Fourteen men have served as President of the United States since Franklin D. Roosevelt left office, and almost all of them have been imperial presidents in the FDR mode. This is true of Presidents Truman, Eisenhower, Kennedy, Johnson, Reagan, Bush the Elder, Clinton, Bush the Younger, Obama, Trump, Biden, and now Trump again. All of them except for Presidents Carter, Obama, and Biden have endorsed unlimited presidential removal power and/or have read the Vesting Clause of Article I, together with the Take Care Clause as a constitutional grant of the power to execute the laws to the president. Steven G. Calabresi & Christopher S. Yoo, The Unitary Executive: Presidential Power from Washington to Bush (Yale University Press 2008).
In today’s blog post, I will describe the ways in which FDR’s four immediate successors, Presidents Truman, Eisenhower, Kennedy, and Johnson either challenged Humphrey’s Executor and/or insisted that the Vesting Clause of Article II, together with the Take Care Clause, is a grant of the power to execute the laws to the president. In doing this, I rely on my above-cited book with Professor Christopher S. Yoo, who deserves all the credit and none of the blame for this blog post.
President Harry S. Truman began his presidency by dropping atomic bombs on Hiroshima and Nagasaki. It’s hard to believe that fourteen presidents since Truman, each of whom has had the power to blow up the world unilaterally, could not be trusted to fire a Federal Trade Commissioner.
President Truman was famous for having a sign on his desk saying: “The Buck Stops Here,” and he meant it. Truman fired his Secretary of Defense, Louis A. Johnson; his Attorney General, J. Howard McGrath; and, most famously of all, General Douglas MacArthur, who was a national war hero who became insubordinate. “This highly visible removal illustrates dramatically why the removal power is so important for the president if he or she is to be in charge of the executive branch.” Id. at 308.
Truman appealed a Court of Claims case that he won on statutory grounds, the FDR-inherited case of United States v. Lovett, hoping for a ruling from the Supreme Court that a congressional defunding of the salaries of three named state department officials violated unilateral presidential removal power. Truman won the case again in the Supreme Court, but on Bill of Attainder grounds and not the revival of Myers v. United States, which he had sought.
Most dramatically of all, however, President Truman appointed a Commission on Organization of the Executive Branch of the Government that was headed by former President Herbert Hoover, and which became known popularly as the first Hoover Commission. “The Commission’s report called for a ‘clear line of control from the President to [the] departments and agency heads and from him to their subordinates.’ The report elaborated, ‘Responsibility and accountability are impossible without authority—the power to direct. The exercise of authority is impossible without a clear line of command from the top to the bottom, and a return line of responsibility and accountability from the bottom to the top.’ Far from posing a threat to free and responsible government, ‘strength and unity in an executive make clear who is responsible for faults in administration and thus enable the legislature better to enforce accountability to the people.’ … ‘That line of responsibility still exists in constitutional theory, but it has been worn away by administrative practices, by political pressures, and by detailed statutory provisions. Statutory powers often have been vested in subordinate officers in such a way as to deny authority to the President or a department head.” Calabresi & Yoo at 311.
“Therefore, the [Hoover] commission recommended that all agencies be placed within executive departments and that all independent authorities granted to subordinate executive officials by statute or appropriations rider be eliminated. The [Hoover] commission also recommended that Congress not exempt any agencies from the president’s reorganization authority, including in particular the independent regulatory commissions. Furthermore, Congress should not place any limitations based on an agency’s ‘independent exercise of quasi-legislative or quasi-judicial functions.’ Such phrases are ‘too vague and of uncertain meaning’ and would only inhibit the president’s proper control over the executive branch.” Id.
President “Hoover reiterated these recommendations in a letter to the president pro tempore of the Senate, in which he again stated, ‘We must reorganize the executive branch to give it the simplicity of structure, the unity of purpose, and the clear line of executive authority that was originally intended under the Constitution.’
Consistent with these recommendations, Truman asked in 1949 that Congress make the president’s authority to reorganize the government permanent and extend it to cover all governmental agencies, including the independent regulatory commissions. In Truman’s eyes, ‘the new reorganization act should be comprehensive in scope; no agency or function of the executive branch should be exempted from its operation.’” Id. at 312.
