Committing to Agency Independence
Response to Aaron L. Nielson & Christopher J. Walker, Congress’s Anti-Removal Power, 76 VAND. L. REV 1 (2023).
Nielson and Walker argue persuasively that Congress flexing its anti-removal power muscles is constitutional. They point to the Senate’s clear role in appointments enshrined in Article II and the ways that the Supreme Court has, perhaps unwittingly, strengthened Congress’ anti-removal power. Yet anti-removal power runs directly counter to the presidential accountability principle the Court has articulated. To the extent anti-removal power is effective it lessens the president’s control over the agency. That is rather the point. The president retains some control, anti-removal power is not absolute, but then again, neither is statutory removal protection. Moreover, the Supreme Court has said recently that “the Constitution prohibits even ‘modest restrictions’ on the President’s power to remove the head of an agency with a single top officer.” Given the current pattern in the caselaw, I see little reason why the Court would not extend this logic to multimember agencies. The Court went on to argue that the president must be able to remove agency personnel for any reason, including, crucially, “different views of policy.” I just wonder if a Supreme Court truly committed to such complete presidential control of agencies might balk at Nielson and Walker’s proposal. There is no question that reducing presidential control is the very goal of the anti-removal tools Nielson and Walker lay out. In this way, anti-removal power is a “wolf [that] comes as a wolf.”
Associate Professor of Law, Maurer School of Law, Indiana University – Bloomington