Executive Power Article 136 Harv. L. Rev. 1756

The Executive Power of Removal

Response:

Download
See Footnotes

Introduction

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.

Continue Reading in the Full PDF

* 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.

Footnotes

  1. ^ 561 U.S. 477 (2010).

    Return to citation ^

  2. ^ 140 S. Ct. 2183 (2020).

    Return to citation ^

  3. ^ 141 S. Ct. 1761 (2021).

    Return to citation ^

  4. ^ See Free Enter. Fund, 561 U.S. at 513­–14 (“The Constitution that makes the President accountable to the people for executing the laws also gives him the power to do so. That power includes, as a general matter, the authority to remove those who assist him in carrying out his duties.”); Seila L., 140 S. Ct. at 2191–92 (“The President’s power to remove . . . follows from the text of Article II . . . .”); Collins, 141 S. Ct. at 1784 (“The President’s removal power . . . helps the President maintain a degree of control over the subordinates he needs to carry out his duties as the head of the Executive Branch . . . .”).

    Return to citation ^

  5. ^ See, e.g., Free Enter. Fund, 561 U.S. at 516 (Breyer, J., dissenting) (noting that while “Congress sometimes may . . . limit the President’s authority to remove an officer,” the separation of powers “guarantees the President the authority to dismiss certain Executive Branch officials at will”); Seila L., 140 S. Ct. at 2225 (Kagan, J., concurring in the judgment with respect to severability and dissenting in part) (approving “limits on the President’s removal power over heads of agencies” but not denying the existence of a “presidential removal power”); Collins, 141 S. Ct. at 1803 (Sotomayor, J., concurring in part and dissenting in part) (“Where Congress is silent on the question, the general rule is that the President may remove Executive Branch officers at will.” (citing Myers v. United States, 272 U.S. 52, 126 (1926))).

    Return to citation ^

  6. ^ See Collins, 141 S. Ct. at 1787 (“[T]he Constitution prohibits even ‘modest restrictions’ on the President’s power to remove the head of an agency with a single top officer.” (quoting Seila L., 140 S. Ct. at 2205)).

    Return to citation ^

  7. ^ E.g., Humphrey’s Ex’r v. United States, 295 U.S. 602, 629 (1935); Morrison v. Olson, 487 U.S. 654, 693–96 (1988).

    Return to citation ^

  8. ^ Free Enter. Fund, 561 U.S. at 484 (“[M]ultilevel protection from removal is contrary to Article II’s vesting of the executive power in the President.”).

    Return to citation ^

  9. ^ Seila L., 140 S. Ct. at 2199–200.

    Return to citation ^

  10. ^ Id. at 2207.

    Return to citation ^

  11. ^ See id. at 2198–200 (noting that Free Enterprise Fund “left in place,” id. at 2198, the holdings of Humphrey’s Executor v. United States, 295 U.S. 602, and Morrison v. Olson, 487 U.S. 654). For a critique of judicial enforcement of the separation of powers, see generally Nikolas Bowie & Daphna Renan, The Separation-of-Powers Counterrevolution, 131 Yale L.J. 2020 (2022). While Professors Bowie and Renan see something amiss in enforcement of the separation of powers, the idea that the courts would engage in judicial review in this area is longstanding. For instance, during the removal debate of 1789, several representatives observed that the courts could decide whether the President had a removal power. See Saikrishna B. Prakash & John C. Yoo, The Origins of Judicial Review, 70 U. Chi. L. Rev. 887, 978 n.363 (2003).

    Return to citation ^

  12. ^ 295 U.S. 602 (1935).

    Return to citation ^

  13. ^ 487 U.S. 654 (1988).

    Return to citation ^

  14. ^ See Seila L., 140 S. Ct. at 2203 (“The President ‘cannot delegate . . . the active obligation to supervise . . . ’ because Article II ‘makes a single President responsible for the actions of the Executive Branch.’” (quoting Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 496–97 (2010))).

    Return to citation ^

  15. ^ See Free Enter. Fund, 561 U.S. at 498 (concluding that the Public Company Accounting Oversight Board, an agency under the Securities and Exchange Commission, exercises “executive power”); Seila L., 140 S. Ct. at 2201 (describing the Consumer Financial Protection Bureau as an “independent agency . . . vested with significant executive power”); Collins v. Yellen, 141 S. Ct. 1761, 1782 (2021) (noting that even though the statute describes the Federal Housing Finance Agency as an “independent agency,” that “does not necessarily mean that the Agency is ‘independent’ of the President”).

    Return to citation ^

  16. ^ The Court’s assertions echoed, in part, scholarship arguing that the Article II Vesting Clause vests power to execute the law and power to remove. See, e.g., Steven G. Calabresi & Kevin H. Rhodes, The Structural Constitution: Unitary Executive, Plural Judiciary, 105 Harv. L. Rev. 1153, 1169 n.75 (1992); Saikrishna Bangalore Prakash, Hail to the Chief Administrator: The Framers and the President’s Administrative Powers, 102 Yale L.J. 991, 991 (1993); Steven G. Calabresi & Saikrishna B. Prakash, The President’s Power to Execute the Laws, 104 Yale L.J. 541, 593–99 (1994); Saikrishna Prakash, The Essential Meaning of Executive Power, 2003 U. Ill. L. Rev. 701, 703–05.

