The president’s removal authority is key to the separation of powers
On Monday, the Supreme Court allowed President Trump to fire a member of the Federal Trade Commission (FTC) while lower courts continue to review the firing’s legality. This is the latest in a series of firings as the president tests whether he can remove members of independent boards and commissions until a case officially reaches the Court.
Congress sought to protect the members of these independent agencies from presidential control by giving them removal protections, which the Supreme Court has ruled are constitutional as long as the agency is an independent, non-partisan, multi-member body charged with primarily quasi-legislative and quasi-judicial powers.
So, the president’s ability to remove certain officials depends on the type and composition of the agency in question. He can fire heads of executive departments at will, or single heads of agencies like the Consumer Financial Protection Bureau, Environmental Protection Agency, or Social Security Administration. But when it comes to independent federal boards and commissions, he can fire members “for cause” or, often more specifically, for “inefficiency, neglect of duty, or malfeasance in office” only as stipulated by federal law.
Some argue that President Trump’s attempts to fire appointees of independent agencies like the FTC, Consumer Product Safety Commission (CPSC), and National Labor Relations Board (NLRB), among others, threaten the Constitution’s separation of powers. They argue that because these agencies were established by Congress to be insulated from direct presidential control, the president’s actions infringe upon Congress’s legislative prerogative. Essentially, under this view, independent agencies are an extension of the legislative branch’s check on the executive.
But like oil and water, independent agencies and the separation of powers don’t mix. Not letting the president take such action would actually threaten the separation of powers.
Some of the most powerful agencies of the federal government are “independent.” The FTC, NLRB, CPSC, Securities and Exchange Commission, and Federal Communications Commission, for example, are vested with sweeping, open-ended authority from Congress to regulate everything from business mergers to consumer products and financial markets, as well as enforce federal antitrust, labor, product, securities, and communications law.
And that’s the problem: These agencies are charged with enforcing federal law. Sure, they also exercise quasi-legislative and quasi-judicial powers (which has its own problems under the separation of powers). But they unmistakably exercise executive power too. Just ask Nick Hiran, who was prosecuted by the NLRB for supposedly “unfair labor practices” and was ordered to award compensation to terminated employees after they walked out of a mandatory meeting. Or ask the Marietta family, whose company Jake’s Fireworks has long faced threats of prosecution and penalties from the CPSC’s enforcement of its “Audible Effects Regulation” because the agency thinks one of the company’s products makes the wrong kind of noise.
This is executive power, plain and simple. And if you exercise executive power, you must be answerable to the person through which that power flows.
The Constitution doesn’t vest the executive power in the president and a group of technocrats at independent agencies. Rather, it’s very clear that all enforcement of federal law—“the executive power”—falls under the purview of the president and the president alone. And if that’s the case, then the president must be able to oversee those who exercise that power, especially those who do so in a significant way. Because oversight without being able to fire the official isn’t much in the way of oversight at all. As James Madison (who knew a thing or two about the Constitution) said when debating the president’s power to remove executive officers, “[I]f the officer when once appointed, is not to depend upon the president for his official existence,…I confess I do not see how the president can take care that the laws be faithfully executed.”
Independent officials exercising executive power but protected from presidential removal is not an example of good governance or following the Constitution. It’s the recipe for unaccountable fiefdoms of concentrated power.
The separation of powers (surprise!) separates powers. Any argument that invokes the separation of powers to justify allowing agencies to wield executive power (as well as other governmental powers) but not be directly accountable to the one person vested with that power under the law of the land makes a mockery of the doctrine.
As such, independent agencies are where the separation of powers goes to die. Allowing the president to remove the leaders of these agencies without cause would breathe some much-needed life back into our government’s constitutional structure.
