The First Congress Rejected Unitary Presidentialism: The Indecision of 1789, Strategic Ambiguity, and Removal by Judiciary

89 Pages Posted: 22 Jun 2020 Last revised: 19 Mar 2021

Date Written: May 10, 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 implied by Article II. Their strict separation-of-powers argument depends on presidential exclusivity from and indefeasibility by Congress. However, these interpretations from Myers (1926) to Seila Law (2020) are incorrect: The first Congress rejected the unitary model. This new interpretation turns primarily on three new approaches to the debates and two overlooked sets of documents:
1) The first overlooked document is Senator William Maclay’s diary, which reflects initial opposition to presidential removal power and a simultaneous fight between House and Senate over Madison’s tariff proposals. This context explains why the ostensible “decision” was, in fact, strategic ambiguity. Madison and the “presidentialists” lacked support in the House and Senate for an explicit statement of Article II removal power. Although explanatory clauses and preambles were common in the first Congress, Madison switched from an explicit grant to an ambiguous contingency clause. Madison’s opponents called out his retreat, and his allies acknowledged their switch was a strategy to “obtain the acquiescence” of the Senate.
2) The new approach here is to weigh more heavily the only day of debate (Monday, June 22d) that separated the “presidentialists” (who thought Article II fixed presidential removal) from the “congressionalists” (who thought Article I gave Congress the power to delegate removal to the president). This focus on June 22d clarifies that only one third of the House supported unitary presidentialism, and a broad majority rejected it. The pivotal votes in question (claimed as “enigmatic” in the unitary scholarship) were far more likely congressional or agnostic. Maclay’s diary then records obfuscation and retreat in the Senate.
3) The second set of documents is a series of statutes granting removal power to the judiciary. The Treasury Act’s anti-corruption clause established removal by the judiciary for officers “deemed guilty of high misdemeanors,” empowering relatively independent prosecutors and judges to remove executive officers and to check presidential power. Congress expanded this judicial power to remove in 1789-91 and over the next 50 years. Unlike the Foreign Affairs statute, these statutes clearly established removal powers –just not presidential removal.
4) The second new approach is a re-reading of Madison’s misunderstood Comptroller proposal for “good behavior” tenure, reflecting dissensus about removal conditions.
5) The third new approach is to put this debate in the context of the urgent legislative agenda and policy battles of the summer of ’89: tariff fights, the contradictory explicitness of a bill of rights (and the common use of explanatory clauses in statutes), revenue, a judiciary, as well as establishing departments and appointments. This context suggests more compromise and pragmatism, especially from the pivotal bloc.
The debates in the first Congress offer additional evidence against the unitary interpretation: few members endorsing tenure “during pleasure” (a mistaken assumption in the modern precedents); past finance scandals as context for independent checks on executive power; and references to English writs and justiciability of for-cause removals. A majority of the first Congress opposed the powers cited by unitary theorists, first reflected in votes and debates in the misunderstood “Decision of 1789” debates, and then by enacting a series of removal-by-judiciary statutes in a more decisive anti-unitary Decision of 1789.

Keywords: Constitutional law, legal history, unitary executive, administrative law, removal, the presidency, judicial power

Suggested Citation

Shugerman, Jed Handelsman, The First Congress Rejected Unitary Presidentialism: The Indecision of 1789, Strategic Ambiguity, and Removal by Judiciary (May 10, 2020). Fordham Law Legal Studies Research Paper No. 3597496, Available at SSRN: https://ssrn.com/abstract=3597496 or http://dx.doi.org/10.2139/ssrn.3597496

Jed Handelsman Shugerman (Contact Author)

Fordham Law School ( email )

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6462933955 (Fax)

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