Nicholas Bednar (University of Minnesota Law School) and Todd Phillips have posted A Faithful Execution Exception to Slaughter on SSRN. Here is the abstract:
In Trump v. Slaughter, the Supreme Court held that Article II permits a President to remove principal officers at will. Ostensibly, the removal power allows the President to fulfill his constitutional obligation to “take Care that the Laws be faithfully executed” by removing principal officers who are derelict in their duties. But Slaughter has opened a significant loophole in the Constitution, allowing a deregulatory President to handicap government functioning. Slaughter enables the President to remove appointees from multimember commissions, breaking their quorums and preventing them from transacting business. Because the Vacancies Act does not extend to multimember commissions, no acting official steps in to ensure the agency continues to function.
This Essay argues that quorum-breaking removals violate the President’s obligation under the Take Care Clause. It cannot be the case that preventing agencies from functioning constitutes taking care that the laws are faithfully executed, and indeed, the Supreme Court has held that the President lacks any power to forbid the law’s execution. To that end, courts should adopt an objective test when removals are challenged, asking whether the President’s action leaves the remaining commissioners—if there are any—able to transact business.
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