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11/06/2020

Ilan Wurman: The Removal Power
Michael Ramsey

Ilan Wurman: Arizona State University - Sandra Day O'Connor College of Law) The Removal Power: A Critical Guide (2020 Cato Supreme Court Review 157) (46 pages) on SSRN.  Here is the abstract: 

In Seila Law v. Consumer Finance Protection Bureau (CFPB), the Supreme Court held that the creation of an independent agency headed by a single director with for-cause removal protections violates the executive power provisions of the Constitution. This essay summarizes the scholarly and judicial debates over the removal power, specifically over the meaning of “the executive power,” the historical practice, and the Court’s crucial precedents. Although it seeks to provide a reasonable survey of the competing positions, it stakes out and tentatively defends particular answers. It then critically assesses the Court’s decision in Seila Law. In summary, the Court took a minimalist approach by refusing to extend earlier precedents upholding for-cause removal provisions to the “new” situation of single-director agencies. Nevertheless, it is unclear after Seila Law what is left of the reasoning of the earlier, functionalist precedents. The decision thus represents the Court’s continued return to formalist constitutional interpretation in separation of powers cases. The essay then also assesses the dissent, which is littered with citations to the academic literature and other historical materials. Interrogating those sources shows that most do not actually support the dissent’s position.

Part I canvasses four plausible readings of the Executive Vesting Clause in Article II: the cross-reference theory, the residuum (or residual) theory, and two versions of the law-execution theory. Which theory is correct has implications for the removal power. The prevailing formalist theory is the residual thesis, which maintains that all “executive” power is vested in the president except as otherwise limited in the Constitution, and that removal is an “executive” power that is therefore vested in the president. I shall suggest (and I have elsewhere argued) that the residual thesis is likely wrong. But that should not affect the removal question: “Removal” is part of “the executive power” to execute law. In fact, Chief Justice William Howard Taft, the author of Myers v. United States, rejected the residual thesis.

Part II briefly canvasses the historical record and responds to related recent scholarship. Without retreading too much old ground, it argues that removal was likely understood to be part of “the executive power” to execute law under the British Constitution and that recent scholarship maintaining the contrary is not persuasive. This part then turns to American practice. It argues that the proponents of a presidential removal power in the famous 1789 removal debates are best understood as arguing that the removal power was part of “the executive power” to execute law. Although the ultimate conclusion of the First Congress in the “Decision of 1789” is open to conflicting interpretations, what matters is the force of the arguments. This part then argues that there is no distinction between agencies enforcing financial legislation and agencies enforcing other types of legislation.

Part III (briefly) explains the Court’s most important precedents. It argues that Chief Justice Taft did not embrace a residual theory of executive power in Myers v. United States, but rather the position that the removal power is part of “the executive power” to execute law. It then maintains that Humphrey’s Executor v. United States, decided only nine years after Myers, was wrongly decided. Although there is most assuredly government power that can be exercised by more than one branch, Humphrey’s stands for the mistaken and unconstitutional proposition — at least if the Executive Vesting Clause is a grant of power — that there is some government power that need not be exercised by any of the named constitutional actors. As I shall explain, however, Humphrey’s is possible to defend on originalist grounds if the only power the president has to execute law is that which can be derived from the duty of faithful execution. Finally, this part examines the two most recent of the important removal decisions, Morrison v. Olson and Free Enterprise Fund v. PCAOB, one of which was thoroughly functionalist, the other of which was semi-formalist.

Part IV then critically assesses Seila Law v. CFPB in light of these debates over meaning, historical practice, and precedent. It concludes that not much is left of the functionalist precedents after Seila Law, notwithstanding the plurality’s attempt to issue a limited decision. It then critically assesses the dissent’s arguments, particularly its use of academic literature and historical materials.

This is a super helpful summary of the competing positions, and I agree with the bottom line (unsurprisingly, as I joined Professor Wurman's amicus brief in Seila Law).  Of course, I do not agree with his rejection of the "residual thesis" -- I've defended a version of  it at length here and here.  But I agree that the residual thesis isn't linked to the removal power question.  Removal is an aspect of the President's core executive power to enforce the law.  The President may or may not have other residual executive powers vested by Article II, Section 1, but in any event the President has that one.