The Supreme Court heard argument on Monday in Trump v. Slaughter, a case in which the President seeks to override the power of Congress to limit, through legislation, presidential removal of federal administrators. The argument revealed some confusion about the law and history of federal offices and multiple precedents important to resolving the question. This post examines mistakes and misreadings with respect to: the design of the Federal Reserve System; the meaning of a fixed term; and the Court’s decisions in Marbury v. Madison, Ex Parte Hennen, and Parsons v. United States.

The Federal Reserve Act

Let’s start with the Federal Reserve. The Court appears to have made no progress in its quest to carve out the Federal Reserve from the sweep of the President’s proposed constitutional theory. When asked about this issue by Justice Kavanaugh, Solicitor General Sauer quoted back the Court’s one sentence fragment from its order in Wilcox this past May. Specifically, Sauer said: “The Federal Reserve is a quasi-private uniquely structured entity that follows a distinct historical tradition of the First and Second Banks of the United States.”

The central problem with this response—one that no one addressed on Monday—is that the Federal Reserve is not “an entity.” The Federal Reserve System is composed of many different organizations, including thousands of investor-owned “member banks,” and the institution that most people are thinking of when they say the “Federal Reserve” is the Board of Governors of the Federal Reserve System, which is not unique in a relevant sense or private in any sense.

The Board is a multimember commission. It is part of the government, it is not a bank, and it does not follow in the distinct historical tradition of the First or Second Banks, which were investor-owned corporations. The Board follows in the distinct historical tradition of the Interstate Commerce Commission and was understood to do so at the time it was proposed by Woodrow Wilson and incorporated by Congress into the Federal Reserve Act. The First and Second Banks, for their part, offer no help to the President’s position as they formed no part of the government whatsoever. As a result, their existence in the Early Republic does not establish an historical exception to the President’s theory—the Banks are consistent with Unitary Executive Theory, full stop. The Board, on the other hand, is not. See Lev Menand, The Supreme Court’s Fed Carveout: An Initial Assessment (May 27, 2025).

The Solicitor General did have something to add to the Wilcox line. He said: “The Federal Reserve has been described as sui generis. Any issues of removal restrictions as a member of the Federal Reserve would raise their own set of unique distinct issues.” But this does nothing more than restate the question. In other words: “How is the Federal Reserve different? Answer: Because it is different!” (Later in the argument, Kavanaugh described the Fed carve out as “based on history and tradition and function,” Tr. at 48, but he did not explain how or why. After all, the Bank of the United States was not part of the government and did not exercise governmental power of any kind. The Board, meanwhile, is a federal bank regulator.)

Fixed Terms and “Removal Protections”

Perhaps the biggest point of confusion on Monday was the basic structure of removal “protection” in the first place. Contemporary practitioners, almost to a person, have come to understand the language authorizing the President to remove for certain specified causes such as inefficiency, neglect of duty, and malfeasance in office (INM), as restricting the President from removing such officers at pleasure. If there are removal provisions like this, then the officers are “protected’ from at will termination. If there are no such provisions, then the officers can be fired summarily by the President. It is an expressio unius approach to the text, rooted in a classic intentionalist mode of statutory interpretation (that sometimes also looks to the functions of the relevant officer to infer whether Congress meant to insulate that officer’s work from the President).

The Solicitor General drew on this approach when he asserted in argument that the Federal Election Commission (FEC) is not independent of the President because “it does not have statutory removal restrictions,” by which he meant provisions authorizing the President to remove members only for cause such as for INM. Justice Barrett also adopted this approach when she said in colloquy with Slaughter’s counsel that “there were no statutory removal restrictions” for the Revolutionary War Debt Commission, because that statute did not include any provisions regarding removal. Tr. at 156.

But this understanding is simply incorrect as a matter of original public meaning and congressional intent, at least when it comes to the statutes and agencies at issue, including the War Debt Commission, the Federal Trade Commission, and the FEC. As James Madison explained in Federalist No. 39, the Anglo-American law of offices features three distinct forms of office holding: those “holding their offices during pleasure, for a limited period, or during good behavior” with the “tenure of ministerial offices generally . . . a subject of legal regulation.”

