Amicus Curiae Brief — Seila Law LLC, Petitioner v. Consumer Financial Protection Bureau

Supreme Court briefJan 22, 2020

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No. 19-7

IN THE

Supreme Court of the United States

SEILA LAW LLC,

Petitioner,

CONSUMER FINANCIAL PROTECTION BUREAU,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

BRIEF OF PROFESSORS MARTIN S. LEDERMAN

AND DAVID C. VLADECK AS AMICI CURIAE

IN SUPPORT OF RESPONDENT

MARTIN S. LEDERMAN

Counsel of Record

DAVID C. VLADECK

600 New Jersey Avenue, NW

Washington, D.C. 20001

(202) 662-9937

msl46@georgetown.edu

January 22, 2020

TABLE OF CONTENTS

Table of Authorities .................................................... ii

Interest of the Amici Curiae ....................................... 1

Summary of Argument ............................................... 2

Argument ..................................................................... 4

I. A long and unbroken line of this Court’s

decisions rejects a “general rule” that the

President has an “unrestricted” and

illimitable power to remove principal

executive officers ............................................... 4

A. The limited holding of Myers....................... 5

B. The Court’s long line of cases upholding Congress’ authority to enact removal conditions of this sort ....................... 7

II. There is no basis in the constitutional

text, original understandings, or constitutional history to justify reconsideration

of this Court’s many decisions establishing Congress’ power to enact removal

conditions of this kind .................................... 19

A. Text and Framing ..................................... 20

B. The “Decision of 1789” and Early

Practice....................................................... 21

C. The Take Care Clause and the Executive Vesting Clause .................................... 23

Conclusion .................................................................. 30

(i)

TABLE OF AUTHORITIES

Page(s)

Cases:

Bowsher v. Synar,

478 U.S. 714 (1986) ...................................... 9, 11, 15

Buckley v. Valeo,

424 U.S 1 (1976) (per curiam) ................................ 17

Franchise Tax Board v. Hyatt,

139 S. Ct. 1485 (2019) ............................................ 19

Free Enterprise Fund v. Public Company

Accounting Oversight Bd.,

561 U.S. 477 (2010) ........................................ passim

Humphrey’s Executor v. United States,

295 U.S. 602 (1935) ........................................ passim

Kendall v. United States ex rel. Stokes,

37 U.S. (12 Pet.) 524 (1838) .............................. 25-26

Marbury v. Madison,

5 U.S. (1 Cranch) 137 (1803)............................ 12, 22

Mistretta v. United States,

488 U.S. 361 (1988) .................................... 13, 15, 17

Morrison v. Olson,

487 U.S. 654, 686 ........................................... passim

Myers v. United States,

272 U.S. 52 (1926) .......................................... passim

PHH Corp. v. CFPB,

881 F.3d 75 (D.C. Cir. 2018)

(en banc) ..................................................... 12, 23, 25

United States v. Perkins,

116 U.S. 483 (1886) ...................................... 7, 10, 16

iii

Wiener v. United States,

357 U.S. 349 (1958) ....................... 8-9, 14, 15, 16, 17

Constitutional Provisions:

Art. I, § 8, cl. 18 (Necessary and Proper Clause) ...... 20

Art. II, § 1, cl. 1 (Executive Vesting Clause)..... passim

Art. II, § 2, cl. 1 (Commander in Chief Clause) .. 12, 25

Art. II, § 2, cl. 1 (Opinions Clause)............................ 20

Art. II, § 2, cl. 2 (Appointments Clause) ............. 16, 20

Art. II, § 3 (Take Care Clause) .......................... passim

Statutes and Other Congressional Materials:

12 U.S.C. § 5491(a) ….................................................15

12 U.S.C. § 5491(c)(3) ….....................................4, 5, 13

Act of July 27, 1789, ch. 4, § 1, 1 Stat. 29…..............12

Act of Aug. 7, 1789, ch. 7, § 1, 1 Stat. 50…................12

Act of Sept. 2, 1789, ch. 12, §§ 2,4, 1 Stat. 65-66…...12

Act of Apr. 10, 1816, ch. 44, § 16, 3 Stat. 274…........28

Act of Feb. 25, 1863, ch. 58, 12 Stat. 665-666 ….......22

Act of June 20, 1864, ch. 136, 13 Stat. 140 …...........22

Federal Trade Commission Act, ch. 311,

§ 1, 38 Stat. 718 (1914) ............................................ 4

Attorney General Opinions:

The President and Accounting Offices,

1 Op. Att’y Gen. 624 (1823) .............................. 26, 29

1 Op. Att’y Gen. 624 (1823) ....................................... 26

1 Op. Att’y Gen. 636 (1824) ....................................... 26

2 Op. Att’y Gen. 507 (1832) ....................................... 26

1 Op. Att’y Gen. 678 (1824) .................................. 26-27

1 Op. Att’y Gen. 705 (1825) ....................................... 27

1 Op. Att’y Gen. 706 (1825) ....................................... 27

Power of President to Discontinue a Suit,

2 Op. Att’y Gen. 53 (1827) ...................................... 27

The Jewels of the Princess of Orange,

2 Op. Att’y Gen. 482 (1831) .............................. 27, 29

2 Op. Att’y Gen. 507 (1832) ....................................... 26

2 Op. Att’y Gen. 544 (1832) ....................................... 27

4 Op. Att’y Gen. 515 (1846) ....................................... 27

5 Op. Att’y Gen. 630 (1852) ....................................... 27

11 Op. Att’y Gen. 14 (1864) ....................................... 27

11 Op. Att’y Gen. 129 (1864) ..................................... 27

16 Op. Att’y Gen. 317 (1879) ..................................... 27

18 Op. Att’y Gen. 31 (1884) ....................................... 27

Miscellaneous:

J. David Alvis, Jeremey D. Bailey & F. Flagg

Taylor IV, The Contested Removal Power,

1789-2010 (2013) .................................................... 21

Aditya Bamzai, Taft, Frankfurter, and the First

Presidential For-Cause Removal, 52 U. Rich.

L. Rev. 691 (2018)................................................... 14

Patricia L. Bellia, PCAOB and the Persistence of

the Removal Puzzle, 80 G.W.L. Rev. 1371

(2012) ...................................................................... 18

Edward S. Corwin, Tenure of Office and the Removal Power under the Constitution, 27

Colum. L. Rev. 353 (1927) ...................................... 21

The Federalist No. 39 (C. Rossiter ed. 1961)

(Madison) ................................................................ 20

The Federalist No. 77 (C. Rossiter ed. 1961)

(Hamilton) .............................................................. 20

Harold L. Ickes, “My Twelve Years With

F.D.R.,” Saturday Evening Post, June 5, 1948,

at 15 ........................................................................ 29

Andrew Jackson, “Protest” to the Senate (Apr.

