Justice Barrett, Trump v. Slaughter, and Presidential Removal Power from 1969 to 1989

Humphrey's Executor from 1969 to 1989.

At oral argument in Trump v. Slaughter much discussion focused on the propriety of the Supreme Court today, in 2026, overturning a 90-year-old decision like Humphrey's Executor. In fact, as my immediately preceding blog posts show, since 1937 Presidents Franklin Roosevelt, Harry Truman, Dwight Eisenhower, and John Kennedy have all said that Humphrey's Executor is either bad constitutional law, bad policy, or both. Far from being a venerated precedent like Swift v. Tyson, which was nonetheless overruled, Humphrey's Executor has been controversial ever since the opinion was handed down. In making this argument, I am drawing on Steven G. Calabresi & Christopher S. Yoo, The Unitary Executive: Presidential Power from Washington to Bush (Yale University Press 2008). Christopher Yoo gets all the credit for this series of blog posts while I will take any blame there is for them.

Richard M. Nixon served as President of the United States from 1969 to 1974. President Nixon was a committed believer in the frequent use of the removal power. "[D]uring his five-year tenure in office, he in fact appointed thirty cabinet heads, breaking the old record held by Ulysses S. Grant…. [T]he median length of tenure of cabinet secretaries fell from forty months to eighteen. Nixon was not afraid to make removals, as the frequent turnover in his cabinet secretaries illustrates. Indeed, he began his second term by asking for the resignations of all his cabinet secretaries so he could decide which ones to retain. He noted that in doing so that once a cabinet official has been in place for a while, the bureaucracy starts to run him instead of the other way around." Calabresi & Yoo at 346.

"Nixon protected the president's removal power when he successfully resisted Congress's attempt to remove his Office of Management and Budget Director Roy Ash and his Deputy OMB director Fred Malek by abolishing their positions and reestablishing them subject to Senate confirmation…. [Congress backed down and settled for] "legislation the next year to require Senate confirmation only of future OMB directors and deputy directors." Id. at 347.

Nixon transformed the Bureau of the Budget, which was renamed the Office of Management and Budget (OMB), so that "instead of just clearing all budgets except for those of the Central Intelligence Agency and the Department of Defense before they were sent to Congress, the OMB would be concerned with policy and operations management. This was another way for the White House to exert more control over the departments. This was a crucial step in reinforcing the unitary executive, because the power of OMB could be centrally harnessed by the president to bring recalcitrant cabinet departments and agencies into line." Id. Nixon began having OMB do a cost benefit analysis only of proposals from the Environmental Protection Agency, an executive branch agency, which Nixon himself created. Eventually, under Ronald Reagan and his successors, such OMB cost-benefit analysis of all agency regulations would greatly enhance presidential power.

There is a whole history of OMB that traces back to commissions in the Teddy Roosevelt and Taft Administrations calling for the creation of such an agency, to President Harding establishing the Bureau of the Budget in the Treasury Department, to Franklin Roosevelt moving the Bureau of the Budget to the Executive Office of the President, to Nixon renaming the Bureau to be OMB, to Ronald Reagan putting OMB in charge of doing a cost-benefit analysis of regulations. This is an important part of the history of the unitary executive—a history to which President Donald Trump is now adding a new, but familiar chapter.

"Nixon also undertook efforts to dominate the independent agencies. His efforts were based on the conclusion of the Advisory Council on Executive Organization (commonly known as the 'Ash Council' after it chairman, OMB director Roy Ash) that the commissions were an 'anomaly in government structure.' Independence had originally been intended to shield the regulatory process from the partisanship of the executive branch, but, instead, it had rendered the agencies 'not sufficiently accountable to either Congress or the executive branch.' The report elaborated:

"'Congress conceived of these commissions as independent of executive branch control, but in fact the commissions are almost as independent of Congress itself. Apart from appropriations approval, periodic program review, and the intermittent interest of one or several of its members, Congress does not exercise the degree of oversight with respect to regulatory commissions that it does for executive departments and other agencies of the executive branch. Congress has sought to preserve the independence of the regulatory commissions, even as their activities increasingly affect the implementation of national policy. The executive branch responsible for carrying out national policy, has been reluctant to support reforms needed to integrate regulatory activities with executive programs because the President does not have sufficient responsibility for commission direction.'

