You may or may not have heard that SCOTUS ruled, 5-4 along ideological lines, that President Trump may fire the head of the Consumer Financial Protection Bureau (CFPB) at his discretion, contrary to the legislation that created it.
As may any future President as well, as former CFPB head Richard Corday points out. And, further, that by only addressing that issue, SCOTUS may have implicitly signaled that the CFPB is not a zombie agency, soon to be removed by the judicial eraser, but still alive and waiting for an activist leader to be appointed once again.
But behind this issue is the deeper issue of just who should have the right to watch over the shoulder of such leaders, and remove them when they don’t perform well. It’s an important but complex and subtle question, and on Lawfare law professor and historian Jed Handelsman Shugerman thinks the conservative justices, in their textualist, originalist glory, are fudging the record. It’s a long article, but if this is an issue that interests you …
These events reveal mostly the complexities of collective decision-making—an example of how Congress is often a contradictory “they,” not an “it.” Refocusing attention from a deliberately muddled legislative debate to the actual statutes that the first Congress passed, it becomes clearer that—if there was any decision of constitutional significance from these debates—it was that Congress had broad powers to regulate, delegate and distribute removal powers.
It’s also an important topic, because who fires these people is determined on the legal consensus behind the unitary executive theory. For those who are not intimate with this theory:
The unitary executive theory is a theory of US constitutional law holding that the US president possesses the power to control the entire executive branch. The doctrine is rooted in Article Two of the United States Constitution, which vests “the executive power” of the United States in the President. Although that general principle is widely accepted, there is disagreement about the strength and scope of the doctrine. It can be said that some favor a “strongly unitary” executive, while others favor a “weakly unitary” executive. The former group argue, for example, that Congress‘s power to interfere with intra-executive decision-making (such as firing executive branch officials) is limited, and that the President can control policy-making by all executive agencies within the limits set for those agencies by Congress. Still others agree that the Constitution requires a unitary executive, but believe this to be harmful, and propose its abolition by constitutional amendment. [Wikipedia]
And, as we’ve seen, a corrupt Executive can wreak real damage when the theory of a strong unitary executive holds sway. I tend to not give it much credence myself, although for reasons that are virtually irrelevant to governmental theory, but instead going back to the days when I helped run a number of BBSes and a network connecting them by deliberately devolving as much authority and responsibility to my co-hobbyists as I possibly could. That experience, seeing as it was partly of a governmental form, was instructive as to the strength and competence of many vs the strength of just one.
It may be helpful to consider why the strong unitary executive theory is conducive to corruption. First, we need to realize that it means that, as with the CFPB director, the leaders serve at the pleasure of the President, once they are confirmed; that is, they have to keep the President happy. Now, that’s fine if the President is a fine, upstanding politician, as many have been. But when the leaders are faced with a President that is motivated by personal, rather than State-interests, and the leaders in question quite naturally would prefer to stay in their positions, then their performance can be impaired and even corrupted.
I find I far prefer a model in which, as now, the President nominates candidates, and the Senate confirms or rejects. But, post-confirmation, these folks, from Cabinet level on down, may operate as they wish, so long as they are in conformance with their duties and those are performed to the best of their ability, and no corruption occurs, (which may be redundant with performing their duties).
If the President wishes to remove a confirmed candidate from their position, then they must submit a request to do so to the Senate. In an emergency, they can submit a request for an immediate trial and decision, but then the President must come to the trial and present the evidence. Whether a super-majority of the Senate is required is an important detail.
In either case, the person to be removed may present contrary evidence, as can the investigative arm of the Senate. There should be a process for Congress to remove a poorly performing or corrupt person as well.
It seems far more sensible than this flawed unitary executive theory. Oh, and for those who wonder about the Department of Defense, the President is explicitly named as the Commander-in-Chief of the military by the Constitution, so we shouldn’t need to worry about an out of control military.
One more little tidbit from Shugerman:
Here comes the incorrect part of this story. According to the unitary executive theorists, this last bloc prevailed in the House, with Madison crafting language designed to imply that the power originated from the Constitution. Then the Senate split 10-10 on the subject, and Vice President John Adams broke the tie in favor of presidential power. And thus the first Congress confirmed, fixed, constructed or “liquidated”—as various judges, scholars and officials have put it over the years—a unitary executive as a matter of constitutional law. Like Roberts, many lawyers and judges rely heavily on this story to explain why the Constitution shields presidents from congressional limitations on their power.
There’s just one little problem with this founding myth of the unitary executive: The story is wrong. In fact, this story never made sense. But the unitary interpretation really unravels with newly identified evidence from the Senate. The Senate was closed and did not officially record debates. But a senator’s diary recorded a far messier reality: The first Congress actually retreated from the argument that the Constitution vests sole removal power in the president, even for the Department of Foreign Affairs (the equivalent of today’s Department of State) and Department of War (the equivalent of the Department of Defense), which would have been the strongest domains for presidential power. It settled on deliberately vague language instead, because doing so was necessary to get sufficient votes to establish the first executive departments.
Which is fascinating. Sometimes obscure political machinations will echo down the centuries until they impact us, hard, right between the eyes.
