Arguments against strong executive appointment and removal power
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This page captures the main arguments that have been advanced against strong executive appointment and removal power. Some of the claims made in support of these arguments involve the appointment power alone, the removal power alone, or both.
The arguments against strong executive appointment and removal powers apply at each level of government and may involve the president, governors, or mayors. Those who make these arguments come from across the political spectrum and are not uniformly for or against the administrative state in general.
In the context of the federal government, scholars disagree about how free the president ought to be to appoint and remove agency officials without statutory restrictions. Those who defend the strong version of these powers argue that presidents should be able to nominate agency officials of their own choosing based on their own selection criteria and should be able to remove agency officials at will. Other scholars argue in favor of legal limits that might narrow the candidate pool for appointments or require that the president give a specific reason before removing an official.
There are three main types of argument against strong executive appointment and removal power:
- Click the arrow (▼) in the list below to see claims under each argument.
1. Argument: Restrictions on the executive appointment and removal power promote good government
- Claim: Allowing the Senate to serve as a check on the president’s removal power would promote consistency in the administration of federal laws
- Claim: Requiring presidents to have good cause before removing officials promotes technical expertise and non-political administration of the laws
- Claim: Prescribing tenure of office for agency officials yields better administration of laws
- Claim: Partisan balance requirements for agency officials yield better results
- Claim: Restrictions on presidential control of agencies make officers more responsible for decisions
- Claim: Insulating agencies from at-will removal by the president slows the expansion of executive power
- Claim: Removal power is not an effective way for presidents to exercise political control over agencies
- Claim: Judicial interventions that promote the removal power can be harmful for democratic accountability
- Claim: Strong removal power is not required for the president to control agencies
- Claim: Exercising strong removal power can have political costs for the president
- Claim: Even though some statutes governing the president’s appointment and removal powers might violate the original understanding of that power, they are supported by longstanding congressional and presidential practice
- Claim: Restrictions on the removal power recognize that the federal government has to change with the times in order to promote efficiency and prevent tyranny
3. Argument: Restrictions on presidential appointment and removal powers are constitutional
Restrictions on the executive appointment and removal power promote good government
According to this argument, government agencies are more effective and produce better policies when presidents have limited appointment and removal powers. The following claims support the argument that better outcomes follow restrictions on the power of presidents to hire and fire agency leaders at will.
Claim: Allowing the Senate to serve as a check on the president’s removal power would promote consistency in the administration of federal laws
Those who make this claim see the Senate as a check against partisan or personal manipulation by the president of those who administer the laws.
- Alexander Hamilton, writing as Publius in The Federalist Papers, argued that “[i]t has been mentioned as one of the advantages to be expected from the co-operation of the Senate, in the business of appointments, that it would contribute to the stability of the administration. The consent of that body would be necessary to displace as well as to appoint. A change of the Chief Magistrate, therefore, would not occasion so violent or so general a revolution in the officers of the government as might be expected, if he were the sole disposer of offices. Where a man in any station had given satisfactory evidence of his fitness for it, a new President would be restrained from attempting a change in favor of a person more agreeable to him, by the apprehension that a discountenance of the Senate might frustrate the attempt, and bring some degree of discredit upon himself. Those who can best estimate the value of a steady administration, will be most disposed to prize a provision which connects the official existence of public men with the approbation or disapprobation of that body which, from the greater permanency of its own composition, will in all probability be less subject to inconstancy than any other member of the government.”[1]
- Law professor J. David Alvis mentioned that some argue that Congress could ensure that its laws were faithfully administered by participating in removal decisions.[2]
Claim: Requiring presidents to have good cause before removing officials promotes technical expertise and non-political administration of the laws
Those who make this claim argue that agencies make more decisions based on scientific conclusions rather than partisan considerations when the president may only remove agency personnel for good cause.
