The Indecision of 1789: Unitary Originalists’ Misuse of History (Part I).

In a draft paper (“Removal of Context” here) an an earlier series of posts (especially Part II, Part III, and Part VI, I showed a large number of misreadings as well as a serious misquotation of Blackstone in a recent Supreme Court amicus brief by major originalist unitary executive theorists. The “unitary executive” is the label for a theory of maximal presidential power that is now in vogue on the Roberts Court, and it is a myth that has been revived partly because of a series of mistaken assumptions and partly because of the misuse of historical sources. This series of posts will document an even larger number of misreadings of sources from the first Congress to revive the “Decision of 1789.”

The article with these errors, “New Light on the Decision of 1789,” was written by one of amicus co-authors, Saikrishna Prakash. The article was cited by their amicus brief. Justice Thomas cited it in his pro-unitary concurrence, and the Roberts majority relied heavily on the Decision of 1789 in Seila Law in June 2020. I posted a draft of my article identifying most of these discrepancies in May 2020. Here is an updated version of that draft, called “The Indecision of 1789: An Originalist Cautionary Tale.” I summarize that article very briefly here. Appendices at the end detail the relevant votes and the misreadings of original sources in “New Light.”

The “Decision of 1789” is the name for the erroneous claim by unitary theorists that the first Congress, in the summer of 1789, passed a statute to signify and establish that the President has a power to remove executive officers (perhaps any and all executive officers), not merely as a grant from Congress, but as an interpretation of Article II of the Constitution. Even though the Constitution is silent about removal and gives the Senate a power over appointment, the unitary theorists claim that the first Congress interpreted the Vesting clause and the Take Care clause to imply a complete and exclusive presidential removal power that Congress may not limit (i.e., the power is said to be “indefeasible,” and independent agencies and independent prosecutors are unconstitutional. 

The problem with the “Decision of 1789” myth is a matter of text, of history and of basic math. 

The unitary theorists’ claim – and the statute itself – are both so convoluted that it should have raised sufficient doubt a long time ago. Because the Constitution was silent on removal (does “textual silence” sound familiar, Justice Kavanaugh?) and the original-public-meaning evidence from the Convention, the Ratification debates, and the Federalist Papers is squarely against their theory (as I show here, here, and here), they stretch words like “vest” or “take care,” and they turn to a time too early and far away (English royal practice, which also turned out to be full of their erroneous interpretations, and also turn to a time arguably too late: post-Ratification congressional practice and legislative history. It turns out that this legislative history is what textualists warn us about: It is a confusing strategic mess. 

My apologies for the confusion, but this is the best I can do to concisely summarize such a counter-intuitive, convoluted, and internally contradictory argument, which relies on votes being simultaneously “enigmatic” and clear. I am not exaggerating.

In May 1789, Madison proposed the Foreign Affairs bill, with language that provided that the Secretary would be removed by the President. A committee recommended language in June 1789, reflecting Madison’s proposal: 

[T]here shall be established . . . the Department of Foreign Affairs, at the head of which there shall be an officer . . . to be removable by the President.

After four full days of debate, the House adopted this language on Friday, June 19. Then, on Monday, June 22, Madison suddenly reversed course, and proposed replacing the existing language—which clearly gave the President the removal power—with strangely unclear language: 

[T]here shall be an inferior officer . . . who, whenever the said principal officer shall be removed from office by the President of the United States, or in any other case of vacancy, shall during such vacancy have the charge and custody of all records, books and papers appertaining to the said department.

As a textualist matter, this new clause does not suggest the source of such a removal power, not does it state that such a power actually exists. This new clause could be read as assuming a pre-existing removal power, or alternatively, foreseeing that a future Congress or President might assert a removal power against a department head, validly or invalidly, in which case, a contingency plan with a back-up officer already already would be in place. Of course, constitutions famously had preambles, but so did some of the first Congress’s statutes – they contained explanatory clauses to provide background and purposes of a statute. However, Madison and his allies chose to provide no constitutional explanation for their text. Instead, they used floor speeches to explain a deliberately ambiguous text. 

