Somewhat related to yesterdays post, at Law & Liberty, Beau Baumann (PhD candidate, Yale University): On the Dark Side of the Appointments Clause. From the introduction:
A few weeks ago, Ilan Wurman wrote a thoughtful essay for Law & Liberty that jousted with the ideas behind Caleb Nelson’s much-discussed break with the unitary executive theory (UET). The UET takes many forms, but it often embraces two conclusions about presidential power: that the Constitution vests in the president (1) an inherent power to remove principal officers and (2) an inherent power to direct principal officers’ exercise of delegated authorities. Nelson made waves by following a growing anti-UET literature and arguing that an originalist analysis premised on original public meaning fails to establish either a presidential removal power or a presidential direction power. Wurman’s essay cautioned against throwing the baby out with the bathwater. He acknowledged that a presidential direction power of the kind envisioned by unitarians lacks sufficient support, but argues that a presidential removal power stands on firmer ground.
My intervention here is meant to problematize Wurman’s analysis. I think Wurman is right to abandon a presidential direction power. Scholars such as Christine Chabot, Julian Mortenson, and Jed Shugerman have done too much damage to the UET’s pedigree to conclude otherwise. Wurman’s narrower defense of a presidential removal power might turn on a thicker set of evidentiary debates that are submerged in his essay. Having assembled some evidence of an original public meaning that contradicts the anti-unitarian literature, Wurman’s case may ultimately turn on how to parse conflicting evidence and which side ultimately carries what burden. These arguments, though probably decisive, are too complicated for a short essay.
Rather than straining this medium by hashing out those complicated evidentiary debates, I will try to merely problematize Wurman’s work by examining his sub rosa debate with famed constitutional thinker Edward Corwin.
There has been a recent flood of assaults on the simple executive power theory of presidential removal. Despite bold assertions that the theory has been roundly defeated, I have not yet found any of these assaults to work for me. The Constitution says the President has executive power, which means no one else can have it. That Congress in the post-ratification period experimented with various structures in less consequential areas does not change the text.
Posted at 6:09 AM