One of the “oldest and most venerable debates in U.S. constitutional law” concerns the President’s ability to fire executive branch officers. That debate shows little sign of subsiding. In recent years, the Supreme Court has decided a number of removal power cases that reflect an increasingly formalist turn. These cases have endorsed a version of the unitary executive theory and blessed the President’s ability to remove nominally independent officials. When it comes to questions of severability and remedy, however, the formalist majorities have fractured. Collins v. Yellen, decided in 2021, provides the most illuminating example. Justices Thomas and Gorsuch concurred with the holding that a statute restricting the President’s ability to fire an independent agency director violated the separation of powers. But they disagreed with each other on how to “sever” the removal provision from the statute and what remedy to provide for the violation. If the Court is interested in a broader constitutional audit of the administrative state, as the logic of its recent removal power jurisprudence suggests, the formalist bloc will at some point have to account for its internal differences.
This Note argues that Justice Thomas’s approach is the right one and considers what might follow from it. Justice Thomas maintains that a validly appointed executive officer may exercise executive authority notwithstanding any unlawful for-cause removal protection. Because the Constitution automatically displaces any statute contrary to it, he contends, such removal protections never truly become law. And the proper remedy would not hold agency action unlawful per se, as Justice Gorsuch would have it. But bound up in this analysis are key implications for what the law is, what the judicial power is, and who gets to interpret the Constitution. This Note attempts to spell out those implications.
Part I situates recent developments in the law of removal power, including Collins’s predecessor, the landmark case Seila Law LLC v. Consumer Financial Protection Bureau. This Note identifies where these cases leave the door open to future clarification or expansion of removal power doctrine. Part II examines Collins’s dueling concurrences between Justices Thomas and Gorsuch over severability and remedy and concludes that, as a formal matter, Justice Thomas has the better of the argument. Part III considers the possibility that if Justice Thomas is correct (and he is able to so persuade his colleagues), the Court may have to confront the possibility that private plaintiffs lack standing to bring removal power suits. Recent years have seen parties regulated by agencies bringing such suits, claiming harm from the agency’s purported independence. But even if a removal statute is unlawful in the abstract, it is questionable whether that statute’s unlawfulness makes any government action unlawful or gives rise to any injury. A better setting to consider the constitutionality of removal restrictions is the actual firing of a tenured officer by the President. As a corollary, Part IV argues, a President who subscribes to the unitary executive theory should more actively police independent agency officials. This would include removing them from office if necessary. The President has an independent duty to interpret the Constitution, and that duty includes defending presidential prerogatives from encroachment by Congress. If an officer contested his removal from office, the courts would have a cleaner case to decide. Such a case would not raise divisive questions of severability and remedy and would move past the disagreement between Justices Thomas and Gorsuch. The law of presidential removal power would be in a better place for it.
Severability and Standing Puzzles in the Law of Removal Power,
Notre Dame L. Rev.
Available at: https://scholarship.law.nd.edu/ndlr/vol98/iss4/11