Justice Barrett, Trump v. Slaughter, and Presidential Removal Power from 1901 to 1921
Every president from 1901 to 1921 successfully defended presidential removal power at will.
In a previous blog post, I argued that every President from 1881 to 1901 had successfully defended the President's power to remove at will all officers exercising executive power and that no independent agencies in the modern sense of the term had been created during the last twenty years of the 19th Century. In this blog post, I will argue that every President from 1901 to 1921 also successfully defended presidential removal power at will over all executive officers and that no independent agencies in the modern sense of the term were created between 1901 and 1921 during the Progressive Era. My argument grows out of my co-authored book with Professor Christopher Yoo, who deserves all the credit and none of the blame for anything in this blog post. Steven G. Calabresi & Christopher S. Yoo, The Unitary Executive: Presidential Power from Washington to Bush (Yale University Press 2008).
Theodore Roosevelt served as president from 1901 to 1909, and he had a breathtakingly large view of presidential power, which he called "The Stewardship Theory." Id. at 239-240. Teddy Roosevelt thought the President could do anything at all that was not specifically prohibited by the Constitution or statutory law. He called this the Jackson-Lincoln view of presidential power. Teddy Roosevelt believed that Andrew Jackson, Abraham Lincoln, and Alexander Hamilton had correctly described the scope of presidential power. He personalized the office of the presidency in a charismatic way that had never been done before, and he appealed to the people over the heads of both Houses of Congress. Teddy Roosevelt was immensely popular.
Teddy Roosevelt contrasted his Stewardship Theory of the presidency with what he called William Howard Taft's James Buchanan Theory of the presidency. Taft thought the president could only act pursuant to statutory and/or constitutional authorization. As a matter of constitutional law, Taft was clearly right, and Teddy Roosevelt had a dangerous and unconstitutionally broad conception of presidential power. He withdrew hundreds of millions of acres of western land from public entry without having any statutory authority to do so. Teddy Roosevelt wielded the removal power with zeal, as Christopher Yoo and I show in our book, maintaining strict control over all his cabinet members.
In his eighth annual message to Congress Teddy Roosevelt proposed:
that all existing independent bureaus and commissions … be placed under the jurisdiction of appropriate executive departments … [arguing that it was] … unwise from every standpoint, and results only in mischief, to have any executive work done save by the purely executive bodies, under the control of the president; and each such executive body should be under the immediate supervision of a Cabinet member.
Calabresi & Yoo at 241. No independent entities were created during Teddy Roosevelt's presidency, and Teddy Roosevelt, himself, personally supervised several special prosecutors who investigated various mini scandals in his administration.
Teddy Roosevelt made extensive use of executive orders as president, for the first time in American history issuing 1,091 such orders "nearly as many as had been issued by all previous presidents over the prior 111 years (1,259)." Id. at 242. He appointed the Charles Keep Commission, which recommended to Congress "that the president should be in control of the management of the executive agencies." Teddy Roosevelt's entire Cabinet resigned before his second term began, so that he could have absolute control over his second term Cabinet. He most certainly would never have acquiesced in any loss of the President's power to remove at will all officers who exercised executive power.
William Howard Taft served as president from 1909 to 1913. Thirteen years after he left the presidency, Taft wrote the cornerstone presidential removal power opinion in Myers v. United States, which comprehensively and at great length lays out the scholarly argument that the President has the power to remove all officers exercising executive power. No better friend of the unitary executive theory of presidential power has ever served as president than Taft.
In his book, Our Chief Magistrate and His Powers, Taft wrote that:
It was settled, as long ago as the first Congress, at the instance of Madison, then in the Senate … by the deciding vote of John Adams, then Vice President, that even where the advice and consent of the Senate was necessary to the appointment of an officer, the President had the absolute right to remove him without consulting the Senate. This was on the principle that the power of removal was incident to the Executive power and must be untrammeled.
Calabresi & Yoo at 248. Taft, in Myers, explicitly asserts that "the vesting of the executive power in the President was essentially a grant of power to execute the laws, and he further notes that the natural meaning of the term executive power granted the President included the appointment and removal of executive subordinates. Myers's author fully appreciated and supported the legal and historical arguments in favor of the unitary executive." Id.
The defining event of William Howard Taft's presidency was his decision to remove Forestry Bureau Chief Gifford Pinchot, Teddy Roosevelt's best friend and an ardent conservationist, after Pinchot falsely accused Interior Secretary Richard Ballinger of corruption. "As a holdover from the previous administration, Pinchot still supported [Teddy] Roosevelt's willingness to bring lands within the national forest system despite the absence of authorizing legislation." Id. at 249. President Taft disagreed on constitutional grounds, and he fired Pinchot breaking permanently with Teddy Roosevelt in a very controversial move. "The furor [over Taft's removal of Pinchot] became so great that the controversy became known as the 'American Dreyfus case.' A congressional investigation ensued that ultimately exonerated Ballinger." Id. at 249.
The removal of Pinchot cost Taft any chance of being re-elected to a second term, with then former President Teddy Roosevelt running as a third-party spoiler candidate in the election of 1912, which resulted in Democrat Woodrow Wilson being elected President. Taft stuck to his constitutional principles about not acting himself without statutory authority, and he used the removal power to prevent officers in his administration from acting without constitutional or statutory authorization.
