The President’s Removal Power: Background

 

The following is based largely upon Chemerinsky’s, Constitutional Law: Principles and Policies 7^th ed:

“[T]here is no provision of the Constitution concerning the president’s authority to remove executive branch officials. The principle that has emerged from the cases is that the president may remove executive officials unless removal is limited by statute. Congress, by statute, may limit removal both if it is an office where independence from the president is desirable, and if the law does not prohibit removal but rather, limits removal to instances where good cause is shown.”

Of course, under Article II “The executive power shall be vested in a President of the United States of America,” and his most important power is to “take care that the laws be faithfully executed.” One important way for the President to "take care" is by exercising control over executive officials.

Myers v. United States

Consider Myers v. United States, 272 U.S. 52 (1926), the first important case to interpret the removal power.

In Myers, President Woodrow Wilson fired Myers, the postmaster of Portland, Oregon notwithstanding a federal law that required postmasters to be removed during their term of office only with the advice and consent of the Senate. The Court held that the law unconstitutionally interfered with the President’s power to remove executive officials. As the Court put it, “[t]he power to remove…is an incident of the power to appoint.” That power of the President is essential to the President’s most important power, the power to take care that the laws be faithfully executed.

 

Humphrey’s Executor v. United States

 

However, now consider a case decided in 1935, Humphrey’s Executor v. United States, 295 U.S. 602 (1935). Here is the executive summary of the case by Oyez:

“President Hoover appointed, and the Senate confirmed, Humphrey as a commissioner of the Federal Trade Commission (FTC). In 1933, President Roosevelt asked for Humphrey's resignation since the latter was a conservative and had jurisdiction over many of Roosevelt's New Deal policies. When Humphrey refused to resign, Roosevelt fired him because of his policy positions. However, the FTC Act only allowed a president to remove a commissioner for "inefficiency, neglect of duty, or malfeasance in office." Since Humphrey died shortly after being dismissed, his executor sued to recover Humphrey's lost salary. The unanimous Court found that the FTC Act was constitutional and that Humphrey's dismissal on policy grounds was unjustified. The Court reasoned that the Constitution had never given "illimitable power of removal" to the president.”

And here is Chemerinsky’s explanation: “The practical effect [of the opinion was] to draw a distinction between cabinet officials and those who are in independent regulatory agencies. For the former, such as the postmaster in Myers or the secretary of state or attorney general, Congress may not limit removal because the cabinet is there to carry out the president’s policies. But for independent regulatory agencies—such as the Federal Trade Commission, the Securities and Exchange Commission, and the Federal Communications Commission—Congress may limit removal to situations where there is just cause for firing.

From a functional perspective, this distinction makes sense. Congress, in creating independent regulatory agencies, intended that they be relatively insulated from political control. But from a more formalistic perspective, the distinction is troubling. The Constitution creates a single executive and provides no authority for executive agencies that operate outside the president’s control.”

RFD here: True. And what Chemerinsky calls a “formalistic perspective,” I call a perspective that is more faithful to the actual text of the Written Constitution. But I don’t get a vote on the Court.

One last preliminary note--in Bowsher v. Synar, "the Court articulated one clear and important limit on the removal power: Congress cannot give itself the power to remove executive officials. The only exception, of course, is that Congress always can remove an executive official through the impeachment process."