This term the Supreme Court is hearing argument in two major cases regarding the law of federal offices. One—Trump v. Slaughter—may strip Congress of the power to place any restrictions on the President’s ability to remove administrators at will. Another—Trump v. Cook—will address how such restrictions work, assuming that the President has to follow them.

Hidden within both disputes is a legal timebomb: the misunderstood fixed term, also known as a term of years. Today, most lawyers and judges think that such tenures—which say that officers shall serve for a certain number of years, and potentially until their successors are appointed and qualified—do not, on their own, provide protection from removal at will by the President (or other authority). They are treated as simply a device to facilitate rotation in office. Instead, to determine if an officer is “independent,” practitioners look to see if a statute has any provisions authorizing removal “for cause” (the language at issue in Lisa Cook’s case) or for specific causes such as “inefficiency, neglect of duty, or malfeasance in office” (the language at issue in Rebecca Slaughter’s case). Even though these provisions, when paired with a term of years, read naturally as permissions to remove in certain circumstances—“officer x shall serve for a term of y years unless sooner removed by the President for cause”—today’s lawyers and judges read them counterintuitively as protections from removal outside of certain circumstances.

As a historical matter, this reading is incorrect. In 2021, we published an article showing that legislatures throughout the nineteenth and twentieth centuries regularly paired such provisions with fixed terms to enable removal in discrete circumstances, using the words as permissions: without them, an officer serving a fixed term was widely and uncontroversially understood to be unremovable prior to the end of their term.

One question our article did not answer was how such a critical and widely used legal term came to be so misunderstood. The full explanation is, not surprisingly, complicated. But one critical source of confusion is easy to pinpoint: a misreading of 1897’s Parsons v. United States. This Supreme Court decision has been invoked repeatedly by the Department of Justice for the proposition that a term of years is a ceiling and not a floor. The government’s brief in Cook, for example, cites the opinion for the proposition that a term of years, on its own, offers no protection from presidential removal at pleasure.

But Parsons established no such thing. Commentators who claim otherwise have been thrown off by the Court’s distracting dicta and the case’s intricate historical backdrop, which involves several once-pivotal, now-forgotten pieces of nineteenth century statutes. Recovering that history, as we do here, lets us set the record straight. Instead of establishing that a fixed term office conveyed no protection from removal, Justice Peckham’s majority opinion in fact demonstrates the opposite: that a statute establishing a fixed term office was, in Peckham’s own words, “a statute prohibiting [presidential] removal.” 167 U.S. 324, 334 (1897).

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Parsons is a case about President Grover Cleveland’s attempt to remove Lewis E. Parsons, a U.S. district attorney.[1] Parsons argued that Cleveland had violated the law, which established his office for a fixed four-year term—full stop. In seeking the salary and fees for the unserved balance of his term, Parsons relied on the widely-accepted significance of a term of years: because the underlying statute lacked any provision authorizing his removal, the President had acted unlawfully.

The Court sided with the President, holding that the statute did not, in fact, protect Parsons from at will removal. At points, taken out of context, the Court seems to be saying exactly what its later interpreters have claimed: that a fixed year term, on its own, offers no job security. But in fact, the holding is expressly limited to the facts of Parson’s case, which were shaped by the improbable legislative history of the underlying district attorney statute. What the opinion actually holds is that the statutory language purporting to create an unremovable fixed term was, in this specific case, not what Congress intended. It was a scrivener’s error.

The statutory saga, recounted in detail in the Court’s opinion, starts in 1820. That year, Congress passed what was known as the Four Years’ Law, making a dramatic change to the federal bureaucracy. The law provided that dozens of jointly appointed officers, including district attorneys, collectors of customs, and naval officers, would be “appointed for the term of four years, but shall be removable from office at pleasure.” In 1789, Congress established these offices to be removable at pleasure, a feature that Congress did not wish to upset even as it facilitated rotation in office. To do so, they knew they had to make their intention explicit, since absent any statutory language to the contrary, offices granted for a term of years would not allow presidential removal at all. The measure so disrupted the conventional understanding of fixed terms that James Madison wrote to Thomas Jefferson that the law “overlooks the important distinction between repealing or modifying an office”—limiting its term, in other words—“and displacing the officer. The former is a Legislative, the latter an Executive function.”[2]

