Interrogating the Historical Basis for a Unitary Executive.

• Author: Birk, Daniel D.

Table of Contents Introduction I. The Enigma of Removal A. Constitutional Text and History B. Supreme Court Precedent C. The Unitary Executive Theory II. The Royal Prerogative and Removal III. Removal of Executive Officers in England A. Common Law Limitations on the King's Ability to Remove Executive Officers 1. Royal grants of tenure 2. Inferior officers 3. Royal control B. Parliament's Power over Tenure 1. Legislative regulation of offices and officers 2. Creating offices and appointing officers 3. Parliamentary regulation of tenure IV. Implications for the Presidential Removal Debate Conclusion Introduction

Congress's ability to insulate executive-branch officers from removal by the President, a perennial constitutional flashpoint, (1) has flared up yet again. In 2010, the Supreme Court invalidated the for-cause removal requirement devised for the heads of the Public Company Accounting Oversight Board (PCAOB) because the requirement unduly restricted the President's removal power. (2) Ten years later, the Court took the tenure protection granted to the Director of the Consumer Financial Protection Bureau (CFPB) in its crosshairs, holding that the CFPB's Director "must be removable by the President at will." (3)

Congress created the CFPB in the wake of the 2008 financial crisis to regulate the sale and provision of consumer financial products and services. (4) In an attempt to shield the CFPB's workings from political and industry influence, Congress structured the CFPB as an independent executive agency within, but not subject to the oversight of, the Federal Reserve Board. (5) Unlike most independent agencies, which are headed by a commission with multiple members on staggered tenures, the CFPB is headed by a single Director. (6) The Director is "appointed by the President, by and with the advice and consent of the Senate," to a five-year term. (7) The statute specified, however, that the President could "remove the Director for inefficiency, neglect of duty, or malfeasance in office." (8)

In 2020, the Supreme Court held this arrangement unconstitutional. (9) Writing for a 5-4 majority, Chief Justice Roberts located a presidential removal power in "Article II's vesting of the executive Power' in the President." (10) Even though the Supreme Court had previously sustained tenure protections for multimember regulatory commissions, Chief Justice Roberts explained, shielding the sole director of an executive agency from removal impermissibly "lacks a foundation in historical practice and clashes with constitutional structure by concentrating power in a unilateral actor insulated from Presidential control." (11) The Court thus invalidated the Director's tenure protections, leaving her to serve at the pleasure of the President. (12)

The Constitution specifies how the principal and inferior officers of the executive branch are to be appointed, but it does not say how--or whether--they can be removed other than by impeachment. (13) Since 1789, Congress has generally left the President discretion to remove officers that he has appointed, but it frequently has created "independent" agencies headed by officers who serve for a fixed term and who can be removed only for cause. (14) Congress also has granted tenure protections to a wide variety of officers within the executive branch, from administrative law judges to special prosecutors assigned to investigate the President and other executive officials. (15) The Supreme Court has upheld many for-cause removal requirements against constitutional challenge, but the Court's opinions have vacillated between "formalist" and "functionalist" interpretations of separation-of-powers principles, resulting in often diametrically opposed proclamations and narrow readings of prior precedent. (16)

Many judges and scholars, including Justice Antonin Scalia and professors Steven Calabresi, Saikrishna Prakash, Christopher Yoo, and John Yoo, have advanced a strong view of the President's constitutional role known as the "unitary executive" theory. (17) The unitary executive theory holds that Article IPs declaration that "the executive Power shall be vested in a President of the United States of America" (18) means that there is one--and only one-person constitutionally authorized to wield the executive power: the President of the United States. Thus, all executive-branch officers exercise authority only as delegates of the President and must be subject to his control. (19)

