Posts Made By: Rod Kaufman

Originally Posted by James Brown

I wonder what the liberals will do too.  Sounds like the Administration has good arguments, based upon your article.  Rather than viewing this through a conservative=bad, liberal=good litmus test, what do you think of the arguments below on the merits?

“Until now, as far as we are aware,” Harris wrote, “no court in American history has wielded an injunction to force the President to retain an agency head whom the President believes should not be entrusted with executive power and to prevent the President from relying on his preferred replacement.”

The executive branch has for nearly five decades, Harris noted, believed that the restrictions on the president’s ability to remove the special counsel violate the Constitution, because the power to make decisions about investigations and prosecutions falls squarely within the president’s power as the head of the executive branch.

As a general rule, Harris continued, the president can remove senior officials whenever he wants. Indeed, in two recent cases, Harris added, the Supreme Court has held that restrictions on the president’s power to remove the solo heads of the Consumer Financial Protection Bureau and the Federal Housing Finance Agency violate the Constitution. Based on those decisions, she observed, Biden in 2021 removed the head of the Social Security Administration."

Originally Posted by Rod Kaufman

"what do you think of the arguments below on the merits?"

Well, first of all, my point here is that the conservatives on the court routinely state they will not consider the merits of a case unless it suits their belief system. 

The case from the appeals court has been decided there on procedural grounds and not on the merits of the issue as stated in your reply. So, when I note it'll be interesting to see what the cons will do with this, my take continues to be they will tow the line of the Trump administration and decide the issue on its merits and not on procedural grounds as they should and in other cases would do.

My personal take on the merits as stated is that the law regarding removal of the department head in question violates his due process as established by law. In other words, while the president may have the authority to order his removal, he is still obligated to follow the procedures for doing so, which, clearly, in this case, he did not.

Originally Posted by James Brown

P.S. I don't see it as a Due Process question.  I see it as a separation of powers question.   In general, the Executive Branch can hire and fire employees at will.   In this instance though, the Legislative Branch created an oversight position, consistent with the Legislative Branch's oversight duties.   As part of the enabling statute, the Legislative Branch requires cause for the person to be fired, which is indeed a check on the Executive's general "fire-at-will" authority.   Is it a reasonable check and balance?  We'll find out soon.

Originally Posted by James Brown

We’re both right - The first question is separation of powers, “does Congress have the authority to dictate the process for firing this sort of executive employee”.   The second question is, if the answer is yes, “did the president follow that process.”   My only quibble is I don’t think it is a “Due Process” issue under the 14th Amendment, like it would be if Trump had fired this employee because he was black.  I totally understand your point though.