THE INDECISIONS OF 1789: INCONSTANT ORIGINALISM AND STRATEGIC AMBIGUITY.

• Author: Shugerman, Jed H.

INTRODUCTION 755 I. THE DECISIONS OF 2010, 2020, AND 2021 765 II. THE ANTI-UNITARY DECISIONS OF 1787 AND 1788 769 III. MAY-JUNE 1789: STRATEGIC AMBIGUITY IN THE HOUSE 774 A. May--June 19: Adopting a Clear Clause 774 B. June 17-21: Maclay's Diary Recorded Senate Opposition 779 C. Monday, June 22: Removing "Removable" and Adding Ambiguity 783 D. "A little clause hid in the body of a bill can be called a declaratory act?": The Founders and the First Congress Often Used Declarations and Explanatory Clauses, but Not Here 796 1. The Founding's Explanatory Drafting Practices: Constitutional Texts 796 2. The First Congress's Explanatory Statutory Clauses 799 E. The Summer of '89: The "Enigmatic," "Pragmatic," and Ambiguity" Blocs 802 F. The "Decision of 1789" Misreadings 807 IV. JULY 14-18: SENATOR MACLAY'S DIARY AND SENATE CONFUSION 809 V. LEGAL SOURCES VS. TEXTUAL INFERENCES 819 VI. LATE JUNE-SEPTEMBER: THE TREASURY COMPROMISES 824 A. Madison's Independent Comptroller and Persistent Doubts 824 B. The Compromise of August 1789 834 VII. "AT PLEASURE" AND GOOD-CAUSE WRITS 840 A. No Consensus on 'At Pleasure" or At Will" 841 B. The Confederation Era and the Judiciary Act: Expressio Unius? 844 C. Good-Cause Writs and Justiciability 846 VIII. "COURT PARTY" SPIN 851 CONCLUSION:THE IMAGINARY UNITARY EXECUTIVE 860 APPENDIX 1 863 INTRODUCTION

This Article challenges the historical foundation for a series of major Supreme Court precedents, both old and new, concerning presidential removal. It is also a cautionary tale about the growth of presidential power, the flawed practice of originalism, and the construction of Founding myths. This case study identifies so many oversights, errors, and misuses of historical documents in precedents and scholarship that it raises broader questions about the reliability of originalism as a method of constitutional interpretation.

The unitary executive theory rests on three textual and historical pillars: Article IPs Vesting Clause; the Take Care Clause (or Faithful Execution Clause); and the "Decision of 1789." Because the Constitution is silent on removal, and because the Vesting and Take Care Clauses are inescapably ambiguous, unitary theorists turn to the Foreign Affairs debate in the First Congress in June 1789, which they claim confirmed broad unchecked presidential power over the executive branch and removal. "Since 1789, the Constitution has been understood to empower the President to keep these officers accountable--by removing them from office, if necessary," Chief Justice John Roberts wrote in Free Enterprise Fund v. Public Company Accounting Oversight Board in 2010 and again in Seila Law LLC v. CFPB in July 2020. (1) He was referring to the ostensible "Decision of 1789," when the First Congress created the first three departments: Foreign Affairs, War, and Treasury. Federal judges have extended these precedents to strike down agency independence and curtail other parts of the administrative state and public law. (2)

To give credit where credit is due, this Article confirms that Justice Louis Brandeis and Edward Corwin were close enough when they gave a rough estimate that the presidentialists (those who supported a constitutional presidential removal power) had only about a third of the House vote, and they concluded that the debate was ineluctably unclear. (3) Notwithstanding their observations, both the Taft Court and the Roberts Court revived a myth that Madison had spun after his retreat to "strategic ambiguity" when he did not have the votes for his presidentialist position.

There have always been good reasons to question the reliability of postratification debates as evidence of meaning before and during ratification, especially based on such a fragmentary and confusing legislative history. (4) On top of those longstanding concerns, this Article offers the first head count of the House vote with categories for each constitutional theory, which is more accurate than adding up a confusing series of "yes" or "no" votes for a deliberately unclear text. Only nine of fifty-three participating members of the House explicitly endorsed even the weaker version of the presidentialist interpretation of Article II: a presidential removal power without resolving whether Congress could set conditions (the Roberts Court's crucial "indefeasibility" rule). Even among those nine, some wavered, endorsed opposing theories, or reversed themselves, including Madison. (5) Even fewer suggested that the President had a constitutional power to remove at pleasure. (6) Moreover, the sixteen or so House votes that have been assumed to be "presidentialist" are just as explainable as a "strategic ambiguity" bloc.

