The President's power to remove appointed officials is a crucial aspect of executive authority, but it's not without limits. Congress can impose restrictions on this power, especially for officers with quasi-legislative or quasi-judicial roles. These limitations aim to balance presidential control with agency independence.

The Supreme Court has shaped the boundaries of removal power through key cases. While Myers v. United States affirmed broad presidential authority, Humphrey's Executor and later cases refined this doctrine, allowing for more nuanced approaches based on the nature of the officer's duties and the need for independence.

Limitations on Presidential Removal Power

Constitutional Basis for Removal Power

• The Constitution does not explicitly grant the President the power to remove appointed officials, but it is implied through the Appointments Clause and the Take Care Clause
• The Appointments Clause (Article II, Section 2, Clause 2) gives the President the power to appoint officers with the advice and consent of the Senate, suggesting a corresponding power to remove those officers
• The Take Care Clause (Article II, Section 3) requires the President to "take Care that the Laws be faithfully executed," which may necessitate the ability to remove officials who are not fulfilling their duties

Congressional Authority to Limit Removal Power

• Congress has the authority to impose statutory limitations on the President's removal power, as long as they do not unduly interfere with the President's constitutional duties
• These limitations may include requiring cause for removal (inefficiency, neglect of duty, malfeasance in office) or providing tenure protections for certain officers (fixed terms, removal only for cause)
• Limitations on the President's removal power are often justified as a means of ensuring the independence and integrity of certain executive branch agencies and officials (Federal Reserve, Federal Trade Commission)
• However, the President's removal power is not absolute and can be subject to certain restrictions, as determined by the Supreme Court in various cases (Myers v. United States, Humphrey's Executor v. United States)

Principal vs. Inferior Officers

Appointment and Removal of Principal Officers

• Principal officers are those who are appointed by the President with the advice and consent of the Senate (Cabinet members, ambassadors, federal judges)
• The President generally has broader removal power over principal officers, as they are considered to be more closely tied to the President's authority and policy agenda
• Principal officers are often seen as extensions of the President's executive power and are expected to carry out the President's directives and policies

Appointment and Removal of Inferior Officers

• Inferior officers can be appointed by the President alone, the heads of departments, or the courts, as prescribed by Congress
• Congress has more flexibility in regulating the appointment and removal of inferior officers, as they are not subject to the same level of Senate confirmation as principal officers
• Inferior officers may be subject to greater statutory limitations on removal, such as requiring cause for removal or providing tenure protections
• The distinction between principal and inferior officers is not always clear-cut and has been the subject of debate and litigation in various contexts (Morrison v. Olson, Edmond v. United States)

Supreme Court Cases on Removal Power

Myers v. United States (1926)

• In Myers v. United States, the Supreme Court held that Congress could not restrict the President's power to remove executive branch officials, affirming a broad view of presidential removal authority
• The case involved a postmaster who was removed by President Wilson without the consent of the Senate, which was required by statute
• The Court reasoned that the President's removal power was inherent in the executive power and necessary for the President to fulfill his constitutional duties
• This decision seemed to grant the President virtually unlimited power to remove executive branch officials

Humphrey's Executor v. United States (1935)

• Humphrey's Executor v. United States limited the scope of Myers and upheld statutory restrictions on the President's removal power for certain quasi-legislative and quasi-judicial officers
• The case involved a member of the Federal Trade Commission who was removed by President Roosevelt without cause, despite a statutory provision that allowed removal only for inefficiency, neglect of duty, or malfeasance in office
• The Court distinguished between purely executive officers, who could be removed at will, and officers who performed quasi-legislative or quasi-judicial functions, for whom Congress could provide tenure protections
• This case established the "functional approach" to analyzing removal power, focusing on the nature of the officer's duties rather than their position within the executive branch

Subsequent Cases Refining the Doctrine

• Morrison v. Olson (1988) upheld the constitutionality of the independent counsel provisions of the Ethics in Government Act, which allowed for the appointment of a special prosecutor to investigate executive branch officials
• The Court held that the Act's restrictions on removal (only for good cause by the Attorney General) did not unduly interfere with the President's executive power, given the limited nature of the independent counsel's jurisdiction and tenure
• Free Enterprise Fund v. Public Company Accounting Oversight Board (2010) struck down a provision of the Sarbanes-Oxley Act that provided for double for-cause removal protection for members of the PCAOB
• The Court held that this arrangement, where PCAOB members could only be removed for cause by SEC commissioners, who themselves could only be removed for cause by the President, violated the separation of powers by unduly insulating the PCAOB from presidential control

Removal Power and Presidential Control

Impact on Unitary Executive Theory

• Limitations on removal power can constrain the President's ability to direct and control the actions of executive branch agencies and officials, potentially undermining the unitary executive theory
• The unitary executive theory holds that the President, as the sole head of the executive branch, should have the authority to control and supervise all executive branch officials and agencies
• Restrictions on removal may insulate certain officers from political pressure and allow them to exercise independent judgment, which can be seen as a departure from the unitary executive model

Balancing Independence and Accountability

• Limitations on removal power may be justified as a means of maintaining the integrity and impartiality of certain executive branch functions (law enforcement, regulation of industries)
• Insulating certain officers from political pressure can help ensure that they discharge their duties in a fair and objective manner, without undue influence from the President or other political actors
• However, excessive limitations on removal power may also hinder the President's ability to ensure that the laws are faithfully executed and to implement his policy agenda effectively
• The balance between presidential control and agency independence is a recurring theme in debates over the proper scope of removal power and the structure of the administrative state

Context-Dependent Impact

• The impact of removal power limitations may vary depending on the specific statutory provisions at issue, the nature of the officer's duties, and the broader political and institutional context
• In some cases, limitations on removal may have little practical effect on the President's ability to influence agency decision-making, particularly if the President has other means of control (budgetary authority, informal pressure)
• In other cases, removal restrictions may significantly constrain the President's ability to shape agency policies and priorities, especially if the agency has a high degree of statutory independence or if there are deep policy disagreements between the President and the agency's leadership
• The effectiveness of removal power as a tool of presidential control may also depend on the willingness of Congress and the courts to enforce statutory limitations and to provide oversight of executive branch actions