In the New York Times, Jed Shugerman and Ethen Leib argue that the Faithful Execution Clause allows Congress to limit the President’s ability to remove agency directors (as in the CFPB and FHFA cases now pending for cert).  But their argument has a serious flaw that even they are forced to acknowledge and largely can’t answer.

From the introduction:

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.

And from later on:

[T]he 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. …

Let’s assume they’re right about the President having a faithful execution duty.  (I think they probably are).  That does not  show that the President’s removal power can be limited to cases of (as the CFPB statute puts it) “inefficiency, neglect of duty, or malfeasance in office.”

To the contrary, the President likely may wish to remove an agency head because of a policy disagreement, or simply because the President is not comfortable working with the person.  Such removals obviously would not violate the duty of faithful execution.  They are not situations in which the President is pursuing a private interest at the expense of the public interest.  The point of the removal is to allow the President to pursue the public interest (as the President sees it) without interference from an agency head with a different view of the matter.  Yet these removals would not be allowed by the CFPB statute (or other similar statutes).  Indeed, the central point of the statutory removal limitations is to create independent agencies whose policymaking the President cannot directly control.  And that’s what makes the limitations unconstitutional — they prevent the President from fully exercising the constitutional “executive Power.”

Professors Leib and Shugarman see the problem with their argument and try to deal with it toward the end of the article:

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 leave the president with broad discretion to remove officials, retaining the Constitution’s basic unitary structure.

I don’t think this makes any progress in salvaging their argument.  First, the good cause standard clearly (not just “arguably”) goes beyond the good faith requirement.  And if one were inclined to read the two in harmony, the result would be that the President could fire the agency heads for essentially any reason apart from a purely private one.  (This argument has been made, though I regard it as amending the statute to preserve its constitutionality rather than fairly interpreting the statute).

Second, I think the supposed “general deference to Congress’s law-giving authority and judgment” in separation of powers cases is largely an invention of the authors (the link goes to a contested academic piece by Julian Mortenson that isn’t really on point).  And when the Court has deferred (as in Morrison v. Olson), it’s been wrong.  Fundamentally, separation of powers means that one power should not be allowed to encroach upon another; deferring to Congress’ encroachments is exactly the wrong way to do it.

Third, the suggestions that Congress “can animate the concept of ‘faithful execution'” or that we should “allow[ ] Congress room to be more specific or to tailor protections for particular offices” are but fancy ways of saying that Congress should be allowed to create limitations on the President’s executive power that aren’t in the Constitution.

In sum, the faithful execution limit on the President (which I endorse) is a very modest one.  It does not license Congress to shield agency heads from the President’s control and removal in situations of policy disagreement or personality clash between the President and the agency head.  Such removals are an aspect of faithful execution, not a violation of it.

(Note: I joined an academic amicus brief supporting the petition for writ of certiorari in the CFPB case.  For more discussion, see here: The Battle of the “For Cause” Directors).

NOTEThis post was originally published at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.

Michael D. Ramsey
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