This Article offers a modest version of its argument: the First Congress reflected a series of indecisions rather than a decision on presidentialism. Many readers of this new research admit that they find it challenging to keep track of the twists and turns, the confusing statutory texts, and the different votes. That confusion is the basic point here: ambiguity and confusion were part of the strategy to allow each side to have its own narrative. Madison deliberately created a confusing maze in the House; Maclay's diary reveals the same confusion in the Senate; and this Article shows that the unitary theorists have been so confused by these debates that they misinterpreted many sources. The primary goal of this Article is to correct the historical record. Once a series of misreadings and omissions are corrected, it is unclear what evidence remains for the Taft/Roberts interpretation of the Decision of 1789.

Once one navigates Madison's deliberately messy maze, this Article then offers a stronger argument: the real Decision of 1789 was a rejection of the unitary model. The most reasonable reading of the historical records indicates that a significant majority opposed the interpretation that Article II implied a general removal power, and even among the minority claimed by the unitary theorists, there was explicit opposition to the claim of legislative indefeasibility. Contrary to the unitary theorists' claim that the question of "unabateable" presidential powers and indefeasibility "were never really contested" or "never squarely addressed," (7) the First Congress indeed addressed, contested, and rejected indefeasibility in the Foreign Affairs debate, (8) the Treasury debate,' and the Judiciary Act text. (10) Even when it came to the War and Foreign Affairs Departments--the most traditional executive powers of war and peace--a majority of Congress still rejected Article II presidentialist removal powers.

Moreover, this Article offers a broader argument that the persistent misinterpretations of Founding-era sources by the Roberts Court and unitary executive theorists should raise some deeper questions about the practice of originalism. Given the weight of the Federalist Papers and other originalist evidence against their textual inferences from Article IPs Vesting Clause and the Take Care Clause, (11) the unitary theorists turned in good faith to the First Congress out of necessity, but necessity became a mother of ahistorical inventions. (12)

Here is the accurate part of the unitary "Decision of 1789" story: (13) when Congress was creating the first executive departments (Foreign Affairs, War, and Treasury), it recognized a gap in the Constitution's text about who had the power to remove executive officers. A few congressmen posited that the Constitution recognized impeachment and only impeachment as the means of congressional removal. A substantial number cited a tradition that removal mirrored appointment--thus, if the Senate confirms appointments, the Senate must also share a power to confirm firings. This group has been labeled a "senatorial" bloc, favoring a senatorial power to assent to (or reject) presidential removals. A House majority, meanwhile, thought that the President alone should have sole removal power over these three departments, but it divided into two factions. One faction (a "congressionalist" bloc) thought it was within Congress's discretion whether or not to grant this power to the President; another faction (Madison's "presidentialist" bloc) thought the Constitution itself granted this power to the President.

Here is the incorrect part of the unitary story: the presidentialist bloc prevailed in the House, with a majority voting for Madison's language that endorsed his interpretation of Article II. Then the Senate split 10-10 on the bill, and Vice President John Adams broke the tie in favor of presidential power (note the irony in this strict separation-of-powers fable of an executive officer casting the deciding legislative vote). The unitary claim is that a majority of both Houses endorsed the unitary interpretation of the Constitution, (14) and therefore the First Congress, with a vote as a "clear-cut test of strength," (15) "settled, (16) "concluded," (17) "codified," (18) "confirmed," (19) "established]," (20) and "liquidated" (21) that the Constitution grants the President exclusive powers like removal, beyond the reach of Congress.

But a closer look at the "Decision of 1789" reveals a textualist problem hiding in plain sight in the House debate. The House had first passed a clear statement on Friday, June 19: the head of the Department of Foreign Affairs would "be removable by the President," (22) Then, returning the following Monday, June 22, Madison and his ally Egbert Benson suddenly reversed course and proposed replacing the clear statement, ostensibly because one might wrongly infer that the clear statement was Congress granting removal power, instead of inferring that the Constitution had already granted such a power. (23) Yet rather than explicitly clarify the removal power, Madison and Benson moved to replace the clear statement with a confusing clause about "vacancy" backup plans for handling departmental books and records with no explanation...