Who Can Fire the Regulators? A Timeline From Myers to Seila Law

Quick quiz. Who is in charge of the Federal Trade Commission, the Securities and Exchange Commission and the Federal Communications Commission? If you said "the president," you are thinking like a constitutional lawyer from the founding. If you said "nobody, they are independent," you are thinking like a civics textbook from the 1950s. If you said "it depends, and the answer changed in 1935, 1958, 1988, 2010 and 2020," congratulations, you are reading the right blog.

The fight over who can fire whom is one of the great constitutional arguments in American history, and it never gets old, because it asks the simplest question in government: who is the boss? The text of the Constitution gives us the president and says almost nothing about firing. So for over two centuries the answer has been built by Congress, the presidents and the Supreme Court, case by case. Let me lay it out in order, with the dates, and then tell you what I think it adds up to.

The question and the text

Article II, Section 1 begins: "The executive Power shall be vested in a President of the United States of America." Section 3 says he "shall take Care that the Laws be faithfully executed." Those two sentences are the foundation of the argument for presidential control. If the executive power is vested in one person, the officers who carry out the law are his helpers, and a boss who cannot dismiss his helpers is not much of a boss.

The Constitution does say how officers are appointed: the president nominates, and the Senate gives advice and consent. It says how they can be removed by impeachment. About ordinary firing it is silent. That silence is the whole problem. Does the Senate's role in appointing mean it must consent to removal? Can Congress limit the president's firing power by statute? Each of the entries below is a different answer.

1789: the Decision of 1789

The very first Congress took this up. When it created a Department of Foreign Affairs in the summer of 1789, members argued about whether the Secretary should be removable by the president alone. The House and the Senate went with the language that recognized the president's power to remove the Secretary. In the Senate, the vote was close enough that Vice President John Adams had to break a tie. Madison argued for presidential removal, and the language was written into the law.

That moment is called the Decision of 1789, and the Supreme Court has leaned on it for over a century as evidence of how the founding generation understood Article II. It matters because many of the people in the room had helped write the Constitution. If they thought the president could remove executive officers on his own, that reading deserves weight. Critics note that members disagreed about the reason, with some saying the Constitution itself gave the power and others saying Congress was granting it. That ambiguity would come back to haunt the later cases.

1867-1868: the Tenure of Office Act and Andrew Johnson

After the Civil War, the Republican Congress and President Andrew Johnson, who had succeeded the assassinated Abraham Lincoln, were at war over Reconstruction. In March 1867, Congress passed the Tenure of Office Act over Johnson's veto. It barred the president from removing officers whose appointments needed Senate confirmation unless the Senate agreed to the removal.

Johnson thought the law unconstitutional. He suspended Secretary of War Edwin Stanton, a man allied with the Radical Republicans, and in February 1868 tried to remove him outright. The House responded by impeaching Johnson in late February 1868, with the Tenure of Office Act as the core of its charges. The Senate trial ended in May 1868. The vote was 35 to 19 for conviction, one short of the two-thirds required, which is 36 of 54 senators. Johnson stayed in office by a single vote. The details of the process are in How Impeachment Works, Step by Step, From the House Floor to the Senate Trial.

Why it matters here: the Tenure of Office Act was the first big attempt by Congress to take the removal power away from the president. It failed to remove him, and a later Congress repealed most of it. The constitutional question stayed open for decades, and it was finally resolved in the next entry.

1926: Myers v. United States

Frank Myers was a first-class postmaster in Portland, Oregon. In 1920, President Woodrow Wilson removed him without asking the Senate. An 1876 law said postmasters could be removed only with the Senate's consent. Myers sued for back pay. The case reached the Supreme Court, and in 1926 the Court decided it six to three. Chief Justice William Howard Taft, who had himself been president, wrote the opinion.

The holding: the 1876 statute was unconstitutional. The president's power to remove executive officers is part of the executive power, and Congress cannot require the Senate's consent to a removal. Taft leaned on the Decision of 1789, the Take Care Clause and the practical argument that a president must be able to remove officers who are failing to carry out his policies. Three justices, Oliver Wendell Holmes, Louis Brandeis and James McReynolds, dissented.

Myers was the high-water mark for presidential power over removal. Read broadly, it says that executive officers serve at the president's pleasure. That is the reading a believer in the Vesting Clause finds persuasive. It did not last in its broad form for even a decade.

1935: Humphrey's Executor v. United States

William Humphrey was a commissioner of the Federal Trade Commission, appointed by Herbert Hoover. In 1933, President Franklin Roosevelt asked him to resign because their philosophies differed, and when Humphrey would not, Roosevelt removed him. The FTC Act said commissioners could be removed only for "inefficiency, neglect of duty, or malfeasance in office." Humphrey died in 1934, and his estate sued for his pay.

On May 27, 1935, the same day the Court decided Schechter Poultry, which I discuss in A Farmer's Wheat Crop and the Long Fight Over the Commerce Clause, the Court ruled unanimously for Humphrey's estate. Justice George Sutherland wrote that the FTC was not an ordinary executive office. It was, he said, a body of experts that exercised quasi-legislative and quasi-judicial powers, and Congress could protect its members from at-will removal. Myers was confined to purely executive officers like postmasters.

Humphrey's Executor is the foundation of the modern independent agency. Everything from the FTC to the SEC and the National Labor Relations Board grew up under its shadow. For conservatives it is the case that created an unelected fourth branch, one that makes rules, enforces them and judges violations, with a president unable to fire the people at the top. For defenders it is a sensible way to put expert decisions beyond political pressure.

