Jane Manners (Columbia Law School) and Lev Menand (Columbia Law School) have posted Removal Permissions and the Forgotten Tenure of a Term of Years (97 pages) on SSRN. Here is the abstract:
Under what circumstances can the President remove the head of an independent agency? Does the Constitution place a limit on an agency’s independence and if so, what is it? Precedents that have been settled for generations may be unsettled this term when the Supreme Court faces these questions in a lawsuit challenging the constitutionality of the Consumer Financial Protection Bureau (CFPB). The CFPB’s enabling statute, like the enabling statutes of over a dozen other agencies, authorizes the President to remove the CFPB’s Director for inefficiency, neglect of duty, or malfeasance in office (INM). But Presidents have respected the independence of officials like the CFPB Director for so long that there is little awareness today of what these terms mean or what sort of relationship they create between the President and the officials she can remove on these grounds. This Article addresses that gap. It resurrects the lost history of removal law and defines INM. It shows that neglect of duty and malfeasance in office are common law terms relating to faithful execution that date back hundreds of years and that inefficiency is a nineteenth century concept having to do with government waste and ineptitude. It further shows that INM provisions are not removal “protections” as they have come to be interpreted in recent years, but removal permissions. Where present, they expand the President’s power by authorizing her to remove officials who are tenured for a term-of-years, a tenure long understood to bar removal—for any reason—by the President in the middle of an officer’s term. Three conclusions follow. First, INM was not written to empower the President to direct agency actions. Independent agency heads really were meant to exercise their discretionary authority independently. Second, even under an expansive reading of Article II, “for cause” removal provisions do not conflict with the Constitution’s Take Care Clause. INM permits the President to combat “unfaithful execution” by empowering her to remove officials for neglect of duty and malfeasance in office. Third, courts have erred by regularly reading INM into enabling statutes that are silent on removal. Where such statutes create offices “for years,” they presumptively prohibit removal—whether summarily or for cause.
Via Larry Solum at Legal theory Blog, who says: "Highly recommended. Download it while it's hot!"
Posted at 6:44 AM