“Inherent power! . . . The partisans of the executive have discovered a [new] and more fruitful source of power.”
— Sen. Henry Clay, Senate Debate of 1835.
“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.
“I have an Article [II], where I have the right to do whatever I want as president.”
— President Donald Trump.
Since at least 1935, when the Supreme Court countermanded President Franklin Roosevelt’s attempt to remove a Federal Trade Commissioner,
administrative independence has enjoyed legal sanction.
But the law of the executive is now in flux. The New Deal order is in retreat everywhere, and administrative law is no exception.
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.
Two Justices have flatly suggested that the 1935 decision enshrining administrative independence is no longer good law.
The New Deal settlement—which combined presidential policymaking with internal executive branch divisions, expertise, and insulation from political control—is eroding.
Unitary presidential administration, once a legally questionable power grab, is rapidly becoming the law of the land.
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.
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.
Under this scheme, all nonjudicial and nonlegislative government actors must report to the President in an unbroken chain of command.
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.
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.
Against the backdrop of this history, today’s Court presents itself as correcting the New Deal anomaly.
In carrying out this mission, the Court has been guided by one judicial lodestar: Myers v. United States.
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.
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.
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
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.
) 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.
Like today’s originalists, Taft’s opinion speaks in essentialist terms about what Article II of the Constitution does and does not include.
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.
This method lends unitary theory a higher democratic pedigree, rooting it not just in history but in the social contract itself.
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.
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.”
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.
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.
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.
That statement is at least tendentious as a historical matter.
But regardless of its truth, it is an appeal to political practice or “historical gloss,” not original meaning.
For Taft, the actions of the first Congress were just one entry of many in a historical sequence stretching over decades.
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.
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.
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.”
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.
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,
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.
These laws tied the President’s hands and gave the legislature sway over executive branch officers.
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.
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.
Indebted to party and in practice lacking hiring and firing power over the bureaucracy, the nineteenth-century President was a weak figure.
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.
Many communities in an industrializing, urbanizing, diversifying America clamored for more help from the government.
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.
New federal agencies arose to oversee and administer antitrust, labor, and regulatory policy.
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.
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.
Progressives believed that the new presidency embodied a particular role for the officeholder as the people’s representative, chief policymaker, and main government administrator.
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.
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.
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.
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.
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.
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.
When the case was first argued on December 5, 1923,
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.
Taft was irritated when Justices Oliver Wendell Holmes, Louis Brandeis, and James Clark McReynolds dissented from the majority.
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.
The three dissenters took issue with Taft’s constitutional theory,
his account of the debates of the First Congress,
and his treatment of decades of legislative and judicial precedent.
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.
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.
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.
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.
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.
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.”
While there is a wide gulf between the presidency of Myers and that of the Roberts Court,
the two Chief Justices’ gambits are the same. What is billed as a constitutional “restoration”
is simply the Court imposing one new vision of the President in place of another.
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.
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.
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.
Law and legal scholarship must attend to the dynamic interplay between doctrine and development or risk becoming a fable.