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I BelieveGovernance and Philosophy in America A Top 10 Apple Philosophy Podcast Author: Joel K. Douglas
Governance and Philosophy in America A Top 10 Apple Philosophy Podcast joelkdouglas.substack.com Language: en Genres: Government, Philosophy, Society & Culture Contact email: Get it Feed URL: Get it iTunes ID: Get it |
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Who Can the President Fire?
Monday, 15 December, 2025
2025. The president fires an FTC commissioner before her term is up. The statute says he can’t without cause. He does it anyway. Now the Supreme Court has to decide whether ninety years of precedent was real law, or a bluff. Act I. The Wager[SFX: casino room, cards dealt, chips stacked, ice clinking in glasses]Players stare at each other across a poker table. Four cards are up. One card is face down. The last card decides everything, but nobody gets to see it until somebody commits.You can stare at the felt and pretend time is on your side. But the cost of waiting goes up anyway. You have to put in a bet to keep playing, and that bet keeps getting bigger. The pot grows. The pressure rises. Sooner or later, you have to act with incomplete information.New York City. Late Spring, 1789.George Washington took the oath on April 30. He is the first President of the United States. He has duties. He has no government.No State Department. No Treasury. No War Department. No one to answer a foreign minister or respond to a crisis. The executive branch exists on paper. In reality, it is one man in a rented house with a small staff and a pile of unanswered letters.The Constitution is eight months old. The ink is barely dry. And the world is not waiting.The British still occupy forts on American soil. Forts they agreed to vacate six years ago. Native attacks keep coming from those regions. Plenty of Americans suspect the British, but Washington has no department to respond with.Spain has closed the Mississippi River to American trade. Western settlers are talking about leaving the union. Diplomacy might help. Threats might help. But there is no one to conduct diplomacy. The president cannot do everything himself.American merchant ships are being seized in the Mediterranean. Algiers declared war on the United States four years ago. Sailors are chained in North African prisons, waiting for a ransom that cannot come because we have no Treasury and no Navy.The pot is already enormous. The blinds are rising. And Congress has a problem.The Constitution gives the president the power to appoint officers “by and with the advice and consent of the Senate.”It says nothing about firing them.Nothing.That silence is not calm. It’s cards sliding out. Sideways glances. Men looking across the table, trying to decide what the other man is holding.Sixty-five men crowd into Federal Hall on Wall Street. A repurposed city building that still smells like fresh paint. May turns to June. The weather thickens. No ventilation worth mentioning. Wool coats. Wigs. Windows that don’t open properly. Paper everywhere. Quills scratching. Men sweating through their shirts while arguing about the shape of executive power.They have to build a working government, but the game is already underway. The cards are on the felt. The pot is growing. And they’re still arguing over who gets to deal, who sets the rules, and who can push a man out of his seat.The question before the House is simple to ask and impossible to answer:Who can fire a cabinet secretary?James Madison rises to make a motion.He is thirty-eight years old. A hundred forty pounds soaking wet. He speaks so softly that reporters lean forward to hear him. He is brilliant, but he has never seen combat. He has never led troops. He spent the Revolution in the Virginia legislature, arguing about paper while other men bled.But Madison wrote the Constitution. He wrote most of The Federalist Papers defending it. He has thought more carefully about the structure of American government than anyone alive. When Madison speaks, the room listens.His motion concerns the Department of Foreign Affairs. A department that does not yet exist. A secretary who has not been named. He is writing the job description for a position that is still an idea on paper.Madison proposes one line:He says that the secretary shall be “appointed by the president, by and with the advice and consent of the Senate; and to be removable by the president.”Four words. Nine syllables. “Removable by the president.”The room erupts in disagreement.They can see the future in that sentence. A future president. A future fight. A future Congress trying to bind a president’s hands. They are not arguing about today. They are arguing about every president and every Congress that will ever follow.And they are terrified. But not of the same thing.To understand why the room erupts, you have to understand the ghost in it. That ghost is King George III. Theodorick Bland commanded cavalry in the Revolution. James Jackson of Georgia fought at Cowpens, Augusta, Savannah. Hand to hand when it came to that. Jackson fought twenty-three duels in his lifetime. He settled disagreements with pistols. When he stood up to speak, men listened because they knew what he was capable of.Elbridge Gerry was asleep at the Menotomy Tavern on the night of April 18, 1775. The night Paul Revere rode. British troops marched past his window toward Concord. The weapons they were marching to seize were weapons Gerry had put there. His roommate during the siege of Boston was Joseph Warren. Warren died at Bunker Hill with a British bullet in his skull.On and on. The