"Therefore, 'if regulation is to be more responsive to the public interest and coordinated with national programs, it must first be brought within the ambit of elective government, with accountability to those officials to whom the public and the regulated industries alike look for fair and constructive application of national policy.' To accomplish these goals, the Ash Council recommended abolishing most independent agencies and transferring their functions to newly created executive agencies headed by single administrators serving at the president's pleasure." Id. at 350-351.

The Ash Council thus joins Franklin Roosevelt's Brownlow Committee, Harry Truman's first Hoover Commission, Dwight Eisenhower's second Hoover Commission, and John F. Kennedy's Landis Report in recommending that we get rid of the independent agencies created by Humphrey's Executor. When presidents as varied as FDR, Truman, Eisenhower, Kennedy, and Nixon all agree that Humphrey's Executor is not working out, perhaps the Supreme Court ought to pay attention.

Nixon's presidency, of course, was consumed by the Watergate scandal, during which some in Congress even proposed turning the entire Department of Justice into an independent agency. "The administration challenged the constitutionality of this proposal through the able testimony of Assistant Attorney General Robert G. Dixon Jr. As Dixon noted, the Article II Vesting Clause and the Take Care Clause compelled two conclusions: 'First, the enforcement of the laws is an inherently executive function, and second, the executive branch has the exclusive constitutional authority to enforce the laws." Id. at 352. Even former Democratic Attorney General, Nicholas Katzenbach, and former Democratic Solicitor General, Archibald Cox, agreed with the Nixon administration on that.

"Nixon's belief in his sole authority to control the execution of the law was demonstrated most dramatically by the 'Saturday Night Massacre,' in which he directed Attorney General Richardson and Deputy Attorney General William Ruckelshaus to remove Archibald Cox as Watergate special prosecutor …. After Richardson resigned and Ruckelshaus was removed over their failure to fire Cox, the task of firing him fell to Solicitor General Robert Bork. Although regrettable, the Saturday Night Massacre remains a vivid, if controversial, assertion of Nixon's belief in his authority to control the execution of the law." Id. at 353…. Regardless of where one comes down in this debate, the fact remains that Cox's removal and the administration's opposition to congressional attempts to authorize special prosecutors operating independently of presidential control represent prominent examples of Nixon's steadfast insistence on the unitariness of the executive branch." Id. at 354.

"Nixon had an extraordinary belief that the president had the implied authority to authorize, on national security grounds, actions by the FBI that were otherwise in violation of statutes. This was a Lincolnian claim of emergency power made during an emergency far less dire than Lincoln had faced in the spring of 1861…. This view that as president he could sanction actions in violation of statutes is part of why Nixon was quite deserving of being the first president in American history to be forced to resign." Id.

In any event, Nixon certainly was no shrinking violet who acquiesced in the limiting of presidential removal power by Humphrey's Executor. To the contrary, Nixon thought the president had a lot more power than he actually possesses, and it was this that undid his presidency.

Gerald R. Ford served as president from 1974 to 1977. Ford was a weak president, who had never been elected to be either president or vice president and who was hobbled by his deeply unpopular, but wise, pardon of his predecessor, Richard Nixon. Nonetheless, "aided by his assistant attorney general for the Office of Legal Counsel, Antonin Scalia, Ford held firm and defended the unitariness of the executive" branch. Calabresi & Yoo at 356.

