INTERRING THE UNITARY EXECUTIVE.

AuthorChabot, Christine Kexel

INTRODUCTION 131 I. THE LEGAL AND HISTORICAL ORIGINS OF UNITARY EXECUTIVE THEORY 140 A. The Text and Judicial Interpretations of Article II 140 1. Text of the U.S. Constitution 140 2. Judicial Precedent 144 3. The Unitary Executive in the Roberts Court 147 II. NONUNITARY STRUCTURES APPROVED BY THE FIRST CONGRESS 153 A. Evidence from the First Congress's Debates 153 1. Officers that Will " [C]heck [E]ach [O] ther" and Prevent Corruption Where the President Cannot 153 2. Uncertainty and the Construct of Presidential Removal 155 3. Approval of Nonunitary Structures for Acting or Inferior Officers 159 B. A Multitude of Early Regulatory Structures Were Inconsistent with a Unitary Executive President 162 1. The First Congress Relied on Multiple Officers to Check Each Other in Discrete Revenue Decisions that the President Could Not Be Expected to Monitor 163 a. Collection Act 165 b. Treasury Act 168 c. Revenue Laws Passed in the Wake of the Treasury Act 169 d. Subsequent Amendments to Revenue Statutes 171 2. The Sinking Fund Commission's Multimember Structure Insulated It from Presidential Control 172 3. The First Congress Enlisted Judges and Private Parties to Check Executive Officers' Conduct 176 a. Collection Act 176 b. Bonds and Judicially Imposed Removal and Fines in Additional Revenue Statutes 179 c. Payments to Private and Sometimes Uninjured Informers Who Reported or Sued Misbehaving Officers 180 d. Later Congresses Continued to Enact Similar Provisions 183 C. The First Congress Assigned Significant Discretionary Executive Decisions to Independent Deputy Marshals, Lay Persons, and Judge 184 1. Independent Deputy Marshals 185 2. Early Collection Acts Authorized Private Merchants to Determine the Taxable Value of Imported Goods 186 3. The First Congress Assigned Significant Fact-Finding Discretion to Judges in Remission Statutes 188 4. The First Congress Repeatedly Assigned Public Prosecutorial Power to Private Parties 189 III. FOUNDING-ERA STATUTES INCORPORATED INDEPENDENT STRUCTURES TO CONSTRAIN THE PRESIDENT'S EXECUTION OF THE LAWS AND ALIGNED WITH MORRISON'S FUNCTIONAL UNDERSTANDING OF EXECUTIVE POWER 190 CONCLUSION 196 APPENDIX 198 INTRODUCTION

This Article addresses one of "the oldest and most venerable debates" in constitutional and administrative law (1): whether the Constitution established a "unitary [e]xecutive" President whose "plenary" removal power affords her "exclusive control over" subordinate officers' exercise of "executive power." (2) Leading originalists claim that Article II's Vesting and Take Care Clauses require executive officers to be removable by, and thus accountable to, a unitary executive President. (3) But the text of Article II does not expressly grant the President a removal power or exclusive control over subordinate officers. (4) As a result, unitary scholars have placed heavy emphasis on select historical understandings and negative inferences drawn from a supposed lack of independent regulatory structures at the Founding. (5) This Article dismantles the unitary construct by introducing a comprehensive historical record that conventional arguments have largely overlooked. It shows that the First Federal Congress and President George Washington enacted scores of independent regulatory structures in the Founding era. This new historical evidence resolves the unitary executive debate. It establishes that the Founding generation never understood the unitary executive to be part of our Constitution.

In the absence of the historical evidence introduced by this Article, conventional originalist arguments have led the Supreme Court to the brink of establishing the most powerful presidency in history. In Seila Law LLC v. Consumer Financial Protection Bureau, (6) a majority of the Court all but adopted unitary arguments from Justice Scalia's dissent in Morrison v. Olson (2) when it invalidated tenure protections for the head of Congress's newest administrative agency, the Consumer Financial Protection Bureau (CFPB). The logic of the majority's opinion bodes ill for the independence of multimember agencies and a multitude of inferior officers, (8) and Seila Law portends a judicial assault on the administrative state that will rival the Court's siege on New Deal legislation in the 1930s. (9)

