Much of the debate about the removal power focuses on practice after the Constitution was adopted. Of course, there is the so-called Decision of 1789. There is also the Decision of 1790, which created the Sinking Fund Commission. However, in the immediate years after the framing, the Decision of 1789 seemed to take hold. Fast-forward one hundred years, and there was the Decision of 1887, which created the Interstate Commerce Commission (ICC). As the Progressive Era unfolded, Congress began to create more multi-member commissions with removal protections. Myers v. United States found that the President had the absolute power to remove a single executive branch officer, but Humphrey's Executor upheld tenure protections for FTC commissioners.
How should a court make sense of these competing traditions? For the first century, after ratification the Decision of 1789 seemed to suggest the President's removal power could not be restricted. For the second century after ratification, the Decision of 1887 seemed to suggest that the President's removal power could be restricted. But in the past two decades, the 1887 settlement has been eroded, and we are moving closer to the Decision of 1789.
During oral argument in Slaughter v. Trump, Justice Barrett offered a careful consideration of this chronology.
Barrett acknowledged that recent historical work "shows that independent agencies has a longer pedigree than maybe some thought originally." But she maintained that the Sinking Fund Commission did not really establish a precedent for statutory removal restrictions. It was true that the Vice President and Chief Justice were appointed to the Commission by statute, and the President could not remove them. But the President could remove the other three members of the commission: the Secretary of State, the Secretary of the Treasury, and the Attorney General. Thus, the President could control a majority of the Commission. And in reality, Washington likely expected Alexander Hamilton to make all of the important decisions. Indeed that is exactly what would happen, so Washington had no need to fire anyone. Moreover, the Sinking Fund Commission, as well as the Revolutionary War Debt Commission, had "very, very limited authority."
Justice Barrett asked Amit Argawal, counsel for Slaughter, to "assume, that I disagree with you about the history." When Justice Barrett asks counsel to "assume" something, you know what she believes. Rather, Barrett said, the first "statutory removal restriction, like the inefficiency, neglect, malfeasance [standard] appeared in the 1887 with the ICC."
Justice Barrett then turned to the topic of liquidation:
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 you 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 say as of 1887, it was liquidated, it was settled, but then we did have cases and congressional practices that veered from that unbroken law. . . .
But, counsel, if it had the first --I mean, in --in the --the assumptions that I've asked you to make, it was liquidated as of 1887. So you think liquidation can kind of get a new restart, like kick-start in 1887?
In short can a liquidated practice become unliquidated? Or to use the imagery of the day, can liquidation sink and later float?
Here, I think a useful precedent to consider is Bruen. Leading up to the Reconstruction Era, the notion of an individual right to keep and bear arms had crystalized. And even if there was not a strong enough case based on original meaning, that right had been liquidated through practice. However, after Reconstruction, that settlement was altered. Jim Crow regimes enacted discriminatory gun control laws. Territories in the Wild West enacted gun free zones. And by the start of the twentieth century, governments enacted handgun carry bans. Indeed, the Sullivan Law from New York was on the books for more than a century by the time Bruen was decided.
In Bruen, Justice Thomas dismissed the relevance of the Jim Crow laws, as well as the laws from the Wild West. But there is some resemblance between the chronology of the Second Amendment and the chronology that Justice Barrett described in Slaughter. The line can be drawn roughly before and after the Progressive Era---when so much of the Constitution was damaged. Was the Second Amendment a case of liquidation followed by unliquidation? Did a liquidated right to bear arms float before the Civil War and sink after the Civil War? And how should courts consider these competing streams of authority?
In Bruen, Justice Barrett expressed concerns about liquidation in her concurrence:
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