Conservatives have long criticized the notion of independent executive branch agencies.
Article II, Section 1 of the Constitution provides that “[t]he executive Power shall be vested in a President of the United States of America”—not some executive power, but all of it, unless the Constitution explicitly provides otherwise.
That is often referred to as the unitary executive theory, and has been, at least until now, derided by most liberals—and often grossly mischaracterized, as in this excerpt from the movie “Vice” (warning: contains profanity):
Perhaps that’s changing under President Joe Biden.
Relying on the language of Article II and agreeing with sentiments expressed by Alexander Hamilton in Federalist No. 70—“Energy in the Executive is a leading character in the definition of good government”—most conservatives think that an independent executive branch agency is an oxymoron.
Conservatives believe that under the Constitution, a president can remove for any reason any political appointee who is involved in the execution of the law or who assists in any other constitutional function under Article II, even if he ends up paying a political price for doing so.
In 1926, in Myers v. United States, the Supreme Court appeared to agree. But in Humphrey’s Executor v. United States (1935), Wiener v. United States (1958), and Morrison v. Olson (1988), the Supreme Court upheld statutory limitations on a president’s ability to remove “independent” executive branch appointees so that they could only be removed for cause, such as inefficiency, neglect of duty, or malfeasance.
Although not fond of those rulings, conservative presidents have abided by them. One would have thought that liberal presidents would, too—until now.
Since taking office, and to the delight of liberals, Biden has fired several of former President Donald Trump’s executive branch appointees, including Peter Robb and my former colleague Roger Severino, before their terms had expired and without cause.
On Biden’s first day in office, he sent a letter to Robb, the general counsel of the National Labor Relations Board, an independent agency, informing Robb that if he did not resign immediately, he would be fired. Robb, whose term wasn’t to expire until Nov. 16, 2021, refused to do so and was terminated.
Four Republican senators have sent a letter to Biden, objecting to Robb’s termination. Although Robb has not (yet) filed a lawsuit challenging his termination, others have filed motions challenging the authority of Robb’s replacement to act.
On Feb. 2, Severino, who had served as the director of the Department of Health and Human Services’ Office for Civil Rights for most of Trump’s term, received a similar letter, demanding that he resign immediately from the…
Read More: Liberals Claim to Support Independent Agencies. So Why Is Biden Firing