Trump Administration's Position on President's Power to Remove Commission Members

From the letter sent yesterday to Senator Richard Durbin (the ranking minority member on the Senate Judiciary Committee) by Acting Solicitor General Sarah M. Harris:

Re: Restrictions on the Removal of Certain Principal Officers of the United States …

Pursuant to 28 U.S.C. 530D, I am writing to advise you that the Department of Justice has determined that certain for-cause removal provisions that apply to members of multi-member regulatory commissions are unconstitutional and that the Department will no longer defend their constitutionality. Specifically, the Department has determined that the statutory tenure protections for members of the Federal Trade Commission (FTC), 15 U.S.C. 41, for members of the National Labor Relations Board (NLRB), 29 U.S.C. 153(a), and for members of the Consumer Product Safety Commission (CPSC), 15 U.S.C. 2053(a), are unconstitutional.

In Myers v. United States, 272 U.S. 52 (1926), the Supreme Court recognized that Article II of the Constitution gives the President an "unrestricted" power of "removing executive officers who had been appointed by him by and with the advice and consent of the Senate." Id. at 176. In Humphrey's Executor v. United States, 295 U.S. 602 (1935), the Supreme Court created an exception to that rule. The Court held that Congress may "forbid the[] removal except for cause" of members of the FTC, on the ground that the FTC exercised merely "quasi-legislative or quasi­-judicial powers" and thus could be required to "act in discharge of their duties independently of executive control." Id. at 628-629. Statutory tenure protections for the members of a variety of independent agencies, including the FTC, the NLRB, and the CPSC, rely on that exception.

The Department has concluded that those tenure protections are unconstitutional. The Supreme Court has made clear that the holding of Humphrey's Executor embodies a narrow "exception" to the "unrestricted removal power" that the President generally has over principal executive officers and that the exception represents "'the outermost constitutional limit[] of permissible congressional restrictions'" on the President's authority to remove such officers. Seila Law LLC v. Consumer Fin. Protection Bureau, 591 U.S. 197, 215, 218 (2020) (citation omitted). Further, the Supreme Court has held, the holding of Humphrey's Executor applies only to administrative bodies that do not exercise "substantial executive power." Id. at 218-219. The Supreme Court has also explained that Humphrey's Executor appears to have misapprehended the powers of the "New Deal-era FTC" and misclassified those powers as primarily legislative and judicial. Id. at 218.

The exception recognized in Humphrey's Executor thus does not fit the principal officers who head the regulatory commissions noted above. As presently constituted, those commissions exercise substantial executive power, including through "promulgat[ing] binding rules" and "unilaterally issu[ing] final decisions * * * in administrative adjudications." Seila Law, 591 U.S. at 218-219. An independent agency of that kind has "no basis in history and no place in our constitutional structure." Id. at 220; see id. at 222 & n.8.

To the extent that Humphrey's Executor requires otherwise, the Department intends to urge the Supreme Court to overrule that decision, which prevents the President from adequately supervising principal officers in the Executive Branch who execute the laws on the President's behalf, and which has already been severely eroded by recent Supreme Court decisions. See, e.g., Selia Law, 591 U.S. at 223-229; Free Enter. Fund v. Public Co. Accounting Oversight Bd., 561 U.S. 477, 492-494 (2010).

This question has long been debated, and will now likely make its way up the court system. You can read for yourself Myers, Humphrey's Executor, Seila Law, and Free Enterprise Fund.

Comments

[Katall]

So. The Article I ibranch thinks the law is constitutional (otherwise they would not have passed the bills). The Article II branch used to think the law is constitutional (otherwise they would not have signed the bill and made it a law). The Article III branch probably thought that the law was constitutional.

Now, the Article II branch has changed its mind. Seems to me that this is, in essence, a line item veto of the decision made by an Article II branch.

IMHO, this should not be allowed. Some decisions by the Article II branch acquiescing to where the power is should be binding on subsequent Article II branch occupants.

BTW, I have the same problems with "signing statements." They should have no sway whatsover. If the president thinks all or part of a law is unconstitutional, the president must veto the bill and send it back for fixes.

Of course, this would only apply to laws the president signed. If Congress passed a bill the president thought was unconsitutional, the president vetoed the bill, and Congress overrode the veto, I think there may be room for the president to oppose the law on constitutional grounds.