15, 1834), in 3 James D. Richardson, A Compilation of the Messages and Papers of the

Presidents, 1789-1897 (1911) ............................ 28-29

Robert H. Jackson, That Man: An Insider’s Portrait of Franklin D. Roosevelt (J.Q. Barrett ed.

2003) ....................................................................... 29

Marty Lederman, “The Constitutional Challenge to Robert Mueller’s Appointment (Part

IV): Morrison, Edmond, and the DOJ Special

Counsel Regulations,” Just Security (Oct. 31,

2018), https://bit.ly/37ecr2C ................................... 17

Letter from Thomas Jefferson to William Duane

(May 23, 1801), in 8 The Writings of Thomas

Jefferson (P. Ford ed., 1897) .................................. 27

Letter from Thomas Jefferson to Edward Livingston (Nov. 1, 1801), in 8 The Writings of

Thomas Jefferson (P. Ford ed., 1897) ............... 27-28

Letter from Thomas Jefferson to Benjamin

Latrobe (June 2, 1808), in Thomas Jefferson

and the National Capital (Saul K. Padover

ed., 1946) ................................................................ 25

John F. Manning, Separation of Powers as Ordinary Interpretation, 124 Harv. L. Rev. 1939

(2011) ................................................................. 20-21

Saikrishna Prakash, New Light on the Decision

of 1789, 91 Corn. L. Rev. 1021 (2006) .................... 21

Saikrishna Prakash, The Essential Meaning of

Executive Power, 2003 U. Ill. L. Rev. 701

(2003) ...................................................................... 24

Jeanna Smialek, “After Recent Barbs, Trump

Meets Fed Chair Powell For ‘Cordial’ Discussion,” NewYork Times, Nov. 19, 2019, at B4 ......... 29

Kevin M. Stack, The Story of Morrison v. Olson:

The Independent Counsel and Independent

Agencies in Watergate’s Wake, in Presidential

Power Stories 101 (C. Schroeder & C. Bradley, eds., 2009) ......................................................... 9

INTEREST OF AMICI CURIAE1

Amici are professors at the Georgetown University

Law Center who have for many years taught and written on constitutional law, including the relative powers of the President and Congress. Professor Lederman has served as Deputy Assistant Attorney General

in the Department of Justice Office of Legal Counsel

and Professor Vladeck has served as the Director of the

Bureau of Consumer Protection at the Federal Trade

Commission.

1 Under Supreme Court Rule 37.6, amici state that no counsel

for any party authored this brief in whole or in part, and no person other than amici made a monetary contribution to the preparation or submission of this brief. The parties have lodged letters

with the Clerk granting blanket consent to the filing of amicus

curiae briefs.

INTRODUCTION AND

SUMMARY OF ARGUMENT

This Court has never announced a “general

rule” that Article II guarantees the President “unrestricted removal power over principal executive officers.” Resp. Br. 12. Indeed, the principal case on which

the Solicitor General relies, Myers v. United States,

272 U.S. 52 (1926), did not even address, let alone decide, whether and under what circumstances Congress

may narrow the permissible grounds for such removals. By contrast, in a string of at least six cases,

stretching from 1886 through 2010 (including four

cases involving removal restrictions for “principal” officers), the Court has repeatedly confirmed that Congress generally may impose “inefficiency, neglect of

duty, or malfeasance in office” (INM), or “for cause,”

limits on the President’s removal authority.

As the Court has explained, Congress’s power to

impose such limits is not unlimited: There are three

important constraints—but the removal provision in

this case does not implicate any of them.

First, Congress may not reserve for itself or any

of its components a part in the removal process.

Second, the President must retain at-will removal authority for those officials whose principal duties are to act as President’s agents in the service of

his own constitutional functions and other matters

where the law assigns duties to the President himself.

By contrast, where an officer’s duties are to perform

statutory functions Congress has assigned to that office, and where Congress has made clear—as it has

with respect to the Director of the Consumer Finance

Protection Bureau—that the President may not control such officer’s discretionary decision-making

within the proper bounds of the statutory delegation,

then that officer does not act as the President’s “alter

ego” and it is “not essential to the President’s proper

execution of his Article II powers that these agencies

be headed up by individuals who [are] removable at

will.” Morrison v. Olson, 487 U.S. 654, 691 (1988).

Third, the statutory removal conditions must

preserve the President’s ability to “take care” the officers in question faithfully execute the law, see U.S.

Const. Art. II, § 3. The Court has explained, however,

that a removal provision such as the one at issue here

satisfies that constitutional requirement because it ensures the President can remove an officer who violates

the law, refuses to implement it, or abuses her authority.

There is, moreover, no reason based in text,

original understandings, or constitutional history for

the Court to reconsider, or to materially narrow, its decisions establishing Congress’ power to insulate from

presidential control the exercise of most statutory

functions Congress assigns to “independent” agencies

and officers. In particular, this Court has repeatedly

rejected the “unitary executive” argument that would

read the Executive Vesting Clause, Art. II, § 1, to guarantee the President the authority to personally execute all federal laws and the ancillary, indefeasible authority to direct other officials in their execution of

such laws. That “extrapolation from general constitutional language . . . is more than the text will bear,”

Morrison, 487 U.S. at 690 n.29; it was flatly rejected in

a series of Attorney General opinions in the Nineteenth Century; and it is inconsistent with common

practices reaching from the framing to the present

day.

ARGUMENT

I. A long and unbroken line of this Court’s decisions rejects a “general rule” that the President

has an “unrestricted” and illimitable power to

remove principal executive officers.

According to the Government, a pair of this

Court’s decisions establish the parameters of Congress’ authority to regulate the President’s removal

power: In Myers v. United States, 272 U.S. 52 (1926),

the Court purportedly established a “general rule” that

Article II guarantees the President “unrestricted removal power over principal executive officers.” Resp.

Br. 12. And in Humphrey’s Executor v. United States,

295 U.S. 602 (1935), the Court announced “the only exception” to that rule, Resp. Br. at 18—namely, that

Congress can limit the President’s authority to remove

members of a multi-member commission who are not

“purely executive officers,” 295 U.S. at 632, to cases involving “inefficiency, neglect of duty, or malfeasance in

office,” id. at 620 (quoting Federal Trade Commission

Act, ch. 311, § 1, 38 Stat. 718).

In the Government’s telling, then, the question

is whether this Court should “expand[]” the “Humphrey’s Executor exception,” Resp. Br. 26, to agencies

such as the Consumer Finance Protection Bureau

(CFPB), which is administered by a single Director

whom the President may remove only for “inefficiency,

neglect of duty, or malfeasance in office” (INM). 12

U.S.C. § 5491(c)(3).

