Restoring the Constitution’s Presidency: Modifying Myers and Overruling Humphrey’s

President Donald Trump seeks to assert political control over the administrative state by removing and replacing members of purportedly independent commissions. His supporters claim he is reasserting the constitutional prerogatives of the presidency; his critics claim he is acting like a king or dictator.

At the root of the controversy are two twentieth-century Supreme Court pronouncements—both erroneous. One expanded certain presidential powers beyond the constitutional maximum. The second reduced other presidential powers below the constitutional minimum. Together, they unmoored the scope of presidential authority from the Constitution’s text, creating uncertainty, unrealistic expectations, and a loss of political legitimacy.

The first of the two pronouncements came in Myers v. United States (1926). It was a dictum—that is, a statement not necessary to the court’s actual holding. The second pronouncement came in Humphrey’s Executor v. United States (1935). It was central to the holding of that case.

To understand why each pronouncement was erroneous, one must examine the Constitution’s text within the environment of contemporaneous law and drafting rules.

About Founding-era Enumerated Powers Documents

The Constitution is a document granting enumerated powers. Specifically, it is an instrument by which “We the People” granted listed powers to new and pre-existing officials and assemblies. When the Constitution was written, all lawyers and many laypeople were familiar with documents conveying enumerated powers. This was certainly true of the Constitution’s framers and leading ratifiers, most of whom were learned in the law.

Founding-era enumerated power documents shared two characteristics relevant to the present discussion. First, they followed either of a pair of structural patterns—one for simple documents and the other for more complicated ones. Second, unless explicitly excluded, each listed power carried with it incidental authority. Incidental authority was authority to undertake actions the document did not authorize expressly but were customary or reasonably necessary for carrying out the express grants. I surveyed the Founding-era law of incidental authority in a previous Civitas Outlook essay.

The usual structural pattern for complicated enumerated-power documents was as follows:

*      Designation of the grantor and grantee.

*      Organizational details.

*      Grants of enumerated powers.

*      Limitations and clarifications.

Among the kinds of instruments that, with appropriate variations, followed this structure were royal charters (including charters establishing the British American colonies), statutes empowering agents, commissions issued by the Continental and Confederation Congresses, and some of the 1776-1787 state constitutions. The same structure was followed by the commissions (most of them from the Crown) that empowered and instructed colonial governors.

Article I of the Constitution, which announces that “all legislative Powers herein granted” are conveyed to Congress, follows the same pattern until its final section. With some alteration, Article III, which grants designated judicial powers to the courts, does likewise.

As for Article II, some of its principal features were borrowed from colonial governors’ commissions, either directly or through intervening state constitutions. Among those features were words and phrases such as “take care,” “commander-in-chief,” “pardon,” and “advise and consent.” The structural pattern was likewise the same as in other complicated enumerated-powers documents:

*      Designation of the President as chief executive (Section 1, first sentence). (The Preamble already had designated “We the People” as the grantor.)

*      Organizational details (remainder of Section 1).

*      Enumerated powers of the President (Sections 2 and 3).

*      Removal of the President (Section 4).

As explained below, the Myers court got this structure wrong.

Incidental Powers

The Constitution granted the President at least sixteen express powers. Most appeared in Article II, although a few (such as the veto) appeared elsewhere. Those powers, in turn, carried with them extensive incidental authority. Under contemporaneous law, no executive “necessary and proper clause” was required to confer that authority.

Commentators who think the President’s listed powers were sketchy or inadequate tend to forget this incidental authority. Consider, for example, three powers listed in Article II, Section 3. The power (and duty) to “take Care that the laws be faithfully executed” necessarily included oversight of the executive branch.  The power to commission executive officers included incidental authority to instruct them. The power to “receive Ambassadors and other public Ministers” carried with it the prerogative of recognizing, or refusing to recognize, foreign governments.

The Constitution, when read within its legal and drafting environment, created a republican magistracy whose occupant would lead the nation in foreign affairs and undertake itemized domestic responsibilities. But he would do no more than that.

Myers v. United States

In Myers, the justices faced the question of whether the President can remove executive-branch officials nominated by the President and confirmed by the Senate without the consent of the Senate. Chief Justice William Howard Taft— himself a former President—wrote the opinion for the court. Relying largely on the record of the debates in the First Federal Congress, Taft concluded that the president could act unilaterally.

Taft’s opinion was thorough to a fault: Over hundreds of pages in U.S. Reports, he piled Pelion upon Ossa.  But the key to the decision lay in (1) accepting the First Congress’s conclusion that the removal power is incidental to the appointment power and (2) resolving the central issue (in Taft’s words, “the real point”): whether the appointment is made by the President or by the President-and-Senate.

The Court agreed with the First Congress that the President alone appointed. It followed that the President alone exercised the removal power.

So far, so good.

