Much of the debate about the removal power focuses on practice after the Constitution was adopted. Of course, there is the so-called Decision of 1789. There is also the Decision of 1790, which created the Sinking Fund Commission. However, in the immediate years after the framing, the Decision of 1789 seemed to take hold. Fast-forward one hundred years, and there was the Decision of 1887, which created the Interstate Commerce Commission (ICC). As the Progressive Era unfolded, Congress began to create more multi-member commissions with removal protections. Myers v. United States found that the President had the absolute power to remove a single executive branch officer, but Humphrey's Executor upheld tenure protections for FTC commissioners.
How should a court make sense of these competing traditions? For the first century, after ratification the Decision of 1789 seemed to suggest the President's removal power could not be restricted. For the second century after ratification, the Decision of 1887 seemed to suggest that the President's removal power could be restricted. But in the past two decades, the 1887 settlement has been eroded, and we are moving closer to the Decision of 1789.
During oral argument in Slaughter v. Trump, Justice Barrett offered a careful consideration of this chronology.
