Legal Debate on Agency Independence Matters, Now More Than Ever

Many high-level officials at independent agencies enjoy statutory protections from at-will removal by the president. Historically these protections have had little effect on these officials’ behavior. But just as courts begin to reconsider these protections, President Donald Trump is claiming he holds the constitutional authority to fire all such officials, putting future jobs at risk and raising thorny constitutional questions.

This month, the US District Court for the District of Columbia ruled Trump’s removal of Gwynne Wilcox as a member of the National Labor Relations Board violated a federal statute limiting the grounds on which Wilcox can be fired. Under that statute, Trump can fire Wilcox only for “neglect of duty or malfeasance in office, but for no other cause”—commonly referred to as a removal restriction or removal protection. Yet, when Trump fired Wilcox, he didn’t invoke either of these reasons.

More importantly, the district court also rejected Trump’s arguments this statutory removal restriction unconstitutionally intruded on the president’s executive power granted by Article II of the Constitution.

Our new research shows that while these removal restrictions historically were redundant with political norms and so had no practical effect on agency behavior, recent political drift has given removal restrictions real-world effect. Rulemaking, enforcement actions, and personnel are all affected when the heads of these agencies are protected from the president’s control.

Despite the ruling in Wilcox’s case, the constitutional question in the district court’s decision is far from settled. This was one of several cases testing the limits on the president’s constitutional removal authority, many of which appear destined for the US Supreme Court. In recent years, courts have been grappling with the constitutionality of these kinds of removal restrictions at independent agencies, and the Supreme Court has become increasingly willing to recognize the president’s broad authority to fire executive officials.

These independent agencies, such as the NLRB and the Federal Reserve System, are independent precisely because their organizing statutes prohibit the president from firing their leaders, even when he disagrees with their decisions. The mere existence of these independent agencies fits uncomfortably with the idea that the president can wield his “removal power” over his subordinates.

Constitutional debate over the president’s removal power dates back to 1789, but surprisingly little research has been done to study whether these removal restrictions cause independent agencies to behave any differently. We have tried to answer this question and help inform the court about the consequences of its decision as it weighs how to resolve it.

In 2010, the Supreme Court ruled that removal restrictions at an independent agency, the Public Company Accounting Oversight Board, were unconstitutional, effectively eliminating those protections. Because the PCAOB had a unique structure—it was embedded in another independent agency, the Securities and Exchange Commission—the court’s decision affected only the PCAOB, without undermining removal protections at other independent agencies.

Using that Supreme Court decision as a type of natural experiment, we take the number of early departures (before their terms expired) by PCAOB leaders and compare that data with early departures of leaders at other independent agencies with similar features but, importantly, that have continued to benefit from their removal protections.

This approach gives us information about whether agency heads at risk of being fired are more likely to leave their positions early, resulting in a personnel change that might dramatically alter the agency’s policy and enforcement decisions. Even short of leaving early, the mere threat of being fired might cause agency leaders to conform to the president’s will.

Our analysis demonstrates that for at least eight years following the elimination of removal restrictions at the PCAOB, there was no noticeable difference in early departures at the PCAOB compared with other similar independent agencies. However, from 2018 to 2022, judicial elimination of removal restrictions caused more than a 300% increase in early departures at the PCAOB, which included the firing of all PCAOB members following the November 2020 elections.

Our findings demonstrate that while removal restrictions historically might have done very little to change agency behavior, they have recently become a meaningful mechanism insulating independent agencies from the president’s influence. Conversely, their elimination would open agencies up to such influence.

These findings further suggest that removal restrictions, though enforceable, historically were redundant with both political norms against partisan involvement in independent agencies and political agreement on the missions of independent agencies. In other words, norms pushed presidents to leave independent agencies alone, and presidents generally agreed with the agencies’ actions.

But these political norms have been breaking down recently, and the overlap of Republicans’ and Democrats’ preferences regarding the work of independent agencies has grown increasingly thin. This phenomenon holds true across many independent agencies—even those that were originally created with broad, near-unanimous bipartisan support, such as the Federal Reserve Board.

The takeaways of our research might lend support to both sides of the constitutional argument. Some justices might view our findings as evidence that removal restrictions meaningfully interfere with the president’s ability to execute laws in a way that aligns with the will of the electorate. These justices might worry that independent agencies form a fourth branch, unaccountable to the president or any elected official.

Other justices might see the same findings as evidence that removal restrictions protect the law Congress enacted and ensure the president doesn’t interfere with the faithful execution of that law. For these justices, presidential interference taints agency expertise and independent judgment with base political and electoral interests.

Regardless of which argument one thinks is most legally or politically compelling, both sides at the court (and anyone else in the debate) should recognize the dissonance embedded in our findings: The Supreme Court might well rule these restrictions to be unconstitutional, only and precisely when they have started to matter.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Cree Jones and Tyler Lindley are associate professors of law at Brigham Young University Law School.

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