Justice Barrett, Trump v. Slaughter, and Presidential Removal Power from 1933 to 1945

President Franklin D. Roosevelt did his best to defend presidential removal power at will notwithstanding the Supreme Court’s lawless decision in Humphrey’s Executor v. United States.

In three previous blog posts, I argued that every President from 1881 to 1933 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 between 1881 and 1933. In this blog post, I will argue that President Franklin D. Roosevelt did his best and his utmost to defend unilateral presidential power to remove officers exercising executive power both prior to and after Humphrey's Executor v. United States (1935). 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).

Franklin D. Roosevelt served as President from 1933 to 1945. The unitary executive has had no better friend in history than FDR. Roosevelt transformed the office of the presidency by making it much more powerful than ever before. His personal charisma and domination of the new medium of radio, with his fireside chats, helped him to accomplish this. FDR was the first in line of a whole series of imperial presidents.

Early in his Administration, FDR "issued an executive order transferring all of the government's legal authority to the Justice Department…. Roosevelt also transferred the Bureau of the Budget from the Treasury Department to the newly created Executive Office of the President, so that it could become the president's principal means for his asserting control over the entire executive branch." Id. at 280. The Bureau is today called the Office of Management and Budget, and it continues to function to this day as the President's principal tool in controlling the Executive Branch.

FDR made much more aggressive us of the president's power to issue executive orders than had any of his predecessors. He relied on the Vesting Clause of Article II to ban racial discrimination in government procurement. And he relied on his Commander in Chief powers to intern Japanese-Americans wrongly during World War II. "It was also during his tenure that the Federal Register Act regularized the promulgation and publication of executive orders and proclamations. Roosevelt also issued more presidential signing statements than all his predecessors combined …." Id. at 282. FDR successfully fought a congressional effort to fire three State Department employees who were alleged to be communists and whose jobs Congress defunded. The Supreme Court held the defunding was a Bill of Attainder in United States v. Lovett (1946). Id. at 282-283.

"Just as Congress did not include any restrictions on presidential removals when it created the FPC in 1927, it also failed to include any such restrictions when it created the Securities and Exchange Commission and the Federal Communications Commission. Apparently, … in the aftermath of the Supreme Court's decision in Myers, Congress did not believe that such restrictions were worth the effort." Id. at 283.

President Franklin D. Roosevelt did try to assert control over the Federal Trade Commission by firing its right-wing Chairman, William E. Humphrey, on October 7, 1933. "Congress … [offered] not a single word of protest to Roosevelt's actions, and the Senate confirmed Humphrey's replacement without incident." Id. at 284. The Administration defended the legality of the firing before Humphrey's seven-year term of office was up by relying primarily on Shurtleff and noting six other cases, in addition to Shurtleff, where Congress had provided for agency independence by allowing for presidential removals only "for inefficiency, neglect of duty, malfeasance in office and no other cause." FDR primarily defended his power to remove Humphrey based on the statutory meaning of the FTC Act in 1914, given Shurtleff and other statutes in place. FDR argued, secondarily, that he also believed he had the power to remove Humphrey based on Myers v. United States (1926).

The Supreme Court astonishingly distinguished Shurtleff arguing that a key feature of that case was that if the President had not been allowed a general power to remove general appraisers of customs, such officers would have instead had life tenure since their term in office was not limited to a certain number of years. With respect to the Federal Trade Commission, however, the Court noted that FTC Commissioners were limited to seven-year terms. There was thus no need to insist on the "and for no other cause" language to effectuate a guaranteed term in office. The Supreme Court thus held that as a matter of statutory interpretation, the FTC Act did guarantee agency independence for seven years in office.

This marks an astonishing change in the Supreme Court's practice of statutory interpretation as to congressional removal restrictions, which prior to 1935 had insisted in six other cases on the "and for no other cause" language before the Court would presume that Congress had created an independent agency. Whatever the merits of abolishing the Shurtleff clear statement rule of not presuming that Congress had intended to create an unconstitutional independent agency, the Supreme Court erred egregiously in the statutory construction analysis and holding in Humphrey's Executor v. United States because the Federal Trade Commission Act of 1914 was enacted against the backdrop of the Shurtleff clear statement rule, which Congress expressly complied with in 1908 by making general appraisers of customs removable only "for inefficiency, neglect of duty, malfeasance in office and no other cause."

