The Unitary Executive: Presidential Power from Washington to Bush 9780300145380

Table of contents :
Contents
Acknowledgments
Part I. An Introduction to the Debate over the Unitary Executive
Part II. The Unitary Executive During the Early Years of the Republic, 1787–1837
Part III. The Unitary Executive During the Jacksonian Period, 1837–1861
Part IV. The Unitary Executive During the Civil War, 1861–1869
Part V. The Unitary Executive During the Gilded Age, 1869–1889
Part VI. The Unitary Executive During the Rise of the Administrative State, 1889–1945
Part VII. The Unitary Executive During the Modern Era, 1945–2007
Part VIII. Conclusion
Notes
Bibliographic Note
Index

Citation preview

The Unitary Executive

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STEVEN G. CALABRESI CHRISTOPHER S. YOO

The Unitary Executive PRESIDENTIAL POWER FROM WASHINGTON TO BUSH

Yale University Press New Haven & London

Copyright © 2008 by Yale University. All rights reserved. This book may not be reproduced, in whole or in part, including illustrations, in any form (beyond that copying permitted by Sections 107 and 108 of the U.S. Copyright Law and except by reviewers for the public press), without written permission from the publishers. Printed in the United States of America by Integrated Book Technology. Library of Congress Cataloging-in-Publication Data Calabresi, Steven G. The unitary executive : presidential power from Washington to Bush / Steven G. Calabresi and Christopher S. Yoo. p. cm. Includes bibliographical references and index. ISBN 978-0-300-12126-1 (cloth : alk. paper) 1. Executive power—United States—History. 2. Presidents—United States—History. 3. United States— Politics and government—History. I. Title Yoo, Christopher S. II. Title. KF5050.C35 2008 973.09'9—dc22 2007045594 A catalogue record for this book is available from the British Library. The paper in this book meets the guidelines for permanence and durability of the Committee on Production Guidelines for Book Longevity of the Council on Library Resources 10

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To Mimi, whose love and support make possible everything I do S.G.C. To Man Hyong and Sung Ja Yoo, who taught me what it means to be a scholar C.S.Y.

To repeat, Article II, Section 1, cl. 1, of the Constitution provides: “The executive Power shall be vested in a President of the United States.” As I described at the outset of this opinion, this does not mean some of the executive power, but all of the executive power. . . . It is not for us to determine, and we have never presumed to determine, how much of the purely executive powers of government must be within the full control of the President. The Constitution prescribes that they all are. — Scalia, J., dissenting in Morrison v. Olson, 487 U.S. 654, 705 (1988)

Contents

Acknowledgments xi Part I An Introduction to the Debate over the Unitary Executive The Oldest Debate in Constitutional Law and Why It Still Matters Today 3 The Modern Debate 10 Why Presidential Views of the Scope of Presidential Power Matter 22 The Preratification Origins of the Unitary Executive Debate and the Decision of 1789 30 Part II The Unitary Executive During the Early Years of the Republic, 1787–1837 1 George Washington 39 2 John Adams 58 3 Thomas Jefferson 64

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4 James Madison 77 5 James Monroe 83 6 John Quincy Adams 91 7 Andrew Jackson 95 Case Study 1. Jackson’s Battle with the Bank and the Removal of Treasury Secretary Duane 105 Part III The Unitary Executive During the Jacksonian Period, 1837–1861 8 Martin Van Buren 124 9 William Henry Harrison 130 10 John Tyler 133 11 James K. Polk

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12 Zachary Taylor 144 13 Millard Fillmore 148 14 Franklin Pierce 152 15 James Buchanan 157 Part IV The Unitary Executive During the Civil War, 1861–1869 16 Abraham Lincoln 165 17 Andrew Johnson 174 Case Study 2. The Tenure of Office Act and the Impeachment of Andrew Johnson 179 Part V The Unitary Executive During the Gilded Age, 1869–1889 18 Ulysses S. Grant 190 19 Rutherford B. Hayes 196 20 James A. Garfield 203 21 Chester A. Arthur 206 22 Grover Cleveland’s First Term 209

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Part VI The Unitary Executive During the Rise of the Administrative State, 1889–1945 23 Benjamin Harrison 219 24 Grover Cleveland’s Second Term 226 25 William McKinley 232 26 Theodore Roosevelt 238 27 William H. Taft

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28 Woodrow Wilson 253 29 Warren G. Harding 261 30 Calvin Coolidge 265 31 Herbert Hoover 273 32 Franklin Delano Roosevelt 278 Case Study 3. The Brownlow Committee and the Reorganization Act of 1939 291 Part VII The Unitary Executive During the Modern Era, 1945–2007 33 Harry S Truman 305 34 Dwight D. Eisenhower 318 35 John F. Kennedy 331 36 Lyndon B. Johnson 337 37 Richard M. Nixon

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38 Gerald R. Ford 356 39 Jimmy Carter 362 40 Ronald Reagan 374 41 George H. W. Bush 42 Bill Clinton

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Case Study 4. The Clinton Impeachment and the Fall of the Ethics in Government Act 400 43 George W. Bush 405

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Part VIII

Conclusion 417

Notes 433 Bibliographic Note 511 Index 517

Acknowledgments

Any project that has occupied two people for more than ten years will be one for which many debts will have been incurred. We both have our own long lists of people we wish to thank. Steven Calabresi is deeply grateful to Dean David Van Zandt of the Northwestern University School of Law and to the Searle Center at Northwestern University for grants that permitted him to work on this book on and off over a long period of time. Northwestern provided him with excellent library resources, research assistants, an opportunity to commence work on this project with Christopher Yoo when he was a law student at Northwestern, and the chance to work with two additional Northwestern law students, Laurence D. Nee and Anthony Colangelo, in the process of writing this book. Professor Calabresi would also like to thank Harvard Law School dean Elena Kagan for providing an office in which to work on the book during two semesters when he was in Boston. More broadly, Professor Calabresi’s interest in and understanding of the theory of the unitary executive has been deeply shaped over the years by his experience working in the Reagan administration under Attorney General Edwin Meese III and Kenneth Cribb Jr., assistant to the president for domestic affairs, by the many talented people who worked on the Reagan legal team, including Solicitor General Charles Fried, Assistant Attorneys General

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Richard Willard, Charles J. Cooper, and William Bradford Reynolds, and by other key members of the Reagan team, including Gary Lawson, Lee Liberman Otis, John Harrison, and John McGinnis. Professor Calabresi’s understanding of the unitary executive was also critically shaped during his clerkships for Justice Antonin Scalia, Judge Robert H. Bork, and Judge Ralph K. Winter. Among the colleagues at Northwestern and elsewhere to whom Professor Calabresi owes a great debt of gratitude are Professor Saikrishna Prakash at San Diego, Professor Michael Stokes Paulsen at the University of Minnesota, Professors Bruce Ackerman and Akhil Amar at Yale Law School, and Professors Martin Redish, James Lindgren, Jide Nzelibe, and Stephen Presser at Northwestern. An especially big debt is owed to Professor Thomas W. Merrill, formerly of Northwestern and now at Columbia Law School, for his friendly advocacy of Burkean constitutionalism. Christopher Yoo is deeply grateful to Justice Anthony M. Kennedy, Judge A. Raymond Randolph, Dean Kent Syverud and Dean Edward Rubin of the Vanderbilt Law School, and Dean Michael Fitts of the University of Pennsylvania Law School for their support and encouragement. In addition to the colleagues thanked by Professor Calabresi, he would like to thank his colleagues at Vanderbilt, in particular Mark Brandon and Paul Edelman, as well as Neal Devins, John Duffy, Jonathan Entin, Lou Fisher, Marty Flaherty, Michael Gerhardt, the Honorable Douglas Ginsburg and his seminar students at the University of Chicago Law School and George Mason University School of Law, Theodore Lowi, Liz Magill, Bill Marshall, Jerry Mashaw, Eric Mueller, and Peter Shane for their insights. He would also like to thank Bob Belton, Jim Blumstein, Lisa Bressman, Rebecca Brown, Tracey George, John Goldberg, Chris Guthrie, Jim Ely, Nancy King, Harold Koh, Tom McCoy, Beverly Moran, Richard Nagareda, Erin O’Hara, Bob Rasmussen, Randall Thomas, Bob Thompson, Jeff Schoenblum, Suzanna Sherry, Mike Vandenbergh, and Nick Zeppos for their support and encouragement. We owe a debt of gratitude to the members of the library staff of the Vanderbilt Law School for their tireless and unerringly cheerful assistance. We would also like to thank Christopher Rohrbacher, Ben Tisdell, Nicholas Stabile, and Leon Wolf for their expert research assistance. Finally, of course, our thanks to the editors at Yale University Press for their splendid help in bringing this book to publication. Earlier versions of portions of this book were published in the Case Western Reserve Law Review, vol. 47, pp. 1451–1561 (Summer 1997); Harvard Journal of Law and Public Policy, vol. 26, pp. 667–801 (Summer 2003); Notre Dame Law Review, vol. 80, pp. 1–109 (November 2004); Iowa Law

Acknowledgments

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Review, vol. 91, pp. 601–731 (January 2005); and Administrative and Regulatory Law News (Fall 2005), at 5–6, 13. On a more personal note, it goes without saying that this book could never have been written without the constant love and support of Professor Calabresi’s wife, Mimi, and his four wonderful children, Robert, James, Elizabeth, and Tyler. Professor Calabresi is also very grateful for the love and support of his parents, who encouraged him to become an academic, of his uncle Guido Calabresi, who has been a role model and mentor in every way, and of his parents-in-law, Victor and Mary Tyler, who provided unstinting moral support and encouragement. Professor Yoo would like to express his gratitude to his parents, Man Hyong and Sung Ja Yoo, his parents-in-law, Yuki Shibuya and the late Thomas Shibuya, his wife, Kris, and his children, Marshall and Brendan. Without their love and support, this book would not have been possible.

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An Introduction to the Debate over the Unitary Executive

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The Oldest Debate in Constitutional Law and Why It Still Matters Today

One of the oldest and most venerable debates in U.S. constitutional law concerns the scope of the president’s power to remove subordinates in the executive branch or to direct their actions. This debate over whether to have a unitary executive arose during the Philadelphia Convention that drafted the Constitution, and it flared into a huge public controversy in the so-called Decision of 1789 during the First Congress. Proponents of presidential power argued then and argue now that the Constitution gives and ought to give all of the executive power to one, and only one, person: the president of the United States. According to this view, the Constitution creates a unitary executive to ensure energetic enforcement of the law and to promote accountability by making it crystal clear who is to blame for maladministration. The Constitution’s creation of a unitary executive eliminates confl icts in law enforcement and regulatory policy by ensuring that all of the cabinet departments and agencies that make up the federal government will execute the law in a consistent manner and in accordance with the president’s wishes. As a matter of constitutional law, the theory of the unitary executive holds that the Vesting Clause of Article II, which provides that “the executive Power shall be vested in a President of the United States of America,” is a grant to the president of all of the executive power, which includes the power to remove and direct all lower-level

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Introduction to the Unitary Executive Debate

executive officials. The president is thus not only the commander in chief of the military, but also the law enforcement officer in chief of the federal government. The president’s powers go beyond those specifically enumerated in Article II, Sections 2 and 3, and include at least some implied, residual executive powers, like the removal power, as well. This book shows that all of our nation’s presidents have believed in the theory of the unitary executive. Big fights about whether the Constitution grants the president the removal power have erupted frequently, but each time the president in power has claimed that the Constitution gives the president power to remove and direct subordinates in the executive branch. And each time the president has prevailed, and Congress has backed down. The Constitution gives presidents the power to control their subordinates by vesting all of the executive power in one, and only one, person: the president of the United States. All subordinate nonlegislative and nonjudicial officials exercise executive power, and they do so only by implicit or explicit delegation from the president. They are thus all subject to the president’s powers of direction and control. The truth of this observation has been acknowledged not only by our greatest presidents, but also by their least distinguished brethren. We show here that all forty-three presidents have consistently adhered to a practice of construing the Constitution as creating a unitary executive and giving them the removal power over the past 218 years. Under this practice, congressional efforts to insulate executive branch subordinates from presidential control by creating independent agencies and counsels are in essence unconstitutional. Why should such a consistent presidential practice matter? Because a foundational principle of law is that to some degree what the law is on the books is determined by what it actually is in practice. The presidential interpretation of Article II as a grant to the president of the removal power and the power to direct executive branch subordinates is an interpretation that is long settled and followed in the executive branch. Congress has from time to time tried to unsettle this interpretation, but our book demonstrates that Congress’s efforts in this regard have always failed. That does not mean Congress will not try again in the future to insulate subordinate executive officials from presidential powers of command and control. It does mean that Congress’s efforts in this direction should and will, in our judgment, fail. A decade ago, during the Monica Lewinsky imbroglio, the importance of the unitary executive debate was obvious. Today, in contrast, with the independent counsel law dead and gone, it is easy to dismiss the debate over the removal power as being of little consequence. Looking at this issue historically, however, we think it is striking that at least four presidencies have

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been consumed and nearly ruined by controversies over the removal power. For this reason, we offer case studies in this book on four substantial contests between presidents and Congresses over the removal power. Our fi rst case study is of Andrew Jackson, who was actually censured by the Senate in the 1830s for his removal of Treasury Secretary William Duane during the controversy that led to the abolition of the second Bank of the United States. Jackson took the debate over his removal of Duane to the people, and he ultimately succeeded in having his censure expunged from the records of the Senate, thereby saving his presidency and his historical reputation. Debate about the scope of the president’s removal power was thus absolutely central to the success of Andrew Jackson’s transformative presidency. Jackson’s experience was not idiosyncratic. Thirty years later, in the 1860s, President Andrew Johnson was impeached by the House of Representatives for removing Secretary of War Edwin Stanton in violation of the Tenure of Office Act, a statute that purported to require senatorial consent for removals to be effective. Here again, Johnson’s acquittal by one vote in the Senate saved his presidency and to some degree his historical reputation. Once again, debate about the scope of the removal power was absolutely central to the success or failure of a presidency and to the discrediting of impeachment as a way of reining presidents in. The twentieth century also offers examples of presidencies that nearly foundered on the shoals of a debate about the scope of the removal power. In the 1930s, for example, Franklin Delano Roosevelt put the full weight of his presidency behind the report of the Brownlow Commission, which called for the abolition of the independent agencies within the federal government. The failure of FDR’s proposal to reorganize the executive branch, together with the controversy surrounding his court-packing plan, were devastating blows to his otherwise highly successful presidency. FDR only fully recovered from these two debacles with the advent of World War II, as public attention turned away from domestic affairs and toward foreign policy. Again, a debate over the removal power badly damaged the popularity of one of our greatest presidents. In the 1980s and 1990s, Presidents Ronald Reagan, George H. W. Bush, and Bill Clinton were all plagued by independent counsel investigations, most notably those led by Lawrence Walsh and Ken Starr, both of whom could only be removed for cause. For these three presidents, too, debates about the actions of an essentially unremovable subordinate nearly ruined their presidencies and their historical reputations, and the debates culminated in the impeachment of President Clinton. In the wake of the Clinton impeachment,

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Introduction to the Unitary Executive Debate

the independent counsel law was allowed to sunset out of existence in 1999, much as the Tenure of Office Act had been repealed in 1887 some twenty years after its initial adoption. Debates about the scope of the removal power proved absolutely central to the success of all three presidents. The fact of the matter is that the debates over the removal power were of central importance to at least the six presidencies mentioned above. Other presidents, including Grover Cleveland and George W. Bush, had major battles with Congress over the removal power. The issue of the scope of the president’s removal power may be dormant now that the independent counsel law has lapsed, but an issue that has come up so regularly throughout our nation’s history—from the congressional debate during the First Congress over the president’s power to remove cabinet secretaries to the debate over removal of officials in the Department of Homeland Security in 2002 and the removal of U.S. attorneys in 2006—is an issue that will assuredly come up again. The removal power debate is, if you will, a fault line between the tectonic plates represented by the presidency and Congress. Additional friction along this fault line in the future is all but guaranteed. Another reason the removal power debate warrants book-length treatment is because, even with the repeal of the independent counsel law, there are still some important independent agencies and entities in the government, including the Federal Reserve Board, the Federal Communications Commission, the Securities and Exchange Commission, and the Federal Trade Commission. While presidents can and usually do succeed in dominating these agencies even without having the power to remove their officials, it is surely of more than academic interest whether incoming presidents can legally fi re holdover governors of the Federal Reserve Board or commissioners of the FCC, SEC, or FTC and to what extent presidents can determine the policies pursued by these agencies. These entities exercise a great deal of delegated power, and it really matters in the real world how much presidents can control and be held accountable for the decisions of the independent agencies. For example, many a president has tried to hide behind the chairman of his Federal Reserve Board and imply that the president is largely without power to affect monetary policy. We find this lack of accountability unfortunate and hope that our book will prevent future presidents from being able to hide in that way. But most important of all, we think the debate over the removal power warrants our book-length treatment because, as Gerald Frug has pointed out in his pathbreaking article on civil service reform, one of the biggest issues of our time is how to establish better control over big, unresponsive government bureaucracies.1 Ever since the successes of the New Deal and

The Oldest Debate and Why It Still Matters Today

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the Great Society, our government workforce has expanded enormously. One constant complaint has been about the alleged incompetence of government bureaucrats. 2 It is not uncommon for top government policymakers to have to deal even with cabinet secretaries who perform poorly on the job. The removal power debate directly concerns whether policymaking subordinates and even civil service subordinates of the president can be fi red because of a policy disagreement or for incompetence without a full trial at law. We believe this is not a liberal or a conservative issue, but rather one of good government. Presidents need the power to fi re subordinates when they disagree with them on policy grounds or when they are incompetent, and this book shows that, contrary to popular myth, presidents did have that authority until such 1970s Supreme Court opinions as Arnett v. Kennedy. 3 Presidents cannot, of course, fi re subordinates for unconstitutional reasons, such as race or religion, or for whistle-blowing activities. But presidential fi ring of executive branch subordinates because of policy disagreements or incompetence ought to be much easier than it is in many cases today. Broader presidential removal power would not, contrary to what one might fear, lead to a reemergence of the spoils system for filling federal executive offices that dominated the nineteenth century. Beginning with the Pendleton Act of 1883, the key move in abolishing the spoils system was the institution of merit-based exams as a requirement for hiring new members of the civil service. We fully support such merit-based hiring criteria and note that presidents have little incentive to fi re carryover civil servants if presidents are unable to fi ll those jobs with dedicated loyalists from their own presidential campaigns. That is why the institution of merit-based hiring beginning in 1883 ended the spoils system even though broad limits on presidential power to remove civil servants did not emerge until the 1970s. Another reason, then, why the removal debate is important is that if presidential removal power is extended from policymaking jobs to civil service jobs, it will make the federal bureaucracy more efficient and effective. As Frug claims, this may be one of the most important issues of our time, given the significant role that big, unresponsive government bureaucracies play in modern life.4 Clearly the removal power is only one among many factors that affect presidential control over executive branch officials. Presidential popularity, support in Congress, and skill in picking initial appointees all affect the degree to which presidents are able to command the loyalty of their initial subordinates. Moreover, the removal power was not used very often during the Reagan and Clinton years. At times, it even seemed that presidential

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appointees in independent agencies were more committed to the administration’s policy program than were the president’s own cabinet secretaries. While it is certainly true that presidential control over the executive branch is a complex phenomenon, this book seeks to show that it would be a great mistake to underestimate the importance of the removal power. Like the veto power or the war power, the removal power does not need to be exercised often to be effective. An early fi ring or two and a conviction that the president is willing to fi re again are all that is needed for the removal power to serve as an effective restraint on insubordinate employees. The removal power, like the power to issue binding orders to executive branch subordinates, is a potentially powerful tool of executive branch unitariness. The removal power is probably most formidable when the president’s party also controls a majority in the Senate. Without such a majority, presidential removals can become politically costly if presidents who fi re subordinates must endure hostile senatorial scrutiny of their replacements. Concerns of this kind may well explain why President Clinton retained Janet Reno as his attorney general for so long, even though press reports suggested that he had wanted to replace her for quite some time. Similar reasons may explain President George W. Bush’s retention of Attorney General Alberto Gonzales until his resignation in September 2007. Thus, observers accustomed to the period between 1969 and 2003, during which opposing parties tended to control the White House and the Senate, may well underestimate the importance of the removal power. It is a potent weapon at all times, and undoubtedly even more so when the executive and legislative branches of government are not divided. In developing our argument that presidents have always appreciated the vital importance of the removal power, we intend to set the stage for several legal claims that presidents may want to make in resisting congressional efforts to curtail either the removal power or the parallel presidential power to issue binding orders to executive branch subordinates. First, as we explain in greater depth in the remaining sections of this introductory part of the book, we believe that presidential nonacquiescence to congressional claims of power to create independent entities in the executive branch renders congressional historical practice irrelevant as a guidepost to constitutional interpretation. 5 Thus, the Supreme Court should decide removal cases in future litigation with reference to the text and structure of the Constitution and the executive branch practice, because the congressional practice under the Constitution has never been accepted by the president. We believe this clearly means the Supreme Court should recognize what we have described as a strongly unitary executive.

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Second, we believe that President George W. Bush and all future presidents should recognize the existence of a strong, internal, executive branch precedent, established over the entire history of our republic, whereby all forty-three presidents have always resisted serious incursions on the principle of the unitary executive. For this reason, President Clinton was right to let the independent counsel law expire without his support in June 1999, and President George W. Bush was right to insist on broad removal power over the newly created Department of Homeland Security. Future presidents should veto statutes presented to them that infringe upon the unitariness of the executive, and they should enforce such statutes as are already on the books with the greatest circumspection. Finally, we believe President Bush and his successors should continue to challenge unconstitutional limits on the removal power in litigation in federal court, notwithstanding judicial decisions we discuss below, like Morrison v. Olson 6 and Humphrey’s Executor,7 that are inconsistent with the unitary executive. In so doing, they will be keeping faith with their many predecessors who never let temporary defeats over matters like the Tenure of Office Act or the independent counsel statute deflect them from the longterm project of protecting the vital powers of the presidential office.

The Modern Debate

The debate over the unitary executive is simultaneously one of our oldest, most venerable constitutional debates and one of our most modern. Ratification of the Constitution and the Decision of 1789 did not end the controversy over the unitary executive and the president’s ability to control the actions of his subordinates in the executive branch. Disputes over whether Congress could limit the president’s removal power continued to arise, often intertwined with the biggest and most controversial political battles of the day. The issue arose with increasing frequency throughout the twentieth century, as the federal bureaucracy ballooned in size and presidents from Theodore Roosevelt on emerged as leading policymakers in their own right and as the nation’s dominant political leaders. The controversy has been stoked by Congress’s efforts since 1935 to establish agencies, such as the Securities and Exchange Commission and the Federal Reserve Board, whose members are supposedly removable only “for cause” rather than at will. But the most significant modern fight about the removal power and the unitary executive centered on Congress’s effort after 1978 to use independent counsels or prosecutors to investigate allegations of serious wrongdoing by senior executive branch officials outside presidential and Justice Department control. Congress fi rst institutionalized the use of independent

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counsels in the aftermath of Watergate by enacting the Ethics in Government Act of 1978,1 which provided for court-appointed independent counsels whom the attorney general could only remove “for good cause.”2 The EIGA led to the appointment of more than twenty independent counsels to investigate high-level executive branch wrongdoing between 1978 and 1999, including most spectacularly the Kenneth Starr investigation of President Bill Clinton, as well as the Lawrence Walsh probe into the role of President Ronald Reagan and Vice President George H. W. Bush in the Iran-Contra scandal. Each case gave rise to complaints that the investigations were politically motivated. 3 The Reagan, Bush, and Clinton administrations all came to think the independent counsel law was both unconstitutional and unwise, even though the Supreme Court had upheld its constitutionality in Morrison v. Olson,4 over the lone dissent of Justice Scalia. 5 The Starr investigation of President Clinton provides an excellent example of the types of disputes that were engendered by the EIGA. Starr’s referral of charges leading to the impeachment of President Clinton was the culmination of a multiyear investigation that had begun with allegations of wrongdoing by the president and his wife in the Whitewater affair and had mushroomed into a massive inquiry over dismissals in the White House Travel Office, Deputy White House Counsel Vince Foster’s apparent suicide, then-Governor Clinton’s alleged misuse of Arkansas State Troopers, and President Clinton’s alleged perjury and obstruction of justice in a sexual harassment lawsuit brought by Paula Jones, which then came before a federal grand jury. Starr’s investigation ultimately led to Clinton’s impeachment by the House of Representatives and his subsequent acquittal after a full trial before the Senate. Following this spectacle, the independent counsel law under which Starr had been appointed and had made his impeachment referral was allowed to sunset out of existence. Democrats and Republicans alike came to agree that the law was both unconstitutional and unwise. Indeed, the eventual bipartisan consensus against the use of independent counsels underscores the extent to which the presidential support for the unitary executive is less a reflection of partisan politics, as some have claimed, and more the result of fundamental questions about the allocation of power within the federal government. Even with the sunsetting of the EIGA, controversies about the unitary executive and the scope of the president’s removal power have continued to arise during the presidency of George W. Bush. Bush renewed claims to a presidential power of removal during the fall of 2002, when he insisted that presidents have unlimited power to remove all employees, even those who were not policymakers, in the newly created Department of Homeland

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Introduction to the Unitary Executive Debate

Security. The removal issue again attracted headlines in 2007 after Bush removed several U.S. attorneys for their failure to execute the law in the manner that Bush thought it should be executed. Disputes over presidential power to control executive branch subordinates in the past twenty-five years have not been limited to fights over the removal power; they have also arisen with respect to other ways in which presidents have attempted to control the execution of the law by their subordinates. One such area of controversy is Congress’s effort to retain control over law execution by means of something called the legislative veto. Under the traditional understanding of the division between legislative and executive power, once Congress enacts a statute, it is up to the executive branch to implement it. A legislature that is unhappy with the manner in which a statute is being executed is, of course, free to amend the statute. Like any other legislation, any such amendment must go through the same process mandated by the Constitution. At times, Congress has included language in statutes purporting to allow two houses of Congress, one house of Congress, a committee of Congress, or on one occasion even a single member of Congress to review and overturn the manner in which the executive branch is implementing a particular statute. Because this so-called legislative veto does not always require approval of both houses of Congress and never requires presentment to the president for signature, a long line of presidents stretching back to Woodrow Wilson challenged the legislative veto as an impermissible legislative interference with executive power. In fact, in 1983 the Supreme Court specifically relied on these presidents’ consistent objections to this interference with their power over the execution of the law when declaring the legislative veto unconstitutional in INS v. Chadha.6 Despite the Supreme Court’s condemnation of the practice, Congress has continued to include legislative vetoes in the legislation that it approves.7 Another area where there has been lots of controversy has been the growing use of White House institutions such as the Office of Management and Budget to gain presidential control over regulatory policy. Although again the Reagan administration is usually given the credit for OMB review of regulations, such review grew out of a practice of OMB review initiated by Lyndon Johnson, expanded by Richard Nixon, Gerald Ford, and Jimmy Carter, and subsequently retained and extended by George H. W. Bush, Bill Clinton, and George W. Bush. Review of regulations by OMB was justified because of the simple point that regulatory programs can have budgetary impacts that are just as important as direct federal spending. The Reagan era OMB initiative thus required all agencies to submit to OMB a draft regulatory program listing all significant regulatory programs planned for

The Modern Debate

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the upcoming year. The process of submitting regulatory budgets became an important means through which presidents can ensure that federal law is executed in a way that is both coherent across all of the various agencies that make up the federal government and consistent with the president’s wishes. Again, despite claims that OMB review has partisan overtones, the fact that this program was initiated by Democrat Lyndon Johnson and was retained and expanded by subsequent presidents from both parties undercuts any suggestion that OMB review of regulations reflects an ideological slant in either direction. Instead, it is more properly regarded as a reflection of the president’s duty and authority to oversee the execution of the law. The Reagan administration’s very open and public embrace of the theory of the unitary executive in the 1980s led to several high-profi le judicial decisions in addition to the decisions in Morrison v. Olson and INS v. Chadha.8 At about the same time, former Reagan attorney general Edwin Meese III famously suggested in speeches that independent counsels and agencies were unconstitutional. Interest in the unitary executive continued to grow during the 1990s because of additional Supreme Court decisions on executive power9 and because of the Clinton administration’s continuation of the Reagan-Bush policy in favor of centralized presidential control of all executive functions, especially White House review of all proposed agency regulations.10 Interest in the theory of the unitary executive even led senators to ask George W. Bush’s Supreme Court nominee Samuel Alito repeatedly about his views on the subject during his confi rmation hearing before the Judiciary Committee.11 The persistence and the prominence of these fights over presidential power of removal and power to control subordinates attest to the importance of this issue and to the likelihood that it will recur in the future.

