The Imaginary Unitary Executive (Lawfare Essay)

I’ve posted on the Lawfare blog a long-form essay “The Imaginary Unitary Executive.” Link here.

Summary: “Contrary to The Decision of 1789 myth, which SCOTUS relied on to expand presidential power, the legislative record and a diary show that the first Congress rejected the exclusive unitary model.”

Big thanks to Ben Wittes and Quinta Jurecic for excellent editing over Independence Day weekend, in time for a big week on the Supreme Court: “Trump’s lawyers relied on unitary arguments & precedents to contest congressional and state prosecutor subpoenas. The Decision of 1789, properly understood, is no basis for such an argument. In fact, the first Congress’s record militates in favor of congressional oversight.”

This essay is based on two chapters from my book project The Imaginary Unitary Executive.

First: “The Indecisions of 1789: Strategic Ambiguity and the Imaginary Unitary Executive” on the Madison strategy, the House debate, & Senator Maclay’s diary.

Second: “The Decisions of 1789 Were Non-Unitary: Removal by Judiciary and the Imaginary Unitary Executive” focused on the Treasury Act of 1789 & many statutes from the first Congress and the early republic delegating removal power to judges & juries.

Author: Jed Shugerman

Legal historian at Fordham Law School, teaching Torts, Administrative Law, and Constitutional History. JD/PhD in History, Yale. Red Sox and Celtics fan, youth soccer coach. Author of "The People's Courts: Pursuing Judicial Independence in America" (2012) on the rise of judicial elections in America. I filed an amicus brief in the Emoluments litigation against Trump along with a great team of historians. I'm working on "The Rise of the Prosecutor Politicians," a history of prosecutors and political ambition (a cause of mass incarceration), and "The Imaginary Unitary Executive," on the myths and history of presidential power in America.

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