Aaron Nielson & Christopher Walker: The Early Years of Congress's Anti-Removal PowerMichael Ramsey

Aaron L. Nielson (Brigham Young University - J. Reuben Clark Law School) & Christopher J. Walker (University of Michigan Law School) have posted The Early Years of Congress's Anti-Removal Power (American Journal of Legal History, forthcoming) on SSRN.  Here is the abstract:

Judges and scholars have long debated whether the Constitution provides the President with a power to remove executive officials. The Constitution, however, undoubtedly gives Congress tools to discourage the President’s use of such power. Perhaps most notably, the Appointments Clause makes it more difficult for the President to remove principal officers—even those whose views are out of the step with the President’s—because the President cannot know whether the Senate will consent to a preferred replacement. This is an example of what we dub Congress’s anti-removal power: Even if the President can remove, a motivated Congress can discourage the President’s use of that power.

In Congress’s Anti-Removal Power, we use game theory to show why anti-removal tools are effective—viz., they increase the costs of presidential removal, resulting in less of it—and argue that such tools have been a longstanding feature of interbranch relations. In this Essay, we focus on the founding era to argue that Congress’s anti-removal power not only comports with the Constitution’s language, but also is a deliberate feature of the constitutional bargain. Not only did James Madison and Alexander Hamilton bless anti-removal tools, but early Congresses enacted statutes that discouraged removal. While the question of presidential removal attracted debate in the first Congress, the same does not appear to be true for these anti-removal features. We thus conclude—in the spirit of dogs that do not bark—that Congress’s use of its anti-removal power finds support in both the Constitution’s text and founding era thought and practice.