The Scholarly Debate over the Unitary Executive The litigation and speeches during the Reagan administration gave rise to a vigorous academic debate among law professors over whether the Constitution created a unitary executive of the kind that renders independent counsels and independent agencies unconstitutional. Up to now, the scholarly commentary has centered on the Constitution’s text, ratification history, and structure to see if the framers rejected the system of “executive by committee” used by the Articles of Confederation and many early state constitutions. Other scholars have offered normative defenses of the unitary executive, arguing that vesting all executive authority in a single person is vital if we are to have vigor and accountability in the execution of federal law.12

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Introduction to the Unitary Executive Debate

Unfortunately, our nation’s historical tradition and actual practice with respect to the unitary executive have received relatively little attention. To the extent that the published literature to date has analyzed the historical practices with respect to the unitary executive, it has focused primarily on the practices immediately after the founding and has paid little attention to subsequent historical practices.13 Sadly, prior scholarship has stopped short of providing a comprehensive historical analysis of executive branch practices. The few analyses that explore the history beyond the earliest years of our Republic typically either examine only a few historical episodes, limit their consideration to only one aspect of the unitary executive in isolation, or simply offer a superficial sketch of the history before somewhat conclusorily suggesting that, regardless of the underlying merits, arguments in favor of the unitary executive have been foreclosed by the sweep of more than two centuries of constitutional history.14 Usually, advocates of this position point to the fact that independent agencies like the Interstate Commerce Commission date back to the 1880s, as do federal civil service laws. Other commentators, drawing on Bruce Ackerman’s claim that the New Deal represented a “constitutional moment,”15 have made the more limited claim that nonunitariness has only been an established practice since the Supreme Court’s 1935 decision in Humphrey’s Executor v. United States.16 Some of those who offer arguments from practice have candidly acknowledged the insufficiency of the current literature and have recognized the need for a fuller assessment of the historical record of presidential control over the execution of the law.17 This book fi lls the void in the literature on executive branch practice by undertaking a comprehensive historical chronicle of the struggles between the president and Congress over control of the execution of federal law, beginning with the presidency of George Washington in 1789 and concluding with the presidency of George W. Bush through mid-2007. Our historical survey seeks to trace the development over time of all three mechanisms essential to the classic theory of the unitary executive. These include the president’s power of removal, the president’s power to direct subordinate executive officials, and the president’s power to nullify or veto subordinate executive officials’ exercise of discretionary executive power.18 We focus the bulk of our attention on the removal power, since historically that is the issue that has received the most attention. We start from the premise, presented and defended in Steven Calabresi’s prior writings, that the framers set up a strongly unitary executive and that they meant to give, and did give, the president both the power to remove any policymaking subordinate official in the executive branch and the power to

The Modern Debate

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direct the actions of executive branch subordinates exercising the executive power.19 Building on that premise, we consider the unitary executive debate from the perspective of common law constitutionalism that we believe is implicit in much antiunitarian scholarship of the past twenty years. Inspired by Edmund Burke’s belief that existing legal traditions reflect the accumulated wisdom of many generations, 20 common law constitutionalists reject grand theory in favor of an evolutionary approach to constitutional interpretation that gives considerable weight to the accretion of decisions by the courts and the political branches over time. They conclude that even if the text of the Constitution, as originally understood, creates a unitary executive, the custom, tradition, and practice of more than two centuries may nonetheless amount to a presidential acquiescence in the existence of a congressional power to create independent entities or a headless fourth branch of government. In assessing the historical record, we apply the same methodology followed by the Supreme Court in such landmark decisions as INS v. Chadha, 21 the Pocket Veto Case, 22 United States v. Midwest Oil Co., 23 and a number of other separation-of-powers disputes. 24 In these cases, the Court asks whether there is a longstanding tradition in which all three branches have acquiesced that is sufficient to trump the constitutional text and the original design. Because we are not Burkean common law constitutionalists ourselves, we do not deem it necessary to prove that there is a two-century-old three-branch consensus on these matters. Instead, consistent with the test laid out in Justice Frankfurter’s concurrence in the Steel Seizure Case, we ask whether presidents have acquiesced in a derogation of their power in a sufficiently systematic, unbroken, and unquestioned manner to make such a derogation a part of the structure of our government. 25 Absent such acquiescence, history and practice do not dispose of the issue, and the underlying constitutional question must be resolved on its textual, originalist, and normative merits or with reference to the executive branch practice alone. It is obviously not possible to determine whether there has been presidential acquiescence in the creation of independent entities solely by examining the fabric of the statutes that Congress has passed. The constitutional inquiry framed by the Supreme Court instead requires a review of past presidential practices, traditions, and customs to determine the extent to which our chief executives have acquiesced in any derogations from the unitary executive. We thus reject approaches like the one taken by Justice Brandeis in his dissent in Myers v. United States that seek to determine the scope of presidential power by looking solely at congressional views embodied in a spider’s web of statutory enactments. 26 Instead, we follow the approach that

16

Introduction to the Unitary Executive Debate

the Court followed in Chadha, which noted that the fact that presidents dating back to Woodrow Wilson had consistently questioned whether the constitutionality of the legislative veto was sufficient to preclude regarding the issue as being settled by history. We believe this book thoroughly establishes this more limited point about the customs, practices, and traditions of the American people with respect to presidential control over the executive branch throughout the history of our Republic. The other branches have vacillated over whether to recognize presidential claims of power to remove and direct subordinates. Sometimes Congress and the Supreme Court have acknowledged the power, and sometimes they have denied it. But the tradition within the executive branch has consistently been unitarian. We show that every single one of our presidents has believed in the classic vision of the unitary executive to at least some degree and defended it from congressional incursions as best he could. We argue that there is thus an unbroken, executive branch practice of construing Article II of the Constitution as giving the president power to control the execution of the laws through removals, directions, or nullifications. We further argue that no president has acquiesced in a congressional power to create independent agencies, and we show that even the ICC did not actually become statutorily independent until the Supreme Court’s 1935 decision in Humphrey’s Executor, a decision that has been challenged by every president since Franklin Roosevelt. We also show that broad limits on presidential power to remove nonpolicymaking civil servants in the executive branch date back only to the 1970s, not to the 1880s, and that presidents have always retained the power to remove senior executive officials. We thus conclude that for more than two centuries presidents have vigorously guarded the powers the framers gave them, so that today no reasonable Burkean common law constitutionalist could conclude that a congressional easement has been established across the Executive Power Vesting Clause of Article II by the passage of time. Indeed, we would go further and argue that since 1789 a powerful tradition has grown up whereby presidents have consistently defended the prerogatives that the text of the Constitution originally gave them, and that public choice theory suggests they should have. It is vital to make clear that we do not claim that there is consensus among all three branches of government as to the president’s control of the removal power and of the powers to direct and nullify. Rather, we claim only that the executive branch’s consistent opposition to congressional incursions on the unitary executive has been sufficiently consistent and sustained to refute any suggestion of presidential acquiescence in derogations from the unitary executive.

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Indeed, we believe the consistency of the historical record is rendered all the more striking when viewed in light of the way presidential power has ebbed and flowed over the course of our nation’s history. Obviously, the country has had strong presidents, such as Andrew Jackson, Abraham Lincoln, and the two Roosevelts, and we have had weak presidents like Franklin Pierce, James Buchanan, and Warren Harding. Strikingly, these well-known fluctuations in the relative power of Congress and the president have had almost no impact on the consistency with which presidents have asserted their sole power to control the execution of the laws. Indeed, history reveals that all presidents—strong and weak—have defended the unitary executive ever since 1789. The uniformity of the historical record thus contradicts the claims of scholars who have argued that the growth in presidential power justifies Congress’s placing of greater limits on presidential control over the execution of the law. 27 The consistency of the historical record also contradicts the claims of those who frame our constitutional history as consisting of a series of “constitutional moments” that implicitly ratified major changes in the allocation of power within the federal government. Indeed, leading scholars who are skeptical of the historical foundations of the unitary executive have nonetheless argued that the growth of the administrative state and the increase in agencies’ discretionary authority over policymaking strengthen the case for presidential control over the administration of the law. 28 The increase in presidential power has been counterbalanced by the expansion of innovative devices through which Congress can exert control over the executive branch, including oversight hearings, investigations, appropriations riders, insertion of directions in legislative history, case work, and the extraction of concessions during confi rmation hearings. 29 In short, a close scholarly examination of the history of our executive branch practice since 1789 reveals that presidents have consistently asserted their power to execute the laws since the earliest days of the Republic. If anything, far from supporting contentions that the practice of the past two centuries has preempted textualist, originalist, or normative arguments in defense of the unitary executive, the historical record confi rms the case in favor of a broad presidential power to control execution of the law. One concern that might be raised about our book relates to matters of historical method. There has been much writing recently by Martin Flaherty and others criticizing legal historians for writing what he entertainingly calls “History Lite”—a phenomenon that many lawyers also know as “law office history.”30 Flaherty has criticized the originalist historical work on the unitary executive on the grounds that it does not go deeply

18

Introduction to the Unitary Executive Debate

enough into the history of the late eighteenth century. We suspect that he may remain skeptical of whether we can do justice to more than two centuries of unbroken executive branch practice despite the efforts represented in this book. Our fi rst response to this criticism is to acknowledge that we have set ourselves a huge and perhaps impossible task. That being said, the key question about our book on executive branch practice is not whether it is sufficiently comprehensive, but whether it is more helpful than anything else now in print on the subject. A defi nitive work on executive branch removal practices from 1789 to 2007 could probably fill several large volumes, 31 and we have not attempted to produce a work so massive. But we do feel that our book is substantially more extensive than anything else now available on presidential practice with respect to the removal power. We are confident that it will make a useful contribution to the removal power debate. We wish to be clear at the outset that our key goal in this book is not to offer groundbreaking historical research, although we have identified sources that no prior scholar has considered and have analyzed other sources to an unprecedented depth. We do not claim to be professional historians, and although we have canvassed many original sources, we have relied heavily on secondary works that discuss each of the presidencies or historical epochs we cover. The contribution we seek to make in this book is to gather in one place the entire set of presidential claims about the unitary executive debate that have been made since the beginning of our Republic. No one to our knowledge has done this as thoroughly as we are trying to do here, and it is not clear to us that anyone has even tried to do so since Chief Justice Taft wrote his long and well-researched 1926 opinion in Myers v. United States. 32 We believe it is vitally important for constitutional lawyers to have this information gathered in an updated form. We thus approach this historical research project as constitutional lawyers and not as legal historians. We are interested in history in this book, but only in the way that lawyers are interested in history. This has led to our particular selection of sources and has required that we skip somewhat quickly over vast periods of time. We consume history here for a specific purpose, and it is a much narrower purpose than the one that often drives historians. One thing our review of the past 218 years of executive branch practice has shown us is that on occasion presidents have asserted claims of inherent executive powers that far surpassed the powers of direction, nullification, and removal implicit in the classic theory of the unitary executive. Most recently, the administration of George W. Bush has explicitly invoked the

The Modern Debate

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theory of the unitary executive as the basis for asserting sweeping implied, inherent emergency powers in waging the War on Terrorism. The current administration is not the fi rst to advance such claims. The most sweeping assertion of inherent executive power was Abraham Lincoln’s claim of emergency powers during the spring of 1861, when there was a real danger that Maryland might secede from the Union, which would have left the nation’s capital city behind enemy lines. Under these circumstances, Lincoln concluded that it would be too dangerous to assemble Congress in Washington, and he took at least some actions in Congress’s absence that might ordinarily have required legislative approval. The other major precedent for a broad claim of emergency presidential power is Harry Truman’s seizure of the nation’s steel mills during the Korean War to stop a strike and assure the supply of steel to American troops. This claim of power was resoundingly rejected by a six-to-three majority of the Supreme Court in the Steel Seizure case, one of the most important separation-of-powers opinions ever issued. 33 The need for some limited executive authority to act in times of exigency despite the absence of statutory authorization is colorfully illustrated by the case of In re Neagle, in which the Supreme Court upheld the attorney general’s decision to order a U.S. marshal to protect Supreme Court Justice Stephen Field from a disgruntled litigant who was stalking him as he was riding circuit. The Court held that the president had inherent executive power to take this step despite the absence of any statutory authorization for such protection. 34 Claims of inherent executive power were also advanced as part of Theodore Roosevelt’s stewardship theory of the presidency, which asserted that the president bore the duty to do anything that the nation demanded, even if that meant acting without statutory authorization. Important claims of broad, inherent executive power were also advanced by Presidents Franklin Roosevelt, Lyndon Johnson, and Richard Nixon. The conclusion we draw with respect to these broader claims of inherent executive power in times of emergency is very different from the one we draw with respect to claims of an inherent presidential power to control the execution of the laws by subordinates. Despite the current administration’s attempt to tie claims of emergency presidential powers to the theory of the unitary executive, the inherent executive power that it seeks to assert has little to do with the framers’ decision to vest the executive power in a single person rather than a plural body or with ensuring that the president possesses sufficient power to exercise supervisory authority over the entire executive branch. As a result, the Bush administration’s claims of broad, inherent executive power stand on a footing in terms of the Constitution’s text

20

Introduction to the Unitary Executive Debate

and ratification history that is very different from the basis of the theory of the unitary executive that grew out of the frustrations spawned by the ineffective plural executives of the early state constitutions as well as the “executive by committee” established by the Articles of Confederation. Furthermore, our review of more than two centuries of presidential practice reveals that the historical support for a sustained tradition of presidential assertion of implied, inherent executive power during times of national emergency is modest, in stark contrast to the strong support for a tradition of inherent presidential power of direction, nullification, and removal. The historical record across all forty-three presidential administrations shows that claims of broad, inherent, implied powers were rare and were generally either rejected at the time or remained outliers that were abandoned by subsequent administrations. The historical record thus supports the classic vision of the unitary executive, but not necessarily every aspect of the more expansive vision of the unitary executive advanced by the current administration. The classic theory of the unitary executive insists only that whatever executive power might exist must be exercised subject to presidential supervision and control. So long as the president possesses the power to remove and the power to direct all subordinates in their exercise of executive power, the classic theory of the unitary executive is quite agnostic on the question of whether the president possesses implied, inherent powers in foreign or domestic policy. Thus, acceptance of the classic theory of the unitary executive does not require resolution of the scholarly debate over whether the Article II Vesting Clause grants the president a residual foreign affairs power35 or war power. 36 Nor does it require acceptance or rejection of the more expansive claims of inherent executive emergency powers advanced by the current Bush administration. Indeed, we believe that President Truman did reach too far with his seizure of the steel mills in 1952 and that the Supreme Court was correct to reject his claims of inherent executive power. We argue that Youngstown was correctly decided and that foreign policy emergencies do not give presidents the power to deprive persons within the domestic United States (either aliens or citizens) of life, liberty, or property without a trial before an Article III judge. We would not say the president must always have a statute in order to act, as Justice Black said in his opinion for the Court in Youngstown; we prefer instead the formulation in Justice Frankfurter’s concurrence, which acknowledges the possibility of some degree of executive action in the absence of express legislative authorization.37 We generally reject broad claims of presidential power to deprive people of life, liberty, or property in the

The Modern Debate

21

absence of statutory authority. The classic vision of the unitary executive grew up as an argument that the president had a constitutional right to direct and fi re officials wielding executive authority. It had absolutely nothing to do with claims of implied, inherent presidential domestic and foreign policy power of the kind asserted by the current administration. The theory of the unitary executive has its roots, as we show in the fi nal section of this introductory part, in the double big bangs of American Independence in 1776 and the writing of the Constitution in 1787. The unitary executive was the occasion of the fi rst big debate over a constitutional issue in the First Congress in 1789. It has led to huge fights between the executive and legislative branches for 218 years. And it is of foundational significance today for policy reasons. The removal power debate is thus not only one of the oldest debates in American constitutional law. It is also one of the most modern and consequential. Understanding what has been the presidential understanding of the removal power is thus a subject of critical importance to constitutional law.

Why Presidential Views of the Scope of Presidential Power Matter

One important ground on which our book might be criticized is that it is entirely predictable that all forty-three presidents would favor a broad understanding of presidential power. According to this criticism, a survey of the practice since the founding should focus on the statutes enacted by Congress and not on presidential understandings of the scope of presidential power. The president, it might be charged, is inherently biased when it comes to questions about the scope of presidential power. The fi rst thing to say in rebuttal is that the same claims of bias can be raised against the alternative methodology of looking only at federal statutes, since it is Congress, of course, that writes and enacts those statutes. It is true that presidents can always veto federal statutes, but Congress can override those vetoes, and Congress can also bundle objectionable provisions creating independent entities into legislation that is so important the president simply has to sign it. Looking only at the fabric of federal statutes that have been enacted is just as biased in Congress’s favor as looking at presidential practice might be biased in the president’s favor. Because the fight over removal power is between Congress and the president, it must surely be the case that the views of both constitutional actors are relevant to the question of what the nation’s settled practice is.

22

Why Presidential Views Matter

23

Furthermore, we think it is essential that our readers understand that we undertake this project influenced by, and in the spirit of, the recent debate that has raged about the role all three branches of the federal government play in the interpretation and enforcement of the Constitution.1 Assertions of the power of the political branches to interpret the Constitution have a long and venerable lineage. Such claims are made, for example, in The Federalist Papers2 and have been reaffi rmed by Presidents Thomas Jefferson, Andrew Jackson, Abraham Lincoln, Franklin D. Roosevelt, and Ronald Reagan, among others. 3 Indeed, as Thomas Merrill has noted, the power of the political branches of government to interpret the Constitution has been endorsed by a veritable all-star list of constitutional scholars,4 and the list of commentators endorsing some form of coordinate construction has grown more impressive with each passing year. 5 Despite the distinguished heritage of coordinate construction of the Constitution by all three branches, also known as “departmentalism,” the suggestion that the Supreme Court may not have the last word on matters of constitutional interpretation seems at fi rst to be quite jarring to modern lawyers whose introduction to constitutional law began with Marbury’s ringing declaration that “it is emphatically the province and duty of the judicial department to say what the law is.”6 The declaration carries the implication that because the Constitution is the supreme law of the land, the judiciary must have the authority to interpret the Constitution. However, a close reading of Marbury reveals that Chief Justice Marshall’s opinion in this famous case never claimed that interpretation of the law was the exclusive province of the courts. On the contrary, Marshall reasoned that courts may construe the Constitution because “those who apply the rule to particular cases, must of necessity expound and interpret that rule.”7 Thus, scholars have universally acknowledged that although Marbury fi rmly established the judiciary’s right to interpret the law, it fell far short of making those interpretations binding on the other branches.8 Other commentators have also noted that notions of judicial supremacy are inconsistent with the coordinacy of the three branches of the federal government.9 We do not intend here to delve into all the many complex and nuanced issues that are raised by applying the principles of coordinate construction to all exercises of Article II presidential powers.10 For purposes of this book, it is sufficient for us to note that coordinate construction is especially appropriate when separation-of-powers matters are involved. The Supreme Court’s inconsistent resolution of separation-of-powers cases has led some commentators to question whether the judiciary is institutionally capable

24

Introduction to the Unitary Executive Debate

of resolving these issues.11 Moreover, the Supreme Court is an interested party in separation-of-powers disputes; permitting it to be the fi nal arbiter of separation-of-powers questions would contravene the jurisprudential rule against permitting parties from being judges in their own causes.12 Other commentators worry that giving one branch a monopoly on constitutional interpretation will stifle valuable interbranch dialogues.13 Therefore, whatever one’s conclusion in other areas of constitutional law, we regard the case for coordinate constitutional review as especially powerful in the separation-of-powers area. We think that in this area the concurrence of all three branches of the federal government on the proper allocation of a particular power is necessary before that matter may properly be regarded as settled.14 To elaborate further, we think that the case for departmental or coordinate review is arguably at its strongest when that power is being asserted defensively to protect presidential powers from encroachment by Congress and the courts.15 William Van Alstyne once noted that the narrowest and least controversial understanding of the power of judicial review announced in Marbury was its assertion as a defensive power when Congress sought unconstitutionally to alter the Supreme Court’s original jurisdiction.16 Similarly, here a more than two-century-old presidential tradition of defensive presidential review to protect presidential power against congressional encroachments seems especially defensible. This is particularly the case because substantial historical evidence suggests that the framers gave the president major constitutional powers (like the veto power) in part to enable and encourage him to defend the prerogatives of his office and with them the constitutionally mandated separation of powers. Accordingly, if one accepts any role for the policymaking branches in constitutional interpretation, and all but the most die-hard judicial supremacists do, then this seems like an especially easy context in which to recognize that a consistent presidential interpretation of the law execution power as including at least a power of removal is deserving of deference. Especially since Congress and the Supreme Court have reached inconsistent resolutions on this issue, it would seem that deference to the president’s consistent and vigorous interpretation of the scope of the removal power is appropriate. That said, not every presidential claim of executive power deserves to be given weight by all who believe in the legitimacy of three-branch construction of the Constitution. Some presidential assertions of power are extraordinary and are associated with unusual presidents or with unusual national crises that seemed to require an extraordinary response. President Theodore Roosevelt, for example, espoused a “stewardship” theory of

Why Presidential Views Matter

25

the presidency, which asserted that the chief executive possessed both the power and the duty to take whatever action would best serve the nation, without need for constitutional or statutory authorization. Roosevelt’s theory would ultimately prove to be a constitutional dead end, as subsequent presidents declined to embrace this sweeping vision of executive power. Similarly, President Harry Truman claimed a presidential power to seize steel mills in time of war, and he had some support in the actions of some of his predecessors for that claim of power. Once again, the claim of a power to seize private businesses to aid in the national defense was correctly rejected on the grounds that it did not have the deep lineage and history that claims of presidential removal power have. President Richard Nixon claimed a presidential power to impound congressionally appropriated funds, and he had some support in the actions of his predecessors for such a claim of power. This claim of presidential impoundment power was, however, also correctly rejected on the grounds that it did not have the deep lineage and history that claims of presidential removal power have. From the Decision of 1789 to the fight over the removal power in relation to the Department of Homeland Security, presidents have generally won fights about the removal power, whereas they have generally lost fights about inherent executive power to impound federal funds or to seize steel mills. We think this says something vital about our nation’s practice with respect to the removal power. All theories of constitutional interpretation must, in addition to defi ning the legal standard that is being applied, specify the amount of evidence needed to establish when that standard is met. The Supreme Court provided one possible evidentiary standard in United States v. Midwest Oil Co. when it suggested that a “long-continued practice, known to and acquiesced in by Congress, would raise a presumption that the [executive actions] had been made in pursuance of its consent or of a recognized administrative power of the Executive.”17 As Justice Frankfurter subsequently elaborated, “A systematic, unbroken, executive practice, long pursued to the knowledge of Congress and never before questioned, engaged in by the presidents who have also sworn to uphold the Constitution, making as it were such exercise of power part of the structure of our government, may be treated as a gloss on ‘executive power’ vested in the President by § 1 of Art. II.”18 Similar observations can be found in many other Supreme Court opinions.19 If such is the standard for evaluating congressional acquiescence to executive assertions of power, it logically follows that a converse standard should apply in evaluating presidential acquiescence to congressional assertions of power. Presidents should not be deemed to have acquiesced to