The Dictum

It is generally wise for a court not to say too much. Unfortunately, when piling up matters other than “the real point,” the court construed the first sentence of Article II (“The executive Power shall be vested in a President of the United States of America.”) as a sweeping grant of “the executive Power” rather than merely as a designation of the magistracy. Taft cited both Alexander Hamilton and James Madison for this conclusion. But unlike Justice McReynolds’ dissent, Taft’s opinion failed to recognize that Hamilton’s statement came only after the Constitution was ratified, and (like some of Hamilton’s other claims) contradicted what he had said before the ratification. It also failed to recognize (as Justice McReynolds did) that Madison’s statement likewise was issued after ratification and in circumstances that entitled it to little weight.

Thus, the court’s dictum violated the framers’ organizational scheme. More seriously, it contemplated a grant impossible to define. Beyond law enforcement and military command, there was no common understanding of the scope of “the executive Power.” Among the Founders’ precedents, the British king’s authority had varied over time, as had that of the Dutch stadtholder. Those two officials and the colonial and early state governors all exercised different collections of powers.

Thus, treating the first sentence of Article II as a grant raised questions such as: Does “the executive Power” include the authority to remove members of the upper legislative chamber, as enjoyed by some colonial governors? To what extent did it include suspension of habeas corpus? Since it was universally acknowledged that “the executive Power” included law enforcement and command of the military, why did the Constitution add separate clauses granting those responsibilities? And so forth.

It is inconceivable that drafters as careful as the framers could be so vague. Or that, if the Founders had understood the clause to grant such undefined authority, opponents of the Constitution would not have objected during the ratification debates.

Three Justices dissented from the holding in Myers: McReynolds, Brandeis, and Holmes. They seem to have been concerned principally with preserving the civil service system. However, their primary argument was that postmasters were what the Constitution calls “inferior Officers,” for the appointment of whom the President may seek legislation dispensing with senatorial approval. The dissent argued that in seeking such legislation, Presidents may bargain away their authority to unilaterally dismiss.

The defect in that argument is that the President always remains the person who “appoints,” and the power to remove is incidental to the power to appoint. Incidental powers are as real as express ones. A president can no more delegate them than he can delegate his veto power.

As for the court’s conversion of the executive designation clause into a grant, only Justice McReynolds recognized the danger: “If the phrase ‘executive power’ infolds the one now claimed,” he wrote, “many others heretofore totally unsuspected may lie there awaiting future supposed necessity, and no human intelligence can define the field of the President’s permissible activities.”

Prophetic comment, that.

The court’s conversion of the first sentence of Article II into the grant of an amorphous mass of power has encouraged Congress to adopt statutes delegating vast discretion to the President. It was under such statutes that former President Biden sought to compel hundreds of millions of Americans to take COVID injections. It is under another such statute—the International Emergency Economic Powers Act—that President Trump claims power to impose import tariffs at will.

Humphrey’s Executor v. United States

Academic historians have given Justice George Sutherland an unjustified reputation as a judicial conservative. In fact, Sutherland’s origins were progressive, and during his tenure, he wrote several opinions changing the constitutional structure to conform more closely to progressive ideals. Humphrey’s Executor was one such opinion.

The issue in Humphrey’s Executor was whether the President could remove a member of the Federal Trade Commission (FTC) before the end of the member’s congressionally-fixed seven-year term. Sutherland evaded the holding in Myers by asserting that the FTC was not an executive agency, but a quasi-legislative and quasi-judicial entity “created by Congress as a means of carrying into operation legislative and judicial powers.”

Among the implications from Sutherland’s formulation were: The FTC was only “quasi-legislative,” so it didn’t exercise “the legislative Powers” that the Constitution vested solely in Congress. It was only “quasi-judicial,” so although its members were masters in chancery, they need not have life terms and judges could not appoint or remove them. Since the FTC merely “carried out” policy, therefore(!) it was not an executive agency subject to presidential control. On the contrary, it was “not to be ‘subject to anybody in the government but . . . only to the people of the United States . . . separate and apart from any existing department of the government.”

This was a constitutional revolution indeed. Built on verbal legerdemain.

Conclusion

Together, Myers and Humphrey’s Executor untethered the presidency from the Constitution. The Constitution’s President is a modest republican magistrate with a considerable but still limited job description. Partly due to Myers, he became an officer expected to cure disease, create jobs, and raise school test scores. No wonder prominent presidential rankings are based largely on factors utterly unrelated to the constitutional job description.

Yet outside of foreign affairs, the President is barred from doing very much other than what serves the interests of the bureaucracy. The President can force hundreds of thousands of private-sector health care workers to take a vaccine, but he can’t close federal agencies or dismiss key policymakers.

The result is a world in which perception is different from reality—one where the presidency loses political legitimacy yet is asked to do ever more.

The Supreme Court helped cause the damage, and the Court can begin to fix it by disapproving of the erroneous dicta in Myers and overruling Humphrey’s Executor. Disapproving of the Myers dicta would clarify that the President is limited to the express and incidental powers granted in the Constitution. Overruling Humphrey’s Executor would restore to the President the ability to fully exercise those powers.

Robert G. Natelson, a former constitutional law professor who is senior fellow in constitutional jurisprudence at the Independence Institute in Denver, authored The Original Constitution (4th ed., 2025). He is a contributor to the Heritage Foundation’s Heritage Guide to the Constitution.