A National Constitution Center podcast: Does Article II of the Constitution Grant the President Power to Fire Anyone in the Executive Branch? From the site’s description:
In this episode, legal scholars Michael Ramsey and Jed Shugerman [discuss] the Supreme Court’s recent decisions in Trump v. Slaughter and Trump v. Cook, which address the president’s authority to remove members of the executive branch. They trace the history of presidential removal power from the founding era through the Court’s 1935 landmark Humphrey’s Executor decision to the present day and explore what Slaughter and Cook may mean for the future of executive power. Thomas Donnelly, lead scholar at the National Constitution Center, moderates.
Follow We the People, Live at the National Constitution Center, and Civic Parenting on Apple Podcasts, Spotify, or your favorite podcast app.
This episode was produced and mixed by Bill Pollock. With production support from Charles Sahm. Research was provided by Anna Salvatore and Tristan Worsham.
Participants
Michael Ramsey is the Warren Distinguished Professor of Law at the University of San Diego School of Law. He clerked for Judge J. Clifford Wallace of the U.S. Court of Appeals for the Ninth Circuit and for Justice Antonin Scalia of the U.S. Supreme Court. Ramsey co-edited the book International Law in the U.S. Supreme Court: Continuity and Change and has authored numerous law review articles on the original meaning of various provisions of Article II of the Constitution. He is also a regular contributor to The Originalism Blog.
Jed Shugerman is the Professor and Henry Elwood Warren Scholar at Boston University School of Law. He is the author of several recent law review articles about the original public meaning of Article II—many of which were cited in Justice Sotomayor’s dissent in Slaughter. Shugerman is the author of numerous amici briefs, including an originalist defense of birthright citizenship that was cited in Justice Sotomayor’s dissent in Trump v. Barbara, and his writing has appeared in The New York Times, The Washington Post, Slate, and numerous other publications. He is working on two books about the history of executive power and prosecution in America.
Thomas Donnelly is lead scholar at the National Constitution Center. Prior to joining the Center in 2016, he served as counsel at the Constitutional Accountability Center, as a Climenko Fellow and lecturer on law at Harvard Law School, and as a law clerk to Judge Thomas Ambro on the U.S. Court of Appeals for the Third Circuit.
Thanks to Charles Sahm, Tom Donnelly and the team at the National Constitution Center for an outstanding production.
In brief, my take from an originalist perspective is this:
As to Slaughter, I agree with the result and in general with the reasoning of Chief Justice Roberts’ majority opinion. In my view, the text is essentially conclusive. If the executive power shall be vested in the President, that necessarily means that the executive power shall not be vested in anyone other than the President. The only way someone other than the President can exercise executive power is if it is done under the direction and control of the President. And in order to have direction and control, the President must have the ability to remove the person (or the equivalent level of control). Since the members of the Federal Trade Commission, such as Ms. Slaughter, undoubtedly exercise executive power, limits on the President’s ability to fire them are unconstitutional. The basic idea of using protections from presidential removal to create “independent” agencies is simply incompatible with Article II, Section 1: there cannot be independent (from the President) exercises of executive power.
The majority opinion presents post-ratification history in support, and Professor Shugerman sharply contests its use of history. I largely avoid this debate. Even if the post-ratification history is not as strong as the Chief Justice says it is (and it may not be), the text and structure are so strong that it would take very powerful evidence in the other direction to change my view. The post-ratification history is at most mixed, which is not enough.
Cook, dealing with executive removal of members of the Federal Reserve board, is in my view more difficult. Chief Justice Roberts for the majority again principally uses post-ratification history — especially the First and Second Banks of the United States — to uphold the Federal Reserve’s independence. I’m not persuaded. The Banks seem distinct from the modern version of the Federal Reserve, which seems to exercise executive power and thus come under the originalist reasoning of Slaughter. (Justice Thomas makes this point powerfully in dissent).
I think a better argument would be to concede that the Federal Reserve might be unconstitutional under the original understanding but to note that the independence of the Federal Reserve has long been a basic assumption of our financial system, and eliminating it would entail severe disruption. Just as originalism might honor some nonoriginalist judicial precedents that have become basic assumptions of our legal system (a point Justice Scalia endorsed), originalism might also accept some nonoriginalist nonjudicial precedents arising from practice. I suspect that this was a core aspect of the majority Justices’ thinking in the Cook case, whatever their opinion said.
And I don’t think this approach is inconsistent with Slaughter. The Federal Reserve’s independence is a core assumption of the financial system; the independence of the Federal Trade Commission (in Slaughter) and other similar administrative agencies is not. The FTC’s regulatory responsibilities substantially overlap with those of the (non-independent) Justice Department. Many of the most important regulatory agencies (the EPA, the FDA) are not independent under their respective statutes. Which agencies have or do not have removal protection is seemingly random, and probably can’t be accurately recounted except by a few experts. This structure is not embedded in our system to an extent sufficient to establish a nonoriginalist nonjudicial precedent.
Posted at 6:29 AM