How to Think About the Removal Power

110 Virginia Law Review Online 159 (2024)

Virginia Public Law and Legal Theory Research Paper No. 2025-03

48 Pages Posted: 8 Jan 2025

See all articles by Aditya Bamzai

Aditya Bamzai

University of Virginia School of Law

Saikrishna Prakash

University of Virginia School of Law

Date Written: August 16, 2024

Abstract

In an earlier article titled The Executive Power of Removal, we contended that Article II gives the President a constitutional power to remove executive officers, at least those who are presidentially appointed. In this Essay, we expand on, and reply to a critique of, that article. We discuss the meaning of the clause vesting “executive Power” in the President and the clause authorizing Congress to make laws “necessary and proper for carrying into Execution” the powers of the federal government. We contend that the former vests authority to remove in the President and the latter does not allow Congress to treat that allocation of authority as a default. We discuss how constitutional developments in the Commonwealth of Pennsylvania—specifically, a 1784 report authored by the Council of Censors—support our understanding of the federal Constitution’s text and structure. We also discuss early practice under the federal Constitution—specifically, high-profile instances where presidents removed executive subordinates without Senate participation. These sources and episodes, along with those we discussed in our previous article, support the conclusion that the Constitution confers on the President the authority to remove presidentially appointed executive officers.

Suggested Citation

Bamzai, Aditya and Prakash, Saikrishna, How to Think About the Removal Power (August 16, 2024). 110 Virginia Law Review Online 159 (2024), Virginia Public Law and Legal Theory Research Paper No. 2025-03, Available at SSRN: https://ssrn.com/abstract=5086415 or http://dx.doi.org/10.2139/ssrn.5086415

Aditya Bamzai (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

Saikrishna Prakash

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
98
Abstract Views
638
Rank
555,017
PlumX Metrics