The unitary executive during the second half-century.

• Author: Calabresi, Steven G.

1. INTRODUCTION 668 II. THE UNITARY EXECUTIVE DURING THE JACKSONIAN PERIOD, 1837-1861 669 A. Martin Van Buren 670 B. William H. Harrison 678 C. John Tyler 682 D. James K. Polk 688 E. Zachary Taylor 694 F. Millard Fillmore 698 G. Franklin Pierce 704 H. James Buchanan 709 III. THE UNITARY EXECUTIVE DURING THE CIVIL WAR, 1861-1869 717 A. Abraham Lincoln 718 B. Andrew Johnson 737 C. The Tenure of Office Act and the Impeachment of Andrew Johnson 746 IV. THE UNITARY EXECUTIVE DURING THE GILDED AGE, 1869-1889 759 A. Ulysses S. Grant 759 B. Rutherford B. Hayes 769 C. James A. Garfield 780 D. Chester A. Arthur 785 E. Grover Cleveland 790 V. CONCLUSION 801 I. INTRODUCTION

   In The Unitary Executive During the First Half-Century, (1) we surveyed the first seven presidencies under the Constitution to determine the view of presidential power held by the incumbents during that period. We found that from 1789 to 1837, American presidents from Washington to Jackson strongly believed in a unitary executive of the kind defended by many scholars in recent years, including Professor Calabresi. (2) In particular, we established that the first seven presidents vigorously defended the president's unitary authority over the execution of federal law. We also concluded that many of these presidents believed the Vesting Clause of Article II was a direct grant of power to the president, as Professor Calabresi has previously argued in a debate with Professors Lawrence Lessig and Cass Sunstein. (3)

   We now pick up our survey where we left off in the prior article and examine the presidencies during the second half-century of our nation's history to see what view these men held on the scope of the president's power to execute the law. In so doing, we focus primarily on three mechanisms generally viewed as essential to any theory of the unitary executive: the president's power to remove subordinate policy-making officials at will, the president's power to direct the manner in which subordinate officials exercise discretionary executive power, and the president's power to veto or nullify such officials' exercises of discretionary executive power. (4) We also employ the interpretive methodology known as "departmentalism" or "coordinate construction," which is based on the principle that all three branches of the federal government have the competency and responsibility to interpret the Constitution and that the meaning of the Constitution is determined through the dynamic interaction of all three branches. (5)

   As we shall see, presidential power ebbed and flowed several times during the second fifty years under the Constitution. Congress reasserted itself and remained ascendant in the years following Andrew Jackson's presidency until the crisis of the Civil War, which led the country to look to the president for leadership once again. Throughout these various shifts in the relative power of the branches and regardless of which party was in power, presidents generally defended their sole authority to execute the federal laws. Although some deviations from the unitary executive model did occur during this period, they were not so significant as to constitute presidential acquiescence to congressional interference with presidential execution of the laws.

   We begin in Part I with the history of the unitary executive in the years leading up to and including the Civil War and trace in Part II the pivotal presidencies of Abraham Lincoln and Andrew Johnson. These years culminated with a remarkable but ultimately unsuccessful attack on the unitary executive when Congress impeached but failed to remove Johnson from office because of his decision to fire Secretary of War Stanton in violation of the Tenure of Office Act. We turn in Part III to the reclamation of presidential power during the years following Johnson's disastrous presidency. All told, our survey covers the years from 1837 to 1889, during which the Tenure of Office Act was repealed after Congress finally saw it as the constitutional monstrosity it truly was.

2. THE UNITARY EXECUTIVE DURING THE JACKSONIAN PERIOD, 1837-1861

   By modern standards, the eight presidential administrations between the Jackson and Lincoln administrations were generally unremarkable, both in terms of historical significance and executive effectiveness. Nevertheless, historical review convincingly demonstrates that the actions and words of these presidents reflected a consistent desire to protect the constitutional powers of the presidency against incursions by Congress. Indeed, several presidents during this period actually succeeded in expanding the constitutional powers of the presidency in a number of important ways.

