Rejecting the Unitary Executive 

Abstract

Critics have dismissed originalism as an empty methodology. They claim it is incapable of resolving our most important constitutional disputes, including the debate over the unitary executive. While unitary scholars assert that Article II grants the President an indefeasible power to remove all subordinates at will, their purportedly originalist interpretation conflicts with significant historical evidence. The Supreme Court’s apparent move toward an indefeasible removal power has proceeded as though this underlying historical indeterminacy is either irrelevant or does not exist.

This Article offers a new way to bridge the disconnect between historical disputes over the unitary executive and public meaning originalism’s claims to determinacy. While leading originalists have staked their claims to determinacy on empirical, fact-based assertions of historical consensus about the Constitution’s meaning, unitary scholars have attempted to show consensus by using a selective legal framework. Their selective approach fails to comply with key tenets of sound empirical analysis.  In response, this Article offers an empirical framework that measures unitary claims against the entire historical record, including evidence that would render these claims false. Under an empirical framework, for example, a theory asserting an absolute claim that all that swans are white cannot withstand observations of swans that are black. A theory of historical consensus that Article II empowered the President to remove all subordinates at will likewise cannot withstand reliable historical counterevidence of restrictions on the President’s removal power.

 My empirical framework makes clear what originalism’s underdetermined methodology has hidden from plain sight. The Founding generation rejected an absolute presidential removal power. The question remaining for the Supreme Court is not a choice between competing parts of the historical record. It is instead a choice between a modern, unitary construct of executive power and the original understanding of Article II.  

Keywords: Executive Power, Article II, Originalism, Founding Era, Sinking Fund Commission, Unitary Executive, Constitutional Law, Administrative Law