Interrogating the Historical Basis for a Unitary Executive

Abstract

This Article demonstrates that the historical claims about the original meaning of the executive power made by proponents of the "unitary executive" theory of presidential and executive power in the United States are largely unfounded. The ability to remove executive officials was not one of the prerogative powers possessed by the King of England at the time of the framing of the U.S. Constitution. Moreover, the king neither appointed nor was able to remove all of “his” principal officers, many of whom held their offices for life or pursuant to other forms of tenure and operated largely free of the king’s direction or control. While the king possessed plenary authority to choose his high-level advisers and the officers who carried out his prerogatives over the military and foreign affairs, Parliament frequently regulated the appointment, qualifications, and tenure of other executive officials in Great Britain, including by protecting them from removal by the king or his ministers, when there was good reason to do so.

The evidence surveyed in this Article, which includes confirmation from a previously overlooked passage from one of James Madison's writings in The Federalist Papers, has important implications for debates over the unitary executive theory as well as for this term's Supreme Court case over the constitutionality of the Consumer Financial Protection Bureau. It suggests that the Constitution does not proscribe efforts by Congress to insulate regulatory and law-enforcement officials, such as the heads of independent agencies and special prosecutors, from political interference.

Keywords: Constitutional Law, Executive Power, President, Removal, Legal History, Originalism, British Legal History