Professor Robert Pushaw, Congress Can Limit the President's Power to Remove Independent Agency Officials -- U.C. Davis Law Review Online

Professor Robert J. Pushaw's article, Congress Can Limit the President's Power to Remove Independent Agency Officials, (SSRN) is published in the U.C. Davis Law Review Online, 59 U.C. Davis L. Rev. Online 339 (2026).  The article examines whether Congress can constitutionally require the President to show "good cause" before firing a member of a bipartisan executive agency appointed for a fixed term. 

Abstract of Congress Can Limit the President's Power to Remove Independent Agency Officials

This article examines the fundamental separation-of-powers question raised in Trump v. Slaughter: whether Congress can constitutionally require the President to show "good cause" before firing a member of a bipartisan executive agency appointed for a fixed term. Challenging the ascendant "Unitary Executive" (UE) theory—which posits that Article II vests absolute, at-will removal authority solely in the President—Pushaw argues that the Constitution contains no express text granting such power, meaning any removal authority must be implied. Applying a Neo-Federalist structural analysis, he demonstrates that while the President can only independently imply powers that are "indispensably necessary" to execute express duties, Article I’s Necessary and Proper Clause broadly empowers Congress to enact "beneficial" statutory framework rules, such as protecting expert agency officials from summary dismissal to ensure administrative impartiality. By tracing historical practice from the First Congress through the 1935 landmark precedent Humphrey’s Executor v. U.S., Pushaw shows that independent commissions have long coexisted with—and even facilitated—the expansion of presidential power. Ultimately, he urges the Roberts Court to honor originalist history and stare decisis by refusing to overrule Humphrey’s Executor, warning against the severe practical ramifications of invalidating the statutory independence of multimember regulatory agencies.