Rejecting the Unitary Executive 

Abstract

Critics have dismissed originalism as an empty methodology incapable of resolving our most important constitutional disputes. The originalist debate over the unitary executive has proved particularly difficult to resolve.  While unitary scholars claim that Article II grants the President an indefeasible power to remove all subordinates at will, their 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. Leading originalists have staked their claims to determinacy on empirical, fact-based assertions of historical consensus on the Constitution’s meaning. My approach responds by introducing an empirical framework that requires originalists to evaluate their empirical claims on their own terms. It requires unitary theorists who assert historical consensus to measure their claims empirically and against the entire historical record, including evidence that would render these claims false. Under my approach, 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.

 This Article 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 construct of executive power and the original understanding of Article II.