The Three Permissions: Presidential Removal and the Statutory Limits of Agency Independence, 121 Columbia Law Review No.1, January 2021.
“Seven words stand between the President and the heads of over a dozen “independent agencies”: inefficiency, neglect of duty, and malfeasance in office (INM). The President can remove the heads of these agencies for INM and only INM. But neither Congress nor the courts have defined INM and hence the extent of agency independence. Stepping into this void, some proponents of presidential power argue that INM allows the President to dismiss officials who do not follow presidential directives. Others contend that INM is unconstitutional because it prevents Presidents from fulfilling their duty to take care that the laws are faithfully executed. This Article recovers the lost history of INM, explaining its origins and meaning, inverting our current understanding of its purpose, and rejecting both challenges to agency independence. It shows that INM provisions are not removal “protections” that prevent at-pleasure removal; they are removal permissions that authorize removal where it is otherwise prohibited by an officer’s term of years, a tenure long understood to bar executive removal for any reason. INM provisions are narrow exceptions to term tenures: Neglect of duty and malfeasance in office cash out an official’s failure to faithfully execute official duties, while inefficiency relates to government waste and ineptitude. INM provisions do not permit the President to remove agency heads for failing to follow presidential directives. But they do not clash with the Take Care Clause either, because even on an expansive reading of the clause, INM provisions authorize Presidents to remove unfaithful or incompetent officials.”