Law Commons^™

Movement On Removal: An Emerging Consensus On The First Congress, Jed Handelsman Shugerman

Faculty Scholarship

What did the “Decision of 1789” decide about presidential removal power, if anything? It turns out that an emerging consensus of scholars agrees that there was not much consensus in the First Congress.

Two more questions follow: Is the “unitary executive theory” based on originalism, and if so, is originalism a reliable method of interpretation based on historical evidence?

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 Indecisions Of 1789: Inconstant Originalism And Strategic Ambiguity, Jed Handelsman Shugerman

Faculty Scholarship

The unitary executive theory relies on the First Congress and an ostensible "Decision of 1789" as an originalist basis for unconditional presidential removal power. In light of new evidence, the First Congress was undecided on any constitutional theory and retreated to ambiguity in order to compromise and move on to other urgent business.

Seila Law's strict separation-of-powers argument depends on indefeasibility (i.e., Congress may not set limits or conditions on the president's power of civil removal). In fact, few members of the First Congress defended or even discussed indefeasibility. Only nine of fifty-four participating representatives explicitly endorsed the presidentialist …