5 iii we hold that the dual for cause limitations on

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5
III We hold that the dual for-cause limitations on the removal of Board members contravene the Constitution’s separation of powers. A The Constitution provides that “[t]he executive Power shall be vested in a President of the United States of America.” Art. II, § 1, cl. 1 . As Madison stated on the floor of the First Congress, “ if any power whatsoever is in its nature Executive, it is the power of appointing, overseeing, and controlling those who execute the laws.” … B As explained, we have previously upheld limited restrictions on the President’s removal power. In those cases, however, only one level of protected tenure separated the President from an officer exercising executive power. It was the President … who decided whether the officer’s conduct merited removal under the good-cause standard. The Act before us does something quite different. It not only protects Board members from removal except for good cause, but withdraws from the President any decision on whether that good cause exists. That decision is vested instead in other tenured officers-the Commissioners-none of whom is subject to the President’s direct control. The result is a Board that is not accountable to the President, and a President who is not responsible for the Board. The added layer of tenure protection makes a difference. Without a layer of insulation between the Commission and the Board, the Commission could remove a Board member at any time, and therefore would be fully responsible for what the Board does. The President could then hold the Commission to account for its supervision of the Board, to the same extent that he may hold the Commission to account for everything else it does. A second level of tenure protection changes the nature of the President’s review. Now the Commission cannot remove a Board member at will. The President therefore cannot hold the Commission fully accountable for the Board’s conduct, to the same extent that he may hold the Commission accountable for everything else that it does. The Commissioners are not responsible for the Board’s actions. They are only responsible for their own determination of whether the Act’s rigorous good-cause standard is met. And even if the President disagrees with their determination, he is powerless to intervene unless that determination is so unreasonable as to constitute “inefficiency, neglect of duty, or malfeasance in office.” … Indeed, if allowed to stand, this dispersion of responsibility could be multiplied. If Congress can shelter the bureaucracy behind two layers of good-cause tenure, why not a third? At oral argument, the Government was unwilling to concede that even five layers between the President and the Board would be too many. … The diffusion of power carries with it a diffusion of accountability. … Without a clear and effective chain of command, the public cannot “determine on whom the blame or the punishment of a pernicious measure, or series of pernicious measures ought really to fall.” … By granting the Board executive power without the Executive’s oversight, this 6

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