As regards the appointment power too, the U.S. Su­preme Court stated em­phatically that the qualification in favour of the legislature, i.e., the requirement of Senate approval, should not be extended outside the cases in respect of which the approval of the Senate is explicitly required by the constitution, as by requiring Senate approval in respect of other appointments or by super-adding the approval of the House of Representatives.
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 by 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. 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.” 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 i- The Authority