A new legal debate is examining whether the U.S. Constitution supports an absolute presidential authority to remove federal officers. The Supreme Court frequently looks to the Founding era when deciding major constitutional disputes, and this argument—over whether presidents can dismiss officials even when Congress has restricted that power—has sparked sharp disagreement among legal scholars.
No Clear Founding-Era Agreement
Legal scholars Andrea Katz, Noah Rosenblum, and Jane Manners recently argued that historical evidence does not support an unlimited presidential removal power. While the Constitution grants impeachment authority to the judiciary and legislature, it contains no explicit language about removal beyond that. Katz, Rosenblum, and Manners contend the Founders never reached a unified position on the issue, leaving the question open to interpretation.
They challenge an opposing view from Saikrishna Prakash and Aditya Bamzai, who point to three key historical sources: statements from a ratifying convention, early state constitutions, and early presidential firing practices. Katz, Rosenblum, and Manners respond with their own historical examples, arguing the evidence remains unsettled.
The central question is whether the Constitution’s silence on removal implies broad presidential authority. Some scholars argue Congress and the president can address the issue through legislation and precedent, while others, including Prakash and Bamzai, maintain the absence of explicit language suggests an inherent executive power. Katz, Rosenblum, and Manners reject this interpretation, noting the Founders had just rejected royal overreach and were unlikely to grant such sweeping authority without explicit debate.
Pennsylvania’s Inconsistent Record
Katz, Rosenblum, and Manners focus on Pennsylvania, one of the largest states in the early republic, to counter Prakash and Bamzai’s claims. The latter cite the 1784 Pennsylvania Report of Censors, which they argue proves governors there held unrestricted removal power. However, Katz, Rosenblum, and Manners argue the report’s detailed attention to removal procedures demonstrates the issue was far from settled.
The report’s drafters emphasized legislative removal authority over executive discretion, suggesting they viewed removal as a matter of office design rather than an absolute executive right. Early Pennsylvania practices also included cases where governors removed officials for cause and faced impeachment for doing so, weakening the argument for unfettered executive power.
While some early presidents dismissed officials without Senate approval, Katz, Rosenblum, and Manners argue these cases do not establish a national consensus. Other examples show presidents respecting congressional limits on removal, reinforcing the need for explicit legal definitions.
This historical ambiguity reflects broader disagreements in the early republic. Some figures assumed removal power was inherent, while others believed statutes, not tradition, should govern dismissals. The lack of a clear Founding-era position means the question remains unresolved.
Modern Implications
The Supreme Court‘s upcoming decision could address executive authority over federal officers. If the Court aligns with Prakash and Bamzai, it would support their view of presidential power.
Founding-Era Practices Show Removal Power Was Context-Dependent
The Constitution’s silence on removal authority does not imply an absolute executive right, according to Katz, Rosenblum, and Manners. They argue that early state practices treated removal as tied to the structure of each office rather than as an inherent presidential privilege. For example, Pennsylvania’s governors removed officials for cause, and one governor faced impeachment for removing an officer without justification, indicating removal was not an unrestricted power.