Amicus Curiae Brief — Donald J. Trump, President of the United States, et al., Petitioners v. Rebecca Kelly Slaughter

Supreme Court briefNov 14, 2025

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No. 25-332

IN THE

Supreme Court of the United States

DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES,

ET AL.,

Petitioners,

REBECCA KELLY SLAUGHTER, ET AL.,

Respondents.

On Writ of Certiorari Before Judgment to the United States

Court of Appeals for the District of Columbia Circuit

BRIEF OF CONSTITUTIONAL ACCOUNTABILITY

CENTER AS AMICUS CURIAE IN

SUPPORT OF RESPONDENTS

ELIZABETH B. WYDRA

BRIANNE J. GOROD*

BRIAN R. FRAZELLE

SMITA GHOSH

MICHELLE D. BERGER

CONSTITUTIONAL

ACCOUNTABILITY CENTER

1730 Rhode Island Ave. NW

Suite 1200

Washington, D.C. 20036

(202) 296-6889

brianne@theusconstitution.org

Counsel for Amicus Curiae

November 14, 2025

* Counsel of Record

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................................

INTEREST OF AMICUS CURIAE ......................

INTRODUCTION AND SUMMARY OF

ARGUMENT ......................................................

ARGUMENT .........................................................

Historical Practice Can Liquidate

Constitutional Meaning ..........................

II.

Presidential Removal Authority Was

Ambiguous at the Founding and

Settled Through Historical Practice ....

Removal Authority Was

Uncertain at the Founding ............

Presidential Removal Was

Established by Practice ..................

The President’s Established

Removal Authority Is Compatible

with Good-Cause Tenure for

Multimember Agencies ...................

III. Historical Practice Has Also Settled

the Legitimacy of Multimember

Independent Agencies .............................

Multimember Independent

Agencies Have Wielded Executive

Power for Most of the Nation’s

History ...............................................

The Executive Branch Has

Enabled and Acquiesced in this

Historical Practice ...........................

CONCLUSION .....................................................

(i)

TABLE OF AUTHORITIES

Page(s)

Cases

Chiafalo v. Washington,

591 U.S. 578 (2020) .....................................

6, 29

City of Arlington v. FCC,

569 U.S. 290 (2013) .....................................

Dames & Moore v. Regan,

453 U.S. 654 (1981) ................................... 6, 27, 28

Ex parte Grossman,

267 U.S. 87 (1925) .......................................

Exxon Mobil Corp. v. Allapattah Servs., Inc.,

545 U.S. 546 (2005) .....................................

Grisar v. McDowell,

73 U.S. 363 (1867) .......................................

6, 27

Ill. Cent. R.R. Co. v. ICC,

206 U.S. 441 (1907) .....................................

In re Hennen,

38 U.S. 230 (1839) ............... 3, 4, 12, 16, 18, 20, 21

INS v. Chadha,

462 U.S. 919 (1983) .....................................

2, 10

Houston Cmty. Coll. Sys. v. Wilson,

595 U.S. 468 (2022) .....................................

2, 7

Humphrey’s Ex’r v. United States,

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

2, 24

iii

TABLE OF AUTHORITIES – cont’d

Page(s)

Martin v. Hunter’s Lessee,

14 U.S. 304 (1816) .......................................

McCulloch v. Maryland,

17 U.S. 316 (1819) .................................. 2, 3, 9, 11

McPherson v. Blacker,

146 U.S. 1 (1892) .........................................

4, 11

Mistretta v. United States,

488 U.S. 361 (1989) ............................... 6, 9, 27, 29

Myers v. United States,

272 U.S. 52 (1926) ........... 12, 13, 14, 18, 20, 23, 28

NLRB v. Noel Canning,

573 U.S. 513 (2014) ............................. 2, 3, 7, 9, 29

N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen,

597 U.S. 1 (2022) .........................................

3, 15

PHH Corp. v. CFPB,

881 F.3d 75 (D.C. Cir. 2018) ...................... 5, 25, 26

The Pocket Veto Case,

279 U.S. 655 (1929) ................................. 6, 7, 9, 26

Reynolds v. Bussier,

5 Serg. & Rawle 451 (Pa. 1820) ..................

Seila Law LLC v. CFPB,

591 U.S. 197 (2020) .....................................

5, 23

Stuart v. Laird,

5 U.S. 299 (1803) .........................................

TABLE OF AUTHORITIES – cont’d

Page(s)

Trump v. Mazars USA, LLP,

591 U.S. 848 (2020) .....................................

2, 7

United States v. Curtiss-Wright Exp. Corp.,

299 U.S. 304 (1936) ....................................

5, 25

United States v. Midwest Oil Co.,

236 U.S. 459 (1915) ........................ 6, 25, 26, 28, 29

United States v. Perkins,

116 U.S. 483 (1886) .....................................

United States v. Rahimi,

602 U.S. 680 (2024) .....................................

9, 15

U.S. ex rel. Goodrich v. Guthrie,

58 U.S. 284 (1854) .......................................

Zivotofsky v. Kerry,

576 U.S. 1 (2015) ......................................... 6, 7, 29

Constitutional Provisions

U.S. Const. art. I, § 8, cl. 18 ...........................

U.S. Const. art. II, § 2, cl. 1 ...........................

U.S. Const. art. II, § 2, cl. 2 ...........................

U.S. Const. art. II, § 3 ....................................

Statutes

Act of Sept. 4, 1789, ch. 20, 1 Stat. 73 .......

Act of Feb. 27, 1801, ch. 15, 2 Stat. 103 ....

TABLE OF AUTHORITIES – cont’d

Page(s)

Act of May 15, 1820, ch. 102, 3 Stat. 582 ......

Act of July 2, 1836, ch. 270, 5 Stat. 80 ..........

Act of Feb. 24, 1855, ch. 122, 10 Stat. 612 ....

Act of June 3, 1864, ch. 106, 13 Stat. 99 .......

Act of July 13, 1866, ch. 176, 14 Stat. 90 ......

Act of Mar. 2, 1867, ch. 154, 14 Stat. 430 .....

Act of Feb. 4, 1887, ch. 104, 24 Stat. 379 .. 22, 23, 25

Act of Mar. 3, 1887, ch. 353, 24 Stat. 500 .....

Act of Mar. 2, 1889, ch. 382, 25 Stat. 855 .....

Act of June 10, 1890, ch. 407, 26 Stat. 131 ... 23, 25

Act of June 29, 1906, ch. 3591, 34 Stat. 584 .

Act of June 4, 1935, Pub. L. No. 74-89,

ch. 168, 49 Stat. 321 .................................... 18, 25

Acquisition of Foreign Evidence

Improvements Act of 1984, Pub. L. No.

98-473, 98 Stat. 1837 ...................................

Atomic Energy Act, ch. 23, 60 Stat. 755

(1946) ...........................................................

Clean Air Act Amendments of 1990, Pub. L.

No. 101-549, 104 Stat. 2399 .......................

TABLE OF AUTHORITIES – cont’d

Page(s)

Consumer Product Safety Act of 1972, Pub.

L. No. 92-573, 86 Stat. 1207........................

Department of Energy Organization Act of

1977, Pub. L. No. 95-91, 91 Stat. 565 .........

Department of Transportation Act of 1966,

Pub. L. No. 89-670, 80 Stat. 932 .................

Energy Reorganization Act of 1974, Pub. L.

No. 93-438, 88 Stat. 1233 ............................

Federal Trade Commission Act of 1914,

Pub. L. No. 63-203, 38 Stat. 717 .................

ICC Termination Act of 1995, Pub. L. No.

104-88, 109 Stat. 803 ...................................

National Labor Relations Act of 1935,

ch. 372, 49 Stat. 449 ....................................

Reorganization Plan No. 7 of 1961, 75 Stat.

