During the December 8, 2025 oral argument in Trump v. Slaughter (involving the constitutionality of for cause limitations on the removal of FTC commissioners), Justice Barrett asked Slaughter’s counsel (Amit Agarwal) a question that is worth further exploration:
JUSTICE BARRETT: Counsel, let me say –let –let’s say, just assume, that I disagree with you about the history. Let’s assume that I think –I’ll –I’ll grant you for this purpose that the Decision of 1789, if you just took it in isolation, may be not as conclusive as Myers thought it was. I’ll just grant that you for purposes of this question. But let’s say that I think the liquidation argument throughout the 19th century shows that by the time of the end of the 19th century up until we get to the ICC and the emergence of what starts to look like the more modern independent agency, that the government has the better of the argument. But let’s say that in 1887, after the ICC and then after the FTC and then after Humphrey’s, when there was more the explosion of independent agencies, that –let’s just assume, again, for this purpose, that at that point, yes, you do have precedents like Humphrey’s. Humphrey’s clearly is –is, you know, a good case for you. Do you still lose if I think as of 1887 it was liquidated, it was settled, but then we did have cases and congressional practices that veered from that unbroken law?
Transcript, at 158-59.
The precise question Barrett is asking is whether a constitutional issue that has been “liquidated” (i.e., resolved by not by original meaning or judicial decision, but by a course of government practice and general acquiescence) at one point in time can ever become “unliquidated” such that the original settlement is no longer binding. Or, presumably, whether it can be “reliquidated” such that there is a new legal settlement that itself becomes binding.
I have no particularly strong views on this question, but the analysis in Professor Baude’s 2019 law review article on this topic is persuasive. See William Baude, Constitutional Liquidation, 71 Stan. L. Rev. 1, 53-59 (2019) (discussing whether liquidation is necessarily permanent). Baude argues that liquidations should be analogized to judicial precedent, which “suggest that in practice, liquidated provisions can be unliquidated or reliquidated.” Id. at 56. Moreover, even scholars who support stricter adherence to liquidations do not claim that they enjoy absolute permanence. Compare id. at 53 (quoting Professor Caleb Nelson as arguing that liquidations were expected to be permanent in the absence of “extraordinary and peculiar circumstances”).
In the context of the Slaughter case, the Court would be setting aside a practice of establishing independent multimember agencies, which has existed at least since the creation of the Interstate Commerce Commission (ICC) in 1887, and overruling a judicial precedent, Humphrey’s Executor v. United States, 295 U.S. 602 (1935), which affirmed the constitutionality of that practice, in favor of a liquidation which occurred over the years between 1789 and 1887. Even if pre-1887 liquidation would have prohibited the establishment of such independent agencies (which we will get to in a minute), this seems rather inconsistent, to put it mildly, with “liquidation’s goal of providing stability by matching meaning to publicly accepted practice.” Baude, 71 Stan. L. Rev. at 56. One might well conclude that such a situation would constitute “extraordinary and peculiar circumstances” to justify disregarding the earlier liquidation. Indeed, Professor Nelson himself seems to think so.
What Was Actually Liquidated?
In my view, however, even more important than Barrett’s explicit question are those raised by her set up. Was there a liquidation of the removal question prior to 1887? If so, when did that liquidation occur? And what was the scope of that liquidation?
I tend to agree with Barrett’s suggestion that action of the First Congress in 1789 did not itself constitute a liquidation of the removal question. We need not belabor the debate here, but there are serious questions whether the “Decision of 1789” actually decided anything. Thus, Professor Shugerman argues that “Justice Louis Brandeis and Edward Corwin were close enough when they gave a rough estimate that the presidentialists (those who supported a constitutional presidential removal power) had only about a third of the House vote, and they concluded that the debate was ineluctably unclear.” Jed H. Shugerman, The Indecisions of 1789: Inconstant Originalism and Strategic Ambiguity, 171 U. Pa. L. Rev. 753, 756 (2023); id. at 756 n.3 (collecting supporting authorities). However, while it is impossible to ascertain with certainty what a majority of the First Congress believed with regard to presidential removal, in the ensuing decades it appears to have been widely accepted that the Decision of 1789 established that the president enjoyed a constitutional power of removal. See Christopher J. Walker & Aaron Nielson, Congress’s Anti-Removal Power, 76 Vanderbilt L. Rev. 1, 18 (2023). The scope of that power, though, is a different question.
