Can the President Remove Governors of Federal Independent Agencies Without Cause?

The podcast show we are releasing this week focuses generally on the so-called “Unitary Executive Theory” and specifically on the legality of President Trump firing without cause the Democratic Commissioners of the Federal Trade Commission and the members of other independent agencies, despite language in the governing statutes that prohibit the President from firing a member without cause and a 1935 Supreme Court opinion in Humphrey’s Executor holding that the firing of an FTC Commissioner by the President is unlawful if done without cause.

Our guest is Patrick Sobkowski who teaches constitutional law, courts and public policy, and American politics at Marquette University. His scholarship focuses on constitutional and administrative law, specifically the administrative state and its relationship to the other branches of government.

Our show began with an explanation of the “Unitary Executive Theory” which is defined as a constitutional law theory according to which the President has sole authority over the executive branch including independent federal agencies. It is based on the so-called “vesting clause “of the Constitution which vests all executive power in the President. The theory often comes up in disagreements about the president's ability to remove employees within the executive branch (including Federal agencies); transparency and access to information; discretion over the implementation of new laws; and the ability to control agencies' rule-making. There is disagreement about the doctrine's strength and scope. More expansive versions are controversial for both constitutional and practical reasons. Since the Reagan Administration, the Supreme Court has embraced a stronger unitary executive, which has been championed primarily by its conservative justices.

We then discussed a litany of Supreme Court opinions dealing with the question of whether the President has the unfettered right to remove executive agency employees:

a. Myers v. US (1926)

b. Humphrey’s Executor (1935)

c. Morrison v. Olson (1988)

d. Seila Law (2020)

We then discussed Trump’s removals of the Democratic members of the National Labor Relations Board and Merit Systems Protection Board and the Supreme Court’s opinion and order staying the lower court’s order that the removals were unlawful. In addition to casting doubt on the continued viability of Humphrey’s Executor, the Court included dicta to the effect that the logic of its opinion about the NLRB and the MSPB would not apply to the Federal Reserve Board because the Fed is not really an executive agency and that its functions are more akin to the functions performed by the First Bank and Second Bank of the United States.

Alan Kaplinsky, the founder and former practice group leader for 25 years and now Senior Counsel of the Consumer Financial Services Group hosted the podcast.

The podcast recording is here.