Now, let's take the Dep't of Education. This is an Article II institution that is established by law. Can the president say that the law is unconstitutional because only he has the right to establish cabinet departments? One might argue, "sure, under the Necessary and Proper Clause". But would that clause not also apply to determining the reasons for firing those officers?

The bottom line is that the argument that the president can ignore a law about terminating appointments, means that the president can ignore all laws concerning the structure of the executive branch. It also means that the APA is also unconstitutional. But then again, the rule-making authority of agencies may be unconstitutional because that usurps the role of Congress.

[damikesc]

If one executive is a mind-boggling imbecile, all following ones do not need to keep their idiocy enshrined as gospel.

[Riva]

"Some decisions by the Article II branch acquiescing to where the power is should be binding on subsequent Article II branch occupants." That's absurd. That would be amending the Constitution, which no branch has the power to do unilaterally, although the S.Ct has tried its best.

[Lee Moore]

Some decisions by the Article II branch acquiescing to where the power is should be binding on subsequent Article II branch occupants.

Presumably the contents of "some" is restricted to signing Bills ?

Since such Presidential acts create Laws, once President Smith has signed the Bill and it passes into Law, President Jones cannot then "unsign" the Bill, thereby converting the Law into Not a Law.

But there's no reason for President Jones to be bound by President Smith's opinion that the Law is constitutional. Mere opinions are revocable even by the same guy, never mind as between different guys.

The question then is what may a President do in the face of a Law he considers unconstituional, and which therefore is not a Law at all ? Obviously he may do things that Katali thinks are prohibited by the Law, but which The President and his legal advisers thinks is permitted by the Law. Until such time as the courts finally rule that he may not, if they do so rule.

And that seems to be the substance of this DoJ missive. ie SCOTUS ruled in Humphrey's Executor that people appointed to non executive agencies don't fall within the President's at will dismissal power, because they are not executive positions. But - in the DoJ's current opinion - SCOTUS did not get the facts right about whether Humphrey had an executive position or not. Thus they feel entitled to rely on the legal precedent that only non executive positions are protected, and form their own opinion as to which positions are or are not executive ones. If SCOTUS disagrees with their conclusion, it can say so.

However the DoJ also says that it is unconvinced by Humphrey's Executor legally and is hoping to get SCOTUS to change its mind. The only way to do that in a system that does not permit declaratory judgements is to offer up a test case.

[Riva]

Is anyone convinced by Humphrey's Executor?

[Bored Lawyer]

Nope. The Constitution divides power among branches. One branch cannot cede its rights to another.

Supposed Congress were to pass a law:
"Anything the president decrees shall have the force of law. He can change to U.S. Code at will. No need for Congress to do anything from now on."
They then all go home to play golf.

Constitutional?

[Thrax]

And this doesn't apply to the Fed why? Other than "the markets would tank"?

[PaulS]

If nothing else doesn't this make it near impossible for these agencies to render any decisions - either way it is decided anything they do until the Supreme Court rules would be subject to being overturned as improperly decided. Either someone was involved who lacked authority or someone wasn't who should have been

[MollyGodiva]

Artilce 1, Section 8:

"The Congress shall have Power To ... make Rules for the government and Regulation of the land and naval Forces;"

This is the closest line in the Constitution that discusses who makes the laws for the government, and it is given to Congress.

The supporters of the Imperial Presidency only have "The executive Power shall be vested in a President" to go off of, and that is quite ambiguous and in no way overrules other parts of the Constitution that are more explicit.

[Lee Moore]

Nah. This clause is solely about Congress’ power to legislate how the armed forces are to be managed.

“To make Rules for the Government and Regulation of the land and naval Forces”

means

To make Rules {for the Government and Regulation} of {the land and naval Forces}

It does not mean :

To make :

{Rules for the Government} and

{Regulation of the land and naval Forces}

We know this from

(a) common sense and
(b) the fact that Regulation is singular, and is followed by “of’ not “for”

If it meant what Molly is pretending it would read :

“To make Rules for the Government, and Regulations for the land and naval Forces”

But as I say, they would not have stuffed these two wildly different things in the same clause anyway.