Astonishingly, the Supreme Court also narrowed its Myers holding, and ruled that Congress could make the FTC independent of the President because it performed quasi-judicial and quasi-legislative functions. Justice Sutherland seemed to think that some executive power could be taken from the president where it was commingled with quasi-judicial and quasi-legislative powers. But, as Justice Scalia poetically wrote in 1988 in his dissent in Morrison v. Olsen, "To repeat, Article II, Section 1, cl. 1, of the Constitution provides: 'The executive Power shall be vested in a President of the United States.' As I described at the outset of this opinion, this does not mean some of the executive power, but all of the executive power …. It is not for us to determine, and we have never presumed to determine, how much of the purely executive powers of government must be within the full control of the President. The Constitution prescribes that they all are."

In the wake of the Court's astonishing and unconstitutional ruling in Humphrey's Executor, it comes as no surprise that Congress established the National Labor Relations Board, the U.S. Maritime Commission, and the Civil Aeronautics Board as independent agencies. In addition, Congress made the Federal Reserve Board independent. Congress was more than happy to accept the Supreme Court's invitation to carve up and Balkanize the executive branch.

Franklin D. Roosevelt responded by appointing a Committee on Administrative Management, known as the Brownlow Committee, to develop a proposal for Congress to reorganize the Executive Branch to overturn Humphrey's Executor by passing legislation abolishing agency independence. "Laying out a vision aptly described as Jacksonian, the Committee's report … sounded a clarion call for exclusive presidential control of government reorganization [including the power to fold all of the independent agencies into the executive branch]." Calabresi & Yoo at 292.

The Brownlow Committee specifically proposed to eliminate all the independent agencies and to fold them statutorily into the executive branch:

The independent agencies, the report concluded, were inconsistent with the principle of the separation of powers. In particular, the Article II Vesting Clause, in conjunction with the Take Care Clause and the other sections of the Constitution, "places in the President, and in the President alone, the whole executive power of the Government of the United States." [T]he independent agencies had become "a headless fourth branch" of government" that did "violence to the basic theory of the American Constitution that there should be three major branches of Government." … "Every bit of executive and administrative authority which [independent regulatory agencies] enjoy means a relative weakening of the President, in whom, according to the Constitution, "the executive power shall be vested." As they grow in number his stature is bound to diminish. He will no longer in reality be the Executive, but only one of many executives, threading his way around obstacles which he has no power to overcome."

The problems posed by the independent agencies were more than just theoretical: "Not only by constitutional theory, but by the steady and mounting insistence of public opinion, the President is held responsible for the wise and efficient management of the Executive Branch of the Government. The people look to him for leadership" [Presidents are unable to provide that leadership if they cannot remove independent agency commissioners at will]. [Id. at 293-294.]

Franklin Roosevelt urged Congress to adopt the Brownlow Committee's recommendations, but to no avail. Congress gave Roosevelt a lot of power to reorganize the executive branch. Congress greatly strengthened the Executive Office of the President with its Bureau of the Budget. But Congress declined to fold the independent agencies into the executive branch, as FDR so badly had wanted to do, because it had become greedy about retaining the ill-gotten power which Humphrey's Executor had wrongly given to the legislative branch.

Franklin Roosevelt never ever acquiesced in the creation by Humphrey's Executor of independent agencies, nor did any of his successors from President Harry Truman to President George W. Bush. The case that Presidents from Truman to Bush refused to acquiesce in the creation of independent agencies is made in Calabresi & Yoo at 303-415, and will be developed in subsequent blog posts.

Comments

[Jack Jordan]

Supporters of the so-called theory of the mythical Unitary Executive are some of the most extremist and most dangerous fanatics threatening our Constitution and our nation today. Their abuse of the word “all” highlights their extremism and highlights their abuses of their so-called constitutional interpretation. They seek to facilitate the current President’s dangerous usurpation of powers that were not granted to any President by our Constitution.

“We the People of the United States” acted as the first and the supreme legislative body of the United States (and the only legislative body for the United States in 1788) to “ordain and establish this Constitution for the United States;” to declare and establish “the supreme Law of the Land;” to declare and establish that all “Judges in every [ratifying] State” were immediately “bound” by our Constitution; and to declare and establish that “the Members of [all ratifying] State Legislatures, and all executive and judicial Officers” (including all attorneys admitted to practice law before any state court) of all ratifying “States” were “bound” to “support [our] Constitution.”

