“The Indecisions of 1789”: Prakash’s Misreading of John Laurance and James Madison (Part IV)

John Laurance was another member who voted “yes,” “no,” “yes,” and thus falls in the pivotal group, which Prakash labeled “enigmatic.” Prakash erroneously claimed him as a presidentialist. Initially, Laurance’s speeches had been mixed when members who favored some kind of presidential removal were free to make mixed arguments. But by the decisive day when Madison’s proposal pushed members to take a side (June 22), Laurance clarified his position as a moderate congressionalist, with a only a limited degree of Article II power. He believed Congress had some power to limit presidential removal, but not the power to go so far as “good behaviour” tenure like judges. This view is consistent with the good-cause conditions in modern independent agencies

In a seeming concession, Prakash acknowledged that the House debate had not endorsed the unitary theory of “indefeasibility,” i.e., that Congress has no power to regulate presidential power. However, both Laurance and Madison indicate that the House rejected indefeasibility and favored Congress’s power to set conditions. In fact, just a week after this key debate over the Foreign Affairs department, Madison proposed a Comptroller protected from presidential removal in the Treasury bill.

Prakash’s discussion of John Laurance opened with this sentence: “In fact, the comments of other members of the enigmatic faction who spoke on June 22, 1789 suggest that, like Boudinot, they too endorsed the executive-power theory.” Prakash at 1053. And he concluded his discussion with this sentence: “Consequently, Laurance arguably voted for the final bill for the same reason Boudinot did: because it endorsed the executive power theory.” Id. at 1054. These conclusions do not fairly reflect the record. In a footnote, Prakash is more balanced: “Laurance’s comments are much more equivocal.”Id. at 1054 n.218.This description is more accurate, but it is buried in a footnote.

            The bottom line is that Laurance was more congressionalist than presidentialist, that Laurance did not give the “same reason” as the presidentialist Boudinot, and he is best described as a moderate congressionalist. His speeches are mixed, but his opening explanation for voting no on Madison’s second proposal on the pivotal day (June 22) was his clearest statement, and it was a statement of congressionalism. He also makes a confusing reference to “the constitutional power of the president,” a sign that he saw a limited degree of implied presidential powers. The records are fragmentary, so it is hard to know precisely what Laurance meant. The best reading of the speech was that Laurance was a moderate congressionalist, giving primary weight to congressional authority, with only secondary (and more limited) weight to an implied presidential power. Here is Laurance’s entire speech:

11 DHFFC p. 1034 (reprinting Congressional Register from June 22, 1789)

The notes of this speech are not exactly clear. The opacity of Laurance’s meaning is another cautionary note about relying on the notes of a debate in the 1780s, whether Convention notes, Ratifcation notes, or the notes from earlier Congresses, for solid evidence of meaning. Either Laurance was muddled, the reporter here was confused, or both. However, it is clear enough that Laurance was not giving the “same reason” as the presidentialist Boudinot. Boudinot, who spoke next, opened his speech with the opposite reason from Laurance’s opening: “Was against the motion [Madison’s second motion], because the constitution vested all executive power in the president.” Boudinot continued to say that the president could “remove, without limitation,” and he wanted “a legislative declaration, in order to prevent future convenience,” a legislative declaration of Article II’s implied removal powers, not like Laurance’s endorsement of the legislature’s “power to establish offices on what terms they pleased.” To Prakash’s credit, he did quote this explicitly congressionalist statement, but importantly, it was recorded as his opening statement, a clearer endorsement of a congressional perspective. It is also a mistake to suggest Laurance and Boudiot were “the same.” These two explanations were starkly different.

