From the Supreme Court's opinion today in Collins v. Yellen:
... But the nature and breadth of an agency’s authority is not dispositive in determining whether Congress may limit the President’s power to remove its head. The President’s removal power serves vital purposes even when the officer subject to removal is not the head of one of the largest and most powerful agencies. The removal power helps the President maintain a degree of control over the subordinates he needs to carry out his duties as the head of the Executive Branch, and it works to ensure that these subordinates serve the people effectively and in accordance with the policies that the people presumably elected the President to promote. ...
Courts are not well-suited to weigh the relative im-portance of the regulatory and enforcement authority of dis-parate agencies, and we do not think that the constitution-ality of removal restrictions hinges on such an inquiry.
And from a footnote:
Amicus points to the Social Security Administration, the Office of Special Counsel, the Comptroller, “multi-member agencies for which the chair is nominated by the President and confirmed by the Senate to a fixed term,” and the Civil Service. ... None of these agencies is before us, and we do not comment on the constitutionality of any removal restriction that applies to their officers.
And from the concurrence of Justice Kagan:
... Without even mentioning Seila Law’s “significant executive power” framing, the majority announces that, actually, “the constitutionality of removal restrictions” does not “hinge[]” on “the nature and breadth of an agency’s authority.” ... Any “agency led by a single Director,” no matter how much executive power it wields, now becomes subject to the requirement of at-will removal. ... And the majority’s broadening is gratuitous—unnecessary to resolve the dispute here....
And from the concurrence of Justices Sotomayor and Breyer:
Never before, however, has the Court forbidden simple for-cause tenure protection for an Executive Branch officer who neither exercises significant executive power nor regulates the affairs of private parties.
I thought it was already clear that the President's inability to remove the Commissioner at will was unconstitutional. I think it's now quite clear where the Supreme Court is headed or, should I say, has gone. I see no reason why the President should tolerate Saul any longer. Any attempt he makes to stay in office isn't going to work.
$20 says no matter who takes over the blog will list the exact same complaints as it has for years. Any takers?
ReplyDeleteThis post assumes that Biden wants to get rid of Saul. Perhaps he does not?
ReplyDelete@12:28
DeleteIf Biden doesn’t want to get rid of Saul, Black, et.al., I would like to know why?
If he wanted to get rid of him, he would have already. Someone needs to remind one of his keepers that AFGE had his back during the election and we would like the favor returned.
ReplyDeleteSo the union "had his back" and now wants "the favor returned"
ReplyDeleteLet that one sink in.
Are you new to American politics?
DeleteHere's the thing I don't understand about the "unitary executive" doctrine. All of these agencies with their independent heads were created through legislation signed by the President. The court has never had a problem with the legislative branch ceding power to the executive branch through inaction or legislation. Why should this be any different? If the President signed the bill that limits his ability to fire someone, he tied his own hands. That's part of the legislative compromise. Especially with an entity like the consumer protection agency. It was the intention of the parties that the head be shielded from political removal. The president signed the bill. This doctrine is such bad faith.
ReplyDelete@2:22
ReplyDeleteNondelegation doctrine does in theory place limits on what sorts of powers the legislature can grant to the executive, or judiciary for that matter.
The argument goes, for-cause protections presume an executive doesn't have unlimited power over officers in the executive branch, which agency heads clearly are. The fact that a president bound his or her hand, or his or her successor's hand, presumes the executive's hand can be bound which supporters of the unitary executive theory disagree with.
All that said, I disagree with the unitary executive theory because Art. 2, Sec. 3 directs the executive the faithfully execute the laws, that is a limit on the executive and therefore the unitary executive theory fails. The laws include for-cause protections. Also, Art. 2, Sec. 2 provides the advice and consent clause, which recognizes the legislature's role in consenting to appointment and is silent on who has the power to remove officers once appointed. If anything, I could see an argument that the executive has no inherent authority to remove officers, but the for-cause removal procedures is a valid compromise.