As Article VI emphasizes, all U.S. “Senators and Representatives” and “all executive and judicial Officers” were and are bound by and “bound” to “support” our “Constitution,” as are all federal employees (and even all attorneys admitted to practice before federal courts). Articles I, II and III emphasized and elaborated on how employees of the legislative, executive and judicial branches (departments) must support our Constitution.

Anyone who sincerely wants to understand the meaning of the words in the Vesting Clause of Article II (pertaining to the limited power of the President) must understand and respect, first and foremost, the meaning of the foregoing parts our Constitution and, second, the Vesting Clause and the Necessary and Proper Clause of Article I (pertaining to the vastly greater powers of Congress).

The text and structure of the three Vesting Clauses in Articles I, II and III expressly establish and emphasize profoundly significant substantive differences between the legislative department and the executive and judicial departments. The only Vesting Clause that includes the word “granted” is Article I’s. The only Vesting Clause that includes the word “powers” (instead of “power”) is Article I’s. The reason for both the foregoing is important. Moreover, the reason clearly is not what the supporters of the myth of the Unitary Executive say it is.

Justice Scalia in 1988 highlighted that James Madison in 1788 had highlighted in Federalist No. 51 two crucial self-evident truths: “it is not [even] possible to give to each department [legislative, executive and judicial] equal power[. Moreover, i]n republican government, the legislative authority necessarily predominates.” One of the purposes for which the People by our Constitution declared the powers of all our public servants in the national government was to require them to “guarantee” us “a Republican Form of Government.”

“We the People of the United States” expressly and emphatically “vested in a Congress of the United States” absolutely “All legislative Powers” that were “granted” by our Constitution. The words “powers” and “granted” highlighted that Article I vested in Congress only limited powers.

Precisely because the legislative department was and is the most powerful department, precisely what “powers” the People “granted” by our Constitution was addressed and discussed in considerable detail by the people in the Philadelphia Convention at which the Constitution was negotiated and written, as well as for more than four years afterward during the so-called ratification debates, including in the state ratifying conventions, and during the discussions of the initial amendments that became our Bill of Rights (ratified by December 15, 1791). Such discussions emphasized (again and again) that the powers that the people granted Congress were limited.

In Article I, the People granted only particular powers, including enumerated powers and the crucial and sweeping power to “make all Laws” that are both “necessary and proper for carrying into Execution” all the “Powers” of Congress, “and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof” (obviously, including all executive and judicial officers). In Article VI, the People declared and established that all U.S. “Senators and Representatives” were “bound” to “support [our] Constitution,” including by enacting only “Laws” that were “made in Pursuance” of our “Constitution.”

The foregoing crucial truths about the powers of the People and the powers of Congress are the foundation of the truth about all presidential power and all judicial power. As Madison emphasized in Federalist No. 53, “a Constitution established by the people” is “unalterable by the government.” As Madison emphasized in Federalist No. 44, the purpose of “the executive and judiciary departments” is “to expound and give effect to the legislative acts.”

One of the most important aspects of Articles II and III is that they repeatedly established and emphasized that “the executive power” and “the judicial power” are dependent on and a function of the sovereign power of the People (expressed by our Constitution) and the limited powers of our representatives in Congress. The people “granted” Congress only limited “legislative Powers,” i.e., powers that were expressly limited to those that were “necessary and proper” and “made in Pursuance” of our “Constitution” and to “support [our] Constitution.”

“The executive Power” that the People “vested in a President of the United States” simply and self-evidently means the power and the duty to “take Care that” federal “Laws be faithfully executed” and otherwise to “preserve, protect and defend [our] Constitution.” That’s it.

“The judicial Power of the United States” that the People “vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish” was only the power to “support [our] Constitution” by deciding (and explaining in written opinions) how particular “Cases” and “Controversies” were governed by “this Constitution, the Laws of the United States, and Treaties made [ ] under their Authority.” “The judicial Power” clearly cannot ever “extend” any further than permitted “under this Constitution,” federal “Laws” and “Treaties.”

[Jack Jordan]

To thwart and undermine federal law and our Constitution, Professor Calabresi and others who swore (more than once) to support our Constitution are perverting its conception of power and subverting the most important power secured by our Constitution.

