The Constitution’s text provides that the president “shall appoint by and with the advice and consent of the Senate” various officers, and allows Congress to exempt some inferior officers within the executive branch from that requirement. But the Constitution is silent on who can fire them—i.e., the removal power.

So now we have a president whose catchphrase is, “you’re fired”—and he’s putting that to the test. Emboldened by the Supreme Court, Trump has sought to fire, among others, a member of the Federal Trade Commission and a member of the Federal Reserve Board.

But this hasn’t always been how American government worked. There’s a long history of Congress trying to constrain who the president can fire and under what circumstances, most often by requiring “for cause” protections for certain quasi-independent agencies. Most recently, the Supreme Court has taken up the issue of Trump’s attempted firing of an FTC commissioner. Oral arguments are scheduled for later this year in which the court might do what it has long hinted at: overturning the New Deal-era case Humphrey’s Executor, which also involved a president, in that case FDR, trying to fire an FTC commissioner over policy disagreements.

But underlying Humphrey’s is another little-known case that helped give us the modern supercharged presidency. That’s Myers v. United States, a 1926 opinion written by Chief Justice William Howard Taft, whom you might remember from your bar trivia as the only ex-president to serve on the Supreme Court. As our guest today has argued persuasively, Myers has a lot of problems.

So, to help unpack this issue, host Andy Craig is joined today by Noah Rosenblum, Associate Professor of Law at New York University, specializing in constitutional law and legal history, including this exact question.

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