When Congress chartered the federal judicial system in the Judiciary Act of 1789, the creation of a chief legal officer for the government—an attorney general—was almost an afterthought. Congress addressed the issue only in the last sentence of the last of the statute’s 35 sections, and the language it used is surprisingly vague about how such an important federal officer was to be selected—providing only that “there shall also be appointed a meet person, learned in the law, to act as attorney-general for the United States . . . .” That passive voice was deliberate; the original draft bill adopted by the Senate would have had the Supreme Court appoint the Attorney General (a model that Tennessee still follows today). Muddying the waters left it open for the President to fill the position, as George Washington shortly would with Edmund Randolph.
This historical episode has been oft- and well-recounted, including by Susan Low Bloch in her canonical 1989 Duke Law Journal article on the early role of the attorney general. But it also seems like an obvious data point for contemporary debates over the “unitary executive” theory of presidential power: If the First Congress was so profoundly ambivalent about the President’s power to even select (let alone control) an officer as central to the enforcement of the laws as the Attorney General of the United States, that calls into some question the certitude with which some contemporary judges, justices, and scholars have defended the unitary executive on originalist—as opposed to normative—terms. Andrea Katz and Noah Rosenblum’s Removal Rehashed targets that certitude.
They provide a powerful and persuasive rejoinder to a recent example of such self-assured originalist-infused executive power scholarship—The Executive Power of Removal, by Aditya Bamzai and Saikrishna Bangalore Prakash. As Katz and Rosenblum describe, Bamzai and Prakash’s article “aims to persuade readers that the President’s power to remove executive officers is exclusive and nondefeasible; textually mandated; and a matter of common assent at the time of the Founding.” But in Katz and Rosenblum’s words, the article “fails to persuade on its own terms. It fails to seriously respond to critics of unitary theory. And it presents some of its sources in a way that could mislead less historically informed readers.”
Maybe it is a good idea for the President to have the unfettered ability to appoint and remove all executive officers; maybe not. But as the Supreme Court has moved ever closer to holding that the Constitution requires such an “indefeasible” executive removal power, scholarly focus has shifted to whether Founding-era practice supports such an understanding of executive power in the first place.
That’s where Katz and Rosenblum come in, highlighting a series of disagreements among key Founding-era players as to whether an indefeasible removal power was part of the executive power, including Alexander Hamilton changing his own mind on the question. The point is not that these historical data points prove a consensus against an indefeasible removal power. It is that “[a] profusion of divergent views is a major stumbling block for an interpretive theory that depends on an imagined consensus.” Katz and Rosenblum also highlight the substantial evidence from Founding-era government institutions other than the three “great departments,” which appears inconsistent with an indefeasible removal power. In these respects, Katz and Rosenblum (concisely and effectively) rehash some of the critiques of unitary executive scholarship that have been around for decades—as they themselves acknowledge.
But Katz and Rosenblum’s piece rises above that fray in two respects. The first is in its methodological critique of Bamzai and Prakash. For instance, in a battle over the meaning of a provision of Pennsylvania’s 1776 Constitution, Katz and Rosenblum persuasively show how Bamzai and Prakash not only misread a critical interpretation by the “Council of Censors” (a key interpretive body) in a way that ignores powerful countervailing evidence, but how their “selective quotation retrojects what is an interpretive argument into a complex text.”
To similar effect, Katz and Rosenblum show how Bamzai and Prakash overread examples from both the Adams and Jefferson administrations—examples that not only do not all include “removals” of officers, but that do not obviously establish that the removal powers exercised by the second and third presidents were understood to be (or, in fact, were) indefeasible. Katz and Rosenblum are careful not to overclaim themselves; their point, over and over, is that careful consideration of the relevant historical sources is messy and does not lend itself to a single, overarching narrative of one, unitary Founding-era understanding. Echoing Dutch historian Pieter Geyl’s famous definition of history (as “an argument without end”), Katz and Rosenblum show that efforts to claim a uniform Founding-era understanding of executive power are not just unpersuasive as a matter of contemporaneous evidence; they raise serious methodological questions about the practice of legal history.
This last point, to which Katz and Rosenblum devote their conclusion, is what makes this piece especially important—and compelling. As Bamzai and Prakash acknowledge, the debate over Founding-era understandings of executive power “is not merely a faculty-lounge quarrel.” The Supreme Court is in the midst of a series of paradigm shifts in its separation-of-powers jurisprudence, one in which an indefeasible executive removal power may soon be in the offing. And although Justice Gorsuch’s concurring opinion in West Virginia v. EPA may suggest that a string citation to articles on one side of a debate provides an adequate rejoinder to the substantive claims of articles on the other side (in Katz and Rosenblum’s words, “[c]itation took the place of argument”), scholars bear a higher obligation. That the Supreme Court will not take legal history seriously provides all the more reason why the academy must do so. And the fact that two pre-tenure scholars are willing to lead the way in criticizing “the judicial politics of legal history” is a hopeful sign in that regard. We should all aspire to follow their—and not the justices’—lead.
