The Dangerous Effort to Enshrine An Imperial Presidency
George Liebmann
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The dangerous effort to enshrine an imperial presidency | GUEST COMMENTARY
Susan Walsh/ Associated Press file
The Supreme Court in Washington. (Susan Walsh/AP)
UPDATED: October 16, 2025 at 3:04 PM EDT
It is considered by many a foregone conclusion that the Supreme Court will overrule the landmark Humphrey’s Executor case of 1935 so as to allow the president to remove at will inspectors general and the members of federal regulatory agencies. This is said to be a necessary implication of the theory of the “unitary executive,” treated as the Ark of the Covenant by alumni of the Reagan and George W. Bush Justice Departments. In a series of orders of dubious legitimacy, the court has allowed such removals, treating Humphrey’s Executor as a dead letter, although its vitality has yet to be argued before the Supreme Court. The case is treated as a sport in the law, rather than the landmark that it is.
The unitary executive doctrine that calls for overruling the Humphrey’s Executor precedent is a massive falsification of history. The Humphrey’s case did not stand alone; it was one of a trilogy of cases, decided on the same day in May 1935, a day which should be celebrated by conservatives, when, despite claims of “emergency,” the Supreme Court unanimously set aside three sweeping assertions of power by the Roosevelt administration. In Louisville Joint Stock Land Bank v. Radford, an opinion by Justice Louis Brandeis, the court invalidated provisions of the Frazier-Lemke Act, which would in principle have destroyed the rights of all secured creditors. In the Schechter Poultry case, it invalidated a grant of power to the president to promulgate codes regulating the entire national economy. In the Humphrey’s case, limiting the president’s removal power, it upheld the independence of regulatory agencies, constructed as bipartisan instruments to foster gradualism, compromise and deliberation in the execution of executive policies and in the adjudication of legal claims and promulgation of administrative rules.
Although Humphrey’s did not go so far as Justice Brandeis’ dissent in the earlier 1926 Myers case calling for Senate concurrence in removals (support for which is found in Federalist No. 77), it limited them to “good cause” and approvingly cited Brandeis’ Myers dissent, which asserted that the doctrine of separation of powers was designed “not to promote efficiency but to preclude the exercise of arbitrary power … not to avoid friction, but by means of the inevitable friction incident to the distribution of governmental powers among three departments, to save the people from autocracy.” Whatever the persuasiveness of Brandeis’ dissent, the collection of authorities in it militates against any contention that the framers contemplated an all-powerful president at the head of the executive branch.
Two other historical episodes, one ancient and one modern, both forgotten, militate against unitary executive theory. The Constitution as adopted did not accept a single political theory or design, but was a compromise between a highly centralist Virginia Plan and a de-centralist New Jersey Plan. The principal point of difference involved claims for the equal representation of states, which the ultimate compromise provided for in the Senate but not the House of Representatives.
Another point of difference involved a unitary versus plural executive. The New Jersey Plan, sponsored by William Paterson of New Jersey and initially enjoying the endorsement of three states, contemplated a plural executive of unspecified size. Supporters of a plural executive included Benjamin Franklin, Edmund Randolph, Luther Martin and George Mason.
The ultimate compromise is embodied in Article II of the Constitution: “He shall nominate, and by and with the consent of the Senate, shall appoint … all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.” Appointments to vacancies during the recess of the Senate “shall expire at the End of their next Session.”
This was not viewed as a delegation of untrammeled power to the president but one vesting responsibility in cabinet officers. Senate confirmation, even Alexander Hamilton thought in Federalist No. 76, “would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity … He would be both ashamed and afraid to bring forward, for the most distinguished or lucrative stations, candidates who had no other merit than that of coming from the same State to which he particularly belonged, or of being in some way or other personally allied to him, or of possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure.”
Hamilton did not anticipate the confirmation of such attorneys general as Robert Kennedy, Alberto Gonzales or Pam Bondi. But the power of Congress to vest appointments in inferior officers, as President Richard Nixon learned to his sorrow, precluded the direct removal by the president of Archibald Cox as special counsel, and is a safeguard for what remains of the civil service.
The modern episode that is forgotten by proponents of unitary executive theory is the Watergate scandal and the associated efforts to guard against its recurrence, most of them sponsored by President Gerald Ford’s Attorney General Edward Levi. These included a defined 10-year term for the FBI director, to guard against both summary removal and entrenchment, creation of inspectors general with security of tenure, and guidelines for various prosecutorial activities. All these efforts suffered immediate dilution at the hands of both Republican and Democratic administrations.
Public opinion and procedural due process are the ultimate safeguards, and imperfect ones. The partisan but perceptive historian Arthur Schlesinger Jr. observed in “The Imperial Presidency”: “Corruption appears to visit the White House in fifty-year cycles … exposure and retribution inoculate the Presidency against its latent criminal impulses for about half a century. Around the year 2023 the American people would be well advised to go on the alert and start nailing down everything in sight.”
As warned by Justice David Davis, once Abraham Lincoln’s campaign manager, in a ruling upholding habeas corpus (later derided by Professor John Yoo and other proponents of the unitary executive): “Wicked men, ambitious of power, with hatred of liberty and contempt of law, may fill the place once occupied by Washington and Lincoln.”
George Liebmann (george.liebmann2@verizon.net), writing in his individual capacity, is president of the Library Company of the Baltimore Bar and the author of various works on law and politics, most recently “The Tafts” (Twelve Tables Press, 2023).
Originally Published: October 16, 2025 at 1:05 PM EDT
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