A Government of Laws and Not of Men: Why Justice Brandeis Was Right to Assume Congress Can Restrain the President's Removal Power

Authors

Danielle Rosenblum, Fordham University School of Law

Abstract

Since the Founding, the extent of the president’s power to remove executive officials from office remains unsettled. While the Appointments Clause in Article II, Section 2 empowers Congress to participate in the hiring of executive officials, the United States Constitution’s text is silent on whether Congress can limit the president’s ability to fire such employees. The debate on the proper scope of the president’s removal power is significant because it serves as a proxy for a larger constitutional question: whether constraints on presidential power advance or sit in tension with democracy. This Article argues that Justice Brandeis was right to champion a shared removal power between Congress and the president to prevent the arbitrary exercise of executive power and uphold democratic values.

Recommended Citation

Danielle Rosenblum, A Government of Laws and Not of Men: Why Justice Brandeis Was Right to Assume Congress Can Restrain the President's Removal Power, 1 Fordham L. Voting Rts. & Democracy F. 213 (2023).
Available at: https://ir.lawnet.fordham.edu/vrdf/vol1/iss2/7