The core constitutional claim behind President Donald Trump’s effort to oust Lisa Cook from the Federal Reserve Board of Governors is the same claim he makes to justify nearly all of his attempts to seize power: that Article II, Section 1 of the Constitution — “The executive power shall be vested in a president of the United States of America” — grants him unlimited authority over the entire executive branch and everything it touches.
Specifically, to paraphrase Trump and his allies, it gives him the inherent authority to remove any official working in the executive branch, under the theory that anyone exercising any part of the executive power must necessarily serve at the pleasure of the president.
But there are many reasons to think that, as Chief Justice William Rehnquist wrote in 1988 in a footnote to his opinion in Morrison v. Olson, this reading of “general constitutional language” is far “more than the text will bear.” And beyond the text, it is a direct repudiation of the larger idea of deliberative self-government.
First, let’s consider a few factors that complicate the president’s claims to virtually unlimited executive authority. There is the structure of the Constitution, which gives considerable authority to Congress to shape the executive branch and carefully enumerates the powers of the president. There is the logic of American-style constitutional government, whose aim is to concentrate power only as much as is necessary to preserve self-government and achieve a “more perfect union.”
And then there is the actual practice of government, stretching back to the First Congress. When given the opportunity to establish a strong presidential removal power in what is called the Decision of 1789, Congress said no.