In his 1833 treatise Justice Story explained that the “final vote [in 1789] seems to have expressed the sense of the legislature, that the power of removal by the executive could not be abridged by the legislature; at least, not in cases, where the power to appoint was not subject to legislative delegation.” 3 Joseph Story, Commentaries on the Constitution § 1531, at 390 n.1 (1833) (emphasis added). Story himself was not (as we shall see) thrilled with this conclusion, but he acknowledges that it would “be difficult, and perhaps impracticable, after forty years’ experience” to reverse this decision. Id. § 1538, at 397. Thus, Story both relates and reflects a degree of acquiescence by those skeptical of presidential removal. Cf. Baude, 71 Stan. L. Rev. at 18 (“The key idea of acquiescence was that the losers in some sense gave up.”).
Importantly, though, Story makes clear that the Decision of 1789 does not apply to the vast majority of federal offices. Under the Appointments Clause, the default rule is that the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint” officers of the United States. U.S. const., art. II, § 2, cl. 2. However, Congress may vary this rule for “inferior officers” by vesting the appointment of such officers “in the President alone, in the Courts of Law, or in the Heads of Department.” Id. Story explains that “in regard to ‘inferior officers,’ (which appellation probably includes ninety-nine out of a hundred of the lucrative offices of the government) the remedy for any permanent abuse is still within the power of congress, by the simple expedient of requiring the consent of the senate to removals in such cases.” 3 Joseph Story, Commentaries § 1538, at 397.
Another treatise writer frequently cited as evidence of liquidation is Chancellor Kent, who declared in 1826 that “the construction given to the constitution in 1789,” and supported by the “sense and practice of government since that time,” may “now be considered as firmly and definitively settled.” 1 James Kent, Commentaries on American Law 289-90 (1826). Kent was discussing how U.S. marshals could be removed under a statute that provided they were to be appointed by the president with the Senate’s advice and consent and were removable at pleasure, but which did not specify who could remove them. Id. at 288. Kent explains that this question was in 1789 by a “legislative construction of the constitution,” which “has ever since been acquiesced in and acted upon.” Id. at 289. The 1789 construction occurred in the course of establishing the secretary of the treasury, Kent explains, but “applies equally to every other officer of government appointed by the president and senate, whose term of duration is not specifically declared.” Id. Kent’s view of the scope of the Decision of 1789 is similar, but not identical, to Story’s. While Story viewed the decision as applying only to principal officers who constitutionally must be subject to Senate confirmation, Kent saw it as also applying to inferior officers subject to Senate confirmation under the Appointment Clause’s default rule. But he also suggested an exception for offices whose term of duration is otherwise limited.
Unlike Story, Kent embraced the result of the Decision of 1789 which he viewed as “supported by the weighty reason, that the subordinate officers in the executive department ought to hold at the pleasure of the head of that department, because he is invested generally with the executive authority, and every participation in that authority by the senate was an exception to a general principle, and ought to be taken strictly.” Id. This rationale might seem to apply to all officers in the “executive department,” but Kent gave no indication that he thought the Decision of 1789 applied to inferior officers who were not appointed with advice and consent. To the contrary, Kent relates that deputy marshals are appointed by the marshal, “and they are removable not only at his pleasure, but they are also by statute made removable at the pleasure of the district or circuit courts.” Id. at 288. Here Kent expresses his view that the appointing authority has inherent power (at least in the absence of statutory prohibition) to remove, a general rule that the Decision of 1789 altered solely for cases in which the Senate’s advice and consent is part of the appointment process. Kent does not intimate that the president has any power to remove deputy marshals, nor does he question the constitutionality of authorizing their removal by the courts. (To the extent that he saw any tension between such arrangements and the president’s general responsibility to faithfully execute the law, he may be viewed as acquiescing in the liquidated law of presidential removal from the presidentialist side.)
