Law & Liberty: “The Court’s Incoherence on Executive Removal”
By David Alvis and Flagg Taylor
“When the very first Congress met in 1789 to create and structure the original federal departments, a momentous constitutional question emerged: who has the power to remove federal officers? Since there was no discussion of the subject at the Constitutional Convention, the members of Congress had to examine the issue for the first time. Although as many as four distinct positions were voiced among the members of the first Congress, the political struggle over the removal power has been fought over the course of American history between two of those arguments articulated in 1789: congressional delegation theory and executive power theory.
Proponents of the first position argued that since the Constitution is silent or ambiguous about where removal power is vested, Congress is free to vest this power wherever it pleases. After all, isn’t the execution of the law simply auxiliary to the creation of law? Advocates for the second position, however, argued that the Constitution vests the removal power in the President alone. In their view, executive authority is vested entirely in the president subject only to those express provisions in the Constitution. If the Constitution is silent, then we should assume that the power to remove belongs to the one that has the power to appoint. At stake in this debate was more than simply the power to fire administrators; the members of the first Congress were trying to come to terms with the very meaning of the balance of powers under our constitutional system of government…”
David Alvis is an Associate Professor of Government and International Affairs at Wofford College, where he teaches courses on American Politics including: “The American Presidency,” “Constitutional Law,” and “Political Parties.” His publications include articles on the Electoral College, Progressivism and early twentieth century politics, as well as the Obama Presidency. He is the co-author, with Flagg Taylor and Jeremy Bailey, of The Contested Removal Power, 1789-2010 (University Press of Kansas, 2014) and the co-author, with Jason Jividen, of Statesmanship and Progressive Reform (Palgrave, 2013).
Professor Alvis is a JMC fellow.
Flagg Taylor is an Associate Professor of Political Science at Skidmore College, where he specializes in political theory. He is the co-author, with David Alvis and Jeremy Bailey, of The Contested Removal Power, 1789-2010 (University Press of Kansas, 2014). He is editor most recently of The Long Night of the Watchman: Essays by Václav Benda, 1977-1989 (St. Augustine’s Press, 2018). He is currently writing a book on Czech dissent in the 1970s and 1980s.
Professor Taylor is a JMC fellow.
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