840 ................................................................

Legislative Materials

1 Annals of Cong. (1789) ................ 13, 16, 17, 19, 30

11 Annals of Cong. (1802) .............................

28 Annals of Cong. (1815) ..............................

1, 8

Records of the Federal Convention of 1787

(Max Farrand ed., 1911) .............................

13-15

11 Reg. Deb. (1835) ........................................

vii

TABLE OF AUTHORITIES – cont’d

Page(s)

Books, Articles, and Other Authorities

Aditya Bamzai, Taft, Frankfurter, and the

First Presidential For-Cause Removal, 52

U. Rich. L. Rev. 691 (2018) .........................

5, 24

Aditya Bamzai & Saikrishna Bangalore

Prakash, The Executive Power of Removal,

136 Harv. L. Rev. 1756 (2023) .......... 13, 15, 19, 22

Aditya Bamzai & Saikrishna Bangalore

Prakash, How to Think About the Removal

Power, 110 Va. L. Rev. Online 159 (2024) .. 12, 13

Aditya Bamzai & Peter M. Shane, The

Removal Question: A Timeline and

Summary of the Legal Arguments,

78 Stan. L. Rev. 64 (2025) .............. 3, 11, 14, 18, 19

William Baude, Constitutional Liquidation,

71 Stan. L. Rev. 1 (2019) ..................... 3, 10, 12, 30

Daniel D. Birk, Interrogating the Historical

Basis for a Unitary Executive, 73 Stan. L.

Rev. 175 (2021) ............................................

Curtis A. Bradley & Trevor W. Morrison,

Historical Gloss and the Separation of

Powers, 126 Harv. L. Rev. 411

(2012) .................................................. 10, 11, 28-30

Marshall J. Breger & Gary J. Edles,

Established by Practice: The Theory and

Operation of Independent Federal Agencies,

52 Admin. L. Rev. 1111 (2000) ....................

viii

TABLE OF AUTHORITIES – cont’d

Page(s)

Thomas M. Cooley, Constitutional

Limitations (4th ed. 1878) ...........................

Thomas M. Cooley, General Principles of

Constitutional Law (1880) ..........................

2, 9

David P. Currie, The Constitution in

Congress: The First Congress and the

Structure of Government, 1789–1791, 2

U. Chi. L. Sch. Roundtable 161 (1995) .......

Richard H. Fallon Jr., The Many and

Varied Roles of History in Constitutional

Adjudication, 90 Notre Dame L. Rev. 1753

(2015) ...........................................................

The Federalist Papers (Clinton Rossiter

ed., 1961) .......................................... 3, 7, 12, 14, 15

Jonathan Gienapp, Removal and the

Changing Debate over Executive Power

at the Founding, 63 Am. J. Legal Hist. 229

(2023) ...........................................................

Philip A. Hamburger, The Constitution’s

Accommodation of Social Change, 88 Mich.

L. Rev. 239 (1989) ........................................

Alexander Hamilton, The Examination

No. XVII (Mar. 20, 1802) .............................

James Hart, The American Presidency in

Action: 1789 (1948) .....................................

TABLE OF AUTHORITIES – cont’d

Page(s)

James Kent, Commentaries on American

Law 290 (1826) .................................... 4, 16, 19, 21

Letter from James Madison to Moses Dawson

(Feb. 20, 1836) .......................................

2, 8

Letter from James Madison to Martin L.

Hurlbut (May 1830) ....................................

7, 10

Letter from James Madison to Lafayette

(Nov. 1826) .............................................. 2, 8, 10, 30

Letter from James Madison to Spencer Roane

(Sept. 2, 1819) ..............................................

7, 8

Christopher N. May, Presidential Defiance of

Unconstitutional Laws: Reviving the Royal

Prerogative, 21 Hastings Const. L.Q. 865

(1994) ...........................................................

Michael W. McConnell, Time, Institutions,

and Interpretation, 95 B.U. L. Rev. 1745

(2015) ......................................................... 8, 10, 11

Caleb Nelson, Must Administrative Officers

Serve at the President’s Pleasure?, The

Democracy Project (Sept. 29, 2025) ............ 12, 18

Caleb Nelson, Originalism and Interpretive

Conventions, 70 U. Chi. L. Rev. 519

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

10 Op. Att’y Gen. 356 (1862)..........................

18 Op. O.L.C. 232 (1994)................................

TABLE OF AUTHORITIES – cont’d

Page(s)

Saikrishna Prakash, New Light on the

Decision of 1789, 91 Cornell L. Rev.

1021 (2006) .......................................... 4, 18, 20, 21

Presidential Statement on Signing Bill

Amending Clean Air Act, 26 Weekly Comp.

Pres. Doc. 1824 (Nov. 15, 1990) ..................

Jed H. Shugerman, Movement on Removal:

An Emerging Consensus about the First

Congress and Presidential Power, 63 Am.

J. Legal Hist. 258 (2023) .............................

Joseph Story, Commentaries on the

Constitution of the United States

(1833) ...................................... 1, 3, 4, 15, 16, 19-21

White House Historical Association, When

Was Electricity First Installed at the White

House? ..........................................................

Ilan Wurman, The Removal Power: A Critical

Guide, 2019–2020 Cato Sup. Ct. Review

157 .............................................................. 4, 12, 17

INTEREST OF AMICUS CURIAE1

Constitutional Accountability Center (CAC) is a

think tank and public interest law firm dedicated to

fulfilling the progressive promise of the Constitution’s

text and history. CAC has a strong interest in ensuring that the Constitution is interpreted in accordance

with its text and history and therefore has an interest

in this case.

INTRODUCTION AND

SUMMARY OF ARGUMENT

Joseph Story believed the Decision of 1789 was

likely wrong—an “unjustifiable construction of the

constitution” that was “dangerous” to the nation’s

“liberties.” 3 Commentaries on the Constitution of the

United States 390-91 (1833). “The public, however, acquiesced in this decision,” and so regardless of any

“aberration from the true constitutional exposition of

the power of removal,” it would “be difficult … after

forty years’ experience, to recall the practice to the correct theory.” Id. at 395, 397.

James Madison, an advocate of presidential removal, believed the Bank of the United States was unconstitutional. But despite leading that charge in Congress, he recognized as President that his personal

views had been “precluded … by repeated recognitions

under varied circumstances of [the Bank’s] validity.”

28 Annals of Cong. 189 (1815). The “reiterated sanctions” that the elected branches had given the Bank,

for “a long period of time,” represented “a construction

1 No counsel for a party authored this brief in whole or in part,

and no counsel or party made a monetary contribution intended

to fund its preparation or submission. No person other than amicus or its counsel made a monetary contribution to its preparation

or submission.

put on the Constitution by the Nation.” Letter from

James Madison to Lafayette (Nov. 1826).

In short, “Madison and other prominent founders

did not consider the Constitution’s meaning to be fully

settled at the moment it was written” but “expected

subsequent practice to liquidate [its] indeterminacy.”

Caleb Nelson, Originalism and Interpretive Conventions, 70 U. Chi. L. Rev. 519, 521, 547 (2003). A longcontinued practice of the elected branches could therefore represent a “decision of the Nation” sufficient to

“over-rule individual opinions.” Letter from James

Madison to Moses Dawson (Feb. 20, 1836).

