Garrett Epps: Trump is at war with the whole idea of an independent judiciary
Thus, it appears to be settled that the president is in fact the one who exercises removal power over executive officials, yet it is also settled that this removal power can be conditioned in limited respects by Congress, as is the case with independent-agency heads, such as the director of the CFPB. Subsequent cases, including one authored by Chief Justice Rehnquist in 1988, have largely followed this approach by holding that Congress, when it sees fit, can impose modest restraints on the president’s removal of executive officials.
These precedents are close to a century old, but they remain controversial. Some conservatives passionately embrace the theory of the “unitary executive,” which holds that the president must be able to exercise or control all executive power with no constraints. In practice, this means that if the president cannot do the entire job of administering and enforcing the law—a self-evident proposition—then at least he or she can control other executive officials by replacing them at any time. The natural human assumption is that the person who can fire me from my job can more readily ensure my allegiance to do the job as they see fit. And for those officials in the executive branch under the president, Congress should have no right to interfere in this control over their actions.
But this legal theory, while perhaps logical in the abstract, runs up against potentially embarrassing real-life problems. For example, the Constitution only contemplates two essential executive-branch officials—the president and the vice president—and every other executive official only has authority and duties and responsibilities as prescribed by acts of Congress. When it was determined that the country needed to create a new Department of Homeland Security, for example, the president was not free to make those wholesale changes in the organization of the executive branch on his own, but instead had to get Congress to pass legislation to authorize it.
In a different vein, the perceived evils of the “spoils system” in the 19th century—whereby a new president could sweep out all executive-branch officials to make way for his own partisans—led to congressional limits on the president’s ability to fire most executive-branch officials solely on political grounds. These protections are the accepted principle of civil-service reform that has endured to this day. They are not consistent with an all-powerful executive who can control every rank of executive officials according to his or her whims.
Peter M. Shane: Trump’s quiet power grab
Accordingly, a more practical view of the separation of powers has been to reject the idea that each branch exercises its own powers in its own hermetically sealed sphere. On the contrary, the Framers set up a system of checks and balances whereby each branch interacts closely with the others, and each has various means of asserting itself against the others, so that no single branch of the government can establish tyrannical powers to infringe on the liberties of the people. For instance, the president has the power to interfere with Congress by vetoing legislation. Congress has the power to limit the president by controlling the budget and thus the size, scope, and aspirations of the executive branch. The courts have the authority to review actions taken by Congress or the president and to invalidate those deemed to be illegal.