Presidential Removal: The \u3ci\u3eMarbury\u3c/i\u3e Problem and the Madison Solutions (original) (raw)
Related papers
Removal and the Changing Debate over Executive Power at the Founding
American Journal of Legal History, 2023
The enduring and protracted debate over the original scope of American presidential power often reduces to a simple question: What did the words "executive power" in the Article II vesting clause of the US Constitution originally mean? Yet this singular preoccupation has concealed a crucial historical transformation. To bring this underappreciated shift into focus, this article offers four observations on the great 1789 congressional debate over the removal of executive officers: first, the debate was unexpected; second, it covered new ground; third, during the course of it, participants openly changed their minds; fourth, it remained unresolved until the end. Rather than attempting to settle the issue of removal that has divided scholars and jurists for so long, this article instead offers these observations in hopes of redirecting our focus: to see that the removal debate was marked by uncertainty and confusion because the debate over executive power was itself changing at this time. Eighteenth-century Americans had been debating executive power since long before declaring independence, but the question that had animated that debate for close to a century began to change after the Constitution was ratified. As the question mutated, so too did the dispute itself, and, with that, understandings of executive power. The removal debate was one of the key markers of this important transformation. There remains no shortage of interest in the historical foundations of presidential power. We misapprehend what Founding-era Americans thought about executive power unless we appreciate how the framework of debate was itself changing at the time of the Constitution's birth.
American University Law Review, 2009
Justice Jackson's concurring opinion in The Steel Seizure Case has taken on iconic status among legal scholars and had been adopted by the Supreme Court as the governing framework for evaluating presidential power. But Jackson's principles are conclusory, do not rest on any historical foundation, and raise as many questions as they answer. He fails to examine, much less justify, the existence or scope of implied presidential powers, nor does he meaningfully explain the extent to which those powers are subject to congressional regulation and override. I apply novel originalist methodologies to answer those unexamined questions, with important consequences to several current theories and cases concerning presidential power. The construction of the presidency and the allocation of legislative and executive powers can be understood only by an examination of the historical experiences that influenced the Framers. Prominent among these were the preceding two centuries of constitutional developments in England which critically influenced the allocation of executive and legislative power in the Constitution. The central lesson of these historical experiences was that proscriptive legislative restraints on executive power were necessary but not sufficient to prevent autocracy. any of the English proscriptions on the exercise of executive power were included in our Constitution, but there was also a massive transfer of previously held executive power to the legislature. Most of the prerogatives that had been exercised by the King were vested completely in Congress, prohibited to the President, or omitted altogether from the Constitution. Of the small number delegated to the Executive, only one was the same as its royal counterpart; the others were more limited or structurally shared with the Legislative Branch. I examine this history in detail and apply its underlying principles to develop a general theory of presidential power. In lieu of creative but ultimately inconclusive arguments over indefinite powers that are said to be "executive" in nature, implied powers should be tied to, and derived from, the powers expressly vested in the President in Article II. I refute the propositions that the Vesting Clause is a residual source of plenary executive power and that there is a presidential "completion" power. I apply and elaborate on these principles in the context of the President's two most important implied powers-executing the laws and developing and implementing foreign policy. The President has broad discretion in choosing how to exercise these powers, but they are not plenary in nature. They are subject to three basic limitations: (1) the President may not, without congressional authorization, use these powers to change domestic law or create or alter existing legal obligations; (2) these powers are subject to regulation by Congress; and (3) in the event of a conflict between the exercise of these powers and congressional legislation, the latter prevails. Finally, I argue that these limits on presidential power have continuing validity despite the enormous changes in the country since these principles were established. We are now in much the same situation as England in the 18th century-the real power of the Executive is much greater than its nominal legal power. Although the Framers viewed the President as a necessary check on an otherwise dominant Congress, the present reality is now the reverse. The Executive has become the most powerful branch of government. There is no reason to adopt legal theories that would further enhance executive power.
