Interring the Unitary Executive
62 Pages Posted: 13 Sep 2021 Last revised: 13 Dec 2021
Date Written: September 10, 2021
This Article addresses a constitutional debate that began in 1789 and rages on yet today. While the U.S. Constitution unequivocally establishes a single President, it leaves open many questions about the officers who will necessarily assist the President in executing the law. Leading originalists contend that Article II’s provisions vesting “the executive Power” in a single President and requiring her to “take Care that the Laws be faithfully executed” dictate a particular governmental structure: a “unitary executive” President with absolute power to remove (and thus control) all officers in the executive branch. Unitary arguments strike at the pillars of today’s administrative state. These arguments have led the Supreme Court to the brink of erasing longstanding tenure protections for heads of independent agencies such as the Federal Reserve and the Federal Trade Commission. If taken to their logical extreme, unitary arguments could also lay waste to similar protections for scores of subordinate executive officers.
Despite the certainty with which unitary scholars profess a direct conflict between original constitutional meaning and the independence afforded by modern tenure protections, an express presidential removal power appears nowhere in the text of the Constitution. Originalist proponents of a unitary executive have instead placed heavy emphasis on select, historically informed understandings of Article II and negative inference drawn from a supposed lack of independent regulatory structures at the Founding. This Article refutes such claims and introduces a comprehensive historical record that earlier scholars have largely missed. My work establishes that 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 scholars’ 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 scholars have also missed dozens of early statutory provisions that repeat non-unitary aspects of the Sinking Fund Commission’s structure and require independent actors to autonomously reinforce the President’s duty to take care that the laws be faithfully executed. By scouring every public act passed by the First Congress, my research brings to light independent regulatory structures that pervaded the Founding era. The First Congress repeatedly dispersed executive decisions amongst multiple officers who checked one another as well as the President. This body also repeatedly delegated control over executive officers, as well as significant executive discretion, to independent judges and lay persons whom the President could not remove. All of 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