Email: Learning Journey: Executive appointment and removal powers: Day 2

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  Welcome back! Today, we look at executive appointment powers.

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Welcome back! Today, we look at executive removal power. We review case law that has defined the removal power as well as scholars’ views on the parameters of that power. What is the executive removal power? The United States Constitution does not prescribe the president’s removal of executive branch officers. As a result, the parameters of that removal power have evolved through the rulings of the United States Supreme Court. The following cases have largely defined the scope of the president’s removal authority: Myers v. United States (1926): This case involved an 1876 law that required Senate confirmation of a president’s appointments and removals of postmasters. However, President Woodrow Wilson, in 1920, unilaterally removed Postmaster Frank S. Myers, prompting Myers to challenge his dismissal. The court upheld Myers’ removal, finding that the Constitution was silent on the executive’s removal powers because that power was implicit in the president’s discharge of his duties. Therefore, the court ruled, the 1876 law violated the separation of powers between the executive and legislative branches.  Humphrey's Executor v. United States (1935): This case involved the Federal Trade Commission Act, which only allowed a president to remove a commissioner for “inefficiency, neglect of duty, or malfeasance in office.” The statute was challenged after then-Commissioner William Humphrey, a conservative, refused the request of newly elected President Roosevelt to resign, and the president summarily dismissed him. The court ruled that the FTC Act was constitutional and that Humphrey's dismissal was unjustified. The court concluded that the Constitution does not grant the president “illimitable power of removal” over officers within independent agencies (which operate with a degree of autonomy from the executive branch).  Bowsher v. Synar (1986): The Gramm-Rudman-Hollings Deficit Control Act of 1985 instituted automatic spending cuts requested by the Comptroller General in the event allowable deficit targets were breached. The act authorized Congress to dismiss the comptroller general for "inefficiency,” “neglect of duty,” “malfeasance” or other similar reasons. However, the court concluded that the comptroller general, under the act, was performing executive branch functions. Therefore, Congress (the legislative branch) did not have the constitutional authority to remove an officer of the executive branch.   What are for-cause removal protections? Humphrey's Executor marked a turning point in the United States Supreme Court’s interpretation of executive removal powers by requiring the president to demonstrate good cause in order to remove a principal officer of an independent agency. Language from the Federal Trade Commission Act defined good cause as “inefficiency, neglect of duty, or malfeasance in office.” Since Humphrey’s Executor, Congress has established a variety of independent agencies with principal officers whose for-cause removal protections insulate them from direct presidential control. However, the court agreed in October 2019 to hear Seila Law v. Consumer Financial Protection Bureau, a case arguing that the CFPB director’s for-cause removal protections unconstitutionally prevent the president from unilaterally firing the agency’s head. The court’s decision in that case held that restrictions on the president's ability to remove such agency leaders violated separation of powers principles by limiting presidential control of executive power. Read On: Humphrey's Executor v. United States Debating the proper degree of removal power Some scholars assert that the president must exercise broad removal powers in order to fulfill his constitutional duty to “take Care that the Laws be faithfully executed.” They also contend that the president is better positioned than Congress to oversee the performance of executive branch officers.  Other scholars assert that the president’s removal authority should be limited to prevent political loyalties from superseding technical expertise of agency officers, as well as to check the expansion of executive power. What's Next? Tomorrow we wrap up our Learning Journey with a review of the key concepts.   Go Deeper: Appointment and removal power Humphrey's Executor v. United States List of court cases relevant to executive appointment and removal power Taxonomy of arguments about the presidential appointment and removal power