In a series of recent cases, the Supreme Court has reconfigured the administrative state in line with a particular version of Article II. According to the Court’s scheme, known as the theory of the “unitary executive,” all of the government’s operations must be housed under one of three branches, with the head of the executive branch shouldering unique and personal responsibility for the administration of federal law.

Guiding the Court’s decisions is Myers v. United States, the famous 1926 case about the firing of a postman. Written by President-turned–Chief Justice William Howard Taft, Myers is used to bolster the Court’s jurisprudence as a supposed precedent for the unitary executive theory and an alleged originalist defense of strong executive administration.

This Article shows that Myers has been misread. It did not explicate a preexisting tradition of presidential power; it invented one. Claiming to describe the presidency as it had always been, Taft’s opinion broke with decades of jurisprudence to constitutionalize a new understanding of the office. This “Progressive Presidency,” which (President) Taft himself helped create, made the President the administrator-in-chief on developmental, not originalist, grounds as part of a broader Progressive remaking of government. And it differed from its modern-day unitary counterpart in many important particulars, including respect for administrative independence.

This Article reconstructs the Progressives’ transformation of the presidency and shows how Myers wrote it into law. This contextual reading of Myers undermines the Court’s recent decisions and highlights the co-constitutive roles of institutional and doctrinal developments in making the modern presidency.

The full text of this Article can be found by clicking the PDF link to the left.

“Inherent power! . . . The partisans of the executive have discovered a [new] and more fruitful source of power.”
— Sen. Henry Clay, Senate Debate of 1835. 1 Myers v. United States, 272 U.S. 52, 180 (1926) (McReynolds, J., dissenting) (internal quotation marks omitted) (quoting 11 Reg. Deb. 515–16 (1835) (statement of Sen. Henry Clay)).

“We elect a king for four years, and give him absolute power within certain limits, which after all he can interpret for himself.”
— Secretary of State William Seward. 2 Louis J. Jennings, Eighty Years of Republican Government in the United States 36 (London, John Murray 1868) (recounting that Seward once said this to the author in a conversation).

“I have an Article [II], where I have the right to do whatever I want as president.”
— President Donald Trump. 3 President Donald Trump, Remarks at Turning Point USA Teen Student Action Summit ( July 23, 2019), []; see also Michael Brice-Saddler, While Bemoaning Mueller Probe, Trump Falsely Says the Constitution Gives Him ‘The Right to Do Whatever I Want,’ Wash. Post ( July 23, 2019), (on file with the Columbia Law Review).


Since at least 1935, when the Supreme Court countermanded President Franklin Roosevelt’s attempt to remove a Federal Trade Commissioner, 4 Humphrey’s Ex’r v. United States, 295 U.S. 602, 627–29 (1935). administrative independence has enjoyed legal sanction. 5 See Seila L. LLC v. Consumer Fin. Prot. Bureau, 140 S. Ct. 2183, 2224 (2020) (Kagan, J., concurring in the judgment with respect to severability and dissenting in part) (“[T]he Court has commonly allowed [Congress and the President] to create zones of administrative independence by limiting the President’s power to remove agency heads.”). But the law of the executive is now in flux. The New Deal order is in retreat everywhere, and administrative law is no exception. 6 See generally Gary Gerstle & Steve Fraser, Introduction, in The Rise and Fall of the New Deal Order, 1930–1980, at ix, ix–x (Steve Fraser & Gary Gerstle eds., 1989) (explaining the New Deal’s disintegration from what was once a “dominant order of ideas”). On the limits of the New Deal Order, see Alan Brinkley, The End of Reform: New Deal Liberalism in Recession and War 3–4, 8–10 (1995) (detailing how the New Deal began to encounter a series of political and economic problems that impeded its agenda). In the last few years, the Supreme Court has pushed back against bureaucratic autonomy, cabined Congress’s ability to design federal agencies, and enforced presidential control or supervision of administrative action. 7 See Collins v. Yellen, 141 S. Ct. 1761, 1787 (2021) (finding restrictions on the President’s ability to remove the Federal Housing Finance Agency director unconstitutional); United States v. Arthrex, Inc., 141 S. Ct. 1970, 1985 (2021) (holding that the structure of the Patent Trial and Appeal Board was incompatible with the President’s constitutional responsibilities); Seila L., 140 S. Ct. at 2199–200 (limiting Congress’s ability to grant for-cause removal protection); Lucia v. Sec. & Exch. Comm’n, 138 S. Ct. 2044, 2055 (2018) (holding that the appointment of the SEC’s administrative law judges was subject to the Appointments Clause); Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 492 (2010) (finding dual-layer for-cause removal protection to violate Article II). Two Justices have flatly suggested that the 1935 decision enshrining administrative independence is no longer good law. 8 See Seila L., 140 S. Ct. at 2211–12 (Thomas, J., concurring in part and dissenting in part) (discussing and dismissing Humphrey’s Ex’r, 295 U.S. 602). Justice Neil Gorsuch joined Justice Clarence Thomas’s dissent. Id. at 2211. The New Deal settlement—which combined presidential policymaking with internal executive branch divisions, expertise, and insulation from political control—is eroding. 9 See Noah A. Rosenblum, The Antifascist Roots of Presidential Administration, 122 Colum. L. Rev. 1, 66 (2022) (“In response to the threat of fascism, the architects of executive control over the administrative state embraced separation of powers, especially internal to the executive branch, as a way to make presidential administration antifascist.”). Unitary presidential administration, once a legally questionable power grab, is rapidly becoming the law of the land. 10 On the questionable legality of modern presidential administration, see Ashraf Ahmed, Lev Menand & Noah A. Rosenblum, Building Presidential Administration, 137 Harv. L. Rev. (forthcoming 2024) (manuscript at 33) (on file with the Columbia Law Review).

