This is my seventh and final blog post addressing the fact that no president from 1881 to 2009 has acquiesced in the 90-year-old Supreme Court decision in Humphrey's Executor. These blog posts are prompted by a question that Justice Barrett asked at oral argument about the history of independent agencies. The answer she got was that support for limits on the president's removal power dated back to the 1880's—but I think that's incorrect.
Justice Barrett also noted that Humphrey's Executor is a 90-year-old precedent; but, if we are to consider such matters in cases involving interbranch relations, it strikes me as important to recognize that no president since 1935 has acquiesced in or accepted as correct the decision in Humphrey's Executor. For instance, when the Supreme Court held legislative vetoes to be unconstitutional in INS v. Chadha (1983), the Court made a point of noting that presidents from Woodrow Wilson to Ronald Reagan had opposed the constitutionality of legislative vetoes. In writing this blog post, I rely on Steven G. Calabresi & Christopher S. Yoo, The Unitary Executive: Presidential Power from Washington to Bush (Yale University Press 2008).
George H. W. Bush served as president from 1989 to 1993. He was just as committed a friend of the unitary executive as Ronald Reagan had been. "More than almost any president besides William Howard Taft, George Herbert Walker Bush staunchly defended the unitariness of the executive branch…. George H. W. Bush was clearly in charge of his administration and was very attentive to details. Thanks in large measure to White House Counsel C. Boyden Gray and his superb legal staff, Bush defended the unitariness of the executive branch with almost academic rigor." Id. at 384.