26

Introduction to the Unitary Executive Debate

a congressionally imposed limitation on their power unless “a systematic, unbroken, [congressional] practice” of limiting the president’s power existed that had been “long pursued to the knowledge of the [presidents] and never before questioned.” And because the burden of proof logically must lie upon the party asserting the existence of such a practice, the failure to prove the existence of such a continued, open, and unquestioning acquiescence on the part of the president would necessarily imply that the propriety of such a congressionally enacted limitation on the president’s power would have to be regarded as an unresolved question still subject to interpretation by all three branches. It is in this context that the Supreme Court’s statements in Chadha cited above are most relevant. In Chadha, the Court declined to regard the legislative veto as an established practice, because eleven of thirteen presidents from Woodrow Wilson to Ronald Reagan had objected to it. 20 The Court instead decided the constitutional issue on purely textual, structural, and normative grounds. The Frankfurter “gloss on the text” standard helps resolve several practical questions. First, Frankfurter’s test requires the existence of a “systematic, unbroken . . . practice.” This suggests that an occasional presidential failure to object to a particular infringement on the president’s authority should not be sufficient to constitute acquiescence for all time and on behalf of all future presidents in a particular constitutional construction. Transient political pressures or time constraints should not be allowed to determine major constitutional issues, and presidents should not be forced into wasting valuable time and political capital scrutinizing every piece of legislation for even the most minor incursions on Article II prerogatives. For example, the exigencies of World War II led Franklin Roosevelt to sign the Lend-Lease Act even though he believed that the legislative veto provision it contained was unconstitutional, choosing instead to record his constitutional objections in a presidential legal opinion.21 Such short-term political considerations are surely a weak basis for defi ning the scope of a major constitutional issue such as the separation of powers. Moreover, Frankfurter’s requirement that the practice be “long pursued” ensures that the important questions surrounding the proper allocation of the federal powers among the three branches is not determined by the weaknesses or idiosyncrasies of a handful of presidents. 22 Finally, Frankfurter’s requirement that the branch in question have full knowledge of the infringement in question guarantees that mere inattention will not be construed as active acquiescence. Under our approach, it is not sufficient to search for particular historical instances of derogations from the unitary executive. We ask also whether a longstanding and unbroken practice exists in which both Congress and the

Why Presidential Views Matter

27

presidents have acquiesced. Only if there has been presidential acquiescence in a departure from the unitary executive could such a practice justifiably be regarded as an established part of the structure of our government. With the removal power debate, we deal with a claim of presidential power that is as old as the Republic and that has been asserted to one degree or another by virtually every occupant of the presidential office. That kind of a defensive claim about the scope of presidential power does deserve the attention of those who believe in three-branch constitutional review. Accordingly, the theory that underlies such review further buttresses the relevance of the historical discussion that follows. Departmentalists think that all three branches of the federal government have the power and duty to interpret the Constitution. It is for this reason that we consider the practice of all forty-three presidents over the past 218 years relevant to the outcome of the debate over the unitary executive. We think that in establishing our practice under the Constitution we must look not only at what Congress says about presidential power but also at what presidents say about presidential power in their signing statements and veto messages, in Justice Department opinions and speeches, and in the briefs the president’s subordinates fi le in court. With this in mind, it bears noting that Congress’s views on the removal power fight have wavered over the years. In the Decision of 1789, Congress came down in favor of broad presidential removal power for almost all government offices. This pro-presidential power decision stood until the Tenure of Office Act was adopted during Andrew Johnson’s presidency. That statute remained in effect for some twenty years before it was itself repealed in 1887 at the insistence of President Grover Cleveland. In the wake of the repeal of the Tenure of Office Act, we claim, Congress did not again try in earnest to create independent entities in the executive branch until after the Supreme Court’s 1935 decision in Humphrey’s Executor. Since 1935, Congress has created some presidentially controlled agencies, such as the Environmental Protection Agency, and some independent agencies, such as the Social Security Administration. For more than two centuries, then, Congress has vacillated in the fight over the removal power. Congress has usually left the president broad removal power, but it has reserved the power sometimes to create independent entities. The Supreme Court has followed Congress in this meandering course, upholding broad presidential removal power in such cases as Myers v. United States, 23 Shurtleff v. United States, 24 Parsons v. United States, 25 and Bowsher v. Synar, 26 while ruling against presidential removal power in Humphrey’s Executor v. United States, 27 Wiener v. United States, 28 and Morrison v. Olson. 29

28

Introduction to the Unitary Executive Debate

If Congress and the Supreme Court have vacillated in the fight over the removal power, the executive branch has, in our judgment, remained consistent and steadfast. As this book shows, all forty-three presidents have insisted on the idea that the Constitution creates a strongly unitary executive and that the creation of independent entities is constitutionally problematic. Thus, the reason it is valid for this book to survey presidential views on the scope of presidential power is precisely because the other two branches have vacillated, while the forty-three presidents have not. We think there are three main coequal constitutional interpreters: Congress, the president, and the Supreme Court, and only one of those interpreters (the president) has adopted a consistent position on the fight over the removal power. That is our fi rst reason for thinking that presidential views about the scope of presidential power are highly relevant. Applying these principles, this book examines statements made by each president from George Washington through George W. Bush to determine whether our nation’s chief executives can fairly be said to have acquiesced in an antiunitarian vision of the executive branch. Given this aim, our project will primarily focus on statements made by the presidents themselves, including veto messages, signing statements, legislative proposals, and statements regarding previously enacted legislation. This is not to say that an analysis of other executive materials would not be appropriate. We also provide some discussion of the views expressed by senior executive branch officials, such as those embodied in the opinions of the attorneys general, administration testimony before Congress, and the arguments of solicitors general before the Supreme Court, although comprehensive analysis of statements of all subordinate executive officials would exceed the scope of this book. Positions taken by Congress and the judiciary are discussed only in passing, as is the eventual resolution of particular disputes. The key to the analysis is whether the positions taken by the presidents asserted the unitariness of the executive branch, not whether those assertions were opposed or were successful. The conclusion of our book is that, contrary to the misconceptions of many antiunitarians, no systematic, unbroken, longstanding practice exists of presidential acquiescence to congressionally imposed limitations on the president’s sole power to execute the laws and remove subordinate officials. On the contrary, the historical record shows that presidents almost always object or fight when Congress trespasses on their constitutional power to execute the laws free from legislative control. The few exceptions that do exist are neither significant enough nor sustained enough to constitute Frankfurterian acquiescence. Thus, it is clear that no reasonable Burkean common

Why Presidential Views Matter

29

law constitutionalist could conclude that history and practice resolve the unitary executive debate in Congress’s favor. That debate must be resolved, we believe, in the president’s favor, on textual, structural, originalist, and normative grounds. In the chapters that follow in parts II through VII, we look at all presidential statements and practices that suggest support for the unitary executive. Such statements and practices include all of the following: First, all statements or practices, including removals or the issuance of executive orders, suggesting that the president has the power to remove or direct all policymaking officers of the government at will. Second, all statements or practices suggesting that the Vesting Clause of Article II is a grant of power to the president and not a mere designation of the title of the office, as Justice Jackson famously claimed. 30 Third, all statements or practices suggesting that the president has certain implied, inherent executive powers, including at least the removal and direction powers. Fourth, all statements or practices suggesting that presidents have believed they are under a duty to supervise and control their subordinates in all exercises of the executive power, as is revealed by presidential efforts to inform themselves of, and to control, what all policymaking officers of the government are doing. And, fi fth and fi nally, all statements and practices suggesting that the Take Care Clause of Article II imposes a duty on the president to superintend, control, and ensure the faithful execution of the Constitution and laws. The ensuing chapters in parts II through VII delve into many details of the forty-three presidencies, but our quest is always for evidence of each president’s belief in and support for the theory of the unitary executive. We shall see that many presidents, including Lincoln, Theodore Roosevelt, and Truman in the Steel Seizure Case, have claimed inherent “emergency” presidential powers that go well beyond the removal power and the control of law execution power. We do not support or address at length in this book those broader claims of inherent presidential power to act in the absence of a statute in times of emergency. Our sole intention is to defend presidential power to superintend, control, and ensure the faithful execution of the laws through the power to remove and direct all policymaking subordinates in the executive branch.

The Preratification Origins of the Unitary Executive Debate and the Decision of 1789

Before proceeding to our chronicle of the past 218 years of practice under our Constitution, we wish briefly to summarize the historical events between American independence in 1776 and the Constitutional Convention in 1787 that gave rise to Article II in order to understand the construction that presidents from Washington to Bush have given to Article II over our entire history. Thus, we conclude this introductory part of our book by discussing the eleven years during which the structure of our government gestated as well as the key events in 1789 when Article II fi rst came to be construed as giving the president the removal power. The theory of the unitary executive is generally associated with the Reagan administration,1 but is in reality much older. Its origins can be traced back 220 years to the framers’ disdain for the weak executive branches created for the federal government by the Articles of Confederation and for the states by the post-1776 state constitutions written immediately after American independence. The history of an initial post-1776 preference for weak executives coupled with a Thermidorian post-1787 preference for strong executives has been eloquently recounted by Charles Thach and Gordon Wood. 2 The antipathy toward strong executive power in 1776 was obviously the result of the framers’ bad experiences with the despotism of King George III and the royal governors, as well as memories of the

30

The Preratification Origins of the Debate

31

tyranny of England’s Stuart kings. This experience with royal despotism led the framers of our earliest post-1776 state constitutions to embrace legislative supremacy as the touchstone of democracy and to ignore the separation of powers. The framers initially thought that a sovereign legislature could never pose a threat to liberty because, in the words of John Adams, “a democratical despotism is a contradiction in terms.”3 The despotic power wielded by the royal colonial governors also made the framers of these early state constitutions wary of granting all executive power to a single person. As a result, the post-1776 state constitutions limited executive power by completely subordinating it to the legislative branch. Although the details varied from state to state, governors were usually selected by the legislature, rather than by direct popular ballot, and only for a one-year term. Governors were also stripped of all vestiges of the royal prerogative, with the power to veto legislation eliminated entirely and the power to appoint and remove subordinate executive officials transferred to the legislature. The effect was to discard the separation of powers and instead to vest all power in a sovereign legislature. James Madison would later observe at the Constitutional Convention how these early state constitutions tended to “throw all power into the Legislative vortex” and that “the Executives of the States are in general little more than Cyphers; the legislatures omnipotent.”4 These post-1776 state constitutions further limited executive power by dividing it among more than one person. The majority of these state constitutions required governors to obtain the consent of a council of state chosen by the legislature before taking any major executive action. According to Jack Rakove, this effectively vested executive power “in a plural body of which the governor was only the leading member.”5 Some states, such as Pennsylvania and Vermont, dispensed with a chief executive altogether in favor of multimember executive councils. The thirteen newly independent states soon discovered that the term “democratical despotism” was not an oxymoron after all. Everywhere, state legislatures abused their absolute power and ran roughshod over civil liberties. The problem was ably summed up by James Madison, who concluded that the “vicious legislation” enacted by the states had called “into question the fundamental principle of republican Government, that the majority who rule in such Governments are the safest Guardians both of public Good and of private rights.” Part of the fault lay with the legislators’ pursuit of “ambition” and “personal interest” instead of the “public good.” But “a still more fatal if not more frequent cause” of unjust legislation “lies among the people themselves,” who were predisposed to a spirit of factionalism.6

32

Introduction to the Unitary Executive Debate

Thomas Jefferson similarly called vesting all power in the legislature “precisely the defi nition of despotic government. It will be no alleviation that these powers will be exercised by a plurality of hands, and not by a single one. 173 despots would surely be as oppressive as one.”7 Most of the criticism of state executives in the 1780s focused on the problems associated with unadulterated legislative supremacy and on the absence of a meaningful separation of powers, but complaints were heard as well about the problems associated with divided executive authority. Madison considered the executive branch established in Virginia to be “the worst part of a bad Constitution.” Not only did legislative control render the executive branch powerless to resist legislative incursions; the members of the executive branch were “too numerous and expensive, their organization vague & perplexed,” to be effective.8 Thach’s classic study of the nation’s early practices with respect to executive power concludes that one of the central lessons drawn from the experience under the state constitutions was “that executive energy and responsibility are inversely proportional to executive size.”9 It was thus no accident that later state constitutions, particularly the New York Constitution of 1777 and the Massachusetts Constitution of 1780, created a state chief executive who was more unitary and less dependent on the legislature than was the case in the state constitutions adopted immediately after independence. Indeed, the framers would cite the articles on executive power of the New York and Massachusetts state constitutions with approval during the Philadelphia Constitutional Convention in 1787. The experience with respect to executive power under the national government between 1776 and 1787, both before and after the establishment of the Articles of Confederation in 1781, followed a similar pattern. To be sure, the primary problem was not the relative weakness of the executive branch, but rather the powerlessness of the entire national government. The Continental Congress was in essence a gathering of ambassadors from sovereign states. It could establish general policies, but fi nancing and implementing those policies depended entirely on action by the legislatures of the constituent states. Still, the need to prosecute the Revolutionary War did require the national government to perform certain executive functions. In the beginning, these powers were initially exercised by the Continental Congress as a whole, which was initially reluctant to delegate its authority. Even after George Washington was named commander in chief, Congress would frequently undercut him and second-guess his decisions about how best to allocate his forces on the battlefield. The American experience with vesting executive power in a plural body proved just as problematic under the Articles

The Preratification Origins of the Debate

33

of Confederation as it had under the earliest state constitutions. As Thach notes, “It is common knowledge that this system failed, and failed lamentably,” and that lodging executive power in plural bodies rather than in a single executive led to “inefficiency and waste.”10 The Continental Congress experimented with a wide range of alternative arrangements, delegating executive power to congressional committees and a variety of external bodies. Eventually, the Continental Congress responded to these concerns by establishing a series of executive departments, each headed by a single person. While this was an improvement, the existence of multiple departments that were responsible only to Congress still left the United States with a plural rather than a unitary executive. Thus, by the time the framers gathered in Philadelphia on May 25, 1787, to revise the Articles of Confederation, the general antipathy toward executive power that dominated the post-1776 period immediately following independence had given way to a 1787 consensus in favor of an executive that was far more independent and energetic.11 Indeed, Madison listed the need “to write a proper energy in the Executive” as one of “the great objects” of the Constitutional Convention.12 In his view, the primary danger was not that the executive would be too strong, but rather that it would be too weak,13 although he was initially unsure whether the executive power “should be vested in one man assisted by a council or in a council of which the President shall be only primus inter pares.”14 John Adams and Thomas Jefferson similarly emphasized the importance of making the executive independent of the legislature.15 The issue of the unitariness of the executive branch fi rst arose in the Constitutional Convention on June 1, 1787, scarcely a week after the gathering had begun its work, when James Wilson moved that the executive consist of a single person. According to Madison’s notes, Wilson’s motion was based on his belief that “a single magistrate” would “giv[e] most energy dispatch and responsibility to the office,” while a plural executive, in contrast, would lead to “nothing but uncontrouled, continued & violent animosities” that would “interrupt the public administration” and poison politics at all levels. Edmund Randolph, who regarded unity in the executive “as the fœtus of monarchy,” opposed the motion and instead suggested that executive authority be divided among three officials. Elbridge Gerry and Roger Sherman shared Randolph’s concerns and suggested that the president be supplemented with an executive council. When asked whether his proposal was meant to include an executive council, Wilson responded in the negative, for the reason that such a council “oftener serves to cover, than prevent malpractices.” After debating the matter for three days, the

34

Introduction to the Unitary Executive Debate

Convention implicitly rejected both a tripartite executive and an executive council when it approved Wilson’s motion in favor of giving the new government of the United States a unitary executive by a vote of seven states to three.16 The idea of saddling the president with an executive council was revived in a proposal by Oliver Ellsworth on August 18, 1787, as well as a similar proposal submitted by Charles Pinckney and Gouverneur Morris three days later. Both proposals made clear that the executive councils they proposed creating would not constitute an independent repository of executive power, in Ellsworth’s case by indicating that the executive council would “advise but not conclude the President” and in Pinckney and Morris’s case by providing that the president “shall in all cases exercise his own judgment, and either Conform to such opinions or not as he may think proper.” The Convention did not vote on these proposals, but instead submitted them to the Committee of Detail. Although the draft submitted by the Committee of Detail on August 22 included a “privy council” of the type suggested by these proposals, the fi nal version reported on September 4 was a victory for the forces advocating a unitary executive. It abandoned any mention of an executive council whatsoever and instead simply provided that the president “may require the opinion in writing of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices.” On September 7, the Convention rejected two last attempts by George Mason to revive the idea of a council of state to advise and rein in the president of the United States.17 Madison summed up the debates to Jefferson as follows: “On the question whether [the executive] should consist of a single person, or a plurality of co-ordinate members, . . . tedious and reiterated discussions took place. The plurality of co-ordinate members had fi nally but few advocates.”18 The net result of these actions in 1787 at the Philadelphia Convention was a fi rm constitutional commitment to a unitary, rather than a plural, executive. This commitment to a single chief executive was ultimately embodied in the fi rst section of the article establishing the executive branch, which provides, “The executive Power shall be vested in a President of the United States of America.” Article II, Section 3, further provides that the president “shall take Care that the Laws be faithfully executed.”19 The unitariness of the executive was bolstered by other constitutional provisions designed to protect the president’s independence from the other branches, including the rejection of legislative selection of the president as proposed by both the Virginia and the New Jersey Plans (although the attempt to have the president selected through direct popular election ultimately gave way to

The Preratification Origins of the Debate

35

election by the Electoral College), giving the president a fi xed term in office of four years, and giving the president the power to choose his subordinates through the appointment power (subject to the approval of the Senate). The Opinions Clause, discussed above, made clear that presidents would be supported by other executive officials and could seek their counsel whenever they saw fit. But the language and the enactment history of the clause left no doubt as to where the ultimate executive power and responsibility lay. Although the Constitutional Convention was clear in its decision to grant all of the executive power to a single individual, it did not directly address every aspect of how the president would exercise in fact his control over subordinate executive officials on a day-to-day basis. 20 Of particular importance was the power of the president to remove policymaking subordinates, a subject which was not discussed at the Convention, but which The Federalist Papers discussed briefly21 and which Congress confronted during its very fi rst session when enacting the statutes creating the fi rst executive branch cabinet departments. 22 The initial draft of the bill to establish the Department of Foreign Affairs provided that the secretary of foreign affairs was “to be removable from office by the President of the United States.” Representative Egbert Benson was concerned that this language might be wrongly read to imply that the power to remove the secretary was conferred by congressional statute rather than by Article II of the Constitution itself. To forestall this implication, Representative Benson offered an amendment to delete the statutory language purporting to grant the president the removal power. Benson’s proposal touched off one of the most famous debates in the history of the Congress, during which its members offered a number of plausible constitutional interpretations of the proper locus of the removal power. In the end, Benson’s amendment carried, making clear that a majority of both houses of the First Congress thought that the president was constitutionally in possession of the removal power by virtue of his powers under Article II. Congress similarly amended the framework statutes creating the War Department and the Treasury Department, although the Treasury Department amendment proved quite controversial, dividing the Senate evenly and passing only by the casting vote of Vice President John Adams. Eminent constitutional commentators, such as Joseph Story and James Kent, regarded this series of congressional decisions, which came to be known as the Decision of 1789, as definitively establishing that removal was an inherent executive power vested in the president by Article II of the Constitution.23 Indeed, the constitutional interpretations embodied in the statutes enacted during the First Congress have long been regarded as carrying

36

Introduction to the Unitary Executive Debate

special weight, given the large number of members of that Congress who participated in the drafting and the ratification of the Constitution. 24 Even constitutional authorities, such as Daniel Webster, who would have reached a different conclusion had they confronted the issue as a matter of fi rst impression, thought that the issue of whether the Constitution vested the removal power in the president was “a settled point, settled by construction, settled by precedent, settled by the practice of the Government, settled by legislation.”25 That the Constitution of 1787 established a unitary executive has found general acceptance among courts, historians, and even leading critics of the unitary executive.26 And, as we shall see in the remainder of this book, the theory of the unitary executive has also been embraced by the practices of all forty-three of our nation’s presidents, from 1789 to 2007.

PA RT

II

The Unitary Executive During the Early Years of the Republic, 1787–1837

The fi rst half-century of the Republic was a key time in the growth of our constitutional system. Informed by their frustration with the system of “executive by committee” used by the Articles of Confederation, the framers specifically considered and rejected proposals to divide the executive power among multiple presidents. Some of the proposals that were rejected would have divided the executive power between the president and a council of revision or a council of state. The framers clearly opted instead for an independent, coequal, and strongly unitary executive branch of government. Thus, it is generally conceded that “no one denies that in some sense the framers created a unitary executive; the question is in what sense.”1 A constitutionally based presidential removal power followed logically from the framers’ decision to make the executive branch as independent of the legislature, and as nearly coequal to it, as was practicable. Presidential power and independence of the legislature were thus critical elements of the founders’ plan, and they were reflected in the Decision of 1789 and in the practice of our fi rst seven presidents, all of whom asserted a power to control law execution and to remove officials as part of their understanding of the executive’s constitutionally granted prerogatives. The fi rst seven presidents also followed the English and colonial practice whereby the head of the executive branch was deemed the prosecutor of all offenses against

38

Early Years of the Republic, 1787–1837

the law, which he accordingly oversaw. The actions of the fi rst seven presidents in directing prosecutions were based on those presidents’ understandings of their constitutional power, since no federal statute ever authorized this presidential control of prosecutors. Congress and the judiciary never questioned the propriety of presidential control of the district attorneys even though many other claims of presidential power became hotly contested. Every single president who served between 1789 and 1837 consistently objected to all congressional attempts to limit the president’s power to control the execution of the laws or to make removals. In fact, the executive branch was so successful in resisting these challenges that by 1837 both the friends and the enemies of presidential power over law execution as well as the leading constitutional authorities of the day, such as Justice Story and Chancellor Kent, all agreed that the matter had been conclusively settled in the president’s favor by practice. 2

1

George Washington

George Washington’s strong support for the unitary executive grew out of events that occurred long before he became the fi rst president of the United States. In particular, Washington’s views on the subject were greatly shaped by his experiences during the Revolutionary War, when several committees of the Continental Congress served as the army’s plural executive head. These ineffective multiple committees led Washington to plead throughout the war for creation of a single executive structure that would have the power and the duty to “act with dispatch and energy,” and to complain repeatedly about “the inconvenience of depending upon a number of men and different channels” for supplies and how allowing the executive power to be held “in commission in several hands” led to “Delay,” “Waste,” and “unpunishable Neglect of Duty.”1 As Glenn Phelps notes, once Robert Morris was appointed commissary general in 1781, “his success in supplying the army in those crucial months [before Washington’s victory at Yorktown] only reinforced Washington’s bias in favor of strong, independent executive leadership.”2 Washington was also greatly frustrated during the Revolutionary War by the astonishing lack of a unified command structure. The Northern Army, for example, was commanded by Philip Schuyler, whose strong political support from his home state of New York allowed him, in Phelps’s words,

39

40

Early Years of the Republic, 1787–1837

to “behave[ ] more like an equal than a subordinate,” forcing Washington to plead with Schuyler to provide support for his efforts. Moreover, the Continental Congress also appointed Washington’s field generals, thus effectively giving those generals some degree of independence. Some of Washington’s nominal subordinates spent their time catering to the interests of their congressional patrons, with the result that they failed to follow Washington’s orders promptly, if ever. All of these experiences led Washington to support strongly the creation of a “strong, independent, and energetic executive” at the Philadelphia Convention. 3 Once the unitary presidency had been established, Washington was determined, as the fi rst president, to give it structure and life both through his actions and through his public and private utterances. Washington noted during the opening months of his administration that, in his view, other executive officials existed only because it was “impossib[le] for one man . . . to perform all the great business of the States,” and thus the proper role for these officials was merely “to assist the supreme Magistrate in discharging the duties of his trust.”4 Washington later noted, “Wherever, and whenever one person is found adequate to the discharge of a duty by close application thereto it is worse executed by two persons, and scarcely done at all if three or more are employed therein.”5 Leonard White, the preeminent administrative law historian of this period, notes, “The President looked upon the Secretaries . . . as assistants, not as rivals or as substitutes.”6 Washington did not think, as Jerry Mashaw claims, that “there was a hole in the U.S. Constitution” because that document had a “missing article on administration.”7 Rather, Washington believed himself to be, and acted as if he was in fact, the chief administrative officer of the entire government of the United States. Not only was there a unitary executive in theory from 1789 to 1797, the administration of the government was in fact actually under Washington’s powers of control and direction. Washington’s determination to take control of the entire administration was demonstrated immediately after his swearing in, when he asserted control over the executive structures that were left over from the government set up under the Articles of Confederation. Thus, even before the new cabinet departments were created and even before secretaries had been appointed to direct them, Washington was already personally taking control of all executive structures and entities within the government. A mere five days after Washington’s inauguration, he asked Acting Secretary of War Henry Knox to examine and provide a summary report on papers regarding a treaty with the Cherokee Indians that he was forwarding to Knox.8 A little more than a month later, Washington asked the Board of

