Con Law ISeparation of Powers

The Removal Power

Myers (1926) upheld the President's power to remove executive officers; Humphrey's Executor (1935) allowed limits for multi-member commissions; Morrison v. Olson (1988) upheld the independent counsel; and Seila Law (2020) struck down limits for a single agency director; the Court overruled Humphrey's Executor in 2026.

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The Constitution says how officers are appointed but says almost nothing about how they are removed, except by impeachment. Can the President fire any executive officer at will, or may Congress protect some officers by allowing removal only "for cause"? The answer shapes who controls federal agencies, and the Court's answer has moved over a century.

The removal cases, 1926 to 2020.
CaseOfficerHolding
Myers v. United States (1926)A postmasterCongress may not require Senate consent for removal; the President may remove executive officers he appoints.
Humphrey's Executor v. United States (1935)A Federal Trade CommissionerCongress may limit removal of members of a multi-member commission described as "quasi-legislative" and "quasi-judicial." The Court overruled this precedent in 2026.
Wiener v. United States (1958)A member of the War Claims CommissionA body that decides claims on the merits is protected even when the statute is silent about removal.
Morrison v. Olson (1988)An independent counselA good-cause limit on removing an inferior officer with limited duties was valid; Justice Scalia dissented alone.
Free Enterprise Fund v. PCAOB (2010)Accounting board membersTwo layers of for-cause protection are invalid.
Seila Law v. CFPB (2020)The single director of the CFPBRemoval protection for a single agency head is invalid; Humphrey's was not extended.

Why it works

Two views compete. The unitary executive view: Article II vests "the executive Power" in one President and charges him to "take Care that the Laws be faithfully executed," so he must be able to remove those who exercise executive power for him; otherwise voters cannot hold anyone responsible. Its advocates point to the "Decision of 1789," when the First Congress debated and accepted presidential removal of department heads. The independent agency view: Congress, which creates offices, may decide some need insulation from politics, such as regulators of markets or elections; its advocates point to more than a century of independent commissions and to Hamilton's remark in Federalist No. 77 that the Senate's consent "would be necessary to displace as well as to appoint."

Key idea

Myers (1926) upheld the President's power to remove executive officers; Humphrey's Executor (1935) allowed limits for multi-member commissions; Morrison v. Olson (1988) upheld the independent counsel; and Seila Law (2020) struck down limits for a single director who wields significant executive power. The Court overruled Humphrey's Executor in 2026.

Worked example: Applying Seila Law

Congress creates an agency led by one administrator who writes binding rules and brings enforcement suits, and allows removal only for cause. Is the removal limit valid under Seila Law?
  1. The administrator is a principal officer, not an inferior officer with limited duties, so Morrison does not help.
  2. One person, not a multi-member body, heads the agency, and Seila Law refused to extend Humphrey's to that design.
  3. The administrator wields significant executive power (rules, enforcement).

Answer: Invalid. Following Seila Law, a court would likely cut the removal limit and leave the agency in place.

Worked example: Where Morrison fits

Is Morrison v. Olson still good law after Seila Law?
  1. Morrison upheld a for-cause limit on removing an inferior officer with limited duties and tenure.
  2. Seila Law described Morrison as an exception for inferior officers with limited duties and no policymaking or administrative authority.
  3. Seila Law did not overrule Morrison.

Answer: Morrison survives as a narrow exception for some inferior officers, though its reasoning has been criticized, most famously in Justice Scalia's dissent.

Common mistake

Thinking Humphrey's Executor protected every agency head. It covered only multi-member expert bodies, and the Court refused to extend it to single directors (Seila Law). Check: one head or a commission? A principal officer or an inferior one with limited duties?

For the history of the Decision of 1789 and the founding debate, see Federalist No. 76 and Federalist No. 77.

This is an educational course, not legal advice.

Practice

Pass with 3 right answers, the last 2 in a row. Each right answer earns 3 XP.

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This is one of the top rungs of Constitutional Law I: Structure.

Sources and further reading

@teddyrookbook GitHub