Last week, in Trump v. Slaughter, the Supreme Court gave the President sweeping new power to fire the officials who run federal agencies. By a vote of 6-3, the Court overruled Humphrey’s Executor v. United States (1935) and held that the President may remove the commissioners of the Federal Trade Commission at will, despite a statute permitting their removal only for “inefficiency, neglect of duty, or malfeasance in office.” In a companion case, Trump v. Cook, a 5-4 majority carved out a single exception, leaving in place a protection that shields the Governors of the Federal Reserve. Chief Justice John Roberts wrote for the majority in both, despite the obvious tension between the two holdings.
“For reasons that are now lost to history,” Roberts writes in Slaughter, President Woodrow Wilson fired an Oregon-based postmaster, violating an 1876 statute that required Senate approval for such removals. The matter eventually resulted in the landmark Supreme Court case Myers v. United States (1926), the decision that the Court now treats as the source of a broad presidential power to fire the officials who run federal agencies.
“Lost to history” is a curious phrase. It seems to signal a gap in the evidence, but in fact, the evidence regarding Myers’ removal is abundant. The trouble, instead, is that the evidence points in different directions, one of which is that the decision to remove Myers without Senate consent was not in fact made by Wilson, who had recently suffered a debilitating stroke, but instead by his unelected, unappointed wife—hardly the picture of a chief executive with what Roberts calls in Slaughter the “‘vigor and activity’ necessary to preserve the Constitution’s separation of powers.” In the case of Myers’ removal, in other words, the problem is not a lack of evidence. Instead, the phrase “lost to history” signals a deeper problem: the Roberts Court’s worrisome tendency to bury historical disagreement and evade inconvenient answers. Confronted with a historical record that does not support its theory, the Court presents clear-cut answers where the sources supply none and disregards or ignores evidence that cuts the other way. The result is a folk history whose myths point in only one interpretive direction.
The Court’s Case
In Slaughter, Roberts builds the case for an unbounded Presidential removal power from two clauses of Article II and an account of what early American legal and political actors did and said. But the key logical assumptions that undergird the Court’s analysis come not from history, but from the Court itself. Consider the following passage:
The Constitution vests “[t]he executive Power” in a “President of the United States of America” and instructs that he “take Care that the Laws be faithfully executed.” Art. II, §§1, 3. To vest “the whole executive power” in just one person was not to suggest that he could execute the laws alone and unaided. The Federalist No. 47, at 303 (J. Madison). But it was to establish a hierarchy—a “Chief Magistrate” with whom the buck stops, and below him various “assistants or deputies” who “derive their offices from his appointment” and remain “subject to his superintendence.” Id., No. 72, at 436 (A. Hamilton). To remain accountable to the President, those officers must be removable by the President.
To support its theory of presidential power and political accountability, the paragraph relies on text, history, and the structure of the Constitution’s Vesting and Take Care clauses as well as quotes from two key Founders, James Madison and Alexander Hamilton. All evidence points in the same direction: presidential removal is an essential element of the Constitution’s design.
But a closer look at the load-bearing elements of this passage —“hierarchy,” “with whom the buck stops,” the equation of “superintendence” with firing — reveals they are all Roberts constructions. The first two phrases do not appear in the cited sources, the Constitution and The Federalist Papers (itself a tendentious, if venerated, source of legal meaning), and the third is taken out of context. Alexander Hamilton did not, in fact, endorse an unfettered presidential removal authority, and while many Founding Era actors did argue that a solitary executive would be easier to hold accountable than a plural executive (a five-man Board, or a President tied to a Council of Advisors without whose approval he could not act at all), no one tied this argument to the President’s power to fire whomever he wanted.
The So-Called Decision of 1789
The Court treats the so-called “Decision of 1789”—a several-day debate over the removability of the Secretary of Foreign Affairs—as the moment the first Congress embraced the President’s constitutional power to remove at will. But while Madison and a handful of colleagues pressed a maximalist Article II version of removal, Jed Shugerman has shown that their view never commanded a majority of the House, let alone the Senate. The statute’s curious final language (“when ever [sic] the said principal officer shall be removed from office by the president of the United States, or in any other case of vacancy”), it turns out, is not a ringing Founding Era endorsement of the Unitary Executive Theory but instead the result of Madison’s ingenious legerdemain and successful backroom dealing to secure a narrow legislative majority.
Moreover, and even more important, the question of whether Congress could create secure officer tenures by conditioning removal on discrete causes—the question at issue in Slaughter—was not even on the table. The question up for debate was simply whether the Senate had to consent to a principal officer’s removal, just as it had to consent to his appointment. Many members had assumed this “symmetry rule” because that was how eighteenth century removals worked, in a practical sense: unless a statute specified a fixed term or some other limitation, the way to remove an officer was for the person or persons in charge of appointing to appoint someone new. Hamilton himself had written in the Federalist 77 that the Senate’s consent “would be necessary to displace as well as to appoint,” as one member of the House reminded his colleagues during the debate. (In his Commentaries on the Constitution, Joseph Story writes that it was Hamilton’s “earnest[]” endorsement of this principle in The Federalist that had quieted “the just alarms of the … arbitrary exercise of this prerogative of the executive, which might prove fatal to…the public liberties of the country,” and that it was only after ratification that anyone suggested that the Constitution might be read differently—a bait and switch that Story condemns.)
