Movement on Removal: An Emerging Consensus about The First Congress and Presidential Power

Abstract

What did the “Decision of 1789” decide about presidential removal power, if anything? It turns out that an emerging consensus of scholars agrees about the First Congress’s lack of consensus. The unitary executive theory posits that a president has exclusive and “indefeasible” executive powers (i.e., powers beyond congressional and judicial checks and balances). This panel was an opportunity for unitary executive theorists and their critics to debate recent historical research questioning the unitary theory’s claims (e.g., Jonathan Gienapp’s The Second Creation and my article. “The Indecisions of 1789: Inconstant Originalism and Strategic Ambiguity.” Unitary theorists conceded problems with the claims of a “decision.” Most pivoted away from the traditional account that, based on the legislative debates, a majority of the First Congress endorsed an interpretation that Article II established a presidential removal power. Instead, they shifted to new claims: that the endorsement of even a minority faction was still substantial; that it was the quality of the argument, not the quantity of supporters, that counts (a subjective claim that contradicts the theory of original public meaning); or perhaps it is the quality or historical importance of the speakers that counts (nevermind that Madison, Hamilton, and Marshall also rejected presidential removal). None of these pivots rescue the “Decision” myth. Unitary theorists turned to later evidence: practices and debates further and further away from the Founding and Ratification. To their credit, they demonstrated a willingness to leave behind standard originalist methods and engaged in methods more consistent with common law constitutionalism and living constistutionalism. The challenge is whether they will acknowledge that they have to choose between originalism and the unitary theory. The broader significance of this debate is the questions it raises about the practice of originalism as a reliable method of interpretation.