Crucially, Slaughter is a member of “the Federal Trade Commission” (FTC) which was “created and established” by federal law (15 U.S.C. § 41) enacted by Congress (with the approval of a prior President). The law repeatedly and expressly limited the power of the President to appoint or remove FTC commissioners.

The law limited the number of appointments to “five Commissioners” at any given time. The law limited to “three” the number “of the Commissioners” who can “be members of the same political party.”

The law also emphasized that “Commissioners” cannot “be appointed by the President” except “by and with the advice and consent of the Senate.” The law thus expressly reiterated the Constitution’s own limitation on the President’s power to appoint officers. Article II expressly deprives the President of any power whatsoever “to make Treaties” or to “appoint” many “Officers of the United States” except “by and with the Advice and Consent of the Senate” except that “[t]he President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”

The law also expressly deprived the President of arbitrary power to create vacancies (including while the Senate was in recess) by depriving the President of the arbitrary power to remove any commissioner except for serious substantive reasons: “Any Commissioner may be removed by the President for inefficiency, neglect of duty, or malfeasance in office.”

Now, in connection with Trump v. Slaughter, some executive and judicial officers are misrepresenting that our Constitution somehow vested in the President the arbitrary, absolute, uncontrollable and absurd power to remove any or even all executive officers whenever the President wants to do so because the President merely wants to do so.

Much writing in The Federalist Papers of James Madison, as well as of Alexander Hamilton (the purported progenitor of the so-called theory of the Unitary Executive) destroys the myth of the Unitary Executive being peddled today.

Hamilton in Federalist 70 expressly and specifically emphasized that the “unity” of any given power “may be destroyed in two ways: either by vesting the power in two or more [people] of equal dignity and authority; or by vesting it ostensibly in one [person], subject, in whole or in part, to the control and co-operation of others, in the capacity of counsellors.” Hamilton emphasized that “[b]oth these methods of destroying the unity of the Executive have their partisans” in the U.S., and of the second method, we can “find examples in the constitutions of several of the [original 13] States.” For example, Hamilton even emphasized that his home state of “New York,” had a “council” for the particular “purpose of appointing [people] to offices.”

Our Constitution also commonly employed the second method “of destroying the unity of the Executive,” as Hamilton put it in Federalist 70. Hamilton already had showed clearly and repeatedly in Federalist 69 how our Constitution emphatically destroyed the myth of the unity of executive power. In part, Hamilton emphasized repeatedly how our Constitution destroyed the ostensibly executive power to make treaties or appoint officers.

Article II conspicuously emphasized that the President had no power whatsoever “to make Treaties” and very limited power to “appoint” many “Officers of the United States” without the “Consent of the Senate.” Thus, as Hamilton put it in Federalist 70, regarding treaties and many appointments, the Senate serves as “a council, whose concurrence is made constitutionally necessary to the operations of the ostensible Executive.”

Federalist 70 also emphasized the reason that the people who wrote and the people who ratified our Constitution expressly “declared in favor of a single Executive and a numerous legislature” sharing the power to exercise certain powers that ostensibly were executive. They “considered the [legislature] as best adapted to deliberation and wisdom, and best calculated to conciliate the confidence of the people and to secure their privileges and interests.” “In the legislature, promptitude of decision is oftener an evil than a benefit. The differences of opinion, and the jarrings of parties in that department of the government [the legislature], though they may sometimes obstruct salutary plans, yet often promote deliberation and circumspection, and serve to check excesses in the majority” (of legislators or of the People, themselves).

Significantly, specifically regarding the tenure of principal executive officers, in Federalist No. 39, Madison highlighted that such tenure would be controlled by Congress: “The tenure of the ministerial offices generally, will be a subject of legal regulation” following “the example of the State constitutions.”

Hamilton in Federalist No. 77 also emphasized that “[t]he consent of [the Senate] would be necessary to displace as well as to appoint. A change of the Chief Magistrate [President], therefore, would not occasion so violent or so general a revolution in the officers of the government as might be expected, if he were the sole disposer of offices.” Hamilton continued by emphasizing the following:

"Where a man in any station had given satisfactory evidence of his fitness for it, a new President would be restrained from attempting a change in favor of a person more agreeable to him, by the apprehension that a discountenance of the Senate might frustrate the attempt, and bring some degree of discredit upon himself. Those who can best estimate the value of a steady administration, will be most disposed to prize a provision which connects the official existence of public men with the approbation or disapprobation of that body [the Senate] which, from the greater permanency of its own composition [with six-year terms of office], will in all probability be less subject to inconstancy than any other member of the government."

