Issue in Focus
Jun 07 2019
Before he was elected, President Trump was famous for the catch-phrase “you’re fired,” which he popularized on his reality T.V. show “The Apprentice.” And it’s no surprise that it would have so much appeal for a television audience.
It carries a certain power and resonance because the person who has the authority to use it within an organization is, generally speaking, the person who gets to call the shots. It is emblematic of executive control and the ability to get things done. It is the ultimate and essential backstop that enforces and reifies an executive’s power to make decisions.
The Founders placed the totality of executive power in a single individual – establishing a unitary executive, the President, in Article II of the Constitution – precisely because they knew that a unified executive was essential to ensure energy and accountability in the execution of the laws.
And they also understood that the bedrock of the President’s authority to see oversee the executive branch was his removal power.
In a famous debate in the First Congress, James Madison argued that “if any power whatsoever is in its nature Executive, it is the power of appointing, overseeing, and controlling those who execute the laws… If the President should possess alone the power of removal from office, those who are employed in the execution of the law will be in their proper situation, and the chain of dependence be preserved; [they] will depend, as they ought, on the President, on the community.”
However, over the years, Congress and the courts have deprived the President of the ability to remove his subordinates at will. So today, the President of the United States lacks this essential authority over many high-ranking officers within the Executive branch.
Many of these restrictions take the form of statutory “for-cause removal protections,” such as the provision of the Federal Trade Commission Act that provides that commissioners can be removed only “for inefficiency, neglect of duty, or malfeasance in office.”
In fact, this statute formed the basis of the suit in Humphrey’s Executor, a Supreme Court case that in 1935 held for the first time that Congress can impose restrictions on the President’s removal power, overturning years of constitutional precedent.
Since then, for-cause removal protections – both statutory and otherwise – have proliferated, giving rise to a vast, headless fourth branch of government that exists beyond the control of the President.
There are now more than 80 independent agencies in the executive branch, entrusted with regulating vast swaths of American life – from competition policy and workplace safety to labor relations and securities law. These unelected bureaucrats make rules, adjudicate rights, and enforce laws – all without being held accountable by the President, and therefore by the American people who elect him.
In other words, we today have “regulation without representation.”
That’s why this week, I introduced the Take Care Act. This bill would restore the unitary executive envisioned by the Founders by stripping away all existing for-cause removal protections from the independent agencies. It would also limit Congress’s ability to create for-cause protections by implication in the future and take other critical steps to fortify the President’s directive authority.
Simply put, the Take Care Act would eliminate the headless fourth branch of government, empower the President to ensure faithful execution of the law, and make the bureaucracy accountable again.
The bill would not cause the work of administrative agencies to become subject to the arbitrary whims of the President, however. Political constraints – including the Senate’s advise and consent role – would ensure, as they do now, that executive officers can fulfill their congressionally assigned duties without undue interference.
But it would rescind and limit the unconstitutional restrictions on the President’s removal power. And by restoring the President’s ability to be the final decision maker within the executive branch – and ensuring his ultimate responsibility for executing the laws – we will restore a critical safeguard of freedom for the American people.