In other words, President Truman completely and totally rejected Humphrey’s Executor and, like FDR, with his Brownlow Committee, President Truman, with the backing of former President Hoover, asked Congress to, by statute, allow him to eliminate independent agencies. It is hard to imagine a clearer example of presidential non-acquiescence in Humphrey’s Executor than this.
Truman took other bold steps as president. He issued twice as many signing statements as FDR had issued. And when a labor strike threatened his Korean War effort in April 1952, President Truman unilaterally seized all the steel mills in the country without statutory authority to do so. Truman’s vision of presidential power is best illustrated by quoting his Solicitor General’s brief in a case he would lose, The Steel Seizure Cases (1952), but which would illustrate Truman’s conception of presidential power:
“Section 1 of Article II provides that ‘the executive Power shall be vested in a President of the United States of America.’ In our view, this clause constitutes a grant of all the executive powers of which the government is capable. Remembering that we do not have a parliamentary form of government but rather a tripartite system which contemplates a vigorous executive, it seems plain that Clause 1 of Article II cannot be read as a mere restricted definition which would leave the Chief Executive without ready power to deal with emergencies.” Id. at 315-316.
The brief also cited favorably the Take Care Clause, In re Neagle, and In re Debs. The Supreme Court was right to rule against President Truman in the Steel Seizure Cases, but Truman was right that the Executive Power Vesting Clause is a formidable grant of power indeed, and certainly a grant of the power to remove all Senate-confirmed officers at will except for life tenured Article III judges.
President Truman was a near-great President who won World War II, set up the United Nations, organized the Marshall Plan to help Europe get back on its feet, set up the North Atlantic Treaty Organization (NATO), which still shapes our world today, and who took bold strides toward desegregation by integrating the U.S. Armed Forces and by appointing a key Commission on Civil Rights, which paved the way for the 1964 Civil Rights Act.
But in addition to all these things, President Truman should also be remembered for his first Hoover Commission’s rejection of Humphrey’s Executor. Truman, like FDR before him, did not acquiesce to the power that case created for so-called “independent agencies.”
Former General Dwight D. Eisenhower served as president from 1953 to 1961. He, too, was an advocate of the unitary executive and an opponent of Humphrey’s Executor. Eisenhower was an imperial president who exercised what Fred I. Greenstein has called “hidden hand leadership.” Eisenhower sometimes deliberately garbled his public comments to hide the fact that he was in complete control of his administration. The fact is that Eisenhower made all the policy decisions for the executive branch during his two-term presidency.
Eisenhower “was the first president to confer cabinet status on the director of the Bureau of the Budget—an office of vital importance to the unitary executive that had been created under the Harding administration and been moved to the White House by FDR. It was also during the Eisenhower administration that the Office of Legal Counsel (OLC) was created in the Justice Department. OLC would become a strenuous advocate of presidential power and control over the executive branch and a bulwark of the unitary executive.” Calabresi & Yoo at 319.
“Eisenhower became the first president since Ulysses S. Grant to send troops to the South to protect the civil rights of African Americans.” Id. at 321. Eisenhower’s sending of troops to Little Rock served notice on white southerners that they could not disobey Supreme Court integration judgments.
Eisenhower appointed a second Hoover Commission, headed up by former President Herbert Hoover to object to removal limits of any kind. The second Hoover Commission issued a report that was blistering in its criticisms of removal limitations. The Commission noted that:
”’A judicial proceeding [in removal cases] leads to the worst kind of supervisor-employee relations because it requires the building of a written record and the accumulation of formal evidence sufficient to stand up as a support for the supervisor’s action. It relieves the employee of any necessity for demonstrating his competence and usefulness to his department, and in effect, guarantees him a job unless his supervisor can prove in a formal proceeding that he is incompetent. If the supervisor acts on his best judgment, he normally disciplines or separates an employee as soon as the misconduct occurs or the incompetence is evident. But, if he does so, he may be unable to substantiate his judgment judicially because he has not waited to accumulate documentary evidence.’” Calabresi & Yoo at 322.
