It would be unconstitutional for Congress to prevent President Trump from firing Special Counsel Robert Mueller, who is probing Russia’s interference in the 2016 presidential election.
But under the Constitution, it is beyond the power of Congress to limit or impose conditions on any president’s authority to remove a political appointee within the Justice Department or any other department in the executive branch.
Senators Thom Tillis, R-N.C., and Chris Coons, D-Del., are nevertheless pressing ahead to seek passage of legislation they are sponsoring called the Special Counsel Integrity Act. Under this bill, only the attorney general could discipline or remove a special counsel.
But despite denials by its proponents, this bill violates basic constitutional principles. Under Article II, Section 2 of the Constitution, the president is given the authority to appoint – with the approval of the Senate – “Ambassadors, other public Ministers, and Consuls, Judges of the supreme Court, and all other Officers of the United States.”
Congress is also allowed, by law, to “vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”
What this means is that the president staffs the executive branch with more than 4,000 political appointees. Only about a quarter of these have to be approved by the Senate. The rest are “inferior” officers who can be appointed directly by the president or other top executive branch officials, such as Cabinet secretaries.
All of these officials – with the exception of judges and certain other officers (for example, the heads of federal agencies such as the Federal Election Commission and the Securities and Exchange Commission) serve at the pleasure of the president. That means they can be removed by the president for any reason or no reason.
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