In this sense, the 1789 debate was consequential— not because it embraced an unlimited Article II power to remove, but because it altered this default understanding: when it came to removing Cabinet officers jointly appointed by the President and Senate, the first Congress decided that the Senate’s signoff was not required. This is what figures such as Richard Bland Lee, John Marshall, and Chancellor James Kent meant when they said that Congress had “determined” or “settled” the issue: the first Congress had decided to abandon the default rule of removal for principal officers. They did not mean, as Roberts repeatedly implies, that Congress had embraced a vision of Article II that included an inviolable power to remove any executive officer at pleasure. The first Congress did not say anything about giving up its own power to set the tenure of offices it created, a power that Madison himself had endorsed in Federalist 39.
All of this is amply covered in well-known recent scholarship. But Roberts buries any evidence of controversy and disagreement, concluding simplistically and incorrectly that Madison’s presidentialist alternative “emerged victorious.” As for Madison’s inconvenient Federalist 39 endorsement of congressional power, he writes that it “beggars belief” to think that Madison’s assertion that the “tenure” of “ministerial offices … will be a subject of legal regulation” actually meant what it appears to mean, since Madison would never have “intended so obliquely to permit Congress to hem in the President.” Probably, Roberts concludes, Madison’s seemingly straightforward assertion in fact referred only to “a limited term for executive officers, subject to Presidential removal in the interim,” as Madison would suggest in June 1789, when he proposed that unlike the Secretary of Foreign Affairs, the Comptroller of the Treasury should “hold his office during _________ years, unless sooner removed by the President.” But Roberts’ reading of the evidence is unconvincing. Madison’s Comptroller suggestion came seventeen months after Federalist 39, and when he made it, he felt the need to preface his proposal by assuring his colleagues that although such a strange combination—a term-of-years appointment plus mid-term removability—might be unfamiliar, it was not “altogether novel”—not, in other words, a tenure so obvious that it would have been the default assumption of readers of Federalist 39. The far more plausible reading is that Federalist 39 means exactly what it seems to: that Congress has the power to determine office tenure.
The Framers and Early Practice
When the Court turns from 1789 to the Framers themselves and the presidents who followed, the same pattern holds: the figures it enlists in support of an at-will removal power neither argued for it nor exercised it. Roberts repeatedly quotes prominent figures out of context, portraying them as supporters of at-will presidential removal when in fact they were nothing of the sort. “The power to remove at will was a necessary corollary of the Constitution’s design,” Roberts writes in Slaughter, before adverting to Hamilton for support: “The ‘unity’ of the Executive Branch would be ‘destroyed,’ Hamilton wrote, if it were vested ‘ostensibly in one man, subject in whole or in part to the control and co-operation of others, in the capacity of counselors to him.’” This sequence is deeply misleading. In Federalist 70, Hamilton did indeed write about “unity” in the executive, but he was defending the Constitution’s choice to reject a plural executive, not foreclosing the building of a professionalized administrative state. After all, it was Hamilton himself who wrote that a “disgraceful and ruinous mutability” in government would follow if presidents continually entered, exited, and fired all their predecessors’ choices. Moreover, so far as we know, Hamilton never connected “superintendence” with the power to remove at will, although that is how the Court reads him.
Roberts’ appeal to Supreme Court Justice James Iredell is similarly misplaced. “Only if the President’s deputies were removable at will,” Roberts writes, “could the Constitution live up to James Iredell’s boast that ‘the president’ would ‘be personally responsible for everything.’” What Roberts does not note is that when Iredell made this assertion in a 1788 pamphlet, he was not making the case for unfettered presidential removal. Instead, he was assuring his audience that they needn’t fear the concentrated power of a single executive because the President would be held to account. That same year, Iredell elaborated on presidential accountability at the North Carolina ratifying convention: “If [the President] commits any crime,” Iredell explained, “he is punishable by the laws of his country, and in capital cases may be deprived of his life.” Iredell was, in other words, assuring his colleagues that the President’s power would be constrained by criminal law—the very remedy that the Court foreclosed in Trump v. United States (2024) when it held that a President cannot be prosecuted for official acts. No wonder Roberts omitted such useful context.
This misleading treatment extends to early American presidents, whom Roberts portrays, to a man, as adherents of the Unitary Executive Theory. Jefferson and Adams, Roberts writes, both agreed with Washington that it was their “‘indispensable duty’” to remove officers who—in Roberts’ words, not Washington’s—“failed to live up to [their] expectations.” Why might Roberts have chosen to substitute his own words for those of our first chief executive? Perhaps because what Washington actually wrote was that removal of an officer was an “indispensable duty” when that officer “is f[oun]d incompetent, remiss in his duty, or pursuing wrong courses”—a list strikingly similar to the “inefficiency, neglect of duty, or malfeasance in office” for which President Trump was permitted, under the terms of the Federal Trade Commission Act, to remove Rebecca Slaughter. In fact, as Joseph Story explained nearly two hundred years ago, the few removals Washington made were for cause, a model of “moderation and forbearance” that was followed up until Andrew Jackson’s presidency.