“The Eisenhower administration … strongly asserted the unitariness of the executive branch by exerting control over the independent agencies. Here, Eisenhower drew again on the recommendations of the second Hoover Commission and a report by Professor Emmett Redford requested” by the President. Id. Redford’s report said that “‘The President should have responsibility for leadership and guidance of the [independent regulatory] commissions in the development of policies to implement the objectives embodied in law’. Only when the. Authority over the commissions was returned to the president could the president fulfill the ‘constitutional and statutory responsibilities which separately and cumulatively require his attention to many policy aspects of regulation’ as well as the expectancy of people that the President will supply unity and leadership in the execution of the laws.’” Id. at 322-323.
As the discussion above indicates, Republican President Dwight D. Eisenhower was just as emphatic as were his two Democratic predecessors, FDR and Harry. Truman in rejecting Humphrey’s Executor and in declining to acquiesce in it.
“The issue of presidential control over the independent agencies came to a head when Eisenhower removed Myron Wiener and Georgia Lusk after they refused to resign from the War Claims Commission, a body created to provide compensation to persons injured by the enemy during World War II. Eisenhower based his actions solely on the importance of presidential supervision over the execution of federal law, noting that he ‘regard[ed] it as in the national interest to complete the administration of the War Claims Act of 1948 … with personnel of my own selection.
“Wiener brought suit in the Court of Claims to recover the salary he would have been paid had he not been removed. The Court of Claims dismissed this action on the grounds that Congress had not intended to impose any removal restrictions on the removal of war claims commissioners. The issue then proceeded to the Supreme Court. In its brief, the Eisenhower administration defended its actions primarily on unitariness grounds. The brief began its summary-of-argument section by stating:
“‘A constitutional usage which goes back to the very first year in which the Constitution became effective establishes that the President has the unlimited power to remove all the officers of the United States appointed by him ….
“‘The President’s removal power rests essentially on three considerations: first, the canon of construction well known to the Founding Fathers that the power to appoint includes the power to remove; second, the President’s constitutional duty to take care that the laws be faithfully executed—a duty which cannot be performed if the President is unable to control the officers who carry out the laws; and third, the postulate of executive unity—i.e. that the President is the head of the entire executive branch.’” Calabresi & Yoo at 323-324.
By filing this brief, the Eisenhower administration repudiated Humphrey’s Executor in the Supreme Court. Astonishingly, a left-wing New Deal Supreme Court ruled unanimously against President Eisenhower, just as a right-wing pre-New Deal Supreme Court had ruled unanimously against FDR in Humphrey’s Executor.
The bottom line is that President Eisenhower, like President’s Roosevelt and Truman before him, refused to accept Humphrey’s Executor as being good law.
John F. Kennedy (JFK) served as president from 1961 to 1963. He was a strong, charismatic leader like FDR and Truman before him. “From the outset of his administration, Kennedy was determined to exercise full control over the executive branch, illustrated most dramatically by his decision to appoint his brother Robert to the post of attorney general.” Calabresi & Yoo at 331. Imagine how opponents of current President Donald Trump’s politicization of the Justice Department would react today if Trump appointed one of his siblings or children to be Attorney General.
“The most prominent removal during the Kennedy administration was of Undersecretary of State Chester Bowles in which ‘ideology and personal displeasure’ both played a role…. Kennedy’s dynamism led him to exert his power over the execution of federal laws to the fullest. For example, Kennedy followed the practice of FDR, Truman, and Eisenhower by issuing executive orders requiring all federal officers and government contractors not to discriminate on the basis of race, color, creed, or national origin. This nondiscrimination mandate was now to be enforced by the newly created President’s Committee on Equal Employment Opportunity. Kennedy’s nondiscrimination orders exceeded the scope of previous orders by requiring that all government contractors undertake ‘affirmative action to ensure that all applicants are employed, and that employees are treated during their employment, without regard to. Race, creed, color, or national origin.’ In issuing these orders, Kennedy returned to the practice followed by FDR and Truman and based the orders on ‘the authority vested in the President by the Constitution and statutes.’ The comptroller general acknowledged, ‘In this instance the Executive order is not based on any Congressional directive. The authority to issue the order must, therefore, stem from the general executive power under Article II of the Constitution.’ The attorney general concurred, claiming that Congress’s failure to object to presidential nondiscrimination orders meant that Congress had acquiesced in the president’s power to issue such orders.” Calabresi & Yoo at 332-333. “Kennedy’s dramatic exercises of presidential power even included his decision to create “the Peace Corps … by executive order and [to fund] it without any appropriations.” Id. at 333.
