During the oral argument in Trump v. Slaughter, Justice Amy Coney Barrett asked counsel for respondent Slaughter how long independent agencies had existed for and counsel suggested to her, incorrectly, that they dated back to the last twenty years of the 19th Century. In fact, as I will show in a series of posts on this blog, no truly independent agency ever existed prior to the decision in Humphrey's Executor v. United States in 1935. My full account of the history of presidential resistance to the creation of independent agencies during this period appears in: Steven G. Calabresi & Christopher S. Yoo, The Unitary Executive: Presidential Power from Washington to Bush (Yale University Press 2008). This blog post will discuss presidential removal power from 1881 to 1901. Subsequent posts will examine presidential removal power from 1901 to 2009. None of these posts could have been written by me without consulting and quoting from the excellent work done by my book co-author, Professor Christopher S. Yoo. He gets all the credit, and I take all the blame for whatever is said below.

In recounting our actual practice from 1881 to 1999, I do not mean to endorse the view that this practice is constitutionally relevant to deciding Trump v. Slaughter. I believe that President Trump should win this case because of the original public meaning of the text of the Constitution. I recognize, however, that only two of the nine justices on the current Supreme Court follow exclusively the original public meaning of the Constitution's text. All the other seven justices on today's Supreme Court think, to various degrees, that arguments from practice are sometimes relevant to the question of whether Humphrey's Executor (1935) should be overruled. Since I have co-published the book with Christopher Yoo cited above on our actual practice, and since the issue is now pending before the Supreme Court, I want to explain why the arguments from presidential practice that Christopher Yoo helped me to write about 18 years ago support overruling Humphrey's Executor (1935).

It is important to review in tedious detail the actual history of presidential assertions of executive power from 1881 to 1901 because many academics who have not seriously examined the subject wrongly believe that the passage of the Pendleton Civil Service Act and the creation of the Interstate Commerce Commission in the 1880's introduced new and severe limits on the President's removal power. These same academics also deny that the Executive Power Vesting Clause of Article II includes an inherent removal power. This is simply wrong. I will therefore work painfully through every presidential administration from 1881 to 1901 to show that the Gilded Age presidents all believed in the theory of the unitary executive and unlimited and inherent presidential power to remove all Senate confirmed officers at will, except for Article III judges who have tenure during good behaviour.

President Chester A. Arthur served as president from 1881 to 1885. Most importantly for this blog post, President Arthur presided over the creation of a three-member, bipartisan Civil Service Commission whose members were appointed subject to Senate consent, but who could, critically, be removed at will by the President. The Pendleton Act, as it was called, required that open, competitive examinations be given to prospective civil servants, with appointments going to those who received the highest grades. The Act forbade federal employees from asking for or receiving contributions to political candidates in any public building. The Pendleton Act ended the Jacksonian spoils system without limiting presidential removal power at will, by making it impossible to appointed unqualified political cronies to vacant federal employee jobs.

President Arthur specifically asked that the Senate version of the Pendleton Act not grant federal employees "a tenure of office which is substantially a life tenure" as had existed at that time in the United Kingdom. President Arthur prevailed on this point, and the President was specifically given the power to apply civil service status only to "subordinates whose duties are purely administrative and have no connection with any political principles." Calabresi & Yoo at 207. The revised and final act deleted all restrictions on the president's power to remove. Once appointments had to be awarded to the winner of competitive exams, there was no longer any incentive to make partisan removals. It was in this way that the Pendleton Act ended the Jacksonian spoils system while being fully consistent with the theory of the unitary executive.

President Grover Cleveland, whose first term ran from 1885 to 1889, was a Jacksonian Democrat who was fiercely committed to securing the complete elimination of the Tenure of Office Act of 1867, as modified in 1869. On March 1, 1886, President Cleveland issued a scathing public message declaring that "the power to remove or suspend [U.S. Attorneys] is vested in the President alone by the Constitution, which in express terms provides that 'the executive power shall be vested in a President of the United States of America,' and that 'he shall take care that the laws be faithfully executed.'" Id. at 211. Any doubts as to the propriety of this view, Cleveland submitted, had been resolved by "the first Congress which assembled after the adoption of the Constitution," which had similarly sustained "the independence of the Executive in the matter of removals from office." Calabresi & Yoo at 212.

