Recently published, in the Harvard Law Review: Aditya Bamzai (University of Virginia) & Saikrishna Bangalore Prakash (University of Virginia), The Executive Power of Removal (136 Harv. L. Rev. 1756) (89 pages). Here is the abstract:
Whether the Constitution grants the President a removal power is a longstanding, far-reaching, and hotly contested question. Based on new materials from the Founding and early practice, we defend the Madisonian view that the “executive power” encompassed authority to remove executive officials at pleasure. This conception prevailed in Congress and described executive branch practice, with Presidents issuing commissions during pleasure and removing executive officers at will. While some Justices and scholars assert that Congress has broad legislative power to curb executive removals, their reading leads to a host of troubles. If, as some argue, Congress can limit the grounds for a presidential removal, what prevents Congress from likewise limiting the grounds for executive pardons, judicial judgments, and impeachment removals? The far-reaching legislative power that some scholars advance cannot be cabined to presidential removals. We also respond to a number of judicial and scholarly critiques, many grounded in claims about early statutes and practices. Though valuable, these critiques misunderstand or ignore certain practices, sources, and key episodes, like the events surrounding Marbury v. Madison. There was a widespread consensus that the President had constitutional power to remove, and early laws did not limit, much less bar, presidential removal of executive officers.
And from the introduction (footnotes omitted):
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 underwhat circumstances Congress may constrain that power. In three opinions — Free Enterprise Fund v. Public Co. Accounting Oversight Board, Seila Law LLC v. Consumer Financial Protection Bureau, and Collins v. Yellen — the Court endorsed the traditional view that the Constitution grants the President the power to remove. Even the dissents did not deny the point, at least not in toto. The Court also evinced marked skepticism about congressional authority to limit removal.
Though the Court had sanctioned for-cause protections, 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. And the Court held that while Congress can grant forcause protections to the plural leadership of certain agencies, it cannot grant such shields to a single executive officer in charge of an agency.
The Court has overturned no precedent. Nonetheless, it seems keen to prune (or root out) cases like Humphrey’s Executor v. United States and Morrison v. Olson. Its recent opinions have extolled presidential supervision of the bureaucracy. They have characterized the “independent agencies” as executive and have rejected the notion that these agencies exercise quasi-legislative or quasi-judicial powers. 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.
In dissent in Seila Law, Justice Kagan wrote a spirited defense of for-cause protections, claiming that Congress may limit presidential removals. The Court’s opinions also inspired a deluge of antiunitarian scholarship, much of which focused on early practices. Call these scholars the “Disunitarians.” One strand of Disunitarian thought asserts that the Constitution does not demand a hierarchical executive and denies that it grants removal power to the President. Another strand proclaims that Congress can abridge the President’s removal power. A third strand asserts that removal restrictions date back to the Founding.
We address three enduring questions. 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. After a famous debate in 1789, Congress endorsed this precise view. Further, our first Presidents repeatedly proclaimed a power to remove and, in fact, ousted scores of officers. 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. 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. 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.
Third, what light do early commentary and practice shed on the first two questions? While providing a comprehensive defense of removal, 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. 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.
I agree with this view.
Posted at 6:39 AM