Christine Kexel Chabot (Marquette University Law School) has posted The Interstitial Executive: A View from the Founding (41 pages) on SSRN. Here is the abstract:
The Supreme Court appears poised to recognize a unitary executive President with power to override statutory removal restrictions for almost all principal officers in the executive branch. The core unitary claim is that Article II vests “the executive power in a President of the United States,” and that the President therefore has exclusive control over all exercises of executive power by subordinate officers. The Court and unitary scholars have further grounded their claims in originalism and contended that the unitary executive’s primary mechanism of control is an indefeasible power to remove all subordinate officers at will. This Article debunks originalist unitary claims by introducing new historical evidence to show that the Washington, Adams, and Jefferson Administrations failed to practice what unitary scholars preach. It introduces a critical body of previously unexamined archival evidence of the terms of office and removal specified in over 200 commissions that Presidents issued to their appointees. These records recover a representative and more comprehensive view of the distinct terms of office that Presidents specified for all of their appointees including officers who exercised executive power both with and without statutory tenure protections. Unlike the Supreme Court, early Presidents recognized removal during pleasure only for officers whose tenures were not specified by statute and respected statutory and constitutional removal restrictions for other officers.
While unitary scholars claim that Article II empowered early Presidents to remove officers notwithstanding statutory restrictions, the officer commissions introduced by this Article show that executive practice instead turned on congressional discretion under Article I’s Necessary and Proper Clause. The Washington, Adams, and Jefferson Administrations asserted service “during pleasure” for officers ranging from the Secretary of State to the Librarian of Congress, but only when governing statutes left terms of office unaddressed. Presidents departed from this practice when they issued commissions to officers who enjoyed statutory or constitutional tenure protections, such as independent commissioners to settle accounts between the United States and individual states, Chief Justices who served on the Sinking Fund Commission, and Justices of the Peace who served for five-year terms set by statute. Commissions which the Presidents and Secretaries of State prepared for these officers repeatedly omitted references to removal “during pleasure” and indicated that these tenure-protected officials served during “good behavior” or for fixed terms. Early Presidents therefore asserted a power of removal during pleasure when Congress left terms of office unregulated but abided by statutory restrictions on removal applicable to other offices. The extended historical record shows that Presidents’ exercise of removal power operated within the law, not above it, and that Presidents respected the statutory terms of office which Congress established pursuant to the Necessary and Proper Clause.
Via Larry Solum at Legal Theory Blog, who has several paragraphs of comments beginning:
My understanding of the state of play is different than Chabot’s. Critics of the unitary executive theory seem to rely mostly on early practice, e.g., the commissions discussed by Chabot. But from the point of view of public meaning originalism, the key issue is the communicative content of the relevant clauses (e.g., Article II’s vesting clause) and the relationship of that meaning to removal, terms of office, etc. Early practice is evidence relevant to meaning, but it is not the same thing as meaning. Chabot doesn’t offer a theory of the communicative content of the clauses that squares with the early practice she identifies. Critics of the Unitary Executive Theory need an account of the propositional content of the Vesting Clause that either allows for executive power to be vested in officers other than the President or that interprets “executive power” as something other than the performance of a bundle of executive functions.
Agreed. This problem is pervasive across critics of the unitary executive. In what sense can it be said that the executive power “shall be” vested in the President if Congress can vest elements of the executive power in persons whom the President cannot control? This textual question requires an answer and I’ve not heard one. To put it another way, in the form of a question I’ve posed on this blog and elsewhere, can Congress provide that the Attorney General shall have sole direction of federal law enforcement and shall have a lifetime appointment? If the answer is yes, how could it be said under that system that the President, rather than the Attorney General, is vested with the executive power? And if the answer is no, why not? And why is that different than Congress providing that a commission (such as the FTC) shall have direction of some aspects of federal law enforcement and shall have good-cause removal protection to assure independence from the President?
Professor Solum concludes:
[T]here is a lot of scholarship that emphasizes early practice–on both sides of issues like removal. My position that all such scholarship provides relevant evidence, but that the most important question is the meaning (communicative content) of the text, which is fixed by linguistic facts and context at the time of framing and ratification, and not be post-ratification practice.
Again, I agree. A central question is whether the post-ratification practice or commentary rested on an interpretation of the text, or instead rested on political or practical convenience, institution interest, etc.
I’m also a bit skeptical that Professor Chabot’s evidence shows what she wants it to show (though I haven’t studied it in detail yet). I would like to see a situation where Washington or another President considered removing a core executive officer but decided he lacked the power due to a statutory restriction. Further, her leading examples (“independent commissioners to settle accounts between the United States and individual states, Chief Justices who served on the Sinking Fund Commission, and Justices of the Peace who served for five-year terms set by statute”) may not be analogous to officers who wield core law enforcement power. (Justices of the Peace, to the extent they were territorial officers, may have been understood as in a distinct category due to Congress’ power over the territories.) So an important question is whether there were an officers analogous to the modern independent commissions that had law enforcement responsibilities and removal protection. I’m not sure there were.
Posted at 6:02 AM