“Kennedy also made clear that he thought that his power to control the executive branch extended to the independent agencies when he included them in his executive order imposing ethical standards on conflict of interest and ex parte communications.” Id. at 334. Kennedy asked former New Dealer and Harvard Law School Dean, James Landis, “to prepare a report on the independent agencies. Landis concluded, among other things, that the lack of effective interagency coordination was inhibiting federal policy development. Calling the. Distinction between independent and executive agencies ‘meaningless,’ Landis recognized that the president’s ‘constitutional duty to see that the laws are faithfully executed [was] applicable to the execution of laws entrusted to regulatory agencies, whether technically ‘independent’ or not.” Id.
“Armed with Landis’s report, Kennedy strongly asserted his control over the independent agencies. The chairmen of all the commissions except the Federal Reserve Board submitted their resignations …. Kennedy also sent a message to Congress entitled ‘Regulatory Agencies’, calling for greater presidential oversight of the commissions. Kennedy backed up his rhetoric by impressing upon his nominees the importance of national policy coordination. He further expressed the hope that his appointees would follow the declared policies of his administration by conducting numerous policy studies and conferences to guide commission decisionmaking and by requiring that the commissions send him monthly reports. Moreover, Solicitor General Archibald Cox refused to let the Federal Trade Commission present its own views to the Supreme Court. Clearly, Kennedy did not acquiesce in the supposed ‘independence’ of the independent agencies.” Id. at 335.
“Despite its brevity, the Kennedy administration emerges as a steady defender of presidential prerogatives. Kennedy’s dominance over his cabinet, his executive orders on civil rights [based on a constitutionally granted power to execute the laws], his claims of supervisory authority over the independent agencies, and his eventual determination to oppose the legislative veto place him squarely in the unitary executive camp.” Id. at 336.
Like Franklin D. Roosevelt, Harry S. Truman, and Dwight D. Eisenhower, President John F. Kennedy made it clear that he thought that Humphrey’s Executor was wrongly decided and needed to be worked around.
Lyndon B. Johnson (LBJ) was president from 1963 to 1969, and he followed the lead of his four predecessors. “Anyone familiar with Lyndon Johnson’s legendary personality would have little doubt that he would be a strong chief executive.” Calabresi & Yoo at 337.
Lyndon “Johnson … issued … general directives to the executive officers, such as his order to continue the antidiscrimination and affirmative action programs begun during the Kennedy administration. [LBJ] expanded the Kennedy administration’s program in two significant ways. First, it applied the antidiscrimination prohibitions to all of a contractors’ activities during the performance of a contract, not just those activities connected with the contract. Second, it expanded the program to include sex discrimination as well. Like Kennedy, Johnson did not rely upon his defense or procurement powers as the basis for his actions, nor did he rely upon the newly enacted Civil Rights Acct of 1964. Instead, Johnson followed Kennedy’s example and simply invoked ‘the authority vested in [him] as President of the United States by the Constitution and statutes of the United States.” Id. at 341.
Johnson’s use in his affirmative action executive order of quotas was argued by some to violate the color-blindness requirements of the Civil Rights Act of 1964. LBJ blew right by these complaints and pioneered what would eventually become quota-based affirmative action. Johnson also (1) began using the Bureau of the Budget to oversee and control agency regulations; (2) strongly exerted his political power to cow the independent agencies into following his policies; and (3) made creative use of presidential signing statements.
In sum, President Lyndon Johnson was a very domineering man who bent the independent agencies to his will. There was no acquiescence in Humphrey’s Executor during the presidency of Lyndon Johnson.
When LBJ left office in 1969, 34 years had passed since the Supreme Court’s 1935 decision in Humphrey’s Executor. No president in this one third of a century meekly acquiesced in Humphrey’s Executor, and four Presidents appointed committees urging the rejection of that case. FDR’s Brownlow Committee, Harry Truman’s first Hoover Commission, Dwight Eisenhower’s second Hoover Commission, and John F. Kennedy’s report from former Harvard Law Dean James Landis all denounced Humphrey’s Executor to one degree or another.
