Executive Power

Humphrey's Executor from 1969 to 1989.

Steven Calabresi | 1.11.2026 11:06 AM

At oral argument in Trump v. Slaughter much discussion focused on the propriety of the Supreme Court today, in 2026, overturning a 90-year-old decision like Humphrey's Executor. In fact, as my immediately preceding blog posts show, since 1937 Presidents Franklin Roosevelt, Harry Truman, Dwight Eisenhower, and John Kennedy have all said that Humphrey's Executor is either bad constitutional law, bad policy, or both. Far from being a venerated precedent like Swift v. Tyson, which was nonetheless overruled, Humphrey's Executor has been controversial ever since the opinion was handed down. In making this argument, I am drawing on Steven G. Calabresi & Christopher S. Yoo, The Unitary Executive: Presidential Power from Washington to Bush (Yale University Press 2008). Christopher Yoo gets all the credit for this series of blog posts while I will take any blame there is for them.

Richard M. Nixon served as President of the United States from 1969 to 1974. President Nixon was a committed believer in the frequent use of the removal power. "[D]uring his five-year tenure in office, he in fact appointed thirty cabinet heads, breaking the old record held by Ulysses S. Grant…. [T]he median length of tenure of cabinet secretaries fell from forty months to eighteen. Nixon was not afraid to make removals, as the frequent turnover in his cabinet secretaries illustrates. Indeed, he began his second term by asking for the resignations of all his cabinet secretaries so he could decide which ones to retain. He noted that in doing so that once a cabinet official has been in place for a while, the bureaucracy starts to run him instead of the other way around." Calabresi & Yoo at 346.

"Nixon protected the president's removal power when he successfully resisted Congress's attempt to remove his Office of Management and Budget Director Roy Ash and his Deputy OMB director Fred Malek by abolishing their positions and reestablishing them subject to Senate confirmation…. [Congress backed down and settled for] "legislation the next year to require Senate confirmation only of future OMB directors and deputy directors." Id. at 347.

Nixon transformed the Bureau of the Budget, which was renamed the Office of Management and Budget (OMB), so that "instead of just clearing all budgets except for those of the Central Intelligence Agency and the Department of Defense before they were sent to Congress, the OMB would be concerned with policy and operations management. This was another way for the White House to exert more control over the departments. This was a crucial step in reinforcing the unitary executive, because the power of OMB could be centrally harnessed by the president to bring recalcitrant cabinet departments and agencies into line." Id. Nixon began having OMB do a cost benefit analysis only of proposals from the Environmental Protection Agency, an executive branch agency, which Nixon himself created. Eventually, under Ronald Reagan and his successors, such OMB cost-benefit analysis of all agency regulations would greatly enhance presidential power.

There is a whole history of OMB that traces back to commissions in the Teddy Roosevelt and Taft Administrations calling for the creation of such an agency, to President Harding establishing the Bureau of the Budget in the Treasury Department, to Franklin Roosevelt moving the Bureau of the Budget to the Executive Office of the President, to Nixon renaming the Bureau to be OMB, to Ronald Reagan putting OMB in charge of doing a cost-benefit analysis of regulations. This is an important part of the history of the unitary executive—a history to which President Donald Trump is now adding a new, but familiar chapter.

"Nixon also undertook efforts to dominate the independent agencies. His efforts were based on the conclusion of the Advisory Council on Executive Organization (commonly known as the 'Ash Council' after it chairman, OMB director Roy Ash) that the commissions were an 'anomaly in government structure.' Independence had originally been intended to shield the regulatory process from the partisanship of the executive branch, but, instead, it had rendered the agencies 'not sufficiently accountable to either Congress or the executive branch.' The report elaborated:

"'Congress conceived of these commissions as independent of executive branch control, but in fact the commissions are almost as independent of Congress itself. Apart from appropriations approval, periodic program review,........

© Reason.com