The Volokh Conspiracy
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Limits on the President's Power to Remove Inferior Officers (Even When He Has Power to Remove Department Heads)
In yesterday's Aviel v. Gor, D.C. Circuit Judge Gregory Katsas, joined by Judge Nina Pillard, held that the President likely lacked the power to fire the CEO of the Inter-American Foundation, though he had the statutory authority to fire the Foundation's Board of Directors:
This case involves a dispute over whether plaintiff Sara Aviel is presently the Chief Executive Officer of the Inter-American Foundation (IAF), a government corporation that issues grants to further development in the Caribbean and Latin America. The IAF is run by a Board of Directors appointed by the President with the advice and consent of the Senate. In turn, the Board appoints and supervises the Foundation's CEO.
In February 2025, the President removed all the incumbent IAF Board members, as permitted by statute. The President then purported to unilaterally designate Pete Marocco as an acting member of the Board. Both the President and Marocco then purported to remove Aviel from her position as the Foundation's CEO.
Aviel sued various government officials, including the President, and sought injunctive relief to continue serving as CEO. The district court granted a preliminary injunction requiring the defendants to recognize her as still holding that office. The government appealed and sought an emergency stay.
We deny the stay because the government is unlikely to succeed on the merits of its contentions that Aviel … was permissibly removed from her position as CEO ….
The governing statute authorizes the IAF Board of Directors—not the President—to appoint the CEO, and it is silent regarding the question of removal. That means the Board—not the President—has the power to remove Aviel. As the Supreme Court explained in Free Enterprise Fund v. PCAOB (2010), "Congress may vest in heads of departments" the appointment of inferior officers, and, "[i]f Congress does so, it is ordinarily the department head, rather than the President, who enjoys the power of removal." Likewise, in In re Hennen (1839), the Court noted that if Congress vests a department head with the power to appoint and remove an inferior officer, "the President has certainly no power to remove" the inferior officer directly….
[T]he government asserts that the President has inherent Article II authority to designate acting principal officers to ensure that he may faithfully execute federal law, as required by the Take Care Clause. That contention is unlikely to succeed. The Appointments Clause prohibits the appointment of principal officers without the advice and consent of the Senate. Such consent "is a critical structural safeguard" against presidential overreach—a feature of our constitutional system, not a bug.
Furthermore, the Constitution provides only one express exception to the Senate-confirmation requirement for principal officers, which applies only when the Senate is in recess. And the only statutory scheme for delaying Senate confirmation [the Federal Vacancies Reform Act] does not support the putative designation at issue. Given these specific checks and balances regarding appointments, it is unlikely that the Take Care Clause gives the President unfettered discretion to designate acting principal officers with neither Senate confirmation nor a Senate recess nor even statutory authorization through the FVRA.
{We have suggested that the President might possess an inherent Article II power to designate someone to temporarily exercise the powers of a vacant office in order to abate an emergency. The government does not argue that any such emergency exists here, so we do not consider this theory.}
Judge Neomi Rao dissented:
Nothing in the governing statute or the Constitution … limits the President's power to remove this executive branch officer.
The Constitution vests all the executive power in the President. As a consequence of this vesting, the President "may remove without cause executive officers who exercise that power on his behalf, subject to narrow exceptions recognized by [Supreme Court] precedents." Trump v. Wilcox (2025). The removal power is essential to the President's oversight and control of officers who exercise executive power on his behalf. See Free Enter. Fund ("Since 1789, the Constitution has been understood to empower the President to keep … officers accountable—by removing them from office, if necessary."). "Article II 'grants to the President' the 'general administrative control of those executing the laws, including the power of appointment and removal of executive officers.'" Seila Law LLC v. CFPB (2020) (quoting Myers v. United States (1926)). Under these well-established principles, the President's removal of Aviel was lawful.
The district court (and my colleagues) conclude that the President could not remove Aviel because "the Board holds hiring and firing power over the IAF's president and CEO." I agree that the Board has authority to remove Aviel as an incident of its appointment power.
Nothing in the IAF statute, our caselaw, or the Constitution, however, renders the Board's removal authority exclusive or forecloses the President's ability to remove this officer. For officers who "wield significant executive power," "the President's removal power is the rule, not the exception." {The "sound and necessary rule, to consider the power of removal as incident to the power of appointment," may always be qualified by a "constitutional provision, or statutory regulation." In re Hennen. The constitutional provision here is Article II, which provides for presidential removal of executive branch officers, particularly when no statute provides to the contrary. It is true that when reviewing a challenge to the removal of a federal district court clerk, i.e., a judicial officer, the Supreme Court stated in obiter dicta that "the President has certainly no power to remove" an inferior officer. But that statement has never been repeated as a holding of the Supreme Court and runs contrary to recent decisions reaffirming the breadth of the President's constitutional removal authority.}
Congress did not limit who may remove the CEO or on what terms. The CEO therefore remains removable at will by either the Board or the President. The President may direct and control the management of the IAF and remove officers who fail to follow his directives.
That is precisely what occurred here. The President removed all remaining IAF Board members for refusing to follow his directives to substantially downsize the IAF. Aviel remained in charge of the IAF, executing the laws without the possibility of Board supervision or removal. The President's representatives asked Aviel to confirm she would implement the President's agenda in the absence of a Board. When she refused, the President fired her.
The President rarely has cause to turn his attention to the removal of an inferior officer because such officers are directly controlled by principal officers in the chain of command. But at a minimum, when that chain of command is broken, as it was here, "[t]he Constitution requires that such officials remain dependent on the President" and subject to his control. Seila Law; see Myers ("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 President cannot "take Care that the Laws be faithfully executed" if he is saddled with subordinates who obstruct his agenda.
Aviel flatly refused to follow the President's directives. Her removal for insubordination is within the heartland of the Article II power. "The moment that [the President] loses confidence in the intelligence, ability, judgment or loyalty of any one of [his officers], he must have the power to remove him without delay." Myers. The President's removal of Aviel was lawful….
The panel was unanimous, though, that Marocco couldn't serve as an IAF Board member, absent senatorial advice and consent. From Judge Katsas' opinion:
Marocco independently purported to remove Aviel, but he likely lacked authority to act as an IAF Board member. The IAF Board reports to nobody except the President, so its members are principal officers of the United States. Yet Marocco was not appointed with the advice and consent of the Senate, as required by the Appointments Clause of the Constitution and by the Foundation's organic statute. And in the absence of any Senate recess, the President could not unilaterally appoint him to fill a vacancy pursuant to the Recess Appointments Clause.
The parties vigorously dispute whether the Federal Vacancies Reform Act separately prohibits the President from designating individuals to serve as acting members of multi-member boards like that of the Foundation. But regardless, the FVRA's temporary-designation provisions do not apply to such boards. And in any event, Marocco would not have qualified for such a designation [under the statute\. So the government does not contend that the FVRA affirmatively authorized the appointment or designation at issue.
And from Judge Rao's dissent:
The government also argues that Aviel was properly terminated by Marocco in his capacity as an acting IAF Board member. I agree with my colleagues that this argument is unlikely to succeed because the text and structure of the Constitution strongly suggest the President has no inherent authority to appoint officers of the United States, like IAF Board members, outside the strictures of the Appointments Clause. See NLRB v. SW Gen., Inc. (2017) (Thomas, J., concurring) ("[T]he Appointments Clause forbids the President to appoint principal officers without the advice and consent of the Senate."). And the Federal Vacancies Reform Act does not apply to the IAF….
