NINA SUAREZ—The power to hire and fire may seem straightforward, but within constitutional law, it embodies a prominent unsettled question about executive authority: how much unilateral presidential control should exist over appointments and removals of executive officers? Thomas A. Berry, director of the Cato Institute’s Robert A. Levy Center for Constitutional Studies and editor-in-chief of the Cato Supreme Court Review, explored this controversy during his guest lecture for the Constitutional Crisis Seminar, hosted by Professor A. Michael Froomkin at the University of Miami School of Law. His lecture centered on the Vacancies Act and how recent disputes over its scope have intensified concerns about preserving strong presidential oversight while respecting proper constitutional checks. Berry also examined the equally contentious issue of the president’s removal power and described how the proper balance between executive power and agency independence remains an ongoing constitutional debate.
Appointments
The Vacancies Act governs how “acting” officers may temporarily fill vacant positions requiring Senate confirmation while the Senate is in session. Modern versions of the Act applied to all Senate-confirmed positions, included time limits for acting officers, and allowed only two categories of officers to fill a vacancy: (1) the first assistant to the vacant office or (2) any officer who has already been confirmed by the Senate for another position within the federal government. The most recent version of the Act, enacted in 1998 as the Federal Vacancies Reform Act (FVRA), was a response to decades of administrations attempting to grapple with the ambiguities present in earlier versions. Key reforms were incorporated to strengthen the statute, but the revisions stopped short of clearly defining the president’s temporary appointment power.
In his guest lecture, Berry illustrated the FVRA’s lingering uncertainties through several recent examples, including Alina Habba’s appointment as Acting U.S. Attorney for the District of New Jersey. As Berry recounted, when Habba’s authority to serve as Acting U.S. Attorney under a separate statute expired, the Trump administration sought to maintain continuity within the office by having her resign, appointing her as first assistant to the U.S. Attorney, and then elevating her back to Acting U.S. Attorney under the FVRA’s first assistant provision. This approach produced two competing interpretations of the statute. The administration argued that a first assistant appointed after a vacancy arises may be immediately appointed as acting officer, since the FVRA contains no requirement that the first assistant predate the vacancy. The opposing view, however, maintains that eligibility is limited to someone who was already serving as first assistant to the last Senate-confirmed officer who vacated the office. In an amicus brief written for the case, Berry advocated for a middle-ground interpretation: the appointee must have served as first assistant either to the last Senate-confirmed officer or another acting officer. Ultimately, the United States District Court for the District of New Jersey adopted the narrower interpretation.
Berry also examined other recent controversies that reveal the gray areas within the FVRA. He discussed the appointment of Matthew Whitaker as Acting Attorney General, which raised questions about the FVRA’s eligibility requirements and their consistency with the Constitution. He later turned to L.M.-M. v. Cuccinelli, where the United States District Court for the District of Columbia held that Kenneth Cuccinelli’s appointment as acting director of the U.S. Citizenship and Immigration Services was unlawful. Through these examples, Berry emphasized that the law governing temporary appointments remains uncertain and continues to invite executive efforts to operate within its undefined boundaries.
Removals
Like acting appointments, removals are a largely unsettled area of law. Much of this uncertainty stems from the Constitution’s lack of explicitly defined limits on the president’s authority to remove executive branch officials. The consequences of this ambiguity are illustrated by Trump v. Slaughter, a case currently before the Supreme Court, in which the Trump administration removed Rebecca Slaughter from her role at the Federal Trade Commission (FTC), an agency with statutory for-cause removal protection. This case raises the question of whether the Supreme Court should formally overrule the 1935 case of Humphrey’s Executor v. United States, which established Congress’s authority to create independent agencies with tenure protections. Berry predicts that the Court may uphold the administration’s authority to remove Slaughter without overruling Humphrey’s Executor by emphasizing that the nature and functions of independent agencies have evolved since 1935. At the time, the FTC and similar agencies were considered quasi-executive, quasi-judicial, or quasi-legislative, distinctions that justified some insulation from presidential control. Berry explained that if the Court determines that these agencies exercise substantial executive power, it could hold that their officers must be removable at will.
The recent government shutdown further demonstrates the ongoing uncertainty surrounding the president’s removal power. The issue raised is whether a lapse in funding, which temporarily furloughs employees, grants the president greater authority to eliminate their positions than would otherwise exist. Ordinarily, when Congress repeals a statute, eliminating the statutory tasks of a position, the executive may carry out a reduction in force for those whose duties are no longer authorized by law. However, Berry noted that some have contended that a temporary shutdown and the resulting lapse in funding operates as a repeal of the statutes authorizing all activities of the furloughed employees. Criticizing this reasoning as unsound, Berry cautioned that it would grant the president removal power beyond what the Constitution or Congress permits.
Conclusion
Taken together, the controversies over temporary appointments and removals illustrate Berry’s broader observation that the checks on executive power have always been fragile, relying more on the expectation of voluntary presidential restraint than on clear statutory and constitutional limitations. Yet Berry frames this reality not solely as a weakness, but also as a mechanism that can strengthen presidential accountability. Because the president holds an essential supervisory role, public disapproval of the president’s actions can translate directly into political responsibility. Viewed this way, the uncertainty surrounding appointments and removals does not merely fuel fears of a looming constitutional crisis but reaffirms that effective checks on executive power must come from Congress, the courts, and, ultimately, the people.
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