The constitutionality of the CFPB removal provision does not depend, however, upon expanding any

doctrinal “exception,” both because Myers did not establish the Government’s “general rule” and because

the Government’s account of this Court’s jurisprudence is radically incomplete. In a series of at least a

half-dozen cases, several of which post-date Humphrey’s Executor, this Court has repeatedly reaffirmed

Congress’ broad power to restrict the grounds of removal for Executive officers, including Department

heads, subject to important limits that the statute

here, § 5491(c)(3), does not transgress.

A. The Limited Holding of Myers

Unlike § 5491(c)(3), the statute at issue in Myers

did not regulate the grounds on which the President

could remove a First-Class Postmaster. Rather, the

issue was merely whether Congress could give the

Senate an effective veto over such a removal decision—

”whether . . . the President has the exclusive power of

removing executive officers” who were presidentially

appointed with Senate confirmation. 272 U.S. at 106

(emphasis added). The Court answered “no.” “[T]he

essence of the decision in Myers,” this Court has repeatedly confirmed, “was the judgment that the Constitution prevents Congress from ‘draw[ing] to itself . .

. the power to remove or the right to participate in the

exercise of that power.’” Morrison v. Olson, 487 U.S.

654, 686 (1988) (quoting Myers, 272 U.S. at 261); see

also id. at 687 n.24; Humphrey’s Executor, 295 U.S. at

626.

The Court in Myers did not decide whether the

President has an “unrestricted” power to remove principal executive officers at will (indeed, Myers did not

even involve a principal officer) or whether Congress

can narrow the permissible grounds for such removals.

The source of the Solicitor General’s alleged

“general rule” is therefore not the holding or judgment

in Myers, but a single five-sentence passage in Chief

Justice Taft’s 70-page opinion, see 272 U.S. at 135.

“[B]y virtue of the general grant to him of the executive

power” in Article II, Section 1, Taft wrote, the President may “properly supervise and guide” the conduct

even of officers charged with “ordinary duties … prescribed by statute”—to decide whether such officers

are “intelligently or wisely” exercising their statutory

duties.” Id. at 135. This alleged authority to exercise

“administrative control” over such officers “in order to

secure that unitary and uniform execution of the laws

which Article II of the Constitution evidently contemplated in vesting general executive power in the President alone,” Taft surmised, is a “strong reason[],” id.,

why the President should have an “unrestricted”

power to remove such officers, akin to his uncontested

authority to remove the officers (e.g., the Secretaries

of Defense and State) who assist him in performing his

own constitutional functions, id. at 134.

These remarks were pure dicta, ranging far

from the question the Court resolved in Myers. As the

Court explained just nine years later, they were “beyond the point involved, and, therefore do not come

within the rule of stare decisis.” Humphrey’s Executor,

295 U.S. at 626.

B. The Court’s long line of cases upholding

Congress’ authority to enact removal conditions

of this sort

More importantly, this Court has repeatedly repudiated the “unitary executive” rationale in that Myers paragraph by upholding removal restrictions that

prevent the President from exercising absolute “administrative control” over officers’ execution of their

statutorily assigned functions.

Long before Myers, for instance, in United

States v. Perkins, 116 U.S. 483 (1886), the Court unanimously rejected the Executive’s argument that a law

allowing peacetime removal of military and naval officers only pursuant to a sentence of a court-martial

was an impermissible “infringement upon the constitutional prerogative of the Executive.” Id. at 484. Under the holding in Perkins, if Congress had given the

Postmaster General rather than the President the

power to remove a First-Class Postmaster such as

Frank Myers, it could have “restrict[ed] the power of

removal as it deem[ed] best for the public interest,” id.

(adopting the reasoning of the Court of Claims)—even

though such a statute would afford the President less

control over such officers’ conduct than one that imposed the very same removal restriction but left the

removal power in the President’s own hands. Perkins

cannot be squared with Chief Justice Taft’s dicta in

Myers.

In Humphrey’s Executor itself, in a unanimous

decision joined by four of the six Justices in the Myers

majority, the Court expressly “disapproved” Taft’s “expressions,” 295 U.S. at 626, and upheld a statute permitting the President to remove members of the Federal Trade Commission only for “inefficiency, neglect

of duty, or malfeasance in office”—the very standard

at issue here.

It is true, as the Solicitor General notes (Resp.

Br. 30-31), that one aspect of the Humphrey’s Court’s

rationale—that the FTC Commissioners “occupie[d] no

place in the executive department” and “exercise[d] no

part of the executive power vested by the Constitution

in the President,” id. at 628—was inconsistent with

earlier Court decisions describing similar functions as

executive in nature. When this Court later re-affirmed

the holding of Humphrey’s, it acknowledged that the

removal limit there was constitutional notwithstanding that the FTC Commissioners were in the “executive department” and exercised part of the “executive

power” of the federal government. Morrison, 487 U.S.

at 688-91 & n.28. “[O]ur present considered view,”

wrote Chief Justice Rehnquist, “is that the determination of whether the Constitution allows Congress to

impose a ‘good cause’-type restriction on the President’s power to remove an official cannot be made to

turn on whether or not that official is classified as

‘purely executive.’” Id. at 689.

Although the Morrison Court thereby disclaimed one discrete piece of Justice Sutherland’s reasoning, it unequivocally reaffirmed the most important aspect of Humphrey’s Executor—namely, its

ratification of Congress’ effort to make the FTC “a body

which shall be independent of executive authority except in its selection, and free to exercise its judgment

without the leave or hindrance of any other official or

any department of the government.” 295 U.S. at 62526; accord id. at 628.

Wiener v. United States, 357 U.S. 349 (1958), another unanimous opinion, did likewise. To ensure that

the War Crimes Commission would be “‘entirely free

from the control or coercive influence, direct or indirect,’ of either the Executive or the Congress,” id. at

355-56 (quoting Humphrey’s, 295 U.S. at 629)—an objective directly at odds with Chief Justice Taft’s “unitary executive” dicta—the Court proceeded to imply a

form of tenure-protection that Congress had not expressly prescribed. Justice Frankfurter explained that

such a guarantee was necessary precisely in order to

“preclude[] the President from influencing the Commission” in the performance of its statutory functions,

id. at 356, notwithstanding that the Commissioners’

functions are, from a constitutional perspective, an exercise of the government’s “executive power.”

In Bowsher v. Synar, 478 U.S. 714 (1986), the

Executive Branch once again urged this Court to adopt

a variant of Chief Justice Taft’s unitary executive theory, but the Court “clearly” refused to accept it. Morrison, 487 U.S. at 689 n.26 (citing Bowsher, 478 at 73839 & nn. 1-3 (White, J., dissenting); see also Kevin M.

