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

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.