Constitutionality of EFCC Act subjecting President’s appointment to Senate confirmation?
Professor Ben Nwabueze, SAN, is a renowned constitutional lawyer and a leader of The Patriots. In this decisive essay, he examined the constitutionality of the Economic and Financial Crimes Commission, EFCC Act 2004, subjecting the President’s appointment of members of the Commission to Senate confirmation.
THE appointments or nominations for appointment for which the approval of the Senate is required by the Constitution of Nigeria (1999) are those of ministers (section 147(2)), auditor-general (section 86(1)), the chairmen and members of certain named bodies established by the Constitution other than ex officio members (sections 153(1) and 154(2), ambassadors, high commissioners or other principal representatives of Nigeria abroad (section 171(4)).
There are certain enactments in the country, e.g. the EFCC Act, that require Senate approval for the appointment of various executive functionaries outside those specified by the Constitution; such enactments are, on the authority of the decision of the U.S. Supreme Court in Myers v. United States, supra, unconstitutional, null and void, subject to a qualification or restriction put on the meaning of “executive power” in the case of Humphrey v. United States, infra. The sanction of nullity also applies to enactments at the State level which require the confirmation of the House of Assembly for the appointment of certain executive functionaries, not within the qualification or restriction noted above.
By laying to rest a disagreement that had pitched the two political organs of government against each other for the previous 141 years, and which led to the impeachment of the President in 1868, the decision in Myers v. United States (1926) was a historic event indeed.
The ground of the impeachment was that the President, Johnson, a southerner, who acceded to the presidency after the assassination of President Abraham Lincoln, had violated the Tenure of Office Act, 1867, by removing his Secretary of State without the consent of the Senate as required by the Act.
His conduct was certainly not treasonable or otherwise criminal, but at worst only an improper exercise of a power which, under the Constitution, belonged to him. Even its impropriety depended upon the constitutionality of the Act of Congress itself, and in the view of the President and his advisers that Act was a manifest contravention of the Constitution.It was upon this view of the Act that he acted in removing the Secretary of State, a view which half a century later the Supreme Court affirmed when, in Myers Case, it declared the Act unconstitutional and void.
In view of the Court’s decision one may perhaps reflect what a great injury would have been done to the President and the entire American governmental system had the impeachment succeeded (it failed by only one vote).
The Myers decision did not settle with finality the meaning of “executive power”, as used in the Constitution, and what functions are or are not embraced in it. That issue came up rather squarely in Humphrey v. United States 265 U.S. 602 (1934). The Federal Trade Commission Act 1914, created a commission charged with responsibility for the prevention of unfair methods of competition in commerce.
The Commission is empowered to prefer and try charges of unfair competition, to issue a “cease and desist” order against any person, partnership or corporation found guilty after due hearing of using unfair method of competition.If the order is disobeyed, the Commission may apply to the appropriate circuit court of appeals for its enforcement, subject to the right of the person against whom the order is made to apply to the circuit court of appeals for a review of the order.
The Commission also has wide powers of investigation in respect of certain matters; when it investigates any matter it must report to Congress with recommendations.
Its members are appointed for a fixed term of years by the President and with the advice and consent of the Senate, and may be removed by him for inefficiency, neglect of duty or malfeasance in office.
Humphrey, a member of the Commission, was removed by the president before the expiration of his normal term, not for any of the causes specified in the Act, but because he and the President entertained divergent views with respect to matters of policy. Humphrey then sued for arrears of salary for wrongful dismissal.
For the president it was argued that the provision of the Act prescribing the grounds upon, and the method by, which a member of the Commission may be removed was unconstitutional as being an interference with the President’s executive power.
In its opinion on the case, the Supreme Court defined the status of the Commission to be that of an agency, created by statute to carry out the policy, not of individual presidents but of the law; accordingly it is to be independent of executive authority and direction, whether it be that of the President or any regular executive department. Its functions, the court held, are purely administrative, and do not involve the exercise of “executive power”.
“In administering the provision of the statute in respect of “unfair methods of competition” – that is to say filling in and administering the details embodied by the general standard – the Commission acts in part quasi-legislatively and in part quasi-judicially.
In making investigations and reports thereon for the information of Congress under section 6, in aid of the legislative power, it acts as a legislative agency. Under section 7, which authorizes the Commission to act as a master in chancery under rules prescribed by the court, it acts as an agency of the judiciary.
Agency of the judiciary
To the extent that it exercises any executive function – as distinguished from executive power in the constitutional sense – it does so in the discharge and effectuation of its quasi-legislative powers.”
Unlike a member of the Commission, a postmaster involved in the Myers case “is an executive officer restricted in the performance of executive functions. He is charged with no duty at all related to either the legislative or judicial power.” The Commission is in its character like the interstate Commerce Commission, and must be governed by the same principle as it laid down in Illinois. C.R. Co. v. Interstate Commerce Commission (1906) and Standard Oil Co. v. United States (1930). It is also analogous in character to the legislative court of claims (Williams v. United States (1932).
Since they are not comprehended in the president’s executive power, the functions of the Federal Trade Commission and the tenure of its members are unquestionably within the power of Congress to prescribe. “The authority of Congress,” the Supreme Court declared, “in creating quasi-legislative or quasi-judicial agencies, to require them to act in discharge of their duties independently of executive control, cannot well be doubted; and that authority includes, as an appropriate incident, power to fix the period during which they shall continue, and to forbid their removal except for cause in the meantime.”
Executive power vested by the Constitution
The court explained its earlier decision in Myers v. United States as being confined to “executive officers” such as postmasters, i.e. officers whose functions form part of the executive power vested by the Constitution in the President.
It concluded: “whether the power of the president to remove an officer shall prevail over the authority of Congress to condition the power by fixing a definite term and precluding a removal except for cause will depend upon the character of the office.”
Whilst the correctness of the decision in the Humphrey case is not questioned, its implications have caused concern, if not alarm, in some quarters in the United States. The Committee on Administrative Management in the country has thus been prompted to comment in 1937:
“The multiplication of these agencies cannot fail to obstruct the effective overall management of the Executive Branch almost in geometric ratio to their number. At the present rate we shall have 40 to 50 of them within a decade. Every bit of executive and administrative authority which they enjoy means a relative weakening of the president, in whom, according to the constitution, the executive power shall be vested. As they grow in number his stature is bound to diminish. He will no longer be in reality the Executive, but only one of many executives, threading his way around obstacles which he has no power to overcome” (emphasis supplied).
The decision in Humphrey v. United States, supra, provides a basis for determining the character of the EFCC based on its functions under its constituent statute. The main powers of the EFCC are contained in section 6 of the EFCC Act 2004; it has of course other powers conferred by other sections of the Act. Of the sixteen numbered paragraphs of section 6, the ones crucial for present purposes are as follows. “The Commission shall be responsible for –
(a) the enforcement and the due administration of the provisions of this Act;
(b) the investigation of all financial crimes……..;
(c) the enforcement of all economic and financial crimes laws and the co-ordination of enforcement functions conferred on any other person or authority…….;
(d) the examination and investigation of all reported cases of economic and financial crimes with a view to identifying individuals, corporate bodies or groups involved…..;