With the Washington Post reporting that special counsel Robert Mueller may subpoena him to testify before a grand jury, President Donald Trump took to Twitter on Wednesday morning, invoking “the President’s Article 2 powers under the Constitution to fire any executive branch Employee,” and his “unfettered power to fire anyone.” One small problem: He’s wrong.
The president does not, in fact, have the “unfettered power to fire anyone.” And until and unless the Supreme Court reverses a 30-year-old ruling, he doesn’t even have the power to fire Mueller without good cause. It turns out that running the executive branch really is different from running a business.
“The questions are an intrusion into the President’s Article 2 powers under the Constitution to fire any Executive Branch Employee…what the President was thinking is an outrageous…..as to the President’s unfettered power to fire anyone…” Joe Digenova, former US Attorney
— Donald J. Trump (@realDonaldTrump) May 2, 2018
The Constitution recognizes two categories of executive branch officers: “principal” officers, who must be nominated by the president with the advice and consent of the Senate, and who serve at the president’s pleasure; and “inferior” officers, the appointments of which “Congress may by law vest… in the President alone, in the courts of law, or in the heads of departments.” The Supreme Court has never drawn a bright line between the two, but the difference usually depends on how much independent authority the officer has. So Cabinet secretaries are principal officers, whereas their deputies and subordinates are inferior officers. But all government officers exercise significant federal authority in their own right.
The overwhelming majority of civilians who work for the executive branch are not officers, however, but simple employees. Again, the line between employees and inferior officers is not self-evident (the Supreme Court heard arguments in April in a case raising the distinction). But for folks who are clearly employees and not officers, most are protected by federal civil service laws, which, among other things, impose limits on when and how they can be terminated.
Even the most zealous advocates of broad executive power over personnel (albeit not Trump) accept that Congress has the authority to insulate non-officer employees from being fired without cause. So right off the bat, Trump is just wrong.
Even the most zealous advocates of executive power over personnel (albeit not Trump) accept that Congress has the authority to insulate non-officer employees from being fired without cause.
At the other end of the spectrum, the president has the most power over principal executive branch officers, such as Cabinet secretaries. Per a 1926 Supreme Court decision written by Chief Justice (and former president) William Howard Taft, such officers generally serve at the president’s pleasure. Although President Andrew Johnson was impeached in 1868 for violating an act of Congress that attempted to bar him from firing members of his Cabinet, the modern consensus is that Johnson was right — and Congress was wrong — about his constitutional prerogative.
Instead, the real debate among judges and scholars today is with regard to the middle category —inferior executive branch officers. These are individuals who exercise substantial governmental authority, but who tend to be subordinate to principal executive branch officers (common examples are deputy and/or assistant secretaries of Cabinet departments). In its monumental 1988 decision in Morrison v. Olson, the Supreme Court ruled 7-1 that the Constitution allows Congress to require good cause before the president can remove such an officer — in that case, an independent counsel appointed under the statute created by Congress after and in response to Watergate.
The Morrison decision has been something of a lightning rod among conservative commentators, who gravitate toward Justice Antonin Scalia’s powerful (but solo) dissent, and its embrace of the “unitary executive” theory of presidential power. Under this theory the president requires the authority to control all of his officer subordinates in order to properly do his job. And subsequent conservative judges (and justices) have invoked Scalia’s dissent as a reason to read Morrison narrowly — and to not uphold statutes that create additional constraints on the president’s removal power.
But the Morrison precedent itself remains good law, and is reflected in the very regulation that governs Mueller’s appointment, which only allows the attorney general to remove him “for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies.”
And legislation that passed the Senate Judiciary Committee on a 14-7 vote last week (with four Republicans joining the Democrats) would codify that standard and provide for judicial review in cases in which a fired special counsel believed the standard had not been met.
Legislation that passed the Senate Judiciary Committee would provide for judicial review in cases in which a fired special counsel believed the standard had not been met.
Senate Majority Leader Mitch McConnell has vowed not to allow a vote on the bill — the Special Counsel Independence and Integrity Act — because he believes it’s unnecessary. But some senators, including some of those who voted against it in the Judiciary Committee, have opposed the bill on the ground that it’s unconstitutional, claiming that, per Justice Scalia’s Morrison dissent, the bill interferes with the president’s power to remove subordinates. Of course, if these senators are right, then the existing regulation is itself unconstitutional, since it imposes the same constraint on the president’s power to fire Mueller.
In fact, there are three different problems with this constitutional objection. First, for at least some of these senators, it is quite clearly a pretext — a legal argument that, whether or not they believe it, gives them political cover to oppose alienating Trump. Second, even for the true believers, as Professor Jed Shugerman explained last week, there are compelling reasons to conclude that Chief Justice William Rehnquist got it right for the majority in Morrison — and that Justice Scalia was simply wrong even as a matter of original understanding. Third, and of most practical importance, there’s no good reason to believe that the current Supreme Court would invalidate the bill were it passed, and lots of good reasons to think that it wouldn’t.
All of this goes to say that the president is definitely wrong about his power to fire “everyone” in the executive branch, and is probably wrong with respect to inferior officers.
All of this goes to say that the president is definitely wrong about his power to fire “everyone” in the executive branch, and is probably wrong with respect to inferior officers whose removal Congress says requires “good cause.” But despite what McConnell believes, the fact that Trump believes he does have unlimited firing power makes the Mueller protection bill very necessary indeed. Trump, of course, could veto the bill if it ever somehow makes its way through both houses of Congress. But perhaps its existence would provide enough of a reason for Congress, should that come to pass, to override him.
Steve Vladeck (@steve_vladeck) is a professor of law at the University of Texas School of Law whose teaching and research focus on federal jurisdiction, constitutional law, and national security law. Steve is co-editor-in-chief of the Just Security blog (@just_security) and co-host of the National Security Law Podcast (@nslpodcast).