Stack, The Story of Morrison v. Olson: The Independent Counsel and Independent Agencies in Watergate’s

Wake, in Presidential Power Stories 101, 141-145 (C.

Schroeder & C. Bradley, eds., 2009).

Two years later, in Morrison, a 7-1 majority of

the Court upheld “the good cause” removal provision

for an “independent” criminal prosecutor. 487 U.S. at

663. It was “undeniable” that such tenure protection,

along with other features of the law, “reduce[d] the

amount of control or supervision that the Attorney

General and, through him, the President exercise[d]

over the investigation and prosecution of a certain

class of alleged criminal activity.” Id. at 695. The

Court explained, however, that such a reduction in po-

litical control was a valid and “essential” means of “establish[ing] the necessary independence” Congress intended. Id. at 693.

In his lone dissent, Justice Scalia, like Chief

Justice Taft before him, insisted that because the Executive Vesting Clause, U.S. Const. Art. II, § 1, cl. 1,

affords the President “full control” of “all” executive

powers, 487 U.S. at 709; accord id. at 705, 724 n.4, the

President must have virtually unlimited authority to

remove officers exercising executive functions such as

investigation and prosecution.

The Court, however, specifically rejected that

reading of the Vesting Clause, id. at 690 n.29:

The dissent says that the language of Article II

vesting the executive power of the United States

in the President requires that every officer of

the United States exercising any part of that

power must serve at the pleasure of the President and be removable by him at will. . . . This

rigid demarcation—a demarcation incapable of

being altered by law in the slightest degree, and

applicable to tens of thousands of holders of offices neither known nor foreseen by the Framers—depends upon an extrapolation from general constitutional language which we think is

more than the text will bear. It is also contrary

to our holding in United States v. Perkins, … decided more than a century ago.

Despite rejecting this more categorical reading

of Article II, the Court in Morrison did not hold that

Congress has unlimited power to regulate removals.

Chief Justice Rehnquist, writing for the Court, identified three important limitations.

First, the Court reaffirmed the holding of Myers,

which established that, outside the context of impeachment, Congress may not reserve for itself or any

of its components a part in the removal process. Id. at

685-86 (citing Bowsher, 478 U.S. at 726). This “antiaggrandizement” principal is now well-established.

See Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U.S. 477, 494 n.3 (2010).

Second, Myers “was undoubtedly correct” in its

“suggestion” that some officials “must be removable by

the President at will if he is to be able to accomplish

his constitutional role.” 487 U.S. at 690 (citing 272

U.S. at 132-134) (emphasis added). In the passage of

Myers the Morrison Court approvingly cited, Chief

Justice Taft described officials who act “for” the President as his “subordinates,” in the performance of his

own constitutional functions (such as foreign diplomacy) and in other matters where the President himself “is required by law to exercise authority.” 272 U.S.

at 132-133. In those cases, the officers exercise “not

their own, but [the President’s] discretion.” Id. at 132.

And because such officers “must do his will,” it follows

that the President must be able to remove them “without delay” when “he loses confidence in the intelligence, ability, judgment or loyalty of anyone of them.”

Id. at 134.2 Accord Free Enterprise Fund, 561 U.S. at

2 The Solicitor General overreads this passage of Myers to stand

for the proposition that “[i]n executing the laws” generally, an officer’s “‘discretion to be exercised is that of the President.’’ CFPB

Br. 17 (quoting 272 U.S. at 134). But that is not what Chief Justice Taft wrote in the passage in question, where he was describing only the execution of authorities the Constitution and statutes assign to the President. His discussion of officers “charged

with other duties than those above described”—“[t]he ordinary

513-514 (“as a general matter” the President has “the

authority to remove those who assist him in carrying

out his duties,” without which he “could not be held

fully accountable for discharging his own responsibilities; the buck would stop somewhere else”) (emphasis

added); see also Marbury v. Madison, 5 U.S. (1 Cranch)

137, 165-166 (1803).

So, for example, Congress surely must afford

the President authority to remove the Secretaries of

State and Defense “at will,” for they primarily assist

the President in “accomplish[ing] his constitutional

role[s]” (487 U.S. 690) in foreign diplomacy and as

Commander-in-Chief of the armed forces, U.S. Const.

Art. II, § 2; and in such capacities they must be his

trusted agents.3

duties of officers prescribed by statute”—is in the next paragraph,

id. at 135, containing the “unitary executive” rationale the Court

has specifically rejected in Morrison and in many other cases.

3 So, for example, the First Congress specifically required the

Secretaries of Foreign Affairs and of War to perform such duties

that would be “intrusted” and “assigned” to them by the President—in contrast to the Secretary of the Treasury, to whom Congress assigned specific statutory duties. Compare Act of July 27,

1789, ch. 4, § 1, 1 Stat. 29 (Foreign Affairs), and Act of Aug. 7,

1789, ch. 7, § 1, 1 Stat. 50 (War), with Act of Sept. 2, 1789, ch. 12,

§§ 2,4, 1 Stat. 65-66 (Treasury).

Although the heads of some other Cabinet-level agencies might

not be statutorily required to assist the President in performing

his constitutionally assigned functions, it is arguable that the

President must have broad discretion to remove them, too, by virtue of the expectation that Cabinet members ought to be

“close presidential advisers and allies.” PHH Corp. v. CFPB, 881

F.3d 75, 107 (D.C. Cir. 2018) (en banc). Thankfully this is only a

theoretical question, because Congress has never tried to afford

Cabinet officers tenure protection and is unlikely ever to do so.

By contrast, where an officer’s duties are to perform statutory functions Congress has assigned to that

office, and where Congress has made clear—as it has

with respect to the Director of the CFPB—that the

President may not control such officer’s discretionary

decision-making within the proper bounds of the statutory delegation, then that officer does not act as the

President’s “alter ego.” Myers, 272 U.S. at 133. Therefore it is “not essential to the President’s proper execution of his Article II powers that these agencies be

headed up by individuals who [are] removable at will.”

Morrison, 487 U.S. at 691.

Third, the Court emphasized that because “the

real question is whether the removal restrictions are

of such a nature that they impede the President’s ability to perform his constitutional duty,” id. at 691. Statutory tenure protections must leave the President with

the “means . . . to ensure the ‘faithful execution’ of the

laws” by officers in the Executive branch, id. at 692.

Crucially, however, the Court in Morrison explained that a requirement of “good cause” for removal—which is virtually equivalent to the traditional

“inefficiency, neglect of duty, or malfeasance in office”

criteria at issue in this case4—satisfies this constitutional requirement, even when Congress assigns the

removal power to the Attorney General, rather than to

the President. Such a standard preserves “ample authority” for the President “to assure that the [officer]

4 See Free Enterprise Fund, 561 U.S. at 483 (characterizing the

INM standard in Humphrey’s as a “for good cause” condition);

Mistretta v. United States, 488 U.S. 361, 410 (1988); 12 U.S.C.