This Court’s decisions “have continually confirmed

Madison’s view,” NLRB v. Noel Canning, 573 U.S. 513,

525 (2014), reflecting the principle that historical practice should be judicially overturned only if “plainly in

violation of the Constitution,” Thomas M. Cooley, General Principles of Constitutional Law 140 (1880); e.g.,

INS v. Chadha, 462 U.S. 919, 945 (1983) (rejecting

practice that violated “unambiguous provisions of the

Constitution”). Thus, this Court has always given

“great weight” to “longstanding practice” in separation-of-powers disputes, Trump v. Mazars USA, LLP,

591 U.S. 848, 862 (2020) (quotation marks omitted),

recognizing that “a regular course of practice” can “liquidate our founding document’s terms,” Houston

Cmty. Coll. Sys. v. Wilson, 595 U.S. 468, 474 (2022)

(quotation marks omitted). When faced with a “doubtful question,” “on which human reason may pause,”

historical practice can “put at rest” the Constitution’s

meaning. McCulloch v. Maryland, 17 U.S. 316, 401

(1819).

Those principles resolve this case, even if Humphrey’s Executor v. United States, 295 U.S. 602 (1935),

had never been decided. Constitutional liquidation requires “an ambiguous text and a clear historical

practice.” Noel Canning, 573 U.S. at 613 (Scalia, J.,

concurring in the judgment). Both are unquestionably

present here.

It is hard to imagine a more “doubtful” question,

McCulloch, 17 U.S. at 401, than the scope of presidential removal authority, “one of the oldest constitutional

debates in American law,” Aditya Bamzai & Peter M.

Shane, The Removal Question: A Timeline and Summary of the Legal Arguments, 78 Stan. L. Rev. 64, 64

(2025). The Constitution’s silence on this question provoked “a great diversity of opinion” after Ratification,

In re Hennen, 38 U.S. 230, 259 (1839), including “four

competing positions” in Congress, William Baude,

Constitutional Liquidation, 71 Stan. L. Rev. 1, 59

(2019), three of which stubbornly divided the legislators even after long debate.

The very need for the Decision of 1789, and the

wide disagreement it produced, illustrates the Constitution’s ambiguity on removal. The Constitution’s

meaning generally is “fixed according to the understandings of those who ratified it.” N.Y. State Rifle &

Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1, 28 (2022). But

the text is silent on removal authority, removal was

not an essential attribute of the executive’s power in

England or the states, and the topic was not discussed

in Philadelphia or the ratifying conventions. The Federalist proclaimed that Senate consent would be required to remove, meaning that each new administration “would not occasion so violent or so general a revolution in the officers of the government as might [otherwise] be expected.” The Federalist No. 77, at 459

(Clinton Rossiter ed., 1961) (Alexander Hamilton).

Those assurances helped “quiet the just alarms” about

an “arbitrary exercise of this prerogative of the executive.” 3 Story, supra, at 390. That Hamilton and Madison changed their positions in 1789 underscores that

presidential removal was a post-Ratification development, not an aspect of original public meaning.

The scope of presidential removal authority was

thus a point of “ambiguity or doubt” at Ratification.

McPherson v. Blacker, 146 U.S. 1, 27 (1892). And even

the result of the 1789 debate “is open to conflicting interpretations.” Ilan Wurman, The Removal Power: A

Critical Guide, 2019–2020 Cato Sup. Ct. Review 157,

158. Inherent presidential authority became accepted

after 1789 through the “practice of government,”

1 James Kent, Commentaries on American Law 290

(1826), including subsequent legislation, executive

practice, and “general acquiescence and silence” over

the next several decades, 3 Story, supra, at 395.

Moreover, because the 1789 debate focused only on

where removal power was lodged, it did not address

whether Congress could “modify or abridge” this

power. Saikrishna Prakash, New Light on the Decision

of 1789, 91 Cornell L. Rev. 1021, 1052 (2006). Accordingly, even after the acceptance of presidential removal as a “practical construction” of the Constitution,

Hennen, 38 U.S. at 259, it remained “speculative”

whether Congress could forbid removals entirely for

particular offices, 3 Story, supra, at 389, not to mention take the lesser step of requiring good cause. Nothing in the established practice that developed in this

era precluded Congress from limiting the causes of removal in that way. Demonstrating the point, at the

very historical moment that the elected branches recommitted to the Decision of 1789 by repealing the

Tenure of Office Act, in 1887, they also enacted the Interstate Commerce Commission’s good-cause removal

conditions. No one saw a contradiction.

Multimember agencies with good-cause tenure

thus have existed for most of the nation’s history.

They have been part of our government for longer than

the light bulb.2 Well before the FTC’s creation, they

numbered among “the most powerful entities within

the federal government.” Aditya Bamzai, Taft, Frankfurter, and the First Presidential For-Cause Removal,

52 U. Rich. L. Rev. 691, 695 (2018). For 150 years,

these agencies have wielded “significant executive

power.” Seila Law LLC v. CFPB, 591 U.S. 197, 204

(2020). This “legislative practice … marked by the

movement of a steady stream for a century and a half”

signals an “unassailable ground for the constitutionality of the practice.” United States v. Curtiss-Wright

Exp. Corp., 299 U.S. 304, 327-28 (1936).

Both of the elected branches have long contributed

to this historical practice. Very little unites Presidents

Grover Cleveland, Benjamin Harrison, Woodrow Wilson, Franklin D. Roosevelt, Harry Truman, John F.

Kennedy, Lyndon Johnson, Richard Nixon, Gerald

Ford, Jimmy Carter, Ronald Reagan, George H.W.

Bush, and Bill Clinton. But all thirteen signed legislation creating regulatory bodies with good-cause removal conditions. And virtually every president since

the 1880s has kept these agencies active by nominating their leaders and approving their appropriations.

The only reason there is a “deeply rooted historical

practice of independent agencies,” PHH Corp. v.

CFPB, 881 F.3d 75, 174 (D.C. Cir. 2018) (Kavanaugh,

J., dissenting), is that, for over a century, president after president has helped create them, modify them,

fund them, and appoint their leaders. The executive

branch, therefore, has not just “repeatedly acquiesced

2 See White House Historical Association, When Was Electricity

First Installed at the White House?, https://www.whitehousehistory.org/questions/in-what-year-was-electricity-installed-in-thewhite-house (electricity installed in White House and in State,

War, and Navy Building in 1891).

in the practice” of independent agencies, United States

v. Midwest Oil Co., 236 U.S. 459, 471 (1915), but has

actively shaped and supported them. Such active cooperation, for more than a century, is the strongest evidence one could reasonably demand for an elected

branch’s acquiescence in a historical practice.

In established-practice cases, this Court typically

finds acquiescence by a political branch based on much

less. Often simply a failure to resist or “repudiate the

power claimed” suffices. Midwest Oil, 236 U.S. at 471;

e.g., The Pocket Veto Case, 279 U.S. 655, 675 (1929).

And every affirmative indicator of acquiescence recognized in prior cases is present here: (1) approving legislation, Grisar v. McDowell, 73 U.S. 363, 381 (1867),

(2) amending existing legislation, Dames & Moore v.

Regan, 453 U.S. 654, 681 (1981), (3) making or approving appointments to office, Mistretta v. United States,

488 U.S. 361, 399 (1989), and (4) funding the activities

in question, Grisar, 73 U.S. at 381. Even as presidents

routinely deployed signing statements against, for instance, the legislative veto, similar complaints about

independent commissions have been rare, and direct

resistance nonexistent. Overall, the executive branch

has more than “acquiesced” in these institutions. Zivotofsky v. Kerry, 576 U.S. 1, 23 (2015).

Petitioner claims insight into the definitive meaning of Article II that eluded Joseph Story, Oliver Wendall Holmes Jr., and many others throughout history.

But the American people, through their representatives, have given “public sanction” to multimember independent agencies for generations. Letter from

James Madison to Martin L. Hurlbut (May 1830). A

“limitless [removal] power” is not compelled by original public meaning and “would transform the established practice of the political branches.” Mazars, 591

U.S. at 867. That alone should be dispositive.

ARGUMENT

Historical Practice Can Liquidate

Constitutional Meaning.

