The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
This is the second post in this series based on my new book, Contested Ground: How to Understand the Limits on Executive Power. I'm grateful to the editors for giving me the opportunity to speak to this audience. Today's topic is presidential control of the executive branch.
We usually think of the "bureaucracy" as a creature apart from the President. But one of the President's most important roles is to manage the bureaucracy, mostly through top-level political appointees or the sub-bureaucracy that is the Executive Office of the President. Nearly everybody important in the executive branch can be fired by the President at will. As readers of this blog know, it's the "nearly everybody" that's the sticking point. Are exceptions like independent agencies constitutional, or does everybody significant in the executive branch have to serve at the President's will?
Believers in the unitary executive argue that the original understanding dictates an unlimited presidential removal power. It's probably not necessary to rehash their arguments for readers of this blog. For some reason, the unitary executive theory has become associated with conservatism. That seems to me to be historically contingent. Liberals like FDR certainly thought the unitary executive was a better way to implement progressive policies.
It's also a bit puzzling that people who support the unitary executive tend to be people who also support a strong nondelegation doctrine. It's not that these positions are inconsistent but they do seem to be in some tension. Supporters of the unitary executive often argue that subordinates should heed the President's policy agenda. The idea of the nondelegation doctrine, however, is that the executive shouldn't have major authority over major regulatory policy—those decisions should all be made by Congress. It seems a bit incongruous to advocate presidential power to set the executive branch's policy agenda while on the other hand denying that the executive branch should have a policy agenda in the first place.
I'm also puzzled by the argument that centralizing all executive authority in the White House protects liberty. You could easily make the argument that the rights of people regulated by the government would be better protected by providing a bit of insulation of decisionmakers from partisan politics. Indeed, that seems to me in some ways a more natural position for conservatives to take, in the interests of protecting property rights and liberty. If history had gone a little differently, we might well have seen liberals adopting the unitary executive and conservatives defending independent agencies—that just doesn't happen to be the way things have worked out.
The presidential removal power may be the issue of presidential power where the debate has focused most heavily on the original understanding. Today's Supreme Court has moved sharply in the President's direction on this issue, insisting that the original understanding settles the issue. Originalists can certainly muster evidence in favor of the unitary executive, evidence the current majority on the Supreme Court seems to find conclusive.
The historical record doesn't strike me as nearly so clear. One the key events involved the first office established by Congress, the Secretary of State. The upshot of the debates left the power of removal with the President, but the proceedings were confused and it's not at all clear that a majority endorsed the unitary executive as a constitutional matter. (A recent paper by Jed Shugerman and Jed Handelsman takes a close look at the evidence.)
In some ways, the most striking thing is that there was any dispute about the issue. Today, we would think of the Secretary of State as the epitome of the kind of official who should be removable by the President: a cabinet official whose duties center on foreign affairs, an area in which presidential prerogatives are near their peak. Yet it seems to have been less clear then than today.
In short, if we are looking for a clear shared understanding of the constitutional issue in 1790, there doesn't seem to have been one.
If we look earlier in history, recent research by Daniel Birk has shown the King's power over officials was in some ways surprisingly limited. Many officials were removably only by other officials or local magistrates, not by the King, and the King did not have the power to direct many officials in their duties. Indeed, some appointments were for life or were even hereditary. The King was nonetheless clearly thought to be vested with the executive power. That makes it harder to claim that vesting the executive power in the President necessarily meant that underlings are mere sock-puppets carrying out orders.
Based on this history, I find it hard to maintain that the constitutional text, as understood in the Framing period, precludes all limits on presidential removal of officers. In some ways, the non-originalist argument for presidential removability may be stronger—or at least for a strong presumption of presidential removability. It's true that there have been exceptions, such as the Civil Service, independent agencies, and a few others such as the post-Watergate Independent Counsel.
If we step back and ask what rule would be most appropriate in a democratic republic, history suggests a good deal of agreement with supporters of the unitary executive. Whether for constitutional reasons or otherwise, high-level officers nearly all serve at the pleasure of the President. "Unitarians" have some persuasive policy arguments on their side. They argue that unitary presidential control provides energy and coherence in government policy, while also making political accountability for decisions clear.
These are powerful arguments, but they don't necessarily dictate a universal rule of presidential removability. Sometimes, other values may be more pressing: ensuring that people get fair hearings from impartial administrative officers, ensuring that financial regulation isn't exploited for partisan advantage, and making sure that the government is efficiently administered rather than serving only as a source of cushy jobs for political loyalists.
You could make a reasonable textualist argument that these policy decisions are solely in the hands of Congress, given its power to make laws necessary and proper to carrying out the duties of the executive branch. As a non-originalist, however, I think both historical practice and Supreme Court precedent foreclose that position. It also seems to me that unlimited congressional control would unbalance government power too much in favor of the legislative branch.
In the book, I leave to the reader to reach a judgment about the right approach. My own views are that I see no reason to think that existing exceptions to presidential removability are unconstitutional. On the other hand, outside of the types of positions covered by existing practice, I'd want to see some cogent arguments about why officials performing specific functions need special protection from removal.
[Next up: the non-delegation doctrine.]