A few weeks ago, Ilan Wurman wrote a thoughtful essay for Law & Liberty that jousted with the ideas behind Caleb Nelson’s much-discussed break with the unitary executive theory (UET). The UET takes many forms, but it often embraces two conclusions about presidential power: that the Constitution vests in the president (1) an inherent power to remove principal officers and (2) an inherent power to direct principal officers’ exercise of delegated authorities. Nelson made waves by following a growing anti-UET literature and arguing that an originalist analysis premised on original public meaning fails to establish either a presidential removal power or a presidential direction power. Wurman’s essay cautioned against throwing the baby out with the bathwater. He acknowledged that a presidential direction power of the kind envisioned by unitarians lacks sufficient support, but argues that a presidential removal power stands on firmer ground.
My intervention here is meant to problematize Wurman’s analysis. I think Wurman is right to abandon a presidential direction power. Scholars such as Christine Chabot, Julian Mortenson, and Jed Shugerman have done too much damage to the UET’s pedigree to conclude otherwise. Wurman’s narrower defense of a presidential removal power might turn on a thicker set of evidentiary debates that are submerged in his essay. Having assembled some evidence of an original public meaning that contradicts the anti-unitarian literature, Wurman’s case may ultimately turn on how to parse conflicting evidence and which side ultimately carries what burden. These arguments, though probably decisive, are too complicated for a short essay.
Rather than straining this medium by hashing out those complicated evidentiary debates, I will try to merely problematize Wurman’s work by examining his sub rosa debate with famed constitutional thinker Edward Corwin.
Old Ground: The Taftian and Corwinite Camps
The ongoing conflict over the UET tracks a century-long debate between Chief Justice William Howard Taft and legal scholar Edward S. Corwin. Taft gave the UET one of its earliest articulations in the 1926 case, Myers v. United States. The case did not implicate the modern UET. It raised narrower questions arising from a 1876 statute that required the president to obtain the Senate’s approval before removing postmasters. Taft nonetheless crafted a vision of a unitarian presidency in extravagant dicta. Taft’s unitarian vision, with important caveats, pointed towards powers of removal and direction that turned on implied readings of the Article II Vesting, Take Care, and Appointments Clauses. Modern unitarianism has adopted more sophisticated arguments that generally hue to the outlines of a Taftian reading of these triangulated clauses.
For most of the twentieth century, the Taftian reading was eclipsed by an alternative offered up by Edward Corwin. In his own time, Corwin was maybe the most important public-facing interpreter of the Constitution in the American academy. His reputation was largely cemented through his epic takedown of Taft’s work in Myers, which remains one of the most stinging and effective critiques of any opinion ever produced by the Supreme Court. Corwin’s reading gave Congress ultimate control over the administrative state. His argument flowed from Congress’s power to create administrative offices under the Article I Necessary and Proper Clause. This reading formed the basis for a powerful rebuke of Myers’s reasoning in the academy and on Capitol Hill. Progressives, apoplectic over Taft’s unitarian vision, arranged for Corwin’s argument to be disseminated across the Nation through mass pamphleting.
Nelson’s splashy piece on the UET places him firmly in this Corwinite tradition. He places considerable emphasis on a natural reading of Article I, which empowers Congress “to make all Laws which shall be necessary and proper for carrying into Execution,” not only Congress’s own powers but also “all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” Nelson’s position boils down to the view that the emphasized portion of text above includes executive powers vested by Article II in the president. Because the Constitution assigns Congress latitude over “all other powers vested … in the Government,” a Corwinite reading of Article I gives Congress latitude to shape the term of removal even if Article II’s grant of executive power implied a baseline power of presidential removal. A removal power, to the extent one is implied in Article II, is merely one of many “Powers” belonging to “the Government of the United States” to which the Necessary and Proper Clause refers.
The debate between the Taftian unitarians and the Corwinites shows that an original public meaning analysis cannot hang on any single clause of Articles I or II in isolation. The debate turns on how these Articles interact. Nelson finds that the evidence in the unitarian literature fails to overcome a straightforward reading of the Necessary and Proper Clause, which seems to envision broad congressional control over the design of the administrative state regardless of the meaning of any portion of Article II. The Founding Era evidence is just too underdetermined to support a unitarian remaking of American government. And at least with respect to a presidential direction power, Wurman agrees with Nelson.
Problematizing Wurman’s Move
Wurman’s attempts to save a presidential removal power seem insufficient to me once we tee up the Taftian-Corwinite debate. If the question is whether there’s sufficient original public meaning to overcome the Necessary and Proper Clause’s reference to “all other Powers vested by this Constitution in the Government of the United States”—i.e., does the original public meaning of Article II create an unregulable presidential removal power that is immune to a plain reading of Article I—much of the evidence Wurman points to is ambiguous at best. James Wilson’s argument that “there can be no good Executive without a responsible appointment of officers to execute,” does not, without more, resolve the core question in this analysis. I think Wurman realizes this. I read that portion of his essay as merely establishing the importance of a presidential appointment power to the Founding generation’s understanding of executive power.
