Congress should require the President to replace agency heads after termination.
The U.S. Supreme Court decided in Trump v. Slaughter that the President has the authority to terminate a commissioner of the Federal Trade Commission (FTC) at will, explicitly overruling Humphrey’s Executor v. United States. Because of its broad reasoning that “Article II of the Constitution extends to the President the power, unbounded by contrary statutes, to remove presidentially appointed officers,” the Slaughter ruling is likely also the final nail in the coffin for the principle that executive agency heads, with the exception of the Board of Governors of the Federal Reserve System, may be protected against removal without cause by the President.
But a series of essays in The Regulatory Review offered a stark view of the costs of such a loss and impassioned defenses of what removal restrictions safeguard. Former FTC Commissioner Rebecca Slaughter’s account reveals how independent commissions protect market stability and incentivize political consensus-building, while former National Labor Relations Board member Gwynne Wilcox argues that a prolonged lack of a quorum, facilitated by the abrogation of for-cause removal protections, damages workers’ rights and the structure that the U.S. Congress designed to safeguard them.
These pieces also concur on a widely accepted point: The implementation of at-will removal across the administrative state would also render extinct the independent regulatory commission or board as an administrative form.
Unless it would not. Independent regulatory agencies can still potentially be salvaged by Congress, and for-cause removal protections are not necessary to do so. Instead, Congress could protect agencies’ independence by building three provisions that facilitate regulatory agencies’ independence into their organic statutes: First, a bipartisan requirement—that is, a requirement that an independent board or commission consist of an equal number of members from both parties. These are already present in many statutes. Second, a provision mandating that the President nominate a replacement within a specified timeframe following the removal of an officer. And lastly, a civil cause of action against a former President for noncompliance with the mandatory replacement provision of the statute while in office. In other words, the President would still be able to remove commissioners at will—but not weaponize removal to stymie agencies from functioning as Congress intended.
I focus here on the second components of this proposed statutory framework. Currently, the statutes that empower regulatory agencies lack mandatory replacement provisions. Although these statutes provide for removal of officers by the President, they are uniformly silent on procedures to fill the vacancy created by a removal. They all include appointment provisions specifying that the President shall appoint officers and establishing the terms of appointment. Some statutes also contain language that passively assumes that vacancies will be filled, but these statutes do not set a deadline for appointments or replacement appointments after an officer is removed. For example, the National Labor Relations Act states only that successors of existing NLRB members shall be appointed for five-year terms, “excepting that any individual chosen to fill a vacancy shall be appointed only for the unexpired term of the member whom he shall succeed.”
The consequence is that a President can remove an independent officer and refrain indefinitely from replacing the officer, leaving the agency unable to function, as President Donald J. Trump has done with the Merit Systems Protection Board and other agencies. Doing so violates a norm of presidential administration but not the underlying statute.
A mandatory replacement provision with a deadline to fill vacancies, and to comply with a bipartisan requirement in doing so, would close this loophole and balance the constitutional powers of the legislative and executive branches. On the legislative side, agencies are created by Congress, and requiring timely replacement of removed officers would protect their existence and functional purpose, and thus the will of Congress. It would also protect their political independence, as Congress intended, since the President would be required to replace the removed officer with another person of the same party. The agency would remain not only fully staffed and functional, but balanced as well.
On the executive side, replacing removed officers is a part of the President’s appointment power. Mandatory replacement would not infringe on an executive’s ability to control who wields executive power—quite the opposite. The President would still be able to remove independent officers at will, and, far from hampering the President’s exercise of power under Article II of the U.S. Constitution, replacement provisions would provide for the vigorous exercise of the appointment power.
Combining bipartisan requirements and mandatory replacement provisions would protect agency independence in a way that satisfies proponents of the unitary executive theory—the view that all executive officers are fundamentally accountable to the President. That is because this structure complies with the unitary executive theory as the Court articulated in Slaughter: it upholds the President’s ability to terminate officers at will, ensuring that officers “remain accountable to the President.”
First, as to bipartisan requirements, Bernard Sharfman and Nick Morgan recently argued that bipartisan balancing requirements violate the Constitution’s Vesting Clause—which vests executive power in the President alone—in the same way as for-cause protections, because they “narrow the pool of eligible candidates based on political affiliation.” But that is not the logic of unitary executive theory. Instead, the rationale that the Court has provided for invalidating for-cause protections is twofold: first, those who wield executive power must be accountable to the President since they exercise the President’s constitutional power, and second, the President’s inability to remove officers disrupts the chain of accountability that runs from an officer to the President. “Diffusion of power carries with it a diffusion of accountability,” the majority concluded in Free Enterprise Fund v. PCAOB. The constitutional framers’ intent, the Court elaborated in Seila Law LLC v. CFPB, was to “divide power everywhere except for the Presidency, and render the President directly accountable to the people.” As a result, executive officials’ authority remains subject to presidential control through a “chain of dependence.” Bipartisan requirements do not extricate officers from this chain of command—they do not, as Sharfman and Morgan put it, “carv[e] up the executive.” As long as officers of any party are removable at will, they are part of the chain.
Second, mandatory replacement provisions do not run afoul of the unitary executive. Indeed, the statutes that empower agencies already contain express mandatory appointment provisions that compel the President to exercise appointment power for bodies more central to policymaking than independent agencies. For instance, federal statutes decree that the President “shall” appoint the heads of executive departments like the Department of State and the Department of Education. These are executive agencies, and the appointment mandate applies to their principal officers—that is, officers nominated by the President who possess broad policymaking authority and have no superior officer above them but report directly to the President. Statutory requirements that the President “shall” appoint these officers are not viewed as impinging on the President’s executive authority. The reason is obvious: The President’s discretion cannot extend to refusing to populate the executive branch with the personnel integral to its operation. This would absurdly violate the President’s duty to “take care that the laws be faithfully executed.” The President would hardly be taking such care if he declined to appoint the officers tasked with executing those laws. Yet, this is what has happened to independent agencies, such as the National Labor Relations Board and Merit Systems Protection Board, which were rendered inoperative by President Trump’s removal of their members. Mandatory reinstatement provisions would ensure that Presidents abide by their constitutional duties.
Although it is Presidents’ prerogative to populate the executive branch as they wish, it is not their constitutional prerogative to dismantle it at whim. Yet, taken to its logical conclusion, the omission of a timely replacement requirement has precisely this effect. Questions remain as to enforceability—the President generally enjoys immunity from a courts’ orders to carry out his Article II powers, so its effectiveness may depend on Congress’s willingness to enforce it through other means. But requiring Presidents to fill vacancies, and in compliance with bipartisan requirements, offers a legislative lifeline to the existence and functionality of independent agencies, even in the absence of removal protections.
