ArtII.S3.3.3 The Relationship Between the Take Care Clause and the President's Removal Power

Article II, Section 3:

He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

As the Supreme Court has observed, the Constitution vests all executive power in the President, who must “take Care that laws be faithfully executed.” 1 Because no single person could fulfill that responsibility alone, the Court notes, “the Framers expected that the President would rely on subordinate officers for assistance.” 2 As a result, the Court reasoned that “[t]he President’s power to remove—and thus supervise—those who wield executive power on his behalf follows from the text of Article II.” 3

Some early views of the President’s removal power grounds this authority in large part in the Take Care Clause. In a 1789 debate in the First Congress concerning whether the Constitution authorizes the President to remove executive branch officers unilaterally, for instance, Representative James Madison expressed the view that the heads of certain executive departments should be removable by the President alone. According to him, it was “the intention of the Constitution, expressed especially in the faithful execution clause, that the first magistrate should be responsible” for the executive department, and this responsibility carried with it the power to “inspect and control” the conduct of subordinate executive officers.4 Vesting removal power in the Senate jointly with the President would, in Madison’s view, “abolish at once the great principle of unity and responsibility in the executive department, which was intended for the security of liberty and the public good.” 5

Over time, however, as the Supreme Court refined its jurisprudence on the President’s removal power, it came to characterize the basis of this power as stemming more generally from separation-of-power principles embedded in the Constitution’s scheme, as evidenced by provisions including the Vesting Clause, Take Care Clause, and the Appointment Clause.6

Seila Law LLC v. Consumer Financial Protection Bureau, No. 19-7, slip op. 2 (U.S. 2020). back
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1 Annals of Cong. 495, 499 (1789). For more information about the 1789 debate, also known as the “decision of 1789” , see ArtII.S2.C2.3.15.2 Decision of 1789 and Removals in the Early Republic. back
Id. Shortly thereafter, however, when the question arose as to the power of Congress to regulate the tenure of the Comptroller of the Treasury, Madison assumed a very different position. He conceded in effect that this office was to be an arm of certain of Congress’s own powers and should therefore be protected against the President’s removal power. Id. at 611–612. In Marbury v. Madison, 5 U.S. (1 Cr.) 137 (1803), Justice John Marshall drew a parallel distinction between the duties of the Secretary of State under the original act which had created a “Department of Foreign Affairs” and those which had been added by a later act. Id. at 166. The former duties were, according to Chief Justice Marshall, entirely political and thus must “conform precisely to the will of the President.” Id. The latter duties, on the other hand, were exclusively of statutory origin and sprang from the powers of Congress. Id. Chief Justice Marshall reasoned that with respect to these duties, the Secretary was “an officer of the law” and “amenable to the law for his conduct,” suggesting that Congress may exercise certain removal power over executive officers. back
For a detailed discussion of the President’s removal power and the evolution in its interpretation, see ArtII.S3.3.1 Overview of the Take Care Clause through ArtII.S2.C2.3.15.7 Twenty-First Century Cases on Removal. back