Columbia Law Review (forthcoming 2023-2024)
In a series of recent cases, the Supreme Court has mounted an assault on the administrative state, guided by a particular vision of Article II. According to the Court’s scheme, known as the theory of the unitary executive, all of government’s operations must be housed under one of three branches, with the single head of the executive branch shouldering a unique and personal responsibility for the administration of federal law. The Constitution is thus said to require that the President have expansive authority to supervise or control the government’s many agencies.
Guiding each of the Court’s recent decisions is Myers v. U.S., the famous 1926 case about the firing of a postman. Written by President-cum-Chief-Justice William Howard Taft, Myers bolsters the Court’s jurisprudence as a supposed precedent for the unitary executive theory and alleged evidence for a deep tradition of strong executive administration.
This Article shows that Myers has been misread. It did not explicate a pre-existing tradition of presidential power; rather, it invented one. While claiming to describe the role of the chief magistrate as it had always existed, Taft’s opinion broke with decades of jurisprudence to constitutionalize a new understanding of the office. This “Progressive Presidency,” which (President) Taft himself helped create, envisioned the president as administrator-in-chief. But it did so as part of a broader Progressive remaking of government, and so—unlike its modern-day unitary counterpart—carved out important independence for adjudicators and civil servants.
This Article reconstructs the Progressives’ transformation of the presidency and shows how Myers wrote it into law. Recovering this more historically accurate reading of Myers undermines the Supreme Court’s recent decisions, sets the administrative state on firmer foundations, and highlights the co-constitutive roles of institutional and doctrinal developments in making the modern presidency.
Presidency, Progressive Presidency
__ Colum. L. Rev. __ (forthcoming 2023-2024)
Katz, Andrea Scoseria and Roseblum, Noah A., "Becoming the Administrator-In-Chief: Myers and the Progressive Presidency" (2023). Scholarship@WashULaw. 22.
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