The Scope of the Removal Power Is Ripe for Reconsideration

Abstract

This article was requested by The Judges Journal for inclusion in a symposium devoted to the status of administrative law judges. Professor Pierce argues that the scope of the removal power is ripe for review; the Supreme Court should hold that the president must have the power to remove all officers with executive responsibilities at will to allow the president to perform the functions vested in the president by Article II; and the Court should hold that due process requires that officers with purely adjudicative functions must be insulated from potential control by the president by forbidding their removal without cause. Professor Pierce also argues that, with one glaring exception, the Court's prior opinions with respect to the scope of the removal power are consistent with the dichotomy he supports if those opinions are read with care and considered in the context in which they were issued. He urges the Court to eliminate the one glaring exception by overruling its 1955 opinion in Marcello v. Bonds and restating the principles it announced and applied in its 1950 opinion in Wong Yang Sun v. McGrath.