The Imaginary Unitary Executive - Lawfare

Title: The Imaginary Unitary Executive

Source: Lawfare

Date of Publication: July 6, 2020

Author: Jed Handelsman Shugerman. Shugerman is a Professor of Law at Boston University School of Law, joining in 2023 after spending a year as a visiting professor. When this article was published, Shugerman was a professor at Fordham University School of Law. He has a JD and a PhD in History from Yale. More on Shugerman can be found here.

Introduction to the article: On June 29 (2020), Chief Justice John Roberts relied heavily on something called the “Decision of 1789” to expand presidential removal powers. The Supreme Court ruled 5-4 in Seila Law v. Consumer Financial Protection Bureau that the structure of the CFPB was unconstitutional as an independent agency, because Congress required the president to have good cause to remove its single director.

Roberts held that such a requirement interfered with a president’s power to supervise the executive branch, because a sole director with for-cause protection would have held too much concentrated power independent from presidential control. Roberts limited this decision to principal officers as singular heads of agencies, as opposed to commissions. However, his expansion of the “unitary executive” theory could continue expanding presidential power and thwart potential reforms to address recent abuses.

President Trump, for example, has fired a number of inspectors general. Could a new Congress protect the independence of inspectors general with for-cause requirements? Or could Congress establish a new independent counsel statute, responding to Trump’s efforts to fire Special Counsel Robert Mueller? May Congress enact reforms to make the Department of Justice more independent from self-protecting presidents and partisan attorneys general? Most fundamentally, what will be the role for Congress and the courts to check and balance the president as the Roberts court expands its separation-of-powers formalism?

The Constitution is famously silent on removal power. Because records of the Constitutional Convention of 1787 and the debates over constitutional ratification in 1787-88 are, at best, inconclusive about presidential power, the theorists of exclusive presidential power—many of whom are originalists—have turned to 1789. They see in the first Congress a founding moment of presidential power.

Roberts writes on the second page of his decision, “The President’s power to remove—and thus supervise—those who wield executive power on his behalf follows from the text of Article II, was settled by the First Congress, and was confirmed in the landmark decision Myers v. United States(1926).” But Roberts actually cites few sources from 1789, relying instead on how judges “confirm” this received wisdom about events in that year. This is odd for an ostensibly historical argument. One of the few original sources Roberts cited is a letter from James Madison, who orchestrated a sequence of votes that became known as the Decision of 1789. Roberts uses Madison’s words to summarize: “The view that ‘prevailed, as most consonant to the text of the Constitution’ and ‘to the requisite responsibility and harmony in the Executive Department,’ was that the executive power included a power to oversee executive officers through removal.” But Madison had an interest in telling his own version of his strategy.

Justice Clarence Thomas in concurrence also relied on the First Congress—or to be more precise, he relied on Chief Justice William Howard Taft’s interpretation of it in Myers. Justice Elena Kagan briefly raised questions about the clarity of this interpretation, but Roberts applied something like res judicata to historical interpretation: “The dissent, for its part, largely reprises points that the Court has already considered and rejected,” such as “downplay[ing] the decision of 1789.”

But a justice’s interpretation of a historical event should not itself have any precedential value—certainly not for originalists, who generally say original sources should trump precedent. Instead of reviewing the original debates, however, Roberts rests on what judges have said about 1789 over the past century: Taft in Myers and Roberts himself in Free Enterprise Fund v. Public Accounting Oversight Board: “‘Since 1789,’ we recapped, ‘the Constitution has been understood to empower the President to keep these officers accountable—by removing them from office, if necessary.” Roberts wrote in Seila Law: “But text, first principles, the First Congress’s decision in 1789, Myers, and Free Enterprise Fund all establish that the President’s removal power is the rule, not the exception.” The text is far from clear; what Roberts means by “first principles” is even less clear. And Myers and Free Enterprise rely heavily on “the First Congress’s decision in 1789.”

So this really all comes down to what actually happened in 1789 when Congress put together the rudiments of what became the federal government. Oddly, none of the opinions provide historical detail on that pivotal subject.

In fact, a closer look at those events shows that the unitary version of a Decision of 1789 is a myth. The first Congress actually rejected Roberts’s interpretation of the Constitution and rejected the strict and exclusive unitary model as well. The constitutional conventional wisdom is a kind of fantasy, an edifice of implausible explanations, built on an obscurantist unicameral legislative history of the sort that textualists, formalists, and originalists like the Roberts majority would otherwise reject. This fable unravels in light of an overlooked diary account of what happened in the Senate and a series of statutes contradicting the unitary theory through the rest of the summer of 1789 and over many decades.

What follows is a deep dive on the first Congress and the true Decision of 1789. It is a cautionary tale about originalism and lawyers’ use of history. It confirms the textualists’ concerns about the cherry-picking of legislative history—yet somehow, the textualists on the Court conveniently rely on this misreading of legislative history. The story is that the first Congress did what legislatures often do: It found the least-common-denominator basis for pushing through legislation by retreating to strategic ambiguity and allowing the proponents to reverse their arguments and explanations when they needed votes. Each side could claim victory.

You can continue reading the full article here.