Document Type

Article

Publication Date

12-2025

Abstract

The executive removal power figures prominently on the Supreme Court’s current agenda. That agenda is beset, however, by a historical misunderstanding, when it comes to multi-member bodies, which too often are assumed to be modern creatures. This paper provides crucial new historical evidence showing that the Founders, indeed a who’s who list of Founders, approved and even sat on commissions in the Republic’s early years. In some cases, the Founders called these early commissions “independent,” deferred to their judgments as “final,” and demanded that the members be “impartial.” Given the vast discretion given these commissions, these characteristics are best described as “fiduciary” bodies. Presidents and Congresses, in the early Republic, endorsed such bodies precisely because Presidents and Congresses believed that, for some tasks requiring the national trust, political partisanship was a danger to the administration of the rule of law, and to the nation’s most urgent needs.

This paper speaks to questions about the power of removal that are likely to arise in the future about presidential control over administrative agencies. The removal literature has focused almost exclusively on single officers, not “groups” which raise different questions. Even conceding that the President has broad removal power over individual officers, how far does that removal power go when it comes to controlling multi-member agencies? May the President eliminate the bipartisan nature of commissions by removing all commissioners of an adverse political party? May the President eliminate multi-member agencies tout court by removing all their members? May the President denying them sufficient members to establish a quorum? The history offered in this Article suggests that Presidents created and respected multi-member agencies deemed to act “independently” or “impartially.” Presidents signed these multi-member entities into law, respected their structure, and executive officers deferred to them, including the finality of their decisions.

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