- Law professor J. David Alvis argued in a 2019 article, “The Court’s decision [in Humphrey’s Executor] brought together both the political and academic ambitions behind the IRCs [Independent Regulatory Commissions]. For those in Congress who wanted to limit the executive’s power in an ever-expanding regulatory government, the decision provided the legal cover for constructing powerful regulatory agencies exempt from executive control. For proponents of the modern administrative state, the “quasi-judicial/quasi-legislative” designation of the independent regulatory commissioners opened a new space that could be shielded from ordinary democratic politics to be staffed by technocrats and public policy experts.”[2]
- Law professor Daniel A. Crane argued in a 2015 article that some people believed the structure of the Federal Trade Commission (FTC) [nonpolitical/nonpartisan, expert, quasilegislative, quasijudicial] justified insulating the agency commissioners from presidential political control.[3]
- Crane added that because the FTC was not acting as a law enforcer (but as a judge/legislator), the president didn’t need to control commissioners in order to fulfill his duty to take care that the laws are faithfully executed.[3]
- Law professor Geoffrey P. Miller argued in a 1986 article that some hold that independent agencies protected by limitations on presidential removal power are able to govern better because they are insulated from politics, allowed to rely on their expertise, and focus on particular regulatory concerns.[4]
- Miller cited an argument from James Landis that limits on presidential removal power would let agencies attract better employees.[4]
- Miller added, “The independence of the agency is said to be an important stimulus in drawing highly talented men and women into government service, since their actions are not subject to review and reversal by ‘young bureaucrats’ in some White House office.”[4]
- Neomi Rao provided the following summary of the dissent in Free Enterprise Fund v. PCOAB: “[T]he dissent defends the Act by highlighting the virtues of bureaucratic independence. Statutes give the heads of independent agencies tenure protection precisely to limit the President’s oversight and political control. Justice Breyer expresses the standard interests served by for-cause removal provisions, including that they protect the independence of adjudication and serve the ‘need for technical expertise.’ With regard to the independent agencies, such goals are thought to be in conflict with direct presidential oversight. Independent agencies are created in part to remove certain functions from the President’s ‘political’ influence.”[5]
- Datla and Revesz argued, “Presidents gain control over independent agencies more quickly than a formal reading of the enabling statutes would predict. One of the motivations behind for-cause removal protection is stability: the President will be faced with at least some holdover appointees and will not be able to exert influence over independent agency action until the agency head's term expires (or until enough terms on a multimember agency expire for the President to have a voting majority). … However, because of early resignations, the President is able to gain control much earlier in practice. Members of independent agencies often resign when a President of the opposing party is elected.”[6]
- Huq writes, “Once the President has removal authority (say, as a result of judicial intervention), risk-averse bureaucrats trim their sails even when pursuing an incumbent White House's agenda because they anticipate the possibility of future regime change. That is, the possibility of removal increases the potential downstream cost of staking out policy positions far from the political median, and as a consequence dampens bureaucrats' ardor on projects that, at least in some instances, will conform to a given President's policy agenda."[7]
Claim: Prescribing tenure of office for agency officials yields better administration of laws
This claim suggests that when Congress specifies how long agency officials should hold their positions, the officials administer the laws more effectively. They may be freer to regulate according to their expertise instead of relying on political direction. With defined tenure, a failure of expertise, rather than a failure to follow narrow partisan direction, becomes the main grounds for removal. For example, Congress setting a 10-year term for the director of the FBI may make presidents reluctant to replace directors before that time has passed unless there is a good reason.
- Attorney Kirti Datla and professor Richard Revesz argued in a 2013 law review article that a term of tenure for an agency official “might signal that the position is less political, which also limits the potential pool of nominees available to the President.” If Congress will be looking into an appointee’s background to verify whether they have expertise, presidents will have fewer qualified candidates to nominate. Longer officer tenure could also insulate officials from the political influence associated with seeking re-nomination.[6]
- Datla and Revesz added, “Longer terms cut across presidential administrations, a feature that is intended to make the officer ‘transcend political loyalty to the current presidential administration.’ If a President appoints a member whose term will continue into the next President's administration, the appointing President will not be able to use the incentive of reappointment to wield influence over the member.”[6]
- Datla and Revesz also argued that officer “terms of tenure foster expertise and continuity. Longer terms of tenure will allow officers to gain experience in the subject matter of the agency. Those officers can then transfer that knowledge to newly appointed colleagues. The trade-off is that with longer tenure comes an increased risk of dependence on staff and capture by interest groups.”[6]
Claim: Partisan balance requirements for agency officials yield better results
According to this claim, when agency leaders must be from different political parties, they make better decisions that are less tied to narrow, partisan interests.
