Removal Permissions and the Forgotten Tenure of a Term of Years
98 Pages Posted:
Date Written: January 15, 2020
Under what circumstances can the President remove the head of an independent agency? Does the Constitution place a limit on an agency’s independence and if so, what is it? Generations of settled law may be unsettled this term when the Supreme Court faces these questions in a lawsuit challenging the constitutionality of the Consumer Financial Protection Bureau (CFPB). The CFPB’s enabling statute, like the enabling statutes of over a dozen other agencies, authorizes the President to remove the CFPB’s Director for inefficiency, neglect of duty, or malfeasance in office (INM). But Presidents have respected the independence of officials like the CFPB Director for so long that there is little awareness today of what these terms mean or what sort of relationship they create between the President and the officials she can remove on these grounds. This Article addresses that gap. It resurrects the lost history of removal law and defines INM. It shows that neglect of duty and malfeasance in office are common law terms relating to faithful execution that date back hundreds of years and that inefficiency is a nineteenth century concept having to do with government waste and ineptitude. It further shows that INM provisions are not removal “protections” as they have come to be interpreted in recent years, but removal permissions. Where present, they expand the President’s power by authorizing her to remove officials who are tenured for a term-of-years, a tenure long understood to bar removal—for any reason—by the President in the middle of an officer’s term. Three conclusions follow. First, INM was not written to empower the President to direct agency actions. Independent agency heads really were meant to exercise their discretionary authority independently. Second, even under an expansive reading of Article II, “for cause” removal provisions do not conflict with the Constitution’s Take Care Clause. INM permits the President to combat “unfaithful execution” by empowering her to remove officials for neglect of duty and malfeasance in office. Third, courts have erred by regularly reading INM into enabling statutes that are silent on removal. In most cases, where such statutes create offices “for years” without further qualification, they presumptively prohibit removal—whether summarily or for cause.
Keywords: Administrative Law, Constitutional Law, Independent Agencies, Removal Law, Legal History, Legal Theory
JEL Classification: K10
Suggested Citation: Suggested Citation