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06/15/2020

Jed Shugerman on the Imaginary Unitary Executive
Michael Ramsey

Jed Handelsman Shugerman (Fordham Law School) has posted two new papers (or, Parts I and II of one paper) on SSRN: The Indecisions of 1789: Strategic Ambiguity and the Imaginary Unitary Executive (Part I) (61 pages) and The Decisions of 1789 Were Non-Unitary: Removal by Judiciary and the Imaginary Unitary Executive (Part II) (52 pages). Here is the abstract:

Supporters of the unitary executive rely on “the Decision of 1789” to establish an originalist basis for presidential removal power at will. However, the first Congress’s legislative debates and a diary (missed by legal scholars) suggest strategic ambiguity and retreat on the constitutional questions, and the Treasury Act contradicted the unitary model. Here are seven overlooked moments from 1789 that dispel unitary assumptions:

1) The “decision” is premised on an ambiguous text and an indecisive unicameral legislative history. Madison's switch from explicit power to a contingency clause was likely strategic ambiguity to get the bill passed in the Senate and to move forward on an urgent legislative agenda. House opponents called this move a retreat and questioned its integrity, and the House debates show the presidentialist/unitary view was held by only one third of the House...

2) …and a Senator’s diary indicates the Senate sponsors, in order to win passage, denied the clause was important, disclaimed its constitutional meaning, and disavowed even the presidential power itself. A comment by a House member who supported the presidentialist view hinted at this strategy on the day of the pivotal vote.

3) Justices have erred in claiming that the first Congress decided officers served “at will.” Few members of Congress spoke in favor of presidential removal at pleasure in 1789. The first Congress gave such a low degree of protection to only two offices: marshals and deputy marshals. Meanwhile, in the Treasury debate, opponents of presidential removal power warned against presidential corruption and successfully deleted (without needing debate) a provision that the Treasury Secretary would “be removable at the pleasure of the President.”

4) A tale of two Roberts: two finance ministers, one English, one during the Articles of Confederation era, both scandalous. A reference by Madison during the Treasury debate provide context for independent checks, as opposed to a unitary hierarchy.

5) Judges and scholars have missed that Madison proposed that the Comptroller, similar to a judge, should have tenure “during good behavior.” Though Madison dropped this proposal, the debate reflected his more consistent support for congressional power and how little had been decided in the Foreign Affairs debate.

6) Most problematic for the unitary theory, the Treasury Act’s anti-corruption clause established removal by judges: Offenders “shall be deemed guilty of a high misdemeanor… and shall upon conviction be removed from Office.” The 1789 debates had focused on presidential corruption of finance, and this clause allowed relatively independent prosecutors and judges to check presidential power. Congress added similar judicial removal language to five other statutes between 1789 and 1791, and many more over the next 30 years.

7) These debates pilloried prerogative powers and discussed justiciability of for-cause removals in the English writ tradition, suggesting a larger role for Congress and the courts to investigate presidential power.

For the powers cited by unitary theorists (the constitutional basis for presidential removal power, offices held “during pleasure”), the first Congress was, in fact, indecisive. On whether the president had exclusive removal power, the first Congress decisively answered no. If post-ratification history is relevant to constitutional meaning, the “Decision of 1789” presents more challenge than support for the unitary theory, with implications for Seila Law v. CFPB, independent agencies, independent prosecutors, the Trump subpoena cases, and justiciability.

Without having yet read the whole paper, I would only say quickly that the core of the unitary executive theory is that the President has removal power, not necessarily that the President has exclusive removal power.  So I'm not sure I see that point (6) above is "[m]ost problematic" (or even really problematic at all) for the unitary theory.  The process described does seem of questionable constitutionality, but that is because of the impeachment clause, not the executive power clause.