Jun 05 2019
President Trump was famous for many things even before he was elected. One of those things was the catch-phrase “you’re fired,” which he popularized on his reality T.V. show, “The Apprentice.” This is a relatively commonplace phrase, but it’s not surprising 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.
That is not to say that good leaders get their way solely, or even primarily by threatening to fire the people who work for them. Effective leadership more often than not requires what are sometimes called “soft leadership skills.”
But the fact remains that the head of an organization must always have hanging in reserve – as a kind of Damoclean sword – the absolute right to terminate a subordinate. It is the ultimate and essential backstop that enforces and reifies an executive’s power to make decisions.
This is true for pretty much any leader, whether he is the CEO of a corporation, the coach of a sports team, or a general in the field of battle.
Yet, remarkably, under our laws the President of the United States lacks this authority over many high-ranking officers within the executive branch.
Despite its elemental association with executive power, Congress and the courts have time and again deprived the President of the ability to remove his subordinates at will.
These restrictions often 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 enacting laws like this, Congress has cast aside the original meaning of the Constitution, and thereby eroded a critical safeguard of American freedom.
As anyone who’s studied constitutional law can guess, my reference to the FTC’s for-cause protection is not accidental.
That statute formed the basis of the suit in Humphrey’s Executor, in which the Supreme Court held for the first time that Congress can impose restrictions on the President’s removal power.
In so holding, the Court overruled its earlier precedent in Myers v. United States, which had held that Congress cannot limit the President’s ability to remove principal officers.
But Humphrey’s Executor didn’t simply overrule Myers.
Rather, as Justice Scalia once wrote, it “gutt[ed], in six quick pages devoid of textual or historical precedent… a carefully researched and reasoned 70–page opinion.” That juxtaposition alone tells you all you need to know about those decisions. One had constitutional text and original understanding backing it up; the other was constitutional law by judicial fiat.
Article II of the Constitution unquestionably establishes a unitary executive. The Vesting Clause provides that “The executive Power shall be vested in a President of the United States of America.”
As Hamilton explained in Federalist No. 70, placing the totality of the executive power in a single individual was no mistake or happenstance. The delegates to the Constitutional Convention recognized that a unified executive was essential to ensure energy and accountability in the execution of the laws, and drafted accordingly.
Without the authority to supervise and direct his subordinates, it is impossible for the President to fulfill his duty, imposed by Article II, to “take care that the laws be faithfully executed.”
The Founders also understood that the President’s removal power was the bedrock of his authority to oversee the executive branch. 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.”
He went on to note that “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, and the President on the community.”
Madison’s argument prevailed and the First Congress declined – on constitutional grounds – to create for-cause removal protections for the heads of the newly established executive departments. That was the original understanding of the removal power, and it predominated for nearly 150 years after the Founding.
Since Humphrey’s Executor’s radical departure from the original understanding in 1935, 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, and is therefore unaccountable to the People.
By some estimations, there are over 80 independent agencies within the executive branch. They are entrusted with regulating immense swaths of American life – from competition policy and workplace safety to labor relations and securities law. They make rules; adjudicate rights; and enforce laws.
The potential for abuse is tremendous; the inconsistency with the republican principles this country was founded on, obvious.
In their fight against British tyranny, the Patriots of the American Revolution rallied behind the principle of “No Taxation without Representation.” Today, we are faced with a different threat to freedom.
As Chief Justice Roberts wrote in a case a few years ago, “The growth of the Executive Branch, which now wields vast power and touches almost every aspect of daily life, heightens the concern that it may slip from the Executive's control, and thus from that of the people.”
This concern is further compounded by the existence of independent agencies that are, by law, divorced from presidential control.
As a result, in this new fight against tyranny, our watchword must be “No Regulation without Representation.”
That’s why I have spearheaded the Article One Project, and supported legislation, such as the REINS Act and the Separation of Powers Restoration Act, that would bring the federal regulatory apparatus to heel.
But more is needed. We need to not only reform Congress’s relationship with the administrative state, but the President’s as well.
To that end, I am introducing new legislation called the Take Care Act.
The 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.
Importantly, the Take Care Act would not cause the work of administrative agencies to become subject to the arbitrary whims of a President. 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.
All the bill would do is rescind and limit unconstitutional restrictions on the President’s removal power. And while it may be more convenient to limit this power by statute, “convenience and efficiency are not the primary objectives—or the hallmarks—of democratic government,” as the Supreme Court has repeatedly reminded us.
Another famous catch-phrase popularized by an American president is “the buck stops here,” which President Truman displayed on a placard on his desk in the Oval Office.
What it means is that the President is the final decision maker within the executive branch, and bears the sole and ultimate responsibility for executing the laws.
In order to fulfill that responsibility, the President must have plenary power to direct his subordinates in how they carry out their assigned tasks and, if necessary, to fire them.
That’s what the Constitution and, indeed, common sense require. By restoring the original understanding of the removal power, the Take Care Act gives the President this authority.
I yield the floor.