George Washington

41

the Treasury, the acting postmaster general, and the acting secretaries of war and foreign affairs to prepare a written report that would provide him with “an acquaintance with the real situation of the several great Departments” and a “full, precise, and distinct general idea of the affairs of the United States” connected with their particular departments. Similar letters were sent to the acting secretary of war, the Board of the Treasury, and the acting postmaster general.9 As James Hart has noted, these letters were notable for “the clear conception he had of the presidential function of over-all administrative management.”10 After the great cabinet departments had been created and after the initial cabinet secretaries had been appointed, Washington continued to exercise close supervision over the affairs of the executive branch. Again and again, he involved himself with the day-to-day affairs of the various cabinet departments. White notes that “contacts between the President and his department heads were close and unremitting” and that they included “hundreds of written communications and records of oral consultation.” He describes Washington’s contacts as including the “approval of plans or actions which had been submitted to him in writing,” the conveying of “directions concerning administrative operations,” the making of requests to his department heads (including Treasury Secretary Alexander Hamilton) for “opinions on the constitutionality of acts of Congress,” and the making of requests for his secretaries’ “opinions on policy questions, foreign and domestic alike.”11 Washington also reviewed all correspondence prepared by cabinet officials. To cite one salient example, on June 4, 1789, Washington began to read and make abstracts of correspondence between Jefferson, who was then serving as minister to France, and Secretary for Foreign Affairs John Jay,12 in the process “beginning a practice which Washington continued, more or less throughout his presidency.”13 “By this means,” Jefferson noted, Washington was “always in accurate possession of all facts and proceedings in every part of the Union, and to whatsoever department they related; he formed a central point for the different branches; [and] preserved a unity of object and action among them.”14 In fact, Washington was ever watchful for exercises of executive power outside his direct supervision. When a private citizen named Rosencrantz participated in certain treaty negotiations, Washington sharply inquired: “Who is Mr. Rosencrantz? And under what authority has he attended the councils of the Indians at Buffalo Creek? Subordinate interferences must be absolutely interdicted, or counteraction of the measure of Governm[en]t, perplexity and confusion will inevitably ensue. No person should presume to speak to the Indians on business of a public nature except those who

42

Early Years of the Republic, 1787–1837

derive their Authority and receive their instructions from the War Office for that purpose.”15 Washington deployed many tools in his never-ending quest to administer the executive branch of the government in an orderly fashion. One of the tools plainly and willingly employed was the removal power. Washington exercised his removal power vigorously in at least seventeen civil cases, and he also removed at least six military officers. Washington presumably acted on the basis of his constitutional authority, since no statute authorized him to make those removals. White notes that it is difficult to determine the number of removals, especially since there are no records with respect to inferior officers, but it is clear that Washington removed “three foreign ministers, Monroe, Carmichael, and Thomas Pinckney (at his request)” as well as “two consuls, eight collectors, and four surveyors of internal revenue.” In addition, Secretary of State Edmund Randolph’s resignation under charges of misconduct “was in effect a removal.”16 This was a particularly significant removal because, as we shall see, the district attorneys who were the government’s prosecutors nominally reported at this time to the secretary of state. Whatever the division of opinion in the First Congress about whether Washington had the removal power, Washington asserted that power and acted on it, and Congress acquiesced. And when push came to shove, even the First Congress voted that its institutional rival the president had the removal power in the famous Decision of 1789. Thus, Washington clearly ran his administration in a way that realized the framers’ vision of a unitary executive branch. White aptly observes, “All major decisions in matters of administration and many minor ones were made by the President. No department head, not even Hamilton, settled any matter of importance without consulting the President and securing his approval. All of them referred to the President numerous matters of detail as well as large and many small issues of administrative policy. . . . Washington accepted full responsibility as a matter of course, and throughout the eight years of his service there is no indication of a tendency to consider department heads other than dependent agencies of the Chief Executive.”17 Other historians concur with White’s assessment. Rexford Tugwell notes that Washington fi rmly rendered the department heads “his subordinates and separated them from the Congress.” Tugwell further notes that Washington’s principle of administration was “that the Executive Branch of the government was one whole to be managed by the President alone,” and that presidential control over law execution was to “remain the rule until . . . Andrew Johnson’s Presidency, when the Congress would assert its superiority by seizing the removal power it had allowed Washington to exercise without

George Washington

43

protest.”18 Finally, Glenn Phelps concludes that “Washington’s presidency reflected [a] concern for administrative centralization. There would be no divided responsibility or ambiguity as to who was the chief executive.”19 Kenneth R. Mayer, who has written the leading political science book on presidential executive orders, credits Washington with having issued the very fi rst executive order. “The fi rst [such] order, it is generally agreed, consisted of Washington’s June 1789 instruction to executive branch heads to submit a ‘clear account’ of their departmental affairs.”20 This is not to say that Washington did not place a great deal of trust in his advisers. James Hart observes, “As an administrator Washington made the fi nal decisions, but only after exercising his best judgment in the light of the views of advisors.”21 Whenever possible, Washington paid due respect to the prerogatives of his subordinates and avoided interfering with the details of how each department head managed his responsibilities. For example, when a representative of the French government asked to meet with Washington directly, Washington demurred, countering that as a matter of policy governments function best when such contacts were channeled through the appropriate department head. 22 Thus, as Phelps points out, Washington’s trust in his advisers was “perfectly consistent with his own long-held notions of administrative centralism. No matter how much discretion he chose to delegate to his subordinates Washington always held the reins of responsibility very tightly. Although he remained aloof from the details of government operations he insisted that his department heads inform him of every aspect of their daily activities, especially with regard to how their actions might affect his own authority.”23 Notwithstanding Washington’s clear assertion of control over the entire executive branch, some scholars have persisted in pointing to certain congressional actions that they suggest constitute deviations from the unitary executive. First, these scholars claim that in establishing the Treasury Department and the Post Office, Congress failed to designate them as “executive” departments. 24 With regard to the Treasury Department, these scholars also point out that Congress failed to include in those statutes a provision explicitly providing that the treasury secretary “shall conduct the business of the . . . department in such manner as the President of the United States shall from time to time order or instruct,” that the statutes required that the treasury secretary submit reports directly to Congress, and that they required that appropriations warrants be signed by the secretary and countersigned by the comptroller. 25 A subsequent statute charged the comptroller with the responsibility to institute suits to recover balances due the United States. 26 Together, these factors cause some to believe that

44

Early Years of the Republic, 1787–1837

the Treasury Department and the Post Office as originally constituted were inconsistent with the unitary executive. 27 Whether Congress regarded the differences in the statutes creating the Departments of Foreign Affairs, War, and the Treasury as being significant is far from clear, especially as Congress had no enumerated power to create nonexecutive departments. The significance of Congress’s failure to refer to the Treasury as an “executive” department is belied by the fact that nine days after creating that department, Congress passed the Salary Act, which established “the Executive Officers of Government,” including both the secretary and the comptroller of the treasury. 28 It is also not true that the absence of a specific provision authorizing presidential direction of the treasury secretary supports any negatively implied limits on presidential control. Such silence is at best ambiguous, particularly in light of the fact that Washington did not hesitate to issue orders to Hamilton, which Hamilton unhesitatingly followed. Finally, the fact that the comptroller had to countersign warrants for money did not necessarily imply independence from the treasury secretary and certainly did not necessarily imply independence from the president. However, it is crystal clear that Washington must have regarded the differences in the statutory language creating these three departments as inconsequential, because he asserted fi rm control over the Treasury Department throughout his presidency. As noted earlier, Washington included the Board of the Treasury along with the other extant carryover departments when requesting information shortly after assuming office. Washington also advised Hamilton extensively on the structure of the Treasury Department, suggesting which positions should be established and how much the compensation for those positions should be. 29 Hamilton in turn made “famous reports to the Congress—for example on the public credit, manufacturers, and the mint—[which] allowed him to set major portions of the domestic agenda throughout his tenure at the Treasury.” Hamilton carried out frequent “audits, reports, and field inspections” of his subordinates in the Treasury Department, and Mashaw concedes that the “indefatigable” treasury secretary “ran a notoriously tight ship,” preparing “extensive forms and procedures to be used by collectors and others” and issuing “dozens if not hundreds of circulars and instructions.”30 Washington effectively placed the Treasury Department under his fi rm control when he nominated Alexander Hamilton to be the fi rst secretary of the treasury. Hamilton was one of the strongest defenders of executive power, energy, and unity during the founding era. Just as important, Hamilton was personally very loyal to Washington, having served as his aide during the

George Washington

45

Revolutionary War. So deep was Washington’s faith in Hamilton’s loyalty that Washington was later to insist during the Adams administration that he would only agree to serve as commander in chief of a reactivated army if Hamilton was his second in command. After a lengthy stalemate with Adams, who resented Hamilton as a rival, the second president gave in and agreed to let Washington have his most loyal and preferred aide in the number two military spot. In sum, as a practical matter, Washington’s selection of Hamilton as the fi rst head of the Treasury Department rendered nugatory any independence the department might have had. White notes that Hamilton’s “loyal acceptance of Washington’s primacy and his theoretical view of the status of a department head precluded any attempt on his part” to assert policies independent of Washington. 31 Thus, although Hamilton undoubtedly did have a direct influence on early fi scal legislation, Phelps notes: “If [Washington] chose not to rein in Hamilton . . . it was because Hamilton’s plans for the federal government conformed perfectly well with his own,” not because the treasury secretary was in any way independent of the president. 32 Indeed, when Washington asked his fi rst cabinet for advice on whether the proposed Bank of the United States was constitutional, he famously took Hamilton’s advice over the contrary views of Attorney General Randolph and Secretary of State Thomas Jefferson. 33 Washington’s view of the relationship between the president, the treasury secretary, and the Congress was well illustrated by his personal decision in 1796 to locate the Treasury Department next door to the White House on the east side, while the other cabinet departments were located next door to the White House on the west side. Washington’s choice of location was made on his last day in office. Strikingly, in 1798, this decision was revisited, and for a while all the executive offices were to be moved closer to the Capitol. Former president Washington then intervened with protests, and thanks to his successful lobbying, work began on the new Treasury building next door to the White House on its original site. Although the original Treasury building burned down three times—in 1801, in 1814 when the British torched it, and again in 1833—it was always rebuilt in the original location that Washington had chosen next door to the White House. It is said that when Andrew Jackson ordered the Treasury building rebuilt in the 1830s he greatly expanded its size, so that it would block any view of the Capitol from the White House, contrary to L’Enfant’s original plan for the capital city. 34 It is also not true that Congress’s failure to denominate the Post Office as an “executive” department was in any way significant or was meant to make the Post Office independent of the president. As David Currie notes,

46

Early Years of the Republic, 1787–1837

the initial organic statute of the Post Office was a hurriedly created temporary measure. 35 Moreover, that statute explicitly made the postmaster general “subject to the direction of the President.”36 And more important for the purposes of this book, regardless of what Congress thought, Washington never doubted that he possessed the authority to control the Post Office. Within the opening months of his administration, after inspecting the report he had requested from the Post Office, Washington further requested that the acting postmaster general send him “in detail, the receipts and expenditures of the Post Office” for 1784 and 1788 so that Washington could “know the causes of the decrease of the income” that had taken place during that time. 37 Two weeks later, Washington wrote again, indicating that “there still remains one point on which I would wish to have further information”: whether the annual profit of $39,985 “has been lodged in the Treasury of the United States, or appropriated to the use of the Post Office Department.”38 Washington also reviewed contracts that the postmaster general had negotiated regarding the carriage of the mail, on one occasion “tak[ing] the matter into consideration” and promising to let the postmaster general know “his determination upon it” at a later time. And any remaining doubts about the extent of the control that Washington exerted over the Post Office were eliminated when he transferred the Post Office into the Treasury Department in 1791 and subsequently declined in 1792 to support moving the Post Office into the State Department. 39 Thus, Washington took control over all executive departments. Still, other scholars have pointed out that the First Congress did not centralize the authority to control the U.S. attorneys, then called district attorneys, under any single subordinate executive official, and that state officials were arguably empowered by the early statutes to conduct federal prosecutions as well. Washington did present Attorney General Randolph’s request for supervisory authority over the district attorneys to Congress,40 but the Senate rejected this proposal.41 These scholars suggest that the absence of a single, subordinate executive officer with statutory authority to control federal litigation is inconsistent with the unitary theory of the executive.42 William Gwyn has noted that the First Congress created the district attorneys and the attorney general in the Judiciary Act of 1789, which also created the lower federal courts. Gwyn suggests that this means that founding era congressmen thought of prosecution as being like the judicial power.43 The argument that the founders doubted whether the prosecution of offenses was an executive power of the president is just plain false. As Saikrishna Prakash has shown in his executive research, on which we rely heavily in the discussion that follows over the next several pages, chief

George Washington

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executive officers were thought to control the prosecution power in England before American independence, in the colonies and states before 1787, and under the new American Constitution.44 Thus, William Blackstone wrote that although infractions of the criminal law “seem . . . to be rather offenses against the kingdom than the king; yet as the public . . . has delegated all it’s [sic] power and rights, with regard to the execution of the laws, to one visible magistrate,” such offenses should be seen as having been committed against the king. Blackstone goes on to add that the king is “the proper person to prosecute all offenses and breaches of the peace, being the person injured in the eye of the law.”45 The prerevolutionary English practice was well summarized by Chief Justice Wilmot in the 1768 case of Wilkes v. The King: “By our constitution, the King is entrusted with the prosecution of all crimes which disturb the peace and order of society. . . . For that reason, all proceedings, ‘ad vindictum et poenam’ are called in the law, the pleas or suits of the Crown. . . . All indictments and informations, granted by the King’s Bench, are the King’s suits, and under his controul; informations filed by his Attorney General, are most emphatically his suits, because they are the immediate emanations of his will and pleasure.”46 The same practice held sway during the colonial era, when governors issued directives to their attorneys general and the Continental Congress passed general resolutions asking governors to initiate prosecutions.47 Upon becoming president, George Washington also did not hesitate to begin and to end prosecutions in all kinds of cases.48 Gwyn is right that Congress created the federal district attorneys and an attorney general in the Judiciary Act of 1789 and that Congress failed to mention in this organic law that the district attorneys would serve and be controlled by the president. But the reason Congress failed to spell that out is because it was so obvious to all concerned that that would be the case, given the prior English and colonial history. The other two branches of the federal government acquiesced in the president’s assertion of the power to control prosecutions and never objected to the exercise of this power or questioned its legitimacy. This all is vividly illustrated, as Prakash shows, by the practices of the Washington administration, during which Washington clearly believed that he had plenary authority to control all federal prosecutions. He would “sometimes accompany his instructions (or his public explanation of them) with a citation to the Faithful Execution Clause or his general power to execute the laws, indicating that Washington regarded his prosecutorial authority as arising out of the Constitution itself.”49 Washington sometimes acted through subordinates like the secretaries of state and of the treasury and the attorney

48

Early Years of the Republic, 1787–1837

general, and sometimes he directed his district attorneys directly. For example, during the Whiskey Rebellion in September 1792, Washington issued a proclamation stating that “the particular duty of the Executive ‘to take care that the laws be faithfully executed’ . . . require[s] that every legal and necessary step should be pursued . . . to bring to justice the infractors of the laws.” Toward that end, he “charged[d] and require[d] all courts, magistrates and officers whom it may concern, according to the duties of their several offices, to exert the powers in them respectively vested by law” to stem the rebellion. 50 The next month, Washington “direct[ed]” Attorney General Randolph to attend the circuit court in York Town, Pennsylvania, in order to supervise the indictment of those who had opposed the execution of the excise law. 51 President Washington observed that his administration had started prosecutions in a speech that he delivered to Congress in November of 1792. He also informed Congress “that nothing within Constitutional and legal limits, which may depend on me, shall be wanting to assert and maintain the just authority of the laws.”52 When he later realized that regular law enforcement methods would not be enough to suppress the tax rebellion, President Washington called out the state militias to help him enforce federal law. Washington ordered Rawle to accompany the troops so he could prosecute offenders the militia apprehended. Rawle, knowing of Washington’s interest, kept the president informed of his progress. 53 It is striking that Washington felt he could seek help from state as well as federal officials in putting down the Whiskey Rebellion. At fi rst relying on his powers of suasion, Washington invoked his duties under the Take Care Clause in asking state courts and executives to use their weight and influence to bring the rebels to justice. When these efforts failed, Washington assumed command of the state militias even though those troops nominally fell under the jurisdiction of the states. Phelps notes, “Once mobilized, the state militias ceased to be under the jurisdiction of the governors. Organized as state units they were nonetheless the president’s men exclusively.”54 Washington also dramatically intervened in the law enforcement process by making stunning and wise use of the pardon power to pardon many of those involved in the Whiskey Rebellion. 55 This set a precedent for an important practice that has subsequently grown of post-wartime presidential pardons, such as those following the Civil War, the two world wars, Vietnam, and the cold war. Washington’s pardon in this instance was a direct and highly personal intervention in the law enforcement process that was designed to heal and restore social peace. It too suggests a direct personal role in law enforcement issues for the fi rst president.

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In 1793, Washington famously wrote to Pennsylvania district attorney Rawle about another matter, saying that he thought two individuals recently indicted for rioting were innocent and that he “therefore thought fit to instruct you forth with to enter a Nolle prose qui on the indictment aforesaid: and for so doing let this be fi led as your warrant.”56 Nor was this the only time that Washington ended a prosecution. Washington revoked his initial order to District Attorney Christopher Gore of Massachusetts to prosecute the French consul for obstructing law enforcement officers and decided instead that the consul should not be prosecuted. 57 In 1793, while England and France were at war with one another, Washington issued a Neutrality Proclamation, which we discuss further below. Washington indicated that he would criminally punish Americans who violated the proclamation by giving “instructions to those officers to whom it belongs, to cause prosecutions to be instituted against all persons, who shall . . . violate the law of nations.”58 Washington also “directed the Atty Genl. to instruct the District Attornies to require from the Collectors of the several Ports, within them, information of all infractions of neutrality that may come within their purview at the different ports, requiring the interposition of Government, particularly as to building and equipping Vessels for War.”59 Secretary of State Thomas Jefferson assured the English that individuals assisting France would be prosecuted60 and that he had told the French when they complained their consuls were being harassed that he had instructed the district attorneys to “take any measures which [the laws] authorize to prevent or punish breaches of the peace.”61 Washington’s willingness to seek help from state as well as federal officials, subject to presidential direction, was illustrated again, as Prakash shows, when Citizen Genet approached American citizens in an attempt to organize support for France’s war with Britain in violation of the Neutrality Proclamation. This time, Pennsylvania governor Thomas Miffl in, an old political rival of Washington’s, followed Washington’s request and assisted the federal government in enforcing the Neutrality Proclamation without questioning Washington’s authority to guide a state governor’s execution of federal law. Washington issued similar requests for help, subject to his guidance, from other governors as well. As Phelps aptly notes, “Where enforcement of the laws of the federal government was concerned, Washington fi rmly believed that governors were constitutionally subordinate to the president.”62 Prakash then disagrees with Harold Krent, who has suggested that early presidents did not have effective control over prosecutions because they could not control state prosecutors who prosecuted federal cases in state court.63 As Prakash points out, if the state militias had

50

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to follow presidential law enforcement directives when they were called out, it strains credulity to believe that in times of peace the president could not direct state prosecutors in their prosecution of federal laws.64 Like Prakash, we know of no instance where a president directed a state prosecutor, but then Kent knows of no instance where the existence of such a presidential power was denied. Phelps concludes that together these events underscore the president’s control over all officers—both state and federal—who enforce federal laws. Washington viewed his duty to “see that the laws be faithfully executed” as a personal responsibility that could not be delegated. As Phelps rightly observes, “Responsibility under the Constitution for actions of the chief executive was not collective; it was his alone. This also meant that the obligations of citizens and state officials under the laws of the Constitution were also due to him alone.”65 Washington also vigorously protected the rights of Indians, as Prakash shows, by prosecuting those who violated them. In a proclamation dated March 19, 1791, he criticized James O’Fallon for violating Indian laws and promised to prosecute wrongdoing.66 Relatedly, Secretary of State Jefferson wrote to the Kentucky district attorney to make an example of O’Fallon by prosecuting him to deter followers.67 In 1792, Washington announced that he would prosecute individuals who attacked the Cherokee Indians,68 and in his 1793 State of the Union address he noted that this had been done.69 Prakash notes that Washington also instructed the district attorney for Massachusetts to appear in defense of a certain William Bingham, who was being civilly sued in a case that was really against the United States. The secretaries of state and the treasury and the attorney general all recommended that Washington direct the district attorney to defend Bingham, thereby showing that they all believed Washington could issue such orders even though he had no statutory authority to issue them. And, at Washington’s request, Secretary of State Jefferson gave “instructions” to all the district attorneys on how to handle capture disputes.70 Washington also directed his attorneys general, as well as the district attorneys, as is confirmed in the Supreme Court’s account of the events leading up to Hayburn’s Case.71 Strikingly, the Court thought it was clear that the president could direct the attorney general even though he had no explicit statutory authority to do so. Washington exercised sweeping and comprehensive control over the district attorneys, the secretaries of state and the treasury, and the attorney general in criminal and civil cases of all kinds even though no statute authorized his administration’s control of the district attorneys and the cabinet secretaries.72 Strikingly, no one regarded Washington’s constitutionally asserted

George Washington

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powers of control as being even remotely questionable, including cabinet secretaries Randolph, Jefferson, and Hamilton. Washington was open and public about what he was doing, as Prakash shows, and no one objected that he lacked authority to control prosecutions and litigation. Richard Harrison, the New York district attorney, said he acted on his own except “when he was ‘honored with the directions of the Chief Executive Magistrate.’”73 Likewise, Attorney General Randolph acknowledged that he worked subject to the president’s superintendence.74 We know of no recorded instance of any district attorney or cabinet secretary ever defying one of Washington’s prosecutorial directions. Thus, notwithstanding the absence of statutory authority to direct the district attorneys and the attorney general, and notwithstanding the creation of those offices in the Judiciary Act of 1789, a fair-minded observer would have to conclude that these individuals were all the president’s men. The reason Congress did not statutorily prescribe that these officials worked subject to the president’s direction was that it was obvious under the Constitution that they did so. The district attorneys were not independent prosecutors, like Ken Starr, just because the statute creating their office did not mention that they were subject to presidential powers of direction and control. Indeed, the independent counsel law went far beyond the Judiciary Act of 1789, in that the former statute tried to make federal prosecutors “independent” of the president whereas the latter act did not. The same exact point might be made about several much-ballyhooed statutes passed in the Washington years that provided for private law enforcement through the bringing of qui tam actions, again analyzed comprehensively by Prakash.75 These statutes, which were modeled on English antecedents, merely allowed private persons to bring enforcement actions without stating anywhere that those actions could not be controlled by the president. During the eight years of George Washington’s presidency, Prakash identifies five statutes that were adopted expressly providing for qui tam actions,76 with a number of others being somewhat more ambiguous.77 No one knows how many qui tam actions were brought in the early years of our history, but an Office of Legal Counsel study of one colonial statute that authorized qui tam actions found that of thirty-five prosecutions brought under the statute, only one was a qui tam suit.78 After studying the English practice with qui tam actions, Prakash concluded that the king could clearly halt a popular information or prosecution by entering a nolle prosequi when he thought the action was vexatious or contrary to the Crown’s law enforcement policy. The king did so in the cases of The King v. Guerchy 79 and Rex v. Fielding. 80 With respect to civil qui

52

Early Years of the Republic, 1787–1837

tam actions, the king could stop any suit by nolle prosequi or pardon before the suit was begun. But once the qui tam had been brought, the king could only affect his portion of the fine and not the relator’s portion. Prakash asks which English framework, the treatment of criminal informations or of civil qui tams, best fits with the American constitutional structure, and he rightly concludes that the criminal information line of cases fits better. He notes that the U.S. Supreme Court has never decided whether a nolle prosequi or pardon can extinguish a qui tam relator’s portion of a fine once the relator has commenced suit. Prakash cites three U.S. cases—The Confi scation Cases,81 Osborn v. United States,82 and Knote v. United States83 —as suggesting that a “qui tam relator has no right to fines [in the face of a pardon] until she actually receives them pursuant to a final judicial decree disbursing the funds.” Thus, if the fair implication of these cases were to be followed, there is no reason to think Washington could not have extinguished any privately brought qui tam actions during his tenure as president had he chosen to do so.84 The obvious response is that neither we nor Prakash know of any instance where Washington acted to stop a qui tam action, but then that is mainly because everyone knows so little about the history of qui tams. The statutes authorizing the bringing of qui tam actions did not, unlike the independent counsel law, purport to insulate the actions in question from presidential control. They resemble the Judiciary Act of 1789, which set up the district attorneys without statutorily specifying that they were to be subject to presidential direction and control because that point was too obvious to require mentioning. We know that Washington did not hesitate to direct and control the district attorneys when he thought he needed to, and we can presume he would have done the same if he had had to with an out-of-control qui tam relator. The fact that Washington never had to rein in an out-of-control qui tam relator does not mean he lacked the constitutional power to do so. In any event, as Mashaw concedes, popular law enforcement through qui tam enforcement was later “largely abandoned.”85 Mashaw claims that three independent commissions were created during the Washington years, which he implies foreshadow the modern independent regulatory agencies.86 The fi rst was a commission consisting of the chief justice, the secretary and comptroller of the treasury, the secretary of state, and the attorney general to inspect coinage at the mint.87 The second was a commission composed of the president of the Senate, the chief justice, the secretary of state, the secretary of the treasury, and the attorney general, who were designated commissioners for the federal debt.88 And, the third, which allocated land in the territories, required the combined action of the secretaries of the treasury, of state, and of war.89

