Justice Barrett, Trump v. Slaughter, and Presidential Removal Power from 1989 to 2009

Presidential non-acquiescence in Humphrey's Executor from 1989 to 2009.

This is my seventh and final blog post addressing the fact that no president from 1881 to 2009 has acquiesced in the 90-year-old Supreme Court decision in Humphrey's Executor. These blog posts are prompted by a question that Justice Barrett asked at oral argument about the history of independent agencies. The answer she got was that support for limits on the president's removal power dated back to the 1880's—but I think that's incorrect.

Justice Barrett also noted that Humphrey's Executor is a 90-year-old precedent; but, if we are to consider such matters in cases involving interbranch relations, it strikes me as important to recognize that no president since 1935 has acquiesced in or accepted as correct the decision in Humphrey's Executor. For instance, when the Supreme Court held legislative vetoes to be unconstitutional in INS v. Chadha (1983), the Court made a point of noting that presidents from Woodrow Wilson to Ronald Reagan had opposed the constitutionality of legislative vetoes. In writing this blog post, I rely on Steven G. Calabresi & Christopher S. Yoo, The Unitary Executive: Presidential Power from Washington to Bush (Yale University Press 2008).

George H. W. Bush served as president from 1989 to 1993. He was just as committed a friend of the unitary executive as Ronald Reagan had been. "More than almost any president besides William Howard Taft, George Herbert Walker Bush staunchly defended the unitariness of the executive branch…. George H. W. Bush was clearly in charge of his administration and was very attentive to details. Thanks in large measure to White House Counsel C. Boyden Gray and his superb legal staff, Bush defended the unitariness of the executive branch with almost academic rigor." Id. at 384.

"Bush embarked upon one of the most aggressive defenses of the president's prerogatives the republic has ever seen. Bush used a plethora of vetoes and signing statements to protect against any invasion of the constitutional authority of the president that he perceived…. Bush was to achieve astonishing success in using the veto, vetoing forty-four bills. [Only one minor Bush veto was overridden]…. As of 25 July 1991, the White House Press Office had recorded thirty-eight threats of a veto of legislation; the vast majority of the legislation did not ever become law." Id. at 385.

"Perhaps the most important example for our purposes is the Ethics in Government Act, which was scheduled to expire in 1992. In a speech, Bush indicated that he would veto any extension of the independent counsel statute unless significant changes were made…. This veto threat, when combined with a filibuster organized by Senate Republicans, doomed the reauthorization legislation and caused the act to lapse." Id. at 386. This was a ringing defense of Justice Scalia's dissent in Morrison v. Olson and a firm insistence on presidential power to remove all officers at will who exercise executive power, even officers who in this instance were not confirmed by the Senate.

"Bush issued almost as many signing statements in his four years as president (214) as Reagan had in eight years (276). But more important, 146 of Bush's signing statements raised constitutional issues, whereas only seventy-one of Reagan's did. The most significant Bush signing statement accompanied a landmark statute, the Civil Rights Act of 1991, through which the Bush administration planted an alternative and greatly narrowing legislative history into the public record." Id. at 387-388.

"Bush also asserted his control over the executive branch by continuing the regulatory review program established by Executive Orders 12291 and 12498 during the Reagan administration. Bush supplemented these executive orders by creating an interagency task force known as the Council on Competitiveness …. Through this mechanism, the Bush White House was able to exert its control over the entire executive branch in an extremely effective manner." Id. at 388.

"There was one major removal during the Bush years, and it involved John Sununu, Bush's first White House chief of staff." Id. at 389.

"The Bush administration ended with some extraordinary Christmas pardons of leading figures being investigate in the Iran-Contra probe headed by independent counsel Lawrence Walsh." … "Among those pardoned were Caspar Weinberger, former secretary of defense to President Reagan." Id. at 390. These pardons essentially ended Lawrence Walsh's partisan witch hunt.

The big news during the first Bush administration vis-a-vis Humphrey's Executor was the elimination of the unconstitutional special prosecutor law and of Lawrence Walsh's abusive investigation under that law. George H. W. Bush was a truly great president in promoting the unitariness of the executive.

