"The Originalist Case Against Overturning Humphrey's Executor," by Lorianne Updike Schulzke
I was talking to Prof. Lorianne Updike Schulzke (who teaches at Northern Illinois and is visiting this semester at Yale), and she brought up some interesting thoughts on the President's supposed inherent constitutional power to dismiss independent agency officials. She was kind enough to pass along this quick summary; I'm not an expert on the field myself, but I thought it was worth passing along in turn:
Serious Originalists should pause before solidifying President Trump's control over independent agencies by overturning Humphrey's Executor. Yesterday the DC Circuit stayed the reinstatement of Gwynne A. Wilcox of the National Labor Relations Board (NLRB), potentially under the theory that Seila Law throws Humphrey's Executor into doubt.
Yet as I demonstrate in a paper just out in the Connecticut Law Review, Un-fathering the Constitution, the historical grounding of Seila Law in Madison's vision of executive removal is tenuous at best. In fact, more careful historical analysis demonstrates that Madison's vision should not dominate executive removal.
Further, this history shows that the original Congress anticipated a role for itself in limiting the president's removal power. If this history is to have any sway (and Originalism dictates that it should), Humphrey's Executor should be kept intact and greater power over independent agencies should not be granted to the Trump administration.
Congress began creating independent agencies in the 1880s, when they established the Interstate Commerce Commission to regulate railroads. Since then, the President has made top appointments for such agencies, and Congress lower appointments according to Article II, Sec. 2 of the Constitution. Under Humphrey's Executor, the appointees who run these agencies have a quasi-legislative role (being set up by Congress), and therefore the president's ability to control and fire them is limited.
Humphrey's Executor stands in the way of Trump firing heads, especially multi-member heads, of independent agencies. The idea of Humphrey's Executor is that executive removal should be limited, or the president should be limited in his ability to remove heads of such agencies and wield control over them because they were established by Congress to be independent and create something of a check on executive power. The argument on the other side—called the theory of a unitary executive—is that independent agencies are not politically accountable and sweeping them under the executive (and overturning Humphrey's Executor) would make them so. Recently, this theory has gained support from liberal theorists.
Seila Law, decided by the Supreme Court in June of 2020, according to DC Circuit Judge Walker's concurrence filed in the Wilcox case yesterday, casts doubt on Humphrey's Executor. According to Walker, although Seila Law did not "revisit prior decisions" (Slip Opinion at 2), it did decide that independent agencies headed by a single head were removable by the President. By the same reasoning, multi-headed agencies like the NLRB would also be subject to removal.
Yet Seila Law is founded on the reasoning of Myers v. United States, which in turn is founded on the "Decision of 1789." In the Decision of 1789, the First Congress was suppose to have decided that the Constitution vested the power over removal of federal agency officials in the president.
Except that it didn't. Instead, the Myers' Court used Congressman Madison's arguments in favor of executive removal—and the First Congress' ability to set precedent for the Constitution—and interposed them as Congress' reasoning behind a very complicated vote and even more complicated Congressional debate.
A simple review of the votes of the 1789 Congress regarding the president's power to remove the Secretary of Foreign Affairs makes this clear. Twice, the First Congress rejected the language "to be removable by the President"—once by a vote of 34-20, and again by a vote of 31-19. The opposition to this language—and an interpretation of the Constitution vesting unfettered removal in the president—is clear.
After much debate, where some Congressmen expressed grave doubt over both Congress' ability to interpret the Constitution and placing strong removal power in the president, Congress approved the following language: "whenever the said principal officer shall be removed by the President" by a vote of 30-18.
The flip in at least 11 votes does not show that these Congressmen changed their beliefs, but that the language was more acceptable to them. Based on the debates leading up to this vote, a much more likely interpretation is that this language mustered a majority because 1) it did not mean Congress was assuming to itself a precedent-setting role in interpreting the Constitution and 2) the president's removal could be determined by either Congress or the Constitution. In effect, the vagueness of the language allowed for both interpretations.
