Arguments in favor of strong executive appointment and removal power
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This page captures the main arguments that have been advanced in favor of 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 two main types of argument in favor of strong executive appointment and removal power:
- Click the arrow (▼) in the list below to see claims under each argument.
1. Argument: Strong executive appointment and removal powers promote good government
- Claim: The removal power allows presidents to control administrative agencies
- Claim: The appointment power allows presidents to control administrative agencies
- Claim: Presidents have a better perspective on when officers should be removed than the Senate
- Claim: Presidential removal powers make the president accountable to the people
- Claim: At will tenure for agency officials helps courts promote stability and good government
- Claim: Bureaucrats insulated from the threat of presidential removal might become less motivated
- Claim: Presidents and other executives can implement their agendas if they do not face appointment or removal power restrictions
- Claim: Partisan balance requirements can limit agency effectiveness
2. Argument: Strong presidential removal power honors the original constitutional design
- Claim: Restrictions on the presidential removal power change the balance of powers under the U.S. Constitution
- Claim: Restrictions on the president’s appointment or removal power are unconstitutional
- Claim: It is a mistake to imply restraints on presidential control of agencies where the law is silent
Strong executive appointment and removal powers promote good government
According to those who make this argument, giving executives the authority to choose who runs agencies, and to fire those officers at will, makes government function better. They make the following claims about the government benefits that follow strong executive control of agency managers.
Claim: The removal power allows presidents to control administrative agencies
According to this claim, presidents with the power to fire agency leaders at will are able to control the policies made by federal agencies.
- Federal Judge Neomi Rao argued in a 2014 law review article that requiring presidents to litigate whether removal was for a permissible cause under various laws infringes on the executive power to control administration.[1]
- Law professor Geoffrey P. Miller argued in a 1986 article that the presidential power of removal allows the president to coordinate the activities of various agencies to benefit society as a whole.[2]
- President Grant argued in his first annual message to Congress that restricting the ability of presidents to remove officers they don’t want by requiring him to receive Senate consent is inconsistent with faithful and efficient administration of government.[3]
- Law professors Cass R. Sunstein and Lawrence Lessig argued in a 1994 law review article that the framers believed a unitary executive, including removal power, advanced the interests of coordination, accountability, and efficiency in the execution of the laws.[4]
- Sunstein and Lessig added, “There are important exceptions to this general proposition. These would include (1) purely adjudicative officers, (2) people who perform ministerial duties, and (3) people who perform merely investigatory and reportorial functions — recall that Congress can have a staff. All three exceptions have historical roots. But subject to these exceptions, we believe that Congress could not create fully independent officials without offense to the constitutional structure, at least in the absence of special circumstances. This conclusion follows from the constitutional commitments to coordination, accountability, and prevention of factionalism.”[4]
- Law professor Reginald Parker argued in a 1960 law review article, “[T]he President's most powerful way of indirectly forcing his will upon the administrative branch of government: his power of appointment and removal. The former, limited by the necessity of the consent of the Senate, assures the President to a reasonable extent that only persons who share his views on major questions will hold executive posts and that dissenters will not be reappointed. It requires no further discussion here. The latter works as a permanent, implicit warning against the appointee to conform to the wishes of the chief of state.”[5]
- Law professor Daniel A. Crane argued in a 2015 law review article that presidential removal is effective even if found unlawful because the successful lawsuits against removal (Humphrey’s and Wiener) were for back-pay, not reinstatement, which might allow presidents to fire agency personnel as long as he pays their salaries.[6]
- Law professor Saikrishna Prakash argued in a 2006 law review article that in order to attract better applicants, presidents can set tenure limits on their own removal power and allow officers to remain in power during good behavior instead of at the pleasure of the president.[7]