No less an authority than Chief Justice John Marshall explained the effect of a fixed term in what was considered the leading case on the law of federal offices in the nineteenth century:  Marbury v. Madison. “Some point of time must be taken,” he wrote, “when the power of the executive over an officer, not removable at his will, must cease . . . . [A]s the law creating the office [a justice of the peace for Washington, D.C.], gave the officer a right to hold for five years, independent of the executive, the appointment was not revocable; but vested in the officer legal rights, which are protected by the laws of his country.” See also Jane Manners & Lev Menand, The Three Permissions: Removal and the Statutory Limits of Agency Independence.

It is for this reason that Alexander Hamilton described the War Debt commissioners as “independent”: they were authorized to “continue until the first day of July, one thousand seven hundred and ninety two,” and there was no provision authorizing the President to remove them prior to the completion of this fixed term. For a comparison of their commissions to the commissions for officers whom the President could remove at pleasure, see recent work by Christine Chabot. The War Debt Commission was the first independent agency—there was no presidential removal at all—and it was created by the First Congress.

It is also for this reason that the Federal Trade Commission Act states, first, that commissioners “shall be appointed for terms of seven years,” and, second, that “[a]ny commissioner may be removed by the President for inefficiency, neglect of duty, or malfeasance in office.” As Justice Frankfurter later described it, Congress by this language, “had given members of the Federal Trade Commission a seven-year term and also provided for the removal of a Commissioner by the President.” In 1958, in Wiener v. United States, the Court specifically held that commissioners whose “terms of office” Congress provided “shall expire . . . at the earliest practicable time after the expiration of the time for filing claims, but in no event later than three years after the expiration of such time” did not serve at the pleasure of the President. “This limit on the Commission’s life,” the Court explained, “is the mode by which the tenure of the commissioners was defined, and Congress made no provision for removal of a Commissioner.” The Court held specifically that “no [removal] power is given to the President directly by the Constitution, and none is impliedly conferred upon him by statute simply because Congress said nothing about it.”

And it is for this reason that Congress thought it had created the Federal Election Commission as “independent,” Senate Rep. No. 93-309, even though the statute in 1974 included no language regarding removal. (As Senator Walter Mondale explained, “Any agency set up to monitor campaigns on a long-term basis will need the same independence that the Senate has demanded be granted to the Watergate prosecutor.”) The Assistant Attorney General for the Office of Legal Counsel testified as follows before Congress with respect to a draft of the legislation, which specified an unqualified fixed term of six years: “Although the bill establishes the Commission as ‘an independent establishment of the executive branch,’ as we construe the bill the Commission is for constitutional purposes not subject to Executive control. The members of the Commission are to be appointed by the President, by and with the advice and consent of the Senate, for a term of years. However, since it appears to be the intention of the bill to create a Commission as a basically quasi-legislative and quasi-judicial agency and require its members to act independently of Executive control, it would seem that those members could not be removed by the President during their term of office.” Senate Hearings, Federal Election Reform, 1973, at 225.

Marbury v. Madison (1803)

There was also a fair amount of misdirection about the holdings and reasoning of certain key precedent. Justice Kavanaugh, for example, suggested that Marbury is about a “non-Article III court.” Tr. at 49. He also called Marbury’s office a “judicial office.” Tr. at 50. But justices of the peace, who were territorial officers, accord Tr. at 50, exercised executive as well as judicial tasks. Historically in England and during the colonial period, these included “local government and administrative responsibilities, such as supervising the construction of roads and public buildings, levying taxes, issuing licenses, administering the poor and orphan laws, and regulating trade, wages, and prices.”  In early D.C., it appears they included “local property assessment.” Just as importantly, the Court in Marbury made no qualification with respect to a JP’s territorial or functional nature. It cited only the fixed term in the statute.