A final source of evidence of liquidations are judicial opinions, particularly the Supreme Court’s decision in Ex Parte Hennen, 38 U.S. 230 (1839). That case involved the question whether the district courts, who were vested by law with the authority to appoint their clerks, also enjoyed an implied power of removal. In answering this question in the affirmative, the Court stresses the existence of a general background rule that the power of appointment carries with it the power of removal. See Hennen, 38 U.S. at 259 (“In the absence of all constitutional provision or statutory regulation, it would seem to be a sound and necessary rule to consider the power of removal as incident to the power of appointment.”). It framed the Decision of 1789 as a recognition of that background principle with the sole modification in the case of officers appointed by the president with advice and consent. However, the Court finds that the background principle holds for all other offices:
It would be a most extraordinary construction of the law that all these offices were to be held during life, which must inevitably follow, unless the incumbent was removable at the discretion of the head of the department; the President certainly has no power to remove. . . [T]he Constitution has authorized Congress in certain cases to vest this power in the President alone, in the courts of law, or in the heads of departments, and all inferior officers appointed under each by authority of law must hold their office at the discretion of the appointing power. Such is the settled usage and practical construction of the Constitution and laws, under which these offices are held.
Id. at 260 (emphasis added). While the Court’s discussion of presidential removal may be characterized as dicta, it confirms that the liquidation of the Decision of 1789 did not extend to inferior officers appointed by the heads of department or the courts. To the contrary, the “settled usage and practical construction of the Constitution and laws” establishes that the president has no power to remove such officers. See also United States v. Perkins, 116 U.S. 483, 485 (1886) (“We have no doubt that when Congress, by law, vests the appointment of inferior officers in the heads of departments, it may limit and restrict the power of removal as it deems best for the public interest.”).
All in all, I am inclined to agree with Professor Baude that presidential removal should be recognized on liquidation grounds. See Divided Argument: Delete This. Call Me. at 36:26 (June 2, 2025). This is partly because I think the decades following the Decision of 1789 probably satisfy the criteria for liquidation and partly because I think this is an area, to quote Jefferson, “it is much more material that there be a rule to go by than what the rule is.” We cannot simply ping-pong between back and forth between pro-presidential and pro-congressional rules on presidential removal. The pendulum has to stop somewhere and for me that begins by accepting that the Decision of 1789 (or, more accurately, “the Liquidation of the Early Nineteenth Century”—may have to keep workshopping that name) decided something.
That being said, I see no reason to conclude that the scope of the liquidation would extend to the for cause limitations on removal from the ICC (or subsequent multi-member agencies). As discussed above, the understanding the commentators and courts in the early 19th century appears to have been considerably more limited than an absolute presidential power to remove all officers of the United States (or even all executive officers). Instead, it is more accurately characterized as a presumptive power to remove officers appointed with the advice and consent of the Senate, with considerable uncertainty and disagreement about the extent to which Congress could override this presumption, particularly with regard to (1) inferior officers generally; (2) officers with judicial, quasi-judicial or other nonexecutive functions; and (3) officers given a fixed term. Perhaps the clearest thing about the consensus view is what it did not cover: inferior officers whose appointments were vested in the heads of department or courts of law.
The second clearest thing is that it did not cover the members of the ICC, who were appointed by the president with the advice and consent of the Senate for six year terms and were removable by the president only for inefficiency, neglect of duty or malfeasance in office. I say this not merely because Congress passed the Interstate Commerce Act in 1887 and the president signed it into law despite the limited removal power it provided. I say it because nobody in Congress raised any constitutional objection to the limited removal power given to the president. See Jane Manners & Lev Menand, The Three Permissions: Presidential Removal and the Statutory Limits of Agency Independence, 121 Colum. L. Rev. 1, 59 (2021) (“But although everyone knew that the statute gave the President only limited removal authority, not one legislator objected that such limits might be unconstitutional.”) Nor did President Cleveland express any such reservations when he signed it. Nor, apparently, did any subsequent administration over the ensuing decades leading up to the Supreme Court’s decision in Myers v. United States, 272 U.S. 52 (1926), either raise constitutional questions about the limitation or attempt to challenge it by removing a member of the ICC.
