The American Journal of Legal History has just published a special issue on “histories of executive power,” including a paper by Aaron Nielson and me entitled The Early Years of Congress’s Anti-Removal Power. These papers were first presented at a Stanford Constitutional Law Center conference, organized by Michael McConnell and Jed Shugerman, in May 2022. It was a terrific conference, and the final articles look very interesting. Special thanks to Yvonne Pitts for pulling the print issue together with terrific substantive feedback and careful editing.
Here is the rundown (with abstracts) of the articles in the issue, with the articles available (behind a paywall) here:
Preface to AJLH Special Issue—‘Histories of Executive Power
Unprecedented contemporary debates over the scope of executive power brings new urgency to the histories of drafting and early implementation of the U.S. Constitution’s Article II, which defined “Executive Department.” Multidisciplinary historical scholarship has had and continues to have profound implications for constitutional jurisprudence today, becoming integral to federal appellate court briefs, and peppered through the notes of recent Supreme Court decisions. This special issue results from a collaboration between the American Journal of Legal History and the Stanford University Constitutional Law Center’s 2022 Spring Conference, The History of Executive Power. The conference brought together scholars from different disciplinary, ideological, and historical perspectives to discuss, synthesize, dig deeper into the past, and move forward toward developing empirical and interpretive methods toward a rigorously grounded, historicized constitutionalism.
In 1788, writing as Publius, Alexander Hamilton began a series of eleven essays defending the recently drafted Constitution’s newly conceived branch, the ‘Executive Department’, which structured a federal presidency embodied in a single officeholder. No other Article, Hamilton complained, had been attended with “greater difficulty in [its] arrangement”, only to suffer from disingenuous critics who had not “inveighed against [a separated executive branch] with less candor or criticized with less judgement. Hamilton’s frustration at these misconceptions and obfuscations debates presaged contemporary historical challenges that today require sifting through archives both obscure and preeminent, recovering historical meaning, and then translating it into juridically usable information, an analytical move itself subject to intense skepticism, in part because of the historical vagaries Hamilton noted. As the scholarship in this issue attests, Hamilton’s observation was among the few with which most of the 1787 Constitutional Convention’s delegates would agree.
Three Modalities of (Originalist) Fiduciary Constitutionalism
Ethan J Leib
There is an ongoing body of scholarship in contemporary constitutional theory and legal history that can be labeled ‘fiduciary constitutionalism’. Some have wanted to strangle this work in its cradle, offering an argument pitched ‘against fiduciary constitutionalism’, full stop. But because there are enough different modalities of fiduciary constitutionalism—and particularly originalist varieties of it at the center of recent critiques—it is worth getting clearer about some methodological commitments of this work to help evaluate its promise and potential pitfalls. This article develops the ambitions, successes, and deficiencies of three modalities of historical and originalist argument that link American constitutionalism with the law and theory that constrains those with especial discretion and control over the legal and practical resources of beneficiaries known as fiduciary governance. Probing primary and secondary research in fiduciary constitutionalism can help show its value and limitations for legal historians and constitutional theorists alike.
The Path of the Prerogatives
The path of the prerogatives refers to the process by which the royal prerogative powers outlined in Blackstone’s Commentaries entered into American constitutional law. In 1953, Professor William Crosskey opened up a new window into the Constitution when he pointed out that many of Congress’s enumerated powers had been prerogatives of the British Crown. In The President Who Would Not Be King: Executive Power under the Constitution, Professor Michael McConnell takes Crosskey’s observation as a starting point of his own more systematic analysis of how the Committee of Detail divided these prerogative powers between Congress and the President. Yet neither Crosskey nor McConnell focuses much attention on the fact that many of these powers were already delegated to the United States by the Articles of Confederation. Nor do they ask whether the founders conceived of these powers primarily as legislative or executive powers, on the one hand, or government powers, on the other—a critical distinction reflected in the text of the Constitution by the Necessary and Proper Clause. This article investigates these topics by tracing the path of the prerogatives from 1774 to 1776 in the writings of James Wilson, Benjamin Franklin, John Dickinson, and Thomas Jefferson, highlighting the crucial role played by these powers in Wilson’s 1774 essay on the legislative authority of Parliament, the Articles of Confederation, and the Declaration of Independence. The article also discusses two further issues that any adequate theory of presidential powers must confront: the distinction between government powers and executive powers, and the status of the United States as a legal corporation, in which implied powers are vested without needing to be enumerated. Finally, the article points to new evidence indicating that Jefferson borrowed specific language and ideas from Wilson when drafting the Declaration of Independence.
The Early Years of Congress’s Anti-Removal Power
Aaron L Nielson and Christopher J Walker
Judges and scholars have long debated whether the Constitution provides the president with a power to remove executive officials. The Constitution, however, undoubtedly gives Congress tools to discourage the president’s use of such power. Perhaps most notably, the Appointments Clause makes it more difficult for the president to remove principal officers—even those whose views are out of the step with the president’s—because the president cannot know whether the Senate will consent to a preferred replacement. This is an example of what is dubbed Congress’s anti-removal power: Even if the president can remove, a motivated Congress can discourage the president’s use of that power. In ‘Congress’s Anti-Removal Power’, we used game theory to show why anti-removal tools are effective—viz., they increase the costs of presidential removal, resulting in less of it—and argued that such tools have been a longstanding feature of interbranch relations. This article focuses on the founding era to argue that Congress’s anti-removal power not only comports with the Constitution’s language, but is also a deliberate feature of the constitutional bargain. Not only did James Madison and Alexander Hamilton bless anti-removal tools, but early Congresses enacted statutes that discouraged removal. While the question of presidential removal attracted debate in the first Congress, the same does not appear to be true for these anti-removal features. The article thus concludes—in the spirit of dogs that do not bark—that Congress’s use of its anti-removal power finds support in both the Constitution’s text and founding-era thought and practice.
Removal and the Changing Debate over Executive Power at the Founding
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.
Alexander Hamilton on Executive Authority
The ‘residuum’ theory of executive power maintains that Article II’s Vesting Clause grants to the president of the United States a residuum of royal prerogative powers that have not been assigned to other departments of the national government or otherwise limited elsewhere in the text of the Constitution. This theory is often traced to Alexander Hamilton’s Pacificus essay, in which he defended President Washington’s proclamation of neutrality with a version of that theory. Two years earlier, however, in his opinion on the constitutionality of the Bank of the United States, Hamilton appears to have rejected the residuum theory; at a minimum, he had incentive to propound that theory but did not do so. Although not the only possible way to interpret Hamilton’s opinion, scholars of executive power must contend with this possibility before concluding that Hamilton believed in a residual vesting of prerogative powers.
Movement on Removal: An Emerging Consensus about The First Congress and Presidential Power
Jed H Shugerman
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.