room was full of men who bled for independence. They sent their sons to bleed. They watched friends die at Brandywine, at Germantown, at the frozen hell of Valley Forge.The Declaration of Independence was thirteen years old. It was a list of crimes committed by a king who answered to no one. These men had signed it. Some had nearly died for it.Now, James Madison, who spent the war arguing about paper, stands before them and proposes giving one man the power to fire anyone in the executive branch.To some of them, it sounds like the first step toward a throne.Underneath that knife’s edge urgency, they are dueling with words while playing this game of American poker. Uncertainty. Ambiguity. They’re all fearful, but not of the same thing. One man hears “removable by the president” and sees a king. Total loyalty. Total control. Every officer knowing he serves at the president’s pleasure. Every officer afraid to disagree. William Loughton Smith of South Carolina places his bet here. He points to the Constitution: the only removal it mentions is impeachment. If you start inventing powers out of silence, you are training future presidents to do the same.Theodorick Bland of Virginia throws in chips next. He hears “removable by the president” and sees the Senate being erased. The Constitution says the president appoints “by and with the advice and consent of the Senate.” The Senate has a role. Would you let a man hire but not fire? Strip the Senate of removal, and you strip the bridle from the horse.Roger Sherman of Connecticut adds to the pot. He hears “removable by the president” and sees chaos. Drift. Officers who answer to no one because no one has clear authority. He says Congress creates these offices, Congress sets the terms, Congress can decide. The Constitution doesn’t give removal power to anyone specifically. So Congress fills the gap.And then there is Madison.Madison has watched legislatures become tyrants.State assemblies under the Articles of Confederation printed worthless money. Exposed private contracts to public violation. Trampled the rights of minorities, religious dissenters, anyone without the votes to protect themselves. In Rhode Island, the legislature printed currency to pay off debts, and the creditors fled the state.Kings were dangerous. Madison knows that. But legislatures were also dangerous. They claimed to speak for the people. They wrapped their tyranny in democratic legitimacy. And they could do it faster than any king because they did not have to pretend to be anything other than the majority.Madison fears Congress more than he fears the president.He could not foresee a Congress that would voluntarily surrender its power. A Congress that would create agencies to avoid making hard choices. A Congress that would build a government designed to answer to no one.He places a large wager. Madison bets on a weak executive fighting a strong legislature. One man against an assembly. The president needs defensive weapons just to survive. If the president cannot remove officers who defy him, you have no accountability. You get paralysis. You get officers who answer to no one. Not to the president, who cannot fire them. Not to the people, who cannot reach them.Madison says it plainly: “If any power whatsoever is in its nature executive, it is the power of appointing, overseeing, and controlling those who execute the laws.”Article II vests the executive power in the president. Not some of it. All of it. The Senate’s role in appointments is an exception, spelled out explicitly. Removal is not spelled out as an exception. Therefore, removal belongs to the president.The room considers the wager. Each man sees a different future. A king. A runaway Senate. A paralyzed executive. A tyrannical Congress. They are reading each other across the table, trying to guess which fear is the right one, knowing they cannot wait for certainty.They look at Madison’s bet. Call, or fold.The British are not leaving those forts. Spain is not opening the Mississippi. American sailors are not freeing themselves from Algiers. Foreign ministers are waiting for someone to talk to. Crises do not pause for constitutional debate.And the pressure. The government has to start. Someone has to be in charge. Someone has to be able to be fired for failing.Then, a breakthrough. A congressman trying to get the room to move on changes the language. The final bill doesn’t say the president “has” the power to remove. It does not say Congress “grants” the power to remove. It says that when a secretary “shall be removed,” certain things happen.The House votes. Madison’s side wins, but there is no consensus. The Senate splits exactly in half. Vice President John Adams casts the tie-breaking vote. The president will have the power to remove officers.They sidestepped the decision. In the end, nobody had to show their cards. The vote passed. The government started. Washington got his departments. The union held. Madison’s big wager was still on the table, waiting for the other players to call the bet.Madison’s wager was a weak executive fighting a strong legislature.He couldn’t imagine a world where Congress would want the president to be strong and unaccountable. Where Congress would lay down and give away power, and presidents would take it. Where the real threat was not a king or a legislature but a machine that ran itself, beyond the reach of elections.The cards stayed down in 1789.But then, one hundred forty-four years later, someone finally called the bet.Act II. The CallOne hundred forty-four years passed. Players left and rejoined the table. The republic grew. The question slept.Then, President