Taft appointed a Commission on Economy and Efficiency, like Teddy Roosevelt's Keep Commission. Both Commissions urged Congress unsuccessfully to centralize more power in the presidency, unsuccessfully. Famed Administrative Law historian Leonard White noted, "The work of the Keep Commission and of President Taft's Commission on Economy and Efficiency … are the visible symbols not only of a transfer of initiative for administrative reform from the legislative to the executive branch, but also of the tipping of the constitutional balance from Congress to the President of the United States. This shift was momentous and was not reversed." "The Commission on Economy and Efficiency eventually led to the creation of the Bureau of the Budget, which today is known as the Office of Management and Budget. William Howard Taft is thus the grandfather of the OMB—one of the most powerful centralizing tools the President has today at his disposal." Calabresi & Yoo at 251. Taft most certainly would never have acquiesced in any loss of the President's power to remove at will all officers who exercised executive power.
Woodrow Wilson served as President from 1913 to 1921, and he was an advocate as president of very strong presidential power. In Constitutional. Government in the United States (1908) (quoted in Calabresi & Yoo at 255), Wilson wrote that the country
ha[d] grown more and more inclined … to look to the President as the unifying force in our complex system…. His is the only national voice in affairs. Let him once win the admiration and confidence of the country, and no other single voice can withstand him, no combination of forces will easily overpower him. His position takes the imagination of the country. He is the representative of no constituency, but of the whole people…. If he rightly interprets the national thought and boldly insist upon it, he is irresistible; and the country never feels the zest of action so much as when its President is of such insight and calibre.
Wilson's vigorous use of the removal power indicates that he believed in the President's use of it not only as a theoretical matter, but he also used it powerfully in practice. Wilson "did not hesitate to dismiss cabinet officials or put them in a situation where they felt they needed to resign. Secretary of State William. Jennings Bryan resigned, believing that Wilson was unnecessarily pushing America into World War I. William C. Redfield the first Secretary of Commerce, also resigned, belieiving Wilson was not supportive enough of business. And, most dramatically, Wilson fired Secretary of State Robert Lessing…. And, perhaps most important of all, Wilson directed his postmaster general to dismiss Frank S. Myer as postmaster first class. Although the removal of a fairly minor federal official would not ordinarily be noteworthy, in this case it would provide the basis for the Supreme Court's most influential removal power case: Myers v. United States." Calabresi and Yoo, supra, at 255-256.
Wilson vetoed the Budget and Accounting Act, which he otherwise favored because it would have created a Comptroller General to control the General Accounting Office (GAO) who would have had executive power but whose removal would depend on congressional permission. "As Wilson noted in his veto message, 'The Congress is without constitutional powers to limit … the power of removal [that the President derives] from the Constitution.'" Id. at 257.
Three agencies that would come to be viewed as independent after 1935, but which were not independent when they were created came to exist during Woodrow Wilson's presidency: "the Federal Reserve Board, the Federal Trade Commission (FTC), and the U.S. Shipping Board. The members of the FTC and the Shipping Board were subject to the same language used in the ICC Act authorizing removal in cases of "inefficiency, neglect of duty, or malfeasance. The statute establishing the Federal Reserve Board provided for a ten-year term unless [a Board Member was] removed by the president 'for cause.'" Id. at 257-258.
The legislative history of the creation of these three agencies contains no discussion of their being independent of the President. "In fact, during consideration of the FTC Act, Wilson insisted that the Commission remain relatively weak, reflecting his view that it was 'an executive agency charged with executive and administrative duties' and 'was merely to supplement existing law-enforcement agencies.' Wilson's theory seems to have won the day, as he 'secured the inclusion in the Federal Trade Commission Act of the clause authorizing the President to direct the commission to make certain investigations…. Wilson did not hesitate to use his power to direct FTC investigations, launching many of the FTC's major initiatives. Wilson also threatened to remove the entire Federal Reserve Board for disagreeing with his policies." Id. at 258-259.
"But the most compelling explanation for why Wilson failed to object to these decisions is the Supreme Court's decision in Shurtleff [v. United States] (1903). The removal language included in these new statutes was identical to the language that Shurtleff held did not place any limits on the president's power to remove. Therefore, Congress was doubtless aware that under Supreme Court precedent, including that same language in the FTC Act and the Shipping Act appears to make the members of those bodies removable at will. This conclusion is reinforced by the fact that in 1908, five years after Shurtleff, Congress amended the statute at issue in Shurtleff to make explicit that general appraisers of customs could be removed for cause and for no other reason. The decision to employ language identical to that used in Shurtleff rather than the language used in the amended customs statute would appear to be no accident, and it raises the strong inference that Congress did not intend to limit the president's power to remove members of the FTC or the Shipping Board. In light of Shurtleff, the FTC was not truly an independent agency until the Supreme Court's 1935 decision in Humphrey's Executor v. United States." Id. at 259-260.
Critically, "Congress did include the key language identified by Shurtleff as signaling Congress's intention to limit the removal power in two [other] statutes establishing boards to facilitate the resolution of railway disputes. Transportation Act of 1920, ch. 91, Section 306(b), 41 Stat. 456, 470 (creating a Railroad Labor Board whose members 'may be removed by the President for neglect of duty or malfeasance in office, but for no other cause' (emphasis added); Newlands Act of 1913, ch. 6, Section 11, 38 Stat. 103, 108 (Creating a Board of Mediation and Conciliation headed by a commissioner 'who shall be removable by the President only for misconduct in office')." Id. at 260.
Wilson's overall record is more than sufficient to overcome any suggestion that Wilson acquiesced to any congressional power to limit the President's constitutionally granted removal power. The Unitary Executive emerged from the Progressive Era more powerful than it had ever before been in U.S. history and with total presidential power to remove all officers exercising executive power anywhere in the government.