Madison’s concerns notwithstanding, the Four Years’ Law was soon folded into appointments practice, allowing the Senate a regular opportunity to weigh in without encroaching on the President’s power to remove the specified officers at pleasure. Andrew Jackson made liberal use of this power during his presidency; his defenders viewed the resulting rotation in office as an important way to “ventilate and democratize the federal branch,”[3] while Whig opponents saw it as a “spoils system” designed to build the Democratic party on the government’s dime.[4] Whatever the intent, one of the chief effects of the Four Years’ Law was to routinize at the federal level a tenure combination—term of years plus removal at pleasure—that had once been rare, conditioning legal and political actors to think of a fixed term as not only an inviolable tenure, but also a key rotational tool.

The Four Years’ Law remained the law until 1867. In that year, Congress, frustrated by President Andrew Johnson’s determination to undermine Congress’s plans for Reconstruction, passed the Tenure of Office Act, requiring the Senate to consent to the removal of all jointly-appointed officers, excluding Article III judges. If the Senate was not in session, the President could suspend an officer for a discrete set of causes: those who were shown “by evidence satisfactory to the President” to be “guilty of misconduct in office, or crime, or for any reason shall become incapable or legally disqualified to perform its duties.” Within twenty days of the Senate’s reconvening, the president was to report all such suspensions, together with “the evidence and reasons for his action in the case.” If the Senate consented, it would “certify” its consent to the President, who could then remove the officer and appoint another, subject to the Senate’s advice and consent. Although the law was amended in 1869 (following the election of Ulysses S. Grant, a proponent of Congressional Reconstruction) to soften the most stringent limits on presidential removal, the law that remained on the books until 1887 continued to require Senate approval to remove an officer. 

Practically speaking, the passage of the 1867 Tenure of Office Act meant that to remove a district attorney, the President would need Senate consent, the at-pleasure removal provisions of both the 1789 district attorney statute and the Four Years’ Law notwithstanding. When the Tenure of Office Act was repealed in 1887, the at-pleasure removal provisions of those laws should have gone back into effect. But—and here is the overlooked twist—it just so happened that during the twenty years in which the Tenure of Office Act was in effect, Congress appointed a three-member commission to revise all permanent public federal statutes for publication as a comprehensive code.  Given a free hand to clarify the wording of existing statutes, the commissioners tweaked laws from the past to account for changed circumstances. This, Justice Peckham explained in Parsons, is what had happened with Section 769, which incorporated the 1789 statute creating the office of district attorney. In drafting Section 769, the revisers took taken into account the 1820 Four Years’ Law and the 1867 Tenure of Office Act. The Four Years’ Law, the revisers understood, had left the district attorney an at-pleasure officer but limited the office to a four-year term. The Tenure of Office Act’s requirement that the Senate consent to the removal of every jointly-appointed officer, meanwhile, had silently repealed the Four Years’ Law’s at-pleasure removal provision. So the commissioners cut the provision of the 1820 law stating that attorneys could be removed at the President’s pleasure notwithstanding the fixed term. As Peckham explained, the commissioners had understood that the Tenure of Office Act overrode that provision and that therefore to remove an officer, term tenured or otherwise, the President needed the Senate’s consent.

