SEVERABILITY AND STANDING PUZZLES IN THE LAW OF REMOVAL POWER.

• Author: Ferguson, Jack

One of the "oldest and most venerable debates in U.S. constitutional law" concerns the President's ability to fire executive branch officers. (1) 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, (2) 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. (3) 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. (4) 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.

1. FORMALIST DEVELOPMENTS IN THE LAW OF REMOVAL POWER

   Article II of the Constitution vests "[t]he executive Power" in the President and requires him to "take Care that the Laws be faithfully executed." (5) Article I's Necessary and Proper Clause also grants Congress the power to "make all Laws which shall be necessary and proper for carrying into Execution" the other powers vested in the federal government. (6) Congress uses this power to structure the executive branch by creating departments and offices under the President. (7) While the Appointments Clause provides the method by which the President selects officers of the United States, (8) the constitutional text is silent on the power to remove them. One interpretation of the Necessary and Proper Clause holds that Congress can fill this void and tenure executive officers or set the circumstances of their removal. (9) But many presidents, courts, and scholars have construed Article II's Vesting Clause and Take Care Clause to include an inherent presidential power of at-will removal, since effective execution of the law requires the ability to control one's subordinates. (10)

   The First Congress vigorously debated whether the President had the power to remove the heads of departments. During the creation of the first executive offices in 1789, certain members of the House objected to bill language declaring that the President could fire the Secretary of Foreign Affairs, since it seemed to imply the President's removal power was conferred by Congress and not by the Constitution itself. In the end, the House voted to amend the objectionable language. (11) Many consider this "Decision of 1789" to have established an authoritative "legislative construction" (12) of Article II recognizing, rather than granting, a presidential removal power. (13)

   Disputes over presidential removal power are part of the larger debate over the unitary executive theory. Resting on Article II's Vesting Clause, the Take Care Clause, and the Decision of 1789, the unitary executive theory holds that "the Constitution creates only three branches of government and that the President must be able to control the execution of all federal laws." (14) Or as Chief Justice Roberts has succinctly put it, "[u]nder our Constitution, the 'executive Power'--all of it--is 'vested in a President.'" (15) Under the unitary theory, the President has an inherent constitutional power to oversee the workings of the entire executive branch. Different unitary theorists argue that the President has the authority to step into any subordinate's shoes and make all decisions personally, (16) or to remove any officer he wishes, (17) or both. This Note takes no position on the merits of the extensive scholarly literature around removal power and the unitary executive. (18) It proceeds from the assumption that the Supreme Court's jurisprudence in the last decade has endorsed the President's general power to remove executive officers and will continue along a unitary trajectory for some time to come.

   Understanding Seila Law and Collins requires understanding Humphrey's Executor v. United States. (19) Humphrey's Executor dealt with one of the first independent agencies, the Federal Trade Commission (FTC). Created in 1914, the FTC had five members, each appointed by the President for a seven-year term. (20) Congress empowered the FTC to prevent "unfair methods of competition in commerce" by conducting investigations, holding hearings, and issuing orders against businesses and individuals. (21) It could seek enforcement of its orders in federal court. (22) Most notably for constitutional purposes, the FTC Act provided that the President could remove a commissioner "for inefficiency, neglect of duty, or malfeasance in office." (23)

   In 1933, President Franklin D. Roosevelt fired a conservative commissioner, William Humphrey (a Calvin Coolidge appointee). This should have been uncontroversial. Less than a decade before, the Supreme Court had deemed limits on the President's removal power unconstitutional in Myers v. United States. Chief Justice Taft's opinion in Myers upheld the President's unilateral removal of a postmaster notwithstanding a statutory requirement that the President first receive Senate approval. (24) Furthermore, the 1902 case Shurtleff v. United States had resolved a similar case on statutory interpretation grounds. Shurtleff considered language identical to the FTC Act and concluded that the President was not limited to removing a customs appraiser only for the reasons fixed by statute. (25) President Roosevelt thus seemed to have bulletproof legal authority to fire Commissioner Humphrey. (26) Congress evidently agreed, "offering not a single word of protest to Roosevelt's actions," while the Senate "confirmed Humphrey's replacement without incident." (27)

   Nonetheless, the disgruntled Humphrey contested his removal and the Supreme Court ruled against the President. Limiting Myers's holding to "purely executive officers," (28) the Court framed the FTC's authority as "quasi-legislative" and "quasi-judicial." (29) Since quasi-legislative and quasi-judicial bodies exercise no executive power, the Court reasoned, the President had no inherent authority over them and could only supervise them as Congress specified. (30)

   Humphrey's Executor has been widely criticized for its "quasi-legislative" and "quasi-judicial" neologisms and for "gutting, in six quick pages devoid of textual or historical precedent for the novel principle it set forth, [Myers's] carefully researched and reasoned 70-page opinion." (31) In a way, Humphrey's Executor was technically correct. If a truly quasi-legislative or quasi-judicial governmental body existed, there is no reason the President would possess any inherent power over that body. The problem lay with the FTC's statutory mandate to enforce competition laws--almost definitionally an executive action. Declaring that the FTC in 1935 "exercise[d] no part of the executive power" was dubious at best. (32)

   Against this backdrop, the Supreme Court decided Sella Law. (33) The Sella Law story began with the 2010 Dodd-Frank Act, which created the Consumer Financial Protection...