With the recent firing or attempted firing of numerous government officials by President Trump the question of what power a president has to remove officers appointed pursuant to Article II of the United States Constitution has once again become a topic of grave concern to the American people. The Supreme Court has already given the president broad immunity from prosecution for crimes commit while in office, undermining the rule of law by placing the president above the law in at least some circumstances. The Court will soon be required to address the current administration's assertion that a president has unlimited authority to discharge any civil officer of the United States at any time and for any reason and that Congress has no power to restrain that authority in any manner. Should the Court agree, it will strike yet another potentially fatal blow to American democracy by removing an important check on presidential power.
That the president as chief executive of the United States has unlimited power to remove government officers is not a new idea. In Meyers v. United States, (1926), the Supreme Court held that a law preventing the removal of Postmasters of the first, second and third class except upon the advice and consent of the Senate was void because it impinged upon the executive power granted to the president under Article II. That case seemed to establish an unlimited power in the presidency to remove officers at will that could not be restrained by Congress. However, seven years later in Humphrey's Executor v. United States, a unanimous Court upheld a law giving members of the Federal Trade Commission a fixed tenure during which they could be removed only for cause. In doing so, the Court drew a distinction between officers who performed a quasi-legislative or quasi-judicial function and those who performed a purely ministerial or "executive" function. Officers who performed a purely executive function, such as Postmasters, could be removed by the president at will. The president's ability to remove officers who performed quasi-legislative or quasi-judicial functions, such as the head of the Federal Trade Commission, could be limited by Congress.
In Bowsher v. Synar, (1986), the Court held that Congress could not create an office having a purely "executive" function and at the same time retain the power to remove the officer by means other than impeachment. In dicta, the Court also appeared to confirm the authority of Congress to require good cause for the removal of an independent prosecutor appointed by a special court upon application by the Attorney General on the theory that the prosecutor performed a judicial function rather than executive function. Then, in Free Enterprise Fund v. Public Company Accounting Oversight Bd., (2010), in an opinion authored by Justice Roberts, the Court seemed to return to the Meyers theory that the president has unlimited powers of removal with respect to all officers created by Congress. The Court held that Congress cannot restrict the ability of the president to remove a principal officer who is in turn restricted in his or her ability to remove an inferior officer. In reaching that conclusion, Roberts expressed the view that the power to remove officers necessarily rests with the executive branch by virtue of Article II, Section 3's requirement that the president "shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States." According to Roberts, the duty to faithfully execute the laws of the United States necessarily includes the power to remove those who assist in carrying out that duty.
Roberts' theory of presidential removal power based on the language of Section 3 is expansive in the extreme. Taken to its logical conclusion, the theory would allow the president to remove any government official at any time for any reason, including those who hold offices created by Congress to conduct oversight of the government itself. While such power in the hands of a conscientious, dedicated public servant who has only the faithful execution of the nations' laws in mind might sound reasonable, the Constitution is neither designed for nor intended to establish a government in which only persons having the highest moral and ethical standards would ever hold elective office. The founders were very aware of the tendency of elected officials to seek and retain political power for personal gain to the detriment of society as a whole. Unlike the founders, Roberts seems blissfully unaware that an unlimited power to remove officials for failing to faithfully execute the laws also includes the power to remove officials for doing exactly what the Constitution commands. Under Robert's theory, the Constitution gives the president unrestrained power to thwart the will of the people as expressed through congressional legislation by removing any government official who insists on following the law. The result is that the executive is then able to completely frustrate congressional action by ensuring that government officials do only what the president wants or be subject to immediate dismissal.
The problem lies with Roberts' conception of what constitutes "executive" power. Executive power under the Constitution is not the power to make policy, except where that power is expressly conferred, such as in the power to make treaties or grant pardons. It is the power to put into effect the policy decisions made by Congress by "faithfully" executing the law whether or not the president agrees with the law. The absolute control over civil officers envisioned by Roberts goes beyond faithful execution of the law and allows a president to dictate policy through the threat of removal. Those who advocate for unlimited presidential power to remove officials charged with executing the laws are in fact advocating for the transfer of policy making authority from the legislative branch to the executive branch.