Early presidents, in fact, barely used the firing power. Even Thomas Jefferson, whose removals are often cited as evidence of an early unitary view, never asserted a power of at-pleasure removal over officers with statutory tenure protections. James Monroe refused to exercise the power explicitly given him in an 1820 statute to replace certain at-pleasure officers at the end of their four-year terms, choosing instead to adhere to “the principle of renominating every officer at the expiration of his commission, unless some charge of misdemeanor should be adduced and proved against him.” (This is the “principle” that John Quincy Adams approvingly attributes to Monroe in his diary and which he himself followed as president—not, as Roberts wrongly implies, the “view that ‘the tenure of all subordinate executive offices’ is necessarily the pleasure of the chief by whom they were commissioned.’”) No early President challenged his inability to remove members of the Revolutionary War Debt Commission or the Sinking Fund Commission, whose ranks included such unremovable officers as the Chief Justice and the Vice President. Early presidential practice, in other words, does supply useful evidence of historical understandings of presidential power—but that evidence does not support the conclusion the Court draws from it.
A Rule and A Carveout
Decided the same day, Slaughter and Cook cannot both rest on the history the Court invokes. The first dismantles the independent FTC in service of an unmodifiable “rule” of removal; the second carves out a flexible exception for the Federal Reserve, preserving its independence with a contrived origin story about the Fed’s “unique” status and its roots in the First and Second Banks of the United States (1791-1811, 1816-1836).
To see the tension between the two decisions, one need look no further than the opinions of the Court’s own conservative bloc. As Justice Barrett devastatingly put it, “How can history support both a categorical rule and a carveout?”
Justice Thomas, meanwhile, tells a very different history of the Fed’s origins. Thomas’s 1913 Federal Reserve Act is not rooted in a proud American history of banking independence, but is instead the result of an alliance between Paul Warburg, a German-born Jew who “ridiculed” the American tradition, and Senator Nelson Aldrich, an “influential figure” who, like Warburg, wanted to bring European banking to America. Together with “representatives of three extremely significant New York banks,” Thomas tells us, Warburg and Aldrich devised the plan for the Fed under a pledge to total “secrecy.” The plan had the backing of Woodrow Wilson, since Wilson “disliked the American system of government because it ultimately depended on the will of the people.” To those who spend time in certain conspiratorial corners of the internet, this rendering of the story no doubt has a familiar ring. But it is wrong, and it is not an account to which Supreme Court justices ought lend their imprimatur.
Historical disputes aside, the doctrinal tensions between Slaughter and Cook are already starting to produce fissures among the justices. The majority both faults independent agencies for their “subservience” to Congress and calls them “a headless fourth branch.” Which is it? Similarly, although the Court usually describes at-will removal as essential for democratic accountability, it sometimes justifies unfettered removal as a protection for “constitutionally promised liberties”—as if a President who can fire whomever he wants and individual freedom were the same thing. Meanwhile, Justice Gorsuch’s Slaughter concurrence reads as a manifesto for destroying the government altogether. Having acknowledged that Slaughter could result in a dangerous concentration of legislative, judicial, and executive power in the President and that Congress will, in all likelihood, be unable to reel that power back in, Gorsuch concludes that it’s up to the Court to fix the problem. “From here,” he exhorts, “the only sure path is to finish the journey we start today and restore legislative and judicial powers to where they belong: in Congress and the courts”—a project the Court can achieve by using such “tools” as the major questions doctrine and the nondelegation doctrine.
The concession is clarifying and alarming. Rendering power accountable to the people by placing agencies under presidential control, the Unitary Executive Theory’s raison d’etre, seems no longer to be enough. Instead, it’s the exercise of government power itself that must be stopped.
The history of removal law is not lost. Instead, copious evidence shows that from the Founding Era through the 21st century, Congress’s power to create secure offices was largely unquestioned. For a Court both wedded to originalism and determined to locate an unfettered presidential removal power in the Constitution, such facts are a significant obstacle. And so the Court loses history, misreading evidence where it can and ignoring it where it can’t with an unmistakable result: two fundamentally irreconcilable decisions. As the questions the Court leaves unanswered rise to the surface, the fissures between the formalist Slaughter and the functionalist Cook will only deepen. Does Slaughter apply to non-Article III judges? Do any other agencies warrant a Fed-like carveout? What do we do with a century’s worth of agency law where the independent structure of those agencies is now presumptively unconstitutional? The Court favored an ideological vision of the Executive Branch that simply cannot be reconciled with the historical record. What we’re left with is a contorted doctrine and open questions that will reverberate for years to come.
Author’s Note: Both authors submitting amici briefs on this topic. Justice Sotomayor’s dissent captures many similar historical errors.