1958: Wiener v. United States

Myron Wiener served on the War Claims Commission, a body created in 1948 to decide claims for Americans who had suffered losses in the war. Congress did not say whether the commissioners could be removed, but it clearly meant them to act like judges. President Dwight Eisenhower removed Wiener in 1953, not for cause but because he wanted his own people. The Supreme Court ruled unanimously in 1958 that the removal was unlawful.

The opinion, written by Justice Felix Frankfurter, said that the nature of the body mattered. Even without a statement in the law, an adjudicatory body that should decide cases free of political pressure was presumed to have protection from at-will removal. Wiener extended Humphrey's logic to a silent statute. That was the independent agency at its high point. Notice the irony: the ruling went against a Republican president who was only trying to staff the commission with his own people.

1988: Morrison v. Olson

The next major entry involved a Watergate-era invention. After Nixon's firing of the special prosecutor in 1973, Congress passed the Ethics in Government Act of 1978, which created an independent counsel to investigate high-level officials. The independent counsel was appointed by a special court, and the attorney general could remove the counsel only for "good cause."

In Morrison v. Olson, decided in 1988, the Supreme Court upheld the law by a vote of seven to one. Chief Justice William Rehnquist wrote for the Court that the independent counsel was an inferior officer with limited jurisdiction and tenure, and that the for-cause removal protection did not unduly interfere with the president's ability to perform his duties. The Court moved away from labels like "quasi-judicial" toward a looser test about whether the removal restriction impedes the president's constitutional role.

Justice Antonin Scalia was the lone dissenter, and his dissent is among the most famous in modern law. He argued that the Vesting Clause means what it says: all of the executive power belongs to the president, and prosecution is core executive power. A prosecutor who can't be controlled by the president is a prosecutor accountable to no one. Within a few years, many Americans of both parties came around to his view of the independent counsel statute itself, and Congress let it lapse in 1999. The dissent has aged better than the majority opinion.

2010: Free Enterprise Fund v. PCAOB

After the accounting scandals of the early 2000s, Congress created the Public Company Accounting Oversight Board to police auditors. Its members could be removed by the Securities and Exchange Commission only for cause. The commissioners of the SEC, in turn, were thought to be removable by the president only for cause. So the board members were two layers away from the president, each layer protected.

In 2010, in Free Enterprise Fund v. Public Company Accounting Oversight Board, the Court held five to four that this double layer of protection was unconstitutional. Chief Justice John Roberts wrote that the structure diluted the president's ability to oversee the officers who carry out the laws. The president cannot be held fully responsible for an agency's conduct if he cannot oversee those at the bottom. The decision did not overrule Humphrey's. It simply refused to extend it into a second tier.

2020: Seila Law v. CFPB

The last entry in the timeline is the one that made the biggest change. The Consumer Financial Protection Bureau was created after the 2008 financial crisis as an agency headed by a single director with a five-year term, removable by the president only for "inefficiency, neglect of duty, or malfeasance." Seila Law, a California firm, challenged the CFPB's authority.

On June 29, 2020, in Seila Law LLC v. Consumer Financial Protection Bureau, the Court held five to four that the for-cause protection for a single director who wields substantial executive power violates the separation of powers. Chief Justice Roberts, writing for the Court, said that Humphrey's Executor and Morrison were exceptions to the rule that the president can remove executive officers, and that the Court would not extend those exceptions to a single head of an agency with such power. The remedy was modest. The Court severed the removal protection and left the agency standing, so the Bureau continued to operate under a director who answers to the president.

The Vesting Clause argument, stated plainly

Put the entries together and you can see the argument that has driven the conservative side. It runs in four steps.

1. The Constitution vests executive power in a president. Not in a committee, not in an agency, in one elected person.
2. To carry out the laws, a president needs the power to supervise those who execute them, which includes the ability to remove those who will not follow his direction.
3. Voters hold the president accountable for how the executive branch behaves. If the president cannot fire the head of an agency, the voters are blaming a person who cannot fix the problem.
4. Therefore, for-cause protection for officers who wield real executive power takes away something the Constitution gave the president.

The best counter-argument deserves a fair statement too. Congress created these agencies, and the Necessary and Proper Clause gives it wide latitude in designing them. Experts at the FTC, the SEC or a central bank may do their jobs better when they do not have to worry about being fired for an unpopular but sound decision. A president who can fire a regulator for refusing to do him a political favor is a president who can corrupt the process. That is a serious worry, and it is why I do not think the question is closed. The Court itself left space for some multi-member expert bodies in Seila Law. How far that space reaches is for you to check at supremecourt.gov, since the justices may refine it at any time.

My own view is that the Vesting Clause argument is the stronger one on the text, and that the stronger form of the other side's worry is better addressed through Congress's power to write clear laws and the voters' power to remove presidents than through an unelected body. For more on how the courts and Congress divide the work of writing the rules, see Congress Should Write the Laws, and Other Radical Ideas From Article I and Chevron Is Gone, and Here Is What Loper Bright Changed for Everyone.

The bottom line

• The text is short and the history is long. Article II vests the executive power in the president, and the cases since 1926 are the story of how far that goes.
• Know the five dates. 1926 (Myers), 1935 (Humphrey's), 1988 (Morrison), 2010 (Free Enterprise Fund) and 2020 (Seila Law) are the ones to keep in your head.
• Accountability is the point. Ask of any agency, "Who can fire the person in charge?" If the answer is nobody, ask who the voters should blame.
• Do not assume either side is a villain. A president who can fire anyone and an agency that no one can fire both carry risks. The answer is a clear law and a watchful public.
• Check for updates. This area of law keeps moving. The Supreme Court's website and Congress.gov have the latest.