If at this point you are still unpersuaded that the strongly unitary executive and related developments discussed in this series are an intolerable threat to constitutional government and the rule of law, you might want to stop reading. If you agree, however, then the question becomes what can be done to reduce or eliminate this danger?
There is no shortage of actions that can be taken in pursuit of this objective. But there is also no guarantee that any particular course of action will be successful in achieving it. This is so because the action may be difficult to accomplish (e.g., legislation which is subject to presidential veto) or may be disregarded by the executive or struck down by the Supreme Court or may prove to be impossible to sustain politically or may turn out to be ineffective to produce the desired change in behavior.
Legislation on Removals
One of the primary “anti-removal” tools identified by Professors Walker and Nielson is the statutory requirement that the president give a reason for firing a particular officer. They point out that such a requirement has been in law for the comptroller of the currency for over 160 years, and no president has ever removed a comptroller during that time. Christopher J. Walker & Aaron Nielson, Congress’s Anti-Removal Power, 76 Vanderbilt L. Rev. 1, 34-36 (2023). Furthermore, a similar statutory requirement applies to inspectors general under the Inspector General Act of 1978 and, while some presidents have nonetheless removed IGs, Walker and Nielson say that “a reason-giving requirement seems to have provided at least some measure of independence for decades.” Id. at 38.
Unfortunately, this was written before the commencement of the current administration, when President Trump fired 17 inspectors general without complying with the statutory requirement. This illustrates several problems. First, the power of these requirements are dependent on the understanding that Congress may legitimately provide certain executive offices with a measure of independence, a previously existing norm that is undermined by unitary executive theory. Second, such requirements mean little if there is no expectation that the president will attempt in good faith to comply with the law. Third, there is no assurance, despite the historical pedigree of the reason-giving requirement, that the Supreme Court would uphold it as constitutional. Professor Goldsmith argues that it is probably unconstitutional under the Court’s current doctrine. Finally, one can expect members of Congress to abandon principles of governance in favor of short term political interests, as Goldsmith illustrates by citing the tepid reaction of Senator Charles Grassley, once a fierce protector of IG independence, to Trump’s blatant violation of the law Grassley had worked to strengthen.
Maybe, however, reform should focus on the executive officer appointed by the president, rather than the president himself. Suppose that a fired officer was allowed, or indeed required, to explain in a public forum why the president had removed her from office. This could raise the cost of removal to the president and at the same time stiffen the spine of officers who would like to resist pressure from the president or the White House to take illegal or improper actions.
Walker and Nielson propose that Congress could provide such a public forum in the form of “a congressional hearing whenever the head of independent agency (or other agency official Congress so designates) is fired.” Walker & Nielson, 76 Vanderbilt L. Rev. at 53-54. They suggest this could be accomplished by a congressional rule pre-committing the House or Senate to hold such hearings or a statute mandating the same.
I think this is a promising idea, but some attention to the design of this process is required. It may not be that effective to a require a hearing every time a removal occurs. If committees decide the requirement is onerous or politically unpalatable, they will find ways around it or simply ignore it. Too many such hearings might become routine and lose public attention.