Is the Removal Power part of the “Unwritten” Constitution?

May 13th, 2017

I always enjoy reading Garrett Epps’s columns. Whether I agree with him or not, his prose is among the best of SCOTUS columnists. Much to my delight, I was the subject of his recent column. Garrett wrote (regarding the argument that Garland should be appointed as FBI Director):

There’s something to this argument, but it would come with ill grace from those who last year proclaimed that the Senate had no duty to consider Garland’s nomination to the Supreme Court during the nine months it was pending. It’s not written that the Senate has to, the argument ran, so nonny-nonny-boo-boo.This argument represents what I call the “minimal Constitution”—if the document doesn’t say “pinky swear no kidding” then it doesn’t forbid something. Minimalism has surfaced again in the wake of the firing of James Comey as FBI director.  The ever-provocative libertarian professor and blogger Josh Blackman, a leading advocate of the “no duty” position, this week left no room for doubtabout Trump: “Under the Constitution, the president has the absolute power to fire principal officers, such as Director Comey, at will. In that sense, Trump’s actions were entirely constitutional.”

Does the Constitution actually give the president the “absolute power to fire principal officers”? Where, exactly? In point of fact, the text is silent on the power to remove officers. That issue provoked the very first major constitutional dispute during the First Congress, with members—including some of the Framers—split among three positions. Some said the silence meant that executive officials, once confirmed, would serve for life; some said that they could not be removed without Senate consent; and some (including James Madison) said that the president had to have the entire removal power because otherwise the whole thing wouldn’t work. The issue resurfaced over and over—in fact, President Andrew Johnson was impeached because he removed the secretary of war in defiance of a statute. It was aired most recently in a 1988 case, Morrison v. Olson, about the constitutionality of the “independent counsel” statute.

So Trump did have the authority to fire Comey—under the unwritten Constitution, the same “document” that suggests to me that the Senate has the duty to consider presidential nominations. Of course, the unwritten Constitution also might also provide that a president really doesn’t have “absolute power” to fire a law enforcement official if his purpose is to block an investigation, and that obstructing justice may not be “entirely constitutional.”“Absolute” is a bit elusive when we’re dealing with unwritten rules.

Minimal constitutionalists like to have it both ways.

This is certainly the first time anyone has ever called me a “minimal constitutionalist.” I’ll stick with “originalist.”Every year, I teach my students about the so-called “Decision of 1789.” For a full summary, read Chief Justice Taft’s magisterial opinion in Myers v. United States. I will provide a brief summary here.

In one of the first acts of congress, proposed by no other than James Madison, the House created the executive departments of Foreign Affairs. Most importantly, the bill stated that the Secretary is “to be removable from office by the President of the United States.” That is, the Secretary could be removed, at will. However, as Representative Benson noted during a subsequent debate, the inclusion of that clause suggests that in other statutes, where it is excluded, the President lacks such powers. That is, the President can only remove officers at will when Congress gives him the permission to do so. Voting on this provision, Benson said, would crystalize this position as “fixed by a fair legislative construction of the Constitution.”

James Madison agreed, and seconded Benson’s objection, stating that “Gentlemen have all along proceeded on the idea that the Constitution vests the [removal] power in the President.” Benson’s amendment was approved by a vote of 31-19. Chief Justice Taft explained that this vote was “a legislative declaration that the power to remove officers appointed by the President and the Senate vested in the President alone, and until the Johnson Impeachment trial in 1868, its meaning was not doubted even by those who questioned its soundness.” Taft even noted that six of the eight representatives who attended the constitutional convention had supported Benson’s amendment. Alas, the Senate held their proceedings in secret, so we know nothing about the deliberations, other than that the vote split 10 to 10, with Vice President Adams casting the tie-breaking ballot to adopt the Benson amendment. Six of the ten Senators who attended the Constitutional Convention were in the majority. President Washington signed the bill.

For an imagination of what that debate could have looked like, watch this clip from the John Adams miniseries.

Putting aside this important history, the removal power is not merely a byproduct of unwritten norms. One of the most important provisions of Article II serves as the bedrock of the removal power–a provision which I’ve written about at great length, and suddenly received a shot of academic adrenaline on the evening of November 8, 2017: the Take Care clause. Chief Justice Taft explains:

Mr. Madison and his associates in the discussion in the House dwelt at length upon the necessity there was for construing Article II to give the President the sole power of removal in his responsibility for the conduct of the executive branch, and enforced this by emphasizing his duty expressly declared in the third section of the Article to “take care that the laws be faithfully executed.” Madison, 1 Annals of Congress, 496, 497.