Cleveland won his fight with Congress and secured the complete repeal of the Tenure of Office Act, which he signed into law on March 3, 1887. Years later, Cleveland wrote: "Thus was an unpleasant controversy happily followed by an expurgation of the last pretense of statutory sanction to an encroachment upon constitutional Executive prerogatives, and thus was a time-honored interpretation of the Constitution restored to us." Id. Cleveland went on to fire 75,000 members of his Administration. Id. at 213.

In 1887, the Interstate Commerce Commission (ICC) was created, and the statute creating it specified that commissioners were removable by the president for "inefficiency, neglect of duty, or malfeasance." This did NOT mean that the President could not also remove ICC commissioners for disagreements over policy. In fact, ICC independence was not even discussed during the debates in Congress leading up to the enactment of the ICC. The removal provision in the ICC Act for ICC commissioners was added only to provide additional grounds for getting rid of objectionable commissioners. It was not meant to be a limit on the general presidential removal power to fire officers at will which flows from the Vesting Clause of Article II and the Take Care clause. As mentioned above, it was Cleveland himself who had so triumphantly restored presidential removal power in securing the repeal of the Tenure of Office Act.

The legislative history confirms this interpretation. The ICC Act did not read that commissioners were removable for "inefficiency, neglect of duty, malfeasance, and for no other cause." No one thought or even said, in 1887, that the creation of the ICC meant a structural innovation like the creation of a headless fourth branch of the government. As we shall see below in this Blog post when we discuss Shurtleff v. United States (1903), there is another more plausible and more constitutional way in which to read the removal language for ICC Commissioners. Grover Cleveland thought that the total repeal of the Tenure of Office Act was the greatest achievement of his first term as President. It is highly implausible to think that he would have signed the ICC Act if he thought that in doing so, he was creating a headless fourth branch of the government.

Benjamin Harrison served as President from 1889 to 1893, and he was a strong and assertive President who insisted on making all the major decisions himself. He wrote in his memoirs that the president "is responsible for all executive action." Calabresi & Yoo at 220. Although "routine matters proceed without the knowledge or interference of the President … if any matter of major importance arises the Secretary presents it for the consideration and advice of the President…. Allowing cabinet members to exercise authority inconsistent with the views of the President would be a 'farming out of his Constitutional powers' to 'eight Presidents' that would be inconsistent with the framers' rejection of an executive council in favor of an executive branch headed by a single figure.'" Id. Harrison fired 75% of the postal officers and 27% of the postmasters. The Pendleton Civil Service Act did not prevent him from doing this.

The most important matter involving inherent presidential powers, like the removal power, that arose during the Harrison administration grew out of the extraordinary series of events surrounding the attempted assassination of Supreme Court Justice Stephen J. Field. U.S. Marshall David S. Neagel was assigned by the Attorney General of the United States to protect Justice Field from an expected attack by David S. Terry, a disgruntled former litigant. Terry did attack Justice Field, and U.S. Marshall Neagle had to shoot Terry dead to save Justice Field's life. All of this occurred while Justice Field was riding circuit in California. The State of California, astonishingly, arrested U.S. Marshall Neagle for murdering Terry.

U.S. Marshall Neagle sought habeas corpus relief in federal court from California's state prosecution of him under a federal statute that allowed relief if Neagle had killed Terry "in pursuance of a law of the United States" (emphasis added). Calabresi & Yoo. No statute had been enacted under which Neagle was safeguarding Justice Field. But Neagle had been assigned to protect Justice Field on the orders of the Attorney General, who had assumed there was inherent executive power to protect the officers and instrumentalities of the United States even in the absence of a statutory mandate.

"Attorney General Miller argued the case himself 'insist[ing] that when, by the Constitution, the President is invested with the executive power of the nation, and when that instrument enjoins upon him that he shall "take care that the laws be faithfully executed," it confers upon him all powers reasonably incident to the exercise of the executive function, and necessary to the vindication and enforcement of the laws, which has not been withheld from him by the Constitution.' If Presidents could not protect courts with U.S. Marshalls, they would not be able to protect even themselves against assassination attempts." Calabresi & Yoo.