This unfolding revolution is billed as a restoration. The modern Supreme Court disclaims any pretension of changing the law, professing merely to return it to what it has always been. 11 See, e.g., Seila L., 140 S. Ct. at 2202 (“‘The Framers recognized that, in the long term, structural protections against abuse of power were critical to preserving liberty.’ Their solution to governmental power and its perils was simple: divide it.” (citation omitted) (quoting Bowsher v. Synar, 478 U.S. 714, 730 (1986))); see also Corey Robin, The Reactionary Mind: Conservatism From Edmund Burke to Donald Trump 56–57 (2d ed. 2018) (arguing that conservative counterrevolutions are often couched as “restoration[s]”). On the Court’s account, our Constitution always conceived of the President as the administrator-in-chief. By separating powers, the text sets the President as the head of the executive branch with unique and particular responsibility for enforcing the law. 12 The theory grounds this claim in an overreading of two clauses of Article II: the Vesting Clause, U.S. Const. art. II, § 1, cl. 1 (“The executive Power shall be vested in a President of the United States of America.”), and the Take Care Clause, id. art. II, § 3 (“[The President] shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.”). See Steven G. Calabresi & Kevin H. Rhodes, The Structural Constitution: Unitary Executive, Plural Judiciary, 105 Harv. L. Rev. 1153, 1165 (1992). Under this scheme, all nonjudicial and nonlegislative government actors must report to the President in an unbroken chain of command. 13 See Steven G. Calabresi & Christopher S. Yoo, The Unitary Executive 3–4 (2008) (explaining that the “unitary executive eliminates conflicts . . . by ensuring that all of the cabinet departments and agencies that make up the federal government will execute the law in a consistent manner and in accordance with the president’s wishes”). Other arrangements are simply unconstitutional. This is the theory of the unitary executive, whose major theoretical and doctrinal move is to infer from the fact of three separate branches a constitutional mandate of unimpeded presidential control over the administrative state. 14 For classic statements of the theory, see id. (“[T]he theory of the unitary executive holds that the Vesting Clause of Article II . . . is a grant to the president of all of the executive power, which includes the power to remove and direct all lower-level executive officials.” (citing U.S. Const. art. II, § 1, cl. 1)); Michael W. McConnell, The President Who Would Not Be King: Executive Power Under the Constitution 235­–41, 341 (2020) (discussing variations on unitary executive theory and describing a “unitary executive” as one in which all executive power resides in the President and all executive officers and agencies serve to carry out the President’s will); Saikrishna Bangalore Prakash, Imperial From the Beginning: The Constitution of the Original Executive 33 (2015) [hereinafter Prakash, Imperial From the Beginning] (recounting how the federal government drew lessons from early state constitutions, in which “no adequate barriers separated the three powers” and legislatures often “usurped the executive power”); Calabresi & Rhodes, supra note 12, at 1165 (“Unitary executive theorists read [the Vesting Clause], together with the Take Care Clause, as creating a hierarchical, unified executive department under the direct control of the President.” (footnote omitted)). For a critical view of the same, see Jeffrey Crouch, Mitchel A. Sollenberger & Mark Rozell, The Unitary Executive Theory: A Danger to Constitutional Government 26 (2020) (noting critiques of the unitary executive theory “because of its origin, rationale, and use, and the danger it represents to governmental openness and transparency”); Peter M. Shane, Democracy’s Chief Executive 205–07 (2022) [hereinafter Shane, Democracy’s Chief Executive] (arguing for a “more democratic reading” of the executive power that emphasizes “the authorities granted to Congress and to the courts to check and balance the president, should they choose to do so”); Stephen Skowronek, John A. Dearborn & Desmond King, Phantoms of a Beleaguered Republic: The Deep State and the Unitary Executive 71–72 (2021) (contending that “a broadly based party coalition does not comport well with a unitary executive”). On the historical development of unitary executive theory and practice, see generally Ahmed et al., supra note 10.

