The Supreme Court’s 2019-20 term started on Monday, but one of the biggest cases, on expanding presidential power, isn’t on the docket — yet. It will probably be soon, though, because President Trump’s Justice Department and other plaintiffs took remarkable steps in September to get the Supreme Court to take cases presenting the issue squarely about the reach of the president’s firing authority over independent agency heads, and Justice Brett Kavanaugh invited these audacious challenges to settled precedents when he was on the appellate court in Washington.
First, the Department of Justice asked the court to strike down the job security protections for the head of the Consumer Financial Protection Bureau, which was Senator Elizabeth Warren’s brainchild. Such restrictions on a president’s removal power, the argument goes, violate the separation of powers. Afterward, Fannie Mae and Freddie Mac shareholders filed a surprising petition making a similar argument about the Federal Housing Finance Agency.
But these arguments overlook an important constitutional text that applies to the president’s powers: the duty of “faithful execution.” That obligation already limits presidential discretion, and it gives Congress the power to apply “good faith” or “good cause” limits on the president’s removal authority.
The version of the “unitary executive” put forth by Mr. Trump, the Justice Department and the shareholders would open the door for a president to fire for any reason — even personal reasons unrelated to the public interest or even for no reason at all — any head of an administrative agency, including the heads of “independent agencies” like the Consumer Financial Protection Bureau as well as the Federal Reserve, the Federal Trade Commission and the Nuclear Regulatory Commission. (These agency heads are nominated by the president and confirmed by the Senate.)
The documented enthusiasm of conservative justices on the Supreme Court for reining in the administrative state has a real chance of upending an arrangement put in place by the Supreme Court in 1935 about the constitutional viability of these agencies. They have been vital to promoting expertise, protecting bipartisan oversight and regulating a modern economy without overstretching presidential power.
When Congress created the Consumer Financial Protection Bureau, it included a modest limit on the president’s removal authority: “The president may remove the director for inefficiency, neglect of duty, or malfeasance in office.” For over 130 years, this has been roughly the formula Congress has used to protect the heads of independent agencies within the executive branch from politics, partisanship or personal caprice.
The justices most interested in invalidating presidential removal restrictions and increasing presidential power are also, paradoxically, those most interested in textual and historical faithfulness to the original Constitution. Although the framers of the Constitution never directly addressed the question of removal authority in the text or in the drafting or ratification debates, the proponents of the view that all agency heads serve at the pleasure of the president cite the clause in Article II that requires of the president that he “shall take care” of executing laws.
However, they ignore a crucial modifier in Article II and its history: “The president shall take care that the laws be faithfully executed.” The president also takes an oath to “faithfully execute the Office of President.” These clauses require good faith in executing presidential powers. The position that the president must have a completely unconstrained ability to say “you’re fired” to any agency head is wrong as a matter of the original public meaning of the Constitution.
The word “faithfully” is a signal that the framers wanted to limit the exercise of presidential powers to “good faith” reasons, bona fide purposes and fidelity to the public interest. That signal is supported by six centuries of history leading up to the framers’ choice to add this duty in the Constitution, which supplies evidence about the scope of executive removal authority.
Faithful execution had a distinctive meaning in Anglo-American law at the time of the founding: It limited executive officers to acting only in the public interest and never for their own personal interest; it required subordination to law (which was most often legislation); and it mandated honest and diligent performance. Together, this cluster of duties constrains the president with something similar to fiduciary duties.
The “faithful execution” clause thus indicates that the president is already bound to remove someone only for good-faith reasons, in the public interest. So it must be constitutional for Congress to say out loud in a statute what is already commanded by the Constitution: Removal authority must be constrained because a president is never allowed to fire officers in bad faith.
The argument for unconstrained removal authority also relies on a series of arguments James Madison made not in the Constitutional Convention or in the Federalist Papers but in 1789, after the adoption of the Constitution, in the House of Representatives. Madison was most focused on showing that removal had to inhere in the executive rather than being subject to Senate consent or the impeachment process. A modest constraint on removal that is already required by the faithful execution clauses still can vindicate Madison’s preference to give the president the right to be the one to fire agency heads.
