During oral argument in Slaughter last month, Solicitor General John Sauer argued that there were three textual sources for an illimitable presidential removal power: the Vesting Clause, the Take Care Clause, and the Appointments Clause. Why the Appointments Clause? Because, he explained, “the power to remove flows to the power to appoint.” According to Sauer, a run of nineteenth century cases, including Ex Parte Hennen, supports this proposition.

Sauer’s contention is not new: Chief Justice Taft in Myers v. U.S. also claimed that in the First Congress, “the express recognition of the power of appointment in [Article II] enforced this view [of exclusive presidential removal power] on the well approved principle of constitutional and statutory construction that the power of removal of executive officers was incident to the power of appointment.”[1]

But as a doctrinal and historical matter, Taft and Sauer are wrong. True, there was a common-law interpretive rule at the Founding under which the power to appoint entailed the power to remove. But it was a default rule only, conditioned always on the ability of the legislature to qualify the removal power through statute, as is the case where an office is to be held for a fixed term or on good behavior. The basic idea was that an unqualified power to appoint entails the power to remove because the appointment of a new officer necessarily displaces the incumbent. This is what it meant to say, as many early American commentators did, that removal is “incident” to appointment.

We call this rule the Symmetry Rule, and there is plenty of evidence demonstrating its widespread acceptance in the Early Republic—along with the equally widespread practice, in both state legislatures and Congress, of statutorily qualifying the appointing entity’s removal authority through the creation of fixed term or good behavior offices.

There’s another reason that Taft and Sauer are wrong. As Taft suggests, the Symmetry Rule did play a role during the First Congress’s 1789 debate over the President’s power to remove the Secretary of Foreign Affairs. But in applying the Rule to Article II’s Appointments Clause, the overwhelming majority of the First Congress did not read it as giving removal power to the President alone. Instead, they understood that applying the Rule would give the removal power to both the President and the Senate, since, as Elbridge Gerry reminded his colleagues, the Appointments Clause vested the removal power “with the President, by and with the advice and consent of the Senate, who are the body that appoints.” In other words, the common-law default interpretive rule cuts against the power Taft and Sauer claim for the President, because under the Appointments Clause, the President and the Senate possess the appointing power together. No less an authority than Alexander Hamilton described the Constitution’s scheme for federal offices in Federalist No. 77 assuming that this was self-evident:

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. Where a man in any station had given satisfactory evidence of his fitness for it, a new President would be restrained from attempting a change in favor of a person more agreeable to him, by the apprehension that a discountenance of the Senate might frustrate the attempt, and bring some degree of discredit upon himself. Those who can best estimate the value of a steady administration, will be most disposed to prize a provision which connects the official existence of public men with the approbation or disapprobation of that body which, from the greater permanency of its own composition, will in all probability be less subject to inconstancy than any other member of the government.[2]

Even James Madison, the leading proponent of presidential removal during the 1789 debate, acknowledged the force of the argument that the Appointments Clause must be read to assign shared removal power to the President and the Senate. The deviation from this well-accepted “maxim,” as Senator Maclay put it, was a key reason that the 1789 “Decision” to allow the President to remove the Secretary without the Senate’s consent was regarded as such a big deal: it had altered the default Symmetry Rule for federal officers jointly appointed to an office not held on good behavior or for a fixed term. As Edward Corwin reminded readers of the Columbia Law Review in 1927, Joseph Story almost certainly regarded the President-plus-Senate Symmetry Rule to be the “true constitutional exposition of the power of removal,” the “Decision” of 1789 notwithstanding. And in 1839’s Ex Parte Hennen, the Supreme Court did as well. In that case, involving the removal of a judicial clerk, the Court noted Congress’s 1789 modification of the Symmetry Rule in the case of principal officers—the President alone could remove even though the President alone could not appoint—but explained that the common-law default otherwise remained the same: where an office was not for a fixed term or for life on good behavior, the power to appoint entailed the power to remove. Consequently, the clerk, who held an office without a fixed term, could be removed at the pleasure of the appointing court.

Today’s confusion is a byproduct of two centuries of advocacy by Presidents, their lawyers, and other advocates who have sought to establish an alternative basis for presidential removal, one that would override the power of Congress to curtail the President’s removal authority. Whatever purchase these arguments have today, they failed to persuade legal thinkers in the Early Republic, who instead interpreted the Constitution in light of the common law, recognizing Congress’s power to craft office tenure—and limit the President’s power to remove—to suit the needs of the office itself.

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] Taft calls this the “Decision of 1789.” But Jed Shugerman has shown that this putative result – that the President has an Article II power to remove jointly appointed officers at pleasure – is unsupported by the historical record, which instead reveals that most members of Congress rejected this idea and likely adopted James Madison’s deliberately obfuscatory language thanks to backroom dealing and clever legerdemain rather than any “decision” on constitutional meaning.

[2] Hamilton reportedly abandoned this position during Congress’s 1789 debate over presidential removal, for what Jed Shugerman persuasively concludes were careerist reasons. Jed H. Shugerman, The Indecisions of 1789: Inconstant Originalism and Strategic Ambiguity, 171 U. Pa. L. Rev. 753, 778 (2023).