5491(c)(3) (removal provision for CFPB Director titled “Removal

for cause”).

is competently performing his or her statutory responsibilities in a manner that comports with the provisions of the Act.” 487 U.S. at 692; see also id. at 693.

The statute at issue here thus ensures that the

President can remove a CFPB Director who is not

faithfully executing the law. If the Director violates or

refuses to implement the law, if she “discharg[es] [it]

improperly,” Free Enterprise Fund, 561 U.S. at 484, or

if she engages in unethical behavior, abuses her authority, or engages in self-dealing, that would surely

satisfy the “inefficiency, neglect of duty, or malfeasance in office” standard and thus justify her removal.5

What the “inefficiency, neglect of duty, or malfeasance in office” standard does not allow is removal

simply because the President would prefer someone

else “of his own choosing,” Wiener, 357 U.S. at 356; because the President believes the officer and himself do

not generally enjoy a sufficient meeting of the minds,

see Humphrey’s Executor, 295 U.S. at 618-619; or

based upon the President’s “simple disagreement with

the [officer’s] policies or priorities,” Free Enterprise

Fund, 561 U.S. at 502. There is no tension between

these limitations and the President’s “take care” duty.6

5 See, e.g., Aditya Bamzai, Taft, Frankfurter, and the First Presidential For-Cause Removal, 52 U. Rich. L. Rev. 691, 747 (2018)

(recounting that President Taft removed a member of the Board

of General Appraisers, subject to an INM provision, based upon a

committee’s finding that he likely misused his authority to compel personal favors and to set precedents for favorable decisions

in cases involving his son).

6 The Court-appointed amicus argues that, if it is necessary in

order to avoid a serious constitutional question, the Court could

construe the INM standard to allow removal “‘for any number [of]

actual or perceived transgressions of the [President’s] will,’” even

These three important limits in Morrison accurately reflect this Court’s well-established understandings of the scope of Congress’ authority to limit

the President’s removal power.

In an effort to dampen Morrison’s precedential

authority, Petitioner (Pet. Br. 21) and the Government

(Resp. Br. 39-40) stress that the independent counsel,

unlike the CFPB Director, was an “inferior officer.”

See 487 U.S. at 691.

The independent counsel, however, was afforded “the vast power and the immense discretion

that are placed in the hands of a prosecutor,” id. at 727

if that might in effect render the Director “subservient” to the

President. Clement Br. 51 (quoting Bowsher, 478 U.S. at 729,

730). We agree with the amicus (id. 53) that this Court need not

and should not settle upon a comprehensive reading of the INM

standard outside the fact-bound context of some future, actual

presidential removal of a Director. We do, however, caution that

such a reading could radically transform the nature and practice

of not only the CFPB but also many other agencies, such as the

Federal Reserve Board, whose officers are subject to similar removal restrictions. Particularly with respect to those “independent” agencies Congress has established in the wake of this Court’s

decisions in cases such as Humphrey’s Executor, Wiener, Morrison, and Free Enterprise Fund—in all of which the Court read

such removal standards to provide robust protection from the removing authority’s coercive influence—it is simply implausible to

assume Congress meant to make such officers “subservient” to

the President’s will. See, e.g., 12 U.S.C. § 5491(a) (establishing

the CFPB as “an independent bureau”). There is no doubt the

modern Congress “specifically crafted” such tenure-protection

provisions “to prevent the President from exercising ‘coercive influence’” over such officials’ exercise of the discretion Congress

conferred upon them. Mistretta v. United States, 488 U.S. 361,

411 (1989) (quoting Humphrey’s Executor, 295 U.S. at 630).

(Scalia, J., dissenting)—a portion of the “executive” authority with far greater potential to impinge upon individual liberty than the CFPB investigation Petitioner here seeks to avoid. See id. at 732 (describing

“[h]ow frightening it must be to have your own independent counsel and staff appointed, with nothing else

to do but to investigate you until investigation is no

longer worthwhile”). Indeed, Alexa Morrison’s authority was far greater than that of the (likewise “inferior”)

officer—First-Class Postmaster Frank Myers—in Myers itself.

The fact that the counsel in Morrison was an

“inferior” officer for purposes of the Appointments

Clause, Art. II, § 2, cl. 2—i.e., that another officer between her and the President, the Attorney General,

was authorized to remove her for “good cause” and to

impose modest constraints on her activity—was legally significant only to the extent it meant that Congress could provide for her appointment by a panel of

Article III judges rather than by the President himself

with the advice and consent of the Senate. See 487

U.S. at 670-677. For purposes of assessing the removal

restriction’s impact on the President’s executive power,

on the other hand, the fact that Morrison was “inferior” to the Attorney General only made matters

worse: it served to insulate her further from the President’s ability to control her conduct than if she had

been a principal officer, appointed and removable by

the President himself.

In any event, Morrison is most significant not

for its particular holding respecting the independent

counsel but for the Court’s re-affirmation of Perkins,

Humphrey’s Executor and Wiener; for the Court’s unequivocal rejection of the “unitary executive” argument

in Myers; and for Chief Justice Rehnquist’s summary

and reformulation of the principles governing the constitutionality of, and limits upon, congressional regulation of the removal power.7

Nor does Morrison stand alone in this Court’s

post-Wiener removal jurisprudence. Two later cases,

both affirming “good cause” restrictions on the removal

of principal officers, confirm its teachings.8

In Mistretta v. United States, 488 U.S. 361

(1989), petitioner argued that Congress violated Article III by giving the President the power to remove federal judges sitting on the Sentencing Commission.

This Court rejected that challenge in large measure

because the statute allowed the President to remove

Commissioners “‘only for neglect of duty or malfeasance in office or for other good cause shown,’” id. at

368—a degree of tenure protection that, “like the removal provisions upheld in [Morrison and Humphrey’s

Executor], is specifically crafted to prevent the President from exercising ‘coercive influence’ over independent agencies,” thereby ensuring that the judges

“would not be subject to coercion even in the exercise

7 Although there was widespread, bipartisan support for Con-

gress’ decision not to renew the independent counsel law on policy

grounds in 1999, it is not the case, as some have suggested, that

a broad consensus has developed within the legal community that

rejects Morrison’s constitutional analysis—particularly not on

the “for cause” removal question. See Marty Lederman, “The

Constitutional Challenge to Robert Mueller’s Appointment (Part

IV): Morrison, Edmond, and the DOJ Special Counsel Regulations,” Just Security (Oct. 31, 2018), https://bit.ly/37ecr2C.