Unitarians—proponents of the unitary executive theory—advance a specific view of political history to justify their doctrinal claim. They assert that for the better part of two centuries, American political institutions embodied unitary arrangements. Only in the mid-twentieth century did the government stray from the original, formalist separated-powers blueprint with the rise of the regulatory state and new forms of independent administration. 15 Christopher Yoo, Steven G. Calabresi & Laurence D. Nee, The Unitary Executive During the Third Half-Century, 1889–1945, 80 Notre Dame L. Rev. 1, 5–8 (2004); see also Richard A. Epstein, How Progressives Rewrote the Constitution 2 (2006) (describing how the New Deal Court vindicated expansive federal powers and led to the shift toward the “big government model” that predominates today). Against the backdrop of this history, today’s Court presents itself as correcting the New Deal anomaly. 16 See, e.g., Seila L., 140 S. Ct. at 2202 (noting that examples cited in support of agencies with single-director structures are “modern and contested” and “historical anomal[ies]”); id. at 2198 (“Rightly or wrongly, the Court [in Humphrey’s Executor] viewed the FTC . . . as exercising ‘no part of the executive power.’” (quoting Humphrey’s Ex’r v. United States, 295 U.S. 602, 628 (1935))); id. at 2199 (stating that Morrison “back[ed] away from the reliance in Humphrey’s Executor on the concepts of ‘quasi-legislative’ and ‘quasi-judicial’ power” (quoting Morrison v. Olson, 487 U.S. 654, 691 (1988)); id. at 2212 (Thomas, J., concurring in part and dissenting in part) (“The decision in Humphrey’s Executor poses a direct threat to our constitutional structure and, as a result, the liberty of the American people.”); Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 495­–96 (2010) (describing Humphrey’s Executor and related cases as permitting “limited restrictions on the President’s removal power”).

In carrying out this mission, the Court has been guided by one judicial lodestar: Myers v. United States. 17 See Collins v. Yellen, 141 S. Ct. 1761, 1787 (2021) (“The President must be able to remove not just officers who disobey his commands but also those he finds ‘negligent and inefficient’ . . . .” (quoting Myers v. United States, 272 U.S. 52, 135 (1926))); United States v. Arthrex, Inc., 141 S. Ct. 1970, 1983 (2021) (“Conspicuously absent from the dissent is any concern for the President’s ability to ‘discharge his own constitutional duty of seeing that the law be faithfully executed.’” (quoting Myers, 272 U.S. at 135)); Seila L., 140 S. Ct. at 2188, 2190, 2192, 2197–99, 2201, 2205–06 (relying on Myers throughout the majority opinion (citing Myers, 272 U.S. at 117, 136–39, 142–44, 163–65, 169)); Free Enter. Fund, 561 U.S. at 483, 492–93, 494 n.3, 510 (relying on Myers throughout the majority opinion (citing Myers, 272 U.S. at 117, 119, 127, 164)); see also Jed Handelsman Shugerman, Presidential Removal: The Marbury Problem and the Madison Solutions, 89 Fordham L. Rev. 2085, 2091–92 (2021) [hereinafter Shugerman, Presidential Removal] (explaining how the “line of cases” that accept Myers’s unitary theory “have become a foundation for other assertions of exclusive executive powers”). That 1926 case, in which the Supreme Court sided with President Woodrow Wilson in striking down a statute that purported to prevent him from firing a postman, pre-dates the New Deal settlement. Written by President-turned–Chief Justice William Howard Taft, the opinion reprimanded Congress for interfering with the President’s duty to “take care that the laws be faithfully executed” and set down a pro-presidential precedent on constitutional (as opposed to statutory) grounds. 18 Myers, 272 U.S. at 164 (citing U.S. Const. art. II, § 3). It claimed to encapsulate timeless principles and vindicate the law of the presidency as it had existed from the Founding. That Myers was penned by the only President to later become a Supreme Court Justice has only added to its authority and persuasive power, at least for some judges and commentators. 19 See, e.g., Antonin Scalia, Originalism: The Lesser Evil, 57 U. Cinn. L. Rev. 849, 851–52 (1989) (praising Myers as a “prime example” of the originalist method and calling Taft “an extraordinary man” based on his many roles in government).

