A Passing Thought on Katz-Rosenblum versus Bamzai-Prakash

 

 

 

This three-part exchange on the scope of the President’s removal power occupied the academic imagination for over a year. That’s an impressive amount of time.

 

Aditya Bamzai & Saikrishna Bangalore Prakash, The Executive Power of Removal, 136 Harv. L. Rev. 1756 (May 2023), <https://harvardlawreview.org/print/vol-136/the-executive-power-of-removal/>;

 

Andrea Scoseria Katz & Noah A. Rosenblum, Removal Rehashed, 136 Harv. L. Rev. F. 404 (2023), <https://harvardlawreview.org/forum/vol-136/removal-rehashed/> (responding to Bamzai & Prakash, supra);

 

and,

 

Aditya Bamzai & Saikrishna Bangalore Prakash, How to Think About the Removal Power, 110 Va. L. Rev. Online 159 (Aug. 2024), <https://virginialawreview.org/articles/how-to-think-about-the-removal-power/> (replying to Katz & Rosenblum, supra).

 

In their response, Katz and Rosenblum cite a 1916 treatise by Frank Goodnow. See Katz & Rosenblum, supra at 416 n.94 (citing Frank Goodnow, Principles of Constitutional Government 88–89 (1916)). In their reply, Bamzai and Prakash quote Goodnow as follows:

 

Here is Goodnow’s paragraph, which we quote in its entirety to allow readers to assess the relevant context:

The United States Constitution, as we have seen, vests the executive power in a President. The meaning of the power thus granted is, however, to be obtained from the powers subsequently specifically enumerated. These are:

1. The power to appoint all officers of the government except inferior officers, who, if so provided by law, may be appointed by their superiors or by the courts. This power, where not otherwise provided by law, is to be exercised with the approval of the Senate. No mention is made in the Constitution of any power of removal from office. All that is said with regard to the termination of office is contained in the provision with regard to impeachment, which is applicable to all civil officers, and that giving the judges a term of office during good behavior. The practice is, however, that the President has the power to remove arbitrarily almost all civil officers of the United States, not judges. This power has been recognized as belonging to the President as a part of the executive power granted to him.

Frank J. Goodnow, Principles of Constitutional Government 91 (1916).

 

Bamzai & Prakash, How to Think About the Removal Power, supra at 162 n.12 (emphasis added by Tillman).

 

Authors on both sides of this removal-related debate are citing Goodnow and his treatise as good authority. Here Goodnow is taking the position that the President appoints “all officers,” except inferior officers of the United States. (emphasis added). But all know that the President does not appoint successor Presidents or any Vice Presidents. A fair inference from this extract from Goodnow is that the President and Vice President are not “officers of the United States”. 

 

My reading of Goodnow’s views is not exceptional. See, e.g., Frank J. Goodnow, The Principles of the Administrative Law of the United States 225 (Law Book Exch., Ltd., photo. reprint 2003) (1905) (“[T]he United States Supreme Court has held that no one can be an officer of the United States government unless he be appointed as the constitution provides, viz., by the President and Senate, the President alone, one of the United States courts, or the head of an executive department.” (emphasis added)); see also Bamzai & Prakash, How to Think About the Removal Power, supra at 162 n.13 (citing Goodnow’s 1905 treatise favourably).

 

In short, commentators, as well as courts and Executive Branch memoranda, for well over a century, have recognized that the President of the United States is not an officer of the United States.

 

Seth Barrett Tillman, ‘A Passing Thought on Katz-Rosenblum versus Bamzai-Prakash,’ New Reform Club (Dec. 22, 2024, 6:35 AM), <https://reformclub.blogspot.com/2024/12/a-passing-thought-on-katz-rosenblum.html>;