8 See also Buckley v. Valeo, 424 U.S 1, 141 (1976) (per curiam)

(the President “may not insist” that the Federal Election Commissioners be removable at will despite their “significant government dut[ies]”).

of their nonjudicial duties.” Id. at 411.

Finally, in Free Enterprise Fund, the Court held

that Congress could not insulate members of the Public Company Accounting Oversight Board from the

President by two levels of “good cause” tenure protection because such a scheme left the President with insufficient means of ensuring that Board members

would faithfully execute the law. See 561 U.S. at 484,

496, 498.

Significantly, the Court cured the constitutional

infirmity by “striking” the second level of “good cause”

protecting, leaving the agency in the middle of the

chain—the Securities and Exchange Commission—

with at-will authority to remove Board members, even

though the President continued to have only “for

cause” authority to remove SEC Commissioners. Id.

at 508-509. A fortiori this meant that the Court approved the constitutionality of such “for cause” tenure

protection for the principal executive officers on the

SEC itself, a holding consistent with the Humphrey’s/Morrison line of precedents. See Patricia L. Bellia, PCAOB and the Persistence of the Removal Puzzle,

80 G.W.L. Rev. 1371, 1406-1407 (2012). The Court insisted that “[t]he point is not to take issue with forcause limitations in general; we do not do that.” Id. at

501.9

9 The parties draw attention to a single sentence in the closing

section of Free Enterprise Fund stating that the President’s executive power “includes, as a general matter, the authority to remove those who assist him in carrying out his duties.” See Resp.

Br. 9 and Pet Br. 5 (each quoting 561 U.S. at 513-514). That sentence, however, notably refers to officers who assist in carrying

out the President’s duties. It does not, by its terms, describe officers such as the PCAOB members and the CFPB Director, who

****

The constitutionality of the removal provision

governing the CFPB Director thus does not depend

upon an alleged expansion of a narrow “exception” to a

“general rule” that Article II guarantees the President

“unrestricted removal power over principal executive

officers.” The Court has never adopted such a rule;

and no fewer than six of this Court’s decisions—most

of them unanimous or near-so on the removal question—demonstrate that the “inefficiency, neglect of

duty, or malfeasance in office” criteria here are consonant with the President’s “take care” duty and do not

otherwise transgress any constitutional limitations.

II. There is no basis in the constitutional text,

original understandings, or constitutional history to justify reconsideration of this Court’s

many decisions affirming Congress’ power to

enact removal conditions of this kind

Neither the text of the Constitution nor anything “implicit in its structure and supported by historical practice,” Franchise Tax Board v. Hyatt, 139 S.

Ct. 1485, 1499 (2019), offers any basis for calling into

question this Court’s longstanding precedents affirming Congress’ authority to impose substantive removal

conditions such as those at issue here.

perform their own statutory duties rather than assisting the

President in the performance of his obligations. Indeed, if those

sentences had referred to such officers, then the Court’s judgment

would not have cured the constitutional defect, for, even as “severed” by the Court, the Act does not afford the President authority

to remove Board members, let alone to do so without good cause.

A. Text and Framing

Apart from the Opinions and Appointments

Clauses, see Art. II, § 2, cls. 1-2, the Constitution says

virtually nothing about the proper structure and operation of the executive “Departments.” It is thus wellestablished that Congress has broad authority under

the Necessary and Proper Clause, Art. I, § 8, cl. 18, to

prescribe the functions, procedures and tenure of the

officers in those Departments. Accordingly, if “no specific clause speaks directly to the question at issue”—

if congressional regulation of the other branches “neither contradicts an identifiable background understanding of one of the Vesting Clauses nor effectively

reallocates power from its specified branch”—the

Court should be reluctant to set aside Congress’ judgments “by reading abstract notions of the separation of

powers into those otherwise open-ended clauses.”

John F. Manning, Separation of Powers as Ordinary

Interpretation, 124 Harv. L. Rev. 1939, 1948 (2011).

The text of the Constitution is silent on the removal of executive officers, outside the discrete context

of impeachment. Indeed, the framers did not even discuss the subject at the Constitutional Convention, Myers, 272 U.S. at 109-110, and there was little mention

of it during the ratification debates, either, save for

brief statements in Federalist Papers penned by both

Hamilton and Madison suggesting that the President’s

removal power would not be illimitable.10

10 See The Federalist No. 39, p.242 (C. Rossiter ed. 1961) (Mad-

ison) (“The tenure of the ministerial offices generally, will be a

subject of legal regulation, conformably to the reason of the case

and the example of the State constitutions.”); id. p.214 (stating

B. The “Decision of 1789” and Early

Practice

The Government spends several pages describing the congressional “Decision of 1789” (Resp. Br. 1214), and the petitioner even claims (Pet. Br. 18) that

the 1789 Congress “recognized” the “rule” that the

President “must have the power to remove the Director

of the CFPB at will.”

The most the Decision of 1789 might have reflected, however, was that a slight majority of the

House believed the Constitution implicitly affords the

President a presumptive unilateral power to remove

officers he has—and even that much is uncertain. See

Manning, supra, at 1965 n.135 (“The First Congress

was deeply divided on the question, and the implications of the debate, properly understood, were highly

ambiguous and prone to overreading.”); see also id. at

2030-2031.11 The House did not debate, however, let

alone resolve, whether such unilateral presidential removal authority is defeasible by statute, see

Saikrishna Prakash, New Light on the Decision of

1789, 91 Corn. L. Rev. 1021, 1072-1073 (2006).

And, most importantly here, the 1789 Congress

did not discuss whether and how Congress could by

that the government would be administered by, inter alia, people

holding office “during good behavior”); The Federalist No. 77, id.

at 459 (Hamilton) (“The consent of [the Senate] would be necessary to displace, as well as to appoint.”).

11 See generally J. David Alvis, Jeremey D. Bailey & F. Flagg

Taylor IV, The Contested Removal Power, 1789-2010, at 16-47,

103-104, 116-126 (2013).

law limit the permissible grounds for removal. See Edward S. Corwin, Tenure of Office and the Removal

Power under the Constitution, 27 Colum. L. Rev. 353,

379 (1927). Thus, for the next several decades that remained primarily an abstract, “merely speculative

question,” because the bulk of legislation “giving a limited duration to office, recogni[zed] the executive

power of removal, as in full force.” 3 Joseph Story,

Commentaries on the Constitution § 1531, at pp. 389390 (1st ed. 1833). Even so, both Justice Story and Attorney General Wirt tentatively ventured that Congress might have the power to guarantee tenure protection. See id. (“it follows by irresistible inference

[from the Constitution’s protection of tenure in Article

III] that all others must hold their offices during pleasure, unless congress shall have given some other duration to their office”) (emphasis added); 1 Op. Att’y

Gen. 212, 213 (1818) (“Whenever Congress intend a

more permanent tenure, (during good behaviour, for

example), they take care to express that intention

clearly and explicitly . . . .”). And this Court, in Marbury v. Madison, explained that Congress had, in fact,

denied the President the power to remove Justices of

the Peace in the District of Columbia (Article II officers) during their five-year terms. 5 U.S. (1 Cranch) at

162—a proposition necessary to the Court’s conclusion

that Marbury had a legal right to receive his commission. See id. at 155, 164, 167.12

12 It is also noteworthy that President Lincoln later approved

bills conditioning the President’s power to remove the Comptroller of the Currency and consular clerks. See Act of Feb. 25, 1863,

ch. 58, 12 Stat. 665-666 (Senate approval required for removal of

the Comptroller); Act of June 20, 1864, ch. 136, 13 Stat. 140 (allowing removal of clerks only “for cause” reported to Congress).

