Notice & Comment

New to SSRN: Congress’s Anti-Removal Power

Last fall, in Collins v. Yellen, the U.S. Supreme Court invited me to brief and argue in defense of the constitutionality of the Federal Housing Finance Agency. By statute, the president can only fire the head of the FHFA “for cause.” The question in Collins was whether that provision unconstitutionally limits the president’s removal power. With the help of Professor Chris Walker and a team of (amazing) volunteers, I offered the Court the best defense of statutory restrictions on presidential removal that I could.

The Court, however, rejected our constitutional arguments. Extending 2020’s Seila Law v. CFPB, seven justices held that statutory restrictions on the president’s ability to fire the director of a single-headed agency are unconstitutional. The Court’s embrace of this broad view of presidential removal has led some observers to predict that even Humphrey’s Executor v. FTC — the case upon which agency independence itself is generally understood to rest — may not be long for this world.

While reviewing the constitutional history, however, Chris and I discovered something. Even if statutory restrictions on removal offend the president’s removal power, the Constitution gives Congress an anti-removal power. Both Alexander Hamilton and James Madison recognized that the Constitution empowers Congress to discourage the president from using his removal authority. For example, Hamilton observed that because the Senate can reject a replacement nominee, a rational president must be careful before pulling the trigger. And even while condemning statutory restrictions on removal, Madison agreed that Congress can make removal so costly that no rational president would exercise the power without a good reason. Logically, the consequence of this anti-removal power is that Congress sometimes can create independence even without statutory restrictions on removal.

Building on Hamilton’s and Madison’s arguments, moreover, it is also the case that Congress can strengthen its anti-removal power. For example, Congress can reduce presidential evasion of the Appointments Clause by preventing recess appointments and limiting the use of acting officials. In this way, the benefits of removal for the president are reduced, thus leading to less removal. And by changing clotures rules, the Senate can signal — credibly — to the White House that a replacement nominee may not be confirmed, thus also reducing the benefits of removal and so, logically, leading to less of it. Notably, moreover, the same justices who are most against statutory restrictions on removal also are the ones who are most in favor of the tools that Congress can use to strengthen its anti-removal power. Justice Thomas, for example, has called for Humphrey’s Executor to be overruled and argued that some acting officials may violate the Appointments Clause. And Justice Scalia famously criticized independent agencies but also advanced the narrowest view of the Recess Appointments Clause. Yet the real-world effect of limits on the president’s ability to use acting officials or recess appointments is that the president is less likely to use his removal power to begin with.

To be sure, just because an anti-removal power exists does not mean that Congress should use it, nor that it will always work. But the idea that Chris and I kept coming back to while studying the historical record and thinking about constitutional structure and first principles is that the anti-removal power exists and someone needs to write about it.

I’m thus pleased to announce that Chris and I have just posted a new article to SSRN: Congress’s Anti-Removal Power.

Here is the abstract:

Statutory restrictions on presidential removal of agency leadership enable agencies to act independently from the White House. Yet since 2020, the U.S. Supreme Court has held two times that such restrictions are unconstitutional precisely because they prevent the president from controlling policymaking within the executive branch. Recognizing that a supermajority of the justices now appear to reject the principle from Humphrey’s Executor that Congress may prevent the president from removing agency officials based on policy disagreement, scholars increasingly predict that the Court will soon jettison agency independence altogether.

This Article challenges that conventional wisdom. True, the Court is skeptical of statutory restrictions on the president’s removal power. But statutory removal restrictions are not the only tool to achieve agency independence. Instead, the Constitution provides Congress with what we dub the anti-removal power—i.e., the power to discourage the White House from using its removal power. For example, because the Senate has plenary authority under the Appointments Clause to withhold its consent for executive branch nominees there is no guarantee that the Senate will confirm a replacement if the president removes the incumbent for a poor reason. As Alexander Hamilton explained, the “silent operation” of that uncertainty often allows Congress to prevent removal in the first place. Similarly, James Madison acknowledged during the Decision of 1789 that although the Constitution (in his view) forbids statutory removal restrictions, Congress has means to make removal costly for the president, which prospect should “excite serious reflections beforehand in the mind of any man who may fill the presidential chair.”

Importantly, moreover, Congress can strengthen its anti-removal power by, among other things, enacting reason-giving requirements, raising cloture thresholds, and preventing presidential evasion of the Appointments Clause. Using history, real-world examples, and game theory, we demonstrate how Congress can create a level of agency independence without the use of statutory removal restrictions. We also explain why Congress’s anti-removal power has advantages over statutory removal restrictions, including a surer constitutional footing and enhanced accountability: both the president and Congress face political consequences for how they exercise their removal and anti-removal powers. Finally, we offer Congress a path forward to restore some agency independence, strengthen perceived decisional independence in agency adjudication, and limit judicial challenges to agency structures.

Our paper is still an early draft. We welcome feedback. But we think that this paper says something new and we’re excited to share it.

(We also think that we may have solved the important Free Enterprise Fund issue with administrative law judges. But I’ll let Chris write about that in a separate post.)

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