Recently published, in the Virginia Law Review Online, Aditya Bamzai & Saikrishna Prakash: How to Think About the Removal Power (110 Va. L. Rev. Online 159 (2024)). Here is the abstract:
In an earlier article titled The Executive Power of Removal, we contended that Article II gives the President a constitutional power to remove executive officers, at least those who are presidentially appointed. In this Essay, we expand on, and reply to a critique of, that article. We discuss the meaning of the clause vesting “executive Power” in the President and the clause authorizing Congress to make laws “necessary and proper for carrying into Execution” the powers of the federal government. We contend that the former vests authority to remove in the President and the latter does not allow Congress to treat that allocation of authority as a default. We discuss how constitutional developments in the Commonwealth of Pennsylvania—specifically, a 1784 report authored by the Council of Censors—support our understanding of the federal Constitution’s text and structure. We also discuss early practice under the federal Constitution—specifically, high-profile instances where presidents removed executive subordinates without Senate participation. These sources and episodes, along with those we discussed in our previous article, support the conclusion that the Constitution confers on the President the authority to remove presidentially appointed executive officers.
The authors' initial article is Aditya Bamzai & Saikrishna Bangalore Prakash, The Executive Power of Removal, 136 Harv. L. Rev. 1756 (2023). The response, to which this article is in turn responding, is Andrea Scoseria Katz & Noah A. Rosenblum, Removal Rehashed, 136 Harv. L. Rev. F. 404 (2023).
And from the introduction (footnotes omitted):
In this Essay, we reply to a critique of [the authors' previous] article—Removal Rehashed by Professors Andrea Katz and Noah Rosenblum. We part ways with their analysis in several significant respects. But despite our disagreements, we are grateful for the chance to sharpen our own thinking on these issues. Just as the hammer and the anvil forge the metal, so too in the realm of intellectual discovery the critic forces the author to refine arguments that would otherwise remain untested. In that spirit, we offer this reply. We continue to believe that, although our theory is not the only one possible, it best fits text, structure, history, and early practice, and is therefore preferable to the alternatives.
In contrast to our views, Katz and Rosenblum reject altogether the notion that the Constitution confers a removal power on the President. Starting from that perspective, they advise that readers “will find little new” in our article. To be sure, if one starts from the premise, as Katz and Rosenblum do, that it is “intellectually indefensible” to believe that Article II grants a presidential removal authority, then we agree: there is nothing to see here. But for those who are more open-minded about one of the most significant (and historically, most debated) questions of the separation of powers, read on. The case for a presidential removal power is stronger than they are willing to acknowledge.
Consider, for example, one of Katz and Rosenblum’s claims about the historical pedigree of the President’s removal authority. They contend that “[t]he historian might wonder why th[e] argument [for an executive power of removal,] if once so widespread, disappeared so quickly.” To support their claim that the argument for a removal power “disappeared so quickly,” Katz and Rosenblum rely on a quotation from a 1916 book by Frank Goodnow providing that courts “have held that [the Vesting Clause] has little if any legal effect, and that for the most part it is to be explained by the powers which are later specifically mentioned.” But Katz and Rosenblum’s use of this quotation does not properly characterize Goodnow. Two pages after the quoted language, Goodnow explained that the “practice” with respect to removal is “that the President has the power to remove arbitrarily almost all civil officers of the United States, not judges. This power has been recognized as belonging to the President as a part of the executive power granted to him.” Rather than demonstrating the “disappearance” of an “executive power of removal,” Goodnow’s 1916 book demonstrates how into the twentieth century, it was widely recognized that Article II conferred removal power on the President. Professor Goodnow once remembered what some modern historians have forgotten.
As we discuss below, this is not the only occasion where we part ways with Katz and Rosenblum’s characterization of our article or the underlying sources. …
Posted at 6:08 AM