The Constitution is silent about the President’s power to remove officers of the United States. That issue has split the Court in a series of barely-reconcilable precedents stemming from Myers v. United States to Humphrey Executor v. United States to Morrison v. Olson. In short, the President can unilaterally remove certain principle officers involved in purely executive functions, but for other officers (independent agencies and independent counsel), congress can place strings on their removal.
Though, all of these cases involved fairly mundane situations. Myers was a postmaster of the third class that President Wilson tried to remove. Humphrey was a commissioner of the FTC that FDR wanted to replace for policy differences. Alexia Morrison was an independent counsel poking around about whether Ted Olson (in case you forgot he used to be a Republican) lied to Congress regarding some environmental programs relating to the Superfund. Whatever. None of these cases would make or break the country.
But the biggest removal cases, that *didn’t* go to the Supreme Court, almost led to the impeachment and removal of three Presidents.
First, Andrew Johnson started to remove many of the officials that President Lincoln had appointed to lead Reconstruction. Congress passed the Tenure of Office Act that required the Senate’s consent to remove officers. Johnson refused, and said the law was unconstitutional. What happened? Did Congress seek relief in Court? No. They moved to impeach. And refusal to comply with this law was one of the grounds for impeachment of Johnson. The House voted to impeach. As history relates, Johnson was saved by *one* vote in the Senate from removal. A President was almost removed because of the removal power.
Second, Richard Nixon wanted to fire special prosecutor Archibald Cox who was poking too close to home. This led to the infamous Saturday Night Massacre. Nixon ordered his AG Elliot Richardson to fire Cox. He refused, and resigned. Then Nixon ordered Deputy AG William Ruckelshaus to fire Cox. He also refused, and resigned. Finally Nixon got Solicitor General Bob Bork to terminate Cox. But the damage was already done. This event accelerated the downfall of Nixon’s administration,and facing almost-certain impeachment, he resigned. As an aside, in his dissent in Morrison v. Olson dissent, Justice Scalia argues that an independent counsel is not necessary because the President who tries to remove a special prosecutor will take a political hit.
Under our system of government, the primary check against prosecutorial abuse is a political one. The prosecutors who exercise this awesome discretion are selected, and can be removed, by a President whom the people have trusted enough to elect. Moreover, when crimes are not investigated and prosecuted fairly, nonselectively, with a reasonable sense of proportion, the President pays the cost in political damage to his administration.
The Saturday Night Massacre would seem to support this.
Third, Bill Clinton was impeached based on the investigations of Independent Counsel Ken Starr. Investigations that began on Whitewater led to Clinton’s behavior with Monica Lewinsky. If Morrison v. Olson had not been decided earlier, you can be sure that Clinton would have challenged the constitutionality of the Independent Counsel. As another aside, I wonder if by the time of Ken Starr, the Rehnquist Court would have been more amenable to the separation of powers arguments Scalia raised. I think if the same case was argued today, it would come out totally the other direction.
So remarkably, the removal power has led (almost) to the downfall of three presidencies.