{"id":296,"date":"2026-07-10T17:10:34","date_gmt":"2026-07-10T17:10:34","guid":{"rendered":"https:\/\/nationalconsumerreportss.com\/?p=296"},"modified":"2026-07-10T17:10:34","modified_gmt":"2026-07-10T17:10:34","slug":"faithful-execution-and-the-removal-power","status":"publish","type":"post","link":"https:\/\/nationalconsumerreportss.com\/?p=296","title":{"rendered":"Faithful Execution and the Removal Power"},"content":{"rendered":"
\n

On July 9, President Trump removed or forced out all three remaining members of the Election Assistance Commission (EAC). Congress established the commission to aid state governments in administering elections and to certify voting equipment. It consists of four members appointed by the president, with the advice and consent of the Senate, who serve fixed four-year terms. Although its members lack statutory removal protections, Congress designed the commission with other devices commonly used to preserve independence from the president, including requirements that no more than two members be affiliated with the same political party and that three members agree to any action, a combination that necessarily requires all actions to be bipartisan.<\/p>\n

Read more From How Africa Works to How It Will Transform<\/a><\/p>\n

In , the Supreme Court affirmed that Article II of the Constitution allows the president to remove principal officers\u2014such as the members of the EAC\u2014at will. The Supreme Court anchored its decision in the idea that the president must have adequate control over executive-branch officers to carry out his constitutional obligation to \u201ctake Care that the Laws be faithfully executed.\u201d As the current moment illustrates, however, the removal power also allows the president to undermine <\/em>faithful execution by removing principal officers tasked with implementing the laws enacted by Congress.<\/p>\n

We argue that removals of this kind exceed the president\u2019s removal power. The Take Care Clause obliges the president to ensure the laws enacted by Congress are executed. A removal that leaves an agency legally incapable of acting prevents that execution. The Supreme Court was aware of the potential contradiction between expanding the removal power and the president\u2019s obligation under the Take Care Clause in Slaughter<\/em>, because we, the authors, filed alerting the Court to the issue. Courts can enforce this limit, and the Supreme Court\u2019s decision in \u2014issued the same day as Slaughter<\/em>\u2014supplies the remedial tools. Enforcing the Take Care Clause would ensure that multimember commissions, such as the EAC, remain capable of enforcing the laws Congress has enacted.<\/p>\n

The Effect of Vacancies in Multimember Commissions<\/strong><\/p>\n

The immediate consequence of the July 9th removals is that the EAC cannot act. The Help America Vote Act of 2002 (HAVA) contains no quorum rule, but its voting rule operates as one. Under 52 U.S.C. \u00a7 20928, \u201c[a]ny action which the Commission is authorized to carry out under this chapter may be carried out only with the approval of at least three of its members.\u201d With no members in office, the commission cannot approve anything. It cannot approve new grant funding for the states, and it cannot adopt or amend the Voluntary Voting System Guidelines used to test and certify voting equipment.<\/p>\n

Nor can the president install acting officials to perform these duties. The Federal Vacancies Reform Act (FVRA) ordinarily permits acting officials to perform the duties of vacant Senate-confirmed offices, but 5 U.S.C. \u00a7 3349c(1) excludes members appointed by the president to any multimember board or commission that governs an independent establishment. Multimember commissions are often entities within the executive branch that are not part of an executive department or the military. The EAC\u2019s staff will remain at work, and it is possible that delegations of authority made before the commission emptied may survive thanks to an ambiguous footnote in a 2010 Supreme Court case, but staff cannot exercise the powers that Section 20928 reserves to the members themselves. The only path to a functioning EAC runs through Senate nomination and confirmation.<\/p>\n

