The assertion that Presidents enjoy a constitutional power to remove executive officers implicates one of the oldest constitutional disputes. From debates in the First Congress, to President Andrew Jackson’s Bank War, to President Andrew Johnson’s impeachment, to the firing of FBI Director James Comey and the criminal investigation of President Donald Trump, removal has played an outsized role in the separation of powers and in the political disputes of the day. The issue’s centrality is self-evident, for a President with removal power may direct the vast federal bureaucracy that conducts law execution, military affairs, and foreign relations. Without removal, there is no unitary, responsible Chief Executive.
In recent years, the Supreme Court has reexamined this age-old issue, asking both whether the President has a power to remove and under what circumstances Congress may constrain that power. In three opinions — Free Enterprise Fund v. Public Co. Accounting Oversight Board,1 Seila Law LLC v. Consumer Financial Protection Bureau,2 and Collins v. Yellen3 — the Court endorsed the traditional view that the Constitution grants the President the power to remove.4 Even the dissents did not deny the point, at least not in toto.5 The Court also evinced marked skepticism about congressional authority to limit removal.6 Though the Court had sanctioned for-cause protections,7 it insisted in Free Enterprise Fund that the Constitution forbids double for-cause protections, where multiple layers of officers enjoy such protection within a single agency.8 And the Court held that while Congress can grant for-cause protections to the plural leadership of certain agencies,9 it cannot grant such shields to a single executive officer in charge of an agency.10
The Court has overturned no precedent.11 Nonetheless, it seems keen to prune (or root out) cases like Humphrey’s Executor v. United States12 and Morrison v. Olson.13 Its recent opinions have extolled presidential supervision of the bureaucracy.14 They have characterized the “independent agencies” as executive and have rejected the notion that these agencies exercise quasi-legislative or quasi-judicial powers.15 According to the Court, agencies like the Securities and Exchange Commission (SEC), the Consumer Financial Protection Bureau (CFPB), and the Federal Housing Finance Agency (FHFA) are executive through and through.16
In dissent in Seila Law, Justice Kagan wrote a spirited defense of for-cause protections, claiming that Congress may limit presidential removals.17 The Court’s opinions also inspired a deluge of antiunitarian scholarship, much of which focused on early practices.18 Call these scholars the “Disunitarians.” One strand of Disunitarian thought asserts that the Constitution does not demand a hierarchical executive19 and denies that it grants removal power to the President.20 Another strand proclaims that Congress can abridge the President’s removal power.21 A third strand asserts that removal restrictions date back to the Founding.22
We address three enduring questions.23 First, does the Constitution grant Presidents the power to remove executive officers at pleasure? We agree with James Madison, George Washington, Thomas Jefferson, Alexander Hamilton, and the many others who thought so.24 After a famous debate in 1789, Congress endorsed this precise view.25 Further, our first Presidents repeatedly proclaimed a power to remove and, in fact, ousted scores of officers.26 These early endorsements, declarations, and exercises reflect the correct interpretation of Article II.
Second, may Congress constrain the executive power of removal by requiring cause or barring removals altogether? Congress’s power over offices, considerable though it is, does not authorize the passage of statutes that limit removal at pleasure. Unlike some of its predecessors, Congress conspicuously lacks a generic constitutional power to refashion or modify the powers of rivals.27 Relatedly, the Necessary and Proper Clause does not authorize laws limiting removals by the President any more than it sanctions laws limiting impeachment removals by the Senate.28 The clause is no license to treat presidential powers as default allocations alterable by ordinary legislation. Tellingly, early Congresses did not restrict the power to remove executives at pleasure.29
Third, what light do early commentary and practice shed on the first two questions? While providing a comprehensive defense of removal,30 we surface new evidence from the Constitutional Convention, the Federalist Papers, and the overlooked writings of several Antifederalists. We also reveal Thomas Jefferson’s actual stance toward the justices of the peace (spoiler alert: he fired them all), which leads to a deeper understanding of Marbury v. Madison.31 We highlight opinions of attorneys general that bear on recent arguments and contextualize opinions that others have overread. Finally, we describe why side constraints curb the power to remove at pleasure.
Part I argues for an executive power of removal and against congressional authority to curtail that power. Part II responds to the many critiques of the Court’s recent turn. Part III considers implications and areas where further scholarship would be fruitful.
As a matter of original meaning, the Roberts Court is right. The “executive power” granted by Article II encompassed multiple strands, one of which was the power to remove executive officers. Early Congresses and Executives agreed that the Constitution granted the President the power to remove. Further, Congress lacks generic power to alter or diminish constitutional grants of authority, including removal. While ours is not the only possible reading, it best synthesizes text, structure, history, and early practice.32 In contrast, Disunitarians lack a coherent or consistent reading of the text, particularly as it relates to congressional authority, and cannot explain decades of practice.
This is not merely a faculty-lounge quarrel between disheveled dons in ivory towers. If the Disunitarians are right, Congress can demote the “constitutional Executor of the laws”33 and transform the executive branch into a perpetual and unaccountable bureaucratic machine. Every executive department might be transplanted into an independent fourth branch, with the Chief Executive reduced to the Chief Bystander. In our reading, the Constitution did not grant the first branch this measure of supremacy over the second.
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* Martha Lubin Karsh and Bruce A. Karsh Bicentennial Professor of Law, University of Virginia.
** James Monroe Distinguished Professor of Law, Albert Clark Tate Jr. Professor of Law, and Miller Center Senior Fellow, University of Virginia. For helpful comments and encouragement, we owe thanks to Akhil Amar, Divya Bamzai, Robert Glicksman, John Harrison, John Manning, Michael McConnell, Martha Minow, Richard Murphy, Robert Post, Rashmi Prakash, Michael Ramsey, Michael Rappaport, Stephen Sachs, Adam White, Ilan Wurman, and the many participants in the Harvard Law School’s Public Law Workshop and the Scalia Law School’s C. Boyden Gray Center Roundtable on Agency Independence. Thanks to the University of Virginia for their financial support. Gratitude for excellent research assistance to Barrett Anderson, Christopher Baldacci, Niccolo Beltramo, Eddie Colombo, Elizabeth Fritz, Janessa Mackenzie, and Michael Patton. Thanks to colleagues at the University of Virginia Law Library for superb support. Finally, gratitude to the editors of the Harvard Law Review for their splendid edits and helpful queries.