I recently had a guest post at Divided Argument, which is also on SSRN, entitled The Unitary Executive: Presidential Control, not Removal. Here is the abstract:
This essay argues that the unitary executive theory is better grounded in presidential control or direction of executive officers than in plenary removal authority. Drawing on the Vesting Clause’s requirement that the executive power shall be vested in a President, the paper contends that while removal is one effective means of ensuring presidential control, it is not constitutionally mandated. The Necessary and Proper Clause empowers Congress to structure executive offices, including removal procedures, so long as the President retains adequate mechanisms for directing subordinates.
The essay identifies two alternative methods for controlling principal officers that satisfy constitutional requirements without plenary removal: first, presidential authority to give binding orders backed by removal for failure to follow those orders; second, presidential authority to directly exercise the powers of the principal officer and to void any actions taken without presidential consent.
The presidential control theory offers significant advantages over the removal view. Textually, it derives more directly from the Vesting Clause, whereas removal authority must be inferred through the residual theory of executive power or the Take Care Clause—both of which face interpretive difficulties. Practically, the control theory avoids rendering unconstitutional major features of existing government, including administrative law judges protected by for-cause removal and the civil service system
The Civil Service system is largely constitutional because inferior officers and employees can be adequately controlled through the requirement that they follow lawful orders, with sanctions including removal imposed if they fail to do so. But principal officers, given their authority and close interaction with the President, require additional measures. One means of controlling them is plenary removal authority. But there are others. The essay discusses two such mechanisms.
I will provide two methods of control under which principal officers, such as cabinet secretaries or commissioners, would be constitutional without being subject to plenary removal by the President. One method involves presidential authority to give binding orders to the principal officer, backed up by removal for failure to follow those orders. Another involves presidential authority to take binding actions for the agency. Both methods employ a presidential power to direct principal officers, including the power to require the principal officer to secure the President’s consent before taking any action. . . .
One method of control that does not involve plenary removal authority authorizes the President to give binding orders to the principal officer (and anyone else in the agency). The President would have authority not only to require the principal officer to take actions, but to prevent that officer from taking actions without the President’s consent. In addition, since the President can only control the agency through subordinate officers, it is also necessary that the principal officer not be someone appointed by his political opponent. Thus, this method requires that a new President be able, at the beginning of his term only, to freely dismiss principal officers appointed by the prior administration.
Failure of the principal officer to follow the President’s directions would be grounds for removal. Such removal would only occur after judicial review. But a strong argument can be made that lengthy judicial review – or hostility towards the President from district judges – would interfere with the President’s ability to control the agency. To guard against this possibility, the law should provide for expedited review and for removal of the officer during the pendency of the lawsuit unless it is clear that the officer did not disobey an order he could have reasonably followed.
Another method of control that does not involve plenary removal authority allows the President both to exercise the powers of the principal officer and to give binding orders to that officer. Under this method, the President can order the principal officer to not take any actions without the President’s prior consent. Actions by the principal officer taken without consent would then be void. Moreover, the President could take whatever actions the principal officer could take, including supervising officers and employees in the agency. The President should also be able to remove more senior officers in the agency (other than the principal officer) for failure to follow his orders under a similar judicial review arrangement as discussed above.
Posted at 8:00 AM