Congress enacts a statute known as the Biotechnology Review Act (BTRA), which created an agency—the Biotechnology Review Board (BRB). The Act states that the BRB will consist of seven members. The term of the appointment for each member will be seven years.
Each commissioner shall be nominated by the president and confirmed by the Senate. The members of the board may be removed by the president with the concurrence of the Senate in cases of malfeasance, incompetence, or neglect of duty.
The statute goes on to state that the BRB is to conduct research into biotechnological issues, including genetic engineering, as they concern the health and safety of food products. The jurisdiction of the agency is over these matters exclusively. The BRB does have the power to: (1) issue cease-and-desist orders to producers of biologically altered food that pose a health or safety risk to the public; (2) hear claims and issue damage awards to individuals who have been harmed by biologically altered foods; and (3) promulgate regulations necessary to carry out numbers 1 and 2.
All the regulations promulgated by BRB must be sent to a substantive committee in Congress. Either house of Congress is given the authority under the Board’s enabling legislation to amend or repeal any rule promulgated by BRB. With this as background, answer the following questions:
1. Is the appointment and removal provision constitutional? Why or why not?
2. Is there merit to the argument that a president needs the authority to remove at will the heads and/or members of an agency to ensure adequate political control over the decision-making activities of non-elected public administrators? Why or why not?
3. If the BRB is not following the overall policy directions of the president can he/she disclaim responsibility for agency action and/or inaction?
4. Assume the president decides to take action and dismiss the chair of the Board. In so doing, he/she has directed you, a member of the White House staff, to carry out this dismissal. Based on your knowledge of case law regarding the removal power of presidents, should you order this firing or should you refuse to carry it out? Why or why not?
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