Executive Power

Almost every president since 1945 has refused to accept Humphrey's Executor as having been correctly decided.

Steven Calabresi | 1.10.2026 11:26 AM

Fourteen men have served as President of the United States since Franklin D. Roosevelt left office, and almost all of them have been imperial presidents in the FDR mode. This is true of Presidents Truman, Eisenhower, Kennedy, Johnson, Reagan, Bush the Elder, Clinton, Bush the Younger, Obama, Trump, Biden, and now Trump again. All of them except for Presidents Carter, Obama, and Biden have endorsed unlimited presidential removal power and/or have read the Vesting Clause of Article I, together with the Take Care Clause as a constitutional grant of the power to execute the laws to the president. Steven G. Calabresi & Christopher S. Yoo, The Unitary Executive: Presidential Power from Washington to Bush (Yale University Press 2008).

In today's blog post, I will describe the ways in which FDR's four immediate successors, Presidents Truman, Eisenhower, Kennedy, and Johnson either challenged Humphrey's Executor and/or insisted that the Vesting Clause of Article II, together with the Take Care Clause, is a grant of the power to execute the laws to the president. In doing this, I rely on my above-cited book with Professor Christopher S. Yoo, who deserves all the credit and none of the blame for this blog post.

President Harry S. Truman began his presidency by dropping atomic bombs on Hiroshima and Nagasaki. It's hard to believe that fourteen presidents since Truman, each of whom has had the power to blow up the world unilaterally, could not be trusted to fire a Federal Trade Commissioner.

President Truman was famous for having a sign on his desk saying: "The Buck Stops Here," and he meant it. Truman fired his Secretary of Defense, Louis A. Johnson; his Attorney General, J. Howard McGrath; and, most famously of all, General Douglas MacArthur, who was a national war hero who became insubordinate. "This highly visible removal illustrates dramatically why the removal power is so important for the president if he or she is to be in charge of the executive branch." Id. at 308.

Truman appealed a Court of Claims case that he won on statutory grounds, the FDR-inherited case of United States v. Lovett, hoping for a ruling from the Supreme Court that a congressional defunding of the salaries of three named state department officials violated unilateral presidential removal power. Truman won the case again in the Supreme Court, but on Bill of Attainder grounds and not the revival of Myers v. United States, which he had sought.

Most dramatically of all, however, President Truman appointed a Commission on Organization of the Executive Branch of the Government that was headed by former President Herbert Hoover, and which became known popularly as the first Hoover Commission. "The Commission's report called for a 'clear line of control from the President to [the] departments and agency heads and from him to their subordinates.' The report elaborated, 'Responsibility and accountability are impossible without authority—the power to direct. The exercise of authority is impossible without a clear line of command from the top to the bottom, and a return line of responsibility and accountability from the bottom to the top.' Far from posing a threat to free and responsible government, 'strength and unity in an executive make clear who is responsible for faults in administration and thus enable the legislature better to enforce accountability to the people.' … 'That line of responsibility still exists in constitutional theory, but it has been worn away by administrative practices, by political pressures, and by detailed statutory provisions. Statutory powers often have been vested in subordinate officers in such a way as to deny authority to the President or a department head." Calabresi & Yoo at 311.

"Therefore, the [Hoover] commission recommended that all agencies be placed within executive departments and that all independent authorities granted to subordinate executive officials by statute or appropriations rider be eliminated. The [Hoover] commission also recommended that Congress not exempt any agencies from the president's reorganization authority, including in particular the independent regulatory commissions. Furthermore, Congress should not place any limitations based on an agency's 'independent exercise of quasi-legislative or quasi-judicial functions.' Such phrases are 'too vague and of uncertain meaning' and would only inhibit the president's proper control over the executive branch." Id.

President "Hoover reiterated these recommendations in a letter to the president pro tempore of the Senate, in which he again stated, 'We must reorganize the executive branch to give it the simplicity of structure, the unity of purpose, and the clear line of executive authority that was originally intended under the Constitution.'

Consistent with these recommendations, Truman asked in 1949 that Congress make the president's authority to reorganize the government permanent and extend it to cover all governmental agencies, including the independent regulatory commissions. In Truman's eyes, 'the new reorganization act........

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