One might argue that “inefficiency, neglect of duty, or malfeasance in office” arguably goes beyond a constitutional good-faith requirement. A policy disagreement might be the basis of good-faith removal, but is it sufficient to meet the statutory terms of “inefficiency” or “neglect”?
Congress sometimes is permitted to draw the bounds of “faithfulness” more specifically. First, the history of “faithful execution” and other parts of Article II indicate general deference to Congress’s law-giving authority and judgment. Within reasonable limits, Congress can animate the concept of “faithful execution” as a limit on a president’s removal discretion. Second, everyone knows “good faith” is vague; allowing Congress room to be more specific or to tailor protections for particular offices is not a remarkable exception. Congress should have latitude to specify that “faithful execution” in some agencies dealing with especially sensitive matters or special expertise may require extra insulation, even from removal for policy disagreements, to guard against self-interested presidential pressure and manipulation. Third, the limits Congress creates for independent agencies still leaves the president with broad discretion to remove officials, retaining the Constitution’s basic unitary structure.
Some self-professed textualists and originalists suggest that the Constitution requires a president to have unlimited discretion over removal. But the text on which they rely shows the opposite: The Constitution’s “faithful execution” clauses impose a duty of good faith. For generations, Congress has simply articulated a version of how that duty constrains the president’s power to fire a special set of agency heads.
The political and practical stakes are enormous not just for the Trump era, but for whether presidential power can be exercised only in good faith. That bedrock principle of good faith — which was true at the founding and binds the president in all of his actions — remains essential to good government and to an independent and professional administrative state.
Jed Handelsman Shugerman (@jedshug) and Ethan J. Leib are law professors at Fordham.
The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: [email protected].
Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram.
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Home » Analysis & Comment » Opinion | Will the Supreme Court Hand Trump Even More Power?
Opinion | Will the Supreme Court Hand Trump Even More Power?
The Supreme Court’s 2019-20 term started on Monday, but one of the biggest cases, on expanding presidential power, isn’t on the docket — yet. It will probably be soon, though, because President Trump’s Justice Department and other plaintiffs took remarkable steps in September to get the Supreme Court to take cases presenting the issue squarely about the reach of the president’s firing authority over independent agency heads, and Justice Brett Kavanaugh invited these audacious challenges to settled precedents when he was on the appellate court in Washington.
First, the Department of Justice asked the court to strike down the job security protections for the head of the Consumer Financial Protection Bureau, which was Senator Elizabeth Warren’s brainchild. Such restrictions on a president’s removal power, the argument goes, violate the separation of powers. Afterward, Fannie Mae and Freddie Mac shareholders filed a surprising petition making a similar argument about the Federal Housing Finance Agency.
But these arguments overlook an important constitutional text that applies to the president’s powers: the duty of “faithful execution.” That obligation already limits presidential discretion, and it gives Congress the power to apply “good faith” or “good cause” limits on the president’s removal authority.
The version of the “unitary executive” put forth by Mr. Trump, the Justice Department and the shareholders would open the door for a president to fire for any reason — even personal reasons unrelated to the public interest or even for no reason at all — any head of an administrative agency, including the heads of “independent agencies” like the Consumer Financial Protection Bureau as well as the Federal Reserve, the Federal Trade Commission and the Nuclear Regulatory Commission. (These agency heads are nominated by the president and confirmed by the Senate.)
The documented enthusiasm of conservative justices on the Supreme Court for reining in the administrative state has a real chance of upending an arrangement put in place by the Supreme Court in 1935 about the constitutional viability of these agencies. They have been vital to promoting expertise, protecting bipartisan oversight and regulating a modern economy without overstretching presidential power.
