The Indecisions of 1789: An Originalism Cautionary Tale

68 Pages Posted: 22 Jun 2020 Last revised: 30 Nov 2021

Date Written: May 8, 2020

Abstract

The unitary executive theory relies on “the Decision of 1789” in the first Congress to establish an originalist basis for a presidential removal power at will. However, these interpretations from Myers (1926) to Seila Law (2020) are incorrect. New historical evidence, plus many concrete misreadings of primary sources in the pro-unitary scholarship, raise doubts about the stare decisis deference that Justice Kagan afforded them in Collins v. Yellen.
The unitary theory’s strict separation-of-powers argument depends on presidential exclusivity and indefeasibility (i.e., Congress may not set limits or conditions). This Article shows that the first Congress rejected the unitary model, both in the passage of the departmental acts and in many statutes delegating removal to judges and juries, against the unitary model.
This new interpretation turns on two new approaches to the First Congress’s debates; two sets of new historical materials (a Senator’s diary and the removal-by-judiciary statutes); and identifying major errors in how the unitary scholarship interpreted many speeches and letters.
The first new interpretive approach is to focus on the only day of debate (Monday, June 22d) that separated the unitary “presidentialists” (who thought Article II established presidential removal) from the “congressionalists” (who thought Article I gave Congress the power to delegate removal). These speeches clarify the members’ positions and the size of each faction, revealing that only one third of the House supported unitary presidentialism, and a broad majority rejected it.
A second new interpretive approach is to put this debate in the context of the urgent legislative agenda in the summer of ’89: tariff and revenue fights, foreign policy, drafting a Bill of Rights, creating a national judiciary, as well as establishing departments. This context suggests that the pivotal votes, if they were not congressionalists, were more likely impatient pragmatists than presidentialists. Then a study of the first Congress’s drafting practices reveals that explicit explanatory clauses and preambles were common, raising doubts about why Madison would replace a more explicit clause with an ambiguous one to establish a constitutional interpretation, rather than the other way around. The answer: He did not have the votes.
The first set of overlooked documents was Senator William Maclay’s diary and other private notes from the Senate debates, revealing initial Senate opposition to presidential removal and then confusion and obfuscation. They also offer a valuable clue about why Madison retreated in mid-June: The Senate had just blocked Madison’s anti-British tariff policies just before Madison proposed softer language in the departmental bills. This context of House-vs.-Senate conflict explains why the ostensible “decision” was, in fact, strategic ambiguity, compromise, and retreat. Opponents immediately mocked Madison’s turn to ambiguity as a retreat and attacked his masculinity. One of Madison’s allies even conceded on the House floor that they shifted in order to “obtain the acquiescence” of the Senate.
The second set of documents are a series of statutory clauses that delegated removal power to judges and juries, regardless of a president’s wishes, a contradiction of the unitary theory. Additionally, Madison proposed a “good behaviour” Comptroller. Other statutes and debates show little support for tenure “at the pleasure” of the president.
This closer look at the evidence and at significant misreadings by the pro-unitary scholarship not only raise questions about stare decisis for Free Enterprise and Seila Law, but they also raise more general concerns about the practice of originalism.

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

Suggested Citation

Shugerman, Jed Handelsman, The Decisions of 1789 Were Anti-Unitary: An Originalism Cautionary Tale (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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