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The fi rst thing to note is that none of these entities was described as being independent in the statutes that created them, and the executive branch members of the entities were obviously removable at will by the president. Less obvious, perhaps, is the fact that even such nonexecutive branch officers as the chief justice and the president of the Senate could have been removed at will as members of these commissions, notwithstanding the statutory language to the contrary, had the president chosen to withdraw from them the ability to exercise executive power. Since these entities never challenged President Washington or exercised power independently of him, Washington never had an occasion to try to rein them in either by removing them or by issuing them binding orders. But this fact alone does not mean Washington could not have taken such action had he wanted to. The fact of the matter is that these three commissions were of trivial importance—unlike, say, such modern independent entities as the Federal Trade Commission (FTC) or the Federal Communications Commission (FCC). It might be added that these entities did not have balanced bipartisan representation, their members did not serve fi xed and staggered terms of office, and those members were not made removable only for cause, unlike the case with modern independent agencies.90 Nor were there Supreme Court decisions in place like Humphrey’s Executor 91 purporting to limit the president’s power to remove commissioners at will. The same defects apply to the Patent Office, which Mashaw claims was “the fi rst independent agency,” created at the national level ninety-seven years before the creation of the Interstate Commerce Commission.92 The Patent Office consisted of the secretaries of state and of war and the attorney general, all of whom were executive officers removable at will by the president.93 Again, as Mashaw concedes, there was no bipartisan representation required of the Patent Office, nor did the officers serve fi xed and staggered terms. Moreover, Mashaw concedes that no patent issued by the office was valid and official until it was “certified to the President, who shall cause the seal of the United States to be affi xed thereto.”94 Would anyone today call the FTC or the FCC “independent” if none of their rules or enforcement actions could proceed until the president personally signed off on them? We think not. The one genuinely puzzling entity created at the founding from the perspective of the unitary executive is the fi rst Bank of the United States, which was to be run by a board of directors of whom only a minority were to be selected by President Washington and the national government.95 At most, this suggests there is precedent for an independent Federal Reserve Board but not for other independent agencies like the FTC and the FCC, or for

54

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Jimmy Carter’s proposal of an independent Department of Justice. We think the explanation for the anomaly that was the bank stemmed from doubt as to whether the power it exercised was governmental power at all. In 1791, it was not nearly as evident as it is today that to control the money supply is to exercise governmental power. In fact, people may have only been dimly aware that the bank was controlling the money supply in addition to serving as a bank. In 1791, the bank was viewed more the way we would view a nationalized steel company today. Just as we would not say the production of steel by such a company was an exercise of governmental power, which had to fit within the Constitution’s tripartite structure, the framers would not have said so of the bank. At most the precedent of the bank provides support for having an independent Federal Reserve. It does not provide support for the constitutionality of a headless fourth branch of government as some have claimed. Moreover, it should be added that the bank was abolished as being unconstitutional on other grounds during Andrew Jackson’s presidency, and it did not reappear until eighty years later, when the Federal Reserve Board was created in a nonindependent form during the administration of Woodrow Wilson. It is a little hard to see how a bank that was abolished could provide precedential support for modern independent entities. Finally, it is not clear that the president could not have removed all the directors of the bank, both those he appointed and those who were privately chosen. In the bill creating the bank, Congress provided no clause making its directors removable only for cause. Another question that might be raised is to what extent the federal courts acted as a check on federal power during the Washington years. Mashaw asks whether the actions of federal administrators could be “directly reviewed by the courts through mandamus, injunction or appeal,” and he concludes that the answer is no unless there was “a clear legal duty” that left the official with no discretion. Mashaw summarizes the “general picture that emerges from most of the secondary literature [as being] that judicial review of administrative action in the early Republic was limited and where present, deferential.”96 The fi nal major development during the Washington administration that bears on the unitary executive debate is the issuance of the Neutrality Proclamation, which we briefly mentioned earlier. This development also gave rise to the fi rst full, public defense of the theoretical and constitutional underpinnings of presidential power. Alexander Hamilton’s Pacificus letters, published to rally public support for the Neutrality Proclamation, publicly set out a sophisticated textual argument for presidential power in the foreign policy context and over removals. Hamilton’s principal thesis was that

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“the general doctrine of our Constitution . . . is, that the executive power of the nation is vested in the President; subject only to the exceptions and qualifications which are expressed in the instrument.” Hamilton observed, “The second article of the Constitution of the United States, section fi rst, establishes this general proposition, that ‘the executive power shall be vested in a President of the United States of America.’ [Article II, section 2] proceeds to delineate particular cases of executive power.” Hamilton reasoned, “It would not consist with the rules of sound construction, to consider this enumeration of particular authorities as derogating from the more comprehensive grant in the general clause, further than as it may be coupled with express restrictions or limitations; as in regard to the co-operation of the Senate in the appointment of officers and the making of treaties; which are plainly qualifications of the general executive powers of appointing officers and making treaties.” Hamilton also noted that the Constitution established an additional express restriction on executive power when it provided for the right of the legislature “to declare war, and grant letters of marque and reprisal.” Accordingly, subject only to “these exceptions, the executive power of the United States is completely lodged in the President.”97 Hamilton bolstered this conclusion by comparing the Vesting Clauses of Articles I and II: “The different mode of expression employed in the Constitution, in regard to the two powers, the legislative and the executive, serves to confi rm this inference. In the article which gives the legislative powers of the government, the expressions are, ‘All legislative powers herein granted shall be vested in a Congress of the United States.’ In that which grants the executive power, the expressions are, ‘The executive power shall be vested in a President of the United States.’”98 Given the Article I Vesting Clause’s specific limitation of congressional powers to those “herein granted” and given the absence of a similar limitation in the Article II Vesting Clause, Hamilton concluded that “the enumeration [of Article II] ought therefore to be considered as intended merely to specify the principal articles implied in the defi nition of executive power; leaving the rest to flow from the general grant of that power.” This construction of the Article II Vesting Clause was made all the more authoritative because “this mode of construing the Constitution has indeed been recognized by Congress in formal acts upon full consideration and debate; of which the power of removal from office is an important instance.”99 That Hamilton would write such a powerful defense of the constitutional construction that underlies the theory of the unitary executive and of presidential removal power is especially telling. Hamilton had embraced the vision of a powerful, unitary executive in several of The Federalist Papers,

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Early Years of the Republic, 1787–1837

laying out in The Federalist No. 70 the classic argument of how a unitary executive promotes energy and democratic accountability100 and indicating in The Federalist No. 72 that all executive officers “ought to be subject to [presidential] superintendence.”101 At the same time, however, in The Federalist No. 77, he had also clearly suggested that “it has been mentioned as one of the advantages to be expected from the cooperation of the Senate, in the business of appointments, that it would contribute to the stability of the administration. The consent of that body would be necessary to displace as well as appoint.”102 It appears that by the time Hamilton wrote his Pacificus letters, he had completely disavowed the views expressed in The Federalist No. 77 and had fully embraced both presidential removal power and implicitly a power to control all exercises of law execution as well. This conclusion is further supported by the fact that Hamilton himself regarded the Pacificus letters as the better reasoned statement of his views on the Constitution.103 The 1802 Hopkins edition of The Federalist Papers, which Hamilton personally reviewed, also indicates that Hamilton believed that the Decision of 1789 resolved the issue.104 Madison responded to Hamilton in letters written under the pseudonym Helvidius, apparently prompted by Thomas Jefferson,105 in which he decried Hamilton’s construction of the foreign policy powers conferred by the Article II Vesting Clause as being “no less vicious in theory than it would be dangerous in practice.” In Madison’s eyes, the only possible source of Hamilton’s broad definition of executive power in the foreign policy context was the “royal prerogatives in the British government, [which] are accordingly treated as executive prerogatives by British Commentators.”106 To draw on such an antidemocratic source to define the scope of executive power over foreign policy in a democratic society was unthinkable to Madison. In making this argument, Madison was hampered by his own statements offered during the Decision of 1789, in which he had argued, as did the Pacificus letters, that the Article II Vesting Clause granted all executive power to the president and that any derogation from that grant should be strictly construed.107 Moreover, aside from one brief statement Madison made one day about the Treasury Department bill, he was throughout his career a staunch defender of constitutionally vested presidential removal power. In any event, Madison’s protestations had little impact, as most historians have generally agreed that Hamilton’s views on the scope of executive power have prevailed.108 There was one development during the Washington administration that arguably suggested that Washington did not invariably adhere to the unitary theory of the executive. Although Congress fi rmly rebuffed James Madison’s proposal that the comptroller of the treasury be given a fi xed

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tenure of office, Congress did approve statutes requiring that the comptroller countersign warrants drawn by the secretary109 and providing that the comptroller’s decisions would be “fi nal and conclusive.”110 Certain scholars have reasoned that these provisions deprived the president of the authority to direct the comptroller’s execution of the law and thus are inconsistent with the unitary theory of the executive branch.111 This claim is contradicted by the fact that, as noted above, the Salary Act clearly designated the comptroller an executive officer. The suggestion that the First Congress intended to make the comptroller independent of the president is further belied by incredulous reaction to Madison’s proposal that Congress could bestow on the comptroller a fi xed term of office. As various Representatives pointed out, it had been settled that only judges held office during good behavior, while all others served at the pleasure of the president. Any attempt to insulate executive officers from presidential control would allow Congress to “overthrow the executive power.” Madison’s withdrawal of his proposal is generally regarded as a capitulation to the unitarian point of view.112 And in any event, the mere fact that Washington may have failed to object to two isolated deviations from the unitary executive theory does not constitute the degree of acquiescence needed to resolve the issue under the methodology of coordinate construction we advance in this book. When viewed in their totality, Washington’s statements and administrative practices strongly support the view that the president is responsible for the execution of all federal law and thus may superintend all those authorized to execute it, removing those who do not do so to his satisfaction. That Washington emerged as such a strong advocate of executive unitariness is quite telling. It is often observed that the American presidency was created in George Washington’s image, since all of the founders knew that he was almost certain to be the fi rst occupant of the new chief executive office. Nor were the potential constitutional implications of the precedents set lost on Washington. He explicitly cautioned his advisers that “many things which appear of little importance in themselves and at the beginning, may have great and durable consequences from their having been established at the commencement of a new general government.”113 Washington similarly wrote to Madison, “As the fi rst of every thing, in our situation will serve to establish a Precedent, it is devoutly wished on my part, that these precedents may be fi xed on true principles.”114 Thus, Washington was well aware of his unique position in this regard, and his adoption of a unitary executive structure was the result of his best constitutional judgment.

2

John Adams

President John Adams was strongly committed to the theory of the unitary executive. Leonard White describes Adams as being “an uncompromising friend of the executive, on theoretical as well as practical grounds.”1 Thus, in 1776, Adams warned that “the executive power cannot be well managed” by plural bodies like legislatures “for want of two essential qualities, secrecy and dispatch.”2 Adams also supported shifting executive authority from the Continental Congress to departments headed by single executives, which would give the departments “an order, a constancy, and an activity which could never be expected from a committee of congress.”3 Adams noted in a letter to Jefferson in the summer of 1789 that he would “have given more power to the President, and less to the senate. The nomination and appointment to all offices, I would have given to the President, assisted only by a privy council of his own creation; but not a vote or voice would I have given to the senate or any senator unless he were of the privy council.”4 Adams expanded on these views in a lengthy letter to Roger Sherman in which he offered seven reasons why he thought it had been a mistake even to give the Senate a role in advising on and consenting to presidential appointments. Adams gravely predicted that a role for the Senate in confirmations would “destroy the present form of government” and could even raise the “danger of dividing the continent into two or three nations, a case that

58

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presents no prospect but of perpetual war.”5 There is little question then that by 1789 Adams was a stalwart defender of greatly enhanced executive power who believed the Constitution gave the president too little power, not too much. During his tenure as the very fi rst vice president of the United States, John Adams had an early opportunity to play a critical role in the unitary executive debate. As we discussed in the introduction to part II, a key moment came when Adams cast the tie-breaking vote in the Senate during the famous Decision of 1789. As James Hart recounts, “A number of senators who had favored presidential removal of the other Secretaries were at fi rst against his removal of the Secretary of the Treasury. When the House adhered to its position, however, the vote of the Senate to recede was a tie of 10 to 10, which the Vice President broke in favor of presidential power.”6 Adams’s decisive vote helped resolve a critical disagreement between the Senate and the House and made clear the First Congress’s recognition that the Constitution places the Treasury Department, like the Departments of Foreign Affairs and of War, under direct presidential control, with a full presidential power of removal. This was later confi rmed again in the Salary Act, which established salaries for the executive officers of the government, including the secretary of the treasury.7 Even if Congress had voted the other way in the Decision of 1789, its decision would hardly have been conclusive as regards the actions of the coequal executive branch. But the fact that even the First Congress (as well as the fi rst president) recognized that the president had the removal power certainly strengthens the case for the unitary executive. As president, Adams continued Washington’s practice of asserting complete control over the execution of federal law. Leonard White reports that “John Adams held the same general view of the position of department heads as Washington.”8 In a letter to Secretary of State Timothy Pickering, written during the fi rst year of his administration, Adams criticized the plural executive directory then in place in France, which he thought could easily lead to a civil war. Adams observed, “The worst evil that can happen in any government is a divided executive; and, as a plural executive must from the nature of men, be forever divided, this is a demonstration that a plural executive is a great evil, and incompatible with liberty. That emulation in the human heart, which produces rivalries of men, cities, and nations, which produces almost all the good in human life, produces, also, almost all the evil. This is my philosophy of government.”9 Consistent with this philosophy, Adams also sharply criticized a provision of the Stamp Tax that arguably could have been construed to render the

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treasury secretary independent of presidential control. Although the federal government’s need for revenue led Adams to approve the bill, Adams complained, “The office of the secretary of the treasury is, in that bill, premeditatedly set up as a rival to that of the President; and that policy will be pursued, if we are not on our guard, till we have a quintuple or a centuple executive directory, with all the Babylonish dialect which modern pedants most affect.”10 Saikrishna Prakash’s exhaustive research on presidential control of federal prosecutions, on which we again rely here, also reveals that President Adams vigorously used his executive power to direct the district attorneys, just as George Washington had done.11 Secretary of State Pickering reviewed Republican newspapers himself and determined which publishers the district attorneys should investigate and prosecute under the Alien and Sedition Acts.12 To one report by Pickering about accusations brought by Republican newspaper publisher William Duane (the father of the treasury secretary of the same name who triggered the dramatic controversy over the removal power during Jackson’s battle with the second Bank of the United States) that members of his administration had been bribed by the English, Adams responded by writing: “If Mr. Rawle [the district attorney in Pennsylvania] does not think this paper is libelous, he is not fit for his office; and if he does not prosecute it, he will not do his duty.”13 Pickering reassured Adams by writing back to let him know a prosecution was under way and that Rawle would “institute new prosecutions as often as Duane [the Republican publisher in question] offends.”14 Duane’s accusations eventually elicited a response from the Senate as well, which responded to this libel by voting on May 14, 1800, that President Adams “be requested to instruct the proper law enforcement officer to commence and carry on a prosecution against William Duane, editor of the newspaper called the Aurora, for certain false, defamatory, scandalous, and malicious publications, in the said newspaper . . . tending to defame the Senate of the United States, and to bring them into contempt and disrepute, and to excite against them the hatred of the good people of the United States.”15 Adams obliged the Senate by writing to the Pennsylvania district attorney and the attorney general that “in compliance with this request [by the Senate], I now instruct you gentlemen, to commence and carry on the prosecution accordingly.”16 The Senate’s actions suggest that it believed that the president had the authority to direct district attorneys in prosecuting federal crimes. As Prakash shows, President Adams directed that prosecutions be dropped. This happened with Ann Greenleaf, who was to be tried for sedition but who risked looking like a sympathetic victim because her offending newspaper had stopped publishing. The same thing happened

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with John Daly Burk, who agreed to leave the United States if his prosecution for sedition was dropped.17 John Adams was thus just as willing as George Washington had been to intervene in pending criminal cases and stop a prosecution. Nor was Adams’s control of prosecutions limited to Sedition Act prosecutions. A case arose in which a British minister complained that two American privateers had boarded his ship and had opened his private letters. Adams wrote to the Massachusetts district attorney John Davis and Secretary of State Pickering to look into the matter, report back to him, and “strictly to prosecute the persons he may find guilty of any breach of the law of nations.”18 While the Democrats complained repeatedly that the Sedition Act was unconstitutional, no one complained about Adams’s direction of the district attorneys, and obviously, as Prakash shows, both Adams and the Senate thought that presidential direction of prosecutions was perfectly permissible even in the absence of a statute that authorized it. Adams also followed Washington’s precedent of using military force for law enforcement purposes to subdue the so-called Fries Rebellion in eastern Pennsylvania. After Fries was sentenced to death, Adams intervened again in the law enforcement process, using his pardon power to pardon both Fries and his accomplices. Clearly, then, in practice as well as in theory, John Adams deserves to be counted as being squarely within the prounitary executive camp. Moving beyond the topic of presidential direction of law enforcement officers, it must be noted that although Adams used the removal power sparingly, he did not hesitate to use it to maintain his control of the executive branch. White observes that Adams removed twenty-one civil officers (counting two who were not reappointed) and six army officers. “Among these were the Secretary of State, Timothy Pickering, one minister and four consular officers, one marshall, seven collectors, five surveyors, one supervisor, and one commissioner of court.” Adams also removed James McHenry as secretary of war. Although removals were rare and were usually for poor performance in office, Adams did depart from Washington’s practice by making “a few changes [in personnel] in which party differences played a part.” White persuasively describes Adams’s removals of Joseph Whipple, collector at Portsmouth, and William Gardner, commissioner of loans for New Hampshire, as being in this category, along with his removal of Tench Coxe, who was discharged as commissioner of revenue for shifting his political allegiance from Hamilton to Jefferson.19 When Adams and the cabinet disagreed over major issues of federal policy, it was Adams who generally prevailed. 20 Perhaps the best example of

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Adams’s domination of his administration came, ironically, in his struggle with Secretary of State Pickering, with whom Adams frequently corresponded in directing Sedition Act prosecutions. A member of Alexander Hamilton’s rival faction of the Federalist Party, Pickering disagreed with Adams over one of the most important matters of public policy facing the new Republic: the nation’s relations with France. Pickering also provoked Adams’s personal ire by supporting Hamilton’s bid to become Washington’s second in command of the army and by galvanizing the opposition to the nomination of Adams’s son-in-law as adjutant general. After Pickering refused Adams’s invitation to resign, Adams summarily removed him, flatly stating that “divers [sic] causes and considerations essential to the administration of the government, in my judgment, requir[e] a change in the department of State.”21 This is a striking removal because Pickering had been Adams’s liaison with the prosecutorial district attorneys. For Adams to remove Pickering would be analogous to a modern president fi ring his attorney general. In sum, Adams used his removal powers even more often than Washington did, and he was the fi rst president to remove an official for political reasons. In so doing, as one historian has noted, Adams “completed the demonstration of his supremacy in Executive affairs.” Pickering later acknowledged that he expected that his opposition to the nomination of Adams’s son-in-law would lead to his own removal. 22 By the end of the Adams administration, the fi rst twelve critically important years of unbroken presidential practice had fi rmly established a strongly unitary vision of presidential power over law execution. Indeed, the strength of Washington’s and Adams’s assertions of the unitariness of the executive branch is confi rmed by the repeated attacks against them by Jefferson and the Democratic-Republicans for being closet monarchists. As White concludes: When the Federalists turned over the government to Jefferson in 1801 they left behind them a clear and consistent pattern of executive relationships. They fully accepted the statement of the Constitution that the executive power was vested in the President. Their representatives in the legislative branch wrote this theory into the statutes conferring administrative authority. Their members in the executive branch put into practice what the Constitution and law enjoined. Washington made the decisions of executive policy, but on the basis of regular conference with department heads. The rise of the Cabinet as an organ of consultation and advice did not obscure the single responsibility of the President or the subordinate position of Cabinet members. Even after the Federalists had split into factions during Adams’ administration, the leading figures on both sides agreed in

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maintaining the unity of executive power and the dominating position of the President. The power to govern was quietly but certainly taken over by the President. The heads of departments became his assistants. In the executive branch, according to Federalist orthodoxy, the President was undisputed master. 23

3

Thomas Jefferson

Thomas Jefferson’s fi rst reaction to the office of the presidency as described in the text of the proposed Constitution of 1787 was one of horror. Jefferson wrote that the newly proposed “President seems a bad edition of a Polish King. He may be reelected from 4 years to 4 years for life. . . . When one or two generations shall have proved that this is an office for life, it becomes on every succession worthy of intrigue, of bribery, of force, and even of foreign interference.”1 Thus, in 1787, Jefferson shared much of the widespread view of the Anti-Federalists that the framers had given the president a dangerous amount of power. He adhered to this view in the 1790s, when he consistently rejected Hamiltonian and Federalist views of executive power that “smelled of monarchy.”2 Although Jefferson hated executive tyranny, he was not opposed to the very different idea that a unitary and independent executive structure should be created. Leonard White notes that while the more extreme Republicans favored making heads of departments independent of the president, Jefferson, Madison, Albert Gallatin, and other, more thoughtful members of the Republican Party fully recognized the need for a strong, unitary executive. 3 Jefferson thus supported the idea of a strong executive branch directly responsible to the president and independent of legislative control. He opposed what he perceived as an attempt by Alexander Hamilton to insinuate himself into the legislative activities of the House of Representatives. It was

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this legislative rile of Hamilton’s that triggered Jefferson’s ire and caused him to complain in the 1790s that the executive was exceeding its constitutional limits and intruding upon the prerogatives of the legislature. As Jefferson wrote, “Here then was the real ground of the opposition which was made to the course of administration. It’s [sic] object was to preserve the legislature pure and independant [sic] of the Executive, [and] to restrain the administration to republican forms and principles.” Thus, Jefferson’s concerns about executive power did not involve the issue of executive unitariness and autonomy. As he told Washington, “If the equilibrium of the three great bodies Legislative, Executive, and judiciary could be preserved, if the Legislature could be kept independant [sic], I should never fear the result of such a government.”4 Given the history in England of monarchs bribing members of Parliament to get legislation passed and given the special need for Washington, as the nation’s fi rst president, to be a unifying figure, Jefferson’s concern about the impropriety and impoliticness of Hamilton’s hyperaggressive legislative program was understandable. Jefferson’s concern is all the more understandable when we remember that he disagreed vehemently with many of Hamilton’s policy views. Jefferson’s support for a strong, independent, unitary executive was evident when he served as secretary of state during the Washington administration. In a written opinion to President Washington, Secretary of State Jefferson specifically endorsed the notion that the Vesting Clause of Article II of the Constitution conferred a general “grant” of the executive power on the president of the United States. 5 Many years later, Jefferson’s archfoe, Alexander Hamilton, observed, “It is not true . . . that [Jefferson] is an enemy to the power of the Executive, or that he is for confounding all the powers in the House of Representatives. It is a fact which I have frequently mentioned, that, while we were in the administration together, he was generally for a large construction of the Executive authority and not backward to act upon it in cases which coincided with his views.”6 Jefferson’s conduct as secretary of state further suggests his recognition of the need for presidential control of all executive matters. Even though he disagreed with Washington on a wide variety of policy matters, Jefferson unfailingly carried all of Washington’s policies into effect “as sincerely as if they had been my own, tho’ I ever considered them as inconsistent with the honor and interest of our country.”7 In a letter to William Short, Jefferson observed bluntly that “the nature of our government . . . renders it’s [sic] heads [i.e., the president and Senate] too responsible to permit them to resign the direction of affairs to those under them. The public would not be satisfied with that kind of resignation, & be assured it does not exist.”8

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Finally, when Jefferson concluded that he could no longer serve Washington in good conscience, he resigned. He never considered holding onto office and acting contrary to Washington’s wishes when doing so would fragment the unity of the executive branch. Jefferson assumed the presidency on March 4, 1801, and he soon surprised many supporters and opponents alike with his robust views about the powers of the office. In fact, Jefferson had never been as opposed to presidential power as many imagined, and he did not join the most extreme members of his party in their unduly timorous view of the executive power. Indeed, Jefferson was so supportive of broad presidential power stemming from his victory in the election of 1800 that Bruce Ackerman claims in a new book that it was Jefferson and not Washington who created the plebiscitary presidency.9 As president, Jefferson continued to support strong, independent, unitary executive authority. Unlike Washington and Adams, Jefferson insisted on complete harmony and unanimity in his cabinet, since “the power of decision in the President left no object for internal dissension.”10 And with respect to supervision of law execution decisions by subordinates, Jefferson endorsed and adopted Washington’s practice of reviewing the correspondence of his cabinet officials as a means of maintaining unity of action and the president’s responsibility for the affairs of the executive branch. At times, Jefferson concerned himself with even the most minute and inconsequential matters being addressed by his subordinates. White notes, “Thus we fi nd Jefferson instructing Gideon Granger on the problem of post-road river crossings in the western wilderness. ‘I would propose that all streams under 40.f width not fordable at their common winter tide shall be bridged; & over all streams not bridged, a tree should be laid across, if their breadth does not exceed the extent of a single tree.’ On another occasion he approved an increase of pay of $150 to an Indian agent. Early in his administration Gallatin authorized an expenditure of $600 to repair a leaky hospital roof in Norfolk as an emergency matter that would normally have gone to the president.”11 Jerry Mashaw notes that the Jeffersonians were not so much opposed to the unitary executive as they were opposed to a large and expensive federal bureaucracy. Mashaw observes that “Republicanism’s general answer to the problem of controlling and structuring administration was to eliminate administrators wherever possible and administrative discretion where it was not.”12 There is, of course, nothing inconsistent with preferring that the federal bureaucracy remain small while still insisting that what bureaucracy did exist be subject to direct presidential control. And, as we shall see below, when it came to enforcing the Jeffersonian embargo, which responded