Nor was the ICC an obscure agency with insignificant powers or little influence. It wielded enormous power over the railroad industry, including the power to conduct investigations and issue subpoenas, to determine whether railroad carrier rates were “reasonable and just,” to investigate and enforce prohibitions against unjust discrimination and undue preferences, and to issue cease and desist orders against prohibited practices. In addition to the substantial powers initially provided, on several occasions Congress expanded the ICC’s jurisdiction and authority, including expanding its jurisdiction to cover telephone and telegraph companies and granting it authority to approve or deny railroad mergers and acquisitions. Moreover, the ICC’s powers were regularly the subject of major litigation and resulted in a number of significant Supreme Court decisions. See, e.g., ICC v. New York Cent. R.R. Col, 263 U.S. 603 (1924); ICC v. Chicago, R.I. & Pac. Ry. Co., 218 U.S. 88 (1910); ICC v. Illinois Cent. R.R. Co., 215 U.S. 452 (1910); New York, N.H. & Hartford R.R. Co. v. ICC, 200 U.S. 361 (1906); ICC v. Brimson, 154 U.S. 447 (1894).
There is to my knowledge no evidence that the question of whether the limitations on the president’s removal power were constitutional occurred during this time to any member of Congress who voted to fund the ICC and expand its powers, to any litigant seeking to restrict those powers, to any Supreme Court justice, to any officer or attorney of the executive branch or to any academic. This, it seems to me, strongly suggests something more than a mere “deliquidation” of a previously existing consensus. Instead, it demonstrates a broad, possibly universal, understanding that the president’s constitutional power of removal, whatever its scope, did not extend to the ICC.
It is true, of course, that the previous consensus, whatever it was, broke down prior to the establishment of the ICC, given that the Tenure of Office Act was passed by Congress in 1867, twenty years prior, over the veto of President Andrew Johnson. But this would hardly explain the absence of controversy over the removal limitations for the ICC. If anything, it heightened awareness of the issue and made it particularly likely that those who supported a constitutionally illimitable power of presidential removal would have objected to the structure of the ICC had they believed that it infringed on that power. Great Senate lawyers, such as George Hoar and William Evarts, who argued for repeal of the Tenure of Office Act at the same time the Interstate Commerce Act was being considered, did not raise any objections to the presidential removal limitations of the ICA. See Manners & Menand, 121 Colum. L. Rev. at 60-62.
There were at least four reasons why opponents of the Tenure of Office Act might not have viewed the ICC as violative of the president’s constitutional removal power. First, the members of the ICC had fixed terms of office. As Senator Evarts explained in the debate over the Tenure of Office Act, restricting removal for offices with limited terms was within Congress’s lawmaking power. See Manners & Menand, 121 Colum. L. Rev. at 61 (noting that “[n]o senator spoke against Evarts’s constitutional argument”). Second, the ICC was likely not perceived as being within the “executive department.” Certainly its functions and relations to presidential decisionmaking were quite different than the heads of department involved in the Decision of 1789. Third, the members of the ICC were likely viewed as “inferior officers,” a category that was more nebulous at the time than it has become under modern Supreme Court decisions. And finally, regulating the grounds on which the president could remove was quite different than forbidding him from removing altogether, or transferring the removal power in whole or in part to another branch of government. Any of these reasons, alone or in combination, may have been sufficient to exclude the ICC from the liquidated understanding of the Decision of 1789.
Myers and Beck’s Middle Ground
When the question of presidential removal power reached the Court in Myers, the government did not argue that restrictions on removal for multimember agencies like the ICC and Federal Trade Commission were unconstitutional. Indeed, as far as I have been able to tell, it did not once mention these agencies in its briefs or oral argument. However, the solicitor general did repeatedly urge the Court to accept a “middle ground” between the absolute power of a president to remove executive officers (it is important to remember that the government’s argument regarding removal was limited to executive officers only) and the absolute power of Congress to regulate such removals. See Substitute Brief for the United States on Reargument 6-7, 9, 11, 89, Myers v. United States, 272 U.S. 52 (1926); Oral Argument of Apr. 14, 1925 at 11-12, 27-29, 31-32. This “middle ground” unquestionably left room for upholding the independence of the ICC, FTC and similar multimember agencies.
The solicitor general’s brief explained that an example of a statute that could be upheld under this middle ground would be one “which would provide that a postmaster . . . should not be removed except for inefficiency or dishonesty.” Substitute Br. at 6. While he expressly declined to concede that such a statute would be constitutional, he acknowledged that it was distinguishable from the case at bar and could be “reconciled with the Constitution” on the basis that it “simply prescribes a legislative standard and defines a public policy in respect to the qualifications of appointment and the causes of removal, and leaves to the President the executive functions of applying the standard in the administration of the executive department.” Id. at 7. In such cases the legislative standard could upheld so long as it did not “unreasonably invade the executive function of deciding the question of removal.” Id. at 89.
