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Some Answers to Justice Barrett's Questions in Trump v. Slaughter
Why the Executive Power Vesting clause of Article II compels a holding that the President has the power to remove Federal Trade Commissioner Rebecca Kelly Slaughter.
Justice Barrett asked several good questions yesterday at oral argument in Trump v. Slaughter, which deserve a further response.
First, Justice Barrett asked Solicitor General D. John Sauer whether the Court should rest its holding in this case on the allegedly narrower grounds of removal as flowing from the Take Care Clause of Article II, Section III, or as being an incident of the Appointment Power, rather than holding that the Executive Power Vesting Clause confers the removal power.
The Take Care Clause argument overlooks the fact that the body of the Constitution confers what it calls "Power" only in a limited number of places: the three Vesting Clauses; the eighteen clauses that confer limited and enumerated 'Powers' on Congress in Article I, Section 8; and a few other places. There are, to be sure, other clauses that confer power elsewhere in the Constitution without using the word "Power," like the New States Admission Clause, but they are few and far between. It would be textually odd for the removal power, which is a part of "The President's Power to Execute the Laws"—a power that the President assuredly has—to be found in Article II, Section 3 as the fifth in a series of six duties that Article II, Section 3 imposes upon the President and that does not use the word "Power."
Under the canon of construction noscitur a sociis, the meaning of a clause is illuminated by the company of the clauses with which it is linked. The Take Care Clause appears in between the Clauses imposing duties on the President to (1) receive ambassadors and other public ministers and (2) to commission officers. All of this is in a paragraph that begins by imposing on the President the duty to give State of the Union addresses and the duty to recommend to Congress new laws.
Imposing a duty on the President could be seen as granting the President a power, but the more plausible reading of Article II is that the Vesting Clause of Section 1 grants the President the sole but delegable power to execute the laws. Section 2 then explicates and adds content to this open-ended grant of the executive power, conferred on the President alone by Section 1, by making clear that the President is the Commander in Chief of our military and that he has the pardon power and that, with the Senate, he has the power to make treaties and appoint all officers of the United States and acting on his own to make recess appointments. Section 3 of Article II then imposes six duties on the President including the duty to take care that the laws be faithfully executed, a duty that the President can only fulfill because Section 1 of Article II has already conferred upon him the executive power. And Section 4 makes it clear that Presidents and Vice Presidents, unlike British Monarchs, are subject to impeachment.
The Take Care Clause descends from a clause in the English Bill of Rights of 1689, which was understood as taking away a power originally claimed by King James II that he could suspend or dispense with an Act of Parliament. English kings continued to remove officers long after the enactment of the Bill of Rights of 1689. The Take Care Clause's original Eighteenth Century meaning was that the President had no power to suspend or dispense with enacted statutes at will. There is nothing in the original Eighteenth Century history of the Take Care Clause that even remotely suggests that that Clause was a source of the removal power.
In contrast, as I explain in my amicus brief in Trump v. Slaughter, with former Attorneys General Ed Meese and Michael Mukasey, Presidents Washington, Adams, and Jefferson and Congress, in the Decision of 1789, all saw the Executive Power Vesting Clause as being the source of the President's removal power. Looking for the removal power in the Take Care Clause is like looking for an elephant in a mousehole.
The argument that the removal power is an incident of the Appointment Power is technically correct because the President can refuse to appoint one of his own nominees who the Senate has confirmed, but beyond that the argument seems implausible given recent Supreme Court precedent. It is an implausible source of the removal power because Senate confirmation is such a huge constraint on who the President can appoint. The repeal of the Tenure of Office Act, and the concession by Congress that it had always been unconstitutional, makes clear that presidential removals cannot be conditioned on Senate consent to the removal. Bowsher v. Synar, 478 U.S. 714 (1986), clearly established that Congress cannot be given any role at all in removing officers. Moreover, an argument that officers not appointed by the President but who are exercising executive power are not removable at will by the President is foreclosed by the Supreme Court's decision in Seila Law LLC v. Consumer Financial Protection Bureau, 591 U.S. 197 (2020), which says that all exercises of executive power must be made only by officials who are removable at will by the President.
To limit presidential removal power to only those officers whom the President appoints would leave vast numbers of inferior officers, who exercise executive power but who have been appointed by the Heads of Departments, unremovable by the President. This would hugely curtail presidential power over vast areas of the executive branch. It would also potentially force the President to fire a Head of Department, whom he likes, to get rid of an inferior officer who is misusing the executive power that Article II, Section 1 gives to the President alone. Again, the Decision of 1789 understanding of James Madison that the removal power is a part of the President's "executive Power" seems more plausible.
It is the case that the Supreme Court correctly held in Ex Parte Hennen, 38 U.S. 230 (1839), that the officer who makes an appointment can remove the appointee at will. But it does not follow from that that a President cannot remove at will an inferior officer who was appointed by the Head of a Department but who is exercising executive power as was said in Seila Law. Moreover, although United States v. Perkins, 116 U.S. 483 (1886), held that Congress could limit the removal power of Heads of Departments as to inferior officers whom they appoint, it does not follow from that that Congress could also limit the President's removal power at will when those inferior officers are exercising executive power. Again, Seila Law forecloses such an argument.
