Document Type

Article

Publication Date

9-2025

Abstract

The administrative state is again at a cross roads. The Supreme Court seems poised to continue its march toward trying to fit all of government neatly into one of the three constitutionally enumerated branches. An important front of this shift has been a flattening of the mechanisms through which officers of the United States may be held appropriately accountable for their actions. Waning are the days when Congress had the flexibility to create the institutions it believed were “necessary and proper” for carrying into execution important policy aims and to determine the appropriate mechanisms for accountability in conjunction with considering the impact of those mechanisms on other aims, such as the capacity to achieve important policy goals. It now appears that six members of today’s Supreme Court believe the Constitution never granted Congress such flexibility. That was a misunderstanding. Except for increasingly “narrow exceptions,” the President “may remove without cause executive officers” even when Congress provides otherwise because they “exercise that power on his behalf.” We’ll leave to the side inconvenient facts, from the Opinion Clause to cases such as Morrison v. Olson that espoused a much more flexible approach, and just accept that this is where the Court is headed.

Disciplines

Administrative Law | Constitutional Law | Law

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