A RESPONSIVE REMEDY FOR UNCONSTITUTIONAL REMOVAL RESTRICTIONS.

• Author: Eisenhauer, William C.

INTRODUCTION

This Note is about unsupervised power, and what to do when it inflicts harm.

Most executive officials wield "supervised" executive power; the President may fire them at any time, for any reason. The Damocles' sword (1) of removal keeps their power in check. Knowing that their job is safe only to the extent that the President is satisfied with their performance provides a strong incentive for executive officials not to overstep their station.

But as the sword disappears, so too does the incentive. Unsupervised executive officials--those with tenure protection or so-called removal restrictions--need not fear the repercussions of their actions. (2) The President is statutorily prohibited from firing them at will. But removal restrictions have constitutional limits. When Congress has exceeded those limits, the Supreme Court has not hesitated to hold the offending restrictions unconstitutional. In doing so, however, it has failed to develop a consistent approach for the remedy a victorious plaintiff may receive.

The Supreme Court has inconsistently approached the remedies in unlawful removal restriction cases. This inconsistency fails to redress plaintiffs injured by unlawful executive power, blurs the separation of powers, and discourages other constitutional actors from considering their actions' implications. (3) This Note proposes a straightforward solution to those problems.

It begins in Part I by laying out the mechanics of appointment and removal, with special attention to the constitutional and precedential intricacies of the removal power. Part II introduces the remedial problem by describing the Supreme Court's two most recent removal cases and identifying the problematic inconsistencies. Part III discusses in depth the 2021 case Collins v. Yellen and introduces the dueling remedial approaches the Justices applied in that case. Finally, Part IV expands upon and argues for Justice Gorsuch's approach: that an unlawful removal restriction renders an official's power per se invalid, and thus entitles successful plaintiffs to a per se remedy.

1. A PRIMER ON EXECUTIVE APPOINTMENT AND REMOVAL

   Executive officials wield "[t]he executive Power." (4) The Constitution does not precisely delineate what that power entails, but a few things are clear. First, the executive power "shall be vested in a President of the United States." (5) The singular nature of the determiner "a" means that the Constitution grants one individual the whole of the executive power. (6) The Constitution later directs only this individual--the President--to "take Care that the Laws be faithfully executed." (7) But the Framers envisioned that the President would have help. Because of "[t]he impossibility that one man should be able to perform all the great business of the State," the Constitution contemplates executive officials to assist the President. (8) Its drafters wrote the Take Care Clause in the passive voice; it does not require the President himself to faithfully execute all the laws. In addition, several Clauses in Article II expressly mention executive "Officers" (9) and "Departments." (10) The Appointments Clause then grants the President the power to, in most cases, choose those officers. (11)

   What is equally clear, though, is that Congress may encroach on the President's power to staff the executive branch as he sees fit. (12) The Constitution does not expressly grant Congress this power, but it grants Congress the authority to create offices. (13) And with the power to create comes the power to dictate the terms of existence, at least in some respects. For certain executive offices, those terms have taken the form of tenure protection. (14) Tenure protections--often called "for cause" removal restrictions--theoretically insulate executive officials from political pressures, both within and without the government. (15) This insulation allows a regulator to do her job concerned with neither her boss's policy preferences that run counter to her regulatory mission nor the regulated industry's economic motivations. (16) The neutral actor can act neutrally.

   Executive appointments and removal restrictions are firmly entrenched in the constitutional landscape. So too are the procedures by which they come into being. Administrations accomplish most of their executive appointments without major controversy. (17) While removal restrictions are perhaps more constitutionally suspect, (18) courts have validated many currently in existence. (19)

   But there are certainly wrong ways to appoint (20) and wrong ways to insulate. (21) In these instances, there is a constitutional defect--an imbalance in the government's separation of powers. (22) An appointment defect fails to lawfully confer executive power on the appointee, and a removal defect precludes the President from lawfully supervising another officer's use of executive power. In both situations, plaintiffs injured by that power can attack the office's unconstitutional structure. This attack is rather straightforward for improper appointments because there is a neutral, textually grounded standard by which to judge any given appointment: the Appointments Clause. (23)

   Removal presents a different problem. Save for impeachment, the Constitution does not specify the procedures by which the President or anyone else may remove executive officials. (24) But the Constitution's history, structure, and subsequent interpretation have established a framework for executive removal procedures.

