SCOTUS: Nature of appointments in Executive Branch limits ability to remove officials.
BY María Soledad Dávila Calero
The two recent U.S. Supreme Court (SCOTUS) decisions—Trump v. Cook and Trump v. Slaughter—along with the First Circuit Court of Appeals’ ruling on a Maricao municipal internal-auditor position, have established limits on the powers to remove officials appointed by the Executive Branch, whether it is by the U.S. President, a governor or mayor.
These decisions have repercussions across all government appointments, but at this particular time, they may affect the status of the six members of the Financial Oversight and Management Board (FOMB) whom President Trump fired last year. The dispute over whether he had the power to remove them is currently before the First Circuit Court of Appeals.
What are the Different Types of Appointments?
Within the Puerto Rican government structure, trust appointments are described as those of “free selection and free removal.” This has been understood to mean that the governor, mayor or head of a government instrumentality making the trust appointment can use any criteria they wish to select a candidate and can request their resignation at any time without giving a reason.
While this classification covers the Executive’s internal team, such as the governor’s chief of staff or political advisors, it also includes officials who require the advice and consent of the Senate, such as agency heads.
In addition, there are fixed-term appointments, such as those of the Comptroller or judges. These are appointed by the governor and confirmed by the Senate, but the law stipulates that they cannot be removed “without cause” from their positions before their terms expire.
Within the federal structure, an “officer of the United States” is the term used for those positions appointed by the President with Senate confirmation. This includes fixed-term appointments. Meanwhile, lower-level government officials are those positions that the President can appoint directly.
The members of the FOMB, although appointed by the President, are not officers of the United States. According to a May 2023 SCOTUS decision, the FOMB is a territorial entity.
What Does the First Circuit Court of Appeals Say?
In a decision by Judge Gustavo Gelpí, the Boston Court of Appeals established that although positions of trust are described as “of freely selection and free removal,” they are cases that are subject to protections against political discrimination. The Appellate Court ruled that the Mayor of Maricao, Wilfredo Ruiz Feliciano, of the Popular Democratic Party (PDP), could not require a certain political affiliation for the position of municipal internal auditor. Therefore, not renewing Odette López Collazo’s appointment to this position because she is not affiliated with the PDP constitutes political discrimination.
Judge Gelpí separated appointments of trust into two categories: those with tasks to implement or oversee public policy and those with technical tasks.
In the case of officials who handle public policy, such as an undersecretary of an agency, the governor or mayor making the appointment can require the person appointed to be affiliated with their own political party. In the case of appointments involving technical tasks, such as the municipal internal auditor, requiring party affiliation as a prerequisite for the position is considered political discrimination.
What Does the U.S. Supreme Court Say?
In the decision Trump v. Cook, U.S. the Supreme Court ruled that Trump could not remove Lisa Cook from her position as one of the governors of the Federal Reserve (Fed). Federal Reserve governors are appointed by the President and confirmed by the Senate for a 14-year term.
SCOTUS argued that the Fed implements monetary policy, which is independent from the implementation of public policy. Therefore, the Fed needs to be independent from the Executive Branch, and the President cannot remove a Fed governor without cause before the end of his/her term.
In the decision Trump v. Slaughter, SCOTUS ruled that Trump could remove Rebecca Slaughter from her position as commissioner of the Federal Trade Commission (FTC). FTC commissioners have seven-year appointments and also have the same protections against removal without cause.
However, the U.S. Supreme Court argued in the Slaughter case that the Constitution gives the President the power to choose the government officials who will implement laws and public policy. In line with this assessment, Chief Justice John Roberts argued that the FTC is an agency that has “accumulated” significant powers as a regulatory entity whose rules have the force of law.
Last August, President Trump removed six members of the FOMB before their terms had expired. The removed members sued and the case is currently under appeal. Both the court and the parties have been waiting for SCOTUS’ decisions on the disputes involving Cook and Slaughter, as it would likely have a direct bearing on the FOMB case. Now, the Appeals Court must assess how these decisions affect the status of the FOMB members who were fired by Trump.
