Executive Power

Can Department Heads Refuse White House Orders?

By Andrew Kent
Tuesday, February 7, 2017, 11:00 AM

The Washington Post reports that, during the first chaotic weekend of the Trump executive order regarding refugees and immigrants, chief White House strategist Steve Bannon ordered the head of the Department of Homeland Security, retired general John Kelly, not to go ahead with Kelly's plan to issue exemptions for lawful permanent residents (green card holders). But Kelly refused:

Respectfully but firmly, the retired general told Bannon that despite his high position in the White House and close relationship with President Trump, the former Breitbart chief was not in Kelly’s chain of command. If the president wanted Kelly to back off from issuing the waiver, Kelly would have to hear it from the president directly, he told Bannon.

Kelly never heard from Trump, and issued the waiver. Though White House communications director Sean Spicer denied that this episode occurred, the Post seems to be sticking with the core of its story.

Whatever the truth about this episode, the first weeks of the Trump presidency suggest that we will see future instances in which agency heads disagree with the White House. Indeed, acting Attorney General Sally Yates was fired by Trump for refusing to have DOJ lawyers defend the immigration/refugee order in court. (She was a holdover from the Obama administration, however.)

Can agency heads refuse orders from presidential aides, or from the president him- or herself? The short answer is yes. But only if they are willing to risk the consequences.

The civilian executive branch is very different from the military, in which Secretary Kelly served until recently. The Uniform Code of Military Justice makes it a crime punishable by court martial for a member of the armed forces to disobey lawful orders from a superior.

There is no similar, codified duty in the civilian world applying to agency heads. But the heads of core executive branch agencies such as the Departments of Justice, Homeland Security, State, Defense, Treasury, Commerce, Energy and the like are at-will employees, serving only at the pleasure of the president. The president’s constitutional status as chief executive, holder of the “executive power” granted in Article II, and personally charged by the same article with ensuring that the laws are “faithfully executed,” disallows externally-imposed limits on the ability to fire these officials.

Kelly was right that a White House aide has no formal authority over an agency head. An aide will certainly have a kind of informal power if he or she is known to be speaking for the president, and if the president intends to back up the aide by firing the agency head if he or she disobeys. As reported to the Washington Post, Kelly indicated that he would have obeyed a direct order from the President on the issue. But he need not have, as long as he was willing to risk his job.

Probably the most famous instance of disobedience was the Saturday Night Massacre during the waning days of the Nixon administration. Attorney General Elliot Richardson had promised Congress that he would appoint a special prosecutor to investigate Watergate, and that he would give the prosecutor independence—firing him only for good cause. When the prosecutor Archibald Cox issued a subpoena for Oval Office tape recordings, Nixon ordered Richardson to fire Cox. Richardson refused and resigned. (He could have waited for Nixon to fire him, but did not.) Nixon then ordered the new acting head of the DOJ, second-in-command William Ruckelshaus, to fire Cox. Ruckelshaus also refused and also resigned. So Nixon turned to the third in command and now acting head, Solicitor General Robert Bork (later Reagan’s failed nominee to the Supreme Court). Bork fired Cox. The resulting uproar from Congress, the press, and public led to Bork agreeing to appoint a new independent counsel—and eventually to Nixon’s resignation.

Presidential authority over agency heads is much more legally complicated in the case of so-called independent agencies, such as the Federal Trade Commission, Federal Communications Commission, National Labor Relations Board, or Consumer Financial Protection Bureau. Congressional statutes that create these agencies generally provide that the agency heads may be removed by the president only for good cause—sometimes specified as “inefficiency, neglect of duty, or malfeasance in office.” This kind of statutory limitation on presidential removal (and hence presidential control) of the heads of independent agencies was upheld by the Supreme Court in the face of a constitutional challenge by Franklin Roosevelt, in a landmark decision arising out of a collision between Roosevelt and the holdover head of the FTC. The Court agreed with Congress that entities exercising quasi-legislative (rulemaking) and quasi-judicial (adjudication) functions, based in theory on apolitical expertise, may be given some structural independence from the president.

Though a strong degree of independence from presidential control is thought to be the cornerstone of the modern regulatory state by many, it is not uncontroversial. There have been persistent arguments by conservative academics and some executive branch officials that the correct reading of the Constitution is that the president heads a “unitary” executive branch—an executive branch in which every agency head is removable from office by the president at will. This view has not had majority support on the Supreme Court, however.

Another wrinkle is that the independence of the heads of some important agencies is a matter of custom and norms, rather than statute. For instance, the statute creating and defining the powers and terms in office of the commissioners who head the Securities and Exchange Commission does not specify any for-cause limits on removal. Yet it is universally considered an independent agency. The Supreme Court assumed without deciding that this customary, non-statutory independence existed in a 2010 decision, in which the Court nevertheless held that two levels of independence from presidential control is unconstitutional. (The Sarbanes-Oxley Act had created an accounting board, whose heads were removable only for cause by the SEC, whose heads in turn were assumed to be removable by the president only for cause.)

President Trump’s seeming impatience with limits on his authority, and contempt for many norms of the political system, may lead to direct challenges to the mix of customs and laws that provide the independence of these agency heads.

For instance, the President might fire an independent agency head who has only assumed, norm-based protection from at-will removal. What would the courts do then? Or the President might fire the head of an independent agency who has statutory protection, but argue that such protection from removal is unconstitutional. There have been calls already by conservative writers and business groups for Trump to fire Richard Cordray, the head of the CFPB, despite a statute providing that he may only be fired for cause. If that occurred, the legal defense of the President’s action could be bolstered by a recent decision by a three-judge panel of the D.C. Circuit that it is unconstitutional for Congress to have headed that independent agency with a single director, rather than the usual multi-member commission structure that other independent agencies have. This is legally uncharted territory, and it is unclear if the decision will survive on appeal. But it is clear that it would be a revolution in our government and law, however, if for-cause limits on removal of the commission-headed independent agencies were struck down by the courts. The “unitary executive” theory had a strong advocate in Antonin Scalia. Will Trump’s nominee to replace him carry that torch?

Yet as the Saturday Night Massacre and subsequent events showed, law is only one part of the story. Even if they believe they have strong constitutional arguments on their side, presidents can often be effectively restrained by pushback from Congress, the press, interest groups, and the public. Trump is an unconventional president in many ways, but he may not be immune to these political pressures.