- Neomi Rao made the following argument in “A Modest Proposal: Abolishing Agency Independence in Free Enterprise Fund v. PCAOB”: “Faithful execution of the laws requires presidential oversight of executive officials. Moreover, such oversight requires, as a general rule, the ability to remove officials when they fail to perform to the President’s standards. These first two fundamental principles lead to the next question about the extent to which Congress has the authority to restrict the President’s removal authority. This is precisely the question at issue in the case: ‘whether Congress may deprive the President of adequate control over the Board, which is the regulator of first resort and the primary law enforcement authority for a vital sector of our economy.’ The Court holds that Congress cannot deprive the President of such “adequate control.”[8]
- Rao provided the following analysis of Chief Justice John Robert’s arguments in the opinion for Free Enterprise Fund v. PCAOB: "The Chief Justice’s argument, however, goes beyond a disagreement about whether removal is functionally superior. Rather, removal is the constitutionally required means of oversight, particularly because the Board exercises significant executive power outside of the effective control of the Commission. The Court rejects the idea that pragmatic or functional limitations can be, as Justice Breyer says, ‘sufficient,’ because they do not serve the same purpose as removal—a distinct means of oversight related to the executive power and executive duty of faithful execution. Accordingly, the constitutional structure of separation of powers requires presidential oversight of executive officers and such oversight requires the ability to remove these officers at will."[8]
- Attorney Kirti Datla and law professor Richard Revesz argued in a 2013 law review article, “The ability to remove an agency head at will is an enforcement tool that helps the President ensure that the agency follows his policy preferences. Of course, at-will removal is a blunt instrument for enforcing presidential preferences. Any decision to remove an agency head will impose political costs on a President. These costs will vary according to the reason for the removal, the popularity of the President, the popularity of the agency head, and other factors. A President will therefore remove an agency head only when the political benefits exceed the political costs. Insulation from presidential removal significantly increases the political costs of a decision to remove an agency head for a President because invoking a for-cause provision will make the removal more politically salient and susceptible to judicial challenge.”[9]
Claim: The appointment power allows presidents to control administrative agencies
Those who make this claim argue that a relatively unrestricted appointment power gives presidents control of federal agencies because, depending on the agency structure, presidential picks can set agency agendas and direct policymaking.
- Datla and Revesz argued, “The President appoints the heads of almost all independent agencies, the chairs of multimember agencies, and the administrators of single-head agencies. The appointment power matters because these agency heads generally control the agenda of the agencies; that is, they have control over agency output and can limit agency actions that the President might oppose. The chairs of multimember agencies have been granted budget, personnel, and agenda control by statute.”[9]
- Datla and Revesz continued, “An appointed chair will align with the President for multiple reasons. First, appointees might wish to be reappointed, and the President's power to withhold renomination "casts its shadow" before renomination. Second, an appointee might want access to the political rewards that come with being on the head of a political party's good side, such as support in a run for office or support for a placement in a higher-level federal position or in the private sector. Third, the President might have greater control over these appointments than he does over, for example, judicial appointments. This is because the tradition in judicial appointments of deference to the Senator whose state the court sits in does not apply.”[9]
Claim: Presidents have a better perspective on when officers should be removed than the Senate
This claim refers to the idea that a single executive will have a closer relationship with subordinate officers than the U.S. Senate, which has many members who are not involved in daily agency activities. The closer relationship between presidents and agency officials may allow the chief executive to gather more detailed information and make better removal decisions than the Senate.
- Justice Taft argued in Myers v. U.S., “When a nomination is made, it may be presumed that the Senate is, or may become, as well advised as to the fitness of the nominee as the President, but in the nature of things the defects in ability or intelligence or loyalty in the administration of the laws of one who has served as an officer under the President, are facts as to which the President, or his trusted subordinates, must be better informed than the Senate, and the power to remove him may, therefore, be regarded as confined, for very sound and practical reasons, to the governmental authority which has administrative control.”[3]
Claim: Presidential removal powers make the president accountable to the people
Proponents of strong executive removal powers claim that voters can evaluate presidents with the sole authority to remove agency personnel. With a clear chain of command, voters can approve or reprimand presidents for the behavior of their subordinates and the removal power reinforces that hierarchy.
