Since the Court is hearing Slaughter tomorrow, I thought I’d talk a little about what the Youngstown concurrence says about the President’s removal power.
The curious fact is that in Justice Jackson listed Myers and Humphrey’s Executor as Category Two and Category Three cases. How can that be? Unless it was an error–unlikely but not impossible–I think it reflects Jackson’s ambivalence about the cases. In his unpublished memoir, he said FDR was (not surprisingly) very annoyed with Humphrey’s Executor. Jackson accepted the two precedents, but never explained why or how.
To the extent that you think of them as Category Three cases, that must rest on a distinction between executive officials and ones that are only sort of executive (whatever you call that). Slaughter may just adjust the boundary between these two fields to put the “independent” agencies in the executive box and leave the Fed (and maybe the Library of Congress) in the other.
More interesting is how you think about Myers and Humphrey’s Executor as Category Two cases. Maybe the Court erred in reaching the constitutional issue in Myers and should have left everything to the political process. Maybe Justice Jackson was saying that the political process was the long-term equilibrium no matter what the Court does. After all, a future President may decide that he wants to honor the statutory terms of agency heads because it’s in his political interest to do so. Or Congress may set up some agencies differently to give them independence (say, require some political balance within them or include some private individuals who are not Senate confirmed, as with the Fed).