Removal, Executive Power of

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REMOVAL, EXECUTIVE POWER OF

REMOVAL, EXECUTIVE POWER OF. Article 2, section 2 of the Constitution states that "by and with the Advice and Consent of the Senate," the president can appoint judges, ambassadors, and executive officials. The Constitution, however, says nothing about whether the president can subsequently fire these appointees. As a consequence, Congress and the courts have had to define the president's legal authority to remove officials.

During the First Congress, James Madison, then a member of the House, uncharacteristically argued that without the power to dismiss executive officials, the president would be rendered impotent. In the 1789 law establishing the Department of State, Madison inserted language that granted the president unqualified power to fire the secretary of state, who at the time was Madison's ally Thomas Jefferson. This provided the first statutory legitimation of the president's removal power. Though Senator Henry Clay tried unsuccessfully to curb President Andrew Jackson's removal power some 30 years later, not until after the Civil War did Congress revisit the "Decision of 1789."

In 1867 Congress enacted the Tenure of Office Act over President Andrew Johnson's veto. The act required the president to secure the Senate's approval to remove any official from government whose nomination had been confirmed by the Senate. When Johnson tested the act by unilaterally firing Secretary of War Edwin Stanton, Congress promptly initiated impeachment proceedings. The House voted 126 to 47 in favor of impeachment; the Senate, however, failed by just one vote. Two decades later, Congress repealed the Tenure of Office Act.

Throughout the nineteenth century, the federal courts sidestepped every opportunity to comment on the constitutionality of the president's removal power. In Myers v. United States (1926), however, the Supreme Court deemed unconstitutional an 1876 law that required presidents to secure the Senate's consent before firing "postmasters of the first, second, and third classes" (19 Stat. 78, 80). Chief Justice William Howard Taft, delivering the Court's opinion, noted that to fulfill his constitutional duty to "take care that the laws be faithfully executed," the president must retain an unrestricted power to remove subordinates.

Myers seemed to grant the president complete freedom to remove not only postmasters, but also officials throughout the executive branch—only judges appeared off limits. In 1933 President Franklin Roosevelt tested this freedom by firing William E. Humphrey from the Federal Trade Commission (FTC) because of policy differences. Under the terms of the Federal Trade Commission Act of 1914, members of the FTC were supposed to serve seven-year terms that could be revoked only for infractions involving "inefficiency, neglect of duty, or malfeasance in office." Though Humphrey died in 1934, the executor of his estate sued for lost wages and the case went to the Supreme Court. In Humphrey's Executor v. United States (1935), the Court unanimously voted in favor of Humphrey and limited the president's removal power to only those officials who immediately served him, such as White House aides. Congress, the Court ruled, could legally restrict the president's ability to remove anyone except "purely executive officers."

Two decades later, after President Dwight Eisenhower dismissed Myron Wiener from the War Claims Commission, the Supreme Court reaffirmed the legal limits to the president's removal powers. Though the legislation establishing the commission never stated when, or for what causes, members might be removed, the Court surmised that Congress did not intend commissioners to have to decide war claims while fearing "the Damocles' sword of removal by the President for no reason other than that he preferred to have … men of his own choosing." In Wiener v. United States (1958) the Court once again ruled against a president who tried to exercise his removal powers for expressly political purposes.

During the Watergate scandal, the president's removal power again took center stage. Congress had vested in the attorney general the power to appoint a special prosecutor to investigate and prosecute offenses relating to the Watergate Hotel break-in, the 1972 election, the president, and his subordinates. The regulations establishing the office stated that the special prosecutor would remain in office until the attorney general and himself deemed his investigative work complete, and that he would not be removed from office "except for extraordinary improprieties on his part." In the fall of 1973, however, shortly after the attorney general and deputy attorney general resigned, the solicitor general, assuming the title of acting attorney general and following President Richard Nixon's orders, fired the special prosecutor. Later, a district court ruled that the removal violated the regulations that initially established the office (Nader v. Bork, 1973).

Despite these various setbacks, presidents retain some say over when executive officials are removed from office. In Bowsher v. Synar (1986) the Court ruled that Congress cannot create an administrative agency that performs purely executive functions and retain full authority over the removal of its members. In subsequent cases, the Court has ruled that Congress cannot unduly restrict the president's power to remove officials from offices that immediately affect his ability to fulfill his constitutional responsibilities.

Through the beginning of the twenty-first century, however, no overarching principles dictate precisely when, and under what conditions, presidents can remove executive officials. Presidents enjoy broad discretion to fire cabinet secretaries and political appointees within the executive office. The president's freedom to dismiss directors of administrative agencies, however, is usually subject to terms set by Congress. The legislation creating some agencies, such as the President's Commission on Civil Rights and the Environmental Protection Agency, does not place any restrictions on the president's removal powers. For other agencies, however, the enacting legislation establishes certain guidelines. For example, the president can remove members of the Nuclear Regulatory Commission for "inefficiency, neglect of duty, or malfeasance in office," but can remove members of the Consumer Product Safety Commission "for neglect of duty or malfeasance in office but for no other cause."

When all is said and done, the president's power to remove executive officials may depend less upon formal principles than it does upon the practice of everyday politics. Congressional leaders, interest groups, and public opinion exert considerable influence over whether, and when, presidents opt to remove executive officials from office, and when they choose to withstand their continued service.

BIBLIOGRAPHY

Corwin, Edward S. The President, Office and Powers, 1787–1957; History and Analysis of Practice and Opinion. 4th ed. New York: New York University Press, 1957.

Fisher, Louis. Constitutional Conflicts between Congress and the President. 4th ed. Lawrence: University of Kansas Press, 1997.

Shane, Peter M., and Harold H. Bruff. Separation of Powers Law: Cases and Materials. Durham, N.C.: Carolina Academic Press, 1996.

William G.Howell