Justice Barrett, Trump v. Slaughter, and Presidential Removal Power from 1921 to 1933

In two previous blog posts, I argued that every President from 1881 to 1921 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 1921. In this blog post, I will argue that every President from 1921 to 1933 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 1921 and 1933 prior to 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).

Warren G. Harding served as President of the United States from 1921 to 1923. As President, Harding vigorously asserted his power over the entities that became independent after the decision in Humphrey’s Executor v. United States (1935). As Christopher Yoo and I wrote, “Harding communicated his administration’s policy agenda to members of the Interstate Commerce Commission (ICC) and the Shipping Board requiring commissioners to submit their undated resignations before receiving their appointments, ignoring the statutory provisions [that might have been read as limiting presidential removal power], and threatening to remove Shipping Board members who disagreed with his policies. Even more important were his efforts to reconstitute … agencies with commissioners more in tune with his pro-business orientation. Harding made a number of transformative appointments to the ICC, the Federal Reserve Board, the U.S. Tariff Commission, and the Federal Trade Commission that effectively brought the regulatory policy of the Progressive Era to an end.” Calabresi & Yoo, at 262.

Harding endorsed an executive branch reorganization proposal that “recommended that the independent agencies be consolidated into the executive department.” Id. Although this plan failed, Harding succeeded in creating a Bureau of the Budget—a plan initiated by Taft and then supported by Woodrow Wilson. “Under the Budget and Accounting Act of 1921, ‘the Bureau of the Budget was part of the executive branch, reporting to the president. The budget director was not to take instruction from cabinet officers but only from the president, which gave the director the authority to plan a responsible budget without constant interference.’ The impact on the president’s ability to control his administration was palpable and immediate. Under the leadership of the very able Charles Dawes, the Bureau of the Budget was able to save more than one billion dollars during its first year of operation. Even more important, the bureau allowed the president to exert far more control over federal spending than ever before.” Id. at 262-263. The Bureau of the Budget, which began as a part of the Treasury Department under Harding was moved to the White House by President Franklin D. Roosevelt and was then renamed the Office of Management and Budget (OMB) under President Richard M. Nixon. It has been one of the principal tools by which modern presidents control the unitary executive branch.

Unfortunately, President Harding had to pay a steep price to get the Bureau of the Budget enacted into law by Congress. “Attached to the legislation creating the Bureau of the Budget was a provision creating the General Accounting Office (GAO), headed by a Comptroller General appointed to a fifteen-year term and removable by joint resolution …. Because a joint resolution necessarily requires the president’s signature to be effective, this provision guaranteed presidential participation in any removals.” Id. at 263. Congress was, however, unconstitutionally given a role in the removal process of the Comptroller General, which was precisely “the problem[] that had induced [Woodrow] Wilson to veto the previous version of the Budget and Accounting Act, notwithstanding his avid support for the” creation of the Bureau of the Budget. Id.

Ultimately, the creation of the Bureau of the Budget, its move by FDR to the White House staff, and its transformation into OMB—which became the President’s principal unitary executive tool for controlling the executive branch proved to be far more consequential than Congress’s reserving a role for itself in removing GAO Comptrollers General. Overall, this unsavory “deal” greatly advanced the unitary executive by enhancing enormously the President’s control over both the executive branch, the regulatory state, and the budget. On balance, the Harding presidency thus enhanced the unitary executive rather than setting it back.

The Harding Administration defended the constitutionality in the lower courts of President Wilson’s removal of Postmaster Frank Myers without Senate approval, which led to the great win for presidential removal power in Myers v. United States (1926) under Harding’s successor as President.

Calvin Coolidge served as President from 1923 to 1929. The great removal power victory of his presidency was the winning of Myers in the Supreme Court with a magnificent, scholarly majority opinion by Chief Justice William Howard Taft, which recognized an unlimited presidential removal power in a seventy-page opinion. The government’s brief in Myers claimed the Executive Power Vesting Clause of Article II granted the president unlimited removal power over officers exercising executive power, and the majority opinion wrote that conclusion into constitutional law in the U.S. Reports. Id. at 267-268. The Coolidge Administration’s brief also recounted the entire history of disputes over the removal power from 1789 to 1926. “The consistency of the refusal by previous presidents to accept congressionally imposed limits on presidential removals played a large role in Chief Justice Taft’s opinion. In light of the opposition offered by Presidents Jackson, Grant, Cleveland, Wilson, and Coolidge, [the Court said] any limits on ‘the independent power of the President to remove … can not be said really to have received the acquiescence of the executive branch,” just as Christopher Yoo and I claimed in our co-authored book. Id. at 268.