Madison and his allies pushed for three key votes that they claimed would communicate an interpretation of the Constitution: A first vote to add this ambiguous language; a second to remove the explicit “removable” clause (both on Monday, June 22); and a third (on June 24), to pass the bill. If you are confused by this strategy, you are not alone. Madison’s House colleagues were at first confused, but then they relentlessly mocked this strategy as a sign of weakness. They knew that Madison and the unitary theory did not have the votes. Both Madison’s allies and opponents said so, and some even hinted that the real problem was that the Senate would not pass a bill that explicitly surrendered their power. A more ambiguous statute might sneak through the Senate. The new language was ambiguous enough for Madison to claim that it hinted a constitutional interpretation, but his Senate allies would take advantage of its ambiguity to squeak it through with obfuscation.

The unitary theorists claim that the passage of this statute was the “Decision.” The problem is that Madison’s strategy divided and conquered the opposition, using shifting coalitions (reminiscent of the Condorcet paradox) to win each vote. The House divided into three voting blocks: 

A first bloc of 13 voting yes, yes, and then yes on the final bill. This block was generally “presidentialist” (or “unitary”), because, following Madison and Benson, they were replacing an explicit grant with the more ambiguous language.

A second bloc of 13 voting yes, no, and then yes on the final bill. This block was generally “congressional,” because congressionalists would vote “yes” on step 1, because that was merely adding the back-up plan as an extension and clarification of that congressional delegation. But they voted “no” on step 2 in order to keep the original explicit grant (a congressional delegation, not a constitutional rule).

A third bloc of 16 voting no, yes and then no on the final bill. This block was “senatorial” because they wanted neither clause: voting no to reject the ambiguous/implicit removal language, and voting yes to remove the explicit removal language.

Eleven others had a more mixed voting pattern or missed some votes, but their speeches or votes roughly sort out among the three groups (or tiny group who thought impeachment was the only constitutionally-permitted method of removal).

For there to have been a presidentialist “Decision of 1789,” there is a math problem: How can that bloc of 13 yes/yes/yes votes come close a majority view of the House, when 53 members participated? Where can one cobble together more than a dozen other votes? There were not enough recorded speeches to know the views of most of the members, especially because the votes did not split the presidentialists from the congressionalists until the Madison/Benson amendments on one day of debate, Monday, June 22d. Up until that day, members could make both kind of arguments in the same speech in favor of presidential removal, whether based on the Constitution’s text of Article II… or on Congress’s Article I powers.

Thus, the passage of the final bill is not evidence of any constitutional theory prevailing. Some combination of presidentialists and congressionalists reformed a coalition to pass it, despite disagreeing on the theoretical questions. There has never been a head count of these votes based on constitutional interpretation, not even in the famous debate between Chief Justice Taft vs. Justice Brandeis in Myers, and not even Sai Prakash’s revival of the argument in 2006. My research offers a head count, as much as possible from the speeches, letters, and vote patterns – and it shows that the House did come close to a unitary consensus, and it also shows a remarkable pattern of misinterpreting those sources. 

Despite the second group (the yes/no/yes group) including most of the vocal congressionalists, Sai Prakash called this group “enigmatic” because he suggests some of them may have still been presidentialists, but voted to keep both clauses for the sake of clarity. In Prakash’s favor, there was one such member who clearly gave this explanation. But many more rejected that view in favor of congressionalism. Prakash does not account for the possibility that some of the 13 yes/yes/yes members could have been similarly “enigmatic” or strategic: voting for strategic ambiguity to get their bill through the Senate by obscuring the removal position. Some hinted at such a strategy on the House floor, which makes sense: The Senate was in the middle of fighting with the House on a number of issues. 

Thus, if one can question whether every yes/no/yes vote was based on congressionalist principle, one can also question whether every yes/yes/yes vote was based on presidential principle. But even if one sets aside this question, my re-reading of the votes and sources shows that only 16 members in favor of presidentialism. On the other hand, 16 were “senatorial,” seven were explicitly congressionalist, and eight others were silent about their reasons, but they voted more like congressionalists, and it is more likely that they were congressionalist or pragmatists rather than presidentialists.