Bill Clinton served as president from 1993 to 2002. "As Elena Kagan has shown, Clinton was a master at asserting presidential control over the executive branch of the government, including the independent agencies." Calabresi & Yoo, supra, at 391 [relying on the scholarly masterpiece by now-Justice Elena Kagan, Presidential Administration, 114 Harv. L. Rev. 2245 (2001)]. "[T]here can be no doubt about the force of Clinton's intelligence or about his mastery of the details of policymaking…. In addition, Clinton was an unusually hardworking president who was deeply immersed in the policymaking details of his administration. He demanded total control over the workings of the executive branch---and this attitude filtered into his decisions in appointing and dismissing as well as controlling subordinates." Calabresi & Yoo, at 391-392.

Clinton's most prominent removal was of Defense Secretary Les Aspin. Id. at 393. But, after he lost control of the Senate in his first midterm election in 1994, Clinton found himself stuck with cabinet officers he wanted to remove, like Attorney General Janet Reno, but for whom he could not confirm preferable replacements.

"Clinton … employed a wide array of institutional arrangements to ensure that he retained control over the execution of the law, which [are] superbly documented [in Justice Kagan's law review article cited above, which earned her tenure and then the Dean's job at Harvard Law School, thus launching her career on the Supreme Court]. For example, although Clinton eliminated Bush's Council on Competitiveness, he issued Executive Order 12866 expanding the system of Office of Management and Budget regulatory oversight instituted during the Reagan and Bush administrations in order 'to ensure that regulations are consistent with applicable law, the President's priorities, … and that decisions made by one agency do not conflict with the policies or actions taken or planned by another agency.' Specifically, Clinton continued to require agencies to participate in a regulatory planning process and to submit regulations for OMB review…. Although Clinton's scheme continued to evaluate rules through the lens of cost-benefit analysis, it broadened the inquiry to allow consideration of other factors, such as 'equity,' 'distributive impacts,' and 'qualitative measures.'" Id. at 393.

"[U]nder Clinton, OIRA refocused its 'limited resources on fewer reviews, with the number of rules reviewed dropping by almost 75% from the 1980's. At the same time, the percentage off proposed rules that undergo some sort of change during the review process has gone up, from about 14% of all reviewed rules under Reagan to 38% in Clinton's first term. What did not change was the commitment to the unitariness of the executive branch underlying the institutions of OMB review." Id. at 394.

"Furthermore, unlike Reagan, … Clinton required the independent agencies to participate in the regulatory planning process. Policies proposed by the independent agencies that were in conflict with other agency action or 'the President's priorities' would be required to participate in 'further consideration.' Clinton's belief in the president's authority over the independent agencies was also evident in his response to legislation turning the Social Security Administration into an independent agency …. When signing the bill into law, Clinton noted that the removal provisions raised significant constitutional questions." Id. at 395.

"As Kagan notes, the inclusion of the independent agencies within the regulatory planning process 'signaled a strong commitment to presidential oversight of administration' that exceeded even that asserted under Reagan. The Clinton administration was thus a time of triumph for the unitary executive, at least vis a vis the independent agencies [which is of course what Trump v. Slaughter is all about.]" Id.

Presidential authority became all the more important after the Democrats lost control of Congress. Clinton's domination of the lower agencies 'sai[d] something significant about the relationship between the agencies and the President­—… that they were his and so too were their decisions.' The policy was famously summed up by White House Advisor Paul Begala, who told New York Times reporter James Bennett, 'Stroke of a Pen … Law of the Land. Kind of Cool.'" Id.

"Using language reminiscent of criticisms leveled at Andrew Jackson, Abraham Lincoln, and Andrew Johnson, Congressman J. C. Watts criticized Clinton for 'pretty much … acting as the king of the world.'" Id. at 396.

"Consistent with this approach, the Clinton administration expanded on the Reagan and Bush signing statement initiative. Clinton issued 394 signing statements, compared with 276 issued by Reagan and 214 by Bush; 105 of these signing statements addressed constitutional issues, compared with seventy-one such statements during the Reagan years. Clinton's Office of Legal Counsel, under the capable leadership of Walter Dellinger, issued an important memorandum on the president's authority to decline to execute unconstitutional statutes." Id. "[W]e do not believe that a President is limited to choosing between vetoing, for example the Defense Appropriations Act and executing an unconstitutional provision in it. In our view, the President has the authority to sign legislation containing desirable elements while refusing to execute a constitutionally defective provision.'" Id. at 397.