- Law professor J. David Alvis argued in a 2019 article that broad removal power given to the president makes him accountable to the American people for the actions of independent agencies because it creates a chain of command from department heads to the president to the people.[10]
- Chief Justice Roberts argued in Free Enterprise Fund v. PCAOB, “Without a clear and effective chain of command, the public cannot ‘determine on whom the blame or the punishment of a pernicious measure, or series of pernicious measures ought really to fall.”[11]
- Law professor Saikrishna Prakash argued in a 1993 law review article that the Framers of the U.S. Constitution attempted to establish an executive who alone is accountable for executing federal law and who has the authority to control its administration.[12]
- Former U.S. Senator Guy Goff argued in a 1931 lecture that without the removal power, the president cannot be held responsible for faithful execution of the laws.[3]
- Federal Judge Neomi Rao argued in a 2014 law review article that the removal power legitimizes delegating discretionary authority to the bureaucracy because agency officials would be responsible to a politically accountable president.[1]
- Law professors Cass R. Sunstein and Lawrence Lessig argued in a 1994 law review article that even if the framers’ idea of the presidency was not that of the strong unitary theorists, a modern strongly unitary executive might advance the values of accountability.[4]
- Sunstein and Lessig added, “When fundamental policy decisions are made by administrators, immunizing them from presidential control would have two significant consequences: first, it would segment fundamental policy decisions from direct political accountability and thus the capacity for coordination and democratic control.”[4]
- Law professor Geoffrey P. Miller argued in a 1986 article, “As to the danger of faction, there is reason to believe that a President accountable to the entire nation is less likely to be subject to the influence of discrete interest groups than is some extraconstitutional institution established purportedly to check presidential authority.”[2]
- Sunstein and Lessig argued, “Second, [removal restrictions on the president] would subject these institutions to the perverse incentives of factions, by removing the insulating arm of the President, and increasing the opportunity for influence by powerful private groups.”[4]
Claim: At will tenure for agency officials helps courts promote stability and good government
According to this claim, there would be more consistent judicial outcomes if judges deciding separation of powers cases rule that agency officials serve at the pleasure of the president.
- Judge Neomi Rao argued in a 2014 law review article that “the removal power as necessary and sufficient provides a justiciable principle for ensuring the President’s constitutional control over the execution of the laws. In a challenge to a particular administrative structure, courts can evaluate whether the President retains the removal power. Removal at will provides a bright line that the courts can use to ensure that the President maintains the constitutionally requisite degree of control over essential aspects of execution.”[1]
Claim: Bureaucrats insulated from the threat of presidential removal might become less motivated
According to this claim, members of independent agencies not subject to at will tenure might not work as hard to accomplish policy goals as members of executive agencies under direct presidential supervision.
- Law professor Geoffrey P. Miller argued in a 1986 article that “the deadening effects of lengthy job tenure and group decision making should not be disregarded. Officials who serve terms of ten or fourteen years, subject to removal only for serious malfeasance, may naturally become complacent or even lazy in their jobs. In most cases members of independent regulatory commissions can look forward to lucrative positions in private industry upon completion of their term of service. They need not distinguish themselves while in office. Indeed, because decisions are typically made by majority vote, it is rare for their personal contributions to be singled out for admiration or criticism. Members of independent regulatory commissions can get by for years doing little more than attending meetings and voting to endorse the recommendations sent up by the staff. The heads of executive departments, in contrast, typically serve for much shorter periods. Because they are individually responsible for the affairs of the agency, they have an incentive to perform their duties with vigor and attention. And the possibility of falling into disfavor with the President is an ever-present goad to their energetic performance in implementing the President’s program.”[2]
Claim: Presidents and other executives can implement their agendas if they do not face appointment or removal power restrictions
This claim refers to the idea that presidents can accomplish policy goals more efficiently when they have control over when they may hire and fire agency officials who might otherwise be roadblocks.