Franklin D. Roosevelt called Madison’s wager.Washington, D.C., Summer, 1933. The Great Depression is strangling America. Twenty-five percent unemployment. Thirteen million people are out of work. Banks have failed by the thousands. Farmers watch their land blow away in dust storms. Families lose homes. Children go hungry.Roosevelt has been president for five months. He came to Washington with a mandate. Fix it. Whatever it takes. His New Deal is a whirlwind of agencies, programs, regulations. The federal government is expanding faster than at any time since the Civil War.The president has a problem. His name is William Humphrey.Humphrey is a commissioner on the Federal Trade Commission. He is seventy-one years old. A conservative Republican. A man who believes government should leave business alone.The FTC is supposed to protect consumers from unfair business practices. Under Humphrey, it has become a graveyard for investigations. Cases against mattress companies. Shoe manufacturers. Soap makers. Humphrey votes to dismiss them. One after another. He gives speeches calling the commission an instrument of oppression against American enterprise.Roosevelt needs the FTC to help implement the New Deal. Humphrey is blocking him.In July, Humphrey hears a rumor. The president wants him gone.He writes to Roosevelt directly. A desperate letter. Information comes to me that you are going to ask for my resignation, he writes. For what reason, I do not know. He asks for a meeting. After more than forty years of public service, being forced out would greatly injure his reputation. Humphrey believes he is doing the right thing. Roosevelt waits less than a week. Then he sends his reply.The letter is polite. But it is not subtle. You will, I know, realize that I do not feel that your mind and my mind go along together, Roosevelt writes. On the policies. On the administration of the commission. Frankly, I think it is best for the people of this country that I should have full confidence.He asks for Humphrey’s resignation.Roosevelt. Charming. Ruthless. Certain.Humphrey refuses.For two more months, they exchange letters. Roosevelt asks again. Humphrey declines again. In October, Roosevelt stops asking.Effective as of this date, he writes on October 7, 1933, you are hereby removed from the office of Commissioner of the Federal Trade Commission.Twelve words. No cause given. No charges filed. Just removed.Now, on to the law. A commissioner may be removed only for inefficiency, neglect of duty, or malfeasance in office. Roosevelt did not claim any of these. He simply said their minds did not go along together.Policy disagreement is not neglect of duty. Voting against investigations is not malfeasance. Roosevelt was firing Humphrey because Humphrey was in his way.Humphrey does not go quietly.He writes to his fellow commissioners. He tells them he is still a member of the FTC. Ready and willing to exercise the powers of his office. He shows up at the next meeting. He sends a letter to the man Roosevelt nominated to replace him that there is no vacancy.Humphrey keeps coming to work. Every day. The FTC stops paying him, but he comes anyway.He files a lawsuit. He wants his job back. He wants his salary. And he wants the Supreme Court to decide whether the President of the United States can fire him.Then, on February 14, 1934, five months after his firing, William Humphrey dies. A stroke. He was seventy-one.But the lawsuit doesn’t die with him.Samuel Rathbun, his executor and the person handling his estate, keeps the case alive. He sues for back pay. For the salary the government owed Humphrey between his firing and his death.The real question is bigger than back pay. The real question is whether Roosevelt had the constitutional authority to fire him at all.This is where Madison’s wager returns to the table.Nine years earlier, in 1926, the Supreme Court had seemed to settle the matter. President Woodrow Wilson fired a Portland postmaster. The postmaster sued for his salary. The case went all the way up.Chief Justice William Howard Taft wrote the opinion. Taft was the only man in American history to serve as both president and Chief Justice. He knew something about executive power.Taft ruled overwhelmingly for the president. The Constitution vests all executive power in the president, he wrote. The power to remove is a natural part of the power to appoint. If the president cannot fire his subordinates, he cannot ensure the laws are faithfully executed.The opinion ran over seventy pages. It reached back to Madison. To the Decision of 1789. Taft declared that Madison had won. The president possesses unlimited power to remove executive officers.So when Humphrey’s case reached the Supreme Court in 1935, Roosevelt’s lawyers were confident. The president would win. End of story.Roosevelt had called Madison’s bet. Show your cards.The Court refused to show. They had one play left.Act III. The Bluff The Court heard arguments on May 1, 1935. Twenty-six days later, they announced their decision.May 27, 1935. It would become known as Black Monday. On that single day, the Supreme Court issued three unanimous decisions against Roosevelt. Justice George Sutherland wrote the opinion. Sutherland was one of the Four Horsemen, the conservative bloc trying to dismantle Roosevelt piece by piece. These justices viewed the New Deal as straight-up socialism wrapped in American flags. Sutherland did something clever. He didn’t overturn Taft’s postmaster decision. He changed the rules mid-game.A postmaster, Sutherland wrote, is a purely executive officer. He carries out the president’s orders. He belongs