At NYU Law’s Democracy Project, Caleb Nelson: Must Administrative Officers Serve at the President’s Pleasure? From the introduction:
… Aside from its provisions about impeachment … the Constitution does not specifically address the removal of officers in the executive branch (which, for this purpose, includes the enormous variety of agencies that administer an enormous variety of statutes in an enormous variety of ways). Who gets to fire them and for what reasons?
It would be natural to conclude that as with other issues relating to the structure of the executive branch, Congress has broad authority to address this topic by statute. Given the range of tasks that Congress can authorize different officers to perform (entering into contracts, making grants, issuing licenses, conducting formal adjudications, participating in the promulgation of regulations, and more), and given the variety of things that different statutes require or allow these officers to consider (including legal constraints, technical or scientific expertise, the evidence introduced in adjudicative proceedings, and more), one might not expect a one-size-fits-all approach. For sensible policy reasons, Congress might decide that the President should be able to remove many officers or even lower-ranking employees at will, but that other officers or employees should be removable only for defined causes and through defined processes. In my view, the Necessary and Proper Clause lets Congress make these judgment calls as it enacts particular statutes that structure particular agencies.
And from later on, addressing what I think is the strongest argument for presidential removal:
A second route to [finding presidential removal power] rests on claims about the “unitary” executive. Whatever “[t]he executive Power” is, and hence whatever the executive branch can do either by virtue of the Constitution or pursuant to statutory authority, Article II vests that power in a single person—the President. So-called unitarians conclude that the President must therefore be in charge of all exercises of executive power by the federal government. Of course, unitarians do not claim that the President can legitimately direct underlings to violate valid statutory commands (although some unitarians’ understanding of the constitutional structure would give the President considerable ability to do so in practice). But to whatever extent Congress’s statutes leave policymaking discretion in the hands of the people who execute those statutes, unitarians insist that the President must be able to control how that discretion is used.
Some unitarians would let Congress choose among different means of giving the President such control. But others infer that a specific means of control is constitutionally required: the President must be able to remove all principal executive officers at will. For its part, the Supreme Court speaks as if this idea extends beyond principal officers. In the words of an order that the Court recently issued on its emergency docket, “Because the Constitution vests the executive power in the President, . . . he may remove without cause executive officers who exercise that power on his behalf, subject to narrow exceptions recognized by our precedents” (some of which the Court seems poised to overrule).
In my view, the Vesting Clause does not carry this hidden but dramatic message. It is true that Article II vests the executive power in the President. But Congress is in charge of creating offices within the executive branch, and the Constitution does not give the President unilateral power to dictate who will fill those offices or what their authorities and duties will be. When officers are duly appointed pursuant to the Appointments Clause, moreover, the Constitution requires the President to “Commission” them—which, in the case of executive officers, entails either conferring executive power on them or attesting to the executive power that their appointments confer. To my way of thinking, neither the Vesting Clause nor anything else in Article II compels the inference that after officers have been duly appointed, and after the President has issued the commissions that the Constitution requires, the President must be able to terminate the appointments and rescind the commissions at will, or to dictate how all such officers must use any discretion that the law attempts to give them.
I usually find Professor Nelson’s arguments rich and persuasive, but this seems a bit thin and not really responsive to the “unitarian” view of the text. That view is that (a) the President is vested with executive power; (b) executive power includes law execution power; (c) Congress’s necessary and proper power does not allow it to change the structural allocations of power made in the Constitution; and (d) when Congress limits the President’s authority over officers who are executing the law, Congress takes away power from the President and vests in those officers.
Professor Nelson says that the President commissioning officers “entails either conferring executive power on them or attesting to the executive power that their appointments confer.” I agree, and that (in my view) proves the unitarians’ point. By the Constitution, only the President has Article II executive power (as only Congress has Article I legislative power and only the courts have Article III judicial power). The only way that executive power can be given to someone else (as is done by the commissioning) is if the President retains control over that person, so that the President retains ultimate authority over the executive power that person exercises. Otherwise, the President’s executive power is diminished. Once one agrees that commissioning “confer[s] executive power,” that conclusion seems necessarily to follow.
It may well be, as Professor Nelson says in his conclusion, that the combination of the removal power and the enormous growth of the federal government makes the President more powerful than the framers could have imagined. But that is the fault of the latter development, which is entirely attributable to and within the control of Congress.
UPDATE 10/15: At Volokh Conspiracy, Josh Blackman has thoughts: A “Bombshell” Or a Dud? (He goes with “Dud”.)
Posted at 6:00 AM