Presidential Removal: The Marbury Problem and the Madison Solutions

29 Pages Posted: 2 Aug 2021 Last revised: 23 Sep 2021

Date Written: March 10, 2021

Abstract

Marbury v. Madison is not just a puzzling judicial review precedent. It is also a puzzle about presidential removal. Why was it not taken for granted that Jefferson, Secretary of State Madison, or another executive official could simply fire Marbury? Why did Chief Justice Marshall also conclude in the unanimous decision that Marbury could not be removed?

This symposium essay summarizes recent research (especially by Jane Manners and Lev Menand) to solve this problem: an office appointed to a term of years restricted removal in the Anglo-American tradition, demonstrating that presidential removal was not a default rule. This essay also summarizes my research on the first Congress, showing that this rule was not limited to arguably judicial or quasi-judicial offices like Marbury's office of justice of the peace. The Madison solution here is that then-Rep. Madison in 1789, in the debates creating the new Treasury Department, proposed an office of Comptroller with a limited term of office -- and he and his colleagues understood that such terms would protect the Comptroller from presidential removal.

But Chief Justice Marshall's Marbury decision suggests another problem: He used the word "vest" to connote special legal protection for an office-holder. Does this mean that the word "vest" in the Constitution also had an original public meaning of exclusive and infeasible powers, so that Article II vested complete and exclusive executive power in the president, as the unitary theorists posit?This essay briefly previews new research suggesting that "vest" did not have such an original public meaning with respect to powers.

Suggested Citation

Shugerman, Jed Handelsman, Presidential Removal: The Marbury Problem and the Madison Solutions (March 10, 2021). Fordham Law Review, Vol. 89, No. 5, 2021, Fordham Law Legal Studies Research Paper No. 3895845, Available at SSRN: https://ssrn.com/abstract=3895845

Jed Handelsman Shugerman (Contact Author)

Fordham Law School ( email )

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