When Congress created the Consumer Financial Protection Bureau, it included a modest limit on the president’s removal authority: “The president may remove the director for inefficiency, neglect of duty, or malfeasance in office.” For over 130 years, this has been roughly the formula Congress has used to protect the heads of independent agencies within the executive branch from politics, partisanship or personal caprice.
The justices most interested in invalidating presidential removal restrictions and increasing presidential power are also, paradoxically, those most interested in textual and historical faithfulness to the original Constitution. Although the framers of the Constitution never directly addressed the question of removal authority in the text or in the drafting or ratification debates, the proponents of the view that all agency heads serve at the pleasure of the president cite the clause in Article II that requires of the president that he “shall take care” of executing laws.
However, they ignore a crucial modifier in Article II and its history: “The president shall take care that the laws be faithfully executed.” The president also takes an oath to “faithfully execute the Office of President.” These clauses require good faith in executing presidential powers. The position that the president must have a completely unconstrained ability to say “you’re fired” to any agency head is wrong as a matter of the original public meaning of the Constitution.
The word “faithfully” is a signal that the framers wanted to limit the exercise of presidential powers to “good faith” reasons, bona fide purposes and fidelity to the public interest. That signal is supported by six centuries of history leading up to the framers’ choice to add this duty in the Constitution, which supplies evidence about the scope of executive removal authority.
Faithful execution had a distinctive meaning in Anglo-American law at the time of the founding: It limited executive officers to acting only in the public interest and never for their own personal interest; it required subordination to law (which was most often legislation); and it mandated honest and diligent performance. Together, this cluster of duties constrains the president with something similar to fiduciary duties.
The “faithful execution” clause thus indicates that the president is already bound to remove someone only for good-faith reasons, in the public interest. So it must be constitutional for Congress to say out loud in a statute what is already commanded by the Constitution: Removal authority must be constrained because a president is never allowed to fire officers in bad faith.
The argument for unconstrained removal authority also relies on a series of arguments James Madison made not in the Constitutional Convention or in the Federalist Papers but in 1789, after the adoption of the Constitution, in the House of Representatives. Madison was most focused on showing that removal had to inhere in the executive rather than being subject to Senate consent or the impeachment process. A modest constraint on removal that is already required by the faithful execution clauses still can vindicate Madison’s preference to give the president the right to be the one to fire agency heads.
One might argue that “inefficiency, neglect of duty, or malfeasance in office” arguably goes beyond a constitutional good-faith requirement. A policy disagreement might be the basis of good-faith removal, but is it sufficient to meet the statutory terms of “inefficiency” or “neglect”?
Congress sometimes is permitted to draw the bounds of “faithfulness” more specifically. First, the history of “faithful execution” and other parts of Article II indicate general deference to Congress’s law-giving authority and judgment. Within reasonable limits, Congress can animate the concept of “faithful execution” as a limit on a president’s removal discretion. Second, everyone knows “good faith” is vague; allowing Congress room to be more specific or to tailor protections for particular offices is not a remarkable exception. Congress should have latitude to specify that “faithful execution” in some agencies dealing with especially sensitive matters or special expertise may require extra insulation, even from removal for policy disagreements, to guard against self-interested presidential pressure and manipulation. Third, the limits Congress creates for independent agencies still leaves the president with broad discretion to remove officials, retaining the Constitution’s basic unitary structure.
Some self-professed textualists and originalists suggest that the Constitution requires a president to have unlimited discretion over removal. But the text on which they rely shows the opposite: The Constitution’s “faithful execution” clauses impose a duty of good faith. For generations, Congress has simply articulated a version of how that duty constrains the president’s power to fire a special set of agency heads.
The political and practical stakes are enormous not just for the Trump era, but for whether presidential power can be exercised only in good faith. That bedrock principle of good faith — which was true at the founding and binds the president in all of his actions — remains essential to good government and to an independent and professional administrative state.
Jed Handelsman Shugerman (@jedshug) and Ethan J. Leib are law professors at Fordham.
The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: [email protected].
Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram.
Source: Read Full Article