Article II of the U.S. Constitution vests “the executive Power” in the President and instructs him to “take care that the Laws be faithfully executed.” For more than two centuries, jurists have debated whether this language empowers the President to freely remove—that it is to say, fire—Executive Branch officials, even when Congress by statute has attempted to protect those officials from presidential removal. In Myers v. United States, 272 U.S. 52 (1926), the Supreme Court broadly recognized a presidential removal power. Less than a decade later, however, the Supreme Court retreated from that position in Humphrey’s Executor v. United States, 295 U.S. 602 (1935), holding that the President does not have a free hand to remove commissioners of the Federal Trade Commission. And in Morrison v. Olson, 487 U.S. 654 (1988), the Supreme Court held that Congress can protect even a prosecutor from presidential removal, hence the late Justice Antonin Scalia’s powerful lament that “this wolf comes as a wolf.”
Much has changed in recent years.
Today, following Free Enterprise Fund v. Public Company Accounting Oversight Board, 561 U.S. 477 (2010), and especially Seila Law v. Consumer Financial Protection Bureau, 140 S. Ct. 2183 (2020), and Collins v. Yellen, 141 S. Ct. 1761 (2021), the Court has broadly embraced the unitary executive theory’s view that, because the President controls the entire Executive Branch, he must be able to fire subordinate officials. Indeed, the Court’s majority now reads Humphrey’s Executor so narrowly that it is debatable whether that precedent even supports the modern FTC’s removal protections, let alone those of other “independent” agencies.
The D.C. Circuit recently addressed this important issue. In Severino v. Biden, No. 22-5047 (Jun. 27, 2023), the Court resolved a removal dispute regarding the Administrative Conference of the United States (ACUS), “a governmental entity that produces research, recommendations, and guidance on how to improve the operation of Executive Branch agencies.” ACUS has a Council of presidentially-appointed individuals who serve three-year terms and who help oversee ACUS’s operations. On January 16, 2021, President Donald Trump appointed Roger Severino to a three-year term as a public member of the Council. On February 3, 2021, President Joseph Biden removed Severino. Severino sued, arguing that the president could only remove him for cause.
The D.C. Circuit upheld the removal, reasoning that “removal at will is the presumption under the Constitution, and … nothing in the text of the Council’s organic statute or about the Council’s function within the Executive Branch indicates that Congress constrained the President’s presumptive removal authority.” Citing Seila Law liberally, the Court explained that both the language of Article II and principles of accountability indicate that the President can presumptively remove Executive Branch officers at will. If Congress wishes to change that default as a statutory matter, the Court explained, it must send a “clear signal,” either through the statue’s “plain text” or “through the statutory structure and function of an office.”
Applying that rule, the D.C. Circuit concluded that Congress did not speak clearly enough to create a removal protection. Congress did not expressly preclude removal. Indeed, the closest it came was enacting a three-year term, but that is simply “a ceiling, not a floor, on the length of service.” Furthermore, even if certain positions may clash with unfettered presidential removal, especially adjudicative roles, such reasoning would not extend to ACUS, whose “raison d’être” is to generate “advice for the Executive Branch.” Accordingly, although acknowledging that Congress wanted ACUS to engage in “independent thinking,” the Court held that Congress did not clearly indicate an intention to prevent the President from removing Council members.
Judge Justin Walker concurred to note that, although he agreed with his colleagues’ statutory analysis, as a constitutional matter, “it might be that little to nothing is left of the Humphrey’s exception to the general rule that the President may freely remove his subordinates.” Given the trajectory of Article II doctrine, don’t be surprised to see that observation quoted to—or perhaps even by—the Supreme Court.
In the interest of full disclosure, Professor Nielson served as courtappointed amicus in Collins v. Yellen, 141 S. Ct. 1761 (2020), and, until recently when his term expired, served as a public member of the Administrative Conference of the United States.
