Today’s Ad Law Reading Room entry is “Protecting Perkins: Removal, Supervision, and Article II,” by Amy J. Wildermuth and Peyton C. Baker. Here is the abstract:

Against the backdrop of recent far-reaching executive actions to expand at-will removal from the highest-level officials to the lowest, the Supreme Court’s recent appointment and removal cases have consistently embraced a strong unitary executive and restricted the ability of Congress to protect high-level officials from removal. Based on those cases, many have assumed that if the President must be able to remove those who are at the top of the hierarchy at will, she must also be able to remove those below it at will as well. But these debates fail to fully explore and explain a critical doctrinal anchor. United States v. Perkins (1886) has long been cited as a foundational case concerning Congress’s authority to restrict the removal of inferior officers. Yet there has been very little exploration of its origins and context.

Through an original historical reconstruction of Perkins, including archival research into its factual and legal context, this Article explains how the Court arrived at its key holding: Congress has the authority to restrict the removal of inferior officers when it exercises its authority to vest their appointment in, for example, a head of a department. After exploring these origins, we trace its treatment across the six Supreme Court decisions that cite it, including Myers and Humphrey’s Executor, the 1988 decision in Morrison v. Olson, and the more modern appointment and removal cases of Free Enterprise and Seila Law.

By 2020, the Court in Seila Law transformed the widely accepted holding of Perkins permitting Congress to provide removal protections for inferior officers to suggest removal protections are permissible only for inferior officers with “limited duties.” We explore three possible consequences of this reframing and their implications. Ultimately, we conclude that the Seila Law articulation is not only incorrect but also misses the critical point. When determining whether removal protections are available, the key is not examining the duties of a particular inferior officer. It is instead ensuring that inferior officers remain inferior. We contend that the Court’s current test for separating principal and inferior officers focusing on supervision and final decisionmaking authority provides exactly the needed framework for Article II purposes. So long as inferior officers are subject to direction and lack final decisional power, removal protections for them do not undermine presidential control, making the holding of Perkins just as correct today as it was 140 years ago.

With the Supreme Court almost certain to invalidate statutory removal restrictions protecting most principal officers, administrative law scholars’ gaze has turned to lower levels of the federal bureaucracy (see, for example, Chris Walker’s recent post about his new article with Aaron Nielson). Wildermuth and Baker’s article pivots around the Supreme Court’s 1886 decision in United States v. Perkins. But its ambitions are wider. Ultimately, it makes an elegant and persuasive case against a maximalist reading of Seila Law that would prevent Congress from placing removal restrictions on some kinds of inferior officers. Rather, Wildermuth and Baker argue, Congress may follow the Perkins blueprint to protect all such officers, as long as (and this is an important caveat) they are in fact inferior.

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.