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07/29/2018

Aditya Bamzai: Taft, Frankfurter, and the First Presidential For-Cause Removal
Michael Ramsey

Aditya Bamzai (University of Virginia - School of Law) has posted Taft, Frankfurter, and the First Presidential For-Cause Removal (52 University of Richmond Law Review 691 (2018)) on SSRN.  Here is the abstract: 

In the fall of 1912—while one of the most consequential presidential campaigns in United States history raged around them—William Howard Taft, Felix Frankfurter, and a handful of officials within the federal government initiated a process to remove two members of the Board of General Appraisers for inefficiency, neglect of duty, and malfeasance in office. The process culminated in President Taft’s for-cause dismissal of the two members, Thaddeus Sharretts and Roy Chamberlain, on the very last day that he served as President, after he received a report recommending their firing from a “committee of inquiry” that included Frankfurter.

Taft’s firing of Sharretts and Chamberlain was the first presidential for-cause removal. To this day, it remains the only time in the history of the nation that the President has expressly removed for cause an executive branch “officer of the United States” whose tenure is protected by statute after providing notice to the officer, holding a hearing, and finding that the statutory predicates for removal have been met. Taft’s action involved decisions by two individuals—Taft himself and Frankfurter—who would go on to become Justices of the United States Supreme Court and to author two of the most consequential opinions on the President's authority to remove subordinates, Myers v. United States and Wiener v. United States. It involved the construction and application of statutory language—“inefficiency, neglect of duty, or malfeasance in office”—that Congress still uses to mark some kind of “independence” from presidential control on behalf of an administrative agency. Echoes of the issues that Taft and Frankfurter confronted in 1913 may be heard in Myers and Wiener, in Justice Sutherland’s opinion for the Court in Humphrey’s Executor v. United States, and in recent controversies over the scope of the President’s power to remove subordinate officers within the executive branch. 

Despite all of the foregoing, the episode has escaped scholarly attention and been the subject of no relevant legal discussion. No account of President Taft’s removal of the two Board members appears in the various treatments of the President’s removal power, or in the large literatures devoted to Taft and Frankfurter, two towering figures in American legal history. Indeed, it is widely, but mistakenly, assumed that no President has ever removed an officer for cause and that (in the words of the dissenting opinion in Free Enterprise Fund v. Public Co. Accounting Oversight Board) “it appears that no President has ever actually sought to exercise [the removal] power by testing the scope of a ‘for cause’ provision.” As a corrective, this article tells the story of Taft’s for-cause removal of the two general appraisers on his last day in office, following a process started in the midst of his 1912 reelection battle with future President Woodrow Wilson and former President Theodore Roosevelt. It then explores the episode’s implications for present-day understandings of the development of the American administrative state and the doctrine of the separation of powers.