Whether the Constitution grants the President a removal power is a longstanding, far-reaching, and hotly contested question. Based on new materials from the Founding and early practice, we defend the Madisonian view that the “executive power” encompassed authority to remove executive officials at pleasure. This conception prevailed in Congress and described executive branch practice, with Presidents issuing commissions during pleasure and removing executive officers at will. While some Justices and scholars assert that Congress has broad legislative power to curb executive removals, their reading leads to a host of troubles. If, as some argue, Congress can limit the grounds for a presidential removal, what prevents Congress from likewise limiting the grounds for executive pardons, judicial judgments, and impeachment removals? The far-reaching legislative power that some scholars advance cannot be cabined to presidential removals. We also respond to a number of judicial and scholarly critiques, many grounded in claims about early statutes and practices. Though valuable, these critiques misunderstand or ignore certain practices, sources, and key episodes, like the events surrounding Marbury v. Madison. There was a widespread consensus that the President had constitutional power to remove, and early laws did not limit, much less bar, presidential removal of executive officers.

Aditya Bamzai & Saikrishna Prakash, The Executive Power of Removal, 136 Harvard Law Review 1756 (2023).