Scholarship@WashULaw

Document Type

Brief

Language

English (en)

Publication Date

2025

Publication Title

Amicus Brief - Supreme Court of the United States Filing

Abstract

In the years since this Court’s decision in Seila Law LLC v. Consumer Financial Protection Bureau, 591 U.S. 197 (2020), legal historians—including originalists—have unearthed a rich body of evidence challenging the conventional wisdom concerning the scope of the President’s removal powers at the Founding. Revisiting not only the Framers’ intellectual influences, but also their driving philosophical concerns and political incentives, this scholarship explains that removal authority was not understood to be vested exclusively in the President as a matter of settled constitutional law, but rather was permissibly exercised by various actors in various ways, intentionally not settled by the text of the Constitution but governed by practical and policy considerations.

To be sure, many early statutes vested removal power in the President. One of the Framers’ greatest fears was “to continue a bad man in office.” The Papers of James Madison, vol. 12, 2 March 1789 – 20 January 1790 and supplement 24 October 1775 – 24 January 1789 at 173-174 (1979). Impeachment was cumbersome, and joint removal of officers by the Senate and the President perhaps more so; but presidential removal was quick, aided by the President’s informational advantages. Thus, while the Founding generation disagreed broadly over what the executive power meant, at least some agreed that, in the President’s hands, the removal power would be most usefully exercised.

As recent scholarship demonstrates, however, this utilitarian approach to removal also explains why some statutes enacted during the Founding era declined to give the President unfettered removal power. Where expansive notions of presidential authority conflicted with the imperatives of good government, early Congresses (uncontroversially) sided with the latter. For example, certain statutes insulated early financial regulators from removal entirely on the grounds that those regulators required stability in their jobs and insulation from political manipulation. Other early statutes vested removal authority in actors other than the President, such as the courts. And for officers involved in the delicate job of managing the money supply—inspecting imports, collecting taxes, coining money, delivering the mail, and others—criminal prosecution was frequently the preferred mode of removal.

Against this backdrop, the late nineteenth-century rise of the modern “administrative state”—marked by the creation of new departments within the Executive Branch, helmed by a new class of executive officers with specialized areas of authority and expertise did not so much upset a tradition of unilateral presidential removal authority as apply the more heterodox set of early American removal practices to a new context. To be sure, the modern capitalist economy brought a proliferation of seemingly new forms of regulation, plus a merit-based civil service. But if Gilded Age Americans were uniquely fixated on officer independence as an antidote to corruption in Washington, the structures and arrangements they put into place to achieve those ends—including statutes that limited the President’s authority to remove—were not new. Rather, these structures were deeply rooted in longstanding American traditions.

Two important conclusions follow from recent scholarship’s understanding of removal at the Founding. First, although the President has always exercised considerable removal power, that power was not unfettered: it was circumscribed by law, including, at times, by the requirement that officials could only be removed for cause. Second, and relatedly, removal has not been treated as a settled feature of executive power emanating from the Constitution; rather, it has functioned as a management tool deployed by Congress to ensure an honest and effective administration. Understood this way, the limits on presidential removal authority that this Court recognized in Humphrey’s Executor v. United States, 295 U.S. 602 (1935), are consistent both with practice stretching back to the Founding and with other decisions from this Court recognizing robust presidential removal authority in certain contexts.

Keywords

Constitutional Law, Presidential Removal Power, Executive Power, Executive Officers, Legal History, Seila Law LLC v. Consumer Financial Protection Bureau, Humphrey’s Executor v. United States

Publication Citation

Brief for Amici Curiae Professor Andrea Scoseria Katz and Professor Jonathan Gienapp in Support of Respondents in Donald J. Trump, President of the United States, et. al., v. Rebecca Kelly Slaughter, et. al. (No. 25-332) (November 14, 2025)

Comments

On Writ of Certiorari before Judgment to the United States Court of Appeals for the District of Columbia Circuit

Download

Share

COinS