Presidential Removal as Article I, Not Article II

Abstract

Article I’s Necessary and Proper Clause is the starting point for both Congress’s power to create offices and the limits on that power: for “carrying into Execution” the powers in Article I – vested “in any Department or Officer thereof,” so long as the ends are necessary and the means are proper.

This interpretation resolves the current all-or-nothing debate: that either Article II implies unconditional presidential removal, or if it does not, then Congress has unlimited power to insulate offices.

As a matter of original public meaning, Article II did not imply an indefeasible (unconditional) presidential removal power. By contrast, Article I’s Necessary and Proper Clause is a more balanced basis for limiting Congress’s power over presidential removal with more historical support. Tenure protections and agency structures must be necessary and proper for executing federal power, meaning that they must be suitable means for pursuing proper ends. The debates and statutes in the First Congress reflect an analysis of means and ends in creating a small number of independent offices often related to debt and the public fisc.

It may seem like this analysis resembles a functional checks-and-balances or a hybrid Article I/Article II approach. However, this Article I analysis is fundamentally about Article I text, history, doctrine: The substantive analysis of “properness” under Article I would combine the costs and benefits of presidential control along with many other factors; and judges are traditionally more deferential to Article I legislative policy choices, relative to Article II separation-of-powers questions. We identify an Anglo-American history of granting more independence to offices related to the fisc, debt, and treasury— the “power of the purse,” arguably the most traditional legislative power.  This text-based and historical-based interpretation of legislative powers redeems Humphrey’s Executor’s intuitions about agency independence, while offering an alternative to Humphrey’s confusing and fuzzy term “quasi-legislative.”

With complex questions about the Federal Reserve looming, a stretching of Article II would lead to a series of judicial problems and interventions. The Necessary and Proper Clause is a stronger originalist basis than is an expansive reading of Article II to replace Humphrey’s Executor, to allow for some tenure provisions for agencies such as the FTC and the Federal Reserve, and to place modest but meaningful limits on Congress’s ability to structure the executive department.