(1/10) I've got a new paper out with @Jane_C_Manners on the President’s power to remove the heads of “independent” agencies: papers.ssrn.com/sol3/papers.cf…
(2/10) Just seven words stand between the President and the heads of many of these agencies—inefficiency, neglect of duty, malfeasance in office (INM).
(3/10) There is little consensus on what these words means or why Congress put them into over a dozen statutes.
(4/10) Our research reveals that “inefficiency” was inserted in state law in the mid-nineteenth century by reformers seeking to combat perceived government waste and corruption and then was picked by civil service reformers in the 1870s and 80s.
(5/10) “Neglect of duty" and "malfeasance in office" are common law concepts relating to the “faithful execution” of an office that date back at least 500 years.
(6/10) One implication of our analysis is that Presidents cannot remove for policy disagreements or direct independent agency actions (most of which were long thought to be “arms of the legislature”)
(7/10) Another upshot is that judges and scholars have been misreading over a dozen statutes that are silent on removal (they have assumed that the President can remove the heads of these agencies at pleasure when he cannot remove them at all under the statute).
(8/10) What makes agency heads independent is not the removal provisions sometimes called “protections” which permit the President to remove for INM but their tenure in office for a “term of years”
(9/10) @USSupremeCourt will have a chance to straighten this out on March 3 when it hears argument in Seila v. CFPB
(10/10) check out brief by @GillianMetzger2 and others on how @USSupremeCourt should tackle the case: supremecourt.gov/search.aspx?fi…
