It has been accepted for inclusion in Notre Dame Law Review by an authorized administrator of NDLScholarship. For more information, please contact . \\jciprod01\productn\N\NDL\90-3\NDL301.txt unknown Seq: 1 2-MAR-15 14:12 ARTICLES PARTISAN BALANCE REQUIREMENTS IN THE AGE OF NEW FORMALISM Ronald J. Krotoszynski, Jr.,* Johnjerica Hodge,** and Wesley W. Wintermyer*** 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 © 2015 Ronald J. Krotoszynski, Jr., Johnjerica Hodge, and Wesley W. Wintermyer. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice. * John S. Stone Chair, Professor of Law, and Director of Faculty Research, University of Alabama School of Law. The authors wish to thank the faculty at the Vanderbilt University School of Law for their helpful comments and suggestions, which were provided incident to a faculty workshop. We also wish to thank Professors Kent Barnett, Lisa Schultz Bressman, Heather Elliott, David Lewis, Rob Mikos, Nina Mendelsohn, Gillian Metzger, Anne Joseph O’Connell, James Puckett, Marty Redish, Ed Rubin, Kevin Stack, David Super, and Kathryn Watts for their assistance; this Article reflects the benefit of their insights and observations. The University of Alabama Law School Foundation provided generous research support for this project. Finally, the usual disclaimer applies: any errors or omissions are the responsibility of the authors. ** Law Clerk to the Honorable Carl E. Stewart, U.S. Court of Appeals for the Fifth Circuit. *** Law Clerk to the Honorable Paul J. Kelly, Jr., U.S. Court of Appeals for the Tenth Circuit. 941 \\jciprod01\productn\N\NDL\90-3\NDL301.txt 942 unknown Seq: 2 notre dame law review 2-MAR-15 14:12 [vol. 90:3 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. INTRODUCTION: RECONSIDERING THE CONSTITUTIONAL STATUS OF PARTISAN BALANCE REQUIREMENTS Since the 1880s and the creation of the Utah Commission and the Civil Service Commission,1 Congress routinely has created federal regulatory entities that feature mandatory bipartisan agency heads. In fact, a partisan balance requirement, in conjunction with a fixed term of office and a “good cause” limitation on involuntary removal from office, constitutes a core element of the standard design that Congress uses when creating a so-called “independent” federal agency.2 The entire purpose of these restrictions is to render the principal officers serving as the heads of such administrative entities less accountable to the President—notwithstanding the fact that these entities exercise executive power and constitute part of the executive branch of the federal government.3 The imprimatur of history and practice notwithstanding, the Supreme Court’s decision in Free Enterprise Fund v. Public Com- 1 See infra notes 140–72 and accompanying text. 2 See Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 483–84 (2010) (discussing constitutive elements of agency independence); see also id. at 586, 588 (Breyer, J., dissenting) (cataloguing federal agencies with significant insulation from direct forms of presidential control). In addition to fixed terms of office and protection against removal from office except for good cause, Justice Breyer identifies six additional indicia of agency independence: (1) whether the agency consists of a multimember commission; (2) whether its members are required, by statute, to be bipartisan (or nonpartisan); (3) whether eligibility to serve as the agency’s head depends on statutorily defined qualifications; (4) whether the agency has independence in submitting budgetary and other proposals to Congress (thereby bypassing the Office of Management and Budget); (5) whether the agency has authority to appear in court independent of the Department of Justice; and (6) whether the agency is explicitly classified as “independent” by statute. Id. at 588 (citation omitted); see also Kirti Datla & Richard L. Revesz, Deconstructing Independent Agencies (and Executive Agencies), 98 CORNELL L. REV. 769 (2013) (cataloguing and discus (...truncated)