Solicitor General Beck returned to this issue in the oral argument, explaining that under his “middle ground” the Congress “may guide and direct the discretion of the President by such statutory qualifications as are properly inherent in the nature of an office.” Oral Argument at 27-28. This contrasts with the statute before the Court, where the removal limitation (requiring the concurrence of the Senate for removal of postmasters) “has no reasonable relation to the office.” Id. at 29.
Beck had the following colloquy with the Chief Justice Taft on the subject:
The Chief Justice: Mr. Beck, would it interrupt you for me to ask you to state specifically what your idea is in regard to the middle ground to which you referred? What kind of method did you mean?
Mr. Beck: Well, I instanced one case, Mr. Chief Justice. I will try to give two or three illustrations: Take, for example, the kind of law I first cited, a law that says that an office is created and that the President shall appoint somebody to the office, and that he shall be removable for inefficiency and dishonesty. That largely leaves the President’s prerogative untouched.
The Chief Justice: Do you mean that he still would retain the power of absolute removal without having any such cause as that mentioned in the statute?
Mr. Beck: Exactly. And he would apply the legislative standard that had been given to him, viz, whether the incumbent was inefficient or dishonest.
This exchange, which appears in the syllabus of the case (272 U.S. at 96), is ambiguous because Beck appears to both say that president would “apply the legislative standard” of for cause removal and to agree with Taft that he would retain the power of “absolute removal” without cause. However, Beck later clarified in a response to Taft that he meant the former. See Oral Argument at 29. He then reiterated his position in response to Justice Sutherland:
Justice Sutherland: Your contention, as I understand it, is that Congress has authority to regulate or limit the power of removal, but it has no power to appropriate it?
Mr. Beck: Your Honor has stated my suggestion of a possible middle ground between two extreme theories more felicitously than I fear I have. I am not conceding that any impairment of the power of the President to remove is constitutional. I am only suggesting to the Court that in this case it is not necessary for you to decide the full scope of the power. In other words, you need not determine in this case whether Congress may not reasonably regulate and control or guide the discretion of the President as to the act of removal, so long as it does not impair his essential power of removal.
Oral Argument at 31.
It is important to recognize that Beck’s concession was not merely an attempt to persuade the Court that it could decide the case in the government’s favor without jeopardizing existing arrangements which protected the independence of various federal officers and agencies, though it certainly served that purpose. Indeed, the conclusion of the government’s brief contains the rather remarkable assertion that “[i]f the Court accepts the Government’s contention in this case, there will be no perceptible change in the operation of the Government, and the course of our history will placidly flow on as before . . . .” Substitute Brief at 93-94. The “middle ground” theory was obviously supportive of that soothing message.
But the middle ground also allowed the government to present its liquidation narrative without taking any account of the many statutes which had imposed for cause removal limitations, including the Interstate Commerce Act in 1887 and those subsequently enacted for the FTC, the Federal Reserve, the Tariff Commission, and other independent agencies. Its narrative presents the period from the Decision of 1789 until the Civil War as one in which presidents resolutely maintained and exercised their constitutional right to remove all executive officers, while Congress, despite occasional grumbling, acquiesced. See Substitute Brief at 77-85; Myers, 272 U.S. at 105-06. In the government’s telling this period was then interrupted by the passage of the Tenure of Office Act and associated laws, almost all of which (the exception being the postmaster removal statute before the Court in Myers) were repealed by 1887. This in turn (allegedly) reflected a broad consensus that the Tenure of Office Act had been a constitutional aberration inspired by the partisan passions of the Civil War. The statute at issue in Myers, by allowing the Senate to participate in the removal of postmasters, was simply a residue of that unhappy period and therefore could be disregarded as outside the accepted understanding of the Decision of 1789.
The government allowed only one other exception to this simple story. In 1921, Congress had passed the budget act establishing the office of the comptroller general, which was made independent of the executive departments and placed in charge of functions previously performed by the comptroller of the Treasury Department. This, the government warned ominously, showed that the spirit animating the Tenure of Office Act was not dead and could once again threaten the autonomy of the executive branch. See Substitute Brief at 94-95 (“If it be suggested that this argument deals with shadows and the Court need not take into consideration potential mischiefs which may never be realized, the answer is that the Court is now dealing with something more than a shadow—it is dealing with a reality.”) (emphasis in original). The focus of the government’s constitutional objection, however, was not the fact that the comptroller general could be removed only for cause, but that he could not be removed by the president at all, only by a joint resolution of Congress or impeachment.
