ArtII.S1.C1.4 The President's Powers, Myers, and Seila

Article II, Section 1, Clause 1:

The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows

In 1926, Chief Justice and former President William Taft addressed the President’s removal power in Myers v. United States, holding that the executive power includes the power to remove Executive Branch officers.1 Myers concerned a law that required the Senate’s advice and consent for the President to remove a Postmaster from office. In a 6-3 decision for the President, Chief Justice Taft reasoned that the removal power was necessary for the President to fulfill his constitutional duty to enforce the laws.2 Absent power to hold subordinate Executive Branch officers accountable by removing them if necessary, the President would not be able to fulfill his obligation to “take Care that the Laws be faithfully executed.” 3 Holding the removal power to be constitutionally vested in the President,4 the Myers Court observed that powers vested in Congress must be strictly construed in favor of powers retained by the President.5

In the 1935 decision Humphrey’s Executor v. United States6 and the 1988 decision Morrison v. Olson, the Supreme Court7 upheld limits on the President’s removal power. However, the Court subsequently emphasized that those cases were limited to specific circumstances.8 In Humphrey’s Executor, the Court held that Congress could constitutionally provide that commissioners on the Federal Trade Commission (FTC) could only be removed for cause. The Court reasoned that “good-cause tenure” was permissible for the principal officers of independent agencies that performed a “quasi-legislative and quasi-judicial” role because “Congress could require [an agency] ‘to act . . . independently of executive control.’” 9

In Morrison, the Court examined the Ethics in Government Act of 1978, which provided for independent counsels to investigate and prosecute certain high-ranking government officials.10 Under the independent counsel statute, the Attorney General notifies a special Article III court if he believes there are sufficient grounds to investigate a senior government official and the special court appoints a special counsel to investigate and, if warranted, prosecute. The Attorney General can only remove the special counsel for cause as prescribed in the statute.11 Consequently, the independent counsel is generally free from Executive Branch supervision. After assessing how the law impacted executive power and whether Congress had attempted to aggrandize itself or enlarge judicial power at the executive’s expense, the Court upheld for-cause removal for independent counsels.12

Notwithstanding Humphrey’s Executor and Morrison, the Court later clarified that “the President’s removal power is the rule rather than the exception.” 13 In its 2010 decision, Free Enterprise Fund v. Public Accounting Oversight Board, the Court held unconstitutional a statute that structured a government office to restrict the President’s ability to remove a principal officer and also restrict the principal officer’s ability to remove an inferior officer who “determines the policy and enforces the laws of the United States.” 14 The Court explained: “The President cannot ‘take Care that the Laws be faithfully executed’ if he cannot oversee the faithfulness of the officers who execute them. Here the President cannot remove an officer who enjoys more than one level of good-cause protection, even if the President determines that the officer is neglecting his duties or discharging them improperly.” 15

In its 2020 decision in Seila Law LLC v. Consumer Financial Protection Board (CFPB), the Court rejected the proposition that Humphrey’s Executor16 and Morrison17 “establish a general rule that Congress may impose ‘modest’ restrictions on the President’s removal power.” 18 Examining the CFPB, the Court noted that it had a single Director, who was insulated from the President’s removal power and “accountable to no one.” 19 Describing the President’s role in the constitutional structure as the link that makes the administrative state answerable to the people, Chief Justice John Roberts, writing for the majority, stated:

The resulting constitutional strategy is straightforward: divide power everywhere except for the Presidency, and render the President directly accountable to the people through regular elections. In that scheme, individual executive officials will still wield significant authority, but that authority remains subject to the ongoing supervison and control of the elected President. Through the President’s oversight, “the chain of dependence [is] preserved,” so that “the lowest officers, the middle grade, and the highest” all “depend, as they ought, on the President, and the President on the community.” 20

Finding the CFPB Director’s protection from removal to be unconstitutional, the Court stated: “In our constitutional system, the executive power belongs to the President, and that power generally includes the ability to supervise and remove the agents who wield executive power in his stead.” 21

Footnotes
1
272 U.S. 52 (1926). See Edward Corwin, The President’s Removal Power under the Constitution, in 4 Selected Essays on Constitutional Law 1467 (1938). back
2
Id. art. II, § 3. See ArtII.S3.3.1 Overview of Take Care Clause. back
3
4 Selected Essays on Constitutional Law supra note , at art. II, § 3. See ArtII.S3.3.1 Overview of Take Care Clause. back
4
Charles Thach, The Creation of the Presidency, 1775–1789 92–123 (1923). back
5
Myers v. United States, 272 U.S. 52, 163–64 (1926). back
6
295 U.S. 602 (1935). See also Wiener v. United States, 357 U.S. 349 (1958). back
7
487 U.S. 654, 685–93 (1988). Morrison concerned the Title VI of the Ethics of Government Act of 1978, which provided for the appointment of independent counsels who the Attorney General could only remove for “good cause.” See also United States v. Perkins, 116 U.S. 483 (1886). back
8
Seila Law LLC v. CFPB, No. 19-7, slip op. at 7 (U.S. June 29, 2020). back
9
Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 493 (2010) (quoting Humphrey’s Executor, 295 U.S. 602, 627–29 (1935). back
10
See 28 U.S.C. §§ 591–599. back
11
Ethics in Government Act of 1978, Pub. L. No. 95-521, title VI, 92 Stat. 1824, 1867 (codified as amended in 28 U.S.C. §§ 49, 591-599). back
12
Morrison v. Olson, 487 U.S. at 693–96. back
13
Seila Law LLC v. CFPB, No. 19-7, slip op. at 27 (U.S. June 29, 2020). For discussion, on the President’s removal authority in the twenty-first century, see ArtII.S2.C2.3.15.7 Twenty-First Century Cases on Removal. back
14
Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 484 (2010). back
15
Id. back
16
295 U.S. 602 (1935). back
17
487 U.S. 654 (1988). While acknowledging that the independent counsel statute restricted a constitutionally delegated function (law enforcement), the Morrison Court upheld the statute, using a flexible analysis that emphasized that neither the Legislative nor the Judicial Branch had aggrandized its power and that the statute, while infringing on executive power, did not impermissibly interfere with the President’s constitutionally assigned functions. Id. back
18
Seila Law LLC v. CFPB, No. 19-7, slip op. at 26 (U.S. June 29, 2020). back
19
Id. at 23. back
20
Id. (quoting 1 Annals of Cong. 499 (1789)) (James Madison). back
21
Id. back