As has been obvious, the Trump administration is rejecting—soundly, in my view—the notion that Congress may limit the president’s ability to remove principal officers of executive-branch agencies.
In an excellent letter yesterday, Sarah M. Harris, the acting Solicitor General, informed Congress that the Department of Justice will no longer defend the constitutionality of statutory restrictions on the president’s ability to remove members of the Federal Trade Commission, the National Labor Relations Board, and the Consumer Product Safety Commission. I’ll have more to say on this topic in a follow-on post, but for now will provide these excerpts from Harris’s letter (some citations omitted or simplified):
In Myers v. United States (1926), the Supreme Court recognized that Article II of the Constitution gives the President an “unrestricted” power of “removing executive officers who had been appointed by him by and with the advice and consent of the Senate.” In Humphrey’s Executor v. United States (1935), the Supreme Court created an exception to that rule. The Court held that Congress may “forbid the[] removal except for cause” of members of the FTC, on the ground that the FTC exercised merely “quasi-legislative or quasijudicial powers” and thus could be required to “act in discharge of their duties independently of executive control.” Statutory tenure protections for the members of a variety of independent agencies, including the FTC, the NLRB, and the CPSC, rely on that exception.
The Department has concluded that those tenure protections are unconstitutional. The Supreme Court has made clear that the holding of Humphrey’s Executor embodies a narrow “exception” to the “unrestricted removal power” that the President generally has over principal executive officers and that the exception represents “‘the outermost constitutional limit[] of permissible congressional restrictions'” on the President’s authority to remove such officers. Seila Law LLC v. Consumer Fin. Protection Bureau (2020). Further, the Supreme Court has held, the holding of Humphrey’s Executor applies only to administrative bodies that do not exercise “substantial executive power.” Id. The Supreme Court has also explained that Humphrey’s Executor appears to have misapprehended the powers of the “New Deal-era FTC” and misclassified those powers as primarily legislative and judicial. Id.
The exception recognized in Humphrey’s Executor thus does not fit the principal officers who head the regulatory commissions noted above. As presently constituted, those commissions exercise substantial executive power, including through “promulgat[ing] binding rules” and “unilaterally issu[ing] final decisions * * * in administrative adjudications.” Seila Law. An independent agency of that kind has “no basis in history and no place in our constitutional structure.” Id.