[Congressional Record Volume 165, Number 94 (Wednesday, June 5, 2019)]
[Senate]
[Pages S3259-S3261]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. LEE (for himself and Mr. Hawley):
  S. 1753. A bill to promote accountability and effective 
administration in the execution of laws by restoring the original 
understanding of the President's constitutional power to remove 
subordinates from office; to the Committee on Homeland Security and 
Governmental Affairs.
  Mr. LEE. Mr. President, President Trump was famous for many things 
even before he was elected. One of those things was the catch-phrase 
``You're fired,'' which he popularized on his reality TV show ``The 
Apprentice.''
  This is a relatively commonplace phrase. It is something that most 
persons are familiar with, but it is not surprising that the phrase 
would have so much appeal for a television audience. I think the reason 
has something to do with the fact that it carries a certain power and 
resonance with it because the person who has the authority to use it 
within any organization is, generally speaking, a person who gets to 
call the shots. It is emblematic of executive control and, therefore, 
the ability to get things done within an organization.
  That is not to say that good leaders get their way solely or even 
primarily by threatening to fire people who work for them. Effective 
leadership, more often than not, requires what are sometimes called 
soft leadership skills.
  But the fact, nonetheless, remains that the head of an organization 
must always have hanging in reserve, sort of like an employer Damoclean 
sword--the absolute right to terminate a subordinate.
  It is the ultimate and essential backstop that enforces and reifies 
an executive's power to make decisions. This is true for pretty much 
any leader, whether that leader happens to be the CEO of a corporation, 
the coach of a sports team, or a general out on the field of battle.
  Yet, remarkably, under our laws, the President of the United States 
lacks authority over many high-ranking officers within the executive 
branch. Despite its elemental association with Executive power, 
Congress and the courts have time and again deprived the President of 
the ability to remove his subordinates at will.
  These restrictions often take the form of statutory for-cause removal

[[Page S3260]]

protections, such as the provision of the Federal Trade Commission Act 
that provides that Commissioners may be removed only ``for 
inefficiency, neglect of duty, or malfeasance in office.''
  In enacting laws like this, Congress has cast aside the original 
meaning of the Constitution and thereby eroded a critical safeguard of 
American freedom. As anyone who has studied the Constitution or 
constitutional law, for that matter, can guess, my reference to the 
FTC's for-cause protection is not accidental.
  That statute formed the basis of the lawsuit that culminated in the 
1935 decision by the Supreme Court in a case called Humphrey's 
Executor, in which the Supreme Court held for the first time that 
Congress may impose restrictions on the President's removal power.
  In so holding, the Supreme Court overruled its earlier precedent in 
Myers v. United States, which had held that Congress may not limit the 
President's ability to remove principal officers within the Federal 
Government, but Humphrey's Executor didn't simply overrule Myers. 
Rather, as Justice Scalia later wrote, ``it gutt[ed], in six quick 
pages devoid of textual or historical precedent. . . . a carefully 
researched and reasoned 70-page opinion.'' That juxtaposition alone 
tells you what you need to know about these decisions. One had 
constitutional text and original understanding and historical precedent 
behind it. The other was constitutional law by judicial fiat.
  Article II of the Constitution unquestionably establishes a unitary 
executive. The vesting clause provides that ``the executive power shall 
be vested in a President of the United States of America.''
  As Alexander Hamilton explained it in Federalist No. 70, placing the 
totality of the Executive power in a single individual was no 
happenstance. It was no mistake. It wasn't just sort of some fluke. The 
delegates to the Constitutional Convention recognized that a unified 
executive was essential to ensure energy and accountability in the 
execution of the laws, and the Constitution was drafted accordingly, 
consistent with this understanding.
  Without the authority to supervise and direct, and, yes, ultimately 
fire his subordinates, it is impossible for the President to fulfill 
his duty imposed by article II to ``take care that the laws be 
faithfully executed.''
  The Founders also understood that the President's removal power was 
the bedrock of his authority to oversee the executive branch. In a 
famous debate during the First Congress, James Madison argued that ``if 
any power whatsoever is in its nature Executive, it is the power of 
appointing, overseeing, and controlling those who execute the laws.''
  He went on to note that ``if the President should possess alone the 
power of removal from office, those who are employed in the execution 
of the law will be in their proper situation, and the chain of 
dependence be preserved; [they] will depend, as they ought, on the 
President, and the President on the community.''
  Madison's argument prevailed, and the First Congress declined, on 
constitutional grounds, for the reasons articulated by James Madison 
himself, to create for-cause removal protections for the heads of the 
newly established executive branch departments. They considered it; 
Madison raised, very persuasively, this constitutional argument against 
it; and then they voted it down. That was the original understanding of 
the removal power, and it predominated for nearly 150 years after the 
Founding.
  Since Humphrey's Executor and its radical departure from the original 
understanding in 1935, for-cause removal protections, both statutory 
and otherwise, have, sadly, proliferated, giving rise to a vast, 
headless, out-of-control branch of government, a fourth branch of 
government, if you will, that exists beyond the control of the 
President and is therefore unaccountable to the people.
  In fact, by some estimations, there are over 80 so-called independent 
agencies within the executive branch. These executive branch agencies 
that we refer to somehow as independent are entrusted with regulating 
immense swaths of American life--from competition policy and workplace 
safety regulations to labor relations and even securities laws. They 
make rules; they adjudicate rights; and they enforce laws. The 
potential for abuse is tremendous; the inconsistency with the 
republican principles this country was founded on, obvious.
  Now, there are a lot of people here who like the sound of the term 
``independent agency,'' and they might suppose, incorrectly, that an 
agency that is independent, that is beyond the control of the President 
of the United States to oversee, that that is somehow a good thing.
  On closer inspection, we discover that quite the opposite is true. 
When we insulate someone from Presidential oversight, what we are doing 
is taking the American people out of the picture. There is a reason why 
we have elections every 4 years, and those elections focus on the 
election of a President. It is so there is some chain of accountability 
between the people and the executive branch of government.
  That has become more important, not less, over the last few decades 
as we have created more and more executive branch agencies and we have 
entrusted those agencies with more and more power. It has never been 
more important than it is today to make sure the people are connected. 
If you disconnect the American people by insulating them from the 
political process, then you have a whole group of people who these days 
are charged not just with administrating the laws but, in some cases, 
with effectively making it and interpreting it, and you are taking them 
beyond the supervision that would otherwise be appropriate by the 
President of the United States within the executive branch of 
government.
  In their fight against British tyranny, the Patriots of the American 
Revolution rallied behind the principle of ``no taxation without 
representation.'' Today we are faced with a somewhat different threat 
to freedom, as Chief Justice Roberts wrote in a case just a few years 
ago. ``The growth of the Executive Branch, which now wields vast power 
and touches almost every aspect of daily life, heightens the concern 
that it may slip from the Executive's control, and thus from that of 
the people.''
  In other words, as Chief Justice Roberts explained, when you take 
this power away from the President, you are taking it away from the 
people. The people lose their input on and their control over these 
very important functions of what is appropriately described as the 
people's government.
  The concern is further compounded by the existence of independent 
agencies that are, by law, divorced from any Presidential control. As a 
result, in this new fight against tyranny, our watchword perhaps must 
be ``no regulation without representation.'' That is why I have 
spearheaded the Article I Project and why I supported legislation such 
as the REINS Act and the Separation of Powers Restoration Act that 
would bring the Federal regulatory apparatus, as we know it, to heel.
  Of course, more is needed. We need to not only reform Congress's 
relationship with the administrative state but the President's as well. 
To that end, I am introducing new legislation called the Take Care Act. 
The bill would restore the unitary executive envisioned by the Founders 
and, in fact, required by the Constitution by stripping away all 
existing for-cause removal protections from the so-called independent 
agencies. It would also limit Congress's ability to create for-cause 
protections by implication in the future and take other critical steps 
to fortify the President's directive authority.
  Simply put, the Take Care Act would eliminate the headless fourth 
branch of government, empower the President to ensure faithful 
execution of the law, and make the bureaucracy accountable to the 
people again. Importantly, the Take Care Act would not cause the work 
of administrative agencies to become subject to the unmitigated whims 
and caprices of a President. There is still very real, very meaningful 
political constraints, including the Senate's advise and consent role, 
that would ensure, as they do now, in areas outside of these so-called 
independent agencies, that the executive officers can fulfill their 
congressionally assigned duties without undue interference.
  In other words, although there are some so-called independent 
agencies as to which the President has no removal

