Editors Note: This is the third and final essay in a symposium on the executive removal cases, Trump v. Slaughter and Trump v. Cook. The first essay can be read here and the second essay here.

　　For most court watchers, the blockbuster case of 2026 was the birthright citizenship case, Trump v. Barbara. But for teachers of National Powers cases like myself, the blockbuster was Trump v. Slaughter on the president’s power to remove a member of the Federal Trade Commission. Law professor Steven Calabresi went so far as to call Slaughter “the most consequential and important majority opinion of [Roberts’] tenure as Chief Justice.”

　　Slaughter overturned the landmark 1935 precedent of Humphrey’s Executor v. US, which had insulated FTC commissioners from presidential control. Chief Justice John Roberts’ opinion rejected the old argument that this independent agency’s functions were not “purely executive,” only quasi-executive. In the course of his argument, Chief Justice Roberts marshals a compelling range of evidence from the text, structure, and history of Article II that the executive must be able to fire members of the agency to keep it accountable.

　　Roberts should have laid out even more evidence from the history, in order to better answer the dissent by Justice Sonia Sotomayor and better set the course for future cases on the separation of powers. An excellent historical resource which none of the opinions cite, unfortunately, is Charles Thach Jr.’s Creation of the Presidency, 1775-1789: A Study in Constitutional History. This book has been discussed several times in the pages of Law Liberty, and it deserves to be. It began as Thach’s dissertation from Johns Hopkins University in 1922, and has been reprinted by Liberty Fund in 2007. Let us compare Chief Justice Roberts’s account with Charles Thach’s account of the creation of the presidency as a unitary and accountable executive.

　　The Removal Debate

　　The majority opinion in Slaughter begins its history before the Constitutional Convention takes place in 1787. The American experiment in government began with a bad experience with executives—namely King George III and his royally appointed governors. When the state constitutions were rewritten immediately following independence, almost all of them adopted weak, plural executive branches or none at all. Roberts argues that “unity won out” at the convention over plural executive models due to the negative experiences in state governments during the Articles of Confederation period. In addition, Chief Justice Roberts correctly identifies the following: that Alexander Hamilton, Charles Pinckney, and James Wilson were the members who made the key arguments leading to a unitary executive at the Convention; that General George Washington’s likely role as first president was a consideration; and that Hamilton went on to defend the unitary executive in Federalist #70. Finally, the “Decision of 1789” by Congress to establish executive departments affirmed the president was vested with the power to remove, and it became the accepted precedent (at least up until 1936).

　　Thach fully recounts all of that in his book, but he would perhaps add three additional points to the chief justice’s account.

　　First, Thach would add to the discussion of the Articles of Confederation period. In chapter 3, he describes the Continental Congress’ attempts to execute the laws without an executive branch:

　　Having reached a decision, [the Continental Congress] entrusted its execution to whatever agency seemed at the moment most convenient, perhaps a committee of its own membership, perhaps a state council or convention, perhaps individuals without official status. Such agencies, having carried out the order in question, immediately lapsed. There was neither plan nor organization.

　　These committees for execution ate up Congress’ time, created turf wars, and were ineffective—leading to calls for a national executive branch of some sort. The plural executive model was failing both at the national and state levels, therefore. How to fix the national executive branch, making it both energetic and democratically accountable, was a question left open even in Madison’s Virginia Plan presented at the beginning of the convention.

　　Second, in chapter 4, Thach points out that the key model for the presidency cited during the convention was the New York governorship of George Clinton. That was the one state where a truly unitary model had been tried, and it had worked well, so well that Clinton rival Alexander Hamilton felt compelled to cite him as a paradigm in Federalist #70. It is true that the New York Constitution did not spell out appointment and removal powers for the executive branch, but “[Governor] Clinton’s control of nominations had given him control of the patronage, as was well known to all conversant with New York politics,” writes Thach. Here is another important point: after the convention, arguments made by various participants at the convention are repeated by the defenders of the Constitution, no matter who made them in the summer of 1787.

　　If Chief Justice Roberts had discussed what Thach did about problems of the Articles of Confederation, it might have led him to confront the delegation doctrine head-on.

