At oral argument in Trump v. Slaughter much discussion focused on the propriety of the Supreme Court today, in 2026, overturning a 90-year-old decision like Humphrey's Executor. In fact, as my immediately preceding blog posts show, since 1937 Presidents Franklin Roosevelt, Harry Truman, Dwight Eisenhower, and John Kennedy have all said that Humphrey's Executor is either bad constitutional law, bad policy, or both. Far from being a venerated precedent like Swift v. Tyson, which was nonetheless overruled, Humphrey's Executor has been controversial ever since the opinion was handed down. In making this argument, I am drawing on Steven G. Calabresi & Christopher S. Yoo, The Unitary Executive: Presidential Power from Washington to Bush (Yale University Press 2008). Christopher Yoo gets all the credit for this series of blog posts while I will take any blame there is for them.
Richard M. Nixon served as President of the United States from 1969 to 1974. President Nixon was a committed believer in the frequent use of the removal power. "[D]uring his five-year tenure in office, he in fact appointed thirty cabinet heads, breaking the old record held by Ulysses S. Grant…. [T]he median length of tenure of cabinet secretaries fell from forty months to eighteen. Nixon was not afraid to make removals, as the frequent turnover in his cabinet secretaries illustrates. Indeed, he began his second term by asking for the resignations of all his cabinet secretaries so he could decide which ones to retain. He noted that in doing so that once a cabinet official has been in place for a while, the bureaucracy starts to run him instead of the other way around." Calabresi & Yoo at 346.
"Nixon protected the president's removal power when he successfully resisted Congress's attempt to remove his Office of Management and Budget Director Roy Ash and his Deputy OMB director Fred Malek by abolishing their positions and reestablishing them subject to Senate confirmation…. [Congress backed down and settled for] "legislation the next year to require Senate confirmation only of future OMB directors and deputy directors." Id. at 347.