“Coolidge was more than willing to fight to assert the president’s sole right to control the execution of the federal laws. For instance, the degree of influence he exerted over the [supposedly] independent agencies indicates that he envisioned them as being subject to his will. Consistent with congressional statements that the Federal Trade Commission and other commissions ‘should subordinate their judgment to the opinions of the Executive’ and that ‘they properly were mere agencies to register the policies of the administration,’ Coolidge attempted to dominate the … agencies by influencing the rediscount policy of the Federal Reserve Board, dictating policy to the U.S. Shipping Board, requiring that commissioners submit undated letters of resignation before appointing them, and threatening to remove commissioners who disagreed with his policies. The fact that the threatened removal of these commissioners failed to evoke any congressional protests suggests that Congress also did not regard the statutory removal restrictions as vitiating any of the president’s constitutional powers.” Id. at 265-266.

“Coolidge further exerted control over the [supposedly] independent agencies by appointing commissioners who were sympathetic to his pro-business policies. These efforts culminated with the appointment of William E. Humphrey to the chairmanship of the FTC. Humphrey bragged about the impact of his appointment, noting that ‘if [the FTC] was going east before, it is going west now.’ He added, ‘Do you think I would have a body of men working here under me that did not share my ideas about these matters? Not on your life. I would not hesitate a minute to cut their heads off if they disagreed with me. What in the hell do you think I am here for?'” Id. at 266.

“It is clear that both Harding and Coolidge moved aggressively to turn the direction of the [supposedly] independent agencies around one hundred and eighty degrees. While the merits of the laissez-faire policy they pursued are open to dispute, there can be no question but that Harding and Coolidge ensured that these agencies acted in accordance with the vision determined by the president, notwithstanding the supposed statutory guarantees of independence. Humphrey’s aggressive statements about his own role in implementing Coolidge’s laissez-faire policies certainly help to explain why FDR was so eager to replace Humphrey in the litigation that ultimately became Humphrey’s Executor v. United States.” Id. at 266.

Coolidge also used his powers under the Bureau of the Budget to slash dramatically federal spending. In 1927, the Federal Radio Commission was created, which would become the Federal Communications Commission under President Franklin D. Roosevelt. “In the wake of the landmark decision in Myers, however, Congress did not even maintain the pretense of including any restrictions on the president’s power to remove commissioners.” Id. at 272.

Herbert Hoover served as President of the United States from 1929 to 1933. “While a member of the Coolidge administration, Hoover had questioned the constitutional propriety of conferring executive powers upon independent agencies, arguing that

“there should be single-headed responsibility in executive and administrative functions.” Hoover elaborated, “The necessarily divided minds of the best board in the world ha[ve] always resulted in failure in executive work. Every member must have a four-way independent responsibility. He is responsible for every act of the board to the country as a whole, to his particular constituency, to his political party and finally to Congress. There is only one responsibility that he does not have and that is to the President of the United States, who, at least under the spirit of the Constitution, should be vested with all administrative authority.

Hoover reiterated these views after assuming the presidency. Addressing the problem of departmental reorganization in his first annual message, Hoover urged that all executive administrative activities should be placed under single-headed responsibility.

“Indeed,” Hoover concluded, “these are the fundamental principles upon which our Government was founded, and they are the principles which have been adhered to in the whole development of our business structure, and they are the distillation of the common sense of generations.”

Hoover assumed full responsibility for all executive policies, issuing directives to the ICC regarding passenger rates and railroad consolidations.” Id. at 273-274.

The original Federal Power Commission (FPC), which today is the Federal Energy Regulatory Commission, was created after the decision in Myers v. United States with no removal restrictions as to the five-member commission. Hoover also fought off a Senate attempt to reconsider its confirmation of three nominees to the FPC arguing that it interfered with his presidential removal power, a fight that he won in court. Id. at 274.

The twelve years of Republican presidencies following the Progressive era ended with Myers having constitutionalized total presidential power to remove at will any officer exercising executive power. All three presidents during this period of time strongly supported this power.