If there was ever a president who has the mandate, public expectation, and personal style to drain out the bureaucratic swamp and fire every Obama holdover within the executive branch, it’s Donald Trump. He should exercise this mandate as liberally as he did on Celebrity Apprentice.
Tackling the “fourth branch of government”
Historically, even when Republicans win the White House, the various departments and agencies that actually run government serve as a collective fourth branch and a fifth column, countermanding any semblance of the conservative agenda. Democrat presidents never have these problems because the inherent ideological balance in most of these public policy fields is already oriented towards implementing the Left’s priories. And after eight years of Obama, every nook and cranny of the executive branch will be contaminated with hostile elements. Obama has left no stone unturned in orienting each department, agency, and office towards the execution of a cross-sectional portfolio of liberal priorities.
Trump must be the first GOP president to break the failed streak of Republican presidents to completely drain the swamp. To that end, he must immediately ask for the resignation of every agency head within the executive branch, including those agency heads that don’t automatically turn over with new administrations.
First and foremost, he should get rid of James Comey as FBI director and John Koskinen as IRS commissioner. Both of those individuals have clearly lost the public trust to serve in their positions. Democrats will try to claim that they are tenured in, pursuant to congressional statute, for 10 and five year terms respectively. However, those laws are only as strong as the president wants to make them because a president has plenary power over the personnel he chooses to run executive agencies. The same liberals who believe the executive and judicial branches could run rogue shot over Congress’ authority over broad public policy issues will now suddenly make the case that Congress can force a president to accept a particular individual to head an agency. They are dead wrong and Trump should challenge this assertion.
President controls executive personnel, Congress controls policy
While the legislature is clearly the dominant branch of government in terms of setting public policy and the federal budget, the president gets to determine who will serve in executive positions. To be clear, Congress can always eliminate an agency, completely regulate the scope of its jurisdiction, defund the agency or the office of the agency head, place reasonable qualification conditions on those who serve (e.g. requirement to obtain a security clearance), and, of course, refuse to confirm any presidential picks. But Congress does not have the authority to force the president to maintain any one individual as head of the agency so long as that agency still exists through statute.
The Supreme Court ruled long ago that because the president has the power to appoint [U.S. Const., art. II, §2, cl. 2] executive ministers and councils, he has the power to remove them. After all, if a president can, within reason, appoint anyone he desires to head an agencies, he certainly cannot be boxed in by Congress to only choose or maintain any particular individual. Again, the Senate is very powerful and can defund and abolish an office or refuse to confirm a presidential replacement if they are upset with him firing an FBI director or an IRS commissioner. But they lack the power to directly force a president to keep people like Comey and Koskinen.
Madison explained the distinction in separation of powers very clearly in a letter to Thomas Jefferson [see page 196]:
[Congressional tenure laws] overlook the important distinction between repealing or modifying the office and displacing the officer. The former is a legislative, the latter an Executive function; and even the former, if done with a view of re-establishing the office and letting in a new appointment, would be an indirect violation of the theory and policy of the Constitution.
Although it is widely believed, based on previous activist court decisions, that the president cannot fire commissioners of independent multi-body commissions (such as the Securities and Exchange Commission or Federal Trade Commission ) that engage in quasi-legislating and quasi-judicial functions, a president can definitely fire the FBI director and the IRS commissioner in middle of their tenures. As Andy McCarthy wrote in November, given that the FBI is an executive agency and part of the Justice Department, “the FBI director is subordinate to the attorney general in the chain-of-command,” and is therefore subject to termination by the chief executive.
What about the congressional statute creating a 10-year tenure?
“This is a preference, it is not binding on the president,” writes McCarthy. “Presumptively, after being confirmed, the FBI director is retained by subsequent presidents. If the president decides to make a change, however, the president is constitutionally authorized to remove the director and does not need cause — at least not legally.”
Indeed, Bill Clinton, at the recommendation of then-Attorney General Janet Reno, fired the sitting FBI Director, William Sessions, in 1993.
There is no reason the same logic shouldn’t apply for the IRS commissioner who serves under the secretary of treasury.
Additionally, Trump should fire Richard Cordray as the director of the Consumer Financial Protection Bureau (CFPB). The CFPB is an unaccountable agency created by Dodd-Frank and operates autonomously within the Federal Reserve. It is essentially the “death panel” of the financial sector, with control over bank accounts, mortgages, and student loans, and serves to limit the choices of consumers in financial markets, making it harder and more expensive to obtain credit. Ideally, Congress should abolish the CFPB, but until such repeal is signed into law, Trump must appoint a new director. The U.S. Court of Appeals for the District of Columbia has already ruled that the only way this agency can be constitutional is if it is under the executive stewardship of the president with its director being subject to removal by the president.
The same theory should apply to Mel Watts as director of the Federal Housing Finance Agency (FHFA). Although an independent agency, the FHFA completely oversees executive policy related to Fannie Mae and Freddie Mac — and by extension — the entire mortgage industry. Mel Watt, who was sworn in at the beginning of 2014 for a five-year term as director, is promoting the same affordable housing mandates that led to the original subprime mortgage crisis. Trump should immediately ask for his resignation.
Trump was elected president — despite his personal unpopularity — precisely because many people who don’t like him view him as the political Drano to clear out the federal sewer. The lesson from past administrations is that ALL of the agency heads must be fired and fired immediately. Once they are left in place initially, any subsequent decision to fire them is perceived as a scandal. But if Trump waltzes into the White House on January 20 and immediately tells all of Obama’s holdovers they are fired, it will resonate. That is exactly what people expect of The Donald.
 Ex Parte Hennen, 38 U.S. (13 Pet.) 230, 259 (1839). The plenary power of the president over removal of executive officials was upheld in a scholarly 70-page opinion by Chief Justice William Howard Taft in Myers v. United States, 272 U.S. 52 (1926).
 See Humphrey’s Executor v. United States, 295 U.S. 602, 628-629 (1935) limiting the president’s ability to fire FTC commissioners. The opinion was radically expanded in the Independent Counsel Act case (Morrison v. Olson, 487 U.S. 654 (1988). Scalia, the lone dissenter, shredded the notion that the president would have any limits on the power to remove any executive branch position.
Author: Daniel Horowitz
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.