            It is true that Laurance endorsed both theories in the June debates. But his earlier speeches give context to his general endorsement of legislative power. On May 19, Laurance discussed a menu of options for congressional conditions: It was “the will of the legislature” to choose the “conditions upon which [an officer] shall enjoy the office,” including “good behaviour,” “unfitness and incapacity,” “causes of removal and make the president alone judge of the case,” as well as removal for any cause. See 10 DHFFC 733 (Laurance, May 19, 1789). Over the month of debates, Laurance apparently decided that “good behaviour” was appropriate only for judicial independence, but it would go too far for executive officers. One might assume that Laurance concluded that Article II implied a limited presidential removal power, and thus Prakash had a basis to suggest that Laurance partly endorsed the “executive-power” theory – but only partly. He might have agreed that Congress could not give the Senate a veto over removals of principal officers (the issue in Myers), but it is not accurate to put Laurance in the same category as other “presidentialists” and as a forerunner to unitary executive theory, when Laurance endorsed Congress’s power to set conditions like “incapacity,” similar to good cause. Given his confusing mix of both theories, Laurance is one of only a few representatives who could be described as enigmatic, but in the end, his speech on the pivotal day (June 22) is best described as moderately congressionalist, with such a limited view of presidential removal power that this article categorizes Laurance as a “less clear congressionalist.” One could make a case for Laurance in his own category, but it would be a stretch to categorize him as a presidentialist given his emphasis on voting “no” on Madison’s proposal for his stated reason of “legislative… power.”

            If Prakash wanted to claim Laurance as one of his presidentialist votes, he should have abandoned his claim that the House debate did not resolve the question of “defeasibility” or the power of Congress to regulate and set conditions on presidential power. He wrongly claimed that presidential “indefeasibility” vs. “abatability” was “never really contested.” Prakash at 1073-74. It was contested, and even if there was no vote on the issue, the number of “presidentialists” who opposed going as far as presidential indefeasibility show that the concept had been rejected.

Prakash conceded that the House was inconclusive and did not “decide” in favor of indefeasibility as part of his “Decision of 1789,” but he should have gone further to acknowledge that the House debates addressed whether Article II implied an unconditional removal power, and the members rejected it (just by adding up Laurance, the explicit congressionalists together with the senatorial and impeachment-only votes). Laurance was clear that Congress could regulate and impose conditions on removal.

Madison also proposed a “good behaviour” Comptroller a few days later, as I explained in this paper “The Indecisions of 1789.” See 11 DHFFC 1080-82 (June 30, 1789). He withdrew this proposal, but the debate confirmed that even Madison did not support presidential indefeasibility, and his colleagues generally confirmed that the earlier debate had left open Congress’s powers to regulate. Madison also endorsed congressional power to set conditions in Federalist No. 39:

“The tenure by which the judges are to hold their places, is, as it unquestionably ought to be, that of good behavior. The tenure of the ministerial offices generally, will be a subject of legal regulation, conformably to the reason of the case and the example of the State constitutions.”

Today the word “ministerial” has more of a connotation of inferior officers, but the Founding era commonly used “ministerial” for principal officers, even heads of departments. For example, Marbury v. Madison records “ministerial officer” used three times in reference to the Secretary of State. 5 U.S. at 138, 150. The English used the word “minister” for their highest executive offices. In Federalist No. 39, Madison was offering a dichotomy between Article III judges vs. “ministerial” offices, so it is more likely a comparison of the highest offices in each branch. Thus, it seems Madison included principal officers as under “legal regulation” of tenure. In 1789, Madison would clarify further in the direction of congressional power. On May 19, Madison stated at the beginning of the department debates: “[I]t is in the discretion of the legislature to say upon what terms the office shall be held, either during good behaviour, or during pleasure.” 10 DHFFC 722, 729-30 (May 19, 1789).          

In Federalist No. 77, Hamilton wrote: “The consent of [the Senate] would be necessary to displace as well as to appoint. A change of the Chief Magistrate, therefore, would not occasion so violent or so general a revolution in the officers of the government as might be expected, if he were the sole disposer of offices.” Thus, Hamilton, a well-known supporter of strong executive power, nevertheless had presumed the Senate would be co-equal with the President on “displacing” – that is, removing – officers.

If Prakash relied upon Laurance and Madison as part of a “Decision” in favor of presidential power, then he should concede that they also “decided” against the modern unitary position on indefeasiblity, the main conclusion in the Roberts Court’s Free Enterprise, Seila Law, and Collins decisions. Laurance was, at most, just a 17th vote out of 53 for some kind of implied removal power (albeit a thin one). However, if both Laurance and Madison explicitly embraced legislative conditions, how many of the other 15 members who Prakash counted as “presidential” rejected the Roberts Court theory of indefeasibility? If Prakash wanted to count Laurance in ways convenient for his preferred theory (even if Laurance’s vote still leaves him far short of a majority), he has to concede that Laurance was inconvenient for his preferred theory.

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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