Ex Parte Hennen (1839)

The Solicitor General repeatedly mischaracterized the Court’s holding in Ex Parte Hennen. He argued that the case affirmed the President’s power to remove those who wield executive power as a constitutional matter, regardless of statutory provisions. See Tr. at 4 (stating that “the President’s power to remove and thus supervise those who wield executive power on his behalf . . .  has been confirmed by . . . Ex Parte Hennen”); Tr. at 11 (stating that in Ex Parte Hennen “this Court said that it’s a settled and well-understood construction of the Constitution that the President alone can remove executive officials”); Tr. at 20 (“Ex Parte Hennen describes [the Government’s Vesting Clause argument] as settled beyond doubt”); Tr. at 33 (answering that the Court said that Congress didn’t have plenary power to impose removal restrictions on executive branch officers “no later than Ex Parte Hennen . . . when the Court said that . . . this is the settled and well-understood construction of the Constitution that the President alone has the removal power”); Tr. at 36 (citing Ex Parte Hennen as an example where the Court took a contrary view to the justices in Humphrey’s Executor).

But this is wrong. Ex Parte Hennen affirms no such power. To the contrary, Hennen simply articulates a legislative default rule of removal for jointly appointed principal offices (all that was actually resolved in 1789), namely, that the President could remove principal officers even though he could not appoint them on his own.

This was indeed a big departure from what the Constitution appeared to provide. The English default rule—against which the Constitution was written—was a symmetry rule: offices without tenure cease when the appointing power makes a new appointment and therefore the power to appoint entails the power to remove. This is what Alexander Hamilton understood in the Federalist No. 77 (“It has been mentioned as one of the advantages to be expected from the co-operation of the Senate, in the business of appointments, that it would contribute to the stability of the administration. The consent of that body would be necessary to displace as well as to appoint. A change of the Chief Magistrate, therefore, would not occasion so violent or so general a revolution in the officers of the government as might be expected, if he were the sole disposer of offices.”).

The Court in Ex Parte Hennen says nothing suggesting that the President has the inherent power to remove officers whom Congress has insulated from removal by law. Instead, it states that the English default rule—the appointing power removes and, in the case of principal officers, the President removes—can be changed by the Constitution or by Congress where a fixed term office is created. (“All offices, the tenure of which is not fixed by the Constitution or limited by law, must be held either during good behavior, or . . . at the will and discretion of some department of the government, and subject to removal at pleasure.”) It is essential to the holding in Hennen that for the office of clerk “no tenure is fixed.”

Parsons v. United States (1897)

Finally, the Solicitor General misconstrues the Court’s decision in Parsons. As Jane Manners and I recently explained, Parsons has been widely cited for a proposition it does not establish: that a fixed term is, on its own, only a ceiling and never a floor. (We previously made this point in 2021, as did Noah Rosenblum and Andrea Katz in 2023.)

On Monday, the Solicitor General also cited it for the proposition that the Constitution permits presidential removal of all executive officials, regardless of statutory limitation. See Tr. at 11 (the Court in Parsons stated that it was “settled beyond the power of alteration” that the “President alone can remove executive officials”); Tr. at 19 (stating that Parsons says that it “is beyond question that there’s this removal power” in the President); Tr. at 36 (citing Parsons as an example of a decision in which the Court adopted a contrary position to that advanced by the justices in Humphrey’s Executor). But Parsons does not so hold. The case resolved only a statutory question on statutory grounds. The Court expressly disclaimed resolving the constitutional question. And although in dicta Justice Peckham suggests that the President has a broad constitutional power to remove government officers, he never considers or addresses offices such as those at issue in Humphrey’s Executor: the opinion treats only district attorneys (what we now call U.S. Attorneys) and other offices that had long served at the President’s pleasure (collectors of the customs, naval officers, navy agents, paymasters in the army, and the apothecary general).

Lev Menand is an Associate Professor of Law at Columbia Law School.