Ford combined his pardon of Nixon with a pardon of "many individuals who had evaded the draft during the Vietnam War…. Obviously, the two pardons together were a major law enforcement decision made by Ford personally about what degree of law enforcement would best serve the interests of the nation. The fact that Ford made these two law enforcement decisions himself as the nation's chief law enforcement officer is telling support for the theory of the unitary executive." Id. at 357.

Ford was very bold in making removals. He asked for and received the resignations of Defense Secretary James Schlesinger, CIA Director William Colby, Commerce Secretary Rogers Morton, National Security Advisor Henry Kissinger (who was allowed to stay on as Secretary of State), and Agriculture Secretary Earl Butz. Id. at 358.

"During the Ford administration, the Office of Legal Counsel [(OLC) under the aggressive leadership of Antonin Scalia, a big friend of the unitary executive] 'aggressively asserted the president's right not to enforce legislation it deemed to be unconstitutional, even though the president had signed the legislation into law." Id. at 359. With Scalia at OLC, no violations of the theory of the unitary executive were allowed to happen. Ford killed a proposal to create an independent consumer agency with a veto threat. Id. at 360.

No issues arose at all during the Ford administration concerning Humphrey's Executor or the independent agencies.

Jimmy Carter served as president from 1977 to 1981. His administration "represents the nadir of presidential power in the post World War II era." Calabresi & Yoo at 362.

"Jimmy Carter was not at all shy about using the removal power," and he removed Health, Education, and Welfare Secretary Joseph Califano, Treasury Secretary Michael Blumenthal, Energy Secretary James Schlesinger, and OMB Director Bert Lance. Id. at 363. "Critically, the Carter administration shelved a proposal, advanced during the 1976 presidential campaign, to respond to the Watergate era abuses by turning the entire Justice Department into an independent agency, with the attorney general serving a fixed ten-year term…. Attorney General Bell squashed the proposal once he took office." Id.

"According to Bell, 'the first sentence of Article II vests the executive power of the Government in the President and charges him with the general administrative responsibility for executing the laws of the United States.' When this is combined with the Appointments and Take Care Clauses, Bell concluded, 'the President is given not only the power, but also the constitutional obligation to execute the laws.' Moreover, the Supreme Court had made it clear in Myers v. United States that 'the President's freedom to remove executive officers cannot be altered by legislation.' Bell considered this particularly true for the attorney general ….'" Id. at 364

Ultimately, Carter agreed to a very watered-down version of an independent Justice Department by signing into law the unconstitutional Ethics in Government Act (EIGA), which provided for court appointed independent counsels, removable by the Attorney General only for cause to investigate high level executive branch wrongdoing. This law was blatantly unconstitutional for the reasons famously articulated in Justice Scalia's dissent in Morrison v. Olsen (1988). "The EIGA was a small price to pay for the greater good of preventing a post-Watergate Congress from turning the whole Justice Department into an independent agency." Id. at 366.

In sum, the Carter administration played defense on the Humphrey's Executor issue because the presidency was so weak at that time. Carter did, however, prevent Congress from expanding Humphrey's Executor by turning the whole Justice Department into an independent agency.

Ronald Reagan served as president from 1981 to 1989. His inauguration "marked the nation's reemergence from its post-Watergate malaise and a major turning point in the balance of power between the president and Congress over the administration of the law. Both the Reagan administration's supporters and its critics generally considered the defense of the unitary executive a key part of Reagan's policy program. As Charles Fried, Reagan's Solicitor General has written 'The Reagan Administration had a vision about the arrangement of government power: the authority and responsibility of the President should be clear and unitary. The Reagan years were distinguished by the fact that that vision was made the subject of legal, rather than simply political dispute,' In particular, Reagan ushered in an era of much greater control by the White House staff through the Office of Management and Budget than had existed before 1981. In addition, Reagan's second attorney general, Edwin Meese III, sketched out a broad understanding of presidential power that has largely prevailed" ever since. Calabresi & Yoo at 374.