Madison in Federalist 51 (“The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments”) emphasized that the “partition of power among the [three] departments” was “laid down in the Constitution” so that the “structure of [national] government” would cause “its several constituent parts” to “be the means of keeping each other in their proper places.” Madison emphasized that “the constant aim” of “all the subordinate distributions of power” within and among the three departments (Legislative, Executive and Judicial) of our national government was “to divide and arrange the several offices in such a manner as that each may be a check on the other [so] that the private interest of every individual [in public office] may be a sentinel over the public rights.” Clearly, the purpose of the division and diffusion of power within and among the three departments of government was not merely to separate powers. It was to weave powers together (without regarding to mere labels such as legislative, executive or judicial) to create a fabric that powerfully restrains all our public servants in the exercises of the powers the People granted them.

[Michael Ejercito]

The question then is if Congress could give the FTC authority independent that of the President.

[Jack Jordan]

Michael, how can that still be a question? The Constitution (quoted in my first comment) clearly and emphatically answered that question. That is exactly what the Vesting Clause of Article I and the second part of the Necessary and Proper Clause addressed.

[Jack Jordan]

Before anyone buys the myth of the Unitary Executive, Americans should consider the truth written by Chief Justice John Marshal in 1803 as the official opinion of the U.S. Supreme Court and SCOTUS justices in Marbury v. Madison about the meaning of the most powerful and important parts of our Constitution. The SCOTUS justices published their opinion in 1803, when multitudes who risked and sacrificed tremendously for the American Revolution that culminated in our Constitution with our Bill of Rights were still alive to judge the truth of the justices' writing. They repeatedly emphasized the opposite of the pied pipers of the Unitary Executive.

“The government of the United States has been emphatically termed a government of laws, and not of men.” "The constitution is" necessarily the "superior, paramount law, unchangeable by ordinary means," i.e., by our public servants. So "the constitution is to be considered, in court, as a paramount law," and "courts" cannot "close their eyes on the constitution, and see only [some other purported] law." The same is true of the People and all our public servants.

"[I]n declaring what shall be the supreme law of the land, the constitution itself is first mentioned; and not the laws of the United States [enacted by our public servants, so those laws] only which shall be made in pursuance of the constitution, have that rank [of being part of the supreme law of the land]. Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle [that is] essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as well as [all] other departments [and judges and all other public servants], are bound by that instrument," i.e., our Constitution.

"Certainly all those who have framed written constitutions" (especially constitutions that were ratified by the People) "contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void."

Any "act of the legislature" (any purported law purportedly granting the President unconstitutional powers) "repugnant to the constitution, is void." So any "act of" any other purported public servant "repugnant to the constitution, is void." Any purported doctrine (e.g., the invocation of the so-called Monroe Doctrine to support Trump's Venezuela invasion) by which the President usurps powers "repugnant to the constitution, is void." Any other purported theory or "doctrine would subvert the very foundation of all written constitutions. It would declare that an act, which, according to the principles and theory of our government, is entirely void; is yet, in practice, completely obligatory."

"[T]he language of the constitution is addressed especially to the courts. It prescribes, directly for them, [rules] not to be departed from." "From these, and many other [provisions of our Constitution], it is apparent, that the framers of the constitution contemplated that instrument [our Constitution], as a rule for the government of courts, as well as of the legislature," as well as of the President and all other executive and judicial officers (including all attorneys).

"Why otherwise does it direct the judges" (all our most powerful or influential public servants and even all lawyers) "to take an oath to support it? This oath certainly applies, in an especial manner, to their conduct in their official character." All "judge[s]" (all our most powerful or influential public servants and even all lawyers) "swear to discharge [their] duties agreeably to the constitution of the United States" so "that constitution forms" the "rule for [the] government" for all our public servants--each and every one in every position of any real power--and even all lawyers.

[Jack Jordan]

Anyone who believes that Justice Scalia believed in the myth of the Unitary Executive or other myths being peddled today to favor Trump should consider the truth and principles that Justice Scalia, himself, emphasized in his dissent in Morrison v. Olson.

