Renown administrative law scholar and former BYU Law professor Aaron Nielson traced the debate over presidential removal power from the Founding era to the present day, focusing on how it now threatens the Federal Reserve's independence. The Constitution's silence on firing executive officers created immediate disagreement in 1789, with competing theories ranging from Senate involvement to impeachment to Madison's view that removal is inherent in executive power. Over the following two centuries the Supreme Court progressively refined and scaled back Congress's ability to shield agency heads from presidential removal.
Today, President Trump's firing of FTC, NLRB, and Federal Reserve Board members has brought these questions to a head, with US Supreme Court rulings expected by June. Nielson argues that the Federal Reserve's core monetary functions — setting interest rates and conducting open market operations — are constitutionally protected because they mirror the quasi-private structure of the First and Second Banks of the United States, making them private rather than inherently sovereign powers. However, he acknowledges that Congress has layered purely regulatory functions onto the Federal Reserve, which he believes the Supreme Court will ultimately sever as unconstitutional, requiring those powers to be relocated to agencies subject to full presidential control.