“When faced with a dispute about the Constitution’s meaning or application, ‘[l]ong settled and established practice is a consideration of great weight,’”

Houston Cmty. Coll., 595 U.S. at 474 (quoting Pocket

Veto Case, 279 U.S. at 689), because “‘a regular course

of practice’ can illuminate or ‘liquidate’ our founding

document’s ‘terms & phrases,’” id. (quoting Letter

from James Madison to Spencer Roane (Sept. 2, 1819)).

Especially in cases concerning “the allocation of power

between [the] two elected branches,” Mazars, 591 U.S.

at 862 (citation omitted), this Court puts “significant

weight upon historical practice,” Zivotofsky, 576 U.S.

at 23 (citation omitted), including practice that “began

after the founding era,” Noel Canning, 573 U.S. at 525.

Those principles should resolve this case.

A. The importance of historical practice in settling

constitutional meaning was first recognized by the

Framers. As Alexander Hamilton wrote, “time only …

can mature and perfect so compound a system, can liquidate the meaning of all the parts, and can adjust

them to each other in a harmonious and consistent

whole.” Federalist No. 82, supra, at 491. James Madison acknowledged that all laws are “more or less obscure and equivocal, until their meaning be liquidated

and ascertained by a series of particular discussions

and adjudications.” Federalist No. 37, supra, at 229.

“[O]ther Federalists also argued that interpretation

would resolve difficulties” and “settle uncertainties.”

Philip A. Hamburger, The Constitution’s Accommodation of Social Change, 88 Mich. L. Rev. 239, 310 (1989).

A need for liquidation, therefore, “was foreseen at the

birth of the Constitution.” Letter from James Madison

to Spencer Roane, supra.

“So powerful was the force of this ‘liquidation’ to

Madison that, as President, he signed the bill creating

a Second Bank of the United States in spite of having

maintained in 1791 that the Bank was unconstitutional.” Michael W. McConnell, Time, Institutions,

and Interpretation, 95 B.U. L. Rev. 1745, 1774 (2015).

Notwithstanding his own views, Madison recognized

“the reiterated sanctions given to the power by the exercise of it, thro’ a long period of time,” with the “acquiescence of the people,” as “a construction put on the

Constitution by the Nation.” Letter from James Madison to Lafayette, supra; see 28 Annals of Cong. 189

(1815) (message from President Madison stating that

his constitutional objections had been “precluded … by

repeated recognitions, under varied circumstances, of

[the Bank’s] validity”). As Madison saw it, “the decision of the Nation had been sufficiently manifested, to

over-rule individual opinions.” Letter from James

Madison to Moses Dawson, supra.

B. From the start, this Court agreed that established practices of the elected branches can settle constitutional meaning. In Stuart v. Laird, 5 U.S. 299

(1803), the Court rejected a constitutional challenge to

Justices sitting as circuit judges, because “practice and

acquiescence … for a period of several years, commencing with the organization of the judicial system, affords an irresistible answer, and has indeed fixed the

construction.” Id. at 309. In Martin v. Hunter’s Lessee,

14 U.S. 304 (1816), the Court relied on the “historical

fact” that it had “sustained th[e] appellate jurisdiction

[in question] in a great variety of cases,” with the “acquiescence” of the states. Id. at 352. And in McCulloch v. Maryland, the Court declared that the Bank’s

constitutionality could “scarcely be considered as an

open question,” given the “exposition of the

constitution, deliberately established by legislative

acts.” 17 U.S. at 401.

These precedents established “that the judiciary,

in passing upon questions of law which have been considered and acted upon by the other departments,

should give great weight to their opinions, especially if

they have passed unchallenged for a considerable period.” Cooley, General Principles of Constitutional

Law, supra, at 139-40. Courts should reject these constructions only if “plainly in violation of the Constitution.” Id. at 140.

C. Historical practice can liquidate constitutional

meaning “even when that practice began after the

founding era.” Noel Canning, 573 U.S. at 525. This

Court has long relied on such practice. E.g., id. at 52829 (intra-session recess appointments beginning after

Civil War); Ex parte Grossman, 267 U.S. 87, 118 (1925)

(“long practice under the pardoning power” starting in

1840); Pocket Veto Case, 279 U.S. at 691 (veto practice

that began more than 20 years after the Founding and

flourished only after Lincoln); Mistretta, 488 U.S. at

390 (“more than a century” of judges determining sentencing factors).

While the earliest practices may also illuminate

“original meaning,” later practices that shed no light

on original meaning can still “liquidate ambiguous

constitutional provisions.” United States v. Rahimi,

602 U.S. 680, 738 (2024) (Barrett, J., concurring) (citation omitted). Thus, “nearly everyone seems to agree

… that [historical] glosses need not necessarily originate in the near aftermath of the Founding.” Richard

H. Fallon Jr., The Many and Varied Roles of History in

Constitutional Adjudication, 90 Notre Dame L. Rev.

1753, 1778 (2015); see Baude, supra, at 59 (excluding

post-Founding practice would be “wrong”).

D. The executive branch recognizes that “a significant guide to the interpretation of the Constitution’s

requirements is the practical construction placed on it

by the executive and legislative branches.” 18 Op.

O.L.C. 232, 233 (1994). That recognition is longstanding. See, e.g., 10 Op. Att’y Gen. 356, 356 (1862) (describing issue as “settled” by “continued practice” and

“acquiescence”). When “[d]isagreements and uncertainties … are two centuries old,” as here, courts must

give “weight to the considered constitutional judgments of the political branches.” 18 Op. O.L.C. at 235.

E. To be sure, practice does not control if “the people have plainly expressed their will in the Constitution.” Thomas M. Cooley, Constitutional Limitations

85 (4th ed. 1878); see McConnell, supra, at 1774 (explaining the differences between liquidation and “continually evolving meaning”). For example, legislative

vetoes, despite their prevalence, violated “[e]xplicit

and unambiguous provisions of the Constitution,”

which left it “beyond doubt” that “lawmaking was a

power to be shared by both Houses and the President.”

Chadha, 462 U.S. at 945, 947. But liquidation is necessary “when the meaning of the Constitution is not

clear from text in light of original meaning.”

McConnell, supra, at 1774.

F. Respecting historical practice serves “deep constitutional values.” Baude, supra, at 35. By “fixing”

meaning, “liquidation promotes the rule of law values

of stability, equality, and predictability.” McConnell,

supra, at 1776. It “generat[es] legal certainty by giving weight to past decisions,” Baude, supra, at 42-43,

ensures “consistency,” and “protect[s] reliance interests,” Curtis A. Bradley & Trevor W. Morrison, Historical Gloss and the Separation of Powers, 126 Harv. L.

Rev. 411, 427 (2012).

Moreover, liquidation honors “implicit bargain[s]”

between the elected branches. Id. at 435. Conversely,

“judicial invalidation of [a] practice will undo only part

of the bargain, potentially creating an imbalance in executive-legislative relations.” Id. at 457. And “because

the Constitution’s textual references to executive

power are so spare,” “historical practice may provide

the most objective basis for decision.” Id. at 428.

While resembling stare decisis, “liquidation by

longstanding practice of democratically accountable

bodies” is “more democratic.” McConnell, supra, at

1776. As Madison put it, a liquidated practice was “a

construction put on the Constitution by the Nation,”

Letter from James Madison to Lafayette, supra, endorsed by the “public sanction,” Letter from James

Madison to Martin L. Hurlbut, supra.

II. Presidential Removal Authority Was

Ambiguous at the Founding and Settled

Through Historical Practice.

The President’s removal power was established by

practice, not original public meaning. It arose from the

process of constitutional liquidation, no less than the

later qualification of that power with respect to independent agencies did. Consistent with the Madisonian

vision, both developments reflect a “practical construction” of the Constitution that settled an initial “ambiguity.” McPherson, 146 U.S. at 27.

