Courts Are Wrong to Block a President's Removal Powers. Here's Why.

The clear meaning of the Constitution and the words of the Founders show that the power to appoint includes the power to remove.

President Donald Trump’s struggles with the courts over his attempts to shrink the federal bureaucracy have raised an interesting and controversial constitutional issue: a president’s power to remove executive department officials.

The question for those who support formalism and original intent in analyzing constitutionality is what a grant of “the power to oversee the execution of the laws” means, writes University of Minnesota law professor Ilan Wurman at Law & Liberty:

My view is that “the executive power” is a substantive grant of power, but of only one: the power to oversee the execution of the laws. But that power, I argue, includes removal—not because removal was a freestanding executive prerogative, but rather because it was part and parcel of the power to oversee the execution of the laws.

The Vesting Clause comprises the first words of Article II of the Constitution, the article which describes the duties, authority, and selection of the president: “The executive Power shall be vested in a President of the United States of America.” There are two major theories of what that means, note law professors Saikrishna B. Prakash and Christopher H. Schroeder in an article for the National Constitution Center:

Some believe that the Article II Vesting Clause gives the President nearly complete control over the actions of the executive branch and over the officials who undertake those actions. The core argument is that the Constitution vests all of the executive power in the President and that all subordinate officials necessarily derive their power to act from the President’s power. To ensure that these officials faithfully execute the President’s power, the President has the power to supervise and control each of them without the interference of Congress. This theory is entitled the “Unitary Executive.” But this label is a bit misleading, for we would do well to remember that the idea that the Constitution establishes a unitary executive in the sense identified above is universally shared.

Others believe that Article II does not establish a completely hierarchical executive under the President’s control. Many further insist on the importance of the Necessary and Proper Clause, which vests in Congress the power “[t]o make all Laws which shall be necessary and proper for carrying into execution … all other powers vested by this Constitution in the Government of the United States, or in any Departments or Officer thereof.” Art. I, § 8, cl.18. The basic argument is that this Clause gives Congress considerable authority to structure the bureaucracy as it sees fit. Even so, Congress must not impede the President’s ability to discharge his constitutional duties or interfere with powers that rest conclusively and exclusively with the President, such as the pardon power.

The grant of powers to the president is more expansive than the powers granted to Congress, the U.S. Congress’s Constitution Annotated website notes:

Whereas the Article I Legislative Vesting Clause provides that All legislative Powers herein granted shall be vested in a Congress,⁷ thereby distinguishing the powers granted by states from those they retained, the Article II Executive Vesting Clause does not limit the executive Power in any way.⁸ Consequently, since the earliest days of the Republic, the parameters of the executive power and, in particular, what implicit or residual powers such executive power encompasses have been the subject of debate.

While arguing that the Constitution does mean to limit the president’s powers, and that “nothing about Article II supports the strong version of the so-called unitary executive thesis,” Wurman contends that “the president always has the right to remove [Executive Department officials], for any reason, if he thinks those officers have not exercised their discretion well. This view would also make sense of the Opinions Clause” (“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”), Wurman notes.

This authority flows from the president’s responsibility for seeing to the execution of laws passed by Congress, Wurman observes:

Whatever the Vesting Clause might otherwise grant the president—that is, regardless of whether the president can direct officers or has some other residuum of power—the executive power is, at a minimum, the power to oversee the execution of the laws by others. Because the king, a governor, or the president could not possibly execute the laws alone, the executive power was understood to include the power to appoint officers to assist.

The Constitution assumes a removal power on the part of the chief executive, as that was the common understanding at the time of its adoption, Wurman says:

The more controversial question is the connection between appointment and removal. Giles Jacob’s law dictionary—the most prominent in America at the Founding—stated plainly that the king “names, creates, makes and removes the great officers of the government.” As Shugerman has written, however, it is “rare to find much discussion of removal power on the Founders’ bookshelf.” But there is an explanation for such silence: the power to remove was incident to the power to appoint. Thus, the appointment power included removal by default because an officer could be removed by the very act of appointing someone new.

That is exactly what President Trump tried to do in dismissing Federal Reserve Governor Lisa Cook in August of this year, which the U.S. Court of Appeals for the District of Columbia Circuit blocked in September.

Thomas Jefferson, James Madison, and Alexander Hamilton all agreed that appointment power authorizes removal, despite their widely varying views on the overall role of the federal government, Wurman writes:

In 1780, Thomas Jefferson wrote in a private note: “The power of appointing and removing executive officers inherent in Executive. Executive inadequate to every thing. Appoint deputies. … He who appoints may remove.” On this point, Alexander Hamilton agreed. When he appointed Tench Coxe as the assistant secretary of the Treasury pursuant to the act establishing the Treasury Department, he noted in the commission that he could remove Coxe even though the statute was silent. …

Even James Madison agreed that in general “the power to annul an appointment is, in the nature of things, incidental to the power which makes the appointment.” He argued that if all the Constitution said on this score was that the president and Senate shall appoint, then he would agree that the president and Senate together must remove. Because the Constitution included both the Executive Vesting Clause and the Take Care Clause, however, he thought otherwise. The power to remove may follow from the power to appoint, but the power to appoint is—as noted previously—ultimately an incident of executive power. “If any thing in its nature is executive,” Madison stated, “it must be that power which is employed in superintending and seeing that the laws are faithfully executed.”

Madison emphasized the crucial difference between the powers granted to Congress and to the president, as mentioned in the Constitution Annotated passage quoted above. Wurman writes:

Thus, Madison argued, both appointment and removal were ultimately incidents of the executive power. The Constitution then derogates from that principle with respect to appointments, but not for removals. The “association of the Senate with the President in exercising” the appointment function, Madison argued, “is an exception to this general rule” that the executive power is vested in the president, which exception does not apply to removal.

The Take Care Clause further supports this proposition, Madison argued, because it implied that the president has the power “necessary to accomplish” the duty of faithful execution.That is, giving the Senate a check on removal effectively transfers the take care duty from the president to the Senate.

The Constitution grants the Take Care duty exclusively to the president, Madison and Wurman note. That means the Senate does not have the authority to stop the president from removing officers of the government. Wurman writes,

It is true that Congress establishes offices, and doing so furthers the president’s ability to oversee faithful execution. Even tenure rules, qualifications for office, bipartisanship requirements, and the like can help the president carry law into execution. But Congress can no more restrict the president’s power to remove—once it is acknowledged he has that power—than it can restrict his power to pardon. …

Presidents Washington, Jefferson, and even Taft—who subsequently authored the Myers v. United States opinion—thought Congress could insulate the individual decisions of an officer. But, Taft wrote, the president “may consider the decision after its rendition as a reason for removing the officer, on the ground that the discretion regularly entrusted to that officer by statute has not been on the whole intelligently or wisely exercised.”

It also seems obvious that the courts are likewise prohibited from interfering in the president’s execution of this duty, which the Supreme Court acknowledged in the early years of the republic, as Wurman notes. Later decisions by courts to limit the president’s authority in appointments and removals unjustifiably disregard this constitutional principle and should be overturned as soon as possible, in my view.

Although it can be difficult to divorce one’s thoughts about the legitimacy of executive actions or judicial decisions from the likely consequences of particular instances and the politics behind them, it is essential that these determinations be based on principle. Politics is power, not necessarily justice. Principle, history, and logic affirm Jefferson’s conclusion about the presidential powers of appointment and removal of government officers: “He who appoints may remove.”