The Early Years of Congress's Anti-Removal Power

American Journal of Legal History, Vol. 62, pp. 219-228, 2023

U of Michigan Public Law Research Paper No. 23-017

BYU Law Research Paper No. 23-05

14 Pages Posted: 16 Feb 2023 Last revised: 6 Feb 2024

See all articles by Aaron L. Nielson

Aaron L. Nielson

Brigham Young University - J. Reuben Clark Law School

Christopher J. Walker

University of Michigan Law School

Date Written: February 16, 2023

Abstract

Judges and scholars have long debated whether the Constitution provides the President with a power to remove executive officials. The Constitution, however, undoubtedly gives Congress tools to discourage the President’s use of such power. Perhaps most notably, the Appointments Clause makes it more difficult for the President to remove principal officers—even those whose views are out of the step with the President’s—because the President cannot know whether the Senate will consent to a preferred replacement. This is an example of what we dub Congress’s anti-removal power: Even if the President can remove, a motivated Congress can discourage the President’s use of that power.

In Congress’s Anti-Removal Power, we use game theory to show why anti-removal tools are effective—viz., they increase the costs of presidential removal, resulting in less of it—and argue that such tools have been a longstanding feature of interbranch relations. In this Essay, we focus on the founding era to argue that Congress’s anti-removal power not only comports with the Constitution’s language, but also is a deliberate feature of the constitutional bargain. Not only did James Madison and Alexander Hamilton bless anti-removal tools, but early Congresses enacted statutes that discouraged removal. While the question of presidential removal attracted debate in the first Congress, the same does not appear to be true for these anti-removal features. We thus conclude—in the spirit of dogs that do not bark—that Congress’s use of its anti-removal power finds support in both the Constitution’s text and founding era thought and practice.

The version on SSRN is a pre-publication draft. The final version of the article is available at: https://academic.oup.com/ajlh/article-abstract/63/3/219/7597795.

Keywords: administrative law, independent agencies, Humphrey's Executor, removal restrictions, Appointments Clause, first Congress

Suggested Citation

Nielson, Aaron and Walker, Christopher J., The Early Years of Congress's Anti-Removal Power (February 16, 2023). American Journal of Legal History, Vol. 62, pp. 219-228, 2023, U of Michigan Public Law Research Paper No. 23-017, BYU Law Research Paper No. 23-05, Available at SSRN: https://ssrn.com/abstract=4361394

Aaron Nielson

Brigham Young University - J. Reuben Clark Law School ( email )

430 JRCB
Brigham Young University
Provo, UT 84602
United States

Christopher J. Walker (Contact Author)

University of Michigan Law School ( email )

625 South State Street
Ann Arbor, MI 48109-1215
United States

HOME PAGE: http://www.chrisjwalker.com

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