"The Clinton administration ended in January 2001 with quite a bang. Clinton chose to leave the presidency only after 'granting 177 presidential pardons and commutations of sentences on his last night in office…. The only bright spot about the pardons was that they showed the extent to which, for better or worse, the Constitution puts the president squarely in charged of the law enforcement process.

"'Although there is always room for disagreement as to the substance of Clinton's policies, in retrospect his commitment to the unitariness of the executive branch cannot be gainsaid. As Clinton himself noted toward the end of his presidency, 'I think if you go back over the whole reach of our tenure here, I have always tried to use the executive authority.'" Id. at 399.

No account of Clinton's presidency can be complete without acknowledging "one of the most climactic moments in the history of the unitary executive: the demise of the Ethics in Government Act IEIGA) and the institution of court appointed independent counsels." Id. at 400. As readers may recall, George H. W. Bush allowed the EIGA to sunset out of existence in 1992, but in an act of sheer self-destructive folly, Clinton signed the EIGA back into law in his first year in office.

A right-wing court, appointed Ken Starr to investigate some financial wrongdoing allegedly committed by Bill and Hillary Clinton when Clinton was the Governor of Arkansas. Starr's investigation metastasized to include: misdoing in firing the presidential travel office personnel, the suicide of Deputy White House Counsel Vince foster, which some alleged was a murder, and finally whether Clinton had committed perjury and obstruction of justice by lying under oath in a deposition in a sexual harassment law suit brought against him by Paula Jones. Starr concluded that Bill Clinton had committed federal felonies, but under the constitution the President cannot be indicted while he is in office. Accordingly, Starr referred the matter, together with a highly salacious report to the Republican House of Representatives impeached Clinton over this, but the Democratic Senate acquitted him. Id. at 401-402.

As a result, when the EIGA came up for renewal in 1999, the Clinton administration allowed the Act to sunset out of existence. Attorney General Reno testified against renewing the EIGA for a combination of policy and constitutional reasons embracing Justice Scalia's lone dissent in Morrison v. Olson (1988). The rise and fall of the EIGA, like the rise and Fall of the Tenure of Office Act were momentous wins for the idea that the President has the power to remove all Senate-confirmed executive officers.

George W. Bush served as president from 2001 to 2009. He was a committed advocate of the theory of the unitary executive, and he vigorously used the removal power. President Bush thought that the Executive Power Vesting Clause not only granted him the power to execute the laws and remove all subordinates exercising executive power, but he also thought that it granted him the power to detain American citizens who were "enemy combatants" in the post 9/11 War on Terror and the power to waterboard detainees in the war on terror notwithstanding a federal statute forbidding torture. My comments below draw, as does the preceding part of this blog post, from Calabresi & Yoo. All the credit for what I say below goes to my co-author Christopher Yoo, while I take the blame for any errors.

"[T]he Bush administration … at times [invoked] the theory of the unitary executive as the basis for broad, inherent executive powers in the foreign policy realm. Most of the administration's references to the unitary executive, however, are in the more conventional and limited context of the president's power to supervise the execution of federal law by removing and directing subordinates." Id. at 405.

"David Frum, Bush's biographer and former speechwriter, reports that his very first impression of Bush was that he was thoroughly in control of his administration: '[Frum's first meeting with Bush] settled one thing in [his] mind; I could never again take seriously the theory that somebody else was running this administration – not [Vice President] Cheney, not Rove, not Card." Id. at 406. Bush was a hands-on president, and no-one else in his administration could tell him what to do. I met with Bush once in the Roosevelt Room of the West Wing to discuss the Roberts and Alito nominations to the Supreme Court, and I, too, came away with the impression that George W. Bush was the only decisionmaker in his administration on important policy and personnel matters.

