Guest Post: A Necessary and Proper Answer to the All-or-Nothing Removal Debate
A guest post by Jed Shugerman and Gary Lawson
We sincerely appreciated Richard Re’s balanced reading of the historical debate over a presidential removal power and independent agencies (“Does History Defeat Removal Doctrine?”). He raises a series of important questions about what appears to be an all-or-nothing polarized debate. We hope we can address some of those questions with new historical analysis and a balanced originalist path forward.
With Trump v. Slaughter scheduled for oral arguments on Monday, Dec. 8th, Re’s essay is worth re-reading in its entirety. He rightly concluded: “It would be unfortunate if the Court embraced an absolute removal power based on a mistaken belief that the only historically available alternative is no removal power at all.” He wisely added: “Because ambiguous history invites a wider array of considerations, it can also create common ground and nuance.”
With that invitation in mind, we thought we would share our recent essay “Presidential Removal as Article I, Not Article II.” It offers common ground and a balanced originalist answer recognizing that a congressional power and meaningful limits on that power come from the same clause: Article I’s Necessary and Proper Clause.
As we conclude in this essay, “These interpretations of Article I and Article II also offer a more originalist, balanced approach to the separation of powers. With complex questions about the Federal Reserve looming, a stretching of Article II would lead to a series of judicial problems and interventions. The Necessary and Proper Clause is a stronger originalist basis to replace Humphrey’s Executor, to limit congressional power, and to confirm narrow traditional exceptions for the FTC and the Federal Reserve.”
We believe we address concerns that the critics of the unitary executive theory have no textual or originalist limiting principle on Congress’s power to disable presidential control over the executive branch. For example, Larry Solum asked on Legal Theory Blog:
Critics of the Unitary Executive Theory need an account of the propositional content of the Vesting Clause that either allows for executive power to be vested in officers other than the President or that interprets ‘executive power’ as something other than the performance of a bundle of executive functions.
I am unaware of some theory of the communicative content of the Vesting Clause that avoids the difficulties of the Empty Vessel Hypothesis but is inconsistent with the idea that removal is an executive power. One possibility is a variation of the Bundle of Powers hypothesis, that holds that removal is not in the bundle.
And Mike Ramsey recently asked on the Originalism Blog:
“To put it another way, in the form of a question I’ve posed on this blog and elsewhere, can Congress provide that the Attorney General shall have sole direction of federal law enforcement and shall have a lifetime appointment?”
We believe we have an answer to these questions. To Ramsey, we offer an answer: No, Congress may not create a lifetime independent attorney general or independent Justice Commission, primarily because:
1) Article I: The Necessary and Proper Clause sets limits against such overreach. As we wrote on p. 3:
Tenure protections and agency structures must be necessary and proper for executing federal power, meaning that they must be suitable means for pursuing proper ends. The debates and statutes in the First Congress reflect an analysis of means and ends in creating a small number of fully independent and mixed independent offices for specific complex tasks, often related to public debt and the public fisc. The Necessary and Proper Clause is an originalist basis to replace Humphrey’s Executor; to limit congressional power; and to confirm narrow traditional exceptions for agencies such as the FTC and the Federal Reserve.” (See Part II for more detail.)
And 2) Article II: the Take Care Clause reinforces a similar balance and similar limits to preserve the president’s functional duty to supervise within the scope and purpose of faithful execution.
Article II imposes upon the president a duty of “faithful execution.”
Congress can specify requirements consistent with that original proto-fiduciary duty (e.g., “neglect of duty” or “inefficiency”) only in exceptional cases, because the Take Care clause includes a principle that limits Congress’s power. Congress may not set conditions that would substantially disable the Executive from ensuring that the laws are faithfully executed.
To answer Larry Solum’s question, we think our interpretation of the Vesting Clause does not rely on the Empty Vessel Hypothesis, and it is consistent with the Bundle of Powers hypothesis.
The real question is whether Congress has power to specify removal terms by statute. One can wholly buy into a non-empty-vessel conception of the Article II Vesting Clause, and even think that the vessel includes a presumptive removal power, and still believe that Congress has some authority to overcome that presumption by statute.
We draw on the eighteenth-century background meaning of “necessary and proper” as a grant of discretion but still requiring reasonableness, fairness, efficacy, proportionality, and rights protections. The Article I Necessary and Proper Clause is a more functional and more originalist basis for preserving presidential removal than the Article II Executive Vesting Clause would be.
On our paper, Ramsey observed: “If it holds up, this would be a major revolution in originalist thinking about the removal power. If it holds up.”
First, originalism as a method embraces doctrinal revolutions— if the existing interpretations are wrong. And we think the reliance on the Executive Vesting Clause and the ostensible “Decision of 1789” are both wrong. But second, this is moderation, not revolution, when compared to the Article II absolutist arguments or to the critics who do not seem to offer a limiting principle on congressional power to create an independent Fourth Branch.
Most importantly, it is “revolutionary” in the most important constitutional sense: it is more consistent with the original public meaning of the actual Revolutionaries, the Founders, and their original balanced approach to legislative and executive power.
Jed Shugerman is the Joseph Lipsitt Scholar, Harry Elwood Warren Scholar, and Professor of Law at Boston University School of Law; Gary Lawson is the Levin, Mabie & Levin Professor of Law at University of Florida Levin College of Law.