The current Court has relied on Myers to legitimate its supposed restoration in two specific ways. First, Myers stands out as an exception in a sparse terrain of twentieth-century separation-of-powers cases, seeming to provide authority for the Court’s current theory of presidentialism. Separation-of-powers cases not only were exceedingly rare 20 See Andrew Coan & Nicholas Bullard, Judicial Capacity and Executive Power, 102 Va. L. Rev. 765, 789–92 (2016) (summarizing the few twentieth-century Supreme Court cases involving congressional limitations of the President’s removal power). but also, until recently, mostly rejected unitarism. (The Supreme Court’s first statement of modern unitary theory famously occurs in a solo dissent from just forty years ago. 21 See Morrison, 487 U.S. at 705 (Scalia, J., dissenting) (arguing that “all of the executive power”—not just “some”—is vested in the President); see also infra notes 80–89 and accompanying text. As a historical matter, Justice Scalia’s Morrison dissent lies at the root of the modern unitary theory. See Ahmed et al., supra note 10 (manuscript at 46–48) (explaining Scalia’s dissent as “a watershed in the development of unitary executive theory”). ) For the Court to maintain the appearance of restoring the Constitution from its New Deal perversion, the Court needs a pre–New Deal guide of what the law used to be. Myers has served that purpose.

Second, the argumentation in Myers appears well suited to the Court’s current originalist pretensions. 22 See supra note 19 and accompanying text. Like today’s originalists, Taft’s opinion speaks in essentialist terms about what Article II of the Constitution does and does not include. 23 See Myers, 272 U.S. at 126–27 (“[B]y the specific constitutional provision for appointment of executive officers with its necessary incident of removal, the . . . legislative power of Congress in respect to both [appointment and removal] is excluded . . . .”); see also id. at 127–29 (“Article II expressly and by implication withholds from Congress power to determine who shall appoint and who shall remove except as to inferior offices.”). For a detailed analysis of Myers’s argumentation, see infra section II.B. Like the originalists, it relies on early-republic sources, seeming to read its conclusions back into the logic of the Constitution as understood by its drafters at or soon after the Founding. 24 See Myers, 272 U.S. at 127 (appealing to original intent to discern constitutional meaning). This method lends unitary theory a higher democratic pedigree, rooting it not just in history but in the social contract itself. 25 See Keith E. Whittington, Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review 154­–56 (1999) (arguing that originalism maintains and perpetuates the popular will). And it further supports the Court’s claim to be doing nothing more than bringing the Constitution back to what it has always meant.

This Article argues that the current Court’s use of Myers is unjustified in three ways. First, Myers is not originalist. Unlike modern originalists, Taft was unwilling to rely solely on original meaning. 26 Robert Post, Tension in the Unitary Executive: How Taft Constructed the Epochal Opinion of Myers v. United States, 45 J. Sup. Ct. Hist. 167, 182 (2020) [hereinafter Post, Unitary Executive]. Taft struggled with the drafting process, calling it a “kind of nightmare”; he admitted that the final seventy-two-page opinion was “unmercifully long, but it [was] made so by the fact that the question has to be treated historically as well as from a purely legal constitutional standpoint.” 27 Id. at 181 (internal quotation marks omitted) (first quoting Letter from William H. Taft to Robert A. Taft (Oct. 17, 1926) (on file with the Columbia Law Review); then quoting Letter from William H. Taft to Helen Taft Manning (Oct. 24, 1926) (on file with the Columbia Law Review)).

