The Corner

Politics & Policy

Limiting a President’s Power to Dismiss Federal Appointees

For all of the hyperventilating over the president’s firing the FBI director, no one is giving much thought to what alternative procedures might look like. We could, for example, have FBI directors appointed to five-year terms and removable only by impeachment, or some other arrangement.

If presidential appointees serve at the pleasure of the president, then he can fire them for . . . almost anything, really. There need not be wrongdoing or a failure to perform official duties: It may simply be that the president prefers the services of someone else.

But that is not the actual state of the law, at least not uniformly across executive agencies.

We have, from time to time, experimented with limiting the president’s power to dismiss those he appoints. It was one of the earlier controversies in our government: The law organizing the State Department, for example, contains language making explicit the president’s power to dismiss the secretary of state. James Madison, who wrote that part of the law, apparently did not want Thomas Jefferson getting too comfortable in the job.

The impeachment of President Andrew Johnson was an outgrowth of a fight over the question of presidential dismissals. Congress had passed the Tenure of Office Act, which demanded that the president seek the Senate’s consent before the dismissal of any federal official whose appointment required Senate approval. President Johnson fired the secretary of war (we should still have a secretary of war), and he was impeached but not removed, surviving by a single vote. The act was later repealed.

An FTC commissioner (the executor of his estate, in fact) successfully sued the Franklin Roosevelt administration for wrongful removal, and Dwight Eisenhower lost a case involving his power to dismiss members of the War Claims Board. Much more on all this can be found here.

The general trend in recent court cases has been to affirm the president’s power over executive agencies and their employees, though there is language in the statutes establishing some of those agencies that purports to limit the president’s power to remove appointees, for instance requiring that he do so only in the case of neglect of malfeasance when it comes to the Consumer Product Safety Commission and the Nuclear Regulatory Commission.

If Congress wants to restrict the president’s power to fire the FBI director — which is not the worst idea in the world — it could pass a law to that effect. But it has not done so. It is more fun to let the president do what he likes, so that congressmen can shout “Treachery!” afterward.