The Power to Remove For Cause
136 Yale Law Journal __ (2026)
61 Pages Posted: 26 Feb 2026 Last revised: 26 Aug 2026
Date Written: February 25, 2026
Abstract
This Article reconstructs the American law of removal “for cause.” It shows that nineteenth century state legislators used this term to strike a balance—to protect officers from losing their jobs for political reasons, while enabling the discharge of officers unable to carry out their duties effectively. Although legislators employed “for cause” provisions to create some flexibility for removing authorities, in most cases they did not expect those authorities to have the final word on whether an officer’s conduct merited removal. Instead, legislators thought of a removal “for cause” as an adjudicatory act—requiring notice, an opportunity to be heard, and judicial review of the legal sufficiency of the asserted cause.
In the decades after the Civil War, removing authorities in many states argued that “for cause” language was merely admonitory, requiring no process or judicial review. Although most courts rejected these arguments, a striking divergence emerged: Where a removed officer served for a fixed term, almost all state courts adopted “the American Rule,” treating removal as adjudicatory. But where a statute included no fixed term, some state judges (likely wary of offices that could otherwise be held for life) embraced the admonitory position.
This history reveals the significance of two largely overlooked cases from the early 1900s: Reagan v. U.S. and Shurtleff v. U.S. In these decisions, the Supreme Court resolved the question of which way federal courts would go. It adopted the American Rule for federal offices, but it declined to enforce adjudicatory removal in cases without express language conferring office for a fixed term or for life. As Congress built out the administrative state, it did so against the backdrop of the substantial body of statutory common law underlying this doctrinal settlement. Drawing on these findings, this Article offers an historically-grounded framework for evaluating removal disputes between the President and federal administrators today, in line with the Supreme Court’s recent decision in Trump v. Cook. It also offers concrete legal bases that judges can use in future cases to define the outer limits of executive removal power.
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