   From the Constitution's earliest days, politicians, scholars, and Justices have debated the presidential removal power. For more than a month at the first Congress, the Representatives discussed the issue. (25) Ultimately, in what came to be known as the "Decision of 1789," the first Congress (after considering several alternatives) concluded that the Constitution itself (26) conferred upon the President the power to remove executive officers. (27) The Decision "provides 'contemporaneous and weighty evidence' of the Constitution's meaning since many of the Members of the First Congress 'had taken part in framing that instrument.'" (28) And it shortly came to be the "settled and well understood construction of the Constitution" regarding the presidential removal power. (29)

   The 1926 case Myers v. United States, (30) in a "carefully researched and reasoned 70-page opinion," (31) solidified this understanding. There, the Court held that the Tenure of Office Act of 1876--which barred the President from firing executive officials without the Senate's advice and consent (32)--was unconstitutional. (33) That Act deprived the President of "the unrestricted power of removal of first class postmasters." (34) The Court held, echoing James Madison at the First Congress, that "the power of removal of executive officers was incident to the power of appointment." (35) Therefore, Congress's statutory restriction on the President's ability to remove the postmaster--an executive officer--unlawfully impeded the President's exercise of the executive power.

   Less than a decade after Myers, the Court decided Humphrey's Executor v. United States. (36) In that case, the Court permitted removal restrictions on Commissioners of the Federal Trade Commission (FTC)--without contradicting Myers--because the FTC was a multimember Commission that wielded "quasi-legislative" and "quasi-judicial" powers. (37) Accordingly, the Commissioners were not purely "executive" officials and were beyond the scope of the President's unimpeded removal power. (38)

   The Court has walked back Humphrey's Executor in the years since that decision. As the Court's precedent currently stands, principal officers singly directing executive agencies may almost never have tenure protection. (39) Courts evaluate removal restrictions on commissions of multiple principal officers, and all inferior officers, functionally after considering a host of factors. (40) The remedial problems attendant to removal restrictions are applicable to both sets of officers.

   The constitutional ground on which removal restrictions stand is shaky at best. (41) But the functional nature of the inquiry into their constitutionality indicates that the Court will eschew a categorical decision, at least for the foreseeable future. For as long as tenure protections are part of our constitutional landscape, plaintiffs will find ways to challenge them. If successful, those plaintiffs should be entitled to relief. The following cases demonstrate, however, that such relief is far from certain.

2. FREE ENTERPRISE FUND AND SEILA LA W

   To properly understand the Court's current remedial quandary, it is helpful to appreciate the steps it took to get here. To that end, I discuss two of the Court's most recent removal power cases.

   First, in Free Enterprise Fund v. Public Company Accounting Oversight Board, (42) the Court addressed the constitutionality of two layers of removal protection. In 2002, Congress passed the Sarbanes-Oxley Act. (43) Sarbanes-Oxley created the Public Company Accounting Oversight Board (Board), a regulatory entity designed to enforce compliance with commercial accounting standards. (44) Sarbanes-Oxley empowered the Securities and Exchange Commission (SEC) to appoint the Board, but only permitted the SEC to fire Board members "for good cause shown." (45) Under a separate statutory scheme, the President appointed, with the Senate's advice and consent, SEC Commissioners for a five-year term. (46) This structure thus created two degrees of "for cause" removal protection separating the Board from the President.

   Sarbanes-Oxley's enforcement provisions gave the Board sweeping regulatory authority. They empowered the Board to enforce several far-reaching federal securities laws as well as the SEC's rules, the Board's own rules, and professional accounting standards. (47) The target of one such enforcement action, a Nevada accounting firm, challenged the Board's removal...