By Zachary D. Rogers

The recent controversy over President Trump’s removal of Gordon Sondland from his post as ambassador to the European Union provides us an excellent opportunity to ruminate upon the meaning of the unitary executive and the separation-of-powers principles in our Constitution. Whether one is inclined to respond to Trump’s decision with fulsome praise or voracious opprobrium, the moderating influence of principle and precedent should be the lodestar informing all reactions.

Restrictions on the executive removal power of officers in executive agencies are unconstitutional, as they inhibit the exercise of presidential control and accountability, which violates the separation of powers. In order to ensure faithful execution of the laws, the president must be able to oversee and control executive-branch officials.

The removal power is vested in the executive through the clause requiring the president to “take Care that the Laws be faithfully executed.” This is facilitated through the president’s nomination of officers, who assist him in running the executive branch upon Senate confirmation. Oversight of subordinates requires the ability to remove those who cannot or will not execute the laws.

Moreover, presidential accountability to the people requires that executive officers be accountable to him. In order for the president to be held accountable by the people he must first be able to oversee the work of those who carry out his policies. He cannot do this without the power to remove officers of the government at his discretion. This allows the public to hold the president politically responsible for the actions of his subordinates.

Finally, separation of powers actually requires the presidential removal power. The Constitution in Article II vests executive power singularly in the office of the president and he alone is responsible for the executive branch.

The history of the presidential removal power displays the Republic’s departure from constitutional norms. While the original intent was that the president should be free to remove senior officers, the Supreme Court has eroded this power through bad precedent. The evolution of the removal power is best understood within its historical context beginning with the “Decision of 1789.”

Decision of 1789

While the Constitution lays out an explicit appointment process, there is no similarly explicit clause regarding the removal of non-elected executive officials. The First Congress of 1789, however, addressed this issue after a spirited debate regarding the removal of the secretary of the Department of Foreign Affairs (later to become the State Department). Ultimately, the First Congress endorsed the unlimited presidential removal power of executive officials, setting a precedent that was followed for decades afterwards. Given that so many members of this Congress also were present at the Constitutional Convention, it makes sense to give special deference to their opinion in this matter.

Tenure of Office Act (1867)

The “Decision of 1789” was not seriously challenged until Congress passed the Tenure of Office Act of 1867. The act was passed by Congress in an attempt to inhibit President Andrew Johnson’s actions during Reconstruction following the Civil War. He vetoed the act, which would prevent the president from firing anyone who had been appointed to office without the Senate’s permission, and then Congress overrode him (but Congress overrode the veto). Johnson’s refusal to abide by this law was the principal grounds for his impeachment (the Senate failed to convict him). The act was amended in 1869 and repealed in 1887.

Myers v. United States (1926)

The issue of presidential removal power arose again with the case of Myers v. United States. President Woodrow Wilson removed Myers, a postmaster first class, without Senate approval. This violated an 1876 law which provided that first-, second-, and third-class postmasters appointed with the advice and consent of the Senate could not be removed without the Senate’s advice and consent. The Supreme Court held that the act unconstitutionally restricted the president’s removal power of appointed officials in the executive branch. The chief justice traced the history of the “Decision of 1789” and the question of removal thereafter, concluding that both the decision and historical practice confirmed the president’s right to remove Myers without Senate approval.

Humphrey’s Executor v. United States (1935)

The case of Humphrey’s Executor arose from President Franklin D. Roosevelt’s removal of an FTC commissioner, William E. Humphrey. Roosevelt requested his resignation due to policy differences; Humphrey refused, so Roosevelt removed him. The law at issue, the FTC Act, prevented the removal of commissioners without good cause.

The Supreme Court held that the FTC Act was constitutional, reasoning that the FTC Act was intended by Congress to limit the president’s power to remove FTC commissioners. Additionally, the Court declared that Myers applied only to purely executive officers; it could not apply to the FTC commissioners because the duties of the commissioners were quasi-legislative and quasi-judicial. This ruling resulted in (1) the establishment of good cause removal standards of “inefficiency, neglect of duty, or malfeasance in office,” and (2) an increase in the creation of independent agencies over the following decades.

Morrison v. Olson 1988

The case of Morrison v. Olson was concerned with whether the Ethics in Government Act of 1978 violated the separation of powers. The act allowed the appointment of an independent counsel upon the recommendation of the attorney general. The duty of the independent counsel would be to investigate, and if necessary, prosecute criminal violations.

The Supreme Court held that the act did not impermissibly impede the president’s constitutional duties as head of the executive branch, reasoning that the act did not unduly trammel his executive authority because of the attorney general’s ability to remove the independent counsel for good cause.

Free Enterprise Fund v. PCAOB (2010)

The Public Company Accounting Oversight Board (PCAOB) was created in 2002 by the Sarbanes-Oxley Act of 2002. The PCAOB’s constitutionality was challenged in 2005 on two grounds, one of which was the double for-cause removal structure. Per the act, SEC commissioners can only be removed by the president for cause and the SEC commissioners in turn can only remove PCAOB members for cause. The DC Circuit Court rejected both challenges in 2008. In 2010 the Supreme Court held that the double for-good-cause removal standard was an impermissible violation of the separation of powers.

The Court reasoned as follows. First, the president is vested with executive authority to ensure the laws are faithfully executed. Secondly, the president is responsible to the people. Thirdly, presidential oversight requires the ability to remove subordinate officers. Fourthly, the president’s removal power cannot be reduced or modified. Therefore, the Court ruled unconstitutional the double layers of for-cause removal.

Separation of Powers and Executive Authority

The separation of powers is a vital component of the regime of limited government instituted by the Founders to protect the natural rights of Americans and prevent tyranny. Unfortunately, the evolution of Court precedent restricted this power in ways that are not in keeping with the original intent of the Constitution.

The “Decision of 1789” and historical precedent (as opposed to judicial precedent) suggests that the president’s removal authority of officers of executive agencies cannot be limited. Presidential removal power flows from the Constitution while limitations of this power are dependent on Court precedent. With the growth of the administrative state, however, this could potentially vest incredible power in the hands of one man.

Recognition of the constitutional authority of the president to remove officers of executive agencies should make Congress and the people cognizant of the great power that has been given to the administrative state and chasten their inclination to give it more. Courts choosing to ignore the Constitution’s vesting of a removal power in the president alone should further indicate the rising danger both of the courts and of the administrative state to the separation of powers and, thereby, the liberty of the sovereign people from whom all legitimate authority flows.