For the first time in American history, the Supreme Court is poised to decide what it means for the president to remove a principal officer ‘for cause’. The case—which arises from the attempted removal of Lisa Cook, a member of the Board of Governors of the Federal Reserve System—has major implications for central bank independence in the United States and, more broadly, for the US administrative state. But given how long it has been since such offices were formally contested, courts and commentators have forgotten many aspects of the legal tradition governing ‘for cause’ removal. In a new paper, we reconstruct the nineteenth- and early-twentieth-century law of public offices and offer a doctrinal framework to evaluate Trump v Cook and to better understand the design of dozens of federal administrative agencies.
Our central claim is historical but highly relevant to present controversies: when legislatures paired fixed terms with ‘for cause’ removal provisions, they created an adjudicatory regime. Removal was not a matter of executive discretion insulated from review. It was a legal act requiring formal notice, an opportunity to be heard, and judicial review of whether the asserted ‘cause’ was legally sufficient. This review had bite: courts of last resort in many states rejected removals on the grounds that the cited conduct did not constitute ‘cause’. Courts were especially skeptical of removals that rested solely on the basis of pre-term conduct and out-of-office conduct, exactly the type of conduct at issue in Cook.
Three Forms of Tenure
To understand ‘for cause’ law, it is necessary first to clarify the basic mechanics of officer law, which are obscured in contemporary discourse. Early American law traditionally recognized three forms of tenure: (1) at pleasure, (2) for a fixed term, and (3) during good behavior. A fixed term was long understood to serve as both a ceiling and a floor: absent statutory authorization to the contrary, the officeholder could neither serve beyond the term nor be removed before its completion (except by impeachment).
The function of statutory for cause provisions was to serve as such statutory authorization. Although today these provisions are typically understood as ‘protections’ against at-will removal, for cause provisions originated as permissions—devices that allowed removal where the underlying fixed-term tenure would otherwise prohibit it. Over time, the interaction between fixed terms and ‘for cause’ clauses came to embody a distinctive tenure: one that combined insulation from partisan or arbitrary dismissal with the ability to remove officials who failed to perform their duties competently or honestly.
State Courts and the Rise of ‘For Cause’ Law
Throughout the nineteenth century, state legislatures experimented with different combinations of tenure and removal language. As officeholders challenged their removals under these statutory provisions, state courts developed a common law determining the meaning and operation of for cause removal.
Where a statute conferred a fixed term and authorized removal ‘for cause’ or for specified causes,[1] courts overwhelmingly treated removal as an adjudicatory act. This meant three things. First, the officer was entitled to notice of the charges. Second, the officer had an opportunity to respond. Third—and most significantly—courts reviewed whether the asserted cause was legally sufficient. Judges did not simply defer to the executive’s say-so; they determined, as a matter of law, whether the alleged misconduct fit within the statutory standard.
We call these arrangements ‘adjudicatory for cause’ tenures. They stand in sharp contrast to what we label ‘admonitory’ provisions: ‘for cause’ statutory language that was merely hortatory. The executive was expected to act responsibly, but the determination of cause was left to political rather than judicial checks. Removal could proceed without formal process, and courts declined to second-guess the executive’s judgment. Often, admonitory for cause tenures involved qualifying language, such as the stipulation that the cause for removal must be ‘satisfactory to’ the removing entity, which courts read as expressly or impliedly modifying the default rule in favor of adjudicatory tenure. In another set of cases, judges chose to read ‘for cause’ provisions as admonitory in the absence of a fixed term, often rooting their rulings in an expressed aversion to what they saw as the alternative: secure life tenure for bureaucrats.
Reagan, Shurtleff, and the Federal Rule
This state law framework sheds new light on two largely overlooked Supreme Court decisions: Reagan v United States (1901) and Shurtleff v United States (1903). These cases resolved, at the federal level, a conflict that had divided state courts: did for cause language entail process and judicial review even in the absence of a fixed term? The Supreme Court adopted a hybrid rule that built on the dominant state approach. Where an office carried a fixed term, for cause removal required notice, hearing, and judicial review. But where no fixed term existed, for cause language alone did not prevent removal at will by the appointing authority.
This doctrinal resolution formed the backdrop against which Congress built much of the twentieth-century administrative state, including the Federal Reserve Board. In the wake of Reagan and Shurtleff, a fixed term paired with removal ‘for cause’ or for specified causes protected a federal officer from arbitrary removal and enlisted the courts to police the boundary between legitimate, performance-based removal and impermissible displacement.
Implications for Today
The government’s position in current litigation—that ‘for cause’ removal requires no formal process and is effectively unreviewable as long as the president cites some reason other than a policy dispute—finds little support in this historical record. To the contrary, the history reveals that Congress’s use of fixed terms and ‘for cause’ language built on a long tradition that used this exact formulation to recruit courts into the removal process, not to exclude them.
That record shows that courts did not defer to the executive’s framing of cause. They determined its sufficiency as a matter of law, generally limiting ‘cause’ to conduct affecting the officer’s ability to perform official duties. Private misconduct unrelated to official functions, especially if predating appointment, typically did not qualify. Only in exceptional cases—such as conviction of a serious crime—might private behavior rise to the level of legal cause.
The implications of this excavated history and doctrine extend beyond any single officer. If ‘for cause’ removal is near-unreviewable and procedurally unstructured, then statutory independence for agencies like the Federal Reserve is practically illusory. If, however, the historical rule governs, then courts play a pivotal role in maintaining the balance Congress sought to strike between executive oversight and administrative stability. Past cases, meanwhile, provide courts with tools grounded in positive law—not policy preference—to set the outer limits of presidential power.
Read the authors’ article. This post was originally published on the Yale Journal on Regulation Blog.
Jane Manners is an Associate Professor of Law, Fordham Law School.
Lev Menand is an Associate Professor of Law, Columbia Law School.
Endnotes
[1] Some statutes listed specific causes for removal, such as neglect of duty and malfeasance in office, while others simply authorized removal ‘for cause’. Here, we denote the latter by putting ‘for cause’ in quotation marks, while the omission of quotation marks refers to both statutes authorizing removal ‘for cause’ and those authorizing removal for specified causes. As we explain in the paper, late-nineteenth-century state courts widely agreed that removal for specified causes, with or without a fixed term, required process and was subject to judicial review.
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