Tension in the Unitary Executive: How Taft Constructed the Epochal Opinion of Myers v. United States

Journal of Supreme Court History, 2020

Yale Law School, Public Law Research Paper Forthcoming

41 Pages Posted: 8 Jun 2020 Last revised: 9 Nov 2020

Date Written: May 13, 2020

Abstract

This article is excerpted from the forthcoming Volume X of the Oliver Wendell Holmes Devise History of the Supreme Court of the United States, which covers the period 1921-1930 when William Howard Taft was Chief Justice. The article will be published in an upcoming issue of the Journal of Supreme Court History.

The article offers for the first time a detailed account of the process by which William Howard Taft authored his pathbreaking opinion in Myers v. United States, the first Supreme Court decision ever to hold a statute of Congress unconstitutional because incompatible with Article II prerogatives of the President. The decision was six to three, featuring strong dissents by Brandeis, McReynolds, and Holmes. Using archival sources, the article discusses competing views within Taft’s majority coalition of six, as well as Taft’s own independent views about the question of the presidential power of removal.

Analyzing the reasoning of Myers in detail, the article argues that the decision is neither an example of originalism, as Justice Antonin Scalia has claimed, nor is it compatible with contemporary understandings of the “unitary” executive.

Keywords: constitutional law, separation of powers, unitary executive, William Howard Taft, legal history, constituitonal history

JEL Classification: n

Suggested Citation

Post, Robert, Tension in the Unitary Executive: How Taft Constructed the Epochal Opinion of Myers v. United States (May 13, 2020). Journal of Supreme Court History, 2020, Yale Law School, Public Law Research Paper Forthcoming, Available at SSRN: https://ssrn.com/abstract=3600064

Robert Post (Contact Author)

Yale Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

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