- Datla and Revesz argued, “Partisan balance requirements limit politically motivated decision making within an agency. They ensure that different viewpoints will be expressed—an institutional feature that Professor Sunstein argues lowers the risk that decisions will be made on a strictly partisan basis. For agencies that regulate in a highly politicized environment, partisan balance requirements raise the costs to the agency for acting in a partisan manner. Because their partisan affiliation is clear, votes along partisan lines might decrease the legitimacy of their decision-making process by raising doubts that the agency is fulfilling its role as an expertise-driven body.”[6]
- Datla and Revesz added that “Congress may also use partisan balance requirements to limit the ability of a President to gain control over an agency through the process of attrition and appointment.”[6]
Claim: Restrictions on presidential control of agencies make officers more responsible for decisions
This claim focuses on agency officer behavior and suggests that officers perform better when they are responsible for their decisions instead of the president.
- Judge Henry Friendly argued in a 1962 lecture that too much presidential control over agency decisionmaking would "defy the lesson that it is responsibility that breeds achievement."[6]
Claim: Insulating agencies from at-will removal by the president slows the expansion of executive power
According to this claim, statutory limits on the president’s ability to control federal agencies keep the president from becoming too powerful.
- Attorney Kirti Datla and law professor Richard Revesz argued that in the 1930s, members of Congress saw independent agencies as a bulwark against the expansion of presidential power instead of a means to generate expert, impartial decision making.[6]
- Law professor A. Michael Froomkin argued in a 1987 law review article, “The threat of agency autonomy is a more practical tool for checking the executive than are statutes reducing executive discretion or setting penalties for violations. Such statutes would curtail agencies' abilities to react to unforeseen contingencies, and would make complex programs impossible by eliminating discretion to make rules filling out congressional intent. The threat of agency autonomy will color how Presidents and their subordinates use their discretion.”[8]
- "'Autonomy' in this Note refers to protection from political pressure by the President, most commonly achieved by protecting high officials from dismissal without cause.”[8]
Claim: Removal power is not an effective way for presidents to exercise political control over agencies
This claim relies on empirical evidence to suggest that the removal power does not allow presidents to exert control over agency policies.
- Aziz Huq writes in a 2013 law review article, “there is no strong correlation between removal authority and political control. Empirical evidence and political science models instead show that the power to remove is sometimes unnecessary and sometimes ineffectual to the goal of political control of the bureaucracy. Worse, presidential removal authority often has perverse and undesirable effects quite apart from democratic accountability goals. As a result, Presidents have tended not to rely too heavily upon the removal power to secure control over bureaucratic subordinates, and have instead looked to other tools.”[7]
Claim: Judicial interventions that promote the removal power can be harmful for democratic accountability
According to this claim, when courts make rulings about removal power, there can be unintended consequences. In some cases, rulings in favor of strong presidential powers might make the federal government less accountable to voters overall.
- Aziz Huq writes, “Judicial interventions in favor of presidential removal authority can therefore either promote or retard, or even leave untouched, net democratic accountability. Courts simply have no way of knowing in advance what effect their intervention will have on the relevant constitutional good. In the argot of the political question doctrine, this means that the promotion of presidential removal authority is not a judicially manageable standard by which a constitutional value can be reliably achieved.”[7]
- Huq continues, “Political control of the removal power question leaves the matter subject to interbranch negotiation and compromise by elected officials who are more attuned than judges to the complex interaction effects and strategic responses that can arise in response to changes in basic agency design.”[7]
Claim: Strong removal power is not required for the president to control agencies
According to this claim, people should look at factors outside of whether the president has the authority to fire agency personnel. Other systems of control allow presidents to oversee what happens within agencies.