Another problem with Roberts' theory is that there is zero support for it in the actual text of Article II. Roberts seems to think Article II's admonition that the president is to faithfully execute the laws passed by Congress is a blank check for granting the president whatever powers the Court thinks the chief executive aught to have. But, Article II actually sets forth in detail what powers the president has and says nothing at all about the president being able to remove officers. In providing for the appointment of officers, Section 2 of Article II also makes no distinction whatsoever between officers who perform purely executive functions and those who perform quasi-legislative or quasi-judicial functions.
Section 2 of Article II states:
The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may 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, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.
He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.
By its plain language, Section 2 grants the president only the power to appoint officers with the advice and consent of the Senate. Nowhere does it empower the president to remove officers for any reason or under any circumstances. The president is also granted the power to fill vacancies that occur during the recess of the Senate without Senate approval, but not the power to create vacancies. Congress may "vest" the appointment of "inferior officers" in the president if it chooses to do so, or in the courts or the heads of departments. But again, Section 2 says nothing about removal of those officers once they have been appointed.
Section 4 of Article II provides the only Constitutional mechanism for removal of civil officers - impeachment. That the Constitution is silent with respect to other ways in which civil officers can be removed cannot reasonably be read to prohibit Congress from establishing other lawful means for their removal. Thus, Congress is free to give the president the authority to remove any person appointed to an office it has created and at the same time place limits on that authority. Congress can also choose not provide any lawful means for removal other than impeachment.
This straightforward, common sense reading of Article II results in a perfectly workable process for appointment and removal of officers with appropriate checks and balances against potential abuses by both Congress and the president. Congress alone can create an office, but it cannot choose who will hold that office. That person must first be nominated by the president and then confirmed by the Senate. The president can frustrate Congressional intent by nominating only persons he or she anticipates will be rejected by the Senate, leaving the office vacant. But, the president and Congress have strong incentives to avoid such a scenario, since in most cases neither will gain an advantage from having an office remain vacant for an extended period. Thus, the president will normally nominate only persons likely to be confirmed, and the Senate is likely to reject a nominee only in the most extreme cases.
When creating an office, Congress can, but is not required, to give the president authority to remove the person holding the office and can also establish conditions for their removal. If the conditions are too restrictive, Congress would be left with impeachment, a potentially long and difficult process, as the only means to remove an officer who is not faithfully executing the laws. If the conditions are too liberal, the president can easily frustrate Congressional objectives through use of the removal power. Congress can take it away the president's removal power if necessary to prevent its abuse. Thus, Congress is incentivized to give the president authority to remove officers within reasonable limits, while the president is incentivized to use the removal power sparingly and only when necessary to ensure faithful execution of the law.
Giving the president unlimited authority to remove civil officers upsets this balance. A president who does not agree with how a department is being run, even when the department is doing exactly as Congress intended, could simply remove the head of the department as well as any inferior officers and then nominate as replacements only persons who are loyal to the president and who will follow the president's directions rather than follow the law. The Senate must then choose between rejecting those nominees and leaving the office vacant or approving nominees who will likely do the president's bidding while failing to comply with the law - a choice between a non-functioning government and a government that is controlled entirely by the executive. This is in fact what Trump and his backers are currently trying to achieve. If allowed, such tactics over time will to result in the president acquiring total or near total control over the daily conduct of the government in a way that includes total or near total control over governmental policy. For all practical purposes, Congress would then become irrelevant. That is not what the Constitution says and not how a democratic republic is supposed to work. It how a dictatorship is made.
The Court should abandon any theory of the removal power that relies on either the "faithfully execute" clause or a distinction between executive and non-executive functions. It should hold consistent with the text of Article II that the president has no Constitutional removal power and that Congress may chose to grant the president such power with or without limitations or conditions as to any office it creates.
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