to the president. The president can fire him.But the Federal Trade Commission is different. Congress built it to stand apart. Not partisan. Not an arm of the president. Its commissioners write rules and judge disputes inside their own domain. They do not serve the president. They serve the law.Congress built an agency inside the executive, then tried to keep the president’s hands off its leaders. Sutherland had invented a new category. Officers who work in the executive branch but do not answer to the executive. Creatures of Congress, not creatures of the president.The Constitution, Sutherland wrote, does not give the president unlimited power of removal over such officers. They lead independent agencies.Roosevelt lost. Humphrey’s estate got its back pay. The court said Presidents can fire purely executive officers at will, but that didn’t apply to everyone in the executive branch. So…where does the executive end and these independent positions begin?The Court didn’t say. It never identified which jobs were executive officers and which were not. It left, in its own words, a field of doubt for future cases.Roosevelt was furious. Black Monday felt like a personal attack. The decisions helped trigger his attempt to pack the Supreme Court with additional justices. That plan failed. But the battle between Roosevelt and the Court reshaped American government.As for the wager Madison made in 1789? Still on the table.Humphrey’s case created a new category of government. Independent agencies. Leaders protected from presidential accountability. For ninety years, that rule held.It was a bluff dressed up as constitutional law. The question was never whether the president had the power to fire executive officers. The question was whether Congress could create officers who weren’t executive at all.Madison never imagined such a thing. Neither did his opponents. In 1789, everyone assumed the executive branch belonged to the president. They fought about removal inside the executive branch because they agreed on that much.The Supreme Court’s fight against FDR broke that assumption. A conservative court created the modern independent regulatory state. This decision became the same movement conservatives have been trying to dismantle for fifty years. It wasn’t some master plan; it was a grenade aimed at FDR that backfired spectacularly over time. Conservatives built the administrative state to block liberals. Liberals expanded it for social good. And now everyone’s mad because it’s this unaccountable behemoth.Roosevelt called. The Court bluffed. They changed the rules mid-hand and walked away from the table.It worked. For ninety years, no one challenged the bluff.Act IV. The RiverThe river card is still face down. Four cards up. One card hidden. That last card decides everything. This week, the river card is a Supreme Court case. Trump v. Slaughter.This game has been running for two hundred thirty-seven years.In 1789, Madison placed his wager. The House split. The Senate split. The last card stayed face down.In 1933, Roosevelt called the bet. He fired Humphrey and dared the Court to stop him.Then a new player sat down.The Four Horsemen looked at Madison’s bet, looked at Roosevelt’s call, and said: We’re playing a different game now. It was a bluff. But it was also a new table. And for ninety years, everyone played by the new rules.Until now.The case is Trump v. Slaughter. President Trump fired the leaders of independent agencies and said the Constitution gave him the power to do it. The agencies sued. The lower courts said he couldn’t. The Supreme Court agreed to decide.For the first time in ninety years, someone is calling the bluff. Just like FDR in 1933. But it’s more than that. Someone is saying: We’re going back to the original table. Madison’s table. The one where the cards have been face down since 1789.The river card is about to flip.Here is what we know: The Constitution says nothing about removal. Madison thought the president needed that power to survive. Chief Justice Taft agreed. The Four Horsemen didn’t. Nine decades of precedent rest on a Chief Justice’s attack on FDR.Here is what we don’t know: What the original cards actually say.Madison made his wager in 1789. He bet that Congress was the threat. He may have been right about the Constitution. He may have been wrong about the future. He could not foresee a Congress that would voluntarily surrender its power. A Congress that would build agencies to avoid making hard decisions. A Congress that would create a government that answers to no one.In 1789, the river card stayed down. Two hundred thirty-seven years later, the Supreme Court is going to flip it. Will the Court finally answer Madison’s question? Or will they find another way to leave the cards face down? Whatever they decide, the crux of this matter isn’t Donald Trump. Not Franklin Roosevelt. It’s about every future president. The same Court that just gave presidents near-blanket immunity is about to hand them the power to fire any agency head at will. Arming the next Democratic president with the exact same weapons.One day soon enough, a progressive in the Oval Office will wake up, look at the FTC, the SEC, the Fed, the NLRB, and say, “Your mind and my mind do not go along together.”It comes down to whether the Constitution means what it says. Article II. “Executive Power shall be vested in a President of the United States of America.”Who can the President fire?Let’s see that river card!May God bless the United States of America.Music from Epidemic SoundArtist: Fabian TellSong: Gilly Get full access to I Believe at joelkdouglas.substack.com/subscribe
