Arguments against strong executive appointment and removal power: Restrictions on presidential appointment and removal powers are constitutional
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This page captures one of 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 for 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 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 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.[1] 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.[1]
- 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.[2]
- 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.”[3]
- 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.”[4] 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.”[4]
- “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”[4]
- “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.”[4]
- “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.”[4]
- “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.”[4]
- 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.”[5]
- 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.”[5]
See also
- Search Google News for this topic
- Appointment and removal power (administrative state)
- Ballotpedia's administrative state coverage
Footnotes
- ↑ 1.0 1.1 ‘’Yale Law Journal’’, “Hail to the Chief Administrator,” 1993
- ↑ ‘’Indiana Law Journal’’, “ Presidential Power of Removal,” 1927
- ↑ ‘’Cornell Law Review’’, “Deconstructing Independent Agencies (and Executive Agencies),” 2013
- ↑ 4.0 4.1 4.2 4.3 4.4 4.5 ‘’Yale Law Journal’’, “Note: In Defense of Administrative Agency Autonomy,” 1987
- ↑ 5.0 5.1 Tennessee Law Review, "The Appointments Clause and the Removal Power: Theory and Séance," 1993