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to French and British interference with U.S. merchant shipping by banning all transport of goods from U.S. to foreign ports, the Republicans were willing to delegate enormous power and discretion to the president and his treasury secretary to implement that sweeping statute. Between 1800, when Jefferson rose to power, and 1830, the population of the United States more than doubled, but the size of the federal workforce nearly quadrupled, rising from three thousand in 1800 to nearly eleven thousand five hundred in 1831. Thus, whatever fears the Jeffersonians may have expressed about federal executive power in 1800 did not prevent them from greatly increasing the size of the executive branch. During his presidency, as demonstrated again by Saikrishna Prakash, Jefferson took direct control of federal prosecutions, directing the district attorneys to cease all prosecutions under the Alien and Sedition Acts13 and pardoning those already convicted under them. The Sedition Act technically expired the day before Jefferson took his oath of office, but it specifically provided that its expiration would not terminate ongoing prosecutions of alleged offenses that had occurred before the act expired.14 The main ongoing prosecution under the act was of William Duane, editor of the Aurora and the father of the future treasury secretary whom Jackson would remove during his battle with the Bank of the United States. Jefferson ordered the district attorney to cease any prosecution under the Sedition Act. As he wrote to Edward Livingston, “I affi rm that act to be no law, because in opposition to the constitution; and I shall treat it as a nullity, wherever it comes in the way of my functions.” Out of a regard for the Senate, which had asked Adams to initiate the prosecution of Duane, Jefferson asked the district attorney to prosecute Duane on any other non–Sedition Act grounds that might be available, but the case died when the federal grand jury refused to indict, presumably because there was no other federal law that Duane might have violated. Strikingly, Jefferson wrote to Livingston with a justification that Jefferson asked to be made public as to why and on what basis he had ended the Sedition Act prosecution of Duane: “The President is to have the laws executed. He may order an offence then to be prosecuted. If he sees a prosecution put into a train which is not lawful, he may order it to be discontinued and put into a legal train. . . . There appears to be no weak part in any of these positions or inferences.”15 Here, then, is a bold public assertion of the president’s unilateral power to start and to stop federal prosecutions in the absence of any statute because of his constitutional power as the chief executive officer of the government. Jefferson acted on this broad understanding of his constitutional power on other occasions as well, as Prakash shows. Thus, Jefferson wrote to

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Treasury Secretary Albert Gallatin “to ‘approve’ of a prosecution in a case involving a schooner called Sally.”16 Believing that federal common law prosecutions for libel were unconstitutional, Jefferson ordered all of these prosecutions stopped as well. Jefferson explained that his order ending prosecutions for common law libel arose because the president’s “obligation to execute what was law, involved that of not suffering rights secured by valid laws, to be prostrated by what was no law.”17 Jefferson usually did not “dictate how a prosecution ought to be carried out,”18 but he took a very active role indeed in the prosecution for treason of his fi rst vice president, Aaron Burr. Prakash reports that Jefferson “‘proceeded relentlessly to mobilize executive resources to prove the preconceived guilt [of Burr]. Jefferson . . . acted himself as prosecutor, superintending the gathering of evidence, locating witnesses, taking depositions, directing trial tactics, and shaping public opinion as if judge and juror for the nation.’ Jefferson’s directions are amply revealed in the numerous letters he wrote over the course of the proceedings. Jefferson even told district attorney George Hay to proceed against Burr’s coconspirators should trial events warrant further prosecutions. Tellingly, Chief Justice Marshall criticized the executive for its tardiness in adducing evidence of Burr’s guilt, thereby tacitly noting that Jefferson was responsible for Burr’s prosecution.”19 It is no wonder in light of Jefferson’s concern with matters of this kind that White concludes that Jefferson was maintaining a tight and centralized control over “the whole business of the executive branch, domestic and foreign.”20 Perhaps even more indicative of Jefferson’s determination to assert his control over the executive branch were his vigorous and partisan removal policies. As Prakash notes, “Jefferson removed several district attorneys who had been too zealous in prosecuting alleged violations of the sedition act.”21 Because there was no statutory authorization to remove district attorneys, Jefferson must have understood his power to make these removals as stemming from the Constitution itself, and no one at the time contested his power to remove the district attorneys in question. After twelve years of Federalist rule, capped by Adams’s “midnight appointments,” President Jefferson was faced with an executive branch fi lled entirely with Federalist appointees. Although initially inclined not to remove any officers for differences of political opinion, Jefferson quickly realized that the removal power was the only way to consolidate his control over the administration. As Jefferson noted privately, “If a due participation of office is a matter of right, how are vacancies to be obtained? Those by death are few; by resignation, none. Can any other mode than that of removal be proposed?”22 However, Jefferson’s previous opposition to politically motivated

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removals during the Washington and Adams administrations left him with little political room to maneuver. Particularly after stating in his inaugural address that “we are all Republicans, we are all Federalists,”23 Jefferson faced substantial difficulties in defending purely partisan removals. Jefferson responded with characteristic shrewdness by arguing that his removals were in fact consistent with nonpartisanship, since true nonpartisanship required that each party had a right to fair representation in the government. The only way to implement his “declarations . . . in favor of political tolerance, exhortations to harmony and affection in social intercourse, and to respect the equal rights of the minority” was to permit the Republicans “to assert some rights . . . also.” Because “the will of the nation, manifested by their elections,” had called for a new administration, it would be “political intolerance” to deny the Republicans the right “to claim a proportionate share in the direction of public affairs.” However, Jefferson cannily claimed that these removals gave him no joy and pledged that he would revert back to making merit removals: “This is a painful office; but it is made my duty, and I meet it as such. . . . It would have been to me a circumstance of great relief, had I found a moderate participation of office in the hands of the majority. I would gladly have left to time and accident to raise them to their just share. But their total exclusion calls for prompter correctives. I shall correct the procedure; but that done, disdain to follow it, shall return with joy to that state of things, when the only questions concerning a candidate shall be, is he honest? Is he capable? Is he faithful to the Constitution?”24 Jefferson even went so far as to contend that the large number of unremovable Federalist judges justified removing the vast majority of the marshals and district attorneys. 25 The general public accepted Jefferson’s justification for his partisan removals. After exercising the removal power gingerly during the fi rst year, Jefferson expanded his program, initiating changes in one-third to one-half of all presidentially appointed offices. Thus, in his removals as well as in his control over the entire executive branch, Jefferson adhered to the expansive view of presidential power established by Washington and Adams. Another striking development during Jefferson’s presidency was his formulation of and strident advocacy for the position that the president has a coequal power with the courts to engage in constitutional review. Jefferson clearly believed in the legitimacy of coordinate or departmental judicial review, and he expressed that view as eloquently and forcefully as anyone who has ever occupied the presidential office. In his celebrated letter to Abigail Adams in response to her letter complaining of his disregard of the Alien and Sedition Acts, he wrote:

70

Early Years of the Republic, 1787–1837 You seem to think it devolved on the judges to decide on the validity of the sedition law. But nothing in the Constitution has given them a right to decide for the Executive, more than to the Executive to decide for them. Both magistrates are equally independent in the sphere of action assigned to them. The judges, believing the law constitutional, had a right to pass a sentence of fi ne and imprisonment; because that power was placed in their hands by the Constitution. But the Executive, believing the law to be unconstitutional, was bound to remit the execution of it; because that power has been confided to him by the Constitution. That instrument meant that its co-ordinate branches should be checks on each other. But the opinion which gives to the judges the right to decide what laws are constitutional, and what not, not only for themselves in their own sphere of action, but for the Legislature & Executive also, in their spheres, would make the judiciary a despotic branch. 26

Jefferson reiterated this view many years later in a letter to a friend: You seem . . . to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. . . . The constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruption of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves. . . . Betrayed by English example, and unaware, as it should seem, of the control of our constitution in this particular, they have at times overstepped their limit by undertaking to command executive officers in the discharge of their executive duties; but the constitution, in keeping three departments distinct and independent, restrains the authority of the judges to judiciary organs, as it does the executive and legislative to executive and legislative organs.27

Jefferson believed that each of the three branches of government possessed the independent authority to interpret its own obligations under the Constitution and to exercise the authority vested by that document free from any interference by the other branches. Consistent with this view, Jefferson resisted an attempt by Chief Justice Marshall, while presiding over Aaron Burr’s trial for treason, to require the president to appear in court and present certain documents. Jefferson refused to appear or present any documentary material in court at all, instead submitting a portion of the subpoenaed documents to the district attorney. Similarly, Attorney General Caesar Rodney indicated to President Jefferson that courts could not issue a writ of mandamus against an executive officer exercising discretionary functions and that the proper remedy against officials improperly

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exercising their discretion was an action at law or a criminal indictment. The contrary rule would vitiate “the controlling power in the chief magistrate of the United States,” “would necessarily have the effect of transferring the powers vested in one department to another department,” would permit the courts to exercise control over an executive function in violation of the Take Care Clause, and would destroy “that unity of administration which the constitution meant to secure by placing the executive power for them all, in the same head.”28 Moreover, Jefferson was not concerned by the portion of Marbury v. Madison 29 holding the Judiciary Act of 1801 unconstitutional, as he recognized that each of the three branches had the authority and the obligation to construe the Constitution. Jefferson’s primary objection was to the opinion’s dicta suggesting that the executive branch was subject to orders from the judiciary. Courts in his view did not have any right to interfere with the president’s authority over the entire executive branch and could not even issue writs of mandamus against executive officials. For Jefferson, unconstitutional executive actions were properly addressed only in the democratic process by the people themselves and not in litigation before judges. This was an extraordinary claim of executive power, so extraordinary in fact that thankfully it has not been followed. Paired with his claim in his letter to Abigail Adams that the president is without power to execute a law that he deems to be unconstitutional in his own independent judgment, Jefferson’s views provide a striking vision of presidential power. Indeed, in the later years of his administration, Jefferson began to move beyond the bounds of his initial vision of a president who was autonomous only within his own limited sphere of law execution powers. It was at this point that Jefferson really began to press up against the outermost constitutional limits of presidential power. In sharp contrast to Washington, who was extremely circumspect about making any specific legislative proposals, and in direct contradiction of his own previous criticism of Hamilton’s efforts to influence Congress, Jefferson as president began to assume the role of national political leader, and in this capacity he began to take control of Congress’s legislative agenda to a greater extent than had either of his two predecessors. Forrest McDonald writes, “The President alone, as Jefferson put it, could ‘command a view of the whole ground’ as representative of the nation and not merely of a state or a congressional district; the concentration of authority in one disinterested servant of the whole gave him a decisiveness as well as a vision that the other branches lacked.”30 So much for Jefferson’s earlier concerns about the threat to legislative independence posed by vigorous executive action.

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But perhaps Jefferson’s most striking deployment of executive power came during the administration of the embargo between 1807 and 1809. Mashaw observes that the embargo “featured stunning delegations of discretionary authority to the President and to lower-level officials; as well as heroic struggles by the President and the Secretary of the Treasury to unify administration.”31 Note for starters who was President Jefferson’s chief deputy and enforcer of the embargo laws: the secretary of the treasury. There was no hint here that the Treasury Department was in any way independent of the president or subservient to Congress, and Treasury Secretary Albert Gallatin functioned as the president’s loyal subordinate and right-hand man. This fact alone shows the error into which Lawrence Lessig and Cass Sunstein stumbled when they wrongly claimed the original Treasury Department was not an executive department, a claim Mashaw mistakenly accepted in his earlier article on the history of administrative law, discussed above in the chapter on President Washington. 32 Indeed, in his latest article Mashaw notes that the powers the Embargo Act “gave the executive branch over American commerce” make the supposedly landmark Interstate Commerce Act of 1887 “seem almost pathetic by comparison.” Mashaw adds that the “embargo was a commercial regulatory experiment” of great novelty that was at least as ambitious as Hamilton’s mercantilism or Washington’s assertions of presidential power over foreign policy. 33 Strikingly, the Embargo Act, which was to be administered by lower-level customs employees of the Treasury Department, provided that a number of actions could only be taken with the president’s approval. Thus, Mashaw notes that ships could not be cleared “from any harbor adjacent to foreign ports without the specific authorization of the President himself.” The Enforcement Act of 1809 provided that collectors should deny permits to load ships “whenever they receive instructions to that effect by the direction of the President of the United States.” The same act gave the president the power to “employ such part of the land or naval forces or militia of the United States, or of the territories thereof, as may be judged necessary . . . for the purposes of preventing illegal departure of any ship or vessel, or of detaining, taking possession of and keeping in custody any ship or vessel, or of taking into custody and guarding any specie, or article of domestic growth, produce or manufacture, and also for the purpose of preventing and suppressing any armed or riotous assemblage of persons, resisting the custom house officers in the exercise of their duties, or in any manner opposing the execution of the laws laying an embargo, or otherwise violating, or assisting and abetting violations of the same.”34 Mashaw writes, “The President could use the full force of the Army, Navy, and militias not just to

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suppress insurrection, but simply to prevent the violation of any provision of the embargo statutes. . . . This was regulatory authority of astonishing breadth, and administrative discretion of a breathtaking scope.”35 Jefferson’s powers of political control over the administration of the embargo were immense. Mashaw notes that the “President was granted almost unlimited authority to decide specific cases, to direct the activities of lowerlevel personnel, and to suspend the operation of the embargo (with such exceptions as he deemed prudent).” Jefferson asked that “prosecutors allow him to judge personally whether the death penalty should be sought for convicted violators of the embargo’s prohibitions.” While the “embargo legislation obviously required thousands of individual decisions by customs collectors, naval officers and U.S. attorneys,” the “statutes seemed to give the President a personal responsibility for granting permits and reviewing seizures.” Mashaw adds that the “permits issued from a single source, the President, who had his policy advisor, the Secretary of the Treasury, close at hand.”36 Treasury Secretary Gallatin was extremely energetic and thorough in implementing President Jefferson’s embargo, issuing “584 circulars or letters of instruction to enforcement personnel concerning the administration of the embargo.” “The collectors clearly needed guidelines, and Gallatin supplied them.” Gallatin, for example, transmitted instructions about certain shipments of flour and asked “for weekly information on imports and exports to be relayed to the Treasury Department,” while awaiting personal instructions from the president on the matter. When Congress gave the president power to call on state militias in 1809 to enforce the embargo, reports Mashaw, “Jefferson asked the governors to pick officers from their state militias to be in charge of detachments that might be called upon by federal officers to enforce obedience to the embargo.”37 In sum, Henry Adams proclaimed that Jefferson “assumed the responsibility for every detail of [the embargo’s] management.”38 All of this is not to deny that Mashaw is right when he says that “Jefferson was not permitted to do everything that he was prepared to do.”39 The most striking example of the limits on Jefferson’s power came in a lower court decision called Ex Parte Gilchrist.40 In this case, the president had overridden the judgment of the collector of custom at Charleston by presuming that all vessels loaded with provisions were suspicious when in the collector’s view a particular vessel was not suspicious. The owner of the vessel in question sought a writ of mandamus from the circuit court requiring the collector to clear his vessel. Judge Johnson, an appointee of President Jefferson’s, granted the writ, construing the statute in question as denying the president the power to direct the collector in the exercise of his

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discretion. In the process, Mashaw argues, the court implicitly held that the president did not have “inherent authority to direct lower-level officials in the exercise of their discretion under a statute—at least where the statute seemed to demand that the lower-level officer exercise his own judgment based on the facts and circumstances of the particular case.”41 Although Mashaw thinks Ex Parte Gilchrist is harmful to the theory of the unitary executive, all it shows is that Congress can deny the president the aid of enforcement personnel like the collector in question. Had the president wanted to, he could have denied the vessel clearance himself. Moreover, in the wake of Gilchrist, Congress passed the 1809 Enforcement Act, which as we note above delegated sweeping powers to the president to intervene in particular cases. Just as important, the Jefferson administration publicly and angrily denounced the Gilchrist decision and refused to acquiesce in it. Mashaw notes, “The President was outraged at this usurpation of his authority by a judge—even one whom he had appointed. He immediately demonstrated his contempt for the fi nality of judicial interpretation. Jefferson secured an opinion from his attorney general, Ceasar A. Rodney, that controverted Johnson’s statement of the law. Jefferson then distributed Rodney’s opinion widely to the press and to the collectors of revenue. The latter were instructed to ignore Johnson’s opinion and to follow the President’s instructions. The press reported that collectors were following the Attorney General’s opinion rather than Johnson’s.” President Jefferson emphatically did not acquiesce in judicial efforts to interfere with his power to enforce the embargo, and Congress followed up by granting the president sweeping powers. It is for this reason that Mashaw rightly refers to what he calls “the extreme ‘presidentialism’ of the embargo system.”42 There was one additional development during the Jeffersonian period that Mashaw discusses in depth, and that is the emergence of a bureaucratized system for dividing and selling public land. This led in Mashaw’s opinion to our “fi rst system of mass administrative adjudication.” Presidents most likely did not intervene in this system because they were content to leave these matters to subordinates and because there was not an overriding national crisis like the foreign policy crisis that had led to the passage of the Embargo Act. Mashaw concedes that “the Jeffersonian Republicans” did not “understand administration as a function to be performed by independent experts, insulated from politics. That idea, too, comes later.”43 In conceding as much, Mashaw admits that Lessig and Sunstein were simply wrong in their claim that the original understanding allowed for a sphere of separation between the president and the administration. That idea does not have roots in the practice of either the Federalist or the Jeffersonian presidents.

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Jefferson’s expanding view of presidential power is also reflected in what is perhaps the most famous and consequential legacy of his presidency: negotiation of the Louisiana Purchase. Strikingly, this negotiation was initiated by the issuance of a presidential command that some regard as one of the fi rst executive orders.44 As Gerhard Casper suggests, the Louisiana Purchase raised serious separation-of-powers concerns as well as federalism concerns. Although Jefferson had initially opined that the Constitution would have to be amended before the federal government would have the authority to undertake the Louisiana Purchase,45 in a remarkable letter written in 1803 Jefferson sought to justify the Louisiana Purchase in the absence of such an amendment by advancing an extraordinarily broad, almost Lincolnian, view of presidential power “to act as a ‘guardian’ or ‘steward’ for the people” even when the Constitution strictly construed did not allow for this: The Executive in seizing the fugitive occurrence, which so much advances the good of their country have [sic] done an act beyond the Constitution. The Legislature in casting behind them metaphysical subtleties, and risking themselves like faithful servants, must ratify & pay for it, and throw themselves on their country for doing for them unauthorized what we know they would have done for themselves had they been in a situation to do it. It is the case of a guardian, investing the money of his ward in purchasing an important adjacent territory; & saying to him when of age, I did this for your good; I pretend to no right to bind you; you may disavow me, and I must get out of the scrape as I can: I thought it my duty to risk myself for you. But we shall not be disavowed by the nation, and their act of indemnity will confi rm & not weaken the Constitution, by more strongly marking out its lines. 46

Jefferson was defiant upon leaving office that “to lose our country by a scrupulous adherence to written law, would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us; thus absurdly sacrificing the end to the means.”47 This defense of the Louisiana Purchase suggests that Jefferson certainly cannot be ranked as a weak president or as one who was unwilling to use the full powers of the office when the occasion demanded it. This of course makes sense intuitively. Jefferson was a popular and charismatic political leader, the author of the Declaration of Independence, and one of the foremost statesmen of his day. It would be astonishing if such an individual were to act timidly in office, and Jefferson certainly did not do so. Rather, he used the full panoply of powers left to him by his Federalist predecessors and, as Peter Shane and Harold Bruff have indicated, he “set a precedent for a strong Presidency, one which would be taken to heart by several later executives.”48

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By the time Jefferson had completed his two terms in office, he was as enthusiastic and committed an advocate of the unitary executive as has ever walked the earth. On January 26, 1811, Jefferson wrote a striking letter to a French friend, A. C. V. C. Destutt de Tracy, in which he noted that if Washington’s cabinet had been a directorate, “the opposing wills would have balanced each other and produced a state of absolute inaction.” It was the presence of a strong, unitary chief executive that provided the “regulating power which would keep the machine in steady movement.” Jefferson also compared the American presidency with the plural executive created by the French Revolutionaries: One of [Montesquieu’s] doctrines, indeed, the preference of a plural over a singular executive, will probably not be assented to here. When our present government was fi rst established, we had many doubts on this question, and many leanings towards a supreme executive council. It happened that at that time the experiment of such an one was commenced in France, while the single executive was under trial here. We watched the motions and effects of these two rival plans, with an interest and anxiety proportioned to the importance of a choice between them. The experiment in France failed after a short course, and not from any circumstances peculiar to the times or nation, but from those internal jealousies and dissensions in the Directory, which will ever arise among men equal in power, without a principal to decide and control their differences. We had tried a similar experiment in 1784, by establishing a committee of the States. . . . They fell immediately into schisms and dissensions. . . . This was then imputed to the temper of two or three individuals; but the wise ascribed it to the nature of man. 49

There can be little doubt, then, that Jefferson’s views of presidential power inclined strongly in the direction of a unitary executive. By the end of his administration, Jefferson was unquestionably a strong and effective advocate of presidential power.

4

James Madison

James Madison was, along with James Wilson, one of the key architects of the presidency at the Constitutional Convention, and he was a vigorous advocate both of a strong presidency and of the view that the Constitution gave the president the removal power. Madison had favored the Virginia Plan at the Philadelphia Convention, under which both houses of Congress were to be apportioned by population, and he was an ardent nationalist in the 1780s. Accordingly, he was loath to expand the prerogatives of the Senate either over removals or over appointments to fill the vacancies thus created, since the Senate was the most state-oriented institution in the national government. To the extent that the Senate represented the states whereas the presidency was more nationalist, it should come as no surprise that the early Madison would favor a broad presidential removal power, given the views he had expressed at the Philadelphia Convention. Thus, Madison wrote in a letter to Edmund Randolph in 1789, “I think it best to give the Senate as little agency as possible in Executive matters, and to make the President as responsible as possible in them. . . . I see and politically feel that that will be the weak branch of the Government.”1 Madison maintained these views as a member of the First Congress. As James Hart noted, “The student of our constitutional history cannot fail to be impressed by the fact that the theory that the opening sentence of Article

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II of the Constitution is a grant of ‘the’ executive power was expressed by Madison, Jefferson and Hamilton. Of their historic pronouncements the fi rst in time was that of Madison in the removal debate of 1789.”2 According to Madison, [Where the Constitution] has left any particular department in the entire possession of the powers incident to that department, I conceive we ought not to qualify them further than they are qualified by the constitution. . . . The constitution affi rms, that the executive power shall be vested in the President. Are there exceptions to this proposition? Yes, there are. The constitution says, that in appointing to office, the Senate shall be associated with the President. . . . Have we a right to extend this exception? I believe not. If the constitution has invested all executive power in the President, I venture to assert that the Legislature has no right to diminish or modify his executive authority. The question now resolves itself into this, Is the power of displacing, an executive power? I conceive that if any power whatsoever is in its nature executive, it is the power of appointing, overseeing, and controlling those who execute the laws. 3

Thus, Madison placed himself squarely on the record as an advocate both of the constitutional grant theory of the Article II Vesting Clause and of the view that the executive power conferred by that clause included a power of removal. As is well known, Madison briefly wavered in this view in his comments one day on the House floor during the debate over the office of the comptroller of the treasury, but he swiftly returned to the unitary executive fold after other members of Congress objected to his Treasury proposal on unitarian grounds. Between the Decision of 1789 and the Revolution of 1800, Madison’s enthusiasm for executive power waned as he fell into Jefferson’s opposition camp. It was during this period that Madison wrote his Helvidius letters discussed in chapter 1, in which he challenged Hamilton’s argument for broad foreign policy making powers derivable from the Article II Executive Power Vesting Clause. Madison’s argument in the Helvidius letters is in tension with, but not necessarily inconsistent with, his argument for a presidential removal power derivable from the Vesting Clause. One could well believe that the “Executive Power” conferred by Article II included a removal power but did not include the unilateral presidential powers over foreign policy for which Hamilton was arguing. Other parts of the Constitution would support this construction: the Take Care Clause supports construing the Vesting Clause as granting removal power, while the Declaration of War and Treaty-Making Clauses support the Madisonian view of a more

James Madison

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limited power in the foreign policy arena. Thus, Madison’s statements in the Helvidius letters do not detract from our argument that he falls squarely in the unitary executive camp. It is perfectly consistent with the theory of the unitary executive to reject broad, unenumerated presidential powers over foreign policy. After the Revolution of 1800, Thomas Jefferson assumed the presidency for eight years, and, as we have discussed, he became a strong advocate of presidential power. Madison did not undergo a similar transformation during his eight years in office, although more for reasons of his personality than because of his constitutional beliefs. James Madison did not exert the degree of broad control over the executive branch his predecessors had exercised. Despite his dynamic role in framing the Constitution and in supporting the Decision of 1789, he proved to be a weak president and often found his policies frustrated by Congress. That being said, nothing in the conduct of the Madison administration in any way suggested that Madison acquiesced to any dissipation of the unitariness of the executive branch. Quite the contrary, Madison continued to exert his direct influence over the departments, even going so far as to redraft ordinary correspondence issued by the State Department.4 Madison did not hesitate to exert his control over the executive branch by using his power of removal. He called for the resignation of his secretary of state Robert Smith, and he also compelled the resignation of Secretary of War John Armstrong. Congress did begin to resist presidential control of the department heads in 1814, however, after Madison removed Gideon Granger as postmaster general. In response to this removal, the Senate debated a resolution calling upon the president “to inform the Senate whether his office of Postmaster General be now vacant, and, if vacant, in what manner the same became vacant.” But in the end the Senate rejected this resolution, concluding that it did not have the right to make such an inquiry. 5 Leonard White describes the general practice with respect to removals during Madison’s administration as follows: “Madison removed twentyseven presidential officers during his eight years in the White House. Almost without exception they were officers collecting the revenue. Madison was under some pressure after the War of 1812 to fi nd civil employment for supernumerary military officers, but declined to disturb the civil service. He was prepared to favor meritorious and indigent officers, but only where a removal could be justified ‘by legitimate causes.’ Crawford once remarked that Madison could not bear to turn men out of office for ‘simple incapacity.’”6 Clearly, then, the removal power did not lapse during Madison’s years, although it was not used very vigorously. Of course, after eight years