"Miller endorsed the Lincolnian view that the Vesting Clause of Article II, taken together with the Take Care Clause, vests the president with the whole executive power of the nation, giving the president broad, implied power [like the removal power] to execute both the Constitution and the laws. These implied, nonstatutory powers were broad enough to support the taking of Terry's life." Calabresi & Yoo. "It is inconceivable that an administration that endorsed Miller's Lincolnian interpretation of Article II would not also believe that the president had [the removal power.]" Id. at 223.

The Supreme Court in In re Neagle enthusiastically endorsed the Harrison Administration's position. In re Neagle (1890) is as big a win for the theory that the Vesting Clause of Article II is a grant of inherent executive powers to the President as is Myers v. United States (1926). And Myers held that the inherent grant of power to the President in the Vesting Clause of Article II included the removal power as well as the protective power found in. In re Neagle. This is thus a big victory for presidential power that was fought for and won by President Benjamin Harrison who served as president from 1889 to 1893.

In the election of 1892, former President Grover Cleveland defeated incumbent President Benjamin Harrison, and Cleveland served as President for a second non-consecutive term from 1893 to 1897. "As a good Jacksonian Democrat, Grover Cleveland was a staunch defender of the president's removal power and of the unitary executive. In fact, as [I] noted above, he had obtained the actual repeal of the Tenure of Office Act during his first term and took a wide range of other measures to defend the president's authority to execute the law. Cleveland thus took office for the second time, in 1893, as a committed friend of the unitary executive." Id. at 227.

In July 1894, a massive Pullman railroad strike in Chicago threatened to bring much interstate commerce and the delivery of the mail to a halt. Cleveland sent his Justice Department into federal court seeking an injunction stopping the strike even though he had no statutory authority to do this. Cleveland asked for and got an injunction stopping the strike to promote the flow of interstate commerce and the delivery of the mail.

Labor leader, and Socialist Party Presidential candidate, Eugene V. Debs was wrongly imprisoned for six months for violating the injunction with no jury trial. The Supreme Court wrongly upheld Cleveland's actions as being constitutional, and it upheld Debs' prison sentence for contempt of court in In re Debs (1895). This opinion went way too far, in my view, in defending inherent presidential power. But it certainly shows that Cleveland had and acted successfully on a very expansive understanding of presidential power during his second term.

The Supreme Court heard and ruled for presidential power an important removal case, Parsons v. United States (1897), that was initiated by Cleveland but handed down under President McKinley. In Parsons, a U.S. Attorney asserted a claim to a fixed four-year term in office. In this case, "a unanimous Court, speaking through Justice Peckham, issued what amounts to a paean to the unitary executive. Justice Peckham discussed the full history of the removal power from the Decision of 1789 up through the repeal of the Tenure of Office Act, mentioning that such leading figures as John Adams, Justice Story, Chancellor Kent, and Attorney General Crittenden had all regarded it settled as a matter of both interpretation and practice that regarded it settled both as a matter of interpretation and practice that the removal power was vested in the president alone. Justice Peckham's opinion basically gives an abbreviated history of the removal power from 1789 to the 1890's …. The Parsons case is thus a resounding victory for a broad presidential power of removal." Calabresi & Yoo at 229-230. In light of this ruling, and Cleveland's role in securing the repeal of the Tenure of Office Act, it is utterly implausible to argue that the ICC was at that time an independent agency.

William McKinley served as President from 1897 until his assassination in 1901. He was a very strong and aggressive president who, for example, fired his Secretary of War, Russell Alger, during the Spanish-American War. McKinley's contribution to the removal power debate came in an important precedent, Shurtleff v. United States (1903), which was handed down during Theodore Roosevelt's presidency. "Ferdinand Shurtleff was nominated, confirmed, and then appointed to be a general appraiser of merchandise under the Customs Administrative Act, which provided that he could be removed for inefficiency, neglect, or malfeasance in office. On May 3, 1899, McKinley removed Shurtleff without any notice or hearing. McKinley instead relied on the general power of removal possessed by all presidents going back to the Decision of 1789. Shurtleff sued, seeking back pay on the grounds that the Customs Administrative Act had limited the President's power to remove him." Id. at 233.