That path is long. HAVA directs the president to consider recommendations from the House of Representatives and Senate majority and minority leadership when selecting nominees, and Senators may balk at confirming nominees other than those they recommended. The Senate has not confirmed a new EAC commissioner since February 2019. Each of the members removed on July 9th was serving past the expiration of a fixed four-year term under HAVA\u2019s holdover clause, which allows commissioners to serve until a successor takes office, because successive presidents have failed to nominate replacements. The commission\u2019s own history shows how long the pipeline can stall: the EAC operated without a quorum from 2010 to 2014 and without any commissioners from 2011 through 2014, while nominations languished and the House twice advanced legislation to abolish the agency. Months before the midterm elections, the only federal agency devoted solely to election administration may not be able to lawfully exercise its powers\u2014and has no realistic prospect of regaining that capacity soon.<\/p>\n

The EAC is not an outlier. lacked a quorum for at least a month during the first nine months of the second Trump administration, including four major regulatory commissions: the Equal Employment Opportunity Commission, the Federal Communications Commission, the Federal Election Commission, and the National Labor Relations Board (NLRB).<\/p>\n

Where quorums have been restored, restoration has taken the political branches the better part of a year. The NLRB was unable to decide cases for nearly a year after the president removed Member Gwynne Wilcox in January 2025; the board regained its quorum only when the Senate confirmed two new members in December 2025 and they were sworn in on Jan. 7, 2026. The Merit Systems Protection Board, which adjudicates federal employees\u2019 challenges to their removals, lost its quorum in the spring of 2025 after the president\u2019s firing of Member Cathy Harris took effect; its backlog of pending appeals grew roughly fivefold, to more than 400 cases, before the Senate confirmed a second member in October 2025.<\/p>\n

Slaughter <\/em>makes these quorums even more fragile, because the president may create new vacancies whenever he chooses. The July 9th removals extend a pattern in which commissions across the government have been rendered incapable of performing their statutory duties for extended periods. But the EAC\u2019s members also never enjoyed the removal protections at issue in Slaughter<\/em>. Their removals therefore raise a question that Slaughter<\/em> did not answer: whether the president may use concededly lawful removals to strip an agency of the capacity to execute the law.<\/p>\n

Faithful Execution as a Limit on Removal<\/strong><\/p>\n

Article II commands that the president \u201cshall take Care that the Laws be faithfully executed.\u201d The Supreme Court has long treated this obligation as a limit on presidential power as well as a source of it. In Kendall v. United States<\/em> (1838), the Court held that the postmaster general could be compelled to perform a duty imposed by statute notwithstanding the president\u2019s contrary instruction: \u201cTo contend that the obligation imposed on the President to see the laws faithfully executed, implies a power to forbid their execution, is a novel construction of the constitution, and entirely inadmissible.\u201d<\/p>\n

Read more Supreme Court Undermines Section 702<\/a><\/p>\n

A removal that destroys a commission\u2019s capacity to act forbids execution just as effectively as the direct order at issue in Kendall<\/em>. Although this is not a concern in the vast majority of executive-branch agencies given the FVRA\u2019s assurances that an acting official is available to perform the duties of the removed officer, it is a concern for multimember agencies, such as the EAC, where no acting official is forthcoming. Accordingly, HAVA remains on the books, Congress continues to appropriate funds for the Commission to distribute, and the EAC has assigned duties that no other agency may perform. Yet after July 9th, it is likely that no one may lawfully exercise those powers.<\/p>\n

We propose that the Take Care Clause, which obliges the president to execute the laws for the benefit of the people who enacted them through their representatives, serves as a bar on removals when doing so would prevent an agency from functioning. The Constitution assigns the power to create federal agencies\u2014and the power to abolish them\u2014to Congress. It simply cannot be the case that the president may remove officers and leave a commission without the membership its statute requires for action; doing so would allow the president to accomplish through attrition what Article I reserves to the legislature. In the instant case, execution of HAVA is suspended for as long as the president declines to nominate successors.<\/p>\n