There is an internal contradiction in this unitary argument: It depends on this group being “enigmatic” and unclear, and then speculating about their intentions, but these originalist arguments depend on claiming a clear original public meaning. Even if this group’s intentions were truly enigmatic, how could speculation about their votes establish or reflect clear public meaning?

But that’s not the point of this post. The problem is that in Prakash’s effort to find more votes (or more explanations) for his theory, he misinterpreted sources and miscategorized members, adding up to a problematic treatment of eight different members (including Vice President Adams as a member). Here is a summary of the problems with his arguments:

Again, only 16 members (30%) can be categorized as “presidentialist.” (It may be fewer if some were just voting for strategic ambiguity, but let’s set aside that question. Prakash tries to find more votes beyond those 16, and he makes a series of stark mistakes and misreadings of the historical record:

1. Of the roughly 13 to 15 members of the pivotal bloc, the “presidential” theory would depend on counting 12 or 13 of them to get to a majority of the House voting membership (over 90%). Only two can be counted as presidentialist: Boudinot and Fitzsimons, bringing the total to 16 of 53. Prakash attempts to add three more: Thomas Hartley, John Laurance, and Lambert Cadwalader. Prakash suggests that if these three were also presidentialist, one could make a broader inference about the entire bloc. The evidence Prakash cites does not support such claims about these three. Two were congressionalist, and a third was very likely congressionalist and voted against both of Madison/Benson proposals. Thus, the inferences point in the opposite direction (towards congressionalism) for the bloc.

2. Prakash cites Fisher Ames and John Vining as two examples of the pivotal or enigmatic “yes/no/yes” bloc having mixed views. Unfortunately, both were “yes/yes/yes” voters in favor of the Madison/Benson proposals. Thus, their mix of arguments points in the opposite direction: Some of the “yes/yes/yes” bloc that was generally more presidentialist may have been mixed, and perhaps some were voting more for strategic ambiguity to get the same bill through the House and Senate, rather than voting decisively for a constitutional theory.

3. Prakash cites observers of the debates describing a more presidentialist consensus. The evidence from Peter Muhlenberg, William Smith of Maryland, and Vice President Adams does not support such a claim.Meanwhile, many other participants and observers raised concerns about whether anything was decided by these votes.  

The next blogposts will detail each of these members, Prakash’s misinterpretations, and the original sources.

Author: Jed Shugerman

Jed Handelsman Shugerman is a Professor at Fordham Law School. He received his B.A., J.D., and Ph.D. (History) from Yale. His book, The People’s Courts (Harvard 2012), traces the rise of judicial elections, judicial review, and the influence of money and parties in American courts. It is based on his dissertation that won the 2009 ASLH’s Cromwell Prize. He is co-author of amicus briefs on the history of presidential power, the Emoluments Clauses, the Appointments Clause, the First Amendment rights of elected judges, and the due process problems of elected judges in death penalty cases. He is currently working on two books on the history of executive power and prosecution in America. The first is tentatively titled “A Faithful President: The Founders v. the Unitary Executive,” questioning the textual and historical evidence for the theory of unchecked and unbalanced presidential power. This book draws on his articles “Vesting” (Stanford Law Review forthcoming 2022), “Removal of Context” (Yale Journal of Law & the Humanities 2022), a co-authored “Faithful Execution and Article II” (Harvard Law Review 2019 with Andrew Kent and Ethan Leib), “The Indecisions of 1789” (forthcoming Penn. Law Review), and “The Creation of the Department of Justice,” (Stanford Law Review 2014). The second book project is “The Rise of the Prosecutor Politicians: Race, War, and Mass Incarceration,” focusing on California Governor Earl Warren, his presidential running mate Thomas Dewey, the Kennedys, World War II and the Cold War, the war on crime, the growth of prosecutorial power, and its emergence as a stepping stone to electoral power for ambitious politicians in the mid-twentieth century.

7 thoughts on “The Indecision of 1789: Unitary Originalists’ Misuse of History (Part I).”

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