- Law professor Geoffrey P. Miller argued, “It is evident that a President committed to implementing a program—whether it be a New Deal, a Fair Deal, a Great Society, or a New Federalism—can govern more energetically to the extent that he or she is not hampered by technologies of government that check and limit executive powers.”[2]
- Miller added, “As to efficiency, the centralization and coordination that a unitary executive makes possible are likely to be more conducive to efficient government than is a splintered executive branch subject to various checks and balances beyond those set forth in the text of the Constitution.”[2]
- In his 2019 law review article "The Publius Paradox," administrative law scholar Adrian Vermeule claimed that executive power, such as the appointment and removal power, should have few restrictions in order to provide the executive branch with the flexibility to respond to unanticipated circumstances:
- "Armed with knowledge of the Paradox, our undistorted understanding of constitutional risk regulation — or at least, undistorted on this dimension anyway — will counsel in favor of a more capacious scope for governmental power, especially executive power, than we would otherwise deem appropriate. The right precaution against dictatorship, to put it starkly, is—counterintuitively—to make constitutionalism a loosely-fitting garment, giving government ample powers adaptable to the vicissitudes of future crises."[13]
Claim: Partisan balance requirements can limit agency effectiveness
According to this claim, when statutes specify how many agency leaders can be from a particular political party, presidents and Congress might try to wait until it is most politically convenient to fill an agency vacancy instead of filling them whenever they open. Waiting to fill agency positions might make it harder for agencies to accomplish policy goals.
- Datla and Revesz argued, “Partisan balance requirements are also associated with longer vacancy periods, which can affect both the outcomes and the volume of agency activity. Cross-party nomination requirements give both Congress and the President an incentive to game the appointments system. … It is possible then that partisan balance requirements might lead to longer periods of operation without a full slate of members, limiting the agency's ability to perform its functions.”[9]
Strong presidential removal power honors the original constitutional design
Proponents of strong presidential appointment and removal powers argue that limits placed on those powers violate the spirit of the U.S. Constitution and sometimes the text itself.
Claim: Restrictions on the presidential removal power change the balance of powers under the U.S. Constitution
This claim focuses on the checks and balances among the three branches of the federal government established by the U.S. Constitution. Restrictions on the presidential removal power might empower Congress more than the original constitutional system provided.
- James Madison argued during the first session of the first Congress that since the president was responsible for the faithful execution of laws that he should not be interfered with by another branch.[3]
- Law professor J. David Alvis argued in a 2019 article that insulating agency heads from at will presidential removal gives more power to congressional committees to control what the agencies do.[10]
- Law professor Daniel A Crane argued in a 2015 article that Federal Trade Commission (FTC) independence from the president made it dependent on Congress, which might help checks and balances between the executive and legislative branches but does not create an independent agency as envisioned by progressive technocrats.[6]
- According to an unsigned 2007 note in the Harvard Law Review, when Congress passes restrictions, it brings the House of Representatives into an arena the Constitution reserves for the president and the Senate.[14]
- Alvis argued that the unitary and uniform execution of the law requires presidents to judge officers’ conduct and take appropriate action.[10]
- Federal Judge Neomi Rao argued in a 2014 law review article that limiting the president to an “overseer” role gives too much authority to Congress over the execution of laws and is unworkable.[1] Rao added, “When statutory duties involve a discretionary choice, that choice squarely falls within the execution of the law. Congress can create a statutory duty and assign it to a particular officer; however, the choice of how to execute the law within a range of legally permissible options is part of the executive power, not the legislative power. Discretion is an essential aspect of the executive power and therefore must be amenable to control by the President.”[1]
- Rao argued that presidential control of subordinates in an essential aspect of the independence that preserves the separation of powers.[1]
- Law professor Geoffrey P. Miller argued, “As to the danger of tyranny, the analysis is ambiguous: although it could be argued that a powerful and unified executive branch poses the threat of tyranny, the system of checks and balances has proved outstandingly effective at limiting the power of Presidents when they begin to govern in an "imperial" fashion. Moreover, the benefits of splintering power are themselves ambiguous, since the abandonment of a tripartite system of government may possibly undermine the stability of the structure as a whole.”[2]
- Miller argued, “And the quid pro quo argument- that new mechanisms must be devised to check the radical increase in presidential power accompanying the rise of the administrative state--overlooks the fact that administrative government reflects an increase in the powers of all branches of the federal government, in particular the dramatically enhanced power of Congress under expansive interpretations of the Commerce Clause.”[2]
- Miller argued that presidential removal power is a potential “means of mitigating the force of special interests in the administration of national programs.”[2]
- Alvis argued that if Congress exercised the removal power, then department heads would be the real executive of the U.S. because presidents could not control agencies.[10]
- Alvis added that impeachment is the only mode of removal of executive officers recognized by the Constitution and Congress cannot create any other.[10]
- Law professor Steven Breker-Cooper argued in a 1993 law review article, “The argument that Congress should be able to affect removal as an incident of its power to create offices also seems to undervalue the role of the President in the enactment of legislation. If the power to remove or to limit the power of others to remove is an incident of the power of creating an office, there is no particular reason why that power should be given to Congress as opposed to the President, whose assent to legislation is necessary in order for it to become law unless Congress is able to muster a two-thirds majority to override the President's veto. Yet, those who argue for legislative supremacy often seemingly overlook the President's role in the enactment of legislation.”[15]
Claim: Restrictions on the president’s appointment or removal power are unconstitutional
This claim argues that restrictions on presidential control of hiring and firing agency leaders violate specific provisions in the U.S. Constitution.
