June 7, 2019


Yesterday, Senator Lee introduced a nine-page bill that would, following the next presidential election, eliminate all existing for-cause removal protections from “principal officers” who head administrative agencies, subjecting them instead to employment at the President’s will. This structural modification to the nation’s bureaucratic apparatus would be a meaningful step to re-constitutionalize the administrative state. To appreciate how so, one must first appreciate the design of the Constitution and its erosion over the past century.

I.          The Design of the Constitution

Article II, Section One of the Constitution vests “[t]he executive Power” in one president, whom the Constitution tasks with the responsibility to “take care that the laws be faithfully executed.” In Federalist 70, Alexander Hamilton explained that the Framers chose a unitary executive rather than an executive council or the like to ensure that there would be one head of state who would ultimately be responsible for decision making within the Executive Branch. The Framers understood, as President Truman famously quipped, that the buck had to stop somewhere within the Executive Branch so that the people could hold someone accountable and better maintain control over their government.

Of course, the President could never perform the functions of the office singlehandedly, which is why Article II envisioned the creation of “executive departments” and the appointment of “principal officers” and “inferior officers” to assist the President in faithfully executing the laws. As the responsibilities of the executive branch have grown over the years, so have the number of officers serving under the President. Without robust presidential oversight, the Executive Branch could easily fracture into a bevy of administrative fiefdoms, each headed by an “officer” or “officers” functionally autonomous from the President, resulting in the de facto “multiplication of the Executive” that Hamilton warned against and the Constitution knowingly rejected.

Now, one of the most effective oversight tools in the workplace is the ability to fire a subordinate. So, too, in the Executive Branch: as the Supreme Court recognized in Edmond v. United States, “[t]he power to remove officers . . . is a powerful tool for control.” However, though the Constitution prescribes the means by which these officers would be appointed, the text is basically silent as to how they might be removed. As documented in the Supreme Court’s 1926 decision in Myers v. United States, an extensive debate ensued shortly after the founding, with the prevailing view being that the President’s constitutional responsibilities implicitly carried with them “the exclusive power of removal” of these officers. This “power of removal” was an “indispensable aid” for “effective enforcement of the law,” without which the President could not “discharge his own constitutional duty of seeing that the laws be faithfully executed.”

II.          The Rise of the Headless Fourth Branch

Less than a decade after Myers, however, in 1935’s Humphrey’s Executor v. United States, the Supreme Court basically abandoned this position. Instead, the Court held that, where Congress vests officers with “quasi-judicial” or “quasi-legislative” powers within an administrative agency, Congress could make those officers “free from executive control” by protecting them from presidential removal. Rejecting Myers’s thorough analysis and reasoning as “dicta” and “expressions . . . beyond the point involved,” the Humphrey’s Executor Court swallowed whole the Progressive and New Deal Era belief that having “a body of experts” making and implementing policy “free from ‘political domination or control’” was of paramount importance, overriding even the need for meaningful political accountability.

With this judicial imprimatur, Congress has created a number of “independent agencies” directed by “principal officers” who, being insulated from presidential oversight by for-cause removal protection, are functionally autonomous from the President. No wonder, then, that President Truman also once quipped, “I thought I was President, but when it comes to these bureaucrats, I can’t do a damn thing.”

Thus emerged this “veritable fourth branch of the Government,” grafted sloppily alongside the three constitutional branches and warping fundamental constitutional theory in the process, as Justice Robert Jackson recognized in his 1952 FTC v. Ruberoid Co. dissent. Trouble is that, as the Supreme Court recognized in 2010’s Free Enterprise Fund v. Public Company Accounting Oversight Board, if power within the Executive Branch has “slip[ped] from the Executive’s control,” it has also slipped “from that of the people.” This not only defeats the design of the Constitution but also undermines the premises of a republican form of government—rule by “we the people” rather than by an unaccountable “body of experts.”

Little wonder, then, that by the 1930s, the President’s Commission on Administrative Management in the Government of the United States had already warned of this “headless ‘fourth branch’ of the Government, responsible to no one,” calling it a “challenge” that “cannot be ignored.” Yet, ignored it went, for the most part. Coupled with the accretion and concentration of federal power in the Executive Branch over time, the administrative state today consists of a dizzying array of bureaucracies making and enforcing policies while largely insulated from meaningful oversight.

III.          The Take Care Act

Given Congress’s longstanding penchant for delegating away its core prerogatives to the Executive Branch, the thought of expanding an already-powerful President’s powers may fairly give one pause. However, Congress’s surrender of its Article I responsibilities does not warrant permitting it to erode Article II’s structure in the process. Perhaps, in fact, if Congress cannot continue to undercut the unitary design of the Executive Branch, it might think twice before surrendering its powers to an unconstrained President. Regardless, Congress’s evasion of political accountability through delegation should at least be met with an Executive Branch structure ensuring that some accountability remains in the system through some avenue.

To that end, Senator Lee has introduced the “Take Care Act,” designed to eliminate the administrative regime Humphrey’s Executor allowed to flourish. Section 3 of the bill eliminates any existing for-cause removal protections for principal officers, subjecting them instead to at-will removal by the President. Section 4 requires any future for-cause removal protections to be made explicit in the text of whatever law such protection is included, rather than left to judicial surmise as has happened before (see, for instance, Justice Breyer’s criticism of the Free Enterprise Fund majority for “assum[ing] . . . that the SEC Commissioners . . . are removable only ‘for cause’” even though the law at issue said “nothing about removal”). Section 5 restores “the President’s power to supervise and direct the exercise of . . . discretionary decision-making authority” Congress has otherwise given to “principal officers” and the like. Section 6 specifically repeals a number of for-cause removal protections in various federal statutes, closing with a sweeping clause that makes clear that all such existing for-cause removal limitations in federal law should be deemed abrogated by Section 3 even if not explicitly repealed in Section 6. And Section 7 provides that the date the law would take effect is noon on January 20, 2021—when whoever wins the next presidential election takes or retakes office—forestalling any criticism that this bill is just some partisan attempt at expanding the current President’s power.

The “Take Care Act” takes seriously Hamilton’s recognition in Federalist 70 that “the unity of the executive” is “one of the best of the distinguishing features of our constitution.” This restructuring, to be sure, would not be a panacea for the constitutionally-infirm status quo in Washington. Much else needs to be done to restore constitutional order, but the reform Senator Lee has proposed in the “Take Care Act” is a critical step to that end.

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Take Care Act Floor Remarks

Click here to read the press release for the bill by Sen. Lee’s office.

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