At Volokh Conspiracy, Steven Calabresi: Justice Barrett, Trump v. Slaughter, and Presidential Removal Power from 1881 to 1901. From the introduction:
During the oral argument in Trump v. Slaughter, Justice Amy Coney Barrett asked counsel for respondent Slaughter how long independent agencies had existed for and counsel suggested to her, incorrectly, that they dated back to the last twenty years of the 19th Century. In fact, as I will show in a series of posts on this blog, no truly independent agency ever existed prior to the decision in Humphrey’s Executor v. United States in 1935. My full account of the history of presidential resistance to the creation of independent agencies during this period appears in: Steven G. Calabresi & Christopher S. Yoo, The Unitary Executive: Presidential Power from Washington to Bush (Yale University Press 2008). This blog post will discuss presidential removal power from 1881 to 1901. Subsequent posts will examine presidential removal power from 1901 to 2009. None of these posts could have been written by me without consulting and quoting from the excellent work done by my book co-author, Professor Christopher S. Yoo. He gets all the credit, and I take all the blame for whatever is said below.
In recounting our actual practice from 1881 to 1999, I do not mean to endorse the view that this practice is constitutionally relevant to deciding Trump v. Slaughter. I believe that President Trump should win this case because of the original public meaning of the text of the Constitution. I recognize, however, that only two of the nine justices on the current Supreme Court follow exclusively the original public meaning of the Constitution’s text. All the other seven justices on today’s Supreme Court think, to various degrees, that arguments from practice are sometimes relevant to the question of whether Humphrey’s Executor (1935) should be overruled. Since I have co-published the book with Christopher Yoo cited above on our actual practice, and since the issue is now pending before the Supreme Court, I want to explain why the arguments from presidential practice that Christopher Yoo helped me to write about 18 years ago support overruling Humphrey’s Executor (1935). …
RELATED: In the Washington Monthly, Peter Shane, Save Humphrey’s Executor. Save the Supreme Court (Sort Of). The essay is mostly about stare decisis (raising important questions about the relationship between originalism and precedent). On the early history:
A significant part of the Slaughter argument was the significance for constitutional originalists of the Sinking Fund Commission, an administrative body created by the First Congress. Its members included the Chief Justice of the United States and the Vice President, neither of whom could be dismissed from their respective offices. Research by Victoria Nourse of Georgetown Law also shows that multimember commissions that Congress sometimes calls “independent” have a long historical pedigree. As she explains: “From 1789-1840, Congress created dozens of multimember commissions on everything from planning the ‘seat of government,’ to the mint, to patents, to canals, turnpikes, the District of Columbia, bankruptcy commissions, the military, and a whole host of treaty commissions including those related to Indian affairs.” None of these statutes had explicit clauses limiting removability to good cause, which started in 1887 with the Interstate Commerce Commission. But “in some cases, the Founders called these early commissions ‘independent,’ deferred to their judgments as ‘final,’ and demanded that the members be ‘impartial.’” Upholding tenure protection for modern-day multimember bodies respects Congress’s judgment on the value of a historically rooted agency structure that promotes independence and impartiality, qualities seen as essential to fulfilling certain government functions since the founding.
(Via Legal History Blog.)
This seems somewhat weak evidence to me, especially the central reliance on the Sinking Fund Commission, which as I understand it had three of its five members removeable by the President and which could only act by majority vote. I agree with Professor Calabresi that the Interstate Commerce Commission and other practice in the late nineteenth century is not meaningfully relevant to the Constitution’s original understanding, but it might be relevant to the stare decisis argument, depending on one’s theory of stare decisis.
Posted at 6:37 AM