The almost unitary executive

The president is head of the executive branch. But for almost a century, Congress and the Supreme Court have worked to structure executive branch agencies over which the president would have limited power. The Supreme Court this week shifted the balance of power in a direction that promotes political accountability within the executive branch.

The theory of the unitary executive is rooted in Article II of the Constitution: “The executive Power shall be vested in a President of the United States of America.” The executive power isn’t vested in a panoply of unaccountable agency heads, but in a single president. The Supreme Court has been inching toward this conception of a single—unitary—executive for some time. Last week it took a significant step to further solidify this approach. But it held back from going all the way.

The pair of cases just decided involved an attempt by President Trump to fire Federal Trade Commission member Rebecca Slaughter and Federal Reserve Board member Lisa Cook. Slaughter and Cook each sued. Their arguments centered on the fact that Congress had created these agencies and said that the members of the Federal Trade Commission and of the Federal Reserve Board should hold their offices according to specified terms and that the president could not simply fire them at will.

The president’s case focused on the text of the Constitution, which makes the president the head of the executive branch. If there are members of the executive branch who get to hold their office without presidential supervision and with no one having the authority to fire them, then one can reasonably ask: Who really holds the executive power? The president would have some, but apparently not all of it.

This debate about who gets to fire members of the executive branch is almost as old as the Constitution itself. In 1789, just after the new Constitution was enacted, the First Congress debated questions about executive appointment and removal from office, but the issue was not conclusively settled.

Fast forward to the early 20th century, and these issues reached the courts in two landmark decisions that set the terms of debate. President Woodrow Wilson fired Frank Myers, a postmaster in Oregon. Myers sued, and the case reached the Supreme Court. At the Court was the only chief justice who was also a former president—William Howard Taft. Taft wrote the opinion for the Court in Myers v. United States (1926), holding that the president alone had the power to remove, and that Congress’s attempt to restrict the president’s power by making the Senate part of the removal decision was contrary to the Constitution. According to Taft, the Constitution had established the president as the single, unitary head of the executive branch. The executive power was not to be distributed elsewhere. Congress of course could establish executive branch agencies, but it didn’t retain a piece of the executive power to supervise those agencies. Under the Constitution, it was up to the president to “take Care that the Laws be faithfully executed.”

In 1933, the matter came up again as President Franklin D. Roosevelt sought to fire a member of the Federal Trade Commission, William Humphrey. Humphrey refused to leave. He pointed out that the FTC statute only gave the president the ability to remove a commissioner for specified causes—not policy disagreement. So, he said, the president had no authority to fire him. The president said that he did. Humphrey died soon thereafter, but his estate sued to collect the last bit of salary that FDR had stopped paying. When the case reached the Supreme Court, the Court backpedaled from Myers. In Humphrey’s Executor v. United States (1935), the Court held that the president did not have the authority to fire Humphrey because Congress could, at least in some circumstances, create an independent agency—one insulated from the president.

Over the ensuing decades, the presidential ability to hire and fire has been one of the central issues in a debate over the structure of the executive branch and of the administrative state. Defenders of Humphrey’s Executor argued that it was best to give Congress the ability to structure agencies in ways that would insulate them from the vicissitudes of day-to-day politics. Better not to have agencies too accountable to an elected president and instead foster agencies as bastions of expertise and specialization that could remain stable as presidents came and went.

Critics of Humphrey’s Executor responded that an administrative state structured in this way would become disconnected from the accountability of democratic politics. It would be undemocratic and contrary to our constitutional values to have agencies that remained unaffected by the will of the people.

Defenders of Humphrey's Executor replied: The people elect Congress too, and Congress can structure agencies how it wishes. That, too, is democratic accountability. Critics of Humphrey’s Executor had a counterargument: Once Congress establishes an agency and turns it loose operating as an executive branch agency, the political lines of accountability back to Congress are fairly weak. It is more plausible that a president would have an interest and motivation to enforce accountability on an agency going its own way, contrary to the wishes of the public.

At stake, then, in the debate over the legacy of Humphrey’s Executor and presidential control over the firing of administrative officers were deep differences about the nature of American politics, administrative expertise, and accountability.

In recent years, the Supreme Court has, inch by inch, retreated from Humphrey's Executor, making one concession after another to the advocates for more administrative accountability to a single (unitary), democratically selected executive.

In the Slaughter case this week, the Supreme Court formally overruled Humphrey’s Executor. But the Court held back from complete action—for in the Cook case, the Court majority carved out an exception for the Federal Reserve. The Federal Reserve is different and there, at least, the president’s control runs out. What makes it special? The Supreme Court’s majority opinion goes on at some length about the background of monetary and banking policy in the United States, but it stops short of actually explaining what it is about banking policy or monetary policy that gives it a unique constitutional status.

Sure, the Federal Reserve is important. Yes, there may have been consequences in the markets had the Court gone the other way and allowed the president freely to fire members of the Federal Reserve Board. But that’s about all we have to go on. The Court majority in Cook lacked a legal theory explaining the exception.

This important pair of cases has furthered the theory of executive authority and accountability that has become known as the unitary executive. It is an approach that has appealed to Trump but also to most presidents throughout most of American history. Humphrey’s Executor was, after all, about FDR’s authority over the administrative state as he sought to remake and expand it in furtherance of the New Deal.

The most important takeaway here is that politics matters. Elections matter. The Supreme Court’s decisions this week make it harder for the administrative state to escape the effects of electoral change. For all but the Federal Reserve, anyway.