At Law & Liberty, George Liebmann: Historical Perspective on the Unitary Executive. From the introduction:
Anyone reading the briefs and transcript of oral argument in the recent Slaughter case involving the president’s power to remove members of independent regulatory agencies can only be amazed at the lack of historical perspective of all the major actors, including counsel. All treat Article II of the Constitution as a perfect model of executive unity, the only issue being how far its powers extend. In truth, the drafting and history of Article II show that there have always been reservations with and limits to the unitary character of the executive branch.
Today, there is a widespread failure to realize that Article II made several concessions to the notable members of the Constitutional Convention who favored a plural executive on the Swiss model, or on the model prevailing in most American states, where the attorney general, comptroller, and treasurer are chosen separately from the governor. In some of those states, such as Massachusetts and New Hampshire, an executive council is given important powers, while in Virginia, not the least important state in 1787, the legislature exercises appointment powers elsewhere belonging to the executive.
The advocates of a plural executive included Benjamin Franklin, Edmund Randolph, Luther Martin, and George Mason. The principal concession they won was the requirement of Senate concurrence in appointments of “officers of the United States” unless Congress vested appointment “of such inferior officers as they think proper, in the president alone, in the Courts of Law, or in the heads of Departments.” Such legislative involvement is hardly in line with a model of pure executive unity. The principle extended not only to cabinet officers but to all officers in the military, save to the extent that Congress relinquished its power of confirmation. …
And in conclusion:
The foregoing doesn’t definitively demonstrate the correct outcome in Slaughter, but it does show that the Court was not well served by briefs and arguments neglecting the divided counsels at the Constitutional Convention and the Anglo-American prejudice against concentrated power. Article II is not a charter for presidential thunderbolts from on high; it vested executive power, to be sure, but it also curbed and dispersed it. Limitations on presidential control of the executive branch have been part of our political tradition, too. If we take as our starting point an assumption of unquestioned unity, it leads us to a Cromwell or Charles I, not to America’s constitutionally restrained executive.
I think this is generally true, but abstract principles don’t decide concrete cases (as a wise man once said, even if I don’t really agree with how he applied that wisdom). The Constitution’s framers did not want an unduly powerful executive in the model of Charles I, or even George III. In key respects their text limited the executive power previously held by the English monarch, including by assigning war power to Congress and requiring Senate consent for appointments and treatymaking. That doesn’t say anything directly about how they allocated removal power. Its allocation depends on the Constitution’s text. We can’t say, just from the abstract idea of a somewhat constrained executive, how they would have allocated removal power (just as we could not say, without looking at the text, whether the framers thought appointments power should be shared or not.)
Posted at 6:15 AM