A. Removal Authority Was Uncertain at the

Founding.

One could scarcely imagine a more “doubtful question,” “on which human reason may pause,” McCulloch, 17 U.S. at 401, than removal power under the

Constitution—“one of the oldest constitutional debates

in American law,” Bamzai & Shane, supra, at 64.

So ambiguous was the removal question after the

Constitution’s ratification that “extensive debate” in

Congress, Aditya Bamzai & Saikrishna Bangalore

Prakash, How to Think About the Removal Power, 110

Va. L. Rev. Online 159, 191 (2024), generated “at least

four competing positions,” Baude, supra, at 9. Even

the result of that debate “is open to conflicting interpretations.” Wurman, supra, at 158. The only clear

outcome—a rejection of Senate participation in removals—contradicted the position advocated at the time of

Ratification. See Federalist No. 77, supra, at 459

(Hamilton).

In short, the very existence of the President’s removal power was “much disputed … in the early history of this government,” Hennen, 38 U.S. at 259, and

emerged from a “practical construction,” id., followed

by “acquiescense and long practice,” Myers v. United

States, 272 U.S. 52, 152 (1926). That same process of

liquidation later established the validity of good-cause

tenure for bodies like the FTC.

Text. As illustrated by the fierce congressional debate in 1789, removal authority cannot be resolved by

constitutional text alone.

The Constitution expressly provides only for impeachment but otherwise “is silent with respect to the

power of removal.” Hennen, 38 U.S. at 258. While

presidents have “the” executive power and responsibility to ensure faithful execution of the laws, U.S. Const.

art. II, Congress may pass laws necessary and proper

to carry the President’s powers into execution, id.

art. I, § 8, cl. 18 (“all” powers of the federal government), and may create the nation’s “Departments” and

“Officers,” id. art. II, § 2, cl. 2. “It would be natural to

conclude,” as many in the First Congress did, that

“Congress has broad authority to address [removal] by

statute.” Caleb Nelson, Must Administrative Officers

Serve at the President’s Pleasure?, The Democracy Project (Sept. 29, 2025).

While the Constitution “relied upon a conception

of ‘executive power’ from existing usage,” Bamzai &

Prakash, Removal Power, at 173, removal authority

was not an essential attribute of the executive’s power

at the Founding.

“[T]he British Crown lacked power to remove all

officers,” and “Parliament could enact laws curbing the

Crown’s removal authority.”

Aditya Bamzai &

Saikrishna Bangalore Prakash, The Executive Power

of Removal, 136 Harv. L. Rev. 1756, 1791 (2023); see

Daniel D. Birk, Interrogating the Historical Basis for a

Unitary Executive, 73 Stan. L. Rev. 175, 182, 220

(2021) (Parliament “exercised significant control over

the tenure of officers appointed to execute the laws”).

So even if the presidency was modeled on the monarchy—but see 1 Records of the Federal Convention of

1787, at 65 (Max Farrand ed., 1911) (James Wilson)

(denying that “the Prerogatives of the British Monarch” were “a proper guide in defining the Executive

powers”)—that model did not invariably equate executive power with removal. See Bamzai & Prakash, Executive Power, at 1790 (“common law and parliamentary law constrained removal,” and only some officers

were removable at pleasure).

Removal authority was not inherently linked with

the executive in America, either. In “state and colonial

governments at the time of the Constitutional Convention,” it “had sometimes been lodged in the Legislatures or in the courts.” Myers, 272 U.S. at 118; see

1 Annals of Cong. 392 (1789) (Rep. Smith) (in many

states, “the chief Executive Magistrate appoints to office, but cannot remove”); id. at 534 (Rep. White) (“it

will not be found that he has in any [state], of necessity, the right of … removing officers”). Perhaps some

of these arrangements were seen as “vesting part of

the executive power in another branch of the government,” Myers, 272 U.S. at 118, but even states with

executive-power vesting clauses and explicit separation-of-powers clauses “frequently gave the legislature

control over key administrators,” Bamzai & Shane, supra, at 84 (statement of Peter Shane). Thus, Founding-era state practice does not support any consensus

that executive power necessarily encompassed removal, much less removal at pleasure. Cf. Federalist

No. 66, supra, at 404 (Hamilton) (stating only that

“those who hold offices during pleasure” are “dependent on the pleasure of those who appoint them”).

Claims of a pre-Ratification consensus on presidential removal must explain away not just contemporary state practice but also the Opinions Clause, U.S.

Const. art. II, § 2, cl. 1, which arguably clashes with

broad unwritten presidential authority over executive

officers. They must also explain the choice to specifically enumerate the powers to pardon, receive ambassadors, and be commander-in-chief, id.; id. art. II, § 3,

which suggests that the Framers listed the royal powers they wished to incorporate.

And even if all these tensions could be successfully

addressed, that would still leave just the bare assertion that the Vesting and Take Care Clauses, alone,

were widely understood to require exclusive presidential removal at pleasure. But that assertion is belied

by the Federalist and the debates in the First Congress.

Drafting and Ratification. Removal authority

“was not discussed” in Philadelphia, Myers, 272 U.S.

at 109-10, with one notable exception. The Framers

declined to adopt a proposal to name specific department heads who would serve “during pleasure.” 2 Farrand’s Records 335.

Instead, they empowered

Congress to structure federal offices—a power they understood to fall within the Necessary and Proper

Clause. See id. at 345.

As important as the deliberations in Philadelphia

is what the ratifying public was told, because the Constitution’s “meaning is fixed according to the understandings of those who ratified it.” Bruen, 597 U.S. at

28; see Rahimi, 602 U.S. at 737 (Barrett, J., concurring) (“for an originalist, the history that matters most

is the history surrounding the ratification of the text”).

Anyone who read the Federalist would have understood that the “tenure of the ministerial offices generally will be a subject of legal regulation, conformably

to … the example of the State constitutions.” Federalist No. 39, supra, at 242 (Madison). Readers were also

assured that the “consent of that body [the Senate]

would be necessary to displace as well as to appoint.”

Federalist No. 77, supra, at 459 (Hamilton). “A change

of the Chief Magistrate, therefore, would not occasion

so violent or so general a revolution in the officers of

the government as might be expected if he were the

sole disposer of offices.” Id.3

These assurances “had a most material tendency

to quiet the just alarms of the overwhelming influence,

and arbitrary exercise of this prerogative of the executive,” 3 Story, supra, at 390, which otherwise “might

prove fatal to the personal independence, and freedom

of opinion of public officers, as well as to the public liberties of the country,” id. Although Hamilton and

Madison changed their minds in 1789, that only underscores that presidential removal was a post3 The suggestion that Hamilton was not discussing Senate consent for removals is refuted by his later acknowledgment that he

changed his mind. He never claimed he was misunderstood. See

Bamzai & Prakash, Executive Power, at 1779.

Ratification development resting on practical construction, not original public meaning. Senate participation in removals “was the construction given to the

constitution while it was pending for ratification.”

Kent, supra, at 288. At that time, exclusive presidential removal authority “never appears to have been

avowed by any of its friends.” 3 Story, supra, at 393.

It is undeniable, therefore, that when the Constitution was ratified, it was not widely understood to

mandate exclusive presidential removal authority—

much less removal at pleasure for all offices. On the

contrary, removal generated “a great diversity of opinion … in the early history of this government.” Hennen, 38 U.S. at 259.

B. Presidential Removal Was Established

by Practice.

Because of the Constitution’s ambiguity, liquidation, not original public meaning, settled the existence

of inherent presidential removal authority. And that

initial settlement did not address, much less preclude,

the use of good-cause removal conditions for regulatory

officers.