Taft’s history of the removal power does look back to the actions of the first Congress, but not because he presumed that the meaning of the Constitution was decisively settled at the Founding or resolved with the so-called Decision of 1789. 28 The “Decision of 1789” refers to the First Congress’s debate over the creation of the Department of State. See Saikrishna Prakash, New Light on the Decision of 1789, 91 Cornell L. Rev. 1021, 1022–23 (2006) (discussing the context of the Decision of 1789). Rather, Myers’s bulk is explained by long stretches of the opinion devoted to showing that, from the start of the republic through the Civil War, “all branches of the Government,” led by the first Congress, “acquiesce[d]” in a certain understanding of presidentialism. 29 See Myers, 272 U.S. at 148. According to Taft, during this “period of 74 years, there was no act of Congress, no executive act, and no decision of th[e] [Supreme] Court at variance” with this tradition. 30 Id. at 163.

That statement is at least tendentious as a historical matter. 31 See id. at 252­­–61 (Brandeis, J., dissenting) (canvassing statutes showing the contrary). But regardless of its truth, it is an appeal to political practice or “historical gloss,” not original meaning. 32 On this method of constitutional analysis, see generally Samuel Issacharoff & Trevor Morrison, Constitution by Convention, 108 Calif. L. Rev. 1913, 1916 & nn.13–15, 1928–29 (2020) (describing and defending historical gloss as an interpretation method in separation-of-powers adjudication); Alison L. LaCroix, Historical Gloss: A Primer, 126 Harv. L. Rev. Forum 75, 78 (2012),​forvol126_lacroix.pdf [] (“Embedded within historical gloss analysis is a view of history as a social science providing objective, falsifiable data about the actions and reactions of governmental actors.”). Taft’s reliance on historical gloss to set the meaning of presidential power helps account for the long stretches of the opinion devoted to explaining away apparent departures from a supposed decades-long tradition of consistent government practice—including, notoriously, the whole of Reconstruction. See Myers, 272 U.S. at 136–37, 143–44, 152–53. On the significance of Myers’s repudiation of the legacy of Reconstruction, see infra sections II.B, V.B–.C. For Taft, the actions of the first Congress were just one entry of many in a historical sequence stretching over decades. 33 Cf. Myers, 272 U.S. at 175 (observing that a reading of the Constitution that has been “acquiesced in for a long term of years[] fixes the construction to be given its provisions”). And it was that history that created legal authority.

The Court’s second mistake concerns Myers’s substance. The presidency of Myers is strong, but it is not a unitary executive. Taft’s opinion went out of its way to defend the constitutionality of limits on presidential administrative power. It expressly affirmed Congress’s right to set conditions on removal for many government officials. 34 Id. at 160–61. It distinguished ordinary executive branch officers from Article I judges whose terms and tenures were defined by statute, and it disclaimed any pretension to rule on the latter’s status or privileges. 35 Id. at 157–58. And it protected the civil service, emphatically asserting that “[t]he independent power of removal by the President alone . . . works no practical interference with the merit system.” 36 Id. at 173. Myers envisioned a powerful presidency. But it also championed the role of independent expertise in policymaking, embraced internal divisions within the executive branch, and welcomed Congress’s power to impose conditions on the government it built out.

This points to the modern Court’s third mistreatment of Myers: By ignoring the case’s place in history, it obscures its radicalism. 37 On the way texts operate not only as documents to be interpreted but as works that do work in the world, see Dominick LaCapra, Rethinking Intellectual History and Reading Texts, 19 Hist. & Theory 245, 250 (1980). Contrary to what present-day expositors suggest, Myers did not merely summarize an existing tradition of presidentialism. The first Supreme Court opinion to invalidate a congressional statute because it violated the President’s inherent Article II power, 38 Robert C. Post, 10 The Oliver Wendell Holmes Devise History of the Supreme Court of the United States—The Taft Court: Making Law for a Divided Nation, 1921–1930, at xxxv (2024) [hereinafter Post, History of the Supreme Court]. Myers broke with decades of precedent to constitutionalize a new vision of the presidency.

To show how, this Article reconstructs the story of the premodern administrative state Myers helped to bury, which was characterized by two arrangements: (1) the primacy of Congress in defining the shape and personnel of the administrative state by statute and (2) the compliance of the President and the Court with these statutes. At the time of Myers, courts had over six decades of experience with explicit legislative restrictions on the President’s removal power. 39 See infra sections III.B–.C. These laws tied the President’s hands and gave the legislature sway over executive branch officers. 40 See infra sections III.B–.C.

