Executive Power

Presidential non-acquiescence in Humphrey's Executor from 1989 to 2009.

Steven Calabresi | 1.12.2026 12:14 PM

This is my seventh and final blog post addressing the fact that no president from 1881 to 2009 has acquiesced in the 90-year-old Supreme Court decision in Humphrey's Executor. These blog posts are prompted by a question that Justice Barrett asked at oral argument about the history of independent agencies. The answer she got was that support for limits on the president's removal power dated back to the 1880's—but I think that's incorrect.

Justice Barrett also noted that Humphrey's Executor is a 90-year-old precedent; but, if we are to consider such matters in cases involving interbranch relations, it strikes me as important to recognize that no president since 1935 has acquiesced in or accepted as correct the decision in Humphrey's Executor. For instance, when the Supreme Court held legislative vetoes to be unconstitutional in INS v. Chadha (1983), the Court made a point of noting that presidents from Woodrow Wilson to Ronald Reagan had opposed the constitutionality of legislative vetoes. In writing this blog post, I rely on Steven G. Calabresi & Christopher S. Yoo, The Unitary Executive: Presidential Power from Washington to Bush (Yale University Press 2008).

George H. W. Bush served as president from 1989 to 1993. He was just as committed a friend of the unitary executive as Ronald Reagan had been. "More than almost any president besides William Howard Taft, George Herbert Walker Bush staunchly defended the unitariness of the executive branch…. George H. W. Bush was clearly in charge of his administration and was very attentive to details. Thanks in large measure to White House Counsel C. Boyden Gray and his superb legal staff, Bush defended the unitariness of the executive branch with almost academic rigor." Id. at 384.

"Bush embarked upon one of the most aggressive defenses of the president's prerogatives the republic has ever seen. Bush used a plethora of vetoes and signing statements to protect against any invasion of the constitutional authority of the president that he perceived…. Bush was to achieve astonishing success in using the veto, vetoing forty-four bills. [Only one minor Bush veto was overridden]…. As of 25 July 1991, the White House Press Office had recorded thirty-eight threats of a veto of legislation; the vast majority of the legislation did not ever become law." Id. at 385.

"Perhaps the most important example for our purposes is the Ethics in Government Act, which was scheduled to expire in 1992. In a speech, Bush indicated that he would veto any extension of the independent counsel statute unless significant changes were made…. This veto threat, when combined with a filibuster organized by Senate Republicans, doomed the reauthorization legislation and caused the act to lapse." Id. at 386. This was a ringing defense of Justice Scalia's dissent in Morrison v. Olson and a firm insistence on presidential power to remove all officers at will who exercise executive power, even officers who in this instance were not confirmed by the Senate.

"Bush issued almost as many signing statements in his four years as president (214) as Reagan had in eight years (276). But more important, 146 of Bush's signing statements raised constitutional issues, whereas only seventy-one of Reagan's did. The most significant Bush signing statement accompanied a landmark statute, the Civil Rights Act of 1991, through which the Bush administration planted an alternative and greatly narrowing legislative history into the public record." Id. at 387-388.

"Bush also asserted his control over the executive branch by continuing the regulatory review program established by Executive Orders 12291 and 12498 during the Reagan administration. Bush supplemented these executive orders by creating an interagency task force known as the Council on Competitiveness …. Through this mechanism, the Bush White House was able to exert its control over the entire executive branch in an extremely effective manner." Id. at 388.

"There was one major removal during the Bush years, and it involved John Sununu, Bush's first White House chief of staff." Id. at 389.

"The Bush administration ended with some extraordinary Christmas pardons of leading figures being investigate in the Iran-Contra probe headed by independent counsel Lawrence Walsh." … "Among those pardoned were Caspar Weinberger, former secretary of defense to President Reagan." Id. at 390. These pardons essentially ended Lawrence Walsh's partisan witch hunt.

The big news during the first Bush administration vis-a-vis Humphrey's Executor was the elimination of the unconstitutional special prosecutor law and of Lawrence Walsh's abusive investigation under that law. George H. W. Bush was a truly great president in promoting the unitariness of the........

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