Interring the Unitary Executive
59 Pages Posted: 13 Sep 2021 Last revised: 23 May 2022
Date Written: September 10, 2021
The President’s power to remove and control subordinate executive officers has sparked a constitutional debate that began in 1789 and rages on today. Leading originalists claim that the Constitution created a “unitary executive” President whose plenary removal power affords her “exclusive control” over subordinates’ exercise of executive power. Text assigning the President a removal power and exclusive control appears nowhere in the Constitution, however, and unitary scholars have instead relied on select historical understandings and negative inferences drawn from a supposed lack of independent regulatory structures at the Founding. The comprehensive historical record introduced by this Article lays this debate to rest. It makes clear that the Founding generation never understood the unitary executive to be part of our Constitution. This Article establishes that non-unitary, independent structures were not only present at the Founding, but that they pervaded regulatory statutes passed into law by the First Federal Congress and President George Washington.
Unitary executive theory and its requirements of accountability to the President stand at odds with the independence and tenure protections afforded to scores of unelected bureaucrats who run our government. Unitary scholars insist that Article II’s Vesting and Take Care Clauses require the Supreme Court to erase longstanding precedent allowing tenure protections for heads of multimember, independent agencies such as the Federal Reserve and the Federal Trade Commission. If taken to their logical extreme, unitary arguments could also eviscerate similar tenure protections for administrative law judges and a multitude of other subordinate officers. The Roberts Court has adopted strong unitary arguments in recent decisions and appears poised to invalidate tenure protections applicable to wide swaths of the administrative state.
This Article demonstrates that unitary scholars and judges have rested their arguments on deficient understandings of Founding-era history. Their failure to recognize the independent structure of the Sinking Fund Commission — a Founding-era agency proposed by Alexander Hamilton and passed into law by President Washington and the First Congress — is just the tip of the iceberg. Unitary jurists have also missed scores of early statutory provisions that repeated non-unitary aspects of the Sinking Fund Commission’s structure and required autonomous actors to reinforce the President’s duty to take care that the laws be faithfully executed. The First Congress repeatedly delegated control over executive officers, as well as significant executive discretion, to independent judges and lay persons whom the President could not remove. This body also chose a non-unitary framework when it dispersed executive decisions amongst multiple officers and required these officers to check actions taken by the President and each other. These laws belie the conventional originalist view that the Constitution vests “exclusive control over the exercise” of “executive power” in the President of the United States. Independent regulatory structures have been with us since the beginning, and originalism provides no occasion for the Court to declare them unconstitutional now.
Keywords: executive power, Article II, originalism, unitary executive, agency independence, tenure in office, First Congress, Sinking Fund Commission, Decision of 1789, Seila Law, Consumer Financial Protection Bureau
JEL Classification: K23, K20, K42, K10, K19
Suggested Citation: Suggested Citation