　　Third, Thach offers a highly nuanced account of the different sides in the Decision of 1789. He points out that eighteen Congressmen involved in the Decision of 1789 had been at the Constitutional Convention themselves—it was virtually the same “political environment.” During the debate, there were four camps, but one can tell by reading the debates that the presidential removal argument won the day—and got the final vote that mattered. Six of the House members present at the convention voted for the bill (Madison, Clymer, Baldwin, Carroll, Fitzsimons, and Gilman), while just two voted against (Sherman and Gerry, a “Grumbletonian”). The fact that several Congressmen were members of the convention is a significant point that Chief Justice Roberts leaves out; the Decision of 1789 gives us insight into the original meaning of Article II. It is not just one Congressional interpretation that could be erased by a later Congress, as it tried to during the Tenure of Office years after Reconstruction. As Chief Justice Taft said in Myers v. US, the Decision of 1789 is “contemporaneous legislative exposition” (272 US 175). And what is especially definitive about the Decision of 1789 is that the Senate renounced the power of removals. Thach writes: “The significance of the [Senate] vote is the greater when it is remembered that instances where a political body voluntarily deprives itself of power are very few in all the history of government.”

　　Lessons for the Future

　　The points from Thach just recounted, and others from his book, would have added a great deal to the Trump v. Slaughter discussion.

　　Chief Justice Roberts would have been able to more decisively answer Justice Sotomayor’s dissent about whether the Decision of 1789 merely decided a “rule against congressional participation in removals” or “a rule against tenure protections.” Of course, Roberts is right that they are “one and the same,” but unless the legislative history of the dissent is countered with a balanced reading of the same history, their objection remains. Justice Sotomayor cites law professor Jed Shugerman, but she just as well could have cited another old and venerable book, Edward Corwin’s The President: Office and Powers:

　　While the decision [of 1789] undoubtedly avoids the direct implication that the President owed the power of removal to a grant by Congress, yet this outcome was brought about by the indispensable aid of those who throughout the debate had championed the doctrine that Congress could determine the question of the scope and location of the removal power in any way it saw fit. … While, therefore, the decision may be fairly considered as ascribing to the President alone the power to remove executive officers, appointed by the consent of the Senate, whom Congress chooses to leave removable by not fixing their terms, it certainly did not establish the proposition of the Myers case that Congress is without power to fix the terms of any executive officers whatever as the President’s power of removal.

　　That is not a fair reading of the Decision of 1789. Recall the second point drawn from Thach: arguments made by various participants at the convention are later repeated by defenders of the Constitution. Even if Madison at the convention may not have viewed removal as vested in Article II, the question was now decided by a ratified Constitution which he supported. Corwin’s reading of the Decision of 1789, first laid out in a 1927 article responding to the Myers decision, offered another bogus parsing of the debate. Corwin claimed: “a mere fraction of a fraction, a minority of a minority, of the House, can be shown to have attributed the removal power to the president on the grounds of executive prerogative.” That is nonsense. Thach rightly focuses on the majority vote; there are many measures voted down in Congress that do not command a majority, and they do not matter to the final text of the law. Additionally, the law voted on with the Decision of 1789 was a liquidation of a clause of the Constitution which had already been written and ratified, not the construction of a new power. Even Corwin admitted there were problems with Humphrey’s Executor: “if a Federal Trade Commissioner is not in the executive department, where is he? In the legislative department; or is he, forsooth, in the uncomfortable halfway station of Mahomet’s coffin, suspended ‘twixt Heaven and Earth?”

　　Lastly, if Chief Justice Roberts had discussed what Thach did about problems of the Articles of Confederation, it might have led him to confront the delegation doctrine head-on, the course suggested by Justice Neil Gorsuch’s concurrence. There is not just a problem of independent agencies unaccountable to the executive—there is a problem of agencies mixing all three functions (an issue I would argue the court dodged in the Federal Reserve case of Trump v. Cook this term). Given the design of the executive branch and the principle of separation of powers, the court ought to return to the non-delegation doctrine and the issues involved in Schechter Poultry. As Justice Gorsuch points out, thanks to delegation, Independent Agencies also have “enormous legislative and judicial powers” they should not have in the form of regulation and adjudication. Those should be returned to the legislative and judicial branches as well.

　　But the Slaughter decision is a good start. By returning to old books on the subject, we discover that arguments about the original meaning of Article II have not changed very much in 100 years. The much stronger argument in favor of a unitary executive is finally being made by justices in the majority other than Chief Justice Taft. It can be further enriched by returning to old and new scholarship (for newer scholarship on the Decision of 1789, I recommend Aditya Bamzai and Saikrishna Prakash; for newer scholarship on removals in the early Presidencies, I recommend Joseph Bessette and Gary Schmitt). If only the Court had paid more attention to Creation of the Presidency, 1775-1789, it might never have gone down the Humphrey’s Executor dead-end road in 1936.