The Decision of 1789. The most significant thing

about the First Congress’s removal debate is that it

was necessary. A clear constitutional mandate would

not have produced four contending viewpoints, three

of which stubbornly divided the first Congress even after long debate. See infra. None of the participants

ever suggested they were expounding views that the

Framers or ratifiers had previously considered or regarded as textually implicit. See Jonathan Gienapp,

Removal and the Changing Debate over Executive

Power at the Founding, 63 Am. J. Legal Hist. 229, 233

(2023). This was unsettled terrain. See 1 Annals of

Cong. 480 (1789) (Rep. Madison) (describing how he

changed his mind between May and June).

Also significant is that no clear consensus

emerged, except about the president’s authority to remove the Foreign Affairs Secretary, because none of

the three main camps could muster a majority. Thus,

“few scholars” argue today “that the Decision of 1789

governs by its own force. And those who do should

probably walk back such claims.” Wurman, supra, at

177. Instead, “an emerging consensus of scholars

across the ideological spectrum now agrees that the

First Congress reflected little consensus about the

meaning of Article II.” Jed H. Shugerman, Movement

on Removal: An Emerging Consensus about the First

Congress and Presidential Power, 63 Am. J. Legal

Hist. 258, 259 (2023).

The Decision of 1789 did, however, put the gears

in motion for a gradual liquidation of presidential removal authority over the next three decades. That is

why pro-removal scholarship increasingly emphasizes

“post-1789 evidence” and “nineteenth-century practice,” pivoting “away from original public meaning

circa Ratification.” Id. at 264, 279.

In brief, some Congressmembers in 1789 insisted

that the Foreign Affairs Secretary would inherently be

“removable by the President.” 1 Annals of Cong. 385

(1789). But others, citing the Federalist, argued that

removals required “the advice and consent of the Senate.” Id. at 396. Still others, originally including Madison, id. at 389, believed that Congress could assign

removal where it wanted, id. at 392. Emphasizing

Madison’s statements in the debate while ignoring this

wide disagreement exemplifies “looking over a crowd

and picking out your friends.” Exxon Mobil Corp. v.

Allapattah Servs., Inc., 545 U.S. 546, 568 (2005) (citation omitted). As scholars have long documented,

without repudiation, “no majority emerged either for

the proposition that the Constitution itself authorized

[presidential removal] or for the proposition that Congress can decide by statute whether to grant this

power.” Nelson, Administrative Officers, supra.

Parliamentary maneuvering yielded language

that presupposed a presidential removal power—but

“the text did not specify the source of that power.”

Bamzai & Shane, supra, at 68. Specifically, two different majorities approved two amendments. 1 Annals of

Cong. 600-08 (1789). The first brought together all

who favored presidential removal, “whether they

thought that Article II settled the question or left the

matter to Congress,” and the second brought together

the Article II camp with the Senate-participation

camp. David P. Currie, The Constitution in Congress:

The First Congress and the Structure of Government,

1789–1791, 2 U. Chi. L. Sch. Roundtable 161, 201

(1995). Disagreement on removal required a vice-presidential Senate tiebreaker. Myers, 272 U.S. at 115.

Liquidation of the Removal Power. Standing

alone, the 1789 legislation “left presidential removal to

shadowy implication.” Prakash, supra, at 1052. But

it came to be viewed as a “practical construction” of the

Constitution, Hennen, 38 U.S. at 259, that the nation

“acquiesced in,” Kent, supra, at 289.

This shift was gradual. Congress immediately repeated the same fight over the Treasury Secretary, resulting in the same compromise. See Prakash, supra,

at 1064 (describing the Senate’s refusal to explicitly

“acknowledge the Power of removal in the President”

(citation omitted)). Despite Madison’s advocacy of

presidential removal, he declared (though he did not

favor the proposal) that Congress could vary the rule

for the Treasury’s Comptroller, because his duties

were “not purely of an executive nature.” 1 Annals of

Cong. 635 (1789).

In subsequent years, however, Congress stopped

including language about presidential removal—except for offices with fixed terms, see infra at 22—suggesting it was now deemed superfluous. See Bamzai

& Prakash, Executive Power, at 1776. Presidentially

issued commissions often stated that officers were removable at pleasure, even where legislation was silent. Id. at 1777. Over the next few decades, presidents increasingly removed officers without explicit

statutory authority to do so. See Bamzai & Shane, supra, at 70-72.

The President’s removal authority was understood

to be a “constructive power which he has exercised, because the Legislature have … acknowledged that he

had it.” 11 Annals of Cong. 526 (1802) (Rep. Henderson). It “was not expressly found in the Constitution,

but sprang from Legislative construction.” Id. at 33

(Sen. Mason). By the 1820s, James Kent wrote that

despite Founding-era disagreement, Congress’s “legislative construction” had since been “acquiesced in.”

Kent, supra, at 289. Removal power “continued to rest

on this loose incidental declaratory opinion of congress, and the sense and practice of government since

that time.” Id. at 290 (emphasis added).

Joseph Story also attributed the entrenchment of

presidential removal to “general acquiescence and silence.” 3 Story, supra, at 395. Expressing strong

doubts about the correctness of the Decision of 1789,

he acknowledged: “The public, however, acquiesced in

this decision,” representing an “extraordinary” instance “of a power, conferred by implication on the executive by the assent of a bare majority of congress.”

Id. Whatever “the true constitutional exposition of the

power of removal,” it would “be difficult, and perhaps

impracticable, after forty years’ experience, to recall

the practice to the correct theory.” Id. at 397.

In the same period, Daniel Webster similarly argued in Congress that the Decision of 1789 “was erroneous.” 11 Reg. Deb. 470 (1835). But he conceded that

it “has been established by practice, and recognized by

subsequent laws, as the settled construction of the

Constitution.” Id. (emphasis added).

As late as the 1850s, individual Justices insisted

that exclusive presidential removal authority went

against “the true construction of the constitution,” but

acknowledged that it “has been, perhaps, too long established and exercised to be now questioned.” U.S. ex

rel. Goodrich v. Guthrie, 58 U.S. 284, 306-07 (1854)

(McLean, J., dissenting).

C. The President’s Established Removal

Authority Is Compatible with GoodCause Tenure for Multimember

Agencies.

During the decades when presidential removal authority was being “settled,” Hennen, 38 U.S. at 259, by

“acquiescense and long practice,” Myers, 272 U.S. at

152, the question of whether legislation could limit the

President’s reasons for removing particular officers

was not discussed. Only when industrialization fostered a desire for oversight bodies that could accumulate expertise “informed by experience,” Ill. Cent. R.R.

Co. v. ICC, 206 U.S. 441, 454 (1907), did the branches

find reason to employ such removal conditions. Nothing in the Decision of 1789, or the settled practice that

followed, conflicted with that development.

“[T]he Decision of 1789 did not endorse the view

that Congress lacked authority to modify the Constitution’s grant of removal power to the President.” Prakash, supra, at 1073. The question was simply

“whether the removal was to be by the President alone,

or with the concurrence of the Senate.” Hennen, 38

U.S. at 259. Only three representatives ever suggested “that the constitutional power of removal is illimitable.” James Hart, The American Presidency in

Action: 1789, at 206 (1948). And “these assertions

were never really contested,” because the debate focused on where the removal power was lodged, not

“whether it was a power that Congress could modify or

abridge.” Prakash, supra, at 1072.

Indeed, Hamilton explained in 1802 that removal

was “left to the pleasure or discretion” of the President

only “in instances in which it is not otherwise provided

by the Constitution or the Laws.” The Examination

No. XVII (Mar. 20, 1802) (emphasis added). He reiterated: “The pleasure of the President … is understood

to be subject to the direction of the law.” Id.

