University of Pennsylvania Law Review
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 view that Article II implied a presidential removal power. The debates indicate that some of the sixteen or so House members assumed to be “presidentialist” are just as explainable as “strategic ambiguity”: in the face of opposition, they retreated to an unclear text that was more likely to achieve compromise or could be presented flexibly to different members.
This new “strategic ambiguity” interpretation turns on overlooked sources—a Senator’s diary and other senators’ notes—and two new approaches to analyzing the First Congress’s debates. Senator William Maclay’s diary shows growing Senate opposition to Madison’s overall legislative agenda just before Madison retreated to a more ambiguous text. Maclay and other senators documented opposition to presidential removal, followed by an obfuscating debate, reflecting follow-through on the strategy of ambiguity.
A new interpretive approach gives more weight to the only day of debate— Monday, June 22—that separated the unitary presidentialists from the congressionalists (who thought Article I gave Congress the power to delegate removal), revealing that a solid House majority rejected even a weak form of presidentialism.
A second new approach puts this debate in the context of the urgent and sprawling legislative agenda in the summer of 1789. Madison and other presidentialists knew they might not have the votes either in the House (for their presidential theory) or Senate (for presidential removal under any theory). A study of the First Congress’s drafting practices reveals that explicit explanatory clauses and preambles were common, but Madison went in the opposite direction. Madison’s opponents called it a retreat, and even Madison and key allies hinted at an explanation of “strategic ambiguity.” Madison and “Court Party” supporters of the Washington administration spun the retreat as a victory. Madison’s myth-making has succeeded again two centuries later, as the Roberts Court and modern unitary theorists rely on Madison’s letters more than the debates themselves. The unitary theorists’ widespread errors, even though made in good faith, raise questions about the reliability of originalism.
Jed H. Shugerman,
The Indecisions of 1789: Inconstant Originalism and Strategic Ambiguity, 171 U. Pa. L. Rev. 753
Available at: https://ir.lawnet.fordham.edu/faculty_scholarship/1298