Justice Scalia emphasized a point that also is highly relevant to the violations of our Constitution accomplished by a handful of judges hand-picked by presidents in Trump v. Anderson and Trump v. United States or being attempted in Trump v. Slaughter:

"That is what this suit is about. Power. The allocation of power among Congress, the President, and the courts in such fashion as to preserve the equilibrium the Constitution sought to establish—so that 'a gradual concentration of the several powers in the same department,' Federalist No. 51, p. 321 (J. Madison), can effectively be resisted. Frequently an issue of this sort will come before the Court clad, so to speak, in sheep’s clothing: the potential of the asserted principle to effect important change in the equilibrium of power is not immediately evident, and must be discerned by a careful and perceptive analysis. But this wolf comes as a wolf."

All the following also is directly from Justice Scalia's opinion:

It is the proud boast of our democracy that we have “a government of laws and not of men.” Many Americans are familiar with that phrase; not many know its derivation. It comes from Part the First, Article XXX, of the Massachusetts Constitution of 1780, which reads in full as follows:

“In the government of this Commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: The executive shall never exercise the legislative and judicial powers, or either of them: The judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men.”

The Framers of the Federal Constitution similarly viewed the principle of separation of powers as the absolutely central guarantee of a just Government. In No. 47 of The Federalist, Madison wrote that “[n]o political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty.” The Federalist No. 47 [ ]. Without a secure structure of separated powers, our Bill of Rights would be worthless, as are the bills of rights of many nations of the world that have adopted, or even improved upon, the mere words of ours.

The principle of separation of powers is expressed in our Constitution in the first section of each of the first three Articles. Article I, § 1, provides that “[a]ll legislative Powers herein granted shall be vested in a Congress [ ].” Article III, § 1, provides that “[t]he judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” And [ ] Art. II, § 1, cl. 1, provides that “[t]he executive Power shall be vested in a President of the United States of America.”

But just as the mere words of a Bill of Rights are not self-effectuating, the Framers recognized “[t]he insufficiency of a mere parchment delineation of the boundaries” to achieve the separation of powers. Federalist No. 73, p. 442 (A. Hamilton). “[T]he great security,” wrote Madison, “against a gradual concentration of the several powers in the same department consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack.” Federalist No. 51, pp. 321-322. Madison continued [by emphasizing the following crucial and dispositive truth about our Constitution and how the People chose to vest less power in the Executive and Judicial branches than in the Legislative branch]:

“But it is not [even] possible to give to each department an equal power[. Moreover, i]n republican government, the legislative authority necessarily predominates.”

[ReaderY]

I think that Congress should provide for a ceremonial robe to be given to each President at his inauguration similar to (although less fancy than) the robes worn by British monarchs at their coronations. The new President should be vested with executive power through donning this vestment, as the Constitution says, in the same manner a British monarch today is vested with all executive power. And then except for the President’s specific enumerated powers plus whatever other powers Congress chooses to grant him by statute, the President should preside over the executive department, just as a British monarch reigns over it today.

The constitution did not provide for the President to have any actual powers other than the enumerated ones. The President presides. He does not rule.

[See.More]

The President presides. He does not rule.

While that is how it ought to be, Lincoln flipped it around, FDR cemented it in effect and practice, subsequent presidents have happily cranked the ratchet, and Americans, becoming more and more subservient, applaud.

[Stupid Government Tricks]

Andrew Jackson flipped it before Lincoln. John Adams threw newspaper editors and publishers in jail just 7 years after freedom of the press was ratified.

It goes right back to the beginning.

[Jack Jordan]

John Adams did not throw "newspaper editors and publishers in jail." Adams signed (approved) a law that expressly emphasized crucial due process protecting First Amendment rights and freedoms.

The Sedition Act of 1798, Section 2, expressly protected speech attacking “the government of the United States,” including “Congress” and “the President” even if it was “with intent” to “bring” any of them “into contempt or disrepute; or to excite against” any of them “the hatred” of the “people of the United States.”  The only way such speech could be prosecuted (lawfully) was if it was proved (beyond a reasonable doubt) to be not only “false,” but also “scandalous and malicious.” “The Act” also “allowed the defendant the defense of truth, and” (crucially) commanded “that the jury” (not judges) “were to be judges both of the law and the facts.”