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of Jefferson in the White House, Madison would not have felt the need experienced by his two immediate predecessors to make more removals. Finally, Madison concurred, although with caution, in Jefferson’s ambitiously expressed views concerning the power of the president to engage in coordinate constitutional construction or departmental review. Writing many years after he had left office, Madison observed, “As the Legislative, Executive, and Judicial departments of the United States are co-ordinate, and each equally bound to support the Constitution, it follows that each must be guided by the text of the Constitution according to its own interpretation of it; and, consequently, that in the event of irreconcilable interpretations, the prevalence of the one or the other department must depend on the nature of the case, as receiving its fi nal decision from the one or the other, and passing from that decision into effect, without involving the functions of any other.” Madison, however, qualified the harshness of his endorsement of the Jeffersonian view of coordinate construction, with its sweeping implication of a presidential power to decline to enforce a law the president alone thought was unconstitutional. He said that ordinarily it would fall to the judiciary to construe the Constitution, and he pointed out some reasons why so long as the judicial bench was “happily fi lled” the public would have the most confidence in its constructions of the Constitution.7 Thus, in the end Madison was something of a moderate on the question of coordinate construction. In theory, he agreed that Jefferson was right, and he endorsed full-fledged departmentalism as his bedrock constitutional analysis. But in practice he wisely doubted whether in ordinary times the constitutional system should operate that way. We suspect Madison would have approved of the practice that has actually grown up under the Constitution of reserving executive and legislative construction for those rare periods of crisis that have punctuated American constitutional history,8 and for laws that clearly encroach on core executive prerogatives. Thus, it might be fair to conclude that Madison was enough of a departmentalist that he would have embraced the core thesis of this book were he alive to read it. In sum, Madison supported executive power throughout his long and distinguished career, particularly with respect to law execution and removals. His practice as our nation’s fourth president is fully consistent with that view, even if he was sometimes an ineffectual leader. After he left office, Madison remained in the unitary executive camp for the rest of his long and productive life. Between 1817 and his death in 1836, Madison staunchly defended the president’s removal power at every turn, opposing, as we shall discuss below, the Tenure of Office Act of 1820, even though it did not limit presidential removal power, and vigorously

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defending Andrew Jackson’s use of the removal power, even though he did not especially like Jackson. Thus, Madison observed in an 1834 letter to Edward Coles: The [Senate’s] claim, on constitutional ground, to a share in the removal, as well as appointment of officers, [is] in direct opposition to the uniform practice of the Government from its commencement. It is clear that the innovation would not only vary essentially the existing balance of power, but expose the Executive occasionally to a total inaction, and at all times to delays fatal to the due execution of the laws. Another innovation brought forward in the Senate claims for the Legislature a discretionary regulation of the tenure of offices. This also would vary the relation of the departments to each other, and leave a wide field for legislative abuses. The power of removal like that of appointment, ought to be fi xed by the constitution, and both like the right of suffrage and apportionment of representative, not be dependent on the legislative will. . . . But apart from the distracting and dilatory operation of a veto in the Senate on the removal from office, it is pretty certain that the large States would not invest with that additional prerogative a body constructed like the Senate, and endowed as it already is, with a share in all the departments of power, Legislative, Executive, and Judiciary. It is well known that the large states, in both the Federal and State Conventions, regarded the aggregate powers of the Senate as the most objectionable feature in the Constitution.9

Madison repeated these views in other letters written during the same period. In a letter to John M. Patton, Madison remarked: “Should the controversy on removals from office end in the establishment of a share in the power, as claimed for the Senate it would materially vary the relationship among the component parts of the government, and disturb the operation of the checks and balances as now understood to exist.”10 Madison similarly observed in a letter to Edward Coles that the Senate’s opposition to Andrew Jackson’s removal of Treasury Secretary William Duane was “in opposition to the principles and practice of every administration, my own included, and varying materially, in some instances, the relations between the great departments of the government.”11 An interesting feature of these letters is that they confi rm that Madison’s position on presidential removal power, taken as a member of the House of Representatives, may have been motivated in part by an early skepticism about the institution of the Senate. In sum, James Madison was at all times during his long and remarkable career a defender of the unitary executive. This is clear whether one considers

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his role in the Philadelphia Convention of 1787, his role in the Decision of 1789, his role as president of the United States, between 1809 and 1817, or his role as a senior statesman writing letters in 1834, a mere two years before his death. It is difficult to imagine how someone could outdo Madison in consistently and vigorously defending the unitary executive.

5

James Monroe

James Monroe proved to be a stronger president than James Madison, although he lacked the charismatic personality and leadership abilities of Thomas Jefferson. He too proved to be a committed believer in the vital importance of a unitary executive structure, but regrettably he did not always act on his beliefs. Monroe’s support for the unitary executive and for the importance of administrative hierarchy became evident long before he assumed the presidency. In a letter to Congressman Adam Seybert regarding the Patent Office written in 1812 while Monroe was serving as secretary of state, the future president wrote: “I have always thought that every institution, of whatsoever nature it might be, ought to be comprised within some one of the departments of Government, the Chief of which only should be responsible to the Chief Executive Magistrate of the Nation. The establishment of inferior independent departments, the heads of which are not and ought not to be members of the Administration, appears to me to be liable to many serious objections.”1 Monroe had also championed presidential control in military matters in 1815, when as head of the War Department he prepared a report for a Senate committee championing unilateral presidential control over the state militias once they had been called into the service of the United States. Two state governors had challenged presidential authority unilaterally to

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call forth the state militias, a position Monroe described as being “fraught with mischief” and “absurd.”2 Monroe assumed the presidency in 1817, and his two terms in office were quite successful, with the result that the office regained some of the luster it had lost during Madison’s indecisive and timorous eight years in office. As president, Monroe vigorously defended and asserted executive power in a number of contexts, most famously in announcing the Monroe Doctrine which was embodied in his Seventh Annual Message to Congress. 3 The Monroe Doctrine was an important statement of American foreign policy, analogous to George Washington’s Neutrality Proclamation discussed above, and its unilateral issuance by President Monroe thus suggests his willingness to exercise the executive power granted by the Vesting Clause of Article II vigorously in the foreign policy context. Chief Justice Vinson, dissenting in the Steel Seizure Case many years later, observed: A review of executive action demonstrates that our Presidents have on many occasions exhibited the leadership contemplated by the Framers when they made the President Commander in Chief, and imposed upon him the trust to “take Care that the Laws be faithfully executed.” With or without explicit statutory authorization, Presidents have at such times dealt with national emergencies by acting promptly and resolutely to enforce legislative programs, at least to save those programs until Congress could act. Congress and the courts have responded to such executive initiative with consistent approval. . . . Jefferson’s initiative in the Louisiana Purchase, the Monroe Doctrine, and Jackson’s removal of Government deposits from the Bank of the United States further serve to demonstrate by deed what the Framers described by word when they vested the whole of the executive power in the President. 4

Chief Justice Vinson lists the Monroe Doctrine along with other historic unilateral exertions of the executive power because of the important role that doctrine was to play in defi ning the future of American foreign policy. It is thus clear that James Monroe, as the author of the Monroe Doctrine, was a powerful occupant of the chief executive office who knew well how to exercise the executive power vigorously in the foreign policy sphere. While Monroe was more cautious with domestic policy matters, he did on occasion assert presidential prerogatives. On two occasions Monroe expressed the view that the president ought to be able to control executive branch communications to Congress. On the fi rst occasion, in 1819, the House of Representatives asked Secretary of War John C. Calhoun for his opinion on building some roads and canals for allegedly military purposes.

James Monroe

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Calhoun was known to favor such internal improvements, while Monroe was known by the House to believe that the federal government lacked constitutional power to undertake them. The issue thus arose “whether department heads in making reports to Congress had a responsibility to reflect the opinions of the President rather than their own.”5 As reported by Secretary of State John Quincy Adams, Monroe “expressed an opinion that the call of the House directly upon the Secretary of War for this report was itself irregular, and not conformable to the spirit of the Constitution of the United States, the principle of which was a single Executive. . . . And as the heads of Departments were executive officers under the President, it was to be considered whether the President himself was not responsible for the substance of their reports.”6 The matter arose again in 1820 when Monroe and Adams complained about Secretary of the Treasury Crawford’s transmission of annual estimates directly to Congress without fi rst sharing the fi nancial program with Monroe. This practice, which had been followed by all the early treasury secretaries since Hamilton, was viewed by both Adams and Monroe as being unconstitutional. Leonard White reports that Adams “thought the practice ‘altogether inconsistent with the spirit of the Constitution,’ and one that ‘ought immediately to be changed.’ Monroe asked Adams to look into the law and expressed his own opinion that the practice was wrong.” For whatever reason, nothing was done to correct this practice, but there can be little doubt that Presidents Monroe and John Quincy Adams objected to it. White is plainly correct that Monroe was concerned that there be “left no loose ends of administration unconnected with the departments and independent of presidential direction.”7 Monroe also asserted his belief in the hierarchy of command in an exchange of views with then General Andrew Jackson, who for a time attempted to object to orders being issued directly to his subordinates by the War Department. Monroe pointedly reminded Jackson that the “orders of the war dept are . . . the orders of the President,” and according “to my view of the subject, no officer of the army can rightfully disobey, an order from the President.” Monroe went on to agree with Jackson that the War Department should not ordinarily communicate with Jackson’s army while bypassing him as the commanding general of it.8 In addition, Monroe maintained supremacy over the administration by exercising the presidential removal power, albeit in a gingerly and tepid fashion. White notes that “Monroe . . . removed twenty-seven civil officers in his eight years in the White House. One-third were in the foreign service, all consuls with a single exception; one-third were collectors of revenue.”9

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Although, according to John Quincy Adams, Monroe was too hesitant to use his power to remove,10 and although he plainly did not exercise the removal power often or in major cases, he did in fact exercise the power. When we remember that Monroe reached the White House at a time when the Republicans had been in office for sixteen years, it is perhaps not so surprising that there were few removals. By 1817, most federal officials in office had been appointed by Monroe’s good friends and neighbors Thomas Jefferson and James Madison. Monroe apparently issued the fi rst ever signing statement in American history, thus creating a tool that later presidents, including Ronald Reagan, Bill Clinton, and the two Presidents Bush, would use to augment presidential power.11 Christopher Kelley notes that the statement accompanied a law that “both reduced the size of the army and laid out how the president would select new officers. Monroe had gotten criticism from Congress for not abiding by the congressional demand to appoint officers,” arguing instead in his signing statement that this was a prerogative of the president.12 By creating the signing statement as a vehicle through which the president could express his interpretations of statutes passed by Congress and of constitutional problems that those statutes raised, Monroe greatly strengthened the president’s hand. In the late twentieth century the presidential signing statement was to become an important tool of presidential power and of the unitary executive. The Monroe administration did bear witness to the first event that could even arguably be said to support a historical practice of presidential tolerance of any deviation whatsoever from the theory of the unitary executive (more than three decades after the Constitution of 1787 had been adopted), when Congress enacted the fi rst substantial limitation on presidential control of federal patronage: the Tenure of Office Act of 1820. Passed without any significant debate, the 1820 act provided that executive officers serving outside Washington, D.C., “shall be appointed for terms of four years, but shall be removable from office at pleasure.”13 The act was vigorously and fi rmly denounced by former presidents Jefferson and Madison. Jefferson warned, “It saps the constitutional and salutary functions of the President, and introduces a principle of intrigue and corruption, which will soon leaven the mass, not only of Senators, but of citizens. It is more baneful than the attempt which failed in the beginning of the government to make all officers irremovable, but with the consent of the Senate. It will keep in constant excitement all the hungry cormorants for office, render them, as well as those in place, sycophants to their Senators, engage these in eternal intrigue to turn one out and put in another, in cabals

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to swap work, and make of them what all executive directories become, mere sinks of corruption and faction.”14 Madison responded in kind: “The law . . . is pregnant with mischiefs such as you describe. . . . If the error be not soon corrected, the task will be very difficult; for it is of a nature to take a deep root.”15 Although the act did not directly place any limits on the president’s removal power, Madison was concerned that, if carried to its logical conclusion, it would lead to such limits. In his view, if a law can displace an officer every four years, “it can do so at the end of every year, or at every session of the Senate, and the tenure will then be the pleasure of the Senate as much as of the President, and not of the President alone.”16 Moreover, Madison was concerned that in light of the Decision of 1789, the inclusion of language providing that these officers “shall be removable from office at pleasure” implied that the removal power was conveyed by congressional, rather than constitutional, grant.17 Although Monroe signed the bill into law without objection, he later came to share Madison’s concerns. As then Secretary of State John Quincy Adams wrote in his memoirs, “Mr. Monroe unwarily signed the bill without adverting to its real character. He told me that Mr. Madison considered it as in principle unconstitutional. . . . Mr. Monroe himself inclined to the same opinion, but the question had not occurred to him when he signed the bill.” These concerns led Monroe to make it his policy to renominate all honest executive officials when their commissions expired, ensuring that the act would have little immediate impact.18 The significance of Monroe’s initial acceptance of the fi rst Tenure of Office Act should not be overstated. In fact, the act’s establishment of fi xed terms for certain federal officials only implicated the removal power tangentially and did not purport to limit the removal power in any way.19 The fact that Monroe voiced his objections to the bill as soon as he became aware of the threat to the removal power posed by the act also indicates that his initial silence stemmed more from inadvertence than acquiescence. Any remaining questions about Monroe’s willingness to protect the president’s power to remove were erased in 1824, when Monroe refused to comply with a House request to provide the documents connected with the suspension of a naval officer as an improper interference with executive functions. 20 Together these considerations effectively vitiate any inference that, in initially failing to object to the Tenure of Office Act, Monroe acquiesced to any infringement on the president’s power to remove. On March 3, 1817, the last day of the Madison administration, Congress gave the comptroller of the treasury the power “to direct suits and legal proceedings, and to take all such measures as may be authorized by the laws

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to enforce prompt payments of all debts to the United States.”21 Three years later, Congress passed an important statute indicating that henceforth the district attorneys were to be subject to the directions of agents in the Treasury Department, a power later conferred on the solicitor of the Treasury. 22 This act reined the district attorneys in further, subjecting them to greater executive branch scrutiny and control. A later attorney general opinion confi rmed the president’s power to overrule the Treasury officials in directing the district attorneys. 23 The president’s control over law enforcement that began under Washington, Adams, Jefferson, and Madison thus continued under Monroe. Finally, it must be noted that Monroe’s attorney general William Wirt compiled a somewhat equivocal record on some of the other aspects of the unitary executive. Before describing that record, it should be noted in Wirt’s (and Monroe’s) defense that Wirt was by far the most successful and powerful attorney general the nation had had up to that point. Wirt created many of the most important traditions and institutions that surround the office of attorney general, and he helped to lay the groundwork for the eventual creation of the Department of Justice many decades later. A lack of resources and a cautious personality may have prevented Wirt from doing even more and may have contributed to his tendency to decline power that he lacked the resources to exercise, but he nonetheless deserves enormous credit for putting the attorney general on an equal footing with the other three principal cabinet secretaries. Monroe deserves some of this credit as well, for the elevation in stature of the attorney general was an important development, with long-term implications for the theory of the unitary executive. It could not have occurred without Monroe’s support and without his selection of so able and energetic a lawyer as Wirt to hold the office. Nonetheless, Wirt’s record with respect to the unitary executive is somewhat mixed. An opinion he issued when serving as John Quincy Adams’s attorney general noting that “the power of the President to dismiss . . . at pleasure, is not disputed” suggests that Wirt fi rmly supported the president’s power to remove. 24 Wirt’s position on the power of direction is more equivocal. For example, on March 7, 1823, Wirt issued an opinion concluding that a law authorizing accounting officers to settle the accounts of the vice president was “subject to the revision and fi nal decision of the President.” Under the specific statute, “the accounting officers must act on the subject in the fi rst instance; the power of the President being merely in the nature of appellate power; and that, consequently, he cannot, in the regular execution of the law, put those officers aside, and take the whole subject at once into his own hands.” Nonetheless, Wirt emphasized that once the accounting

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officers had acted, their decisions remained subject to the president’s “revising power.”25 Wirt took a somewhat contradictory position seven months later in an opinion that challenged the president’s authority to direct the actions of accounting officers in advance and to review their exercise of discretion after the fact. Wirt argued, “It could never have been the intention of the constitution, in assigning this general power to the President to take care that the laws be executed, that he should in person execute the laws himself.” While the Take Care Clause did “place[ ] the officers under [the President’s] general superintendence,” it only authorized the President to displace, prosecute, or impeach officials who fail to execute the law properly; it did not grant to the president the “power to interfere” with those officials’ actions. Wirt believed that requiring the president “to take upon himself the responsibility of all the subordinate executive officers of the government” represented “a construction too absurd to be seriously contended for.” Wirt continued, “If the laws, then, require a particular officer by name to perform a duty, not only is that officer bound to perform it, but no other officer can perform it without a violation of the law; and were the President to perform it, he would not only be not taking care that the laws were faithfully executed, but he would be violating them himself. The constitution assigns to Congress the power of designating the duties of particular officers: the president is only required to take care that they execute them faithfully.”26 Wirt relied upon the authority of this opinion to reject summarily subsequent requests for presidential intervention in matters before accounting officials. 27 Wirt switched positions again in an 1827 opinion affi rming the president’s right to direct a federal district attorney’s prosecution of a particular suit. Wirt “entertain[ed] no doubt of the constitutional power of the President to order the discontinuance of a suit commenced in the name of the United States in a case proper for such order.” In fact, if the suit lacked a proper legal basis, the Take Care Clause “not only authorized, but required [the President] by his duty, to order a discontinuance of such vexation.”28 This 1827 opinion is particularly problematic for the critics of the unitary executive who have argued that the comptroller of the treasury was independent of the president and that giving the comptroller the power to prosecute certain suits was an early example of the fragmentation of the unitary executive. 29 Wirt’s opinion clearly suggests that the president had full power to direct the actions of the comptroller and that giving the comptroller authority over some types of cases did not vitiate the president’s control over federal prosecutions.

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It is far from clear that when read together these opinions properly constitute a defi nitive disavowal of the unitary executive. First, the analysis is incomplete, in that the opinions analyzed only the presidential review of subordinates’ actions under the Take Care Clause, without considering the impact of the Article II Vesting Clause. 30 Furthermore, whether this record can be fairly attributed to Monroe is certainly subject to debate. A position taken in an attorney general’s opinion does not necessarily represent the official position of an administration, and presidents have often ignored positions taken by their attorneys general and substituted their own judgment instead. 31 Although Wirt could have tried to reconcile these somewhat contradictory opinions, 32 he made no attempt to do so, and subsequent attorney general opinions have vacillated on this point ever since. Fortunately, the methodology of coordinate construction relieves us of the need to reconcile Wirt’s opinions. For our purposes, it is sufficient to note that even if the views expressed in Wirt’s opinions are attributed to the president and are read for all they are worth, they still fall far short of establishing an extended pattern of presidential acquiescence to a nonunitary executive branch.

6

John Quincy Adams

John Quincy Adams was, like his father, a strong believer in the value of a hierarchical, unitary executive branch. Thus, Adams was (as Leonard White puts it) “temperamentally a man to restore the presidency to its original high estate.” As White elaborates, “The last of the Jeffersonians in the White House, John Quincy Adams, was in truth more nearly a Federalist than a Republican. His political doctrines resembled those of Alexander Hamilton, and his ideals of administration were those of George Washington and his father, John Adams.”1 Adams’s support for executive unitariness surfaced long before he entered the White House. While serving as secretary of state during the Monroe administration, Adams reportedly wrote to his wife, “For myself I shall enter upon the functions of my office with a deep sense of the necessity of union with my colleagues, and with a suitable impression that my place is subordinate. That my duty will be to support, and not to counteract or oppose, the President’s administration, and that if from any cause I should fi nd my efforts to that end ineffectual, it will be my duty seasonably to withdraw from the public service.”2 As we noted earlier, Adams had sided in 1819 with President Monroe in the dispute over whether department heads could appropriately make reports to Congress that disagreed with the president’s constitutional interpretations. Adams reports in his memoirs that he

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thought “there would be an obvious incongruity and indecency that a head of Department should make a report to either House of Congress which the President should disapprove.”3 Adams continued to adhere to these positions after he ascended to the presidency, despite the controversy surrounding the election of 1824. Then Senator Andrew Jackson received 131 electoral votes, while Adams received ninety-nine, William Crawford forty-one, and House Speaker Henry Clay thirty-seven. Clay threw his support behind Adams when the election was resolved by the House, and Adams named Clay secretary of state in what came to be called the “Corrupt Bargain.” After giving an inaugural address that was “Federalist in its conception,” Adams insisted on the same degree of loyalty from his own cabinet members that he had shown Monroe. And in 1825, when he asked a former rival from Monroe’s cabinet, William Crawford, to stay on as secretary of the treasury, Crawford declined due to irreconcilable policy disagreements. Moreover, consistent with the advice Adams had given Monroe, Adams refused to disclose secret information to a friendly congressman, indicating that he was forbidden to do so by the Constitution. John Quincy Adams was clearly deeply and personally committed to the core principles of a unitary and independent executive branch.4 Adams effectuated those principles by continuing the moderate reappointment and removal practices of Monroe, while echoing Jefferson’s criticisms of the Senate’s attempts to influence federal patronage. Adams noted, “Efforts have been made by some of the senators to obtain different nominations, and to introduce a principle of change or rotation in office at the expiration of these commissions, which would make the government a perpetual and unintermitting scramble for office. . . . A more pernicious expedient could scarcely have been devised. . . . I determined to renominate every person against whom there was no complaint which would have warranted his removal.”5 The fact that Adams was reluctant to use his control of federal patronage for political purposes, however, did not suggest that he questioned the constitutional basis of the president’s power to remove. Backed by an opinion by Attorney General William Wirt concluding that “the power of the President to dismiss . . . at pleasure, is not disputed,”6 Adams removed twelve officials during his four years in office.7 Adams’s presidency, however, never recovered from the circumstances of his election, and his midterm congressional elections left him without influence over Congress, both houses of which were won for the fi rst time by the president’s opponents. Given his lack of political support, Adams was understandably

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cautious in exercising his presidential prerogatives, notwithstanding his fi rm belief in them. By the second half of the administration of John Quincy Adams, Congress began showing renewed interest in placing limits on the president’s removal power. In 1826, a Senate select committee on executive patronage reported a bill proposing “that, in all nominations made by the President to the Senate, to fi ll vacancies occasioned by an exercise of the President’s power to remove from office, the fact of the removal shall be stated to the Senate . . . with a statement of the reasons for which such officer may have been removed.” The committee also proposed that military officers’ commissions “continue in force during . . . good behaviour,” and that such officers be only dismissed pursuant to a court-martial or by congressional action. Motivated more by the next election than by a desire to curtail presidential power, the committee attempted to evade the serious constitutional questions raised by these proposals by adopting a functionalist view of the Constitution, in which deviating from the specific proscriptions of the Constitution was justified so long as those deviations complied with “the spirit of the constitution in laboring to multiply the guards and to strengthen the barriers, against the possible abuse of power.” In the committee’s opinion, this more dynamic view of the Constitution was mandated by changed circumstances. “The Committee cannot imagine that the jealous foresight of the time, great as it was, or that any human sagacity, could have foreseen, and placed a competent guard upon, every possible avenue to abuse of power. The nature of a constitutional act excludes the possibility of combining minute perfection with general excellence. After the exertion of all possible vigilance, something of what ought to have been done, has been omitted, and much of what has been attempted, has been found insufficient and unavailing in practice.”8 The Senate adjourned without acting on this proposal. Nonetheless, the debate surrounding it foreshadowed the more serious challenges to the president’s removal power yet to come. By the end of John Quincy Adams’s administration, it was clear that the strong, unitary presidency created by Washington, Hamilton, and John Adams had survived the Jeffersonian period largely intact. As White argues, “The Jeffersonian era in the field of administration was in many respects a projection of Federalist ideals and practice. The political differences between Jefferson and Hamilton turned out to be much more profound and significant than their differences in the manner and spirit of conducting the public business. Jefferson and Gallatin, moreover, inherited a going concern, and it developed that a brief twelve years had been enough to set patterns that

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persisted throughout the next thirty. The Federalists disappeared as a political party, but their administrative system was adopted by their political rivals.” White concludes, “No doubt arose in the minds of the Jeffersonians concerning the administrative supremacy of the President. The department heads were responsible to him. The executive power remained where the Constitution had placed it.”9 Thus, by 1829, exclusive presidential power over law execution had already been fi rmly established, even as one of the strongest presidencies in American history was getting ready to begin.