 The resulting law, post-revision, made sense—as long as the Tenure of Office Act remained in effect. But the commissioners hadn’t anticipated the Tenure of Office Act’s repeal, which came fourteen years after the commission had finished its Revised Code and disbanded. And the legislators who repealed the Tenure of Office Act did not think to go back and again revise sections of the Code that had previously featured the 1820 combination of a term of years plus at pleasure presidential removal. Overnight, and without any awareness or debate, the office described in Section 769 was transformed from a four-year term removable by the President with the Senate’s advice and consent to one not removable at all. This defied logic, Peckham explained. Certainly, Congress had not intended, in repealing the Tenure of Office Act, to make removal more difficult: the whole point of repeal was to make removal easier by taking away the requirement of Senate consent. Repeal, Much of the confusion about the case stems from the fact that Peckham decided to review the constitutional question—whether Congress could, without violating Article II, limit the President’s power to remove district attorneys—to illustrate how unlikely it was that Congress had intended to make the district attorney unremovable. He reaches no conclusions on this point, seeking only to show the authorities that were lined up against Congress’s power to do so. Methodologically, the case has a lot in common with the old staple Holy Trinity Church (or more recently King v. Burwell). The Court, in an effort to get around what looks like plain meaning, offers historical and sociological context.

Peckham’s context is strikingly selective. It begins with what had already become, by 1897, a hoary staple of presidential removal arguments: the Decision of 1789, the First Congress debate over the President’s ability to remove a jointly appointed officer without Senate consent. The House’s decision on the wording of the bill establishing the office of Secretary of Foreign Affairs was known, Peckham wrote, to have established “that construction…which reposed in the President alone the power to remove from office.”  Admittedly, Peckham wrote, Chief Justice Marshall had written in Marbury v. Madison that the President could not remove an officer appointed for a term of years. But no matter: even though “[w]hatever has been said by that great magistrate in regard to the meaning and proper construction of the Constitution is entitled to be received with the most profound respect,” Marshall’s statements regarding the limits on the President’s removal authority were in fact irrelevant, for “the material point decided was that the court had no jurisdiction over the case as presented.”

Having cabined Chief Justice Marshall’s Marbury opinion, Peckham highlighted a more congenial source: an 1851 opinion by John J. Crittenden, attorney general to President Millard Fillmore. In his opinion, Crittenden had concluded that the President had the power to remove the chief justice of the territory of Minnesota, despite the fact that the judge had been appointed to a term of years, because of “the executive power which, by the Constitution, is vested in the President of the United States over all civil officers appointed by him, and whose tenures of office are not made by the Constitution itself more stable than during the pleasure of the President United States.” Peckham did not mention that Crittenden had backed up his conclusion with no precedent and only a vague and inconclusive reference to the Decision of 1789 and a mention of the Take Care Clause, or that the Supreme Court had not adopted Crittenden’s analysis in the suit that followed. It was enough to cite the document, using its conclusory argument to give one more reason to reject what appeared to be the plain meaning of Section 789.

Ultimately, Peckham acknowledged, his “short review” of the constitutional question was “unnecessary for us in this case.” The Court’s holding of the case is simply this: that in light of the confusion generated by the interaction of the Four Years’ Law with the Tenure of Office Act and its repeal, a statute that appeared to “prohibit . . . removal” of the U.S. attorneys during their four-year terms should not be read to take away the President’s power, exercised since the founding, to remove such attorneys at will. Id. at 335. Such a reading, although perhaps the natural one on the face of the statute, “could never have been the intention of [C]ongress,” Peckham explains, given the unusual drafting history of the relevant provision. Id. at 343.

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Although executive branch lawyers have repeatedly cited Parsons for the proposition that a term of years tenure did not grant tenure in office, the Supreme Court has not yet embraced this misreading. Instead, it has stumbled over statutes like the Securities Exchange Act and mischaracterized removal provisions creating the Consumer Financial Protection Bureau in Dodd-Frank as protections. In the coming weeks and months, as the Court faces similar statutes in Slaughter and Cook, it will have a chance to set things right.

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

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[1] Until the mid-twentieth century, U.S. attorneys were known as district attorneys.

[2] Letter from James Madison to Thomas Jefferson (Dec. 10, 1820), in The Papers of James Madison Digital Edition (J. C. A. Stagg ed., digital ed. 2010).

[3] See Sean Wilentz, The Rise of American Democracy: Jefferson to Lincoln 315 (2005).

[4] For an account of the Whigs’ frustration, see Daniel Walker Howe, What Hath God Wrought: The Transformation of America, 1815-1848 584 (2007).