- Law professor Geoffrey P. Miller argued, “The fact that the constitutional text can without contradiction be read to support sweeping concepts of presidential authority over administration suggests that the President's power should not fall wildly short of what the text of the Constitution could sustain. Thus the unitary executive concept provides some support for the proposition that the President should at least have the authority to issue legally binding orders to officers instructing them to take some action within their statutory discretion (or to refrain from acting where they have authority not to act). If the President has the authority to issue such instructions, it is reasonable to posit that the President should also be able to remove executive officials who for whatever reason refuse to follow these instructions, so long as the action in question is otherwise within the officer's statutory discretion.”[2]
- Neomi Rao summarized an argument Chief Justice John Roberts made in Free Enterprise Fund v. Public Company Accounting Oversight Board: “Nonetheless, in reaching this conclusion about the Board, the Chief Justice sets out the general principle that Congress cannot limit the President’s removal power, because such power is constitutionally vested in the President. ‘Congress has plenary control over the salary, duties, and even existence of executive offices. Only Presidential oversight can counter its influence. That is why the Constitution vests certain powers in the President that “the Legislature has no right to diminish or modify.”’ Presidential oversight is an essential counterbalance to Congress and the removal power is essential to make such oversight effective.”[8]
- Law professor Prakash argued in a 1993 article that the vesting clause of Article II in the U.S. Constitution gives the president the executive power of the federal government, which includes a removal power.[12]
- Prakash argued that Alexander Hamilton and James Madison supported his view of the vesting clause.[12]
- Alexander Hamilton, writing as Pacificus, argued that the removal power was part of the executive power vested in the president by the U.S. Constitution.[7]
- Federal Judge Neomi Rao argued that the Constitution requires presidential control and supervision over administration and the removal power provides the mechanism for the possibility of such control.[1]
- Law professor Saikrishna Prakash argued that if the Framers granted executive power and the take care authority to the president alone, a decision by Congress to vest those powers in an independent agency violates the proper portion of the necessary and proper clause in the U.S. Constitution.[12]
- Prakash added that creating independent agencies doesn’t “carry into execution” any constitutional powers, which is a prerequisite for using the necessary and proper clause to make law.[12] He claimed that there is no constitutional authority for Congress or the president to create independent agencies.[12]
- Prakash argued in a 2006 article, “Congress lacks a generic power to regulate other government entities. There is little textual support for the idea that Congress can regulate powers granted to the President (or, for that matter, other entities). None of the substantive powers, like the power over commerce, permit Congress to regulate constitutional powers of others. The Necessary and Proper Clause, a power to enact laws to help carry federal powers into execution, cannot be used to enact laws that regulate or modify constitutionally granted powers. Laws that erect barriers to the exercise of presidential or judicial power, however well intentioned, are not laws that help implement federal powers.”[7]
- He continued, “Even if the Constitution permits Congress to establish quasi-legislative or quasi-judicial officers, and even if it also permits the creation of hybrid officers who exercise more than one power of government, it certainly does not authorize Congress to fracture the President's executive power and splinter it amongst hybrid, insulated officers throughout the government.”[7]
- Prakash argued that the take care clause of the U.S. Constitution means that the president is to execute federal laws or at least be responsible for his delegations, which implies a power to remove officials.[12]
- Prakash argued that the opinions clause of the U.S. Constitution allows the president to see how department heads intend to execute federal laws so that he may redirect or remove them if necessary and control their discretion.[12]
Claim: It is a mistake to imply restraints on presidential control of agencies where the law is silent
This claim focuses on implicit restrictions of presidential appointment and removal powers over officers at independent agencies. Those who make this claim say that only those restrictions made explicit in relevant laws should count, not those inferred from the classification (independent or executive) of a particular agency.
