The Misuse of Ratification-Era Sources by Unitary Executive Theorists

Abstract

The unitary executive theory is approaching its political and doctrinal zenith in 2025, at the very moment it is approaching an evidentiary crisis. This symposium essay (on "The Future of Agency Independence") suggests that, given an ostensibly originalist Supreme Court,  the future depends on getting the past right. This essay details that evidentiary crisis: a subset of misuses and misrepresentations of sources in the unitary executive scholarship. This subset focuses on serious misrepresentations of the Ratifications debates.

The Ratification debates appropriately have become the primary source of evidence for original public meaning, the dominant theory of originalism. The Ratification debates have always been a significant problem for the unitary executive theorists, because The Federalist Papers are solid contrary evidence. The Ratification debates were silent about whether the president had a general power of removal -- even in the voluminous Anti-Federalist speeches and writings, where one would most expect to see such warnings if they existed.

Aditya Bamzai and Saikrishna Prakash, attempting to rescue their theory, claim to have identified four passages from the Ratification debates. Unfortunately, none of these four passages withstand scrutiny. These misuses are part of a serious pattern of misuses of historical materials. They have misinterpreted historical records from the 1780s and 1790s, and they have repeatedly misinterpreted other scholars’ work in the 2020s.

Taking these examples together with the many errors and misinterpretations identified by historians and legal scholars over the past few years, there are big-picture questions about what historical evidence remains for the unitary executive view that, as a matter of original public meaning, Article II assigned to the president an indefeasible, unconditional power to remove executive officials at pleasure or at will.

Keywords: Presidential power, unitary executive theory, originalism, historical methodology, administrative law, accountability, Early Republic, Constitutional Ratification, Constitutional Law