The Bureaucrat in Chief

The second installment of this series is based on my book. Contested Ground: Understanding the Limits to Executive PowerThanks. The editors gave me this opportunity. This week’s topic concerns presidential control over the executive branch.

The “bureaucracy”, as we refer to it, is a separate entity from the President. The President has one of his most significant roles: to manage the bureaucracy. This involves a lot of top-ranking politicians or the Executive Office of President. The President can fire almost everyone in executive branches. This blog readers will know that it is the problem with “nearly everyone”. Do independent agencies and exceptions have constitutional status? EverybodyImportant members of the executive branch must serve as President’s representatives?

Unitary executives believe that there is an unrestricted presidential power of removal. For readers of this blog, it’s unlikely that we need to repeat their arguments. The unitary executive theory is often associated with conservatism. It seems that this is historically contingent. Liberals such as FDR believed that the unitary executive was better for implementing progressive policies.

A bit of a puzzle is also the fact that those who support the uniexecutive tend to also be supporters of a strong doctrine against delegation. These positions don’t seem incompatible, but there is tension. The unitary executive is often defended by those who argue that their subordinates must follow the President’s policy agenda. The idea of the nondelegation doctrine, however, is that the executive shouldn’t have major authority over major regulatory policy—those decisions should all be made by Congress. While it seems odd to support presidential authority to establish the policy agenda for the executive branch, this is not the case.

It is also a puzzlement to me that the White House has all the executive power. One could argue that people’s rights would be protected if they had some protection from political partisanship. In the interest of property rights and liberty, this seems like a natural position to be in for conservatives. If history had gone a little differently, we might well have seen liberals adopting the unitary executive and conservatives defending independent agencies—that just doesn’t happen to be the way things have worked out.

It is possible that the Presidential Removal Power may be the most controversial issue in presidential power. This debate has largely focused on the original understanding. Today, the Supreme Court has shifted strongly in President Trump’s favor on this matter and insists that the original understanding is the final word. Originalists could certainly present evidence to support the unitary executive. This evidence is what the Supreme Court majority seems to be conclusive.

I don’t think the historical record is nearly as clear. The Secretary of State, which was the first elected office in Congress, is one of the most important events. Following the debates, the President had the power to remove him. But the proceedings became muddled and it was not obvious that the majority of Americans supported the uniexel executive. A recent paper written by Jed Shugerman, Jed Handelsman examines the evidence.

It is striking that the matter was ever in dispute. The Secretary of state is today the ideal example of a presidential official. He or she has duties that center around foreign affairs. It seems that it was less obvious then than today.

In summary, we don’t see a shared understanding about the constitutional question in 1790.

Recent research from Daniel Birk shows that the King had limited power over some officials if we go back in time. Not the King but other officials and local magistrates could remove officials. The King also did not have any power to control many officers in their tasks. Some appointments could be for life, or even were hereditary. The executive power was still believed to have been given to the King. This makes it difficult to argue that the President vested the executive power, implying that the underlings were merely sock puppets who execute orders.

Based on these facts, it is difficult for me to argue that the constitution text in its Framing period does not allow any limitations on president-removal of officers. The author of the following is a partial list. Other-originalist argument for presidential removability may be stronger—or at least for a strong presumption of presidential removability. While it is true there were exceptions such as Civil Service independent agencies and the post-Watergate Independent Counsel, it’s also true that these have not been the norm.

We can look at history and see that the supporters of the uniexecutive rule are in agreement. High-ranking officers serve the President at his pleasure, regardless of constitutional or other reasons. The “unitarians,” however, have many persuasive policy arguments in their favor. These “Unitarians” argue that unitary presidential power provides government policy with energy, coherence and transparency.

Although these are strong arguments, they do not necessarily endorse a general rule for presidential removal. Other values might be more important: making sure people have fair hearings, that administrative officials are impartial, that financial regulations aren’t used for partisan gain, and that government doesn’t serve only to provide cushy jobs for loyalists.

A reasonable textualist argument could be made that such policy decisions belong solely to Congress. This is due to Congress’s power to pass laws appropriate to the execution of executive branches duties. This position is not supported by me as an originalist. However, historical precedent and Supreme Court precedent seem to support it. Unrestricted congressional power would, in my opinion, favor the legislative branch too much.

It is up to you to decide which way to go. My personal views are that there is no reason for me to believe that the existing exemptions from presidential removability should be considered unconstitutional. However, outside the existing practices that cover certain positions, I would like to hear more convincing arguments as to why specific officials should be protected from being removed.

[Next up: the non-delegation doctrine.]