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10/28/2021

Aaron Nielson & Christopher Walker: Congress's Anti-Removal Power
Michael Ramsey

Aaron L. Nielson (Brigham Young University - J. Reuben Clark Law School) and Christopher J. Walker (Ohio State University - Michael E. Moritz College of Law) have posted Congress's Anti-Removal Power (71 pages) on SSRN.  Here is the abstract:

Statutory restrictions on presidential removal of agency leadership enable agencies to act independently from the White House. Yet since 2020, the U.S. Supreme Court has held two times that such restrictions are unconstitutional precisely because they prevent the president from controlling policymaking within the executive branch. Recognizing that a supermajority of the justices now appear to reject the principle from Humphrey’s Executor that Congress may prevent the president from removing agency officials based on policy disagreement, scholars increasingly predict that the Court will soon jettison agency independence altogether.

This Article challenges that conventional wisdom. True, the Court is skeptical of statutory restrictions on the president’s removal power. But statutory removal restrictions are not the only tool to achieve agency independence. Instead, the Constitution provides Congress with what we dub the anti-removal power—i.e., the power to discourage the White House from using its removal power. For example, because the Senate has plenary authority under the Appointments Clause to withhold its consent for executive branch nominees there is no guarantee that the Senate will confirm a replacement if the president removes the incumbent for a poor reason. As Alexander Hamilton explained, the “silent operation” of that uncertainty often allows Congress to prevent removal in the first place. Similarly, James Madison acknowledged during the Decision of 1789 that although the Constitution (in his view) forbids statutory removal restrictions, Congress has means to make removal costly for the president, which prospect should “excite serious reflections beforehand in the mind of any man who may fill the presidential chair.”

Importantly, moreover, Congress can strengthen its anti-removal power by, among other things, enacting reason-giving requirements, raising cloture thresholds, and preventing presidential evasion of the Appointments Clause. Using history, real-world examples, and game theory, we demonstrate how Congress can create a level of agency independence without the use of statutory removal restrictions. We also explain why Congress’s anti-removal power has advantages over statutory removal restrictions, including a surer constitutional footing and enhanced accountability: both the president and Congress face political consequences for how they exercise their removal and anti-removal powers. Finally, we offer Congress a path forward to restore some agency independence, strengthen perceived decisional independence in agency adjudication, and limit judicial challenges to agency structures.