This summer, Sens. Mike Lee, R-Utah, and Josh Hawley, R-Mo. introduced a bill to restore the “original understanding of the president’s constitutional power to remove his subordinates.” As I wrote in a recent First Principles essay, this is a good thing.
The power of presidents to faithfully enforce the law by removing principal officers in the executive branch is not only constitutional, it is much needed.
In particular, the senators take aim at the so-called independent regulatory agencies. A creation of the progressive era, these agencies were conceived as a way to introduce non-political expertise into administration of laws.
But these agencies have become a favorite tool by which Congress could siphon executive power from the president without correspondingly increasing its own responsibilities.
The end result has been the creation of agencies existing in a gray zone between the legislative and executive branches, without proper constitutional legitimacy and responsiveness to elected officials. Independent regulatory agencies all too often obscure accountability and undermine popular sovereignty.
Why is this presidential power even contested today?
The Decision of 1789
The Constitution explicitly prescribes the methods of appointment but not the manner of removal. Consequently, there has been a division of opinion regarding the scope of the president’s removal authority since the beginning of American government.
In the first Congress’ deliberations over the creation of the initial cabinet offices, four different positions on the issue of removal emerged:
- The Impeachment Theory: Impeachment is the only mode of removal of executive officers recognized by the Constitution, and Congress cannot confer any other mode.
- The Advice and Consent Theory: The Constitution vests the removal power jointly in the president and the Senate, and Congress cannot confer any other mode.
- The Congressional Delegation Theory: The Constitution is silent or ambiguous about where it vests the removal power, so:
(a) Congress is free to decide, but prudently it ought to vest it in the president, or
(b) Congress has some latitude, but ought not vest it in the president alone; or
(4) The Executive Power Theory: The Constitution vests the removal power in the president alone.
The debate was not conclusively solved. The first Congress did place the power to remove in the hands of the president but it did not come to a clear agreement on the rationale.
Consequently, it was left up to subsequent generations to determine whether removal would be set by individual statutes passed by Congress or if it should be assumed that the power belonged inherently to the executive branch.
The Independent Regulatory Commission
For years, the debate over the removal power shifted back and forth between congressional delegation theory and executive power theory depending on the relative strength of Congress and the presidency at any given time.
In 1926, the Supreme Court finally came down on the side of the executive, holding in Myers v. United States that removal follows from the president’s power to appoint. In his decision, Chief Justice William Howard Taft sided with Madison’s view in the first Congress on the relationship between the president and subordinate officers:
If the president should possess alone the power of removal from office, those who are employed in the execution of the law will be in their proper situation, and the chain of dependence be preserved; the lowest officers, the middle grade, and the highest, will depend, as they ought, on the president, and the president on the community. The chain of dependence therefore terminates in the supreme body, namely, in the people.
In other words, the president cannot fulfill his duty to “faithfully execute the laws” unless he possesses the power to remove the officers who assist him in that duty.
Although the Myers decision would seem to have concluded the issue, Congress found a new way to circumvent the executive’s influence over administrative officers with the creation of the independent regulatory commissions.
These agencies were born from the marriage of two sources—the academic and the political. On the academic side, progressive intellectuals leading the case for a new science of administration where experts, insulated from elections, would conduct day-to-day affairs.
Politically, the independent regulatory agencies provided a convenient way for Congress to limit the executive power in an era where more and more policymaking was being conducted by the administration rather than the legislature.
The president, subject to the advice and consent of the Senate, would nominate commissioners for the regulatory bodies, but they could only be removed during their tenure only for “good cause”—a provision that is generally limited to removal for the gross abuse of power or malfeasance in office.
The Future of Executive Accountability
Charged with the responsibility of carrying out duties statutorily assigned by Congress, these independent regulatory commissions are unquestionably performing an executive function. Consequently, they create today a reservoir of broad executive power without accountability that threatens democratic government.
With governing becoming an increasingly complex task in the 21st century, it is more important than ever that the executive be directly accountable to the people. Returning a broad removal power to the president would place culpability on the shoulders of the executive branch, making presidents answerable to citizens for the actions of the regulatory commissions under their control.
Our political institutions need such accountability, and the American people should demand it.