   But perhaps the best direct evidence that the presidents of this period consistently protected their unitary constitutional powers from Congress can be found in the words of one of the executive branch's greatest antagonists throughout this period, Henry Clay of Kentucky, who commented:

   The executive branch of the government ... was eternally in action; it was ever awake; it never slept; its action was continuous and unceasing, like the tides of some mighty river, which continued flowing and flowing on, swelling, and deepening, and widening, in its onward progress, till it swept away every impediment, and broke down and removed every frail obstacle which might be set up to impede its course. (6) The presidential history from this period would ultimately underscore the truth underlying Clay's words.

   1. Martin Van Buren

      President Martin Van Buren was not as outspoken as Andrew Jackson on the great questions of presidential power that form the topic of this series of articles. However, this relative silence was not necessarily indicative of a passive view of executive power on Van Buren's part. Rexford Tugwell suggests that Van Buren was as responsible as Jackson himself for the development of the spoils system and of the powerful Jacksonian national political machine. (7) Indeed, as a New York senator in the 1820s, Van Buren had orchestrated the use of lobbying for the removal and appointment of federal officials to support the creation of local political machines. (8) He used his tenure in the Jackson administration to nationalize these practices, which was one of the chief reasons why Van Buren succeeded Jackson to the presidency, despite his lack of popularity with much of the Democratic leadership in Congress. (9)

      Van Buren was generally a loyal follower and implementer of Jackson's views, which is significant given Jackson's enthusiastic embrace of the theory of the unitary executive during the Bank War. (10) Van Buren's biographer, Major L. Wilson, describes Van Buren's close affinity with Jackson as follows:

      In a public letter accepting the nomination of the Democratic party to succeed Andrew Jackson as president, Martin Van Buren pictured himself "the honored instrument" of the administration party and vowed "to tread generally in the footsteps of President Jackson." Friends welcomed the statement as a pledge to defend the work of Jackson.... When divested of partisan rhetoric, Van Buren's statement, and others of like tenor, have been taken by historians as texts for the persistent interpretation of his presidency as the "third term" of Jackson. During his four years in office, Van Buren governed much as Andrew Jackson had as the leader of his political party. Van Buren held "regular cabinet meetings" but "took no votes in the cabinet and, as usual, reserved final decisions for himself." (12) At least two cabinet members probably favored a national bank, "[y]et they readily deferred to Van Buren's views of party and presidential power." (13) Wilson discusses Van Buren's approach to leadership:

      In regard to key questions in foreign affairs, President Van Buren took a direct and active part. He also remained involved in the affairs of the Treasury Department, particularly in the aspects of its operations that bore upon his proposal[s]. On other and more routine matters of administration, by contrast, Van Buren allowed virtual autonomy to department heads. (14) Van Buren's support for the unitary executive is reflected in his continuation of Jackson's policy towards the Treasury Department, which, as we have noted earlier, represented perhaps the most dramatic conflict over the president's authority to control the execution of the law to take place during the first fifty years of the Republic. (15) Van Buren adamantly believed that the "keeping and disbursing of Treasury funds without congressional safeguards ... gave the president an unchecked control over the nation's purse and an enormous engine of spoils." (16) This provoked the ire of the Whig opposition, who criticized Van Buren for carrying

      to the ultimate limit that tendency under Jackson--with his bank veto, his removal of deposits, his 'Specie Circular'--to wrest the control of the Treasury from Congress and to place the nation's purse exclusively under executive power.... The forms of republican government [would] remain[], but its substance would flow to a Treasury Caesar. (17) The Whigs would repeat the cry of "Treasury Caesarism" many times. (18)

      Van Buren's adherence to the theory of the unitary executive is also manifest in his use of the power of removal. Van Buren exercised this removal power sparingly at first, since many of the continuing appointees were as much his as they were Jackson's. Leonard White, who often uses the heavily patronage-influenced postal service as a barometer for presidential removal activity during this period, notes that Van Buren removed only 364 of 12,000 postmasters during his first two years in office. (19) As Van Buren began positioning himself within his party for a second term, however, he became more aggressive in his use of the removal power, looking beyond mere party affiliation and instead emphasizing Personal political loyalty to his own faction of the Democratic Party. (20) Wilson...