Such arrangements sprang from and supported the late nineteenth-century party-based governance regime. In that world, the legislature was the nation’s most important governing institution and political parties were the constitutional system’s lifeblood. 41 See infra section III.A. Parties selected state and national candidates, defined the policy agenda, and doled patronage—cushy federal jobs, that is—back to armies of (mostly unpaid) volunteers who had helped bring them to power. 42 See infra section III.A. Indebted to party and in practice lacking hiring and firing power over the bureaucracy, the nineteenth-century President was a weak figure. 43 See infra Part III.

This arrangement shifted at the turn of the twentieth century. The Progressive Era led to a profound rethinking of the Constitution’s meaning and the President’s role within it. 44 See Peri E. Arnold, Remaking the Presidency: Roosevelt, Taft, and Wilson, 1901–1916, at 1–7 (2009) [hereinafter Arnold, Remaking] (overviewing the changes to the presidency). On Progressive statebuilding, see generally Ballard C. Campbell, The Paradox of Power: Statebuilding in America, 1754–1920 (2021) (tracking American statebuilding with a focus on “all governing units (national, state, local, and special)”); Daniel P. Carpenter, The Forging of Bureaucratic Autonomy: Reputations, Networks, and Policy Innovation in Executive Agencies, 1862–1928 (2001) (analyzing the impact of Progressive commissions on public policy); Robert Harrison, Congress, Progressive Reform, and the New American State (2004) (uncovering the role of political parties in Progressive reform); William J. Novak, New Democracy: The Creation of the Modern American State (2022) (contextualizing the era of Progressive reform in the United States); Elizabeth Sanders, Roots of Reform: Farmers, Workers, and the American State, 1877–1917 (1999) (analyzing farmers’ impact on Progressive policies); Martin J. Sklar, The Corporate Reconstruction of American Capitalism, 1890–1916 (1988) (examining the relationship between corporate capitalism and Progressive statebuilding); Theda Skocpol, Protecting Soldiers and Mothers: The Political Origins of Social Policy in the United States (1995) (reflecting on the “legacies of the earliest phases of U.S. social provision”); Stephen Skowronek, Building a New American State (1982) [hereinafter Skowronek, American State] (examining the patchwork history of America’s statebuilding); Statebuilding From the Margins (Carol Nackenoff & Julie Novkov eds., 2014) (highlighting the role of “nonstate actors or policy entrepreneurs” in the “narratives of statebuilding”); Robert H. Wiebe, The Search for Order: 1877–1920 (1967) (highlighting the social and class dynamics that influenced the Progressives’ embrace of bureaucracy and the regulatory state). On the Progressives’ reconsideration of the Constitution, see generally Aziz Rana, Progressivism and the Disenchanted Constitution, in The Progressives’ Century 41 (Stephen Skowronek, Stephen M. Engel & Bruce Ackerman eds., 2016) (explaining the Progressive critique of traditional readings of the Constitution); Andrea Scoseria Katz, The Lost Promise of Progressive Formalism, 99 Tex. L. Rev. 679 (2021) (describing “progressive formalism,” a theory that emphasized “strict construction and literal understanding of popular sovereignty over higher law”). On the changed role of the presidency, see infra section III.A. Many communities in an industrializing, urbanizing, diversifying America clamored for more help from the government. 45 See Charles Noble, Welfare as We Knew It 36 (1997) (describing the circumstances that spurred the Progressive movement). Under sustained pressure from reformers, the federal bureaucracy evolved from a prize to be captured by election winners to a professionalized body charged with realizing the will of the voters. 46 See Joanna Grisinger, The (Long) Administrative Century: Progressive Models of Governance, in The Progressives’ Century, supra note 44, at 360, 360–61 (describing the Progressives’ changes to the bureaucracy). New federal agencies arose to oversee and administer antitrust, labor, and regulatory policy. 47 Id. at 361–63. For scholarship on the different regulatory areas, see generally Carpenter, supra note 44 (examining the Department of Agriculture, the Department of the Interior, and the Post Office); Samuel Haber, Efficiency and Uplift: Scientific Management in the Progressive Era, 1890–1920 (1964) (uncovering how “scientific management” affected the movement for Progressive reform); Gabriel Kolko, Railroads and Regulation: 1877–1916 (1965) (focusing on labor and regulatory policies related to railroads); Sanders, supra note 44 (focusing on labor policies related to agrarian workers); Sklar, supra note 44 (focusing on antitrust policies); John Fabian Witt, The Accidental Republic: Crippled Workingmen, Destitute Widows, and the Remaking of American Law (2004) (tracing the role of the American industrial-accident crisis in the development of Progressive regulatory schemes). Along the way, the President transformed from a mere party servant into something different and bigger.