The case for presidential removal power under the Executive Power Vesting Clause of Article II is strengthened if one compares the Vesting Clauses of Articles I, II, and III with one another. It makes sense to compare the three Vesting Clauses with one another under the noscitur a sociis canon of construction that extremely similar clauses in a text should be construed according to the company they keep.
The Vesting Clause of Article I confers only all legislative powers "herein granted" whereas the Vesting Clause of Article II confers all of the executive power in on the President alone. Morrison v. Olson, 487 U.S 654 (1988) (Scalia, J., dissenting). This suggests that the executive power includes some very limited inherent powers like the removal power, or the protective power recognized by In re Neagle, 135 U.S. 1 (1890). See also United States v. Midwest Oil, 236 U.S. 459 (1915) (presidential power to withdraw federal lands from public use); United States v. Curtiss-Wright Export Corporation, 299 U.S. 304 (1936) (presidential foreign affairs power). The lesson taught by the Vesting Clause of Article I as to the Vesting Clause of Article II is that the President has more executive power than merely that which the rest of Article II "herein grants."
Turning to the Vesting Clause of Article III, we must note that it is the only grant of power to the federal courts in all of Article III. This strongly suggests that the similarly-worded Vesting Clause of Article II is a grant of power to the President, which is expanded on by Article II, Section 2; as to which duties are imposed in Article II, Section 3; and which is capped by Article II, Section 4 rendering the President and Vice President impeachable.
The Vesting Clause of Article III also confers the judicial power on both the Supreme Court and the inferior federal courts. This makes the fact that the Vesting Clause of Article II confers the executive power only on the President especially stark. The lesson taught by the Vesting Clause of Article III as to the Vesting Clause of Article II is that while the Supreme Court may reverse judgments of the inferior courts, it cannot remove the judges who sit on those courts. In contrast, the Vesting Clause of Article II does give the President the power to remove any officer who is exercising executive power.
It is hard to imagine, reading the three Vesting Clauses in a noscitur a sociis fashion, that executive branch officers inferior to the President cannot be stripped of their executive power, i.e., by firing and removal by the President.
Justice Barrett also asked counsel for Slaughter how old the idea of independent agencies is, while quite rightly expressing skepticism as to the Sinking Fund being an independent agency but wondering whether the Interstate Commerce Commission had been an independent agency since the late nineteenth century. In Shurtleff v. United States,189 U.S. 311 (1903), the Supreme Court held that the President could remove an officer of the United States at will even if the statutory office which he held provided for removal only in cases of "inefficiency, neglect of duty, or malfeasance in office." The court upheld presidential removal power in such cases, unless the statute expressly forbade it. For officers o be independent under Shurtleff, a statute would have to read that the officers were removable for "inefficiency, neglect of duty, or malfeasance in office, and for no other reason."
Since the organic statute creating the Federal Trade Commission did not include this "and for no other reason" requirement of Shurtleff, the Supreme Court in Humphrey's Executor v. United States, 295 U.S. 602 (1935), actually misread the FTC's statute, which was enacted after the rule of Shurtleff had been proclaimed. The Supreme Court wrongly concluded in Humphrey's Executor, that Congress had created the FTC to be an independent agency in a portion of its opinion in that case, which no one ever reads, and which is inconsistent with Shurtleff v. United States.
The Supreme Court in Humphrey's Executor first misread the FTC organic act as creating an independent agency, and it then misread the Constitution as rendering a headless fourth branch of the government to be constitutional. Both parts of the Humphrey's Executor opinion are wrong. At a minimum, the Supreme Court should have read the FTC Act to be constitutional, not unconstitutional. After 1935, Congress naturally rushed in to make more and more agencies independent, but the concept of independent agencies originated in 1935—146 years after the idea of presidential removal power had been liquidated as a core executive power.
Every President since 1935 has tried to assert as much control as he could over the headless fourth branch of the government, as is shown in Steven G. Calabresi & Christopher Yoo, The Unitary Executive: Presidential Power from Washington to Bush (2008). Franklin D. Roosevelt's Brownlow Committee on administrative law reform called for eliminating independent agencies; President Truman endorsed an even more expansive reading of the Vesting Clause of Article II than the one argued for in Trump v. Slaughter in the Youngstown Steel Seizure Case, 343 U.S. 579 (1952); and President Eisenhower fired David Wiener from the War Claims Commission, as shown by Wiener v. United States, 357 U.S. 349 (1958), expressing opposition to Humphrey's Executor. The Office of Management and Budget (OMB) and the Office of Information and Regulatory Affairs (OIRA) were each given additional powers by Presidents Franklin D. Roosevelt, Richard M. Nixon, and Ronald Reagan to rein in the Headless Fourth Branch of the Government. The notion that Presidents have passively acquiesced in the stripping of their removal power over independent agencies is incorrect, as the Calabresi & Yoo book proves.
The Supreme Court should thus overrule Humphrey's Executor in Trump v. Slaughter—but simply because the existence of independent agencies violates the Executive Power Vesting Clause of Article II. This argument is compelled by the text of the Constitution no matter what the history prior to 1789 was and no matter what the early practice under the Constitution was. Judge Robert H. Bork once said that "We are bound by the laws that dead people make, not by their unenacted opinions." The Tempting of America (1990). There is quite simply no way to square a headless fourth branch of the government with the words of the Constitution, which create only three branches of government no matter what the pre-1789 history or the post-1789 practice suggests.