University of Minnesota Law School, 2009
Steven Calabresi and Christopher Yoo's book The Unitary Executive presents an excellent inquiry into the concept of a centralized executive throughout our history. The authors' goal is to persuade the reader that all presidents have viewed the power to supervise and remove subordinates as central to the very meaning of "executive power" in Article II of the Constitution. Without such an ability, presidents would be unable to execute the law effectively and place their stamp on the administration. The authors succeed in attaining that goaL for the record they portray reveals a long tradition of forceful assertion of presidential rights to control policy through close supervision of officers within the executive branch. In assessing the history. the authors focus on ''the president's constitutional power to remove and direct subordinates, including those in entities like the Treasury Department, the Post Office, federal prosecutors. and the independent agencies that some have said are beyond presidential powers of control" I. Professor of Law. Northwestern Universitv. 2. Professor of Law and Communication. Un"iversitv of Pennsvlvania Law School. 3. Dean and Professor. liT Chicago-Kent Colleg~ of Law. i thank Tom Merrill and Mark Rosen for commenting on an earlier draft.
2014
In evaluating whether presidential acts are constitutional, the Supreme Court often takes its cues from Congress. Under the Court's two most prominent approaches for gauging presidential power-Justice Jackson's tripartite framework and the historical gloss on executive power-congressional approval of presidential conduct produces a finding of constitutionality. Yet courts and commentators have failed to recognize that congressional authorization may result from a failure of checks and balances. Congress may transfer power to the President against institutional interest for a variety of reasons. This key insight calls into question the Court's reflexive reliance on congressional authorization. Through this reliance, the Court overlooks failures of checks and balances and constitutionalizes the transfer of power to the President. Possible solutions include congressional or judicial development of a jurisprudence of independent presidential power, adoption of a presumption against authorization, and treatment of presidential power controversies that turn on congressional authorization as political questions. At a minimum, courts and commentators should be less sanguine about the leading approaches to assessing presidential power.
Two hundred eighteen years after George Washington was elected to serve as the first President of the United States, the Constitutional Framers would likely be heartened to know that over a dozen people are vying for the right to run as their party's presidential candidate in the upcoming 2008 presidential election. However, these same Framers would likely be severely disheartened to learn that the powers and responsibilities assigned to the executive branch and the President of the United States - an office which these dedicated men created and shepherded through a vehement anti-constitution protest - have been eroded. Indeed, many of the key points which the Framers cited as evidence of and reasoning for the tripartite system they devised have been whittled away by constant intrusion into the powers and responsibilities of the President and the executive branch. This intrusion has become increasingly commonplace and accepted by a broad spectrum of governmental and political ac...
Making Constitutional Meaning: The Removal Debate and the Birth of Constitutional Essentialism
Journal of the Early Republic, 2015
In one of its earliest debates, the first federal Congress divided over the question of whether the president could remove executive officers. Long neglected by historians, the episode has received ample attention from constitutional scholars who have interpreted it as a crucial contest over the scope of presidential power. However, the debate’s significance owes less to these implications than it does to the language of constitutional essentialism that it produced. In the aftermath of ratification, American politicians were still reckoning with what it meant to be subject to the authority of a supreme, written constitution and in so doing debated not only the meaning of specific constitutional clauses but more generally the kinds of interpretive practices that could legitimately accompany Americans’ governing document. The removal debate began because the Constitution, other than specifications for impeachment, was silent on removal. Some contended that, given this silence, nobody could remove. Most disagreed and as justification contended that Congress enjoyed discretion to fill the document’s silences. However, those who favored removal divided over who could remove: the president alone or in conjunction with the Senate. In waging this disagreement the two sides grounded their rival interpretations in two separate sources of authority: the ‘‘nature of things’’ and the original intent of the Constitution’s framers. In retreating from arguments built on congressional discretion in favor of ones premised on fixed constitutional meaning, politicians constructed a powerful language of constitutional essentialism that implied that the Constitution was equipped with unchangeable meaning.