Welcome back to the Ad Law Reading Room, where we highlight recent scholarship in administrative law and related fields. Today’s entry is “Becoming the Administrator-in-Chief: Myers and the Progressive Presidency” by Professors Andrea Katz and Noah Rosenblum, which is forthcoming in the Columbia Law Review. Here is the abstract:
In a series of recent cases, the Supreme Court has mounted an assault on the administrative state, guided by a particular vision of Article II. According to the Court’s scheme, known as the theory of the unitary executive, all of government’s operations must be housed under one of three branches, with the single head of the executive branch shouldering a unique and personal responsibility for the administration of federal law. The Constitution is thus said to require that the President have expansive authority to supervise or control the government’s many agencies.
Guiding each of the Court’s recent decisions is Myers v. U.S., the famous 1926 case about the firing of a postman. Written by President-cum-Chief-Justice William Howard Taft, Myers bolsters the Court’s jurisprudence as a supposed precedent for the unitary executive theory and alleged evidence for a deep tradition of strong executive administration.
This Article shows that Myers has been misread. It did not explicate a preexisting tradition of presidential power; rather, it invented one. While claiming to describe the role of the chief magistrate as it had always existed, Taft’s opinion broke with decades of jurisprudence to constitutionalize a new understanding of the office. This “Progressive Presidency,” which (President) Taft himself helped create, envisioned the president as administrator-in-chief. But it did so as part of a broader Progressive remaking of government, and so—unlike its modern-day unitary counterpart—carved out important independence for adjudicators and civil servants.
This Article reconstructs the Progressives’ transformation of the presidency and shows how Myers wrote it into law. Recovering this more historically accurate reading of Myers undermines the Supreme Court’s recent decisions, sets the administrative state on firmer foundations, and highlights the co-constitutive roles of institutional and doctrinal developments in making the modern presidency.
In its recent removal cases, the Supreme Court has announced a return to the “Myers rule,” which according to the Court grants near-illimitable authority to the president to remove agency officials. In doing so, the Court has seemed to associate the Myers rule (or the Court’s own conception of it) with a vision of the president as “administrator-in-chief” traced to the founding generation. And so the time is ripe for a critical reexamination of Myers, its author, and its historical context. This article provides that reexamination in ways both provocative and subtle. The authors argue that Myers is not an exemplar of originalism and, in important respects, didn’t purport to be. Instead, Myers reflected a vision of the presidency shaped by a set of commitments rooted in the Progressive Era and representing a break with earlier traditions. It’s a fascinating read and one that should inform debates about the president’s removal power going forward.
The Ad Law Reading Room is a recurring feature that highlights recent scholarship in administrative law and related fields. You can find all posts in the series here.