This Article identifies two constituent parts of the new, Progressive presidential “script” of office: the popular tribune and the chief administrator. As popular tribune, the President channeled the will of the nation into a specific policy program. As chief administrator, the President supervised the bureaucracy in its implementation. The performance of Progressive Era Presidents refined and consolidated these two roles. 48 See infra Part V. And Myers wrote the new script into law. The opinion self-consciously endowed the President with expansive authority to control the implementation of federal law. 49 See infra section V.B.

Progressives believed that the new presidency embodied a particular role for the officeholder as the people’s representative, chief policymaker, and main government administrator. 50 See infra Part IV. But this was a new, functional theory of the office—one grounded in a new understanding of democracy, not an old, already established constitutional dogma. 51 See Post, Unitary Executive, supra note 26, at 182 (discussing Justice McReynolds’s “long and furious dissent” taking issue with the quintessential spirit of pragmatism underlying Taft’s opinion). Taft’s opinion may have labored to emphasize the continuities between Myers and ­­­­previous judicial glosses on executive power, but his masterwork only reflects how far-reaching the Progressives’ departures really were.

This Article recontextualizes Myers to recover this revolution. It resituates Myers as part of the Progressive Era transformation of democracy that marked the early decades of the twentieth century. 52 See infra Part V. And it relies on close readings of Myers and the line of removal cases from which it broke to advance a new, better interpretation of the opinion. In so doing, it builds on and contributes to a growing literature that seeks to understand how law, history, and political development work together to shape institutions of governance. 53 See supra note 44; infra note 435. For explorations of the Progressive Era from the field of American Political Development, see generally Michael McGerr, A Fierce Discontent: The Rise and Fall of the Progressive Movement in America, 1870–1920 (2003) (narrating the history of Progressivism in the twentieth century and investigating that history’s relationship with contemporary politics); Marc Stears, Demanding Democracy 21­–55 (2010) (describing the forms of political action employed by Progressive reformers in enacting their vision of democracy). Legal doctrine cannot be read in isolation from wider political change. Conversely, doctrine defines a key dimension of the institutional environment in which political contestation and change take place.

The Article proceeds in five parts. Part I sets up the legal puzzle and explains its stakes. It explicates the doctrinal moves that have rendered Myers so central to the current Court’s Article II jurisprudence. The Court’s recent embrace of the novel theory of the unitary executive has left it scrambling for persuasive precedent that would allow it to root its new theory in American law and history. 54 See infra Part I. Myers seems to serve the Court’s many purposes, which explains why it has been a mainstay of unitarist arguments.

The Article then turns to historical excavation. Part II explains where Myers came from. A removal case that shouldn’t have been, Myers arose out of the firing of a low-ranking Democratic official by President Wilson. 55 See infra section II.A. The case is doubly ironic: Mr. Myers’s firing was not only trivial stuff for a constitutional controversy but also may have been based on an order Wilson never issued. 56 See infra section II.A. When the case was first argued on December 5, 1923, 57 Myers v. United States, 272 U.S. 52, 52 (1926) (listing the argument, reargument, and decision dates). its mysteries and contingencies were of little interest to Chief Justice Taft, who immediately grasped the opportunity the case presented to transform the law of the presidency. 58 See infra section II.B. Taft was irritated when Justices Oliver Wendell Holmes, Louis Brandeis, and James Clark McReynolds dissented from the majority. 59 Post, Unitary Executive, supra note 26, at 176, 179. As Chief Justice, he assigned himself the opinion and lavished over a year on drafting it, including crafting a vigorous response to the dissenters’ “very forcibly expressed” objections. 60 Id. at 172, 179–81.

The three dissenters took issue with Taft’s constitutional theory, 61 See Myers, 272 U.S. at 192–93 (McReynolds, J., dissenting) (critiquing the majority’s view of executive power). his account of the debates of the First Congress, 62 See id. at 292–95 (Brandeis, J., dissenting) (providing an alternate reading of the Founding era). and his treatment of decades of legislative and judicial precedent. 63 See id. at 215 (McReynolds, J., dissenting) (“The claim advanced for the United States is supported by no opinion of this Court . . . .”); id. at 250–54 (Brandeis, J., dissenting) (pointing out the immense legislative precedent contravening the Court’s decision). They were gesturing toward the pre-Myers regime of the President’s place under the Constitution.