"Unitarians," as they are sometimes known, (20) make varying claims about the degree of direct control the President must have over subordinate officers. But most believe that, at a minimum, the President should be able to remove all executive-branch officers, including the heads of independent regulatory agencies, at any time and for any reason. (21) The Supreme Court's failure to enforce this principle has allowed Congress, as Calabresi and Prakash put it, "to carve up the executive department of the federal government into minifiefdoms independent of presidential control." (22)

Beginning with Chief Justice William Howard Taft in the Supreme Court's 1926 decision in Myers v. United States, (23) many Unitarians have contended that the ability to remove subordinates is an inherent component of the executive power vested in the President, and thus cannot be regulated or constrained by Congress. (24) To establish this proposition, Chief Justice Taft asserted that the King of England possessed the power to appoint and remove royal officers. (25) Chief Justice Taft further asserted what is now sometimes called the "Royal Residuum" thesis: that the King's prerogatives constituted the executive power in England and that such of those prerogatives not incompatible with republican government were incorporated into the U.S. Constitution. (26) Thus, because a removal power was not incompatible with republican government, this residuum of the royal prerogative became a vested and indefeasible power of the President. (27)

History has played an important role in American separation-of-powers jurisprudence and scholarship. (28) Given the relatively open-ended structural provisions of Article II (29) and the Constitution's frequent reliance on common law terms and concepts, (30) the English system in particular has frequently been used to clarify and define the relationship between the President, Congress, and the many officials in the executive branch. (31) Chief Justice Taft's claims thus have captured the imaginations of a vast array of scholars who have refined and repeated the now-conventional wisdom that the King possessed an unlimited power to dismiss executive officers in the British government. (32)

These claims have also shaped jurisprudence. In Free Enterprise Fund, for example, Chief Justice Roberts's opinion for the Court described the "power to oversee executive officers through removal" as a "traditional" component of the executive power. (33) And his recent opinion for the Court in Seila Law similarly asserted that "the President's removal power stems from Article II's vesting of the 'executive Power' in the President," characterizing all executive-branch officers as assistants "wield[ing] executive power on [the President's] behalf." (34)

Remarkably, however, claims about the King's removal power have gone largely untested. Chief Justice Taft did not provide any support for his assertion in Myers, (35) and modern-day originalists have largely relied on generalizations and anecdotes supplied by historians. (36) Even those who have disputed claims of illimitable presidential removal power, such as John Manning and Robert Reinstein, have not questioned the conventional wisdom. (37)

This Article undertakes the first comprehensive investigation of whether the ability to remove and direct the activities of royal officers was an inherent feature of the executive power as it was practiced and understood in England at the time of the Framing. (38) The results of the investigation are surprising. Contrary to the conventional wisdom, there is no evidence to support the assertion that the removal of executive officers was a branch of the royal prerogative or that a general removal power was an inherent attribute of the "executive power" as it was understood in England. (39)

Although influential English legal theorist William Blackstone described the King, in terms reminiscent of modern Unitarians, as the "supreme Executive Magistrate" of the nation and as vested with the whole of the executive power, (40) the King's ability to remove and control executive officers was neither unlimited nor illimitable. The Crown could not directly instruct most law enforcement and regulatory officials. (41) Many officers were appointed and removable only by other officers or local magnates. (42) A large number of royal officers, from local law enforcement to exalted officials in the royal government, held their offices pursuant to life or hereditary tenure, (43) and there were even pockets of administration completely outside the King's control. (44) And Parliament created many offices by statute, particularly regulatory and administrative offices, and when it did so it often specified the mode of appointment, the mode of removal, and the tenure of the office. (45)

This last fact is particularly important to the question of the legislature's power to restrict or qualify removal. A review of the statute books shows that, throughout English history, Parliament altered modes of appointing or removing existing officers, transferred appointment or removal power from the King to other officials, and specified qualifications for office. (46) It also had no compunction about regulating the tenure of most royal offices in the ordinary course. (47) While Parliament generally made executive officers removable at the pleasure of the King or some other appointing officer, it provided statutory tenure when it wished to make the officer...