Statements on Introduced Bills and Joint Resolutions

Floor Speech

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Mr. LEE. Mr. President, President Trump was famous for many things even before he was elected. One of those things was the catch-phrase ``You're fired,'' which he popularized on his reality TV show ``The Apprentice.''

This is a relatively commonplace phrase. It is something that most persons are familiar with, but it is not surprising that the phrase would have so much appeal for a television audience. I think the reason has something to do with the fact that it carries a certain power and resonance with it because the person who has the authority to use it within any organization is, generally speaking, a person who gets to call the shots. It is emblematic of executive control and, therefore, the ability to get things done within an organization.

That is not to say that good leaders get their way solely or even primarily by threatening to fire people who work for them. Effective leadership, more often than not, requires what are sometimes called soft leadership skills.

But the fact, nonetheless, remains that the head of an organization must always have hanging in reserve, sort of like an employer Damoclean sword--the absolute right to terminate a subordinate.

It is the ultimate and essential backstop that enforces and reifies an executive's power to make decisions. This is true for pretty much any leader, whether that leader happens to be the CEO of a corporation, the coach of a sports team, or a general out on the field of battle.

Yet, remarkably, under our laws, the President of the United States lacks authority over many high-ranking officers within the executive branch. Despite its elemental association with Executive power, Congress and the courts have time and again deprived the President of the ability to remove his subordinates at will.

These restrictions often take the form of statutory for-cause removal protections, such as the provision of the Federal Trade Commission Act that provides that Commissioners may be removed only ``for inefficiency, neglect of duty, or malfeasance in office.''

In enacting laws like this, Congress has cast aside the original meaning of the Constitution and thereby eroded a critical safeguard of American freedom. As anyone who has studied the Constitution or constitutional law, for that matter, can guess, my reference to the FTC's for-cause protection is not accidental.

That statute formed the basis of the lawsuit that culminated in the 1935 decision by the Supreme Court in a case called Humphrey's Executor, in which the Supreme Court held for the first time that Congress may impose restrictions on the President's removal power.

In so holding, the Supreme Court overruled its earlier precedent in Myers v. United States, which had held that Congress may not limit the President's ability to remove principal officers within the Federal Government, but Humphrey's Executor didn't simply overrule Myers. Rather, as Justice Scalia later wrote, ``it gutt[ed], in six quick pages devoid of textual or historical precedent. . . . a carefully researched and reasoned 70-page opinion.'' That juxtaposition alone tells you what you need to know about these decisions. One had constitutional text and original understanding and historical precedent behind it. The other was constitutional law by judicial fiat.

Article II of the Constitution unquestionably establishes a unitary executive. The vesting clause provides that ``the executive power shall be vested in a President of the United States of America.''

As Alexander Hamilton explained it in Federalist No. 70, placing the totality of the Executive power in a single individual was no happenstance. It was no mistake. It wasn't just sort of some fluke. The delegates to the Constitutional Convention recognized that a unified executive was essential to ensure energy and accountability in the execution of the laws, and the Constitution was drafted accordingly, consistent with this understanding.

Without the authority to supervise and direct, and, yes, ultimately fire his subordinates, it is impossible for the President to fulfill his duty imposed by article II to ``take care that the laws be faithfully executed.''

The Founders also understood that the President's removal power was the bedrock of his authority to oversee the executive branch. In a famous debate during the First Congress, James Madison argued that ``if any power whatsoever is in its nature Executive, it is the power of appointing, overseeing, and controlling those who execute the laws.''

He went on to note that ``if the President should possess alone the power of removal from office, those who are employed in the execution of the law will be in their proper situation, and the chain of dependence be preserved; [they] will depend, as they ought, on the President, and the President on the community.''

Madison's argument prevailed, and the First Congress declined, on constitutional grounds, for the reasons articulated by James Madison himself, to create for-cause removal protections for the heads of the newly established executive branch departments. They considered it; Madison raised, very persuasively, this constitutional argument against it; and then they voted it down. That was the original understanding of the removal power, and it predominated for nearly 150 years after the Founding.

Since Humphrey's Executor and its radical departure from the original understanding in 1935, for-cause removal protections, both statutory and otherwise, have, sadly, proliferated, giving rise to a vast, headless, out-of-control branch of government, a fourth branch of government, if you will, that exists beyond the control of the President and is therefore unaccountable to the people.

In fact, by some estimations, there are over 80 so-called independent agencies within the executive branch. These executive branch agencies that we refer to somehow as independent are entrusted with regulating immense swaths of American life--from competition policy and workplace safety regulations to labor relations and even securities laws. They make rules; they adjudicate rights; and they enforce laws. The potential for abuse is tremendous; the inconsistency with the republican principles this country was founded on, obvious.