While the Seila Law majority grounded its unitary arguments in originalism, its historical analysis attempted to plug a gaping textual hole in the Constitution with a lone artifact from the Founding Era: the First Congress's Decision of 1789. (10) The Court failed to recognize that structural provisions approved in the Decision of 1789 became law in but three of the ninety-four public acts passed by the First Congress and reflected but one aspect of executive power: removal. The myopic approach adopted in Seila Law misapprehends the original understanding of executive power and the Take Care Clause's prohibition on executive decisions that operate above the law. This Article provides what until now has been missing from the unitary arguments adopted by the Seila Law majority and supporting literature: a comprehensive account of nonunitary structures approved by the First Congress. This work comes not to dispute the unitary executive but rather to bury it.

By scouring every public act passed by the First Congress, my research recovers the entirety of nonunitary structures enacted in the shadow of the newly minted Constitution. This Article identifies seventy-one sets of early statutory provisions (11) that contradict the conventional originalist view of the unitary executive and understanding that the President must have plenary removal power to maintain "complete control" over subordinates' exercise of "executive power[]." (12) The First Congress, a body which included several Framers of the Constitution, repeatedly enabled independent exercises of significant executive power that fell outside of the President's complete control and removal power. This body granted nonremovable judges and lay persons significant executive discretion as well as supervisory power over executive officers. The First Congress also rejected a top-down chain of command when it dispersed significant executive power amongst multiple officers and required them to check actions taken by the President and each other. Later Congresses continued to repeat these independent structures in related legislation. This evidence shows that initial regulatory laws of the United States routinely incorporated nonunitary structures to ensure compliance with the law in ways that the President could not.

As Ganesh Sitaraman noted in the Harvard Law Review, the Sella Law majority's originalist understanding of the unitary executive rests on a selective history and omits an important counter example, (13) which I introduced in an earlier work, (14) and which since has been dubbed the "Decision of 1790." (15) In this decision, Alexander Hamilton, the First Congress, and President Washington created an independent Sinking Fund Commission that could be trusted to exercise sovereign power to "pay the Debt[]" (16) without unlawfully diverting appropriated funds to politically expedient uses. (17) Alexander Hamilton argued that the Sinking Fund and other measures offered in "support of the Public Credit" comprised "'a matter of high importance to the [national] honor and prosperity' of the United States," (18) and urged Congress to entrust the Commission's disposition of funds to a five-member board controlled by three Commissioners whom the President could not remove. (19) The First Congress and President Washington ultimately enacted a Commission comprised of the Secretary of the Treasury (Alexander Hamilton), Secretary of State (Thomas Jefferson), President of the Senate /Vice President (John Adams), the Attorney General (Edmund Randolph), and the Chief Justice (John Jay). (20) By law the President was powerless to disburse funds for repayment of debt unless at least three Commissioners independently agreed to such action. (21)

Three critical elements (22) of the Sinking Fund Commission's independent structure limited the President's control over the Commission and prevented him from unlawfully diverting funds appropriated for payment of debt. First, the Commission assigned executive repayment decisions to an independent Chief Justice and Vice President whom the President could not remove or replace. The assignment of executive power to nonremovable officers violates the formal unitary requirement of removal at will. Second, the President could not control the Commission by removing a cabinet officer such as the Secretary of State, because the ensuing vacancy would merely shift the controlling, third vote to an independent Chief Justice or Vice President. (23) Third, the Commission's multimember structure promoted independence and prompted officers such as the Secretary of the Treasury and Secretary of State to check each other instead of carrying out a unified policy set by the President. The second and third elements of the Commission's independent structure underscore the limited function that removal power served on the Commission. The holistic approach taken by this Article paints an even more devastating picture for unitary arguments. If the Sinking Fund Commission were the only independent structure created by the First Congress, the historical record might tempt the Justices to cherry pick evidence (24) and favor the Decision of 1789 over the Decision of 1790. Further, recent research by Jed Shugerman presents new reasons to question unitary understandings of the Decision of 1789 (25) and calls out for a more complete historical record. If the First Congress did not clearly recognize a unitary theory when it established the initial departments of government, then what happened in the rest of the laws it passed?

Leading objections to the unitary executive have relied on pre-ratification evidence (26) as well as select...

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