A Big Win For Presidential Power

Article II of the Constitution says that “The executive Power shall be vested in a President of the United States of America.” Under the Constitution, the President is the Executive Branch. But over the years, Congress has tried to encroach on presidential powers in a variety of ways. Congress has created executive agencies, some of them supposedly “independent,” and has tried to insulate them from Presidential control–often, by providing terms in office that are not subject to the president’s power of removal.

At the beginning of his administration, President Trump exercised his Article II authority by firing a number of Executive Branch employees, among them Cathy Harris, a member of the Merit Systems Protection Board, and Gwynne Wilcox, a member of the National Labor Relations Board. Harris and Wilcox sued to retain their posts, alleging that the president had no statutory power to fire them, and their cases were consolidated.

Today, the U.S. Court of Appeals for the D.C. Circuit reversed a district court opinion and granted the government’s motion for an emergency stay on the ground, inter alia, that the Trump administration is likely to win upon a full hearing of the case. The decision was Per Curiam, but Judge Justin Walker wrote a long opinion explaining the court’s reasoning.

The Court held that the President’s Article II authority includes the power to fire employees of the Executive Branch, including Harris and Wilcox. Walker’s opinion is a ringing explication of the Constitution’s plain language:

[T]he district court described the President’s removal of Wilcox as a “power grab” and “blatantly illegal.” But unconstitutional statutes are void ab initio because Congress lacks the authority to enact them. Such statutes are not law, so it is not “illegal” for the President to violate them. And under the Supreme Court’s precedents, the President’s actions within the executive branch cannot amount to a “power grab” because “[t]he entire ‘executive Power’ belongs to the President alone.”

Emphasis added. That is, of course, what Article II says. But the Democratic Party’s position is that Democratic presidents can exercise such powers, while Republican presidents can’t.

More from Judge Walker’s opinion; see original for references and links:

Article II vests the President with the “entire ‘executive Power,’” which “generally includes the ability to remove executive officials.” The district courts’ orders effectively nullify that power. That level of interference is “virtually unheard of,” and “it impinges on the ‘conclusive and preclusive’ power through which the President controls the Executive Branch that he is responsible for supervising.” If the President “loses confidence in the intelligence, ability, judgment, or loyalty of any one of [his subordinates], he must have the power to remove him without delay.

Note: “Loyalty.” And, finally:

Even the most casual reader will have guessed by now that I agree with how Seila Law and Collins read Humphrey’s Executor. But even if I disagreed with them, this court would lack the authority to undo what they did. For a lower court like us, that would be a “power grab.”

Well put! Obama-appointed Judge Patricia Millett wrote a spirited dissenting opinion, accessible at the link above, that is not stupid. She emphasized the far-reaching consequences of acknowledging the plain language of Article II. As a representative of the Establishment’s pre-Trump consensus, she is probably as good as it gets. But the tide is flowing the other way, in the law as elsewhere. Today’s D.C. Court of Appeals decision may prove to be a milestone in restoring constitutional government.