The truth is that other people (including SCOTUS Justice Samuel Chase) violated the law (and our Constitution) by putting people in prison or fining them for criticism that was expressly protected by the law.

[Stupid Government Tricks]

Of course John Adams didn't personally throw them in jail. But he encouraged it and did not try to stop it, and he signed the law and knew it was unconstitutional. Making excuses for him doesn't absolve him.

[Jack Jordan]

Stupid Government Tricks, what source makes you (mis)represent that John Adams "encouraged" "throwing them in jail"? Who did Adams ever seek to have thrown in jail? Or were you just completely making that up?

If you think John Adams knew the law was unconstitutional, maybe you can tell us what makes you think it was unconstitutional. I'd be impressed if you could tell us how that law was unconstitutional. I'd be even more impressed if you could tell us what should have shown Adams that the law was unconstitutional.

[Jack Jordan]

See.More, please see my third comment, above, quoting Chief Justice John Marshall writing for SCOTUS in Marbury v. Madison. The point of having a constitution that was put in writing and ratified by the people is that our public servant have no power do to what you said they did, no matter what some subservient Americans supposedly did. Presidents may have violated our Constitution, but they never "flipped it around" or "cemented [violations] in effect and practice." None of them ever had that kind of power.

[Stupid Government Tricks]

Article II says nothing of the sort, either way.

The executive Power shall be vested in a President

What is executive power? It's not defined. Someone has to run those agencies. If the President has to the power to fire cabinet heads, that pretty obviously extends to telling them what to do or risk being fired.

Is it legal for Congress to limit when the President can fire people? I would think not, since that intrudes into the Executive branch, just as the President can't sign executive orders telling Congressional aids and staff what to do. But on the other hand, the President and executive branch heads and officers and employees have to obey laws about theft and assault, and SEC regulations about insider trading, and EPA regulations, why shouldn't they also have to obey laws about who they can fire?

Face it, lawyers have made a mess of the myth of the Rule of Law since time immemorial, and the fact that you don't like the mess has nothing to do with how the only lawyers that matter, the Supreme Court, will reinterpret the Constitution when it suits them.

[Jack Jordan]

Stupid Government Tricks, read Federalist No. 69 (and my quotations from Alexander Hamilton and James Madison, above). In Federalist No. 69 Hamilton analyzed many ways in which our Constitution expressly established that what people today think (or in 1788 thought) of as "executive power" isn't what was vested in the President by our Constitution.

[Stupid Government Tricks]

Sorry, my copy of the Constitution doesn't include the Federalist papers.

[Jack Jordan]

Stupid Government Tricks, does your copy of our Constitution not include the words that I quoted in my first comment above?

[Jack Jordan]

Stupid Government Tricks, if you sincerely want to understand "the executive power," you cannot focus myopically on Article II. That was the point of first comment, above. Something similar is the point of the well-known truism that "the devil can cite scripture for his own purposes."

[Stupid Government Tricks]

The Supreme Court decides what the Constitution and laws mean. Not even Article II decides it.

[Jack Jordan]

Stupid Government Tricks, lots of people decide what the Constitution means. SCOTUS justices have no monopoly on intelligence or integrity. They too often get it very wrong. As Chief Justice Marshall (writing for SCOTUS) and Justice Scalia emphasized, "ours is a government of laws and not of men." Not even SCOTUS justices have the power to change our Constitution.

[ReaderY]

Let me ask this question. The constitution gives the President the enumerated textual power to ask heads of departments for a written report on any subject of his choosing, along with the commander-in-chief, the embassador, and the pardon power.

If the President’s baseline power is as absolute as you say it is, why would he have to be given a special enumerated power just to be able to ask his subordinates what they are up to? And if we assume that no provision of the constitution is surpluage, so that the existence of the clause means without it he wouldn’t have that power, what does that say about what the framers intended regarding his actual authority?

I’ll ask this question again. How can this clause be explained under a unitary executive theory? What’s it there for? Decoration?

[Michael Ejercito]

If the President’s baseline power is as absolute as you say it is, why would he have to be given a special enumerated power just to be able to ask his subordinates what they are up to?
To obviate legislation that would prevent his subordinates dfrom answering.

[Jack Jordan]

Michael, does your argument really make sense to you? If so, how? Maybe I'm missing something, but I just don't see it.

