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Removal as a Political Question

Aziz Z. Huq

University of Chicago - Law School

February 7, 2013

Stanford Law Review, Vol. 65, No. 1, 2013
U of Chicago, Public Law Working Paper No. 415

When should courts be responsible for designing federal administrative agencies? In Free Enterprise Fund v. Public Company Accounting Oversight Board, the Supreme Court invalidated one specific mechanism that Congress employs to insulate agencies from presidential control. Lower federal courts have discerned wider implications in the decision’s linkage of presidential power to remove agency officials with democratic accountability. Applied robustly, the Free Enterprise Fund principle casts doubt on many agencies’ organic statutes. As the judiciary starts exploring those implications, this Article evaluates the effects of judicial intervention in administrative agency design in light of recent political science work on bureaucratic behavior, historical studies of state development, and comparative analyses of other countries’ civil services. Judicial intervention in agency design, I conclude, will not generate consistent and predictable outcomes and instead risks diluting majoritarian control and fostering policy uncertainty. In light of the tenuous correlation between changes in presidential removal power and the underlying constitutional good of democratic accountability, I argue, removal power questions should be ranked as “political questions” beyond federal court competence.

Number of Pages in PDF File: 80

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Date posted: February 9, 2013  

Suggested Citation

Huq, Aziz Z., Removal as a Political Question (February 7, 2013). Stanford Law Review, Vol. 65, No. 1, 2013; U of Chicago, Public Law Working Paper No. 415. Available at SSRN: https://ssrn.com/abstract=2213585

Contact Information

Aziz Z. Huq (Contact Author)
University of Chicago - Law School ( email )
1111 E. 60th St.
Chicago, IL 60637
United States

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