Accordingly, neither the Constitution’s framing

and ratification, nor the government’s early practice

and understanding, offers any basis for imposing limits on this Court’s many affirmations of Congress’

power to impose removal conditions.

C. The Take Care Clause and the Executive

Vesting Clause

In support of its purported “general rule” that the

President is guaranteed an “unrestricted” removal

power, the Government cites two clauses in Article

II—the Take Care Clause and the Vesting Clause.

Resp. Br. 10; see also Pet. Br. 15-16.

As we have explained, supra at 6-19, this Court

has already determined, in a series of cases culminating in Free Enterprise Fund, that removal limits of the

kind at issue here do not impermissibly impinge upon

the President’s “take care” duty because he remains

fully able to remove officers who are not faithfully executing the law. (The INM removal standard also adequately accounts for Petitioner’s principal functional

concern (e.g., Pet. Br. 26) that the CFPB Director

might engage in “arbitrary decisionmaking”: If the

President believes the Director is acting arbitrarily,

the Act itself allows him to remove her for that reason,

as well.13)

13 Petitioner also argues (Pet. Br. 27) that the single-Director

CFPB “poses [a] greater risk of tyranny” than multi-member commissions. That purely functionalist argument, however, “depends on a series of unsupported leaps,” including that it “treats

a broad purpose of the separation of powers—safeguarding liberty—as if it were a judicially manageable constitutional standard,” which has never been this Court’s practice in reviewing removal restrictions. PHH, 881 F.3d at 105-106. In any event, in

That leaves only the Vesting Clause in Article

II, section 1: “The executive power shall be vested in

a President.” According to the Government, this

clause implies an unrestricted removal power because

“the President must have the ‘power to remove’ principal officers ‘who assist him in carrying out his duties.’”

Resp. Br. at 8 (quoting Free Exercise Fund, 561 U.S. at

513-514).

That assertion is undoubtedly correct as applied

to officers whose functions are predominantly to “assist” the President “in carrying out his duties,” as this

Court affirmed in Morrison. See supra at 10-13. The

same logic does not apply, however, where Congress

has both assigned statutory functions to particular departmental offices and clearly intended to insulate the

exercise of those functions from presidential control

(apart from his obligation to see that the officers faithfully execute the law)—which for more than a century

has been a deeply entrenched and important way in

which Congress has provided for the administration of

many important laws. See Free Enterprise Fund, 561

U.S. at 549-586 (Breyer, J, dissenting) (Apps. A & B).

The “unitary executive” argument depends

upon denying that Congress has the power to prescribe

and ensure such independence. It reads the Vesting

Clause to guarantee the President the authority to

personally execute all federal laws and the ancillary,

indefeasible authority to direct other officials in their

execution of such laws. See, e.g., Saikrishna Prakash, The Essential Meaning of Executive Power, 2003

the unlikely event a Director ever turns “tyrannical,” the Act

would allow a President to replace that officer, in accord with his

“take care” obligation.

U. Ill. L. Rev. 701, 704 (2003) (“the president may execute any federal law by himself, whatever a federal

statute might provide”). On this view, because the

President has the indefeasible constitutional authority

to execute every statute himself, it follows that officers

in the Executive branch are merely his agents—that

the Constitution establishes the President atop an unbreakable “chain of command,” PHH Corp. v. CFPB,

881 F.3d 75, 168 (D.C. Cir. 2018) (en banc) (Kavanaugh, J., dissenting), not only with respect to his

functions as Commander-in-Chief of the Army and

Navy (a form of “unitary” control the text of the Constitution prescribes, see Art. II, § 2, cl. 1), but for all

exercise of executive authority within the federal government, and that in order “[t]o supervise and direct

executive officers, the President must be able to remove those officers at will.” Id.; see also Brief of Amici

Separation of Powers Scholars Calabresi, et al., at 6.

This Court has already rejected this theory of

indefeasible presidential powers of execution and control as “an extrapolation from general constitutional

language” in the Vesting Clause that “is more than the

text will bear.” 487 U.S. at 690 n.29. Indeed, it did so

150 years before Morrison. See Kendall v. United

States ex rel. Stokes, 37 U.S. (12 Pet.) 524, 610 (1838)

(characterizing the unitary-presidential-control argument as an “alarming doctrine,” and explaining that

although the President has the power to direct the discharge of “certain political duties imposed upon many

officers in the Executive Department”—in particular,

duties respecting his own “powers . . . derived from the

Constitution”—“it by no means follows that every officer in every branch of that department is under the

exclusive direction of the President”).14

Many early Attorney Generals likewise rejected

the “unitary control” premises of the Vesting Clause

theory. Attorney General William Wirt explained, in

the first of a series of opinions on that question, that

where Congress has clearly indicated that an officer’s

decision is to be final and conclusive within the Executive branch, the President may not review the “correctness” of the officer’s judgment, let alone execute

the authority himself. The President and Accounting

Offices, 1 Op. Att’y Gen. 624, 625-629 (1823).15 Wirt

reaffirmed this conclusion in several succeeding opinions,16 as did a string of his successors (including in

14 See also Letter from Thomas Jefferson to Benjamin Latrobe

(June 2, 1808), in Thomas Jefferson and the National Capital 429, 431 (Saul K. Padover ed., 1946) (“With the settlement of

the accounts at the Treasury I have no right to interfere in the

least,” because the Comptroller of the Treasury—whose decisions

Congress had designated as “final and conclusive”—“is the sole &

supreme judge for all claims of money against the US. and would

no more receive a direction from me as to his rules of evidence

than one of the judges of the supreme court.”).

15 Professors Calabresi, et al., claim that when Congress declared that the Comptroller’s decision would be “final and conclusive” it was referring only to “the availability of judicial review,

not presidential direction.” Amici Separation of Powers Scholars

Br. 24. That is incorrect, as Attorney General Wirt explained in

another opinion. 1 Op. Att’y Gen. 624, 627 (1823). Accord 2 Op.

