Interring the Unitary Executive

Authors

Christine Kexel Chabot, Interim Director, Institute for Consumer Antitrust Studies, and Distinguished Professor in Residence, Loyola University Chicago School of Law

Abstract

The President’s power to remove and control subordinate executive officers has sparked a constitutional debate that began in 1789 and rages on today. Leading originalists claim that the Constitution created a “unitary executive” President whose plenary removal power affords her “exclusive control” over subordinates’ exercise of executive power. Text assigning the President a removal power and exclusive control appears nowhere in the Constitution, however, and unitary scholars have instead relied on select historical understandings and negative inferences drawn from a supposed lack of independent regulatory structures at the Founding. The comprehensive historical record introduced by this Article lays this debate to rest. It makes clear that the Founding generation never understood the unitary executive to be part of our Constitution. This Article establishes that nonunitary, independent structures were not only present at the Founding, but that they pervaded regulatory statutes passed into law by the First Federal Congress and President George Washington.

Unitary executive theory and its requirements of absolute accountability to the President stand at odds with the independence and tenure protections afforded to scores of unelected officials who run our government. Unitary scholars insist that Article II’s Vesting and Take Care Clauses require the Supreme Court to erase longstanding precedent allowing tenure protections for heads of multimember, independent agencies such as the Federal Reserve and the Federal Trade Commission. Some unitary scholars have also extended these objections to tenure protections for administrative law judges and a multitude of other inferior officers. The Roberts Court has become increasingly receptive to unitary arguments and appears poised to invalidate tenure protections applicable to wide swaths of the administrative state.

This Article demonstrates that unitary scholars and judges have rested their arguments on deficient understandings of Founding-era history. Their failure to recognize the independent structure of the Sinking Fund Commission—a Founding-era agency proposed by Alexander Hamilton and passed into law by President Washington and the First Congress—is just the tip of the iceberg. Unitary jurists have also missed scores of early statutory provisions that repeated nonunitary aspects of the Sinking Fund Commission’s structure and required autonomous actors to reinforce the President’s duty to take care that the laws be faithfully executed. The First Congress repeatedly delegated control over executive officers, as well as significant executive discretion, to independent judges and lay persons whom the President could not remove or replace. This body also chose a nonunitary framework when it dispersed executive decisions amongst multiple officers and required these officers to check actions taken by the President and each other. These laws belie the conventional originalist view that the Constitution vests complete control over the exercise of executive power in the President of the United States. Independent regulatory structures have been with us since the beginning, and originalism provides no occasion for the Court to declare them unconstitutional now.

Recommended Citation

Christine K. Chabot, Interring the Unitary Executive, 98 Notre Dame L. Rev. 129 (2022).
Available at: https://scholarship.law.nd.edu/ndlr/vol98/iss1/3