Donald Trump has placed the issue of the President’s removal power before the Supreme Court, and its answer will undoubtedly be one of its most important decisions in the entire field of administrative law. Independent agencies, where leadership is appointed by the President with Senate approval and can only be removed for cause, have been a mainstay of our modern administrative state since its development in the late nineteenth century. The first modern agency, the Interstate Commerce Commission, was structured in this manner, and the model has been regularly employed for many others, including the Federal Trade Commission, the Securities Exchange Commission, and the Federal Reserve Board.
Although prediction is a notoriously difficult enterprise, current indications are that the Court will accede to Trump’s argument (sometimes described as the unitary executive theory) that the President has inherent power to remove most, or all, executive officials and that the many enacted provisions limiting him to removal for cause are unconstitutional. This will reverse a century of Supreme Court doctrine; indeed, except for some expansive language in Chief Justice Taft’s 1926 decision in Myers v. U.S. (whose actual holding is the uncontroversial principle that Congress may not participate in the removal process), the Court has never questioned the constitutional validity of independent agencies. In decisions such as Seila Law v. CFPB and Free Enterprise Fund v. PCOAB, it struck down the use of for cause provisions to create innovative agency structures, but it left the basic principle – as articulated in Humphrey’s Executor v. U.S. and revised in Morrison v. Olson — intact. The pragmatic consequences that will flow from reversing this long-established doctrine will be unfortunate at best. Donald Trump has demonstrated hostility to democratic governance and the rule of law, not merely by statements and behaviors reported by the press, but through actions repeatedly struck down by federal courts. In other words, his troubling pattern of political and legal irresponsibility can be discerned from the legal record that falls within the Court’s institutional purview. To grant him the power to ignore the limits that have accompanied Congressional grants of authority for one hundred fifty years and exercise sole control of the entire administrative apparatus is to court disaster.
If the Court is in fact intending to reach such a legally unprecedented and pragmatically dangerous conclusion, the chances are that it will rely on original intent and legal history, as it did in its similarly unprecedented and endangering Second Amendment cases. It is here that a recent article by Andrea Scoseria Katz, Noah Rosenblum, and Jane Manners, Disagreement and Historical Argument or How Not to Think About Removal, assumes its importance. The article is the most recent entry in what is now a four-part exchange with Aditya Bamzai and Saikrishna Bangalore Prakash (fully documented in the article) on the original meaning of Article II, sec. 2, which specifies — or, in this case, as in others, fails to specify – the powers of the President. Professors Bamzai and Prakash began the dialogue by claiming that, at the time of the Framers, executive power clearly included a plenary power to remove. When challenged by Professors Katz and Rosenblum, they then conceded that the matter was contested but that there was a consensus among the Framers on the subject. To support their revised argument, they rely heavily on Luther Martin’s statements in the Maryland Constitutional Convention and the debates regarding the removal power embodied in the Pennsylvania state constitution.
Professors Katz, Rosenblum, and Manners contest this evidence, briefly noting the ambiguity of Martin’s comments and then examining the Pennsylvania debates in great detail. This latter discussion is a model of detailed and scrupulous historical research, drawing on a wide range of documents and subjecting them to close analysis. In essence, their argument is that quoting Martin — who left the Constitution Convention without signing the document and railed against it in his home state – or relying on particular documents from the Pennsylvania debates, is vulnerable to the familiar charge of looking over a crowd and picking one’s friends. What actually emerges from the Pennsylvania sources, they argue, is a range of opinions about the removal issue, a debate that was never resolved. And there were certainly many people, including the signatories of the Constitution, who contested the views of Luther Martin.
The importance of this article, however, goes beyond the specifics of its historical analysis. Professors Katz, Rosenblum, and Manners provide a thoughtful, cautionary discussion about the use of history in constitutional adjudication. Drawing simple lessons from a past that is “as messy as the present” resembles treating an extensive novel like an Aesop’s fable. Historians bring years of training and decades of knowledge and experience to the task of understanding the past. Presumably, originalist Justices and scholars would not agree to perform neurosurgery on a voluntary basis, but they seem unaware that history is also a specialized field. Professors Katz, Rosenblum, and Manners avoid this tempting pitfall. Although they perform a conscientious and sophisticated historical analysis in response to Professors Bamzai and Prakash, they conclude that “the question of removal was shot through with contestation,” and refuse to draw simple conclusions designed to resolve a present controversy.
One general point that the authors emphasize in support of their more measured position is that the enterprise of historical inquiry is “to keep filling in the picture.” Professors Bamzai and Prakash, dealing with a positive law text that simply says nothing about the issue they address, seem to believe that they can discern the general image of executive power that prevailed in the minds of people who lived more than two centuries ago. But what was in their minds depended on their life experience, an experience as deep and complex as our own. That remote but subjectively intense experience is not easy to recapture. The Pennsylvania documents under discussion speak of officers “such as councilors and sheriffs” and of election by “the freeholders of each city.” Do we know what these terms conjured up in the minds of people at the time? Going further, all these people had grown up as loyal subjects of the British monarch and were thinking about government in terms that originated in British experience. When they began designing their own governments, Britain was undergoing a raging controversy (“the constitutional crisis of 1782-83”) regarding the king’s right to appoint and remove parliamentary ministers. What did they think about these events? For that matter, what did they think about Pennsylvania? Its Quaker identity during this period was much stronger than today. In the English Civil War, more recent to the Founders than our Civil War is to us, the Quakers were among the most extreme and volatile groups and, as Christopher Hill notes, had “more in common with a Leveller, a Digger or a Ranter than with a modern member of the Society of Friends.” Would this have influenced the way Pennsylvania’s political debates were viewed? Would the fact that the Quakers were virtually the only people who declared slavery immoral have any effect?
A second point is that we simply cannot approach history without seeing it through the lens of our own conceptions. This means, as Erwin Chemerinsky points out, that originalism is often “worse than nothing,” a means of propping up personal opinions by projecting them onto a supposedly authoritative past. For more than a century, linguistic theory has recognized that the interpretation of a text is an interaction between the text and the reader. The real form of the statement that “this text means X” is always “I think this text means X.” There is simply no way to subtract oneself from the interpretive process. Luther Martin was a slaveholder. Perhaps it sounds excessively woke to take this into account in deciding how much authority we want to attach to his statements about the seemingly unrelated subject of the executive’s removal power. But in deciding how much credence we want to grant to his political views, we cannot possibly think about him in the same way people thought about him at the time, when only the eccentric Quakers found slavery reprehensible. Similarly, we simply cannot think about the removal debates without bringing to it our current awareness of the meaning and consequences of those debates. Professors Katz, Rosenblum, and Manners acknowledge, indeed emphasize, this reality. They have written a carefully researched historical study of the late eighteenth-century removal debates while recognizing the realities of the interpretive process and scrupulously avoiding unsupportable conclusions. This constitutes a valuable warning to all scholars who rely on historical analysis and, one might hope, to the Supreme Court as well.