Now, there are a lot of people here who like the sound of the term ``independent agency,'' and they might suppose, incorrectly, that an agency that is independent, that is beyond the control of the President of the United States to oversee, that that is somehow a good thing.

On closer inspection, we discover that quite the opposite is true. When we insulate someone from Presidential oversight, what we are doing is taking the American people out of the picture. There is a reason why we have elections every 4 years, and those elections focus on the election of a President. It is so there is some chain of accountability between the people and the executive branch of government.

That has become more important, not less, over the last few decades as we have created more and more executive branch agencies and we have entrusted those agencies with more and more power. It has never been more important than it is today to make sure the people are connected. If you disconnect the American people by insulating them from the political process, then you have a whole group of people who these days are charged not just with administrating the laws but, in some cases, with effectively making it and interpreting it, and you are taking them beyond the supervision that would otherwise be appropriate by the President of the United States within the executive branch of government.

In their fight against British tyranny, the Patriots of the American Revolution rallied behind the principle of ``no taxation without representation.'' Today we are faced with a somewhat different threat to freedom, as Chief Justice Roberts wrote in a case just a few years ago. ``The growth of the Executive Branch, which now wields vast power and touches almost every aspect of daily life, heightens the concern that it may slip from the Executive's control, and thus from that of the people.''

In other words, as Chief Justice Roberts explained, when you take this power away from the President, you are taking it away from the people. The people lose their input on and their control over these very important functions of what is appropriately described as the people's government.

The concern is further compounded by the existence of independent agencies that are, by law, divorced from any Presidential control. As a result, in this new fight against tyranny, our watchword perhaps must be ``no regulation without representation.'' That is why I have spearheaded the Article I Project and why I supported legislation such as the REINS Act and the Separation of Powers Restoration Act that would bring the Federal regulatory apparatus, as we know it, to heel.

Of course, more is needed. We need to not only reform Congress's relationship with the administrative state but the President's as well. To that end, I am introducing new legislation called the Take Care Act. The bill would restore the unitary executive envisioned by the Founders and, in fact, required by the Constitution by stripping away all existing for-cause removal protections from the so-called independent agencies. It would also limit Congress's ability to create for-cause protections by implication in the future and take other critical steps to fortify the President's directive authority.

Simply put, the Take Care Act would eliminate the headless fourth branch of government, empower the President to ensure faithful execution of the law, and make the bureaucracy accountable to the people again. Importantly, the Take Care Act would not cause the work of administrative agencies to become subject to the unmitigated whims and caprices of a President. There is still very real, very meaningful political constraints, including the Senate's advise and consent role, that would ensure, as they do now, in areas outside of these so-called independent agencies, that the executive officers can fulfill their congressionally assigned duties without undue interference.

In other words, although there are some so-called independent agencies as to which the President has no removal power, there are a whole lot that are not. The President's Cabinet and many other positions within the Federal Government involve people who are appointed by the President, confirmed by the Senate, and who serve at the pleasure of the President who can be fired at any moment for any reason the President might deem appropriate.

Nevertheless, that does not mean that Presidents go around just firing people arbitrarily because Presidents understand that there is a political cost to doing that. We have seen in recent years, and we have seen earlier in American history, how Presidents, even when they have disagreements with members of their Cabinet or other people who serve at the pleasure of the President--Presidents are still reluctant to fire people because there are political costs attached to that, and especially where Congress perceives there might be a partisan political motive in mind, Congress may well take action.

In the case of the Senate, it almost inevitably will at least threaten, if not carry out the threat, to hold up future confirmations of Presidential appointees if Presidents abuse this power.

So it simply isn't true to say that this would open the floodgates and cause all Presidents to just fire people arbitrarily without hesitation in the future. What it would mean is that our elected President would have the power to represent the people and to oversee the executive branch of the Federal Government just as article II already requires.

So all this bill would do would be to rescind and limit unconstitutional restrictions on the President's removal power, and while it may be more convenient to limit this power by statute, convenience and efficiency are not the primary objectives or the hallmarks of a democratic government, as the Supreme Court has repeatedly reminded us.

Another famous catchphrase popularized by an American President is ``the buck stops here,'' which President Truman, of course, displayed on a placard on his desk in the Oval Office at the White House during his Presidency. What it means is, the President is the final decision maker within the executive branch, and, therefore, bears the sole and ultimate responsibility for executing the laws.

In order to fulfill that very special, sacred, important responsibility, the President must have plenary power to direct the President's subordinates in how they carry out their assigned tasks and, if necessary, fire them. That is what the Constitution and, indeed, common sense require. By restoring the original understanding and restoring the removal power to the Presidency, the Take Care Act would give the President this authority.

By taking this step, we would reempower the American people with that which is rightfully theirs to begin with.

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