Removal: Necessary and Sufficient for Presidential Control

Abstract

Legal and political uncertainty continues to surround the independent agencies. Courts and scholars have recognized that control over administration usually depends on political realities rather than on legal categories of "independence." This perspective, however, tends to disregard the constitutional boundaries for administration. Contrary to the conventional view, I explain why Congress's authority over agency structure must have judicially enforceable limits in order to prevent encroachment on the executive power. In light of the constitutional text and structure, this Article demonstrates that the ability to remove principal officers is necessary and sufficient for presidential control of the executive branch. This means that all agencies, including the so-called independent agencies, must answer to the President. The principle allows Congress and the President to operate within their respective spheres while leaving most questions about actual administrative control to the political process. Limits on the President's removal authority have always been in tension with the basic constitutional design and in recent years there has been growing dissatisfaction with the meaning, structure, and effects of independence. The precedents and functional justifications for supporting agency independence have largely collapsed. The issue is ripe for reconsideration. The constitutional structure requires presidential control and supervision over administration and the removal power provides the mechanism for the possibility of such control.

Keywords: accountability, administrative agency, Appointments Clause, Article II, Consumer Financial Protection Bureau, CFPB, conventions, directive authority, enforceability, Free Enterprise Fund v. PCAOB, inferior officers, removal at will, separation of powers, severance, supervision

JEL Classification: K10