AFPF Files Amicus Brief Applauding President Trump’s Effort to Spur The End of The De Facto Fourth Branch of Government  

The separation of powers is badly distorted. Today, there are many administrative bodies within the Executive Branch that Congress has tried to shield from presidential control, and in doing so, set up a veritable Fourth Branch of government.  President Trump recently has taken several actions to assert his proper control over these extraconstitutional administrative bodies.  These actions have predictably spurred lawsuits, and the courts are now squarely presented with the question of whether the President can remove an Executive Branch official when he chooses.  AFPF resoundingly argues: yes. 

NLRB Should Not be Shielded from Presidential Control

One such body is the National Labor Relations Board, an agency with vast investigative, prosecutorial, adjudicative, and rulemaking powers tasked with setting national labor policy. Its Board Members are confirmed by the Senate and wield substantial Executive Branch authority. Nonetheless, the Congress that created the NLRB sought to insulate its Board Members from accountability to the duly elected President—and thus to the American People—for their actions by statutorily restricting the President’s power to supervise and, if need be, remove these officials. But those restrictions are unconstitutional and thus void. The Constitution grants the President plenary power to remove subordinate Executive Branch officials at will. And Congress cannot take that power away.  

In January, President Trump removed a Board Member whom he had lost confidence in, as the Constitution allows him to do and consistent with his constitutional responsibility to manage the Executive Branch and faithfully execute the law. The Board Member sued, arguing that because she enjoyed statutory for-cause removal protections, the President lacked the power to fire her, and seeking reinstatement.  

AFP Foundation Files Amicus Brief in the D.C. Circuit

Today, Americans for Prosperity Foundation filed a friend-of-the-court brief in the U.S. Court of Appeals for the D.C. Circuit in Wilcox v. Trump in support of President Trump’s ability to supervise unelected officials in the administrative state.  

The brief argues:    

In this country, all governmental power must flow from its proper source: We the People. Our system of government relies on the consent of the governed, memorialized in the Constitution. In that document, the People agreed that three branches of government—legislative, executive, and judicial—would exercise different forms of power that must be kept separate.  

This means that there can be no Fourth Branch of government—headless or otherwise—and that Congress may not create free-floating administrative bodies that straddle multiple branches. 

The Constitution Grants the President the Power to Remove Executive Branch Officials

The Constitution vests all executive power in a duly elected President who is, among other things, tasked with faithfully executing and enforcing federal law and managing the Executive Branch. The Constitution contemplates that the President will be assisted in carrying out his constitutional responsibilities by subordinate Executive Branch officials, the most important of which must be confirmed by the Senate. But to protect liberty and ensure democratic accountability, the Constitution also grants the President plenary power to supervise and remove these officials at will. 

The brief continues: 

As the Supreme Court’s recent decisions reaffirm, the Constitution grants the President plenary power to remove at will principal officers in federal agencies that wield substantial executive power. This includes those at multi-member agencies like the NLRB. Congress cannot restrict by statute that constitutionally illimitable presidential power. By that measure, this case is not close.  

NRLB Board Members are indisputably principal officers who are, collectively, the head of the agency. The constitutionality of the statutory for-cause removal restrictions at issue here thus turns on whether the NLRB exercises substantial executive authority. It plainly does. The NLRB has vast investigative, enforcement, adjudicative, and rulemaking powers affecting a broad swath of the entire private economy. That well describes not just substantial but sweeping executive power under current precedent.  

As the Supreme Court has repeatedly explained, “[t]he activities of executive officers may take legislative and judicial forms, but they are exercises of—indeed, under our constitutional structure they must be exercises of—the executive Power, for which the President is ultimately responsible.”  

Thus, the statutory removal restrictions violate Article II and are void. For as the Supreme Court has explained, “an unconstitutional provision is never really part of the body of governing law (because the Constitution automatically displaces any conflicting statutory provision from  the moment of the provision’s enactment)[.]”  

In sum, under the Constitution, President Trump had a right to remove the NLRB Member and properly did so.