Reagan vigorously exercised his removal power by in effect removing his first Secretary of State, Alexander Haig; his second White House Chief of Staff, Donald Regan; and, in his first eight months in office, and by firing some 10,000 air traffic controllers who went on strike. Id. at 375. He also removed three members of the U.S. Commission on Civil Rights in 1983 "and numerous other officials previously thought to be insulated from presidential control." Id. "Reagan removed a dozen inspectors general without complying with the statutory requirement that he inform Congress of the reasons for his removals." Id. at 376.

When the Carter era Ethics in Government Act providing for court-appointed independent counsels cam up for renewal, "Assistant Attorney General John R. Bolton challenged the constitutionality of the act during hearings, arguing that all prosecutors were properly considered executive officers, who thus had to be subject to the direction and control of the president. Assistant Attorney General for the Office of Legal Counsel Charles Cooper endorsed Bolton's position." Id. at 377. Reagan signed a bill reauthorizing the Ethics in Government Act with great hesitation so that the Supreme Court could weigh in on the matter.

In Morrison v. Olsen, Solicitor General Fried's brief began by noting that:

"Article II, Section 1 of the Constitution declares: 'The executive Power shall be vested in. a President of the United States of America.' Section 3 of the same Article then charges the President with the corresponding duty: 'he shall take Care that the Laws be faithfully executed.' The independent counsel statute violates the plain meaning of those words. By taking an important part of the executive power, and of the concomitant duty to see the faithful execution of the laws, away from the President and assigning it to a person unaccountable to the President in her selection and her performance and her tenure. The statute vests executive power other than in the President, in direct contravention of Article II, Section 1's 'grant of power'" Id. at 377.

The Reagan administration unfortunately lost its case in Morrison v. Olsen 7 to 1 with only Justice Scalia dissenting. Over time, however, the Scalia dissent became regarded as a classic, and as totally right by Democrats and Republicans alike. As a result, the Ethics in Government Act was allowed to sunset out of existence in 1999, with the approval of both political parties, at the end of the Clinton administration. The EIGA has never been renewed since.

[The Reagan administration boldly "went so far as to question the very constitutionality of [the regulatory] agencies supposed 'independence'. As Attorney General Meese noted, 'Federal agencies performing executive functions are themselves properly agents of the executive. They are not 'quasi' this or 'independent' that. In the tripartite scheme of government, a body with enforcement powers is part of the executive. Branch of government.' Indeed, Meese suggested. That 'the entire system of independent agencies may be unconstitutional.'" Id. at 380.

Reagan also hugely expanded Office of Management and Budget (OMB) scrutiny and cost-benefit analysis of regulations. "Executive Order 12291 directed all executive agencies to develop regulatory agendas summarizing all of the proposed regulations that an agency expects to issue and to employ cost-benefit analyses in implementing the regulations. The order further required them to submit all rules to OMB for prepublication review and to prepare Regulatory Impact Analyses of all major rules, with each RIA explicitly laying out the anticipated costs and benefits of a rule, the alternatives considered, and an explanation, if appropriate, of the reasons why the most cost-effective means of achieving the anticipated benefits was not adopted." Id. at 380.

Since "Executive Order 12291 'itself cites no specific statutory or constitutional provision as the basis for the president's authority to issue it …, it relies on a unitary picture of presidential authority—the idea that the president, as chief executive, has the authority to manage and control the activities of all executive branch officials and agencies (at least insofar as permitted by statute). George H. W. Bush's White House Counsel C. Boyden Gray aptly noted that Executive Order 12291 was 'considered revolutionary at the time … and has earned the reputation as one of the most far-reaching government changes made by the Reagan Administration.'" Id. at 381.

In sum, President Ronald Reagan did more than any president in recent times, except for President Trump, to challenge the Supreme Court's ill-considered decision in Humphrey's Executor. There was no presidential acquiescence in, and there was active opposition to limits on the President's power to remove Senate confirmed executive officers during the Nixon, Ford, Carter, and Reagan presidencies.