Few constitutional issues have been as significant to the first 100 days of the second Trump Administration as the question whether the President may fire the heads of agencies subject to statutory protection from removal. The underlying issue—whether Article II confers on the President a power to remove executive subordinates that Congress cannot take away—has a claim to being one of the oldest constitutional debates in American law. The members of the First Congress addressed the question at length in 1789, and the political branches repeatedly debated it well before the Supreme Court decided any cases on the topic. The Supreme Court cases that followed these political debates—Myers v. United States, Humphrey’s Executor v. United States, and Morrison v. Olson, to take a few—are well-known and significant precedents of American constitutional law. More recently, in Seila Law LLC v. Consumer Financial Protection Bureau and Collins v. Yellen, the Supreme Court has limited the reach of Humphrey’s Executor and Morrison and has reembraced part of the reasoning of Myers.
The debate over the wisdom of these steps has been ongoing and has reemerged with ferocity in the Trump Administration’s early days. In a letter dated February 12, 2025, the then-Acting Solicitor General advised Senators that the Department of Justice had “determined that certain for-cause removal provisions that apply to members of multi-member regulatory commissions are unconstitutional and that the Department will no longer defend their constitutionality.” The letter argued that, “[a]s presently constituted, [various independent] commissions exercise substantial executive power, including through ‘promulgat[ing] binding rules’ and ‘unilaterally issu [ing] final decisions . . . in administrative adjudications.’” And the letter said that, to the extent Humphrey’s Executor permits such removal restrictions, the Department of Justice “intends to urge the Supreme Court to overrule” the case. In the weeks that followed, President Trump dismissed a number of officials subject to removal limits of various kinds, leading to significant litigation. At the time of this Essay, lower courts have addressed the removal provisions governing a number of these officials and agencies. Following the initial flurry of litigation, the Supreme Court stayed two separate district court decisions enjoining the President’s removal of members of the National Labor Relations Board (NLRB) and Merit Systems Protection Board (MSPB), without citing Humphrey’s Executor. The Court contended that the “Government is likely to show that both the NLRB and MSPB exercise considerable executive power.”
We cannot hope to resolve all the issues raised by these cases in this Essay. Instead, our goal is more modest. Many of the cases addressing this topic have relied on the practices of the executive and legislative branches prior to the Supreme Court’s decisions in Myers and Humphrey’s Executor. In recent years, the scholarly literature addressing these practices has been voluminous, and we are occasionally on different sides of the debate. Yet, as of this moment, that literature lacks a short and simple timeline cohesively addressing the arc of the practices, which might be usable by scholar, student, and practitioner alike. In this adversarial collaboration, we hope to provide a brief narrative of that arc—and then to set forth the arguments that can be made based on that arc. Part I sets forth the timeline from the First Congress through the Jeffersonian and Jacksonian dismissals, the Johnson impeachment, the incipient formation of the federal civil service, and the creation of the Interstate Commerce Commission and the first independent agencies. To allow readers to form their own assessments, Part I describes these issues in as non-argumentative of a fashion as is possible. Part II and Part III then turn to legal argumentation, first by sketching out an argument by one of us (Bamzai) in favor of a robust removal power, then by turning to an argument by the other (Shane) for a limited removal power.