Two Cheers for Chief Justice Roberts on the Unitary Executive

Chief Justice John Roberts wrote the most consequential and important majority opinion of his tenure as Chief Justice today in Trump v. Slaughter. In a 6 to 3 decision, the Supreme Court correctly overruled its 91-year-old precedent in Humphrey's Executor v. United States (1935), consigning that erroneous nine-page opinion to the ashbin of history. I had argued for this outcome in an amicus brief co-signed with Attorneys General Ed Meese and Michael Mukasey that sets out our thoughts on the case in far more detail than I am going to discuss in this blog post.

The highlights of Chief Justice Roberts' opinion:

1. It cleanly overruled the dreadful Humphrey's Executor opinion instead of obliquely distinguishing it out of existence, as the Court has done with some other flat-out wrong precedents like Flast v. Cohen .
2. It was a triumph of originalism and textualism over the so-called pragmatism offered by the three dissenters.
3. It correctly read the Vesting Clause of Article II as a grant of the removal power and of the power to execute the law rather than as being a mere designation of the President's title as some have argued.
4. It rightly endorsed Chief Justice William Howard Taft's account of the Decision of 1789 in Myers v. United States —an opinion in which Taft correctly argued that the Decision of 1789 stood as an endorsement by the First Congress of the theory of the unitary executive.
5. It made clear that the President must control all exercises of the executive power—a conclusion that causes me to hope that today's holding will also control the removal of inferior officers and employees exercising executive power, even if they were appointed by the Head of a Department.
6. It recognized that our first seven presidents, George Washington, John Adams, Thomas Jefferson, James Madison, James Monroe, John Quincy Adams, and Andrew Jackson, had all been believers in the theory of the unitary executive, by which I mean only that the President has the power to remove at will anyone who is exercising executive power.
7. It construed the Opinion in Writing Clause correctly as an aid to the president's power to control the executive branch and not as marking the outer limit of the President's power over the executive branch.
8. It correctly dismissed the argument that the so-called Sinking Fund Commission established in 1790 showed the President lacks unlimited removal power because the President could always terminate the power of the Chief Justice and the Vice President to act on the Sinking Fund even though the President cannot fire the Chief Justice and the Vice President from their day jobs.
9. It discussed Morrison v. Olson (1988) in a fashion that renders that erroneous opinion just as dead as is Humphrey's Executor .
10. It made clear that the President needs to have an unlimited power to remove at will principal and superior officers who are exercising executive power.