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power, there are a whole lot that are not. The President's Cabinet and 
many other positions within the Federal Government involve people who 
are appointed by the President, confirmed by the Senate, and who serve 
at the pleasure of the President who can be fired at any moment for any 
reason the President might deem appropriate.
  Nevertheless, that does not mean that Presidents go around just 
firing people arbitrarily because Presidents understand that there is a 
political cost to doing that. We have seen in recent years, and we have 
seen earlier in American history, how Presidents, even when they have 
disagreements with members of their Cabinet or other people who serve 
at the pleasure of the President--Presidents are still reluctant to 
fire people because there are political costs attached to that, and 
especially where Congress perceives there might be a partisan political 
motive in mind, Congress may well take action.
  In the case of the Senate, it almost inevitably will at least 
threaten, if not carry out the threat, to hold up future confirmations 
of Presidential appointees if Presidents abuse this power.
  So it simply isn't true to say that this would open the floodgates 
and cause all Presidents to just fire people arbitrarily without 
hesitation in the future. What it would mean is that our elected 
President would have the power to represent the people and to oversee 
the executive branch of the Federal Government just as article II 
already requires.
  So all this bill would do would be to rescind and limit 
unconstitutional restrictions on the President's removal power, and 
while it may be more convenient to limit this power by statute, 
convenience and efficiency are not the primary objectives or the 
hallmarks of a democratic government, as the Supreme Court has 
repeatedly reminded us.
  Another famous catchphrase popularized by an American President is 
``the buck stops here,'' which President Truman, of course, displayed 
on a placard on his desk in the Oval Office at the White House during 
his Presidency. What it means is, the President is the final decision 
maker within the executive branch, and, therefore, bears the sole and 
ultimate responsibility for executing the laws.
  In order to fulfill that very special, sacred, important 
responsibility, the President must have plenary power to direct the 
President's subordinates in how they carry out their assigned tasks 
and, if necessary, fire them. That is what the Constitution and, 
indeed, common sense require. By restoring the original understanding 
and restoring the removal power to the Presidency, the Take Care Act 
would give the President this authority.
  By taking this step, we would reempower the American people with that 
which is rightfully theirs to begin with.

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