In contrast to the inordinate attention given to the comptroller general law (which the government discussed in far greater depth than the postmaster removal statute at issue), it made no mention of the Interstate Commerce Act or similar for cause removal laws. This enabled the government to avoid having to explain why, if presidents so fiercely defended their removal prerogatives in other cases, they failed to do so regarding these statutes.
Myers’ Dicta and Pepper’s Concession
It is, of course, well known that much of Taft’s opinion in Myers was obiter dicta (a fact that would be pointed out rather harshly by Sutherland’s opinion in Humphrey’s Executor nine years later). It is also known, though much less discussed, that Taft brushed aside the middle ground offered by the solicitor general to reach his epic conclusions in favor of the executive. See Jonathan L. Entin, The Curious Case of the Pompous Postmaster: Myers v. United States, 65 Case W. Res. L. Rev. 1059, 1060 (2015) (“Taft’s majority opinion in Myers went well beyond what was necessary to resolve the case and ignored the position advanced by the solicitor general . . . .”). To my knowledge, however, the significance of this to the liquidation issue has been overlooked.
Taft easily could have accepted the solicitor general’s concession and simply noted that for cause limitations were not an issue in the case. He did exactly that with regard to removal limitations for non-Article III judicial offices. See Myers, 272 U.S. at 157-58. But although he apparently vacillated on whether to do so, Taft ultimately decided to handle the question of independent agencies differently. See Manners & Menand, 121 Colum. L. Rev. at 11 n.53 (describing Taft’s vacillation on whether the ICC was different from “purely executive boards” because it performed “legislative work”); Robert Post, Tension in the Unitary Executive: How Taft Construed the Epochal Opinion of Myers v. United States, 45 J. Sup. Ct. Hist. 167, 179 (2020). Thus, the Myers opinion contains the following fateful paragraph:
Other acts of Congress are referred to which contain provisions said to be inconsistent with the 1789 decision. Since the provision for an Interstate Commerce Commission, in 1887, many administrative boards have been created whose members are appointed by the President, by and with the advice and consent of the Senate, and in the statutes creating them have been provisions for the removal of the members for specified causes. Such provisions are claimed to be inconsistent with the independent power of removal by the President. This, however, is shown to be unfounded by the case of Shurtleff v. United States, 189 U. S. 311(1903). That concerned an act creating a board of general appraisers, 26 Stat. 131, 136, c. 407, § 12, and providing for their removal for inefficiency, neglect of duty or malfeasance in office. The President removed an appraiser without notice or hearing. It was forcibly contended that the affirmative language of the statute implied the negative of the power to remove except for cause and after a hearing. This would have been the usual rule of construction, but the Court declined to apply it. Assuming for the purpose of that case only, but without deciding, that Congress might limit the President’s power to remove, the Court held that, in the absence of constitutional or statutory provision otherwise, the President could, by virtue of his general power of appointment, remove an officer though appointed by and with the advice and consent of the Senate and notwithstanding specific provisions for his removal for cause, on the ground that the power of removal inhered in the power to appoint. This is an indication that many of the statutes cited are to be reconciled to the unrestricted power of the President to remove if he chooses to exercise his power.
Myers, 272 U.S. at 171-72.
Here Taft is saying that the creation of independent administrative boards like the ICC is not inconsistent with the Decision of 1789 because, under the Shurtleff decision, the for cause removal provisions may be read not to abrogate the president’s power of removal for other causes. At least he is saying that this is true for “many of the statutes cited.” But the point he is making is not that these statutes allow the president to remove for any cause; it is that the passage of these statutes was not inconsistent with the Decision of 1789 because, under Shurtleff, they may be read that way. Thus, they do not disturb his understanding of the liquidated meaning of the Decision of 1789.
