Jane Manners, Fordham University, and Lev Menand, Columbia Law School, have posted The Power to Remove For Cause:
This Article reconstructs the common law of for cause removal in the United States. Drawing on extensive new analysis of state and federal materials, it shows that legislators typically paired fixed terms in office with “for cause” removal language to strike a balance: to protect officers from political termination while enabling the discharge of officials unable to carry out their duties effectively. Where a statute conferred a fixed term and authorized removal “for cause,” nearly all courts treated removal as an adjudicatory act—requiring notice, an opportunity to be heard, and de novo judicial review of the legal sufficiency of the asserted cause. By contrast, in schemes lacking fixed terms, some courts treated “for cause” language as merely admonitory, leaving process and review to political actors. Building on these findings, this Article recovers the significance of Reagan and Shurtleff, two largely forgotten Supreme Court cases from the early 1900s. These decisions form the doctrinal foundation on which much of the federal administrative state was subsequently built including institutions like the Federal Reserve Board. Our recovery provides a framework for evaluating ongoing disputes between the President and federal administrators. It cuts strongly against the government’s current position that “for cause” removals are nonreviewable and can be conducted without formal process—and offers concrete legal bases that courts today can use to police the outer limits of presidential removal power.
--Dan Ernst