- Huq writes, “Recall first that Free Enterprise Fund conceptualizes political control as a binary variable. Either it is present in the form of removal authority or it is wholly absent. Binary characterization of political control allowed the Court to ignore other mechanisms of political control. But this is too simplistic. The coexistence and overlap of various oversight mechanisms means that control is not a discrete, dichotomous variable but a continuous one with diverse etiologies. Its variegated causes operate on different objects via distinct pathways. Some control mechanisms, including appointment and removal powers, operate upon the officeholder. Others, such as OIRA review, have policies as their focus. Yet others-think of the reorganization power-target the institutional ecology of the bureaucracy. The fact that mechanisms of political control operate along different causal pathways with wholly different objects suggests these mechanisms are cumulative in effect.”[7]
Claim: Exercising strong removal power can have political costs for the president
According to this claim, without limits on presidential removal power the people may hold the president responsible for policy choices made by agencies, which can have negative electoral consequences. In addition, those who want experts to administer laws may see presidential interference as politicizing a neutral process.
- Huq writes, “Presidents will not always welcome judicial promotion of presidential removal authority. On occasion, the latter may convey to the voting public an impression of more fulsome presidential control than in fact is the case. When a White House wishes to communicate clearly the limitations upon its ability to secure policy goals, judicial insistence on presidential removal authority may well have the perverse effect of distorting perceptions of political accountability in ways that render elections less accurate as retrospective judgments on politicians' performance.”[7]
- Huq writes, “Removal often has large political costs, and these may render it an ineffectual supplement to the President's arsenal. Removal is a high-profile means of influencing policy outcomes in comparison to tools such as presidential administration, reorganization, and litigation control. Its use may draw public attention to the fact that a chief executive is attempting to control policy against the wishes of expert agency leadership. Hence, it creates political costs for the President.”[7]
Limits on the presidential appointment and removal powers reflect changing historical circumstances
According to this argument, the historical practice of Congresses and presidents have shown that limiting the president’s control over federal agencies is acceptable.
Claim: Even though some statutes governing the president’s appointment and removal powers might violate the original understanding of that power, they are supported by longstanding congressional and presidential practice
- An unsigned 2007 note in the Harvard Law Review argued that political party restrictions on appointments might violate the text of the constitution, but they have longstanding precedent in practice.[9]
- The Harvard note added that the U.S. Supreme Court has upheld longstanding governmental practice even when that practice lacks explicit legal authorization.[9]
- Law professor Geoffrey P. Miller argued that Congress only agreed to create some regulatory agencies on the condition that they would be at least somewhat independent of presidential control.[4]
- The Humprey’s Executor court held that “removal at will by the President would ‘thwart, in large measure, the very ends which Congress sought to realize by definitely fixing the term of office.’”[6]
- Law professors Cass R. Sunstein and Lawrence Lessig argued in a 1994 article that good cause limitations are permissible for officers who exercise adjudicative or ministerial functions. The original understanding exemplified this judgment, and our argument for changed circumstances does not undermine or complicate that analysis.[10]
- Sunstein and Lessig added that the same conclusion applies to those few officials who have the sorts of conflicts of interest exemplified by the Federal Reserve Board and independent counsels. This conclusion builds on historical understandings. It also fits comfortably with current institutional arrangements.[10]
- Law professor A. Michael Froomkin argued, “The Constitution is silent on whether Congress or the President ultimately controls the ordinary removal of high officials, and the Supreme Court has vacillated on the issue.”[8]
- Froomkin added, “Early congressional and presidential practices conformed to the view that the Constitution did not grant the President unlimited power to remove Heads of Departments. Presidential authority to supervise, and hence remove, officials varied with the nature of their function. The first Congresses gave the President the power to direct the Heads of Departments for Foreign Affairs, War, and Navy--authority that related to specifically named presidential functions in Article II. But the two other executive departments--the Post Office) and the Treasury--were more insulated from presidential direction, with the latter tied particularly closely to Congress. Most Attorney Generals agreed with, or acquiesced in, the congressional view for the first seventy-five years of the Republic.”[8]
- Froomkin added, “From the beginning, Congress not only restricted the President's authority to fire executive officials, but also narrowed the appointment power from which the removal power primarily derives. Congress' undisputed power to create an office includes the corollary power to narrow the group from which the President may select civil officers. Congress has required that certain appointees have particular citizenship or residence in a particular state, territory, or foreign country, it has required legal qualifications, language proficiency, and engineering or other professional credentials. Further, at times Congress has constrained the President's appointment power by specifying the appointee's age, sex, race, property holdings, business, or drinking habits Most of these statutes applied to federal officials below Cabinet rank, although all were 'Officers of the United States' and many had no superior officer except, perhaps, the President. Nor are restrictions on the appointment power an historical relic: Since 1947, a person must have been a civilian for ten years to be eligible for appointment as Secretary of Defense or to other top Defense Department posts. In addition, the President continues to be required to nominate some officials from different parties,or on a nonpartisan basis. At times, Congress has limited the President's choice to lists nominated by state officials, Indian tribes, or private citizens. The limits of the congressional authority to define or restrict the presidential appointment power have never been tested.”[8]
- Law professor Steven Breker-Cooper argued in a 1993 law review article, "The view that the President must have unfettered removal power as an ordinary incident of the 'executive Power' suggests that the President must be able to remove at least all superior officers. This inference is supported by the fact that hiring and firing are inherently executive functions. However, that absolute view has not prevailed. In addition, Congress's ability to fetter the President's discretion in removing inferior officers has never been seriously doubted."[11]
Claim: Restrictions on the removal power recognize that the federal government has to change with the times in order to promote efficiency and prevent tyranny
According to this claim, new governmental structures require rethinking the original constitutional design to keep powers in balance.
