The Legislature - Impeachment(Cont.)

I am bringing you this page not to alert you of an actual problem, but rather a problem of inconsistency in court opinions that might trip you up if you try to go down this road.
The Court case we will be examining is Bowsher v. Synar, 478 U.S. 714 (1986). This case resulted from an attempt by Congress to implement a procedure to insure a balanced budget, by requiring the President to sequester funds based on a pre arranged formula any time authorized expenditures exceeded approved budgets. The scheme devised to accomplish this was to have both OMB, Executive budget office, and CBO, Congressional budget office, each make their own independent lists of necessary reductions line item by line item. These would be turned in to the Comptroller General who can only be fired by Congress. The Controller General would combine them into a single list using his own discretion, before turning the final list in to the President to be implemented. The argument that won the day with the Supreme Court was that the act of essentially prioritizing expenditures was an executive act not a legislative one, and since the Controller General could be fired by Congress the scheme resulted in Congress having an impermissible influence over an executive prerogative. The law was thrown out and replaced by one that replaced the Controller General with the head of OMB, a part of the Executive branch. If you wish to go further with this, you will have to read the case.

You will find that an opinion, starts with an optional Syllabus, which is a court written Readers Digest version of the case. It is often very helpful, but not binding. Next you get the "Opinion of the Court", which is the winning view. It starts out with a succinct? statement of the decision. In this case the court is agreeing with the lower court, so this section ends up with the words, "We Affirm". In this section, the court is stating what principals they are laying out for all the courts to be following in the future.

Following that there is a LONG dissertation on why they decided the way they did, followed optionally by one or more concurring opinions, and perhaps a dissenting opinion.

With this overview, I can now tell you the problem. In the syllabus, under the decision made, is the statement "Congress cannot reserve for itself the power of removal of an officer charged with the execution of the laws except by impeachment." At page 715. Correct! However, in the opinion of the court, the statement is "Congress may not retain the power of removal over an officer performing executive functions." At pg 720. He left out "except by impeachment."

I doubt this inconsistency is likely to cause any problem at a real future case, but I have seen claims that Bowsher v. Synar stands for the premise that you can no longer impeach cabinet members.