Att’y Gen. 507, 509-510 (1832) (Taney).

16 See, e.g., 1 Op. Att’y Gen. 636, 637 (1824) (“the President has

no right to interpose in the settlement of accounts,” “[w]hether

[the Comptroller’s] position be right or wrong”); 1 Op. Att’y Gen.

678, 680 (1824) (because the statute “separated” the accounting

some cases involving decisions by Heads of Departments).17

This does not mean, of course, that early Presidents never directed other executive officers in the performance of their statutory functions: They certainly

did, in situations where Congress had not afforded final decision-making authority to those officers—and,

especially, where the President’s directive was designed to ensure (to “take care”) that the officers acted

within the terms of their authority and otherwise complied with the law.

Attorney General Wirt himself, for instance,

opined that the President could order the discontinuance of a “vexatio[us]” suit in the name of the United

States if it was “wholly unfounded in law.” Power of

President to Discontinue a Suit, 2 Op. Att’y Gen. 53, 54

(1827). Wirt’s successor, Roger Taney, likewise advised that the President could exercise his “take care”

authority to direct a district attorney to discontinue a

condemnation action involving jewels stolen from a

foreign dignitary where the suit was manifestly baseless. The Jewels of the Princess of Orange, 2 Op. Att’y

department from the President’s authority, presidential interference in that department’s settlement of accounts “in any form

would, in my opinion, be illegal”); 1 Op. Att’y Gen. 705 (1825); 1

Op. Att’y Gen. 706 (1825).

17 E.g., 2 Op. Att’y Gen. 507 (1832) (Taney); 2 Op. Att’y Gen.

544 (1832) (Taney); 4 Op. Att’y Gen. 515, 516-518 (1846) (Mason);

5 Op. Att’y Gen. 630, 635-636 (1852) (Crittenden) (citing seven

previous opinions); 11 Op. Att’y Gen. 14 (1864) (Bates); 11 Op.

Att’y Gen. 129, 132-133 (1864) (Speed) (decisions of the Secretary

of the Interior); 16 Op. Att’y Gen. 317, 318-319 (1879) (Devens)

(decisions of the Secretary of the Treasury; citing several earlier

opinions); 18 Op. Att’y Gen. 31 (1884) (Brewster) (decisions of the

Secretary of the Interior).

Gen. 482, 483-484, 487-489 (1831).18 And, famously,

when he entered office President Jefferson ordered district attorneys to enter nolle prosequies in pending Sedition Act prosecutions because Jefferson viewed the

Act as unconstitutional. See, e.g., Letter from Jefferson to William Duane (May 23, 1801), in 8 The Writings of Thomas Jefferson 54, 55 (P. Ford ed., 1897); see

also Letter from Jefferson to Edward Livingston (Nov.

1, 1801), in id. at 57, 58 n.1 (“if [the President] sees a

prosecution put into a train which is not lawful, he

may order it to be discontinued”).

We are unaware, however, of any early case in

which an Attorney General asserted a presidential authority to countermand an officer’s lawful decisions

within the terms of his statutory delegation in cases

where Congress intended to give the officer the final

say.19 Moreover, no one during this period claimed

18 See id. at 491 (explaining that such a directive would be consistent with a statute expressly rendering the District Attorney

“subject to the direction of the executive department”).

19 Andrew Jackson’s dramatic actions in 1833 concerning the

Bank of the United States are not inconsistent with this early

practice. The governing statute required the Government to hold

public funds in the federal bank “unless the Secretary of the

Treasury shall at any time otherwise order and direct.” Act of

Apr. 10, 1816, ch. 44, § 16, 3 Stat. 274. Jackson ordered Treasury

Secretary William Duane to transfer the funds from the national

bank to state banks, but Duane refused to do so. Jackson therefore removed Duane from office, and his replacement as Acting

Secretary, Roger Taney, did as Jackson insisted—a series of

events that led the Senate to formally censure Jackson. Three

things about Jackson’s April 15, 1834 “Protest” to the Senate in

defense of his actions are noteworthy here. See 3 James D. Richardson, A Compilation of the Messages and Papers of the Presidents, 1789-1897, at 1288 (1911). First, Jackson did not argue

that the President has the constitutional authority to

personally execute statutory authorities Congress has

specifically conferred upon another officer. To the contrary, Attorney General Wirt explained that if the

President were to perform such functions “he would

not only be not taking care that the laws were faithfully executed, but he would be violating them himself.” 1 Op. Att’y Gen. at 625; see also 2 Op. Att’y Gen.

at 489 (Taney) (explaining that if the district attorney

refused the President’s order to discontinue the suit,

“the prosecution, while he remained in office, would

still go on” because the President “could only act

through his subordinate officer”).

That baseline understanding has persisted to

the current day.20 There is therefore no historical support for the underlying predicate of the Vesting Clause

that he had the constitutional authority to transfer the funds

himself, as the Vesting Clause thesis would have it. Second, Jackson insisted that the law in question was not properly understood

“as in any way changing the relations between the President and

Secretary of the Treasury, or as placing the latter out of Executive

control even in relation to the deposits of the public money.” Id.

at 1303. In other words, Jackson did not argue that he could disregard the law affording the Secretary authority to make deposit

decisions—instead, he construed it to allow for presidential directives. Third, Jackson actually argued, albeit implausibly, that

Duane had a “legal duty” to pull the funds out of the Bank; that

the Secretary had therefore refused to execute the law; and that

thus Jackson was simply exercising his Take Care duty to ensure

statutory compliance by replacing Duane with Taney. Ibid.

20 Although President Trump, for example, has sharply criti-

cized the Federal Reserve Board’s refusal to lower interest rates

to levels he believes would best serve the nation, he has not purported to direct the Board to lower the rates, and virtually no one

suggests the President has the power to do so himself. See Jeanna

Smialek, “After Recent Barbs, Trump Meets Fed Chair Powell

theory of an illimitable removal power—namely, that

the Constitution affords the President the authority to

personally exercise—and thus to direct the exercise

of—all of “the executive Power.”

For ‘Cordial’ Discussion,” N.Y. Times, Nov. 19, 2019, at B4. See

also Robert H. Jackson, That Man: An Insider’s Portrait of Franklin D. Roosevelt 116-117 (J.Q. Barrett ed. 2003) (recounting how

President Roosevelt could not sell helium to Germany in 1938 because a statute required the approval of Secretary of the Interior

Ickes, who withstood Roosevelt’s pressure to certify); Harold L.

Ickes, “My Twelve Years With F.D.R.,” Saturday Evening Post,

June 5, 1948, at 15, 81-84.

CONCLUSION

For the foregoing reasons, the judgment of the

court of appeals should be affirmed.

Respectfully submitted,