Part III moves backward in time to reconstruct that world and show how radical a departure Taft’s Myers decision constituted. Analyzing late nineteenth-century political history and jurisprudence, Part III uncovers the workings of the prior judicial–administrative settlement in practice. It shows how the President, then, had neither the political nor the constitutional authority to realize a policy agenda. 64 See infra section III.A. Legally speaking, Congress could limit the President’s authority over the government, and the Court repeatedly deferred to Congress in opinions that resolved apparent constitutional puzzles by looking to the language of statutes. 65 See infra sections III.B–.C. Abstract claims about presidential representation and the nature of democratic government—hallmarks of the current Court’s jurisprudence—were conspicuously absent.

Part IV looks to how the Progressive Presidents—Theodore Roosevelt, William Howard Taft, and Woodrow Wilson—dramatically changed the presidency in practice and, through Taft’s writings, in theory too. The decisive pivot in the office’s development took place in the first two decades of the twentieth century as Roosevelt, Taft, and Wilson established a durable new understanding of the presidential role. 66 See infra sections IV.A–.C. As they worked the office, the American President became the people’s tribune and the government’s chief administrator. As the preeminent representative of the nation with a direct democratic tie to the people, the President claimed a special mandate to implement the people’s policy program.

Doctrine lagged behind, though. Part V returns to the Article’s anchor—Myers—to show how the opinion encoded this new “Progressive Presidency” in our Constitution. And it draws out the consequences of this rereading of Myers for contemporary law and scholarship.

Taft would spend several fruitful years in academia between his terms as President and Chief Justice elaborating his own understanding of the new Progressive Presidency. 67 See infra section V.A. That theory would form the basis of his opinion in Myers, institutionalizing the President’s new political power as the people’s tribune through expanded legal authority as administrator-in-chief. 68 See infra section V.B.

This reconstruction of Myers changes our understanding of the Court’s current project. Properly read as the translation of the Progressive Era presidency into law, Myers is less a return to the Founding than an act of modern invention. Today, the Court is doing something similar. In championing the unitary theory of the executive, the Court purports to be rescuing Myers from “the dustbin of repudiated constitutional principles.” 69 Morrison v. Olson, 487 U.S. 654, 725 (1988) (Scalia, J., dissenting) (characterizing the Morrison majority’s treatment of Humphrey’s Executor). While there is a wide gulf between the presidency of Myers and that of the Roberts Court, 70 See infra section V.C. the two Chief Justices’ gambits are the same. What is billed as a constitutional “restoration” 71 Robin, supra note 11, at 57. is simply the Court imposing one new vision of the President in place of another. 72 See Nikolas Bowie & Daphna Renan, The Separation-of-Powers Counterrevolution, 131 Yale L.J. 2020, 2076–78 (2022) (arguing that Myers instituted a new version of the presidency that served the interests of reactionaries who were scarred by Reconstruction).

Reconstructing the democratic theory that underlies Myers’s Progressive Presidency also undermines the substance of the Court’s current arguments. Modern unitarism claims that structural pluralism and independent administration are incompatible with a strong, constitutional President and that the President is necessarily entitled to a privileged position vis-à-vis other political actors in the name of democracy. 73 See supra notes 7–17 and accompanying text. This Article’s re-reading of Myers shows this is not the case.

Finally, this Article contributes to the growing scholarly literature on Article II and the place of history in constitutional interpretation. 74 See Andrea Scoseria Katz & Noah A. Rosenblum, Removal Rehashed, 136 Harv. L. Rev. Forum 404, 406 nn.13–14, 411 nn.51 & 55, 413 nn.65 & 74, 423 n.131 (2023), [] (canvassing these sources); see also infra note 116. The Article shows that the law of the presidency is part and parcel of the office of the executive. That office undergoes institutional development as a result of forces only dimly alluded to in the doctrine itself. To understand the presidency and develop a law adequate to it, courts cannot close their eyes to these changes or wish them away through the fantasy of an immutable, unchanging office. As Myers itself illustrates, such a project merely masks the inevitability of institutional intercurrence. 75 “Intercurrence” describes the “phenomenon of multiple-orders-in-action.” Karen Orren & Stephen Skowronek, The Search for American Political Development 17, 108–18 (2004). Law and legal scholarship must attend to the dynamic interplay between doctrine and development or risk becoming a fable.