Vanderbilt Law Review

First Page



Despite persistent constitutional questions, United States administrative agencies have grown in influence during this century.' Much of this controversy has centered around Congress's ability to control the removal of administrative officials constitutionally. In an effort to retain control of administrative agencies and in recognition of the need to conduct certain adjudicative functions outside the executive's domain, Congress has sought to create some agencies free from presidential influence. In particular, Congress has focused on at- tempting to limit the President's power to remove administrative officials. Although such limitations have always been controversial, the Supreme Court is generally thought to have resolved this particular constitutional issue: while Congress itself may not control the removal of a government official performing executive duties, Congress may limit the President's power to remove. Congress has therefore won the constitutional battle to establish its power to limit the President's removal authority. The essential question now is how this victory affects the larger struggle to create agencies independent of presidential control. How much legal protection has Congress actually secured for government agency heads, and what legal rights vest in these officials as a result?

Congress has sought to limit the President's removal power, and thereby insulate some administrative activities from direct presidential control,s by including "for-cause" removal provisions in the enabling statutes of certain administrative agencies. Such clauses allow the President to remove officers only "for cause," and they typically limit "cause" to "inefficiency, neglect of duty, or malfeasance in office." Theoretically, this limitation, along with other measures enacted by Congress, frees an agency head from the need to defer to presidential opinion, creating a "body which shall be independent of executive authority, except in its selection, and free to exercise its judgment without the leave or hindrance of any other official. . .." The effectiveness of for-cause removal provisions in accomplishing this goal, however, remains unclear.? Because a president's assertion of cause has never been challenged in court, the legal extent of this independence has never been tested. Thus, it is unclear what remedy, if any, would be available to an agency head who was discharged without proper cause. Such an agency head would likely seek redress in the courts, requesting either money damages or reinstatement. This Note explores the extent to which each of these remedies is either unavailable or ineffective in accomplishing Congress's goal of creating independence.

After examining the historical development of limitations on the President's removal power, this Note explores possible remedies available to an improperly discharged agency head. Typical remedies for unlawful removals are money damages and equitable relief.' Part III concludes that because an award of money damages would not effectively constrain the President, it would not accomplish Congress's goal of assuring agency heads that they will remain in their positions. Part IV then examines the constitutionality of the equitable remedy of reinstatement, exploring the difficulties posed by the Appointments Clause and the doctrine of separation of powers. Part V then confronts the separate barriers presidential immunity and justiciability pose to reinstatement. Finally, Part VI considers equitable concerns relevant to the granting of reinstatement. All of these considerations suggest that a court either could not or would not reinstate an agency head.

This Note therefore concludes that money damages are ineffective and reinstatement is not available as a remedy for the invalid removal of an independent agency head. Consequently, the for-cause provisions in independent agencies' enabling statutes offer no practical, legal source of independence. More broadly, this absence of legal rights vesting in independent agency heads calls into question the efficacy of Congress's attempts to use for-cause provisions to insulate certain agencies from presidential control.'