The Indecisions of 1789: Strategic Ambiguity and the Imaginary Unitary Executive (Part I)

66 Pages Posted: 22 Jun 2020 Last revised: 6 Aug 2020

Date Written: May 8, 2020

Abstract

The Roberts Court and supporters of the unitary executive rely on “the Decision of 1789” to establish an originalist basis for presidential removal power at will. However, the first Congress’s legislative debates and a senator’s diary (missed by legal scholars) suggest strategic ambiguity and retreat on the constitutional questions, and the Treasury Act contradicted the unitary model. Here are seven overlooked moments from 1789 that dispel unitary assumptions:

Part I:
1) The “decision” was actually strategic ambiguity that avoided any clear grant of power to the president and any constitutional interpretation, even though explanatory clauses were common in other acts by the first Congress. James Madison and the “presidentialist” bloc switched from an explicit grant of power to an ambiguous contingency clause because they lacked the votes in House and faced resistance in the Senate. Two key supporters said that the change was to “reconcile” and “obtain the acquiescence” of the Senate. House opponents called this move a retreat and questioned its integrity. The debates and votes suggest that only one third of the House supported Madison’s theory, but a majority likely voted for the final bill because the clause was sufficiently unclear, and it was more important to move forward on an urgent legislative agenda.
2) A senator’s diary, overlooked in the legal literature, shows that a majority of Senators opposed removal initially, and then indicates the bill's proponents engaged in the strategy of ambiguity. When critics alleged an “illy concealed… design” against the Senate, the bill's supporters implied the bill had no "design" against the Senate, they offered to delete the clause or part of the clause, and obfuscated and further muddled an already confusing debate.
3) Justices have asserted that the first Congress decided officers served “at will,” but very few members of Congress spoke in favor of presidential removal at pleasure in 1789. The Judiciary Act and the debate over the Treasury debate indicate Congress did not think “at will” was the rule for removal.
4) Members discussed justiciability of for-cause removals in the English writ tradition, suggesting an oversight role for Congress and the courts.

Part II:
5) A tale of two Roberts: two scandalous finance ministers as context for independent checks on executive power.
6) In the Treasury debate, Madison proposed that the Comptroller, similar to a judge, should have tenure during good behavior, a point misunderstood by many modern judges.
7) The Treasury Act’s anti-corruption clause established removal by the judiciary, empowering relatively independent prosecutors and judges to check presidential power. Congress frequently enabled judicial removal over the next 50 years.

For the powers cited by unitary theorists (the constitutional basis for presidential removal power, offices held “during pleasure”), the first Congress was, in fact, indecisive. On whether the president had exclusive removal power, the first Congress decisively answered no. In Seila Law v. CFPB, Chief Justice Roberts misunderstood and misused the decisions in the first Congress.

Keywords: Administrative Law, Constitutional Law, Legal History, Unitary Executive, Founding Era, Removal Power

Suggested Citation

Shugerman, Jed Handelsman, The Indecisions of 1789: Strategic Ambiguity and the Imaginary Unitary Executive (Part I) (May 8, 2020). Fordham Law Legal Studies Research Paper No. 3596566, Available at SSRN: https://ssrn.com/abstract=3596566 or http://dx.doi.org/10.2139/ssrn.3596566

Jed Handelsman Shugerman (Contact Author)

Fordham Law School ( email )

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