This proposal would not restore the tenure protections the Supreme Court rejected, and the commissioners removed on July 9th have no legal entitlement to their seats. The president may remove any executive branch officer for any reason, so long as their agency is able to function. It simply recognizes that Congress enacted HAVA\u2014as with all statutes\u2014as the public\u2019s representative. In this case, Congress meant to provide states and voters the concrete benefits of grant funding for election administration, federally tested and certified voting equipment, and a uniform registration form that eligible citizens may use to register anywhere in the country. Many states rely on EAC certification before they will purchase or deploy voting machines. When removals leave the commission unable to act, the injury falls on election officials preparing for the midterms and on the voters they serve. A doctrine that polices removals vindicates that public right, not any officer\u2019s private claim to continued employment.<\/p>\n

We propose a simple, objective test: Does the removal leave the commission below the threshold its statute sets for transacting business? If the answer is \u201dyes,\u201d the removal is unconstitutional until it can be done without inhibiting the government\u2019s functioning. This test would prevent multimember commissions, such as the Merit Systems Protection Board, from losing their quorums due to presidential removals alone. The president is free to nominate a replacement commissioner and remove the incumbent as soon as the Senate confirms the replacement. Allowing an alternative result violates the president\u2019s obligations under the Take Care Clause.<\/p>\n

Cook <\/em>Provides the Remedial Path<\/strong><\/p>\n

Although the EAC\u2019s removed commissioners need not be the only plaintiffs to challenge their removal, if they choose to do so, Cook<\/em> supplies the framework a court should apply. The government argued in Cook <\/em>that courts play no role in reviewing the validity of a removal and that, at most, a wrongfully removed officer may recover backpay after the litigation ends. A majority on the Supreme Court rejected both positions. Removal determinations are judicially reviewable, and a court \u201cmay order that a removed Governor remain in office during the pendency of litigation\u201d if the officer is otherwise entitled to a preliminary injunction. The Court reasoned that, absent interim relief, the president could keep an officer out of office \u201cfor very lengthy periods of time\u201d while litigation proceeded, whatever the merits. That functional concern applies with greater force to quorum-destroying removals. The injury runs for the length of the confirmation pipeline, and the EAC\u2019s pipeline has not produced a commissioner in more than seven years.<\/p>\n

On the merits, courts should hold that a removal that destroys a commission\u2019s capacity to act is ineffective until the Senate confirms a successor. Applied here, the relief is broader than a single reinstatement but narrower than it may sound. Because Section 20928 requires the approval of three members and the fourth seat was already vacant, each of the July 9th removals independently eliminated the commission\u2019s capacity to act, so a court would preserve all three members in office. The remedy then dissolves seat by seat. The moment the Senate confirms a replacement for any member, the president\u2019s removal of that member takes effect. The president and the Senate retain complete control over who ultimately serves on the Commission; the injunction controls only the timing. Courts applying this rule would also give the political branches the correct incentive: A president who wants a commission gone from his administration must ask Congress to abolish it, and a president who merely wants different commissioners must nominate replacements.<\/p>\n

Replacement-as-removal has historical precedent. In his \u201cCommentaries on the Constitution of the United States,\u201d Justice Joseph Story described removal as occurring by operation of law when the Senate approves a new nominee to replace an incumbent. As David Driesen argues, Justice Story understood the Constitution to mean: \u201cIf the President believes that an officer should be removed, he must nominate a successor. If the Senate approves the nominated successor, that approval removes the predecessor from office.\u201d Slaughter <\/em>itself relied heavily on the \u201cCommentaries\u201dfor its theory that the president enjoys an absolute power of removal.<\/p>\n

The administration may read Cook<\/em> narrowly, focusing on the Federal Reserve\u2019s substantive protection in the central bank\u2019s distinct historical tradition. But Cook<\/em>\u2019s remedial holding rests on a different footing. The Court located the power to keep a removed officer in office in equity\u2019s traditional protection of de facto officers during litigation over title to office\u2014a rationale that does not depend on anything unique to central banking.<\/p>\n

What Comes Next?<\/strong><\/p>\n

The more immediate question is what the administration does with a commission that has no commissioners. Last year, Trump issued an executive order directing the EAC to add a documentary proof-of-citizenship requirement to the national mail voter registration form and to revise its voting-system standards. Federal courts blocked those directives. With no members in office, the lawful route to those changes is closed. If the administration nonetheless directs the commission\u2019s staff to alter the form or the guidelines, the resulting litigation would move quickly\u2014likely to the Supreme Court\u2019s emergency docket, as Rick Hasen has already observed.<\/p>\n