What (if anything) makes you think that Congress might even begin to believe that legislation was necessary and proper to expressly deprive "The President" of the power to "require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices"?

Isn't it far more likely that Congress would believe that legislation was necessary and proper to expressly require "The President" sometimes to "require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices"?

After all, in Article II, the People expressly required that the President "shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient."

[Jack Jordan]

ReaderY, excellent point! You proved your point very well by focusing on a particular "executive power" expressly defined by the People in Article II. The President, was not, in fact, given the "power to ask heads of departments for a written report on any subject of his choosing." The president was not given the power to demand (or even ask) that even his direct subordinates provide an opinion on any subject of the president's choosing. Instead, the People expressly limited that particular enumerated power.

"The President . . . may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices."

Clearly, the People empowered "the principal Officer in each of the executive Departments" to refuse to provide an opinion "upon any Subject" other than a subject "relating to the Duties of" such officer's office. Such refusal necessarily would be within "the freedom of speech" secured by the First Amendment.

As I addressed in my second comment, above, Hamilton in Federalist 70 expressly and specifically emphasized that the “unity” of any given power “may be destroyed in two ways: either by vesting the power in two or more [people] of equal dignity and authority; or by vesting it ostensibly in one [person], subject, in whole or in part, to the control and co-operation of others, in the capacity of counsellors.” Hamilton emphasized that “[b]oth these methods of destroying the unity of the Executive have their partisans” in the U.S. Both methods were incorporated into our Constitution.

[Stupid Government Tricks]

It's not as absolute as I say it is. It's as absolute as the Supreme Court says it is.

[Jack Jordan]

Stupid Government Tricks, where does our Constitution say that executive power is "as absolute as the Supreme Court says it is"? Show us, if you can, anything in our Constitution that says anything even approximating what you asserted.

[MollyGodiva]

Executive power is defined. That is what the rest of Article II is.

[Jack Jordan]

Indeed. Article II is clear: “The executive Power” that the People “vested in a President of the United States” simply and self-evidently means the power (and the duty) to “take Care that” federal “Laws be faithfully executed” and otherwise to “preserve, protect and defend [our] Constitution.” That’s it.

[JoeFromtheBronx]

Justice Jackson in his concurrence in Youngstown noted:

"While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity."

Near the end, he asks us to "note the gap that exists between the President's paper powers and his real powers," especially as compared to the "eighteenth-Century sketch of a government hoped for" in 1787.

A historical summary of what past presidents, as their power increase by leaps and bounds, sought is of limited value in determining the ultimate question that needs to be decided in the upcoming cases. That is, what should be allowed.

The current occupant noted in a recent interview that only his moral restraint will restrain him. The law? Not so much.

That is a tad extreme but as Justice Jackson knew, executives had a high opinion of their power. A workable government, especially given the current nature of the federal government, requires limited executive removal power following congressionally set forth requirements. As does the Constitution itself.

[Jack Jordan]

Well said, Joe. No SCOTUS justice or constitutional law professor worthy of either title could fail to see what the first words of our Constitution made perfectly clear. Nothing in our Constitution was done for the sake of the mere power of any public servant. Everything in our Constitution was done to provide for "the People," i.e., to "establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves."

As Justice Scalia emphasized above in 1988 and James Madison emphasized above in 1788, the separation of powers was designed to serve the People and our liberty and security, not to support a usurper's unconstitutional usurpation of powers that our Constitution was designed to deny him.

[Jack Jordan]

The people who wrote and ratified our Constitution were not like lexicographers, trying to define powers for the mere sake of definition or separation. They were like weavers who separated threads only for the purpose of weaving them together to create a powerful fabric that simultaneously empowers and restrains power. They were guided, as Justice Scalia and Chief Justice Marshall (writing for SCOTUS) emphasized, by the crucial principle that "ours is a government of laws and not of men."

[Sarcastr0]

This series seems to be based on belabored *more* analysis is the same as *good* analysis.

It's really just a belabored strawman, as though people think executive action in an environment of no Congressional action are the same as when the executive acts counter to Congressional action.

As Joe noted, This whole exercise is requires pretending one of the most famous concurrences in American jurisprudence doesn't exist.

[Rich Rostrom]

Humphrey's Executor is weird. Calabresi calls it "astonishing and unconstitutional". But it was unanimous; concurred in by six Justices who signed onto Myers.