Max_S
October 23, 2019, 4:19pm
24
I recently did some research on this area of constitutional law, for The Trump Inquiry thread:
The President “shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.” U.S. Const. art. II, § 3.
The President has a personal responsibility to see that the Laws are faithfully executed. If he has not the power to remove insubordinate officers, how can he fulfil his duty? The reasonable inference is that “in the absence of any express limitation respecting removals, that as [the president’s] 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.” Myers v. United States, 272 U.S. 52 (1926), citing Fisher Ames, 1 Annals of Congress, 474.
But the President is not without limits. He is not at liberty to remove officials who exercise what are essentially legislative or judicial powers, as opposed to executive powers. Humphrey’s Executor v. United States, 295 U.S. 602 (1935). (Holding that a member of the Federal Trade Commission is not subject to the President’s removal power except as specified by statute, because the FTC exercises quasi-legislative powers). See also Weiner v. United States, 357 U.S. 349 (1958). (Holding that the President may not remove quasi-judicial officers from the War Claims Commission except as specified by statute).
But what if Congress creates an office charged with executing the law? Can Congress deny the President the power to remove officials that execute the law? The Supreme Court has explicitly answered that question in the negative. “Congress cannot reserve for itself the power of removal of an officer charged with the execution of the laws except by impeachment.” Bowsher v. Synar, 478 U.S. 714 (1986).
The most recent and most relevant case on removal power is Morrison v. Olson, 487 U.S. 654 (1988). There the Court held that “the real question is whether the removal restrictions are of such a nature that they impede on the President’s ability to perform his constitutional duty [to take care that the laws are faithfully executed], and the functions of the officials in question must be analyzed in that light”. After considering the temporary nature of the office, its limited jurisdiction, and its oversight purpose, the Court ruled that the President through the Attorney General cannot remove the independent counsel but for cause, as statute specifies.
It would appear that Congress added the CFPB Director’s removal restriction to comply with Bowsher . In my opinion Morrison should control the current case.
The lower opinions are available on the Supreme Court’s server at https://www.supremecourt.gov/DocketPDF/19/19-7/104482/20190628140649752_18-_PetitionAppendix.pdf .
The district court’s opinion rests heavily on its earlier opinions in CFPB v. Future Income Payments , 2017 WL 2190069, available at https://www.courtlistener.com/recap/gov.uscourts.cacd.670869/gov.uscourts.cacd.670869.47.0.pdf (at p. 11), and CFPB v. Morgan Drexen, Inc , 60 F. Supp. 3d 1082 (C.D. Cal. 2014), available at eg: https://www.courtlistener.com/recap/gov.uscourts.cacd.569569.40.0.pdf (at p. 5)
ETA: From Morgan Drexen :
It is no more difficult for the President to assure that the Director of the CFPB is “competently performing his or her statutory responsibilities,” id . at 692, than it was for the President to oversee the leadership of the FTC at the time of Humphrey’s Executor . In fact, if the President had needed to fully revamp the leadership of the FTC at that time, he would have been required to affect five separate for cause removals, while only one is required in order to change the leadership of the CFPB.
~Max