- Professor Miller argued, “The pragmatic approach sometimes invokes an argument from changed circumstances, to the effect that the rise of the administrative state has so altered the landscape of government that new roads must be cut to enable government to function according to the basic goals of the Framers: vigor and efficiency in government and the avoidance of tyranny and faction. And because administrative government vests unparallelled power and discretion in the executive branch, the balance of power among the branches that lies at the core of separation of powers requires that new governmental mechanisms be devised in order to check and limit the President's authority.”[4]
Restrictions on presidential appointment and removal powers are constitutional
According to this argument, the U.S. Constitution allows Congress to pass laws that restrict the appointment and removal powers of the president.
Claim: The U.S. Constitution allows Congress to regulate the presidential appointment and removal power
The following examples under this claim provide historical evidence and legal arguments in support of the idea that Congress may restrain the president’s control over the hiring and firing of agency leaders.
- Law professor Saikrishna Prakash argued in a 1993 article that the inferior officers appointments clause gives department heads appointment authority independent of the president.[12] This authority implies broader autonomy too.
- Prakash argued that the necessary and proper clause allows Congress to insulate department heads and agencies from presidential control.[12]
- Law professor Hugh E. Willis argued in a 1927 law review article that if the power of removal is incident to the power of appointment, then the Senate should participate in removal.[13]
- Attorney Kirti Datla and law professor Richard Revesz argued in a 2013 law review article, “Congress can still choose to impose costs on the President without conferring for-cause protection. Congress sometimes requires the President to communicate his reasons for removal. ... The requirement of notification decreases the chance that any attempt at removal might go unnoticed, thereby increasing the political risks involved.”[6]
- Law professor A. Michael Froomkin argued in a 1987 article, “Careful examination of constitutional theory, administrative history, and judicial precedent, however, demonstrates that this removal power is not absolute, and that Congress may thus constrain it by statute to create a degree of agency autonomy. Such constraints derive part of their legitimacy from Congress' power to create and structure the entire executive branch other than the President and Vice President.”[8] With that introduction, Froomkin identifies the following specific constitutional provisions to make his case:
- “Article II clearly anticipates that there will be 'Heads of Departments,' and that Congress may, if it chooses, grant them--not the President--the important discretion to appoint inferior officials. If Heads of Departments were utterly subject to presidential discretion, the provision would be meaningless; the President would in any case be able to regulate the selection, if not the actual appointment, of inferior officials.”[8]
- “Among the powers explicitly granted to the President is the power to 'require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices.' A broad reading of the take care clause has the effect of reducing this clause--which appears among the grant of major presidential powers in section two--to surplusage. If the President has so much control over the executive that he can fire at will, why put the power to request written opinions in the Constitution? The Constitution should not be read to have such redundancy. A more reasonable interpretation is that the opinion in writing clause exists because it was not assumed, or at the very least not obvious, that the President had absolute power over Heads of Departments”[8]
- “Just as Congress may determine which Article III court will hear cases, so too can Congress determine which agency will execute its policies. Just as Congress can insulate inferior federal courts from Supreme Court review, so too, by analogy, can Congress put stringent limits on the President's control of agencies--except, of course, for those functions textually committed to the President.”[8]