Story thus wrote that it remained “speculative”

whether Congress could create fixed-term offices that

were completely exempt from removal. 3 Story, supra,

at 389. Kent described the Decision of 1789 as covering officers “whose term of duration is not specially declared.” Kent, supra, at 289; see also Reynolds v. Bussier, 5 Serg. & Rawle 451, 460-61 (Pa. 1820) (citing the

Decision of 1789 for the proposition that “the tenure of

ministerial offices … is during pleasure, unless the law

by which the office is established order it otherwise”

(emphasis added)); United States v. Perkins, 116 U.S.

483, 484 (1886) (identifying as an open question

whether legislation could “restrict the power of removal”).

Conditioning the President’s inferred removal

power, therefore, is not equivalent to restricting an expressly defined authority like the pardon power. As

the uncertainty above demonstrates, the underlying

scope of the removal power itself was unclear, because

it was not settled by text, historical practice, or judicial

precedent.

Significantly, too, despite the “dominant pattern”

of legislative silence on removal, Bamzai & Prakash,

Executive Power, at 1776, whenever Congress gave officers fixed terms, it took pains to specify that they

were removable at “pleasure.” Act of Sept. 4, 1789,

ch. 20, § 27, 1 Stat. 73, 87; see Act of Feb. 27, 1801,

ch. 15, § 7, 2 Stat. 103, 106; Act of May 15, 1820,

ch. 102, § 1, 3 Stat. 582, 582; Act of July 2, 1836,

ch. 270, § 33, 5 Stat. 80, 87-88. That choice arguably

implied that where an officer’s term was fixed, removal

power had to be specified or it did not exist. If nothing

else, the consistency of this pattern indicates enough

uncertainty about the matter that Congress felt compelled to remove doubt.4

As the nineteenth century progressed, Congress

began limiting removals. It conferred tenure “during

good behaviour,” Act of Feb. 24, 1855, ch. 122, § 1, 10

Stat. 612, 612 (Court of Claims judges), demanded

“reasons” for removals, Act of June 3, 1864, ch. 106,

§ 1, 13 Stat. 99, 100 (Comptroller of the Currency), required court-martials, Act of July 13, 1866, ch. 176,

§ 5, 14 Stat. 90, 92 (military officers), and conditioned

removal on specific causes, Act of Feb. 4, 1887, ch. 104,

§ 11, 24 Stat. 379, 383 (Interstate Commerce Commission).

Congress also backtracked on the Decision of 1789

by requiring Senate consent for department-head removals. Act of Mar. 2, 1867, ch. 154, § 1, 14 Stat. 430,

4 The only apparent exception was for justices of the peace in

the territories and District of Columbia, whom some regarded “as

Article III judges,” subject to “good-behavior tenure.” Bamzai &

Prakash, Executive Power, at 1804.

430. After presidents of all stripes objected to this requirement, see Myers, 272 U.S. at 168, Congress repealed it. See Act of Mar. 3, 1887, ch. 353, 24 Stat. 500.

But within a month, the elected branches established

the ICC Commissioners’ good-cause tenure. Although

removal authority was clearly on the minds of Congress and the President in early 1887, no one suggested that these removal conditions for regulatory

bodies violated the Constitution or settled practice.

III. Historical Practice Has Also Settled the

Legitimacy of Multimember Independent

Agencies.

A. Multimember Independent Agencies

Have Wielded Executive Power for

Most of the Nation’s History.

The elected branches have created regulatory bodies with good-cause tenure for nearly 150 years. From

the start, these agencies wielded “significant executive

power.” Seila Law, 591 U.S. at 204. The ICC, for instance, had investigative and enforcement authority

over the monumentally important railroad industry,

and could issue cease-and-desist orders, require payment of reparations, and enforce its orders in court.

See Act of Feb. 4, 1887, §§ 12-16, 20, 24 Stat. at 38285, 386-87. While the Interior Secretary initially had

some supervisory authority, see id. §§ 18, 21, 24 Stat.

at 386-87, it was eliminated two years later, see Act of

Mar. 2, 1889, ch. 382, §§ 7-8, 25 Stat. 855, 861-62. And

soon after, the elected branches established the Board

of General Appraisers, with identical removal conditions, to regulate imported goods. See Act of June 10,

1890, ch. 407, § 12, 26 Stat. 131, 136.

Congress later empowered the ICC to set railroad

rates and prescribe “fair” and “reasonable” practices,

see Act of June 29, 1906, ch. 3591, § 4, 34 Stat. 584,

589, enhancing its status as “a very powerful agency,”

Marshall J. Breger & Gary J. Edles, Established by

Practice: The Theory and Operation of Independent

Federal Agencies, 52 Admin. L. Rev. 1111, 1130 (2000).

Meanwhile, the Board of General Appraisers was “one

of the most powerful entities within the federal government.” Bamzai, supra, at 695. Over the following

century, the elected branches established “a multitude

of new agencies” with similar structures. Breger &

Edles, supra, at 1116. Independent boards and commissions thus enjoy a solid foundation in historical

practice.

These independent agencies have always wielded

significant executive power. While this Court described their powers as “predominantly quasi-judicial

and quasi-legislative,” Humphrey’s Ex’r, 295 U.S. at

624, rulemaking, adjudication, and enforcement are

exercises of the executive power, City of Arlington v.

FCC, 569 U.S. 290, 304 n.4 (2013). Independent agencies have thus exercised significant executive power

for well over a century.

Humphrey’s Executor left no doubt that courts

would enforce good-cause removal conditions. See 295

U.S. at 629 (making clear that the holding covered “the

Interstate Commerce Commission and the Court of

Claims,” because “illimitable power of removal is not

possessed by the President in respect of officers of the

character of those just named” (emphasis added)). And

presidents continued working with Congress over the

next 90 years to further ensconce independent agencies as an indelible feature of the government. Less

than two months after Humphrey’s, the elected

branches created the National Labor Relations Board

on a similar model, see National Labor Relations Act,

ch. 372, 49 Stat. 449 (1935). Many other new agencies

followed.

Since the 1880s, therefore, “independent agencies

have played a significant role in the U.S. Government,” with “substantial executive authority” to regulate “vast swaths of American economic and social

life.” PHH Corp., 881 F.3d at 173 (Kavanaugh, J., dissenting). “A legislative practice … marked by the

movement of a steady stream for a century and a half”

suggests an “unassailable ground for the constitutionality of the practice.” Curtiss-Wright, 299 U.S. at 32728.

B. The Executive Branch Has Enabled and

Acquiesced in this Historical Practice.

The only reason that independent agencies play “a

significant role in the U.S. Government,” PHH Corp.,

881 F.3d at 170 (Kavanaugh, J., dissenting), is that,

for over a century, president after president has

helped create them, modify them, fund them, and appoint their leaders. For generations, presidents across

the political spectrum have not only “repeatedly acquiesced in the practice” of creating these agencies, Midwest Oil, 236 U.S. at 471, but have actively shaped and

supported them.

Starting with Grover Cleveland, at least thirteen

presidents have placed their signatures on legislation

creating regulatory boards or commissions with goodcause removal conditions.5 Virtually every president

5 See 24 Stat. 379, 383 (1887) (ICC) (Cleveland); 26 Stat. 131,

136 (Board of General Appraisers) (Harrison); 38 Stat. 717, 718

(1914) (FTC) (Wilson); 49 Stat. 449, 451 (1935) (NLRB) (Roosevelt); 60 Stat. 755, 756-57 (1946) (Atomic Energy Commission)

(Truman); 75 Stat. 840, 840 (1961) (Federal Maritime Commission) (Kennedy); 80 Stat. 932, 936 (1966) (National Transportation Safety Board) (Johnson); 86 Stat. 1207, 1210 (1972) (Consumer Product Safety Commission) (Nixon); 88 Stat. 1233, 1243

since the 1880s has actively kept these agencies running by nominating their leaders and approving their

appropriations.

