Mazzone on The Unitary Executive and the Decisions of 1789 and 1861

Jason Mazzone, Univesity of Illinois College of Law, has published The Unitary Executive and the Decisions of 1789 and 1861 at 59 UC Davis Law Review Online 313 (2026). Here is the abstract.

Debates over the constitutional power of the President to remove executive officers are almost as old as the Republic itself. These debates continue today in the academic literature — with a vast body of writing on the constitutional basis (if any) for a presidential removal power, its scope, and the authority (if any) of Congress to regulate the power — and at the Supreme Court, which has decided a series of removal cases in recent years, and which has some removal cases on its current docket. Virtually every discussion (regardless of the conclusion reached) of the power of the President to remove executive officers invokes the so-called Decision of 1789. This Essay does also. But it focuses additionally on another important decision: that of 1861. In that year, the states that had seceded from the Union adopted their own permanent constitution. The Constitution of the Confederate States mimicked and repeated (with modifications) many of the provisions of the federal Constitution. It also included something the federal Constitution had not: a specific provision specifying the scope of the powers of the President to remove executive officers. Unusual though it might seem to turn for guidance to the Confederate Constitution — a charter written and ratified by traitors — the exercise has some payoff. It helps us identify some possible conceptions of presidential removal authority (under the federal Constitution) and to assess the relative merits of alternatives.

Download the article from SSRN at the link.

Baumann and Shugerman on Quasi-Judicial: A History and Tradition

Beau J. Baumann, Yale Law School, and Jed H. Shugerman, Boston University School of Law, have published Quasi-Judicial: A History and Tradition. Here is the abstract.

In challenging the historical assumptions underlying the unitary executive theory, scholars have made several seemingly unrelated discoveries. First, "judicial" power was conceived in English law as a subset of "executive" authority. Second, Congress at or near the Founding insulated certain court-like comissions from presidential control. Finally, the "quasi-judicial" and "quasi-legislative" powers that were central to the holding of Humphrey's Executor flowed from a forgotten nineteenth-century legal tradition was guiding Congress's construction of the modern state. This Essay connects these findings into a single claim: generations of American stretching back past the Founding have instinctively insulated administrators granted quasi-judicial functions from hierarchical control and presidential removal. Americans expect judge-like independence when politicians grant administrators judge-like powers and functions. The quasi-judicial category deployed in Humphrey's was the logical extension of English legal customs, Founding Era administration, and the evolution of the ninteenth-century law of officeholding. It reflected an Anglo-American instinct to insulate judge-like offices from direct hierarchical control. Whether you are an originalist or a believer in the history-and-tradition approach, these findings show that Congress may insulate quasi-judicial officials from presidential removal and direction. Beyond original public meaning, the quasi-judicial function from Humphrey's is bound up with the Anglo-American constitutional project stretching back beyond the Founding. If the Roberts Court overrules Humphrey's, it will imperil a primordial instinct that is part of our rule-of-law tradition.

Download the article from SSRN at the link.

Shugerman on Movement on Removal: An Emerging Consensus on the First Congress @jedshug @BU_Law

Jed H. Shugerman, Boston University School of Law, has published Movement on Removal: An Emerging Consensus on the First Congress. Here is the abstract.

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. 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 unitary theory’s claims (e.g., Jonathan Gienapp’s The Second Creation and my article “The Indecisions of 1789: Inconstant Originalism and Strategic Ambiguity,” since published in the University of Pennsylvania Law Review). Unitary theorists on the panel conceded some errors and problems with the claims of a “decision.” Most pivoted away from the traditional account that, based on the legislative debates, a majority of the First Congress endorsed an interpretation that Article II established a presidential removal power. Instead, they shifted to emphasize statutory texts rather than legislative history (though the texts do not indicate an Article II removal power); that the endorsement of even a minority faction of roughly 30% of the House was still substantial; that it was the quality of the argument, not the quantity of supporters (though the “quality” is in the eye and the ideological priors of the beholder, and though it is unclear how original public meaning could be established by a defeated minority position); or perhaps it is the quality or historical importance of the speakers, like Washington, Hamilton, Madison, and Marshall, that counts (nevermind that Madison, Hamilton, and Marshall also contradicted the unitary theory). None of these pivots rescues the “Decision” myth. Perhaps most interesting was the unitary theorists' openness to turning to later evidence, of practices and debates further and further away from the Founding and Ratification. To their credit, they demonstrated a willingness to leave behind standard originalist methods of “original public meaning” during Ratification, and to engage in methods more consistent with common law constitutionalism and living constitutionalism. The challenge is whether they will acknowledge that they have to choose between originalism and the unitary theory.

Download the article from SSRN at the link.