Professors Jed Shugerman and Ethan Leib wrote a New York Times op-ed discussing the recent efforts by the Justice Department to get the Supreme Court to look at cases regarding the authority of the President to fire independent agency heads.
First, the Department of Justice asked the court to strike down the job security protections for the head of the Consumer Financial Protection Bureau, which was Senator Elizabeth Warren’s brainchild. Such restrictions on a president’s removal power, the argument goes, violate the separation of powers. Afterward, Fannie Mae and Freddie Mac shareholders filed a surprising petition making a similar argument about the Federal Housing Finance Agency.
But these arguments overlook an important constitutional text that applies to the president’s powers: the duty of “faithful execution.” That obligation already limits presidential discretion, and it gives Congress the power to apply “good faith” or “good cause” limits on the president’s removal authority.
The version of the “unitary executive” put forth by Mr. Trump, the Justice Department and the shareholders would open the door for a president to fire for any reason — even personal reasons unrelated to the public interest or even for no reason at all — any head of an administrative agency, including the heads of “independent agencies” like the Consumer Financial Protection Bureau as well as the Federal Reserve, the Federal Trade Commission and the Nuclear Regulatory Commission. (These agency heads are nominated by the president and confirmed by the Senate.)
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The justices most interested in invalidating presidential removal restrictions and increasing presidential power are also, paradoxically, those most interested in textual and historical faithfulness to the original Constitution. Although the framers of the Constitution never directly addressed the question of removal authority in the text or in the drafting or ratification debates, the proponents of the view that all agency heads serve at the pleasure of the president cite the clause in Article II that requires of the president that he “shall take care” of executing laws.However, they ignore a crucial modifier in Article II and its history: “The president shall take care that the laws be faithfully executed.” The president also takes an oath to “faithfully execute the Office of President.” These clauses require good faith in executing presidential powers. The position that the president must have a completely unconstrained ability to say “you’re fired” to any agency head is wrong as a matter of the original public meaning of the Constitution.