This is the strongest evidence one could ask for to

demonstrate an elected branch’s acquiescence in a historical practice. Presidents have not merely submitted

to the practice or failed to act, but have affirmatively

cooperated in developing and perpetuating these institutions. Without presidential acquiescence, there

simply would be no “deeply rooted historical practice

of independent agencies.” PHH Corp., 881 F.3d at 174

(Kavanaugh, J., dissenting).

This Court typically finds acquiescence based on

much less. Simply failing to resist another branch’s

conduct often suffices. E.g., Pocket Veto Case, 279 U.S.

at 675 (relying on “the practical construction given to

the constitutional provision by the President through

a long course of years, in which Congress has acquiesced”); Midwest Oil, 236 U.S. at 474, 471 (relying on

a “long-continued practice, known to and acquiesced in

by Congress,” as evidenced by failure to “repudiate the

power claimed”).

Elsewhere, this Court has relied on the same indicators of acquiescence found here:

(1) Approving legislation. E.g., Dames &

Moore, 453 U.S. at 680 (“Crucial to our decision [is] that Congress has implicitly approved the practice of claims settlement by

executive agreement,” “best demonstrated

(1974) (Nuclear Regulatory Commission) (Ford); 91 Stat. 565, 582

(1977) (Federal Energy Regulatory Commission) (Carter); 98

Stat. 1837, 2018 (1984) (United States Sentencing Commission)

(Reagan); 104 Stat. 2399, 2565 (1990) (Chemical Safety Board)

(Bush); 109 Stat. 803, 933 (1995) (Surface Transportation Board)

(Clinton). Some presidents created multiple agencies.

by Congress’ enactment of [a particular

statute]”); Grisar, 73 U.S. at 381 (similar).

Notably, the legislation in these examples

only implicitly endorsed the practice in

question.

(2) Amending existing legislation. E.g.,

Dames & Moore, 453 U.S. at 681 (“Congress has frequently amended [the statute] to provide for particular problems

arising out of settlement agreements, thus

demonstrating Congress’ continuing acceptance of the President’s claim[ed] settlement authority”). Notably, many presidents have signed bills adjusting the functions of independent agencies.

(3) Making or approving appointments to

office. E.g., Mistretta, 488 U.S. at 399 (describing history of extrajudicial appointments for federal judges and explaining

that “[a]ll these appointments were made

by the President with the ‘Advice and Consent’ of the Senate,” and that “[t]hus, at a

minimum, both the Executive and Legislative Branches acquiesced in the assumption of extrajudicial duties by judges”).

(4) Funding the activities in question.

E.g., Grisar, 73 U.S. at 381 (“The action of

the President in making the reservations

in question was indirectly approved by the

legislation of Congress in appropriating

moneys for the construction of fortifications and other public works upon them.”).

Through all of these means, the executive branch has

“placed its stamp of approval” on independent agencies. Regan, 453 U.S. at 680.

True enough, signing a bill may not always indicate acquiescence, given the “otherwise valuable effect” the bill might have. Myers, 272 U.S. at 170. But

here a “long-continued action” has “been allowed to be

so often repeated as to crystallize into a regular practice.” Midwest Oil, 236 U.S. at 472-73. The case for

acquiescence is not just “the mere presence of acts on

the statute book,” or a single provision that was “imposed as a rider” on an appropriations act. Myers, 272

U.S. at 170-71. For 150 years, presidents have helped

create and modify dozens of independent agencies,

have appointed people to run them, and have supported their operations by funding them.

Meanwhile, presidential objections to these agencies appear to have been rare and short-lived. Presidents have many tools available to resist constitutional intrusions. They have, for instance, repeatedly

deterred legislation that would “limit how the executive branch conducts diplomacy.” Bradley & Morrison,

supra, at 458. Not only has such direct resistance been

virtually nonexistent for independent agencies, but

there has been an apparent dearth of sustained opposition even through the weak tea of signing statements, which presidents have long used to note constitutional objections. See Christopher N. May, Presidential Defiance of Unconstitutional Laws: Reviving the

Royal Prerogative, 21 Hastings Const. L.Q. 865, 93336 (1994) (presidents systematically wielded signing

statements against legislative veto provisions in the

twentieth century, yet appear to have made almost no

similar objections to removal provisions). But see Presidential Statement on Signing Bill Amending Clean

Air Act, 26 Weekly Comp. Pres. Doc. 1824 (Nov. 15,

1990) (rare signing statement objecting to removal

conditions for independent commission).

Nor have presidents employed the stronger medicine of vetoing independent agencies or refusing to

fund them. And acquiescence does not require history

to be entirely devoid of dispute. See Mistretta, 488 U.S.

at 400-01 (relying on “continuing, albeit controversial,

practice” that “spawned spirited discussion and frequent criticism”); Midwest Oil, 236 U.S. at 473

(“weight shall be given to the usage itself, even when

the validity of the practice is the subject of investigation”). In short, the history of presidential challenges

to independent agencies is “one of anomalies only.”

Chiafalo, 591 U.S. at 596. The “weight of historical

evidence” firmly shows that, “[f]or the most part,” the

executive branch “has acquiesced” in these institutions. Zivotofsky, 576 U.S. at 23. And then some.

This record is especially meaningful given that

constitutional liquidation rarely benefits Congress.

“In any controversy between the political branches

over a separation-of-powers question, staking out a position and defending it over time is far easier for the

Executive Branch.” Noel Canning, 573 U.S. at 593

(Scalia, J., concurring in the judgment). “All Presidents have a high interest in expanding the powers of

their office,” whereas individual Congressmembers

“may have little interest in opposing Presidential encroachment,” especially when the President “is the

leader of their own party.” Id. Moreover, “the President faces neither the collective-action problems nor

the procedural inertia inherent in the legislative process.” Id.; see Bradley & Morrison, supra, at 452-54

(discussing veto-gates). If anything, “the standard for

executive acquiescence should be lower than for legislative acquiescence.” Bradley & Morrison, supra, at

454.

Regardless, “the greatest weight” should “be reserved for bipartisan institutional acceptance over

time,” id. at 455, which is what has sustained independent agencies for over a century. In the Madisonian model of liquidation, the “key idea of acquiescence” was that opposition to a practice eventually

subsided, resulting in either “bipartisan” or “institutional” acceptance. Baude, supra, at 18-19. “The

strongest cases of acquiescence appeared to combine

the two,” as with the national bank. Id. Here, Congresses and presidents of both parties have jointly endeavored to create and maintain dozens of multimember independent agencies for more than half of the nation’s history.

That should resolve this case, even if Humphrey’s

Executor had never been decided. The validity of independent commissions is one of the “doubtful” questions

about the “division of power between the branches”

that has been “adjusted by the departments themselves.” 1 Annals of Cong. 520 (1789) (Rep. Madison).

The legitimacy of their creation has been settled by

“the reiterated sanctions given to the power by the exercise of it, thro’ a long period of time,” with the “acquiescence of the people at large.” Letter from James

Madison to Lafayette, supra. This longstanding historical practice is “a construction put on the Constitution by the Nation,” more powerful than any “private

opinion.” Id.

CONCLUSION

For the foregoing reasons, the judgment of the district court should be affirmed.

Respectfully submitted,

ELIZABETH B. WYDRA

BRIANNE J. GOROD*

BRIAN R. FRAZELLE

SMITA GHOSH

MICHELLE D. BERGER

CONSTITUTIONAL

ACCOUNTABILITY CENTER

1730 Rhode Island Ave. NW

Suite 1200

Washington, D.C. 20036

(202) 296-6889

brianne@theusconstitution.org

Counsel for Amicus Curiae

November 14, 2025

* Counsel of Record

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.