"Bush emphatically endorsed the unitariness of the executive branch. His defense of the president's sole authority over the administration of the law was evident in his signing statements, in which he relied on the theory of the unitary executive to continue the objections raised by previous presidents to the legislative veto, independent agencies, the insulation of inspectors general from presidential control, and attempts to vest executive functions in the comptroller general. He also used his signing statements to limit Office of Management and Budget review of regulatory initiatives, to control the resolution of interagency disputes, to direct the actions of subordinate executive officers, to limit the president's untrammeled power over prosecutions, and other efforts to micromanage executive affairs." Id. at 406.

"Bush routinely included clauses in his executive orders requiring that they be implemented in a manner consistent with 'the President's constitutional authority to … supervise the unitary executive branch." Id. at 406-407. "In a brief before the Supreme Court in Cheney v. U.S. District Court for the District of Columbia, Bush said that the Constitution, by its textual commitment of 'executive Power' to the President and by the Opinion and Recommendations Clauses, has struck any balance there is to be struck—the Constitution preserves the zone of autonomy for the President in obtaining advice he seeks to perform his duties." Id. at 407.

"One of Bush's most important actions relevant to the unitary executive came during the development of the Department of Homeland Security: his insistence on unilateral presidential power to fire federal employees in that key department." Id. at 408. The Democratic-controlled Senate fought this power like a tiger, but President Bush prevailed. "[T] fight over the Department of Homeland Security was in essence a fight over the removal power, and Bush fought that fight, and won." Id. at 409.

There were several high-level removals during the Bush Administration. Bush removed both Treasury Secretary Paul O'Neill and his chief White House economic advisor Larry Lindsey. Most dramatically of all, Bush removed his very powerful Secretary of Defense, Donald Rumsfeld, for not deploying enough American troops in Iraq to secure the peace after the Bush administration in the Iraq War overthrew the government of Saddam Hussein. He also fired CIA Director George Tenet for mistakenly telling him that Saddam Husein had weapons of mass destruction when the invading U.S. army discovered that Saddam did not have such weapons. Id. at 410. Bush also in his second term removed Secretary of State Colin Powell and Attorney General John Ashcroft.

"Advancing an argument reminiscent of the vision of presidential authority asserted by Abraham Lincoln in 1861, Theodore Roosevelt's Stewardship Authority, and Harry Truman's justification for seizing the steel mills in 1952, the Bush administration maintained that it did not need a specific authorization from Congress to detail [without a jury trial] 'enemy combatants,' since Article II gave the executive plenary authority to detain…. Bush [also] used his implied, inherent powers to wiretap all conversations between terror suspects overseas and individuals in the United States." Id. at 410-411. I think these claims of inherent executive power are excessive and wrong, but the far more limited claim of an inherent executive power to remove any officer confirmed by the Senate who is exercising executive power is clearly right.

"On January 18, 2007, … Bush issued Executive Order 13422 amending the OMB regulatory review program established by Reagan and Bush['s father] and expanded by Clinton by subjecting 'significant guidance documents' as well as formal agency action to OMB review. The order also requires that the regulatory policy officers created by Executive Order 12866 be presidential appointees and eliminates the requirement that the RFO's report to the head of [their] agency." Id. at 412-413.

President George W. Bush, in sum, asserted sweeping inherent executive foreign affairs powers that I do not agree with. "The fact that at times Bush may have pushed an unduly vigorous view of presidential power that expanded far beyond the logical boundaries of the unitary executive [power of removal] implicitly confirms his determination to defend the prerogatives of the executive branch." Id. at 415.

This then completes my series of seven blog posts documenting that every president from Chester A. Arthur in 1881 to George W. Bush has claimed that the president has the power to remove all Senate-confirmed officers who exercise "The executive Power" (see Article II, Section 1, of the Constitution).

Humphrey's Executor may be a 90-year-old decision, but all presidents from 1935 to 2009 have refused to acquiesce in it, as President Donald Trump is now doing by firing Federal Trade Commissioner Slaughter. In INS v. Chadha (1983), the Supreme Court said that it felt justified in holding legislative vetoes unconstitutional even though they had been around for decades because every president from Woodrow Wilson to Ronald Reagan had claimed that they were unconstitutional. So too should the Roberts Court derive comfort in overruling Humphrey's Executor, given the views presidents from 1881 to 2009 have expressed about the unconstitutionality of limits on the President's power to remove Senate-confirmed officers who are exercising executive power.