Read more Lawfare Daily: Prophecy, Prediction, and Power with Carissa V\u00e9liz<\/a><\/p>\n

Slaughter<\/em> grounded the removal power in the president\u2019s duty to take care that the laws be faithfully executed. Whether that same duty constrains the removal power when removals leave an agency unable to execute its statute is the question the July 9th removals put to the courts. How the courts answer will determine whether the agencies Congress has built remain capable of executing the laws Congress has enacted.\n <\/div>\n","protected":false},"excerpt":{"rendered":"

President Trump is exercising his removal power in ways that defeat his duty to faithfully execute the law.<\/p>\n","protected":false},"author":1,"featured_media":295,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[8],"tags":[],"class_list":["post-296","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-executive-branch"],"yoast_head":"\nFaithful Execution and the Removal Power - National Consumer Reports<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/nationalconsumerreportss.com\/?p=296\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Faithful Execution and the Removal Power - National Consumer Reports\" \/>\n<meta property=\"og:description\" content=\"President Trump is exercising his removal power in ways that defeat his duty to faithfully execute the law.\" \/>\n<meta property=\"og:url\" content=\"https:\/\/nationalconsumerreportss.com\/?p=296\" \/>\n<meta property=\"og:site_name\" content=\"National Consumer Reports\" \/>\n<meta property=\"article:published_time\" content=\"2026-07-10T17:10:34+00:00\" \/>\n<meta name=\"author\" content=\"admin\" \/>\n<meta name=\"twitter:card\" content=\"summary_large_image\" \/>\n<meta name=\"twitter:label1\" content=\"Written by\" \/>\n\t<meta name=\"twitter:data1\" content=\"admin\" \/>\n\t<meta name=\"twitter:label2\" content=\"Est. reading time\" \/>\n\t<meta name=\"twitter:data2\" content=\"11 minutes\" \/>\n<script type=\"application\/ld+json\" class=\"yoast-schema-graph\">{\"@context\":\"https:\\\/\\\/schema.org\",\"@graph\":[{\"@type\":\"Article\",\"@id\":\"https:\\\/\\\/nationalconsumerreportss.com\\\/?p=296#article\",\"isPartOf\":{\"@id\":\"https:\\\/\\\/nationalconsumerreportss.com\\\/?p=296\"},\"author\":{\"name\":\"admin\",\"@id\":\"https:\\\/\\\/nationalconsumerreportss.com\\\/#\\\/schema\\\/person\\\/ef6e8820a5e2e961e9b8cda481436ac0\"},\"headline\":\"Faithful Execution and the Removal Power\",\"datePublished\":\"2026-07-10T17:10:34+00:00\",\"mainEntityOfPage\":{\"@id\":\"https:\\\/\\\/nationalconsumerreportss.com\\\/?p=296\"},\"wordCount\":2276,\"commentCount\":0,\"image\":{\"@id\":\"https:\\\/\\\/nationalconsumerreportss.com\\\/?p=296#primaryimage\"},\"thumbnailUrl\":\"https:\\\/\\\/nationalconsumerreportss.com\\\/wp-content\\\/uploads\\\/2026\\\/07\\\/b724668124b51bbd3b30976e88baaefa-scaled.jpeg\",\"articleSection\":[\"Executive Branch\"],\"inLanguage\":\"en-US\",\"potentialAction\":[{\"@type\":\"CommentAction\",\"name\":\"Comment\",\"target\":[\"https:\\\/\\\/nationalconsumerreportss.com\\\/?p=296#respond\"]}]},{\"@type\":\"WebPage\",\"@id\":\"https:\\\/\\\/nationalconsumerreportss.com\\\/?p=296\",\"url\":\"https:\\\/\\\/nationalconsumerreportss.com\\\/?p=296\",\"name\":\"Faithful Execution and the Removal Power - 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