"The McKinley administration['s brief] defended the validity of the removal…. 'The question as to the power of the President to remove all such officers, for reasons satisfactory to himself, is no longer open to discussion.' Indeed, the issue has been settled by 'the practical construction of the Constitution adopted more than one hundred years ago, and never departed from by the court in any case,' as acknowledged by the Court in Parsons. The brief contended, however, that the Court did not need to address that issue in order to dispose of this case, since the statute did not attempt to limit the removal power. Construing the provision limiting removals as imposing substantive limits on the president's power to remove would effectively give executive officials a tenure in office during good behavior.

"Parsons had found such a construction problematic just four years earlier when rejecting arguments that [prescribing] a fixed duration of office secured for the incumbent a term of office for that [four year] period. Indeed, as Parsons acknowledged, the only statute ever to purport to limit the president's removal power was the Tenure of Office Act of 1867. The effect of its subsequent repeal was 'to concede to the President the power of removal, if taken from him by the original tenure of office act, and by reason of the repeal to thereby enable him to remove an officer when, in his discretion, he regards it for the public good.'" Id. at 234.

The Supreme Court in Shurtleff bought the government's argument concluding that, assuming arguendo that Congress can limit presidential removal power, it would have to do so by a statute that authorized removal because of "inefficiency, neglect of duty, malfeasance in office, and for no other cause." In other words, the Supreme Court in 1903 adopted a clear statement rule for limits on the presidential removal power. See, e.g., Gregory v. Ashcroft (1991) (adopting a clear statement rule in federalism congressional powers cases). It was against this statutory backdrop that the Federal Trade Commission Act of 1914 was adopted.

That statute provided in relevant part that:

"Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, 15 U.S.C. 41 That a commission is hereby created and established, to be known as the Federal Trade Commission (hereinafter referred to as the commission), which shall be composed of five commissioners, who shall be appointed by the President, by and with the advice and consent of the Senate. Not more than three of the commissioners shall be members of the same political party. The first commissioners appointed shall continue in office for terms of three, four, five, six, and seven years, respectively, from the date of the taking effect of this Act, the term of each to be designated by the President, but their successors shall be appointed for terms of seven years, except that any person chosen to fill a vacancy shall be appointed only for the unexpired term of the commissioner whom he shall succeed: …. Any commissioner may be removed by the President for inefficiency, neglect of duty, or malfeasance in office."

Under the rule of Shurtleff, the President had the power in 1914 when the Federal Trade Commission Act was passed to remove commissioners at will as well as for cause. In Humphrey's Executor v. United States (1935), the Supreme Court misread this statute to make the FTC independent and therefore unconstitutional, but I will save my discussion of that case for a later Blog post.

I have now covered the period of American history from 1881 to 1901 including the passage of the Pendleton Civil Service Act of 1883 and the Interstate Commerce Act of 1887, establishing the ICC, and I have shown that neither act limited the President's power to fire any Senate confirmed officers at will at any time. I have also discussed the repeal of the Tenure of Office Act during this twenty-year period as well as critically important Supreme Court opinions like Parsons and Shurtleff upholding unlimited presidential power to remove Senate confirmed executive branch officers at will at any time. Finally, I have identified two Supreme Court opinions that treat the Vesting Clause as grant of some inherent executive powers: In re Neagle and In re Debs, just as the removal power is an inherent executive power.

The conventional wisdom that independent agencies were born between 1881 and 1901 could not be more wrong. Instead, the Congresses, Presidents, and Supreme Court justices who served between 1881 and 1901 all believed that the President had the power to remove all Senate-confirmed officers at will except for Article III judges who enjoyed tenure during good behavior.

In the words of Leonard D. White (The Republican Era: 1869-1901 at 106 (1958)), who is the pre-eminent historian of administrative law in American history between 1869 and 1901: "The executive power was the constitutional possession of the President, and it carried with it the practical authority to see that the laws were enforced. The President, in short, was the constitutional head of the administrative system."