R.J. Pestritto is right that the removal fight matters. If the president cannot fire executive subordinates, it becomes difficult to see how he can “take Care that the Laws be faithfully executed.” But Pestritto also says near the end of his essay that removal is only a first step, and he cautions against merely substituting judicial power for administrative power. That’s the point I want to pull forward here: restoring presidential control over the executive branch alone does not cure an unconstitutional delegation and a fusion of powers. We need to address the fact that most of the administrative state has no constitutional warrant—and also that restoring such awesome power to the president absent greater reforms might in fact do more harm than good.
The Trump Administration is asking the Supreme Court to overturn its decision in Humphrey’s Executor v. United States (1935), which held that Congress could limit the president’s power to remove members of “independent regulatory commissions.” In that case it was the Federal Trade Commission, but the principle has been applied to others like the National Labor Relations Board, the Equal Employment Opportunity Commission, the Federal Communications Commission, and, biggest of all, the Federal Reserve.
