Last fall, Aaron Nielson and I posted to SSRN an early working draft of our new paper Congress’s Anti-Removal Power. Shortly thereafter I began to field calls from congressional staff regarding how Congress could better leverage its anti-removal power in a variety of contexts. Based on those conversations, I expect Congress to experiment even more with its anti-removal power to create a measure of agency independence.
Indeed, I was thrilled to see such experimentation earlier this month in the Democrats’ Freedom to Vote Act. In particular, this legislation would create a new independent agency: the Office of State Democracy Promotion. This new independent agency would provide funding to States to “carry out democracy promotion activities.”
Here is the relevant part of the draft legislation:
Understandably after the Supreme Court’s decisions in Seila Law and Collins, the bill would not restrict the President’s ability to remove at will the single-head director of the new agency. But Congress obviously still wants the agency to be as independent as possible. After all, the agency would deal with elections, and Congress usually strives to insulate election administration from plenary presidential control (see, e.g., the Federal Election Commission and the Election Assistance Commission). Indeed, the bill text (screenshot above) uses two soft tools to signal and reinforce agency independence: (1) it labels the agency as independent—“an independent establishment in the executive branch”—and (2) it provides the agency head with a six-year term.
As Aaron and I explore in Congress’s Anti-Removal Power, however, Congress can do even more, short of statutory removal restrictions, to create a measure of agency independence here.
First and foremost, Congress could require that the president provide reasons—perhaps even good reasons—for any firing of the new agency head before the six-year term ends. Congress already does this, for example, with respect to the Comptroller of the Currency and inspector generals. This reason-giving requirement facilitates inter-branch dialogue and elevates the public visibility of a questionable firing.
Second, Congress could commit in advance to an oversight hearing if the agency head is fired—or perhaps only if the agency head is fired without the President providing a good reason. There, the fired agency head would testify along with other witnesses, to raise the salience of the firing (and thus president’s removal costs).
Third, Congress could add enact other statutory signals of agency independence, such as legislative findings about the importance of the agency’s independence and the nonpartisan and expert-driven qualifications of the agency head.
Fourth, Congress could include explicit provisions concerning who can serve as an acting head, such as requiring the acting to have served in government for a longer period of time. This would make it harder and less attractive for the President to bypass a new confirmation for an extended period of time by designating an acting head who is loyal to the President. Nina Mendelson explores some of those reforms here.
In our paper, we also suggest some hard tools like a heightened cloture vote, but those probably would not make sense here. We also suggest as an another anti-evasion tool that Congress could limit the agency’s power when it does not have a Senate-confirmed head. Our toolkit is summarized in the following table from the draft paper:
In sum, the prior version of the Freedom to Vote Act incorporated some “soft tools” of Congress’s anti-removal power to try to create a measure of independence at this proposed new election administration agency. But Congress could do more if it wanted, even after Seila Law and Collins likely foreclosed statutory removal restrictions for a single-director agency head.
Months after we posted our draft paper to SSRN and a couple weeks after I posted a Twitter thread specifically applying our anti-removal toolkit to the Freedom to Vote Act, the Democrats in Congress released a new version of the legislation, now titled the Freedom to Vote: John R. Lewis Act.
Of particular relevance here, the new version strengthens Congress’s anti-removal power along the lines we outline in our paper and I recommended Congress do in this legislation. In particular, the bill now requires the President to give reasons for firing before the independent agency head’s six-year term concludes. Here is the relevant part of the new version of the legislation, with the anti-removal tools highlighted:
As Josh Blackman observes, the new version of the legislation goes beyond what Aaron and I recommend in our draft paper to also require notice thirty days before the firing. Josh argues that this pre-firing notice requirement is unconstitutional, noting that in Aaron and my paper we suggest that such a notice requirement would raise constitutional concerns and thus do not include it in our anti-removal power toolkit.
That said, a pre-firing notice requirement is not unprecedented. This legislation is modeled after the inspector general statutory removal scheme, which also requires the President to provide reasons thirty days before the firing. This approach makes a lot of sense functionally, as the goal is to provide for inter-branch dialogue before doing something irreversible and requiring the President and Congress to engage in a confirmation process for a new agency head.
Formally, one could argue that this thirty-day requirement infringes on the President’s removal power, as it would prohibit the president from ensuring that the agency official faithfully executes the law. Functionally, you could imagine a nightmare scenario where a runaway agency head causes a lot of havoc during those thirty days. Perhaps in light of these concerns, the D.C. Circuit has blessed the President’s decision to put inspectors general on leave for those thirty days as part of their removal process. It has held that such paid leave is not a removal, and thus does not violate the President’s removal power. This interpretation has the benefit of still allowing for the inter-branch dialogue period before there’s an official removal that would require a new confirmation. In incorporating this notice provision in the Freedom to Vote: John R. Lewis Act, Congress is no doubt legislating against the backdrop of this D.C. Circuit precedent.
In all events, I am thrilled to see Congress begin to experiment more with its anti-removal power to strengthen agency independence. For more on why and how Congress should exercise its anti-removal power, check out the latest draft of our paper here.