The Originalist Myth of the Unitary Executive

Abstract

Both Executive Power Vesting Clauses and clauses equivalent to Article II’s Faithful Execution Clause were prevalent in early state constitutions that nonetheless fractured gubernatorial control over state bureaucracies. Originalist defenders of a unitary executive reading of the federal Constitution nonetheless dismiss the interpretive significance of the pre-1787 state constitutions. These early texts supposedly paid only lip service to separation of powers principles, while presenting the Framers chiefly with examples of government structure to avoid. The core problem with this originalist stance is that state constitutions written in the first decades after 1789 persisted in using the same clauses, now found also in Article II, to describe state governments in which governors continued to lack unitary control. Close study of the state constitutions and state administrative practice under them thus belie any “unitary executive” reading of Article II that purports to be based on “original public meaning.” These findings are also consistent with the early history of federal public administration, which corroborates a common understanding that Article II’s vesting of executive power permitted substantial legislative control over the allocation of decisional authority within the executive branch.

Keywords: U.S. Constitution, original public meaning, originalism, Article II, state constitutions, administrative law, constitutional law, executive power, separation of powers, unitary executive