More, at least a majority of the First Congress anticipated a role for Congress in determining removal of agency appointees. This does not translate into a strong case for executive removal OR a unitary executive, where independent agencies should all report to and be controlled by a president. It does leave open the possibility that independent agencies could report back to Congress rather than the president. Either way, this history is not good grounding for strong executive removal.
The reason why this "decision" has been interpreted as a decision—and one in favor of executive removal—is because of basic assumptions surrounding Madison. He is the presumed father of the Constitution, so his view of the Constitution and here, executive removal, is given more weight. Yet as I detail in Un-fathering the Constitution, this presumption is based more in fiction than fact. Madison does not a father make, especially in the singular sense, for three basic reasons.
First, Madison did not bring about the Constitutional Convention. This has long been known by historians, but not accepted by the public at large. He was a johnny-come-lately to the idea and didn't sign on till after the Annapolis Convention of 1786, likely convinced by Hamilton that it was worth putting his weight behind, which he did.
Second, Madison did not author the Virginia Plan. It was, instead, Virginia's Plan proposed and attributed throughout the Constitutional Convention to Virginia Governor Edmund Randolph who headed the quasi-committee of Virginia and Pennsylvania delegates who arrived on time to the Pennsylvania State House (now called Independence Hall) but before a quorum met. While Randolph held quill in hand, the Virginia Plan was likely dictated or worked out by constitution-writing veteran George Mason, who authored Virginia's famous (and much-replicated) Constitution of 1776. The biggest tell of Madison's non-authorship is shown in him nearly torpedoing the plan on day 1. On May 30, 1787, Madison raised the question of solidifying slavery in the representation calculus, something he would not do if the plan was his own (and certainly shows he did not win on major questions answered by the plan).
Third and perhaps most importantly, as shown by new analytics made possible by the Quill Project, Madison was not all that influential on the Constitutional Convention's floor. He came to the Convention with little national influence: Madison's correspondence shows he wrote to almost no one outside of Virginia before the Convention. Additionally, he was not picked for the Convention's most important committee, the Committee of Detail, tasked to come up with a draft of the Constitution, not asked to chair any of the four committees on which he sat, and though he was #3 in making the most proposals, he as 13th in terms of proposal success.
In the end, Madison emerges from the Convention depressed over his own and the Constitution's chance at success. This because the two proposals he was most passionate about, proportional representation in the Senate and a Congressional veto over state laws, failed. Madison later writes himself out of this funk when he, as Hamilton's #2 pick as co-author after Gouverneur Morris, writes 1/3 of the Federalist Papers. Although these papers are not immediately influential anywhere, they provide debating guides for himself in helping to secure Virginia's ratification.
Without a seat on the Supreme Court nor in Washington's cabinet and after losing his senatorial bid, Madison scrapes by in winning a seat in Congress by making a campaign promise to support a Bill of Rights. He makes good on this promise and cobbles other proposals together in drafting a Bill of Rights, which he champions through Congress thanks to help from Washington, but only just.
In all, Madison becomes influential later as a member of Congress, as the Federalist Papers are published as a two-volume book, and posthumously through his Notes on the Constitutional Convention. But he is not all that influential initially, and cannot faithfully fill the role of "Father of the Constitution." This becomes a problem when he is used to represent other Founders or when his interpretation is used inappropriately as the interpretation of the Constitution, as it has in executive removal jurisprudence, beginning with Myers v. United States.
Madison's views on executive removal in the First Congress should not be the lynchpin upon which executive removal jurisprudence, including Humphrey's Executor, should turn. Instead, the Court and advocates who take Originalism seriously should be careful to weigh other, more diverse sources to determine the public meaning of the president's power to remove agency officials such as those serving on the NLRB.
I'd of course be glad to post contrary arguments on this as well (and I know some of my cobloggers have already written on this).