“Becoming the Administrator-in-Chief: Meyers and the Progressive Presidency,” an article coauthored by Professor Andrea Katz of WashULaw and Noah Rosenblum of the NYU School of Law, has been published in the Columbia Law Review.
In the introduction, they write:
In a series of recent cases, the Supreme Court has reconfigured the administrative state in line with a particular version of Article II. According to the Court’s scheme, known as the theory of the “unitary executive,” all of the government’s operations must be housed under one of three branches, with the head of the executive branch shouldering unique and personal responsibility for the administration of federal law.
Guiding the Court’s decisions is Myers v. United States, the famous 1926 case about the firing of a postman. Written by President-turned–Chief Justice William Howard Taft, Myers is used to bolster the Court’s jurisprudence as a supposed precedent for the unitary executive theory and an alleged originalist defense of strong executive administration.
This Article shows that Myers has been misread. It did not explicate a preexisting tradition of presidential power; it invented one. Claiming to describe the presidency as it had always been, Taft’s opinion broke with decades of jurisprudence to constitutionalize a new understanding of the office. This “Progressive Presidency,” which (President) Taft himself helped create, made the President the administrator-in-chief on developmental, not originalist, grounds as part of a broader Progressive remaking of government. And it differed from its modern-day unitary counterpart in many important particulars, including respect for administrative independence.
This Article reconstructs the Progressives’ transformation of the presidency and shows how Myers wrote it into law. This contextual reading of Myers undermines the Court’s recent decisions and highlights the co-constitutive roles of institutional and doctrinal developments in making the modern presidency.
Read the article in full here.
