The Decisions of 1789 Were Non-Unitary: Removal by Judiciary and the Imaginary Unitary Executive (Part II)

Abstract

The Roberts Court and supporters of the unitary executive rely on “the Decision of 1789” to establish an originalist basis for presidential removal power at will. However, the first Congress’s legislative debates and a senator’s diary (missed by legal scholars) suggest strategic ambiguity and retreat on the constitutional questions, and the Treasury Act contradicted the unitary model. Here are six overlooked moments from 1789 that dispel unitary assumptions: Part I: 1) The “decision” was actually strategic ambiguity that avoided any clear grant of power to the president and any constitutional interpretation, even though explanatory clauses were common in other acts by the first Congress. James Madison and the “presidentialist” bloc switched from an explicit grant of power to an ambiguous contingency clause because they lacked the votes in House and faced resistance in the Senate. The debates and votes suggest that only one third of the House supported Madison’s theory. 2) A senator’s diary shows that a Senate majority initially opposed the bill. Critics emphasized the bill’s confusion and its “illy concealed… design,” but proponents implied the clause had no “design” against the Senate’s power. The diary suggests that the bill’s supporters followed through on a strategy of ambiguity, confusion, and retreat, instead of clarifying the text. Part II (Here): 1) Justices have asserted that the first Congress decided officers served “at will,” but very few members of Congress spoke in favor of presidential removal at pleasure in 1789. Members discussed justiciability of for-cause removals in the English writ tradition, suggesting an oversight role for Congress and the courts. The debates over Treasury and the Judiciary indicate Congress did not think “at will” was the rule for removal. 2) A tale of two Roberts: two scandalous finance ministers, one English, one American during the Revolution, as context for independent checks on executive power. The “Robinarchy” was a caution against executive corruption, and the first Congress focused on presidential corruption of finance, a president who would abuse the removal power to raid the Treasury and build a “throne.” 3) In the Treasury debate, Madison proposed that the Comptroller, similar to a judge, should have tenure during good behavior, a point misunderstood by many modern judges. Madison withdrew his proposal, but the debate elicited that Madison thought the House had not reached any consensus for “at pleasure” tenure, and the debate reflected more openness to executive design and independence from presidents. 4) The Treasury Act’s anti-corruption clause established removal by the judiciary, empowering relatively independent prosecutors and judges to check presidential power. Congress frequently enabled removal by judges and juries, without necessarily connecting removal to imprisonment or criminal penalty, over the next 50 years. Because unitary theory explicitly states that removal power is “exclusively” or “solely” presidential, the first Congress rejected the unitary theory by delegating removal power to judges and juries (with relatively independent prosecution under Treasury and arguably without relying on federal prosecutors at all given the institutional arrangements of the eighteenth century). A majority of the first Congress opposed the powers cited by unitary theorists (the constitutional basis for presidential removal power, offices held “during pleasure”). On whether the president had exclusive removal power, the first Congress decisively answered no. In Seila Law v. CFPB, Chief Justice Roberts misunderstood and misused the decisions in the first Congress, and should correct these errors in Collins v. Mnuchin in 2021.