    Return to citation ^

  17. ^ Seila L., 140 S. Ct. at 2227­­–28 (Kagan, J., concurring in the judgment with respect to severability and dissenting in part). Justice Breyer did the same in Free Enterprise Fund, saying that the Court’s judgment and opinion was “wrong — very wrong.” 561 U.S. at 548 (Breyer, J., dissenting). In Collins, Justice Sotomayor contended that the majority was “far too eager in recent years to in­sert itself into questions of agency structure best left to Congress.” 141 S. Ct. at 1809 (Sotomayor, J., concurring in part and dissenting in part).

    Return to citation ^

  18. ^ See, e.g., Jed Handelsman Shugerman, Presidential Removal: The Marbury Problem and the Madison Solutions, 89 Fordham L. Rev. 2085, 2090 (2021) (positing that the Founders believed in an “anti-unitary” theory of the Executive where “removal power was mixed and shared between the legislature and the executive”); Daniel D. Birk, Interrogating the Historical Basis for a Unitary Executive, 73 Stan. L. Rev. 175, 182 (2021) (“[T]here is no evidence to support the assertion that the removal of executive officers was . . . an inherent attribute of the ‘executive power’ as it was understood in England.”); Jane Manners & Lev Menand, The Three Permissions: Presidential Removal and the Statutory Limits of Agency Independence, 121 Colum. L. Rev. 1, 5 (2021) (“Since before the Founding, offices held for a term of years, in the absence of constitutional or statutory language to the contrary, were designed to be inviolable . . . .”); Richard W. Murphy, The DIY Unitary Executive, 63 Ariz. L. Rev. 439, 445–46 (2021) (“The[] ‘exceptions’ to unitary presidential control embedded in Humphrey’s Executor and Morrison turn out to have very deep historical roots.”); Julian Davis Mortenson, The Executive Power Clause, 168 U. Pa. L. Rev. 1269, 1273 (2020) (calling Article II executive power an “empty vessel”); Christine Kexel Chabot, Is the Federal Reserve Constitutional? An Originalist Argument for Administrative Agencies, 96 Notre Dame L. Rev. 1, 16 (2020) (arguing the early statesmen “took a functional approach and allowed agencies to possess significant independence from the President”); Patricia A. McCoy, Constitutionalizing Financial Instability, U. Chi. L. Rev. Online (Aug. 27, 2020), https://lawreviewblog.uchicago.edu/2020/08/27/seila-mccoy (arguing that insulating financial regulators from presidential control dates back to the early nineteenth century). For contrary views, see generally Ilan Wurman, The Removal Power: A Critical Guide, 2019–2020 Cato Sup. Ct. Rev. 157 (2020).

    Return to citation ^

  19. ^ See Shugerman, supra note 18, at 2111; see also Peter M. Shane, The Originalist Myth of the Unitary Executive, 19 U. Pa. J. Const. L. 323, 361 (2016).

    Return to citation ^

  20. ^ See Birk, supra note 18, at 183 (“[T]he historical record shows that the executive power vested in the President by Article II would not include an inherent removal power . . . .”).

    Return to citation ^

  21. ^ See Manners & Menand, supra note 18, at 68–71 (describing how Congress can create independent agencies without infringing on the President’s Article II power).

    Return to citation ^

  22. ^ See id. at 6 (arguing that executive offices with removal restrictions “have been a feature of English and American law since at least the eighteenth century”).

    Return to citation ^

  23. ^ For our previous efforts to address aspects of these problems, see generally Aditya Bamzai, Taft, Frankfurter, and the First Presidential For-Cause Removal, 52 U. Rich. L. Rev. 691 (2018); Aditya Bamzai, Tenure of Office and the Treasury: The Constitution and Control over National Financial Policy, 1787 to 1867, 87 Geo. Wash. L. Rev. 1299 (2019) [hereinafter Bamzai, Tenure of Office and the Treasury]; Saikrishna Prakash, New Light on the Decision of 1789, 91 Cornell L. Rev. 1021 (2006) [hereinafter Prakash, Decision of 1789]; Saikrishna Prakash, Removal and Tenure in Office, 92 Va. L. Rev. 1779 (2006) [hereinafter Prakash, Removal and Tenure].

    Return to citation ^

  24. ^ See infra section I.A.3, pp. 1770–73; section I.A.5, pp. 1777–82.

    Return to citation ^

  25. ^ See infra section I.A.4, pp. 1773–77; section II.B, pp. 1793–802.

    Return to citation ^

  26. ^ See infra section I.A.5, pp. 1777–82; section I.A.4, pp. 1773–77.

    Return to citation ^

  27. ^ See infra section I.B.1, pp. 1782–84.

    Return to citation ^

  28. ^ See infra section I.B.2, pp. 1784–89.

    Return to citation ^

  29. ^ See infra section II.C, pp. 1802–18.

    Return to citation ^

  30. ^ We have benefited from J. David Alvis, Jeremy D. Bailey & F. Flagg Taylor IV, The Contested Removal Power, 1789–2010 (2013). Our work differs from theirs in focusing on the Founding and early practice.

    Return to citation ^

  31. ^ 5 U.S. (1 Cranch) 137 (1803).

    Return to citation ^

  32. ^ Our paper uses an originalist lens for understanding the Constitution. But we also aim to persuade nonoriginalists who regard original meaning as relevant to interpreting the Constitution.

    Return to citation ^

  33. ^ Alexander Hamilton, For the Gazette, 4 Gazette U.S. 449, 450–51 (1793), reprinted in 15 The Papers of Alexander Hamilton 33, 43 (Harold C. Syrett ed., 1969) [hereinafter Hamilton, Pacificus No. 1].

    Return to citation ^
Download
Topics:

May 9, 2023

More from this Issue

See Full Issue