Judge Justin Walker on the Unitary Executive
Michel Ramsey
Concurring in Harris v. Bessent (D.C. Cir. Mar. 28, 2025) (regarding the President's power to fire members of the National Labor Relations Board and the Merit Systems Protection Board, despite statutory restrictions), Judge Justin Walker gives a strong originalist-oriented account of the unitary executive. An excerpt (footnotes omitted):
Ultimately, though, the Framers “‘insisted’ upon ‘unity in the Federal Executive’ to ‘ensure both vigor and
accountability’ to the people.” So they settled on a single executive, the President of the United States, who “would be personally responsible for his branch.”
That unity affords the President “[d]ecision, activity, secrecy, and dispatch,” and it guards against a plural
executive’s tendency “to conceal faults and destroy responsibility.” It also avoids “the ‘habitual feebleness and dilatoriness’ that comes with a ‘diversity of views and opinions.’”
At the same time, the Framers understood the risks posed by a strong executive. Their solution? Making “the President the most democratic and politically accountable official in Government,” subject to election “by the entire Nation” every four years. The “resulting constitutional strategy is straightforward: divide power everywhere except for the Presidency, and render the President directly accountable to the people through regular elections.”
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Against that backdrop, the Constitution assigns a lofty role to the President. Article II vests the “executive Power” in the “President of the United States of America.” And it charges the President to “take Care that the Laws be faithfully executed.”
Of course, the President cannot carry out his duties “alone and unaided” — he must enlist the “assistance of subordinates.” The Framers envisioned a “chain of dependence” in the executive branch, where “the lowest officers, the middle grade, and the highest, will depend, as they ought, on the President.” The Vesting Clause empowers the President to direct and control those officials. As James Madison explained, “if any power whatsoever is in its nature executive, it is the power of appointing, overseeing, and controlling those who execute the laws.”
That includes “a power to oversee executive officers through removal.” Because the Constitution provided no textual limits on that “traditional executive power,” “it remained with the President.”
Founding-era history confirms that understanding. The First Congress encountered the question directly, and its debate and decision — now called “the Decision of 1789” — provides “contemporaneous and weighty evidence of the Constitution’s meaning since many of the Members of the First Congress had taken part in framing that instrument.”
During the summer of 1789 “ensued what has been many times described as one of the ablest constitutional debates which has taken place.” The topic of the President’s removal power came up “during consideration of a bill establishing certain Executive Branch offices and providing that the officers would be subject to Senate confirmation and ‘removable by the President.’"
The House debated various theories, including that Congress could specify the President’s removal authority on an office-by-office basis, that officers could be removed only through impeachment, that removal required the advice and consent of the Senate, and that the “executive power” conferred plenary removal authority to the President. The last view, advocated by James Madison, prevailed: The “executive power included a power to oversee executive officers through removal.” To avoid giving the impression that Congress had any say in the President’s removal decisions, the House deleted the bill’s provision making officers “removable by the President.” In retrospect, the Decision of 1789 has been viewed as “a legislative declaration that the power to remove officers appointed by the President and the Senate [is] vested in the President alone.”
Among other authorities, Judge Walker relies on the textualist/originalist account of executive removal power in Aditya Bamzai & Saikrishna Prakash, The Executive Power of Removal, 136 Harv. L. Rev. 1756, 1774 (2023).
(Via How Appealing.)