- Attorney Kirti Datla and law professor Richard Revesz argued in a 2013 law review article, “On the statutory front, the diversity of agency form should affect the way we think about agencies. When designing an agency, Congress has a set of tools it can use to make the agency more or less independent from the President. To infer an additional feature of independence from the presence of another feature of independence, one must assume that Congress intended to include it, even though it did not do so explicitly. But because no one feature of independence perfectly correlates with another, there is no reason why any given statutory limitation, or set of limitations, on presidential power should generate additional limitations not provided for by statute. Article II of the Constitution assigns the executive power to the President, so a clear statement is generally required when Congress chooses to limit this power. This rule should not be different for the so-called independent agencies.”[9]
- Datla and Revesz also argued, “On the constitutional front, implied limitations on the President's power over independent agencies depend on the implicit assumption that independent agencies have some special status under the Constitution. The idea would be that when Congress gives an agency for-cause removal protection, it places that agency in a special constitutional category that comes with additional protections against presidential control.' However, the Constitution provides for no such ‘fourth branch.’ And because not all of the indicia of independence are present in all agencies with for-cause removal protection, the congressional purpose argument does not hold up. There is no reason to believe that Congress means for agencies to have special constitutional protection from presidential control when it chooses not to grant those same agencies full or uniform statutory protection against such control.”[9]
See also
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- Appointment and removal power (administrative state)
- Ballotpedia's administrative state coverage
Footnotes
- ↑ 1.0 1.1 1.2 1.3 1.4 1.5 1.6 ‘’Alabama Law Review’’, “Removal: Necessary and Sufficient for Presidential Control,” 2014
- ↑ 2.0 2.1 2.2 2.3 2.4 2.5 2.6 2.7 2.8 ‘’The Supreme Court Review’’, “Independent Agencies,” 1986
- ↑ 3.0 3.1 3.2 3.3 ‘’James Goold Cutler Lecture’’, “The Appointing and Removal Powers of the President Under the Constitution of the United States,” 1931
- ↑ 4.0 4.1 4.2 4.3 4.4 ‘’Columbia Law Review’’, “The President and the Administration,” 1994
- ↑ ‘’Indiana Law Journal’’, “The Removal Power of the President and Independent Administrative Agencies,” 1960
- ↑ 6.0 6.1 ‘’The George Washington Law Review’’, “Debunking ‘’Humphrey’s Executor’’,” 2015
- ↑ 7.0 7.1 7.2 7.3 ‘’Virginia Law Review’’, “Removal and Tenure in Office,” 2006
- ↑ 8.0 8.1 8.2 ‘’Fordham Law Review’’, “A Modest Proposal: Abolishing Agency Independence in Free Enterprise Fund v. PCAOB,” 2011
- ↑ 9.0 9.1 9.2 9.3 9.4 9.5 ‘’Cornell Law Review’’, “Deconstructing Independent Agencies (and Executive Agencies),” 2013
- ↑ 10.0 10.1 10.2 10.3 10.4 ‘’The Heritage Foundation’’, “The Contested Removal Power,” 2019
- ↑ ‘’JUSTIA’’, “‘’Free Enterprise Fund v. Public Company Accounting Oversight Bd.’’, 561 U.S. 477 (2010),” accessed August 21, 2019
- ↑ 12.0 12.1 12.2 12.3 12.4 12.5 12.6 12.7 ‘’Yale Law Journal’’, “Hail to the Chief Administrator,” 1993
- ↑ Modern Law Review, "The Publius Paradox," June 4, 2019
- ↑ ‘’Harvard Law Review’’, “Congressional Restrictions of the President's Appointment Power and the Role of Longstanding Practice in Constitutional Interpretation,” 2007
- ↑ Tennessee Law Review, "The Appointments Clause and the Removal Power: Theory and Séance," 1993