The vesting of the executive power in the President was essentially a grant of the power to execute the laws. But the President alone and unaided could not execute the laws. He must execute them by the assistance of subordinates. This view has since been repeatedly affirmed by this Court. Wilcox v. Jackson, 13 Peters 498, 513; United States v. Eliason, 16 Peters 291, 302; Williams v. United States, 1 How. 290, 297; Cunningham v. Neagle, 135 U.S. 1, 63; Russell Co. v. United States, 261 U.S. 514, 523. As he is charged specifically to take care that they be faithfully executed, the reasonable implication, even in the absence of express words, was that as part of his executive power he should select those who were to act for him under his direction in the execution of the laws. The further implication must be, in the absence of any express limitation respecting removals, that as his selection of administrative officers is essential to the execution of the laws by him, so must be his power of removing those for whom he can not continue to be responsible. Fisher Ames, 1 Annals of Congress, 474. It was urged that the natural meaning of the term “executive power” granted the President included the appointment and removal of executive subordinates. If such appointments and removals were not an exercise of the executive power, what were they? They certainly 118*118 were not the exercise of legislative or judicial power in government as usually understood.

And were the Take Care Clause not enough by itself, the unbroken practice–until the impeachment of Andrew Johnson (an actual constitutional crisis)–was that the President had the unfettered power to remove officers by virtue of Article II.

Taft further notes that Madison made another textual argument–that the power to remove is incidental to the power to appoint.

Second. The view of Mr. Madison and his associates was that not only did the grant of executive power to the President in the first section of Article II carry with it the power of removal, but the express recognition of the power of appointment in the second section enforced this view on the well approved principle of constitutional and statutory construction that the power of removal of executive officers was incident to the power of appointment. It was agreed by the opponents of the bill, with only one or two exceptions, that as a constitutional principle the power of appointment carried with it the power of removal. Roger Sherman, 1 Annals of Congress, 491. This principle as a rule of constitutional and statutory construction, then generally conceded, has been recognized ever since. Ex parte Hennen, 13 Peters 230, 259; Reagan v. United States, 182 U.S. 419; Shurtleff v. United States, 189 U.S. 311, 315. The reason for the principle is that those in charge of and responsible for administering functions of government who select their executive subordinates need in meeting their responsibility to have the power to remove those whom they appoint.

Were the President saddled with principal officers who refused to resign, which frustrated his oath of office, he could not faithfully executive the laws. Madison added that holdover officers may even be disloyal:

Mr. Madison and his associates pointed out with great force the unreasonable character of the view that the Convention intended, without express provision, to give to Congress or the Senate, in case of political or other differences, the means of thwarting the Executive in the exercise of his great powers and in the bearing of his great responsibility, by fastening upon him, as subordinate executive officers, men who by their inefficient service under him, by their lack of loyalty to the service, or by their different views of policy, might make his taking care that the laws be faithfully executed most difficult or impossible.

Taft makes a third point, which I always find especially compelling: when the Senate confirms an officers, they are matching the officer to the nominating President. But when a holdover officer refuses to resign, the nature of the advice and consent no longer fits.

The power to prevent the removal of an officer who has served under the President is different from the authority to consent to or reject his appointment. When a nomination is made, it may be presumed that the Senate is, or may become, as well advised as to the fitness of the nominee 122*122 as the President, but in the nature of things the defects in ability or intelligence or loyalty in the administration of the laws of one who has served as an officer under the President, are facts as to which the President, or his trusted subordinates, must be better informed than the Senate, and the power to remove him may, therefore, be regarded as confined, for very sound and practical reasons, to the governmental authority which has administrative control. The power of removal is incident to the power of appointment, not to the power of advising and consenting to appointment, and when the grant of the executive power is enforced by the express mandate to take care that the laws be faithfully executed, it emphasizes the necessity for including within the executive power as conferred the exclusive power of removal.

Epps is correct, insofar as the removal power is, to quote CJ Taft, a “reasonable implication, even in the absence of express words,” from the Take Care Clause. But in no sense can this 200-year-old precedent from the time of the founding be deemed to have the same level of unwritteness as a heretofore-unknown constitutional duty to vote on the President’s Supreme Court nominees. For example, in 1844, after the death of Justice Baldwin, the Whig-controlled senate kept the seat open for 841 days out of their opposition to President Tyler. Did they vote the nominee down? Of course not. They simply took no action.

There are countless examples of constitutional rights and obligations being fashioned from an unwritten Constitution–emanations and penumbras?–but the removal power has a deeply-rooted history stretching to the Decision of 1789, and a Gibraltar-like textual anchor of the Take Care clause.