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37. May the President constitutionally remove the director without the Senate's consent?
Recently, the President has become dissatisfied with the director's strict approach to drug-law enforcement and wishes to remove the director. Because a majority of senators favor strict drug-law enforcement, the Senate has refused to consent to the director's removal.
In response to a nationwide increase in drug-related crime, Congress passed a statute creating a new agency responsible for enforcing federal drug laws. The statute authorizes the President to appoint the agency's director with the advice and consent of the Senate and prohibits the President from removing the director without the Senate's consent. The President appointed a director, and the Senate confirmed the appointment.
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A is incorrect. Under Myers, Congress's ability to impose conditions on the removal of federal officials is sharply limited. Thus, although Congress created the director position by statute, it may not play a role in the removal of the director.
B is incorrect. Under Myers and subsequent cases, the Senate has no role in the removal of federal officers other than via impeachment. Thus, the President may remove the director without the consent of the Senate.
D is incorrect. This is an overbroad statement of the law. Congress has the power to remove certain types of federal officials, such as those serving as members of the governing bodies of regulatory agencies and inferior officers in agencies where the head of the agency may be removed by the President at will. However, under the separation of powers doctrine, Congress may not play any role in the removal of a presidential appointee.