Dr. Samuel B. Hoff is a George Washington Distinguished Professor Emeritus of history and political science at Delaware State University, as well as its internship director. He has taught and published extensively on the American presidency and constitutional law.
For most of American history, personnel who serve in independent regulatory agencies in the federal government have been appointed for a specific term and are only removable for cause. The Trump White House, in an effort to ensure loyalty throughout, wants to remove that condition. Because the Trump team has already fired folks elsewhere within the executive branch who serve under similar rules, because of the current partisan/ideological lineup of the U.S. Supreme Court and due to the zigzag past of presidential removal authority rulings, it might succeed.
Coming out of the constitutional gate, the nascent federal Congress engaged in a substantial 1789 debate on the parameters of presidential removal power. While the House of Representatives had no problem supporting the executive’s right to remove cabinet personnel, Vice President John Adams was called on to break two tied Senate votes on the matter. Adams supported the president’s prerogative.
Controversies over presidential removal authority percolated throughout the 19th century. For instance, an 1834 Senate resolution condemning President Andrew Jackson for removing the secretary of the treasury the preceding year precipitated an impassioned protest from Old Hickory. An 1854 Supreme Court ruling pertaining to the removal of a state Supreme Court justice by President Franklin Pierce upheld the president’s jurisdiction to do so. Whereas an 1863 bill passed by Congress requiring Senate consent for removal of the Bureau of the Currency head within the Department of the Treasury was supported by the Abraham Lincoln administration, an updated version of the latter bill was at the center of President Andrew Johnson’s impeachment over his veto of it. The 1867 law limiting the president’s removal power — the Tenure of Office Act — was eventually repealed in 1887.
The 20th century witnessed conflicting Supreme Court rulings on the contours of presidential removal power. A 6-3 decision in 1926 — with former President William Taft leading the Supreme Court as chief justice — ostensibly put the matter to rest for good: The president was granted an unrestricted authority to fire first-class postmasters.
However, a 1933 move by President Franklin Roosevelt to terminate the service of a Federal Trade Commission member was negated unanimously by the high court just two years later: In the Humphrey’s Executor v. U.S. ruling, the Supreme Court backed Congress’ authority to set a specific term for regulatory personnel, as well as the legislature’s dictum that certain regulatory agencies be able to operate independent of executive control. A subsequent similar decision occurred 23 years later, when a unanimous Supreme Court, in Wiener v. U.S., overturned the firing of a War Claims Commission member by the Dwight Eisenhower administration. Finally, the Supreme Court’s 1988 decision in Morrison v. Olsen split the middle, upholding Congress’ authority to appoint a special prosecutor but hinting at conditions that would permit legal removal.
After Republican and Democratic presidents alike kept the pressure on to expand presidential authority to remove executive personnel, the Supreme Court issued an important ruling in 2020, holding that the structure of the Consumer Financial Protection Bureau is unconstitutional and that the president can remove its director without cause. During that same year, President Donald Trump’s removal of five inspectors general — government watchdogs attached to cabinet departments and agencies — contributed to his first impeachment. But, too, Congress loosened the traditional “just cause” reason for terminating such personnel, as long as 30 days’ notice and some reasons were provided.
A few weeks into his second term as U.S. president, Donald Trump directed the firing of 18 inspectors general, who were ordered to vacate their positions immediately. Eight have filed suit to block the action. If we look to the federal courts to predict success, the best chance would be at the U.S. District Court level, where 55% of total judges have been appointed by Democratic presidents. At the U.S. Court of Appeals level, you can flip a coin overall, as half of total judges there have been chosen by each party’s presidents.
The Supreme Court’s ideologically conservative supermajority composition — which has already imbued a sitting president with blanket immunity — combined with recent reinforcing removal-related actions by Congress and the courts portend a return to an absolute, unconditional presidential power to fire any personnel within the executive branch. For better or worse.
Reader reactions, pro or con, are welcomed at civiltalk@iniusa.org.