Wurman’s central move in his essay remains, by my lights, unpersuasive in light of Congress’s long-accepted power to regulate the president’s appointments.
Wurman’s project is classic Taft; he wants to build up the importance of the express power of presidential appointment and argue that a presidential removal power is “incident[al]” to that clear grant of executive power. On this score, Wurman points to the private writings of Founders such as Thomas Jefferson, who thought that executive power inherently encompassed both appointment and removal. A hardcore originalist might ignore these private writings because the ratified text expressly embraced appointment but not removal. These are the kinds of debates that led Nelson to conclude that the Founding Era materials on which Wurman relies are just inconclusive.
The most interesting part of Wurman’s essay is his turn to the interaction between Article II and the Necessary and Proper Clause. This is, by my lights, the section that really matters. Nelson saw no sufficient evidence to establish that an implied power of presidential removal was somehow immune from the plain thrust of the Necessary and Proper Clause. Here, Wurman argues that just because Congress has tremendous latitude to, among other things, create administrative offices does not mean that Congress has the lesser power to insulate administrators from presidential removal.
Wurman’s argument makes intuitive sense. The grant of a greater power does not necessarily imply the grant of a lesser one. As Wurman writes, “just because Congress can establish … federal crimes … does not give Congress a ‘lesser’ power to limit the reasons why the president can pardon individuals convicted of those crimes.”
The problem here is that unbroken precedents have depended on implied congressional powers that directly affect the president’s appointment power. And as far as I can tell, these precedents have not been targeted in a sustained way for overruling by the unitarians. They are so consistent that they are part of settled law, beyond doubt. And they tend to show that nothing about the all-important power of presidential appointment was immune from an extravagant reading of the Necessary and Proper Clause.
Just after the Founding, in the Judiciary Act of 1789, Congress required the president to select an attorney general “learned in the law.” Over the next two centuries, Congress filled the statute books with a baroque collection of qualifications that regulate the president’s appointment power. These qualifications range from regulating the prior experiences, age, gender, and party affiliations of potential appointees. Writing in the Reconstruction Era, Attorney General Amos T. Akerman concluded that Congress’s power to regulate the president’s pool of potential appointees faced very few limitations. Congress could not, for example, dictate a single appointee and thereby functionally rob the president of his or her appointment power.
In newly unsealed primary sources from Congress’s own internal constitutional deliberations, lawmakers drew on this largely unimpeded reading of the Appointments and the Necessary and Proper Clauses to devise a modern state defined by administrative depth. In a few places, Congress required the president to select nominees from a short list devised by other officials or entities. For example, when the president appoints judges to the courts of the District of Columbia, he or she must select appointees from a pre-screened list put together by the District of Columbia Judicial Nomination Commission. This move to insulate the rule of law from unbridled presidential will depends entirely on Congress’s powers under the Necessary and Proper Clause. Presidents from both parties, far removed from the Founding, have objected to Congress’s powers to regulate appointments, but many of them have nonetheless helped Congress enact statutes that limit unfettered presidential appointment power.
This unbroken practice from the Founding to the present shows the limits of Wurman’s argument. The Constitution does not expressly supply Congress with the power to regulate the president’s all-important power over appointments. And yet, Congress has repeatedly hemmed in the president’s choice of appointees through a broad reading of the Necessary and Proper Clause. Wurman’s citation of Congress’s power over federal crimes aside, sometimes the delegation of the greater power really does imply the lesser. Generations of Americans have concluded decisively that Congress’s power to create offices implies the power to craft qualifications and to regulate the president’s pool of appointees.
What is the potential difference between removal restrictions, qualifications, and short lists? Wurman notes cryptically that “qualifications for office [and] bipartisanship requirements … can help the president carry law into execution.” But this is a subjective distinction that carries too much of Wurman’s own political morality into his analysis. Removal restrictions, like qualifications, can help the president enforce the law by creating zones of administrative power that embody other virtues besides direct and hierarchical political control. If Congress requires the Federal Reserve to be managed by PhD economists, would a unitarian scholar bat an eye? Wurman would, I expect, say that this qualification helps enforce the law. But one view of the Fed’s removal provisions is that they insulate expert economists from unbridled presidential control, creating the conditions for the same kinds of good law execution that Wurman thinks is compatible with qualifications.
I came to this debate without a dog in the fight. I deeply respect both Nelson and Wurman, and I was open to the idea that the Constitution might require a limited removal power. But like Nelson, I find the evidence underwhelming. Wurman’s central move in his essay remains, by my lights, unpersuasive in light of Congress’s long-accepted power to regulate the president’s appointments. I look forward to more evidence and debates. But this contest requires a search for original public meaning that is strong enough to establish an unregulable removal power. That evidence must show that the Founding generation understood themselves to be placing a removal power above Congress’s broad authority to mold the administrative state to its liking. So far, however, the search has come up short.