This is an extraordinarily weak argument. At the outset, there was little reason to believe that Shurtleff would apply in the manner Taft suggested (indeed, in Humphrey’s Executor the Court would explicitly reject that argument with regard to the FTC). For one thing, the board of general appraisers was somewhat different than the other independent agencies. Although it was a multimember board charged with appraising goods for purposes of collecting customs duties, its members performed these duties individually as well as collectively. Moreover, these were duties traditionally performed within the executive departments (in this sense they were analogous to the treasury duties transferred to the comptroller general). Most importantly, however, the other administrative boards lack the key feature that caused Shurtleff to be decided as it was. The members of the board of appraisers were not appointed for limited terms; thus, in the absence of a general removal power, they would enjoy life tenure on good behavior. The Shurtleff Court was unwilling to assume that Congress intended such a result in the absence of exceedingly clear language.
Furthermore, even if one grants for sake of argument that Shurtleff might apply to “many” of the statutes in question, this does little to advance Taft’s argument. For this to matter, it would have to be shown that the reason there was no constitutional objection to the removal limitations of these statutes was due to a broad understanding that Shurtleff applied. This is a question of historical fact, not legal opinion, and Taft offers no evidence in support of this proposition. For example, he does not cite a single example of a member of Congress or anyone in the executive branch expressing the view that the removal provisions of any of the statutes in question should be read non-exclusively in light of Shurtleff (or for any other reason).
It would be particularly absurd to read the removal provisions for the ICC, which were enacted 16 years before the Shurtleff decision, to be predicated on an understanding of the Shurtleff rule. But even for statutes enacted later, it seems extraordinarily unlikely that supporters of a presidential removal power would rely on a debatable interpretation of that decision to preserve the president’s authority without making any record of that position.
In the Shurtleff case itself the executive branch relied solely on the argument that Congress could not have intended to eliminate the president’s general removal authority and thus convey life tenure on the appraisers. To be sure, as in Myers, the government did not concede that such restrictions would be constitutional if Congress imposed them. But following the Shurtleff decision, Congress in 1908 passed legislation explicitly overruling Shurtleff by expressly limiting removal of the members of the board of appraisers to the causes specified in the statute. This bill was signed into law by President Theodore Roosevelt without apparent constitutional objection. Indeed, when President Taft wanted to remove members of the board of appraisers, he did not claim an absolute right of removal but convened a board of inquiry to determine whether the statutory causes existed. See Post, 45 J. Sup. Ct. Hist. at 169-70.
It seems relatively clear that Taft wanted to keep administrative boards within the ambit of the Decision of 1789 liquidation because he believed they posed a threat to presidential control of executive functions and he thought it would be bad if Congress were allowed to give such boards a measure of independence. See Post, 45 J. Sup. Ct. Hist. at 186. He therefore seized upon the Shurtleff decision as a means of discounting the acquiescence of all three branches to the independence of such boards.
Taft contrasts these statutes with “other later acts” in which “the inconsistency with the independent power of the President to remove is clearer, but these can not be said really to have received the acquiescence of the executive branch of the Government.” Myers, 272 U.S. at 172. Presumably he is thinking there mainly of the comptroller general law, which was initially vetoed by President Wilson on the ground that it violated the president’s removal power and then subsequently signed into law by an allegedly reluctant President Harding. If the executive branch did not “really” acquiesce to the comptroller general law, which was clearly inconsistent with the president’s removal power, Taft wanted to show that the removal provisions for agencies like the ICC and FTC, to which the executive branch did clearly acquiesce, were not “really” inconsistent with that removal power. The administrative board paragraph served that purpose.
It is somewhat mysterious, however, why Taft’s colleagues in the Myers majority were willing to accept this language. After all, four of the five justices who joined Taft were still on the Court when Humphrey’s Executor was decided and they all joined the unanimous decision which rejected both the application of Shurtleff to the FTC’s for cause removal limitations and the claim that those limitations transgressed the president’s constitutional removal power. Justice Sutherland, the author of Humphrey’s Executor, must have understood from his questioning of Solicitor General Beck that the government was not challenging such removal limitations in Myers. It seems odd that these justices would have approved the “administrative board” paragraph, knowing it was unnecessary in Myers, and then declared in Humprey’s Executor that it was not only unnecessary but wrong.
One possible explanation is that the other justices simply deferred to Taft, who as the chief justice and a former president spent an enormous amount of time drafting the lengthy opinion. See generally Post, 45 J. Sup. Ct. Hist. at 181 (“It would be accurate to say that the Myers opinion was constructed through a most unusual process.”). Possibly they did not understand the import of the “administrative board” paragraph and did not anticipate that it would be read to invalidate the independence of agencies like the ICC and FTC. Possibly they overlooked the paragraph entirely.
