Limits on the President’s Power to Remove Inferior Officers (Even When He Has Power to Remove Department Heads)
In yesterday’s Aviel v. Gor, D.C. Circuit Judge Gregory Katsas, joined by Judge Nina Pillard, held that the President likely lacked the power to fire the CEO of the Inter-American Foundation, though he had the statutory authority to fire the Foundation’s Board of Directors:
This case involves a dispute over whether plaintiff Sara Aviel is presently the Chief Executive Officer of the Inter-American Foundation (IAF), a government corporation that issues grants to further development in the Caribbean and Latin America. The IAF is run by a Board of Directors appointed by the President with the advice and consent of the Senate. In turn, the Board appoints and supervises the Foundation’s CEO.
In February 2025, the President removed all the incumbent IAF Board members, as permitted by statute. The President then purported to unilaterally designate Pete Marocco as an acting member of the Board. Both the President and Marocco then purported to remove Aviel from her position as the Foundation’s CEO.
Aviel sued various government officials, including the President, and sought injunctive relief to continue serving as CEO. The district court granted a preliminary injunction requiring the defendants to recognize her as still holding that office. The government appealed and sought an emergency stay.
We deny the stay because the government is unlikely to succeed on the merits of its contentions that Aviel … was permissibly removed from her position as CEO ….
The governing statute authorizes the IAF Board of Directors—not the President—to appoint the CEO, and it is silent regarding the question of removal. That means the Board—not the President—has the power to remove Aviel. As the Supreme Court explained in Free Enterprise Fund v. PCAOB (2010), “Congress may vest in heads of departments” the appointment of inferior officers, and, “[i]f Congress does so, it is ordinarily the department head, rather than the President, who enjoys the power of removal.” Likewise, in In re Hennen (1839), the Court noted that if Congress vests a department head with the power to appoint and remove an inferior officer, “the President has certainly no power to remove” the inferior officer directly….
[T]he government asserts that the President has inherent Article II authority to designate acting principal officers to ensure that he may faithfully execute federal law, as required by the Take Care Clause. That contention is unlikely to succeed. The Appointments Clause prohibits the appointment of principal officers without the advice and consent of the Senate. Such consent “is a critical structural safeguard” against presidential overreach—a feature of our constitutional system, not a bug.
Furthermore, the Constitut
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