To start, please forgive a few preliminaries: The Constitution provides express instructions governing appointments of Officers of the United States but not about removals (other than by impeachment). Congress has often stepped into this gap by imposing limitations on the power of the President to remove agency officials. The Supreme Court upheld for-cause style limits on presidential removal authority from the New Deal up until the arrival of the Roberts Court. The Roberts Court, following a path blazed by Justice Scalia, adheres to the principle of the “unitary executive,” which holds that the power to remove agency officials is a necessary element of the “executive power” that Article II of the Constitution provides “shall be vested in a President.” Art. II, § 1, cl. 1. Accordingly, the Roberts Court has invalidated several statutory restrictions on presidential removal power in a series of high-profile cases. To support this embrace of the unitary executive, the Roberts Court has relied upon one precedent above all others, Myers v. United States, 272 U.S. 52 (1926). Chief Justice Roberts has characterized Myers as having “conducted an exhaustive examination of the First Congress’s determination in 1789, the views of the Framers and their contemporaries, historical practice, and our precedents up until that point.” Seila Law LLC v. CFPB, 140 S. Ct. 2183, 2197 (2020). This “exhaustive examination” conclusively demonstrated that the President’s “executive power” must include a general authority to remove executive officials. Id. at 2197-2198.
In their terrific article, Becoming the Administrator-in-Chief: Myers and the Progressive Presidency, Professors Katz and Rosenblum take a blowtorch to this reading of Myers. On their account, President—whoops, sorry, Chief Justice—Taft’s 72-page majority opinion in Myers did not provide an accurate, originalist report on the Framers’ eighteenth-century expectations regarding the power of the presidency. Rather, Chief Justice Taft constitutionalized a twentieth-century, Progressive vision of the President as “popular tribune and chief administrator.” (P. 8.) Myers thus provides an example of, gasp, “living constitutionalism.” (P. 19.) And so does the Roberts Courts’ twenty-first century deployment of Myers for its own, not-so-Progressive ends.
One great pleasure of reading this wonderfully written article is the historical context that it provides for understanding Myers. Those who enjoy their irony in heaping doses might find that one bit of this history sticks with them in particular. The Postmaster General informed Myers by telegram in February 1920 that President Wilson had directed his removal from his patronage job as postmaster for Portland, Oregon. (P. 20.) By statute, Myers’s removal required the Senate’s concurrence, which could be obtained by the relatively straightforward expedient of nominating and confirming a new postmaster for the office. Although President Wilson had consistently followed this standard practice for other postmasters, he did not in Myers’s case. The likely explanation is that Wilson lacked the ability or inclination to focus on this problem because he had suffered a massive stroke in October 1919. During the run-up to Myers’s removal, Wilson’s wife limited access to him, officials issued documents in his name without showing them to him, and he directed such mental energy as he possessed toward the ratification fight over the League of Nations. (P. 23.) Speaking for myself, I think I will enjoy mentioning to students that the odds are pretty good that the most important precedent on the scope of the President’s removal power did not involve a President’s use of this power. (P. 24.)
Professors Katz and Rosenblum make the case that the Roberts Court has misunderstood the method, substance, and radicalism of Myers. Regarding method, we find the additional irony that the Roberts Court invokes Myers to advance an originalist project of tracing plenary presidential removal authority back to the Founding. (P. 29.) On inspection, however, Myers itself is not an originalist opinion. Rather, it is grounded in a flawed application of constitutional acquiescence that starts with a dubious construction of the “Decision of 1789” and ends by ignoring the law and practice of the Reconstruction Era and following decades. (P. 29.)
Turning to substance, Katz and Rosenblum contend that “[t]he presidency of Myers is strong, but it is not a unitary executive” in the style of the Roberts Court. (P. 6.) They note that Chief Justice Taft emphasized that “[t]he independent power of removal by the President alone … works no practical interference with the merit system” that protects the civil service. (P. 29 (citing Myers, 272 U.S. at 173).) Moreover, the Chief Justice “disclaimed any pretention to rule” on the removability of Article I judges. (P. 73.) Myers thus declined to follow unitarian principles all the way to the logical conclusion that the President can direct and remove all officials in the Executive Branch. It seems fair to note, however, that the Roberts Court has not gone so far either, given that it has not yet overruled carve-outs from plenary presidential removal authority for multi-member, bipartisan boards and for some inferior officers. If the Roberts Court is “unitarian,” perhaps it does not do too much violence to the term to call the Myers decision “unitarian,” too.
Looking beyond nomenclature, Chief Justice Taft’s carve-outs, especially for the civil service, tie directly to the main project of Administrator-in-Chief, which is to demonstrate that Myers embedded a Progressive, early twentieth-century vision of the presidency into constitutional law, marking a radical shift from earlier understandings. The presidency of the post-Civil War nineteenth century was a small thing dominated by Congress and a party system that allocated patronage jobs. The creation of a professional, merit-based civil service to replace the spoils system was one of the great triumphs of Progressive politics, and Taft had no wish to undo it. (P. 73.) This professionalized civil service provided a better, more powerful tool for modern governance, but it also needed a head manager, an Administrator-in-Chief one might even say, to lead it. An ideal candidate for this job might be a nationally elected political figure who could serve as the voice of the people, making policy in the public interest.
This powerful role would not fit the Founders’ vision of the presidency. They were dubious of democracy and regarded the President as a counterweight to Congress’s majoritarian impulses. (P. 80.) Nor would this powerful role fit the job description of late nineteenth century presidents, who often worked part-time and could not even control who got the plum jobs. This powerful role did, however, neatly fit a vision of the presidency suited to a world in which a big man such as Theodore Roosevelt, taking advantage of both modernizing communications and growing governmental power, could make the presidency big, too. Myers reasoned that, to play this (new) role, the President must be able to remove officers to control them in service of the President’s vision of the public interest. At the same time, however, this power to remove must not undermine the professionalism that empowered effective, efficient governance. (P. 76.)
Near the end of Administrator-in-Chief, Katz and Rosenblum target their fire directly at the Roberts Court’s use of Myers. Flaws include: ignoring a “veritable pile of scholarship” demonstrating a long history of congressional insulation of government actors from direct presidential control; ignoring that Myers itself acknowledged substantial congressional authority to provide such protection; ignoring Taft’s strong commitment to administrative independence; and relying on Myers’s “bad history” to further its own bad historical project. (Pp. 74-79.)
Notwithstanding these many problems, however, Katz and Rosenblum ultimately conclude that, viewed from a certain ironic angle, the twenty-first century Court is correct to rely on the twentieth century’s Myers. In their last paragraph, they explain:
Myers is thus the right progenitor for the Court’s unitary project, but not for the reason it thinks. The real story of how the president became the administrator-in-chief is one of institutional innovation and judge-led legal development. Today, with its unitary revolution, what the Court once made one way, it is trying to make anew. That is the kind of judicial revolution Myers itself engaged in. Taft would reject the presidency they are creating. But the judicial project of the Roberts Court? That, he would understand. It was what he himself had done.
(Pp. 83-84.) What goes around comes around?
Anyone with a hankering to find out more about Myers, and if you have read this far into this jot, I think that probably includes you, will find reading the Administrator-in-Chief highly informative and thought-provoking. It will certainly be on my mind as I read any future Supreme Court adventures in unitarianism—and the chance to do so might arrive as soon as this spring if the Court seizes its opportunity to rule on the constitutionality of statutory removal protections for administrative law judges in Securities and Exchange Commission v. Jarkesy, No. 22-859.