Another explanation, though, is that they accepted the language because Senator Pepper, who appeared as amicus (representing congressional interests) in support of the fired postmaster, conceded to the Court that Shurtleff applied to agencies like the ICC and FTC. See Brief for the Appellant of Amicus Curiae George Wharton Pepper 8 (“Federal Trade Commissioners, Interstate Commerce Commissioners, United States Shipping Board Commissioners, and United States Tariff Commissioners . . . are laid aside in deference to the decision of this Court in Shurtleff v. United States”); see also Supplement to Brief of Amicus at 10. The only reason for this gratuitous concession appears to be so he could get brownie points from the Court for not running up the score by listing these along with the enormous number of other statutes which he cited as inconsistent with the president’s claimed power of removal. See Oral Argument of Apr.13, 1925 at 12-13 (“in this summary I have taken no account of a very great and important class of statutes in the case of offices created by act of Congress, which prescribe certain grounds upon which the President may remove [but under Shurtleff are to be read as non-exclusive]”).
It is speculation, but I wonder whether Taft’s colleagues were unwilling to push back on the administrative board paragraph because it seemed to merely state what the Senate’s able counsel had already acknowledged. Of course, Taft used the concession for a very different purpose than Pepper had intended. Pepper did not concede that the statutes were understood at the time they were enacted to be consistent with the president’s absolute power of removal. He does, however, allude to “practice and Executive custom” as supporting the application of Shurtleff to other administrative boards. Oral Argument of Apr. 13, 1925 at 23. This suggests that there were instances that the executive branch made such arguments, but Pepper does not elaborate, and it is unclear to what he might be referring.
In any event, the “administrative board” paragraph in Myers was widely, and understandably, read as signaling that the Court would likely strike down for cause limitations for such agencies as unconstitutional and that it would almost certainly refuse to read these statutes as prohibiting presidential removal for other causes. This in turn led to President Franklin Roosevelt’s decision to fire Mr. Humphrey from the FTC, and subsequently to Justice Sutherland’s opinion which developed an overly elaborate rationale for excluding such independent agencies from the ratio decidendi of Myers.
Had Taft accepted the solicitor general’s offer of a middle ground, he could have simply noted that for cause removal limitations like those for the ICC and FTC were not at issue in the case. In that case it probably would have been broadly accepted that such limitations, whether for administrative boards or for judicial bodies like the Court of Claims, present distinct issues that are not resolved by the Decision of 1789 or the later liquidated meaning of that decision. This is not to say that the matter would have been entirely settled. It would have remained for the executive branch to argue that such limitations were not reasonably related to or properly inherent in the nature of a particular office. Perhaps the courts would have forbidden independent agencies from exercising “purely executive” functions or those that were traditionally performed by the executive departments. But however that debate unfolded, it would not have been preoccupied by a quixotic attempt to determine whether the question was liquidated in the 19th century.
Conclusion
The fact is that from 1887 to the birth of the modern unitary executive theory a century later virtually no one, except for Chief Justice Taft, seems to have believed that for cause removal limitations were proscribed by the Decision of 1789 or its subsequent liquidation. Certainly it was not an argument that the government itself made in the Myers case.
One argument the solicitor general did make, namely that recognition of a presidential removal power would lead to no “perceptible change” in the operation of the government so that the “course of our history will placidly flow on as before,” has turned out to be deeply mistaken.
Far more prophetic were the words of Justice Story almost a century before. Story warned that “if this unlimited power of removal does exist, it may be, in the hands of a bold and designing man, of high ambitions, and feeble principles, an instrument of the worst oppression, and most vindictive vengeance.” Moreover, “fawning sycophants of the popular leader of the day may gain his patronage, to the exclusion of worthier and abler men.” He cautioned that “such a prerogative in the executive was in its own nature monarchical and arbitrary; and eminently dangerous to the best interests, as well as the liberties, of the country.” Such a broad removal power “would convert all officers of the country into the mere tools and creatures of the president,” while “[a] dependence, so servile on one individual, would deter men of high and honourable minds from engaging in the public service.” 3 Joseph Story, Commentaries § 1533, at 390.
It’s like he knew Pete Hegseth and Howie Lutnick personally!