Executive Power

Every president from 1881 to 1901 successfully defended presidential at-will removal power.

Steven Calabresi | 1.6.2026 12:22 PM

During the oral argument in Trump v. Slaughter, Justice Amy Coney Barrett asked counsel for respondent Slaughter how long independent agencies had existed for and counsel suggested to her, incorrectly, that they dated back to the last twenty years of the 19th Century. In fact, as I will show in a series of posts on this blog, no truly independent agency ever existed prior to the decision in Humphrey's Executor v. United States in 1935. My full account of the history of presidential resistance to the creation of independent agencies during this period appears in: Steven G. Calabresi & Christopher S. Yoo, The Unitary Executive: Presidential Power from Washington to Bush (Yale University Press 2008). This blog post will discuss presidential removal power from 1881 to 1901. Subsequent posts will examine presidential removal power from 1901 to 2009. None of these posts could have been written by me without consulting and quoting from the excellent work done by my book co-author, Professor Christopher S. Yoo. He gets all the credit, and I take all the blame for whatever is said below.

In recounting our actual practice from 1881 to 1999, I do not mean to endorse the view that this practice is constitutionally relevant to deciding Trump v. Slaughter. I believe that President Trump should win this case because of the original public meaning of the text of the Constitution. I recognize, however, that only two of the nine justices on the current Supreme Court follow exclusively the original public meaning of the Constitution's text. All the other seven justices on today's Supreme Court think, to various degrees, that arguments from practice are sometimes relevant to the question of whether Humphrey's Executor (1935) should be overruled. Since I have co-published the book with Christopher Yoo cited above on our actual practice, and since the issue is now pending before the Supreme Court, I want to explain why the arguments from presidential practice that Christopher Yoo helped me to write about 18 years ago support overruling Humphrey's Executor (1935).

It is important to review in tedious detail the actual history of presidential assertions of executive power from 1881 to 1901 because many academics who have not seriously examined the subject wrongly believe that the passage of the Pendleton Civil Service Act and the creation of the Interstate Commerce Commission in the 1880's introduced new and severe limits on the President's removal power. These same academics also deny that the Executive Power Vesting Clause of Article II includes an inherent removal power. This is simply wrong. I will therefore work painfully through every presidential administration from 1881 to 1901 to show that the Gilded Age presidents all believed in the theory of the unitary executive and unlimited and inherent presidential power to remove all Senate confirmed officers at will, except for Article III judges who have tenure during good behaviour.

President Chester A. Arthur served as president from 1881 to 1885. Most importantly for this blog post, President Arthur presided over the creation of a three-member, bipartisan Civil Service Commission whose members were appointed subject to Senate consent, but who could, critically, be removed at will by the President. The Pendleton Act, as it was called, required that open, competitive examinations be given to prospective civil servants, with appointments going to those who received the highest grades. The Act forbade federal employees from asking for or receiving contributions to political candidates in any public building. The Pendleton Act ended the Jacksonian spoils system without limiting presidential removal power at will, by making it impossible to appointed unqualified political cronies to vacant federal employee jobs.

President Arthur specifically asked that the Senate version of the Pendleton Act not grant federal employees "a tenure of office which is substantially a life tenure" as had existed at that time in the United Kingdom. President Arthur prevailed on this point, and the President was specifically given the power to apply civil service status only to "subordinates whose duties are purely administrative and have no connection with any political principles." Calabresi & Yoo at 207. The revised and final act deleted all restrictions on the president's power to remove. Once appointments had to be awarded to the winner of competitive exams, there was no longer any incentive to make partisan removals. It was in this way that the Pendleton Act ended the Jacksonian spoils system while being fully consistent with the theory of the unitary executive.

President Grover Cleveland, whose first term ran from 1885 to 1889, was a Jacksonian Democrat who was fiercely committed to securing the complete elimination of the Tenure of Office Act of 1867, as modified in 1869. On March 1, 1886, President Cleveland issued a scathing public message declaring that "the power to........

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