Sinking And Floating Liquidation |
Continuing the debate over liquidation from Bruen to Slaughter.
Josh Blackman | 12.18.2025 1:18 AM
Much of the debate about the removal power focuses on practice after the Constitution was adopted. Of course, there is the so-called Decision of 1789. There is also the Decision of 1790, which created the Sinking Fund Commission. However, in the immediate years after the framing, the Decision of 1789 seemed to take hold. Fast-forward one hundred years, and there was the Decision of 1887, which created the Interstate Commerce Commission (ICC). As the Progressive Era unfolded, Congress began to create more multi-member commissions with removal protections. Myers v. United States found that the President had the absolute power to remove a single executive branch officer, but Humphrey's Executor upheld tenure protections for FTC commissioners.
How should a court make sense of these competing traditions? For the first century, after ratification the Decision of 1789 seemed to suggest the President's removal power could not be restricted. For the second century after ratification, the Decision of 1887 seemed to suggest that the President's removal power could be restricted. But in the past two decades, the 1887 settlement has been eroded, and we are moving closer to the Decision of 1789.
During oral argument in Slaughter v. Trump, Justice Barrett offered a careful consideration of this chronology.
Barrett acknowledged that recent historical work "shows that independent agencies has a longer pedigree than maybe some thought originally." But she maintained that the Sinking Fund Commission did not really establish a precedent for statutory removal restrictions. It was true that the Vice President and Chief Justice were appointed to the Commission by statute, and the President could not remove them. But the President could remove the other three members of the commission: the Secretary of State, the Secretary of the Treasury, and the Attorney General. Thus, the President could control a majority of the Commission. And in reality, Washington likely expected Alexander Hamilton to make all of the important decisions. Indeed that is exactly what would happen, so Washington had no need to fire anyone. Moreover, the Sinking Fund Commission, as well as the Revolutionary War Debt Commission, had "very, very limited authority."
Justice Barrett asked Amit Argawal, counsel for Slaughter, to "assume, that I disagree with you about the history." When Justice Barrett asks counsel to "assume" something, you know what she believes. Rather, Barrett said, the first "statutory removal restriction, like the inefficiency, neglect, malfeasance [standard] appeared in the 1887 with the ICC."
Justice Barrett then turned to the topic of........