[David Nieporent]

“To make Rules for the Government, and Regulations for the land and naval Forces”

While I agree with you that she is misinterpreting that phrase, you can't rely on modern rules for punctuation and grammar to make that point.

[Lee Moore]

But I can rely on modern rules for punctuation and grammar for explaining what my point is, in 2025. I am the guy adding punctuation to make my point clear as to what the clause means.

[David Nieporent]

You said, "Molly thinks it means X. But if they had meant X, they'd have written Y." But they were writing in the 18th century, so they wouldn't have written Y, because Y follows 21st century conventions, not 18th century ones.

[Lee Moore]

Originalism obliges us to select the original meaning of the text in preference to the current meaning of the text, to the extent that the two differ.

The current meaning of the text is therefore master - because immediately accessible - unless and until the fact that the original meaning was different can be demonstrated.

We do not start with a blank slate, unable to take a step forward unless we can find good historical evidence of the meaning of text a couple of hundred years ago. We start with the currently accessible meaning and correct it when we have evidence to displace it.

So my 21st century conventions win, faut de mieux. I will bow to your 18th century originalist analysis, when you produce it. (But not to Lathrop's as it will be bonkers.)

[Sarcastr0]

…this is not originalism.

[Stephen Lathrop]

The current meaning of the text is therefore master - because immediately accessible - unless and until the fact that the original meaning was different can be demonstrated.

Presumptively true, but commonly rebuttable, for texts created within living memory. Presumptively false otherwise, with exceptions for meanings so constricted that contextually-related divergence is a near-impossibility—for instance, meanings conveyed arithmetically, such as an age of eligibility for office.

[Stephen Lathrop]

Lee Moore — Congratulations. You created a concise two-sentence demo, to example present-minded error in historical interpretation. That's not easy to do at all, but you did it persuasively.

[Lee Moore]

Congratulations on your silliest point yet today (though the day, if not young, still has a few hours to run.)

You think when writing a judgement in 2025 on the 14th Amendment, SCOTUS should attempt to write its opinion in its best effort at 1868 English ?

[Stephen Lathrop]

Lee Moore — I think historical judgment is in short supply, but not because you are using any of it.

[MollyGodiva]

This a interpretation. Mine is no more right or wrong. Militaries don't have "government", especially before the US had a standing army and navy.

[Rigelsen]

Is it just interpretation when it would make so little sense in context as you yourself acknowledge? “Government” does not refer solely to the bodies that govern but can also refer to the processes by which authority is exercised. Today, we tend to prefer “governance” for this purpose, but that’s what was meant here, meaning things like command structure.

[Lee Moore]

An interpretation implies the text was lying there and you wondered what it might mean, and after much struggle and thought, you decided it meant what you said a bit higher up. You were having a sort of Seth Barrett Tillman day. But that's not what you did. You had a deep desire to find some words somewhere in the Constitution that could be painted, colorably, with the meaning you desperately wanted them to have.

In technical terms that's not an "interpretation." It's a "straw." As in a thing clutched at.

btw I do agree with you that because it's sitting there in the Constituton in black and white, it does indeed govern the scope of the executive power granted to the President in Article 2. It just does it with respect to the President's management of the land and naval Forces.

[Stephen Lathrop]

Lee Moore — When you cite, "technical terms," what technique do you have in mind? It is not history. It cannot be originalism. Maybe just plain ordinary law? What?

[RedheadedPharoh]

An independent agency of that kind has "no basis in history and no place in our constitutional structure." Id. at 220; see id. at 222 & n.8.

This is the important take-away. Independent, law-making agencies are an assault on our freedom and democracy. It's about time someone started reigning these in.

[Stephen Lathrop]

Why would anyone suppose the proper place to define the extent of legitimate executive power lies within the executive branch? Or, for that matter, within the judicial branch?

In the first instance, the executive becomes the judge of its own cause. In this instance that opens the way to assertion of power without limits.

In the second instance, a supremely political question ought not be within the purview of a supremely non-political branch. In this instance, to do it otherwise would make the non-political Supreme Court the paradoxical final arbiter of the nation's politics.

Only Congress is constitutionally situated to decide a question of the proper extent of Executive political power.

[David Nieporent]

You have as puzzling an idea of the role of the judicary as MAGA does.