- “As Commander in Chief, the President ordinarily has considerably more authority and independence from Congress in the military sphere than in domestic affairs. Similarly, the President ordinarily enjoys broader authority and initiative in foreign affairs. If Congress can constrain the President's use of his inherent Commander in Chief or foreign affairs powers, it follows that Congress can apply at least as strong constraints to the removal power, an unenumerated, allegedly inherent, domestic power. … Since the unfettered presidential removal power is at most an 'inherent' power, the comparison to inherent war and foreign affairs powers suggests that Congress may 'try to stop' the President from removing Heads of Departments.”[8]
- “If the take care clause empowers the President, rather than creating a duty, this should be understood to mean that it gives him the power to enforce the standard of governmental performance set by Congress, not to create the standards themselves. At most, therefore, the take care clause permits the President to suspend or remove department heads for good cause, as defined by Congress, such as engaging in criminal behavior, or exceeding their statutory authority.”[8]
- Professor Breker-Cooper described part of the Myers decision in the following way: “Chief Justice Taft also rejected the contention that the legislative power is broad enough to overcome the President's inherent removal power, even over inferior officers. He accepted that Congress may limit the President's power of removal in cases involving inferior officers, but only if the appointment power had been vested in a ‘Head[] of Department[].’ Finally, Chief Justice Taft argued that the attempts to limit the President's removal power resulted from a political clash between Congress and the President, and demonstrated that from the onset of attempts to limit this power, the various Presidents involved had generally opposed the legitimacy of such congressional action.”[11]
- Breker Cooper wrote, “It could be argued, for example, that because the President's appointments power is expressly made subject to senatorial advice and consent in certain cases, further infringements on this authority are of lesser constitutional significance than infringements on his removal authority. Alternatively, the fact that certain limited encroachments on appointments are provided for in the Constitution might express the exact degree of interference the Framers were prepared to tolerate. Finally, it might be that limitation on appointments was designed to offset the President's unlimited power to remove.”[11]
See also
- Search Google News for this topic
- Appointment and removal power (administrative state)
- Ballotpedia's administrative state coverage
Footnotes
- ↑ ‘’The Federalist Papers: No. 77’’, “The Appointing Power Continued and Other Powers of the Executive Considered,” April 4, 1788
- ↑ 2.0 2.1 ‘’The Heritage Foundation’’, “The Contested Removal Power,” 2019
- ↑ 3.0 3.1 ‘’The George Washington Law Review’’, “Debunking ‘’Humphrey’s Executor’’,” 2015
- ↑ 4.0 4.1 4.2 4.3 4.4 4.5 4.6 ‘’The Supreme Court Review’’, “Independent Agencies,” 1986
- ↑ ‘’Fordham Law Review’’, “A Modest Proposal: Abolishing Agency Independence in Free Enterprise Fund v. PCAOB,” 2011
- ↑ 6.0 6.1 6.2 6.3 6.4 6.5 6.6 6.7 6.8 6.9 ‘’Cornell Law Review’’, “Deconstructing Independent Agencies (and Executive Agencies),” 2013
- ↑ 7.0 7.1 7.2 7.3 7.4 7.5 7.6 ‘’Stanford Law Review’’, “Removal as a Political Question,” 2013
- ↑ 8.00 8.01 8.02 8.03 8.04 8.05 8.06 8.07 8.08 8.09 8.10 ‘’Yale Law Journal’’, “Note: In Defense of Administrative Agency Autonomy,” 1987
- ↑ 9.0 9.1 ‘’Harvard Law Review’’, “Congressional Restrictions of the President's Appointment Power and the Role of Longstanding Practice in Constitutional Interpretation,” 2007
- ↑ 10.0 10.1 Columbia Law Review, “The President and the Administration,” 1994
- ↑ 11.0 11.1 11.2 Tennessee Law Review, "The Appointments Clause and the Removal Power: Theory and Séance," 1993
- ↑ 12.0 12.1 ‘’Yale Law Journal’’, “Hail to the Chief Administrator,” 1993
- ↑ ‘’Indiana Law Journal’’, “ Presidential Power of Removal,” 1927