7

Andrew Jackson

Andrew Jackson was one of the most powerful presidents in American history, and he clearly transformed and enhanced many aspects of the high office he held. In his development of the president’s role as the leader of a political party and in the force with which he pressed the president’s claim to be a direct representative of the people, Jackson clearly broke new ground. He also distinguished himself in the vigor with which he used the veto power, especially in cases where he disapproved of bills on policy grounds rather than for constitutional reasons. Finally, he used the president’s removal power and powers over law execution more energetically than they had ever been used before, and he endorsed a new principle of the desirability of rotation in office that was clearly contrary to the policy views held by his predecessors, who had favored stability in administration as a core value. From the point of view of many political scientists and historians, then, the Jackson administration marks not the end of the founding period but rather a new beginning—the start of a period that culminates in the strong modern presidencies that have characterized much of the twentieth and twenty-fi rst centuries. We do not disagree with the view that Jackson greatly enhanced the office of the presidency by providing people with an example of the leadership role that strong presidents can play. We disagree, however, with the

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claim, advanced most recently by Lawrence Lessig and Cass Sunstein, that the Jackson administration marked the advent of some new legal role for the president where for the fi rst time presidents acquired power over law execution by the whole of the executive branch, including the Treasury Department and the Post Office.1 From the perspective of a constitutional lawyer, the Jackson administration was not a new beginning: it was a reaffi rmation of the victories won by James Wilson and James Madison at the Philadelphia Convention—victories that were acknowledged by the First Congress in the Decision of 1789 and by all of Jackson’s six predecessors in the White House. It was for this reason that Madison himself agreed with Andrew Jackson’s legal claims during the Bank War despite his dislike for Jackson and his disapproval of many of Jackson’s policies. Madison wrote in 1834 that “the claim, [of the Senate] on constitutional ground, to a share in the removal, as well as appointment of officers, [is] in direct opposition to the uniform practice of the government from its commencement.”2 He also described the Senate’s position as being “in opposition to the principles and practice of every administration, my own included.”3 The key error committed by those antiunitarians who view the Jackson presidency as transformative is to confuse the separate issues of whether Jackson’s presidency was transformative legally or politically. With respect to the legal matters we have been discussing in this book, Jackson’s presidency was a reaffi rmation of claims made and settled long before: Old Hickory broke no new legal ground in his assertions about presidential control over law execution. In discussing the relevance of the Jackson presidency for the unitary executive debate, we think it is useful to divide our analysis into three sections. The fi rst section focuses on Jackson’s claims about the role of the president and his place in our constitutional system. The second section describes Jackson’s views and practice on presidential powers of removal and supervision of law execution. The third section, which is laid out in a separate chapter, illustrates the points discussed in the fi rst two sections by describing the history of Jackson’s famous and successful war to kill the second Bank of the United States.

Jackson’s Claims about the Role of the President in Our Constitutional System Andrew Jackson vigorously articulated and defended what Leonard White has called the Doctrine of Direct Representation. Jackson argued

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that the president is the direct representative of the whole people of the United States and that the cabinet secretaries are not.4 Presidential power over the cabinet secretaries follows easily from this point, as does some degree of presidential authority relative to Congress. Obviously, the president ordinarily has something of an electoral mandate from the people, while members of Congress in 1829 had a mandate only from their districts, and senators only from the legislature of their home state. Jackson’s theory built upon solid antecedents. Wilson had argued during the Pennsylvania Ratifying Convention that the method of electing the president made him “the man of the people,” as Forrest McDonald puts it, “the one governmental official who was elected to represent the entire country.”5 Similarly, Washington and Jefferson had emphasized the president’s independent electoral connection with the people. Nonetheless, Jackson stressed this aspect of presidential legitimacy more heavily and more publicly than had anyone before him, no doubt because of his loss to John Quincy Adams in the House of Representatives in 1825, and he repeatedly called for a constitutional amendment providing for direct election of the president. Jackson’s emphasis on the president’s role as direct representative of the people reinforced every other claim of presidential power he asserted. Vetoes for policy reasons, removals of recalcitrant cabinet secretaries, arguments for a presidential power of constitutional interpretation—all of these claims of presidential power were buttressed by the claim of democratic legitimacy that Andrew Jackson advanced once he gained the office that had been “stolen” from him in 1825. The net effect of Jackson’s claims of presidential power was to bring together his opponents into a new political party called the “Whig” party. The name was adopted to signify the party’s opposition to concentrated power in the hands of the chief executive”6 (the Whig Party in England having opposed royal prerogatives and having helped to lead the Glorious Revolution of 1688). The newly formed Whigs adopted opposition to executive power as a core plank of their program, and it was the Whigs who for the fi rst time—in the 1830s and 1840s—adopted the view (as did Lessig and Sunstein) that the power of the sword and the power of the purse ought to be entirely separate and that the Treasury Department should be independent of presidential control. White describes the Whigs as being so opposed to Jackson and to executive power “that they outdid the most timorous Republicans of earlier years.”7 Jackson’s Democratic Party triumphed over the Whig opposition at almost every turn during the period between 1829 and 1837. Indeed, during the entire period between 1829 and 1861 the Jacksonian Democrats won the

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presidency six times, while the Whigs won only twice. Both of the Whigs who won the presidency died in office, and one was succeeded after only one month in office by a man, John Tyler, who was “an old-school Democrat.”8 The Whigs were completely ineffectual politically as a presidential party and, during the brief periods they held the presidency, they tended to abandon their anti-executive-power views. The main significance, then, of the Whig opposition to “King Andrew I” was that it had no success with the public during Jackson’s administration or at any point thereafter. In defending presidential power, Andrew Jackson argued vehemently for a presidential role in constitutional interpretation. Like Jefferson, Madison, and Washington before him, Jackson believed that the president was coequal with the Supreme Court as constitutional interpreter, with an obligation independently to assess questions of constitutionality. He expressed his views eloquently in his Veto Message of July 10, 1832, in which he vetoed the attempt to renew the charter of the Bank of the United States: It is maintained by the advocates of the bank that its constitutionality in all its features ought to be considered as settled by precedent and by the decision of the Supreme Court. To this conclusion I cannot assent. Mere precedent is a dangerous source of authority, and should not be regarded as deciding questions of constitutional power except where the acquiescence of the people and the States can be considered as well settled. The Congress, the Executive, and the court must each for itself be guided by its own opinion of the Constitution. Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others. It is as much the duty of the House of Representatives, of the Senate, and of the President to decide upon the constitutionality of any bill or resolution which may be presented to them for passage or approval as it is of the supreme judges when it may be brought before them for judicial decision. The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both.9

Jackson’s defense of the presidential role in constitutional interpretation is obviously sweeping. It is also of great importance because it was made in so important (and fateful) a veto message. His position may have manifested itself again in his failure to take any action to enforce Chief Justice Marshall’s decision in Worcester v. Georgia,10 which sought to give the Cherokee Indians the benefit of the treaty rights they had negotiated with the federal government. It was with respect to this case that Jackson was reputed to have said, “Well John Marshall has made his decision now let him enforce it.”11

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Jackson also defended presidential power in two other ways that bear on the unitary executive debate. First, his Protest, delivered during the Bank War and discussed below, specifically endorses the view that the Executive Power Vesting Clause of Article II was a grant of power and not a mere designation of office and title. This, of course, puts Jackson squarely in the same camp with Hamilton, Jefferson, and Madison, all of whom adopted the same position. Second, Jackson’s vigorous use of the veto power on both constitutional and policy grounds left little doubt that the president would forcefully defend the prerogatives of his office against congressional attempts to impair them by, for example, curtailing presidential removal power.12 Such proposals were advanced by the Whigs in 1834 and actually passed in the Whig-controlled Senate, only to be killed off in the House of Representatives, which was then held by the Democrats.13

Jackson, the Removal Power, and the President’s Power to Execute the Laws Andrew Jackson vigorously defended presidential power in the direct context of removal authority and authority to control the execution of the laws by his subordinates. His legal position on these matters was uncompromising and was founded upon the generally shared understanding, at the time, of the powers that text and practice had recognized as presidential prerogatives. White reports, “To the costitutional argument against . . . free use of the removal power, Jackson’s friends said flatly that the issue was settled: [Daniel] Webster himself had said it for them, indeed, better than they, although he proposed to reopen what he believed to be an erroneous interpretation of the Constitution: an interpretation, he admitted, ‘settled by construction: settled by precedent: settled by the practice of the Government: and settled by statute.’”14 Jackson had no doubt about his legal power to remove subordinate officials, and all the individuals he removed (including Treasury Secretary Duane) complied readily with his orders dismissing them. The Whig opposition sought to change matters, but Jackson prevailed in his removal policy at every turn. Jackson vigorously exercised the full legal powers that text and practice conferred. Indeed, he exercised his legal powers of removal in a genuinely new and aggressive way. In doing this, Jackson was guided by a fi rm belief in what he called the benefits of “rotation in office”—what we would call term limits. Jackson believed that rotation in office would democratize the government and improve the quality of the administration by limiting opportunities for corruption and laziness in public life. He thus rejected

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the Federalist and Jeffersonian preference for a permanent and professional civil service. Unfortunately, the consequences of the Jacksonian system were less than benign, and the net result was to set in motion a train of events that would only end in the 1880s with the adoption of the civil service laws, which helped to restore some degree of quality control to the lower levels of the bureaucracy. Although Jackson fi rmly endorsed the principle of rotation in office, his actual exercise of the removal power was not quite as sweeping as his opponents sometimes seemed to think. White comments, “The shock was undoubtedly great, but the statistics show that the number of removals, although unprecedented, was small in terms of percentage. . . . [During the fi rst eighteen months of Jackson’s term, the] figures showed a total of 919 removals out of 10,093 officeholders or somewhat less than 10 per cent.” White reports that another study suggests that during the rest of Jackson’s administration “less than 20% of all officeholders were removed, and probably the figure was nearer 10 per cent,” and, if one looks at presidential offices only, 252 officers out of 612 were removed during Jackson’s two terms. Thus, although Jackson clearly used the removal power much more broadly and for reasons different from those of his predecessors, his use of that power was not quite so extraordinary as his political opponents claimed. Jackson removed more officers than all of his predecessors combined, but in percentage terms he made fewer removals than Jefferson did.15 Jackson’s most important and extraordinary removal came in 1833 with his fi ring of Treasury Secretary Duane during the Bank War, which we describe at length in the next chapter. Even before that momentous event, his removal policy had the political opposition up in arms. In 1830, Senator David Barton introduced resolutions calling upon the president to “inform the Senate of the cause or causes that existed for the removal[s]” of Theodore Hunt and William Clark.16 Barton also introduced resolutions challenging the constitutionality of Jackson’s removals.17 Shortly thereafter, Senator John Holmes offered another series of resolutions criticizing Jackson’s removal policies and requesting information on the reasons for all his removals. Holmes admonished, “A President, with unlimited discretion in removals and appointments . . . at his control, has only to will it, and he is the tyrant. It is done, it is fi nished, and the liberties of the people are gone forever.”18 Two years later, Senator Thomas Ewing introduced the most sweeping resolution of all, providing “that the practice of removing public officers by the President for any other purpose than that of securing a faithful execution of the laws, is hostile to the spirit of the Constitution, was never contemplated by its framers, is an extension of

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executive influence, is prejudicial to the public service and dangerous to the liberties of the people.”19 Although these initial resolutions were rejected, 20 in 1835, the Senate finally passed a resolution asking the president to communicate the charges that had led to the removal of Surveyor General Gideon Fitz, a communication the Senate claimed was needed for it to act on the nomination of his successor. Jackson bluntly refused to comply, charging that the resolution “either related to the subjects exclusively belonging to the executive department or otherwise encroached on the constitutional powers of the Executive.” Jackson reasoned, “The President in cases of this nature possesses the exclusive power of removal from office.” Senate interference in removals could not be tolerated, because “such a result, if acquiesced in, would ultimately subject the independent constitutional action of the Executive in a matter of great national concernment to the domination and control of the Senate.” Therefore, Jackson concluded that although he had complied with previous requests, it was now his “solemn conviction that I ought no longer . . . to yield to these unconstitutional demands. Their continued repetition imposes on me, as the representative and trustee of the American people, the painful but imperious duty of resisting to the utmost any further encroachment on the rights of the Executive.”21 The Senate retaliated by rejecting Jackson’s choice to succeed Fitz, which had been pending for three months. Jackson tried to force the issue the following year by renominating the same person to the same post. 22 The Senate again refused to confi rm him, by a vote of nearly two to one, but this did nothing to blunt the force with which Jackson defended his removal powers. The Jackson administration also vigorously defended the presidential power to supervise the execution of the laws. While not completely consistent on the issue, Jackson’s attorneys general challenged William Wirt’s conclusion that the president could not interfere with the decisions of accounting officers. For example, Jackson’s fi rst attorney general, John MacPherson Berrien, concluded that a decision of the second comptroller of the treasury “could only be set aside by the Secretary, acting by the direction of the President.”23 Jackson’s second attorney general, future chief justice Roger B. Taney, at fi rst also strongly supported the president’s power to direct all subordinate officers, including both district attorneys and accounting officers. Taney concluded, “Upon the whole, I consider the district attorney as under the control and direction of the President . . . and that it is within the legitimate power of the President to direct him to institute or to discontinue a pending suit, and to point out to him, his duty, whenever the interest of the United States is directly or indirectly concerned.” Even if Congress

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were to delegate prosecutorial discretion to some other executive official, “it would not, and could not, deprive the President of the powers which belong to him under the constitution. The power conferred on the [subordinate executive official], by the law of Congress, would be merely in aid of the President, and to lighten the labors of his office. It could not restrain or limit his constitutional powers.” And if a district attorney refused to follow the president’s directions, the president would be entitled to remove him. Consistent with Berrien’s opinion, Taney also concluded that a secretary of war’s confi rmation of an accounting officer’s decision was appealable to the president. Taney did conclude that once a secretary had confi rmed such a decision, successor secretaries could not reopen that decision. 24 A subsequent Taney opinion issued the following year wavered from this position somewhat. Taney still maintained that the president had “the legal power to order the dismissal of a suit instituted in the name of the United States” or to “compel the officer to prepare for trial and proceed to trial without delay.” However, the laws governing the settlement of accounts “seem to regard the decision of the Comptroller as fi nal” and “appear . . . not to contemplate any appeal to the President.” Therefore, Taney thought “that the decision of the Comptroller in this case is conclusive upon the executive branch of the government” and not subject to subsequent presidential review. 25 An opinion issued in between the two principal opinions clearly advised the president against overturning a decision of the accounting officers, but it is not clear whether Taney’s advice was based on policy grounds or on a belief that the president lacked the authority to intervene. 26 Taney’s successor (and one of the future House managers of Andrew Johnson’s impeachment), Benjamin F. Butler, returned to the position espoused by Berrien, relying squarely on Berrien’s opinion for the proposition that a cabinet secretary could either direct the comptroller’s resolution of any account that had not yet been fi nalized or revise the decision upon reviewing the comptroller’s report. 27 And because the secretaries were clearly subject to presidential direction, this logically implied that nothing prohibited the president from directing the actions of the accounting officers. Thus, although Jackson’s attorneys general did waver on the issue, on balance they tended to support the president’s power to direct all subordinates. Jackson’s conduct makes it clear that he personally harbored no doubts about his power to control all parts of the executive branch. Jackson dominated his cabinet secretaries, treating them, as one historian has noted, “more like a General’s orderlies than high civil officials.”28 Like Washington, Jackson also asked Congress to concentrate all legal authority in a newly formed department. 29 Jackson succeeded in effecting only the creation of a

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solicitor of the treasury, who was given the authority to control the United States attorneys. 30 Like Jefferson, Jackson took direct control over federal criminal prosecutions; in perhaps the most celebrated instance of his doing so, he ordered a district attorney to terminate condemnation proceedings then pending over jewels owned by the Princess of Orange. In this case, Attorney General Taney asked in a published opinion whether the president could lawfully direct a district attorney to exercise his discretion to drop a prosecution. Taney’s answer was: I think the President does possess the power. The interest of the country and the purposes of justice manifestly require that he should possess it; and its existence is implied by the duties imposed upon him in that clause of the constitution before referred to, which enjoins him to take care that the laws be faithfully executed. Cases readily suggest themselves which show the necessity of such a power to enable him to discharge this duty. . . . I consider the district attorney as under the control and direction of the President, in the institution and prosecution of suits in the name of and on behalf of the United States; and that it is within the legitimate power of the President to direct him to institute or discontinue a pending suit, and to point out to him his duty, whenever the interest of the United States is directly or indirectly concerned. And I fi nd, on examination, that the practice of the government has conformed to this opinion; and that, in many instances where the interference of the Executive was asked for, the cases have been referred to the Attorney General, and, in every case, the right to interfere and direct the district attorney is assumed or asserted. 31

Taney goes on to note that the statute passed during the Monroe administration rendering the district attorneys subject to the direction of officials in the Treasury Department “would not and could not, deprive the President of the powers which belong to him under the constitution. The power conferred on the Secretary, by the law of Congress, would be merely in aid of the President, and to lighten the labors of his office. It could not restrain or limit his constitutional powers.”32 Jackson’s direction of this prosecution clearly indicates that Jackson believed that his authority to control federal prosecutions did not depend on the creation of such a department and that the statute placing federal prosecutors under the control of the Treasury Department did not in any way weaken his constitutional authority over the execution of the law. Moreover, when Attorney General Berrien resisted Jackson’s early efforts to subdue the Bank of the United States, Jackson bluntly told Berrien, “You must fi nd a law authorizing the act or I will appoint an Attorney General who will,” after which Berrien resigned and was replaced with Roger

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Taney. 33 In 1830, Jackson also issued what was only the second presidential signing statement ever, thus further establishing the idea of signing statements fi rst originated by Monroe. Jackson approved an appropriations bill that authorized internal improvements he thought too sweeping, specifically a road from Detroit in the Michigan territory to Chicago. Jackson directed that the road was not to extend beyond the Michigan territory. 34 The House of Representatives sharply criticized Jackson and accused him of improperly exercising a line item veto, but Jackson prevailed, and the road in question to Chicago was not built. 35 But, as we shall see, these initial assertions of presidential control of the executive branch, strong as they were, paled in comparison to Jackson’s subsequent actions during his war with the Bank of the United States. Jackson’s resounding victory in that struggle, a victory in which he was fully supported by a mobilized and engaged public opinion, constitutes one of the truly landmark moments in the history of the unitary executive.

case study

1

Jackson’s Battle with the Bank and the Removal of Treasury Secretary Duane

The confl ict between Andrew Jackson and Congress over the second Bank of the United States began in 1832 when, in what is now widely perceived as a blunder, the bank’s president, Nicholas Biddle, pressed for its recharter four years before its initial charter was to expire. Jackson hated the bank with an almost irrational vehemence, describing it at times as a hydra-headed monster that impaired the morals of the American people, corrupted their leaders, and threatened their liberty. Jackson took the recharter proposal both as a challenge to his independence and as an indication of the bank’s intention to meddle in electoral politics. After Jackson vetoed the bill to recharter it,1 the bank actively campaigned against Jackson. The bank’s political machinations only hardened Jackson’s resolve to destroy it, so as to end its involvement in politics. At the height of the Bank War, Jackson is said to have remarked to his vice president, “The Bank, Mr. Van Buren, is trying to kill me, but I will kill it.”2 The outraged and hot-tempered president resolved to destroy the bank as soon as possible rather than waiting for its charter from the federal government to expire in 1836. In this regard, the president possessed a powerful weapon. Although only five of the bank’s twenty-five directors were presidential appointees, the charter authorized the secretary of the treasury to

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remove the federal deposits from the bank so long as the secretary transmitted his reasons for doing so to Congress. 3 After some investigation and study, Jackson and his close aide Amos Kendall resolved that the federal money would be placed instead in a consortium of politically friendly state banks, later known as “pet” banks, as had been done before in 1819. Because Jackson’s fi rst treasury secretary, Louis McLane, had previously opposed removing the deposits, Jackson reshuffled his cabinet, promoting McLane to secretary of state and naming William J. Duane, who up to that point had been an ardent opponent of the bank, as the new treasury secretary in June 1833. Unfortunately, Jackson and his friends mishandled Duane almost from the beginning. Shortly after Duane was appointed, lower-level Treasury officers and Kitchen Cabinet members Reuben M. Whitney and Amos Kendall both bluntly told Duane that he was expected to remove the deposits immediately. Being ordered around by his subordinates wounded Duane’s pride and, in Duane’s mind, reduced him “to a mere cypher [sic] in the administration.”4 When Duane confronted Jackson with what Whitney and Kendall had said, Jackson assured Duane that he had not authorized their visit but did admit that he wanted the deposits removed. Duane indicated his opposition to such action, but he agreed to resign if he was unable to comply with Jackson’s wishes. Duane’s pride suffered another blow the following month when Jackson ordered Duane to appoint Kendall as an agent for recruiting state banks to serve as depositories for federal funds in place of the Bank of the United States. When Duane temporized, Jackson overruled Duane and instructed Kendall to draw up any orders he saw fit. Armed with his own instructions, Kendall quickly enlisted a group of state banks willing to risk the bank’s wrath and serve as federal depositories. The confl ict between Duane and Jackson came to a head during a series of cabinet meetings held in September 1833. Jackson polled his cabinet on the issue and discovered that support for removing the deposits was tepid at best. Undeterred by the cabinet’s lack of enthusiasm, the very next day Jackson directed his attorney general Roger B. Taney to read an “Exposé” that he had prepared for the president. It began with a strong exposition of the president’s mandate to proceed against the bank by virtue of his recent reelection, which he called “a decision of the people against the bank.” Jackson noted, “The object avowed by many of the advocates of the bank was [in asking for a recharter] to put the President to the test, that the country might know his fi nal determination relative to the bank prior to the ensuing election. . . . Can it now be said that the question of a recharter of the bank was not decided at the election which ensued? . . . On that ground

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the case was argued to the people; and now that the people have sustained the President, . . . it is too late . . . to say that the question has not been decided.” Since Jackson “was sustained by a just people, . . . he desires to evince his gratitude by carrying into effect their decision so far as it depends upon him.”5 The Exposé then detailed several actions by the bank as evidence of the bank’s corruption. First, it cited the bank’s failure to redeem the national debt in accordance with law. This enraged Jackson, whose conservative fiscal policy made him a strong advocate for repaying the debt. To make matters worse, the envoy the bank’s president Nicholas Biddle sent to Europe to obtain relief from foreign holders of the bonds negotiated an agreement that violated the prohibition of the bank’s charter against purchasing the public debt. Second, the Exposé described the bank’s reprehensible conduct when the French government refused to honor a draft given to the United States under a treaty for reparations for the spoliation of American-owned property destroyed during the Napoleonic Wars. After the draft was returned unpaid because the French Chamber of Deputies had failed to appropriate the funds for those reparations, Biddle charged the federal government 15 percent in interest, costs, reexchange, and damages. When the federal government refused to pay these charges, Biddle deducted them from the government’s bank dividends. Third, the Exposé pointed out that the bank had refused to seat the government-appointed bank directors on any committees and had frequently conducted business without them even when the board lacked a working quorum. Finally, the Exposé pointed out that the bank had become improperly involved in politics, openly campaigning against Jackson in the previous presidential election.6 Jackson clearly believed, with some justification, that the bank was a renegade institution and absolutely had to be stopped. The cabinet reacted to the Exposé with stunned silence. Several cabinet members who had previously opposed removing the deposits worried that their positions had been compromised and offered their resignations. Reluctant to initiate a cabinet shake-up, Jackson worked hard to persuade them to remain in office. He assumed full responsibility for removing the deposits, and he successfully entreated his cabinet secretaries not to resign. Duane asked Jackson if he was being directed by the president to remove the deposits, and Jackson answered affi rmatively. The next day, Jackson sent a message asking Duane if he had made his decision. When Duane asked for a delay until September 21, Jackson informed Duane that the removal of the deposits would be announced by the newspapers on September 20 with or without Duane’s consent.

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When the announcement duly appeared in the Washington Globe as Jackson had indicated,7 Duane obstinately dug in his heels, asking that the removal of the deposits be delayed ten weeks until Congress was back in session. Jackson remained adamant, insisting, “Not a day, not an hour.”8 Duane persisted, sending Jackson a letter attempting to justify his actions and rescinding his previous promise to resign.9 Not wanting to argue further with Duane, Jackson returned Duane’s letter, describing it “as a communication which I cannot receive,” and this time he requested that Duane adhere to his previous promise to resign.10 After Duane had sent Jackson a series of additional letters explaining why he continued to refuse to remove the deposits,11 Jackson sent Duane a curt letter returning Duane’s correspondence as “inadmissible” and dismissing him as secretary of the treasury. Jackson’s letter read, “From all your recent communications, as well as your recent conduct, your feelings and sentiments appear to be of such a character that, after your letter of July last, in which you say, should your views not accord with mine ‘I will from respect to you and for myself, afford you an opportunity to select a successor whose views may accord with your own on the important matter in contemplation,’ and your determination now to disregard the pledge you then gave, I feel myself constrained to notify you that your further services as Secretary of the Treasury are no longer required.”12 Jackson appointed Taney as Duane’s successor, and a few months later Taney announced the removal of the deposits.13 Taney’s actions triggered a battle between Congress and the president of a magnitude the country had never before witnessed. The confl ict led to the creation of the Whig Party during the winter of 1833–34, and it was in the Whig-controlled Senate that the confl ict was sharpest, as some of the greatest orators in the history of Congress14 spoke out against the actions of “King Andrew I.” The opposition was led by the famous triumvirate of Daniel Webster, John C. Calhoun, and Henry Clay. It fell to Clay, a longtime bank supporter who had been defeated by Jackson in the election of 1832, to call for an immediate investigation into the removal of the deposits, to be conducted by the entire Senate rather than by a committee. As a part of this investigation, on December 10, 1833, Clay introduced a resolution requesting that Jackson lay a copy of the Exposé before the Senate in order to ensure that the newspapers had reported it accurately. This resolution carried by a vote of twenty-three to eighteen.15 Even though the Exposé had been widely published and was eventually even reprinted in the Register of Debates,16 Jackson refused to comply, exclaiming, “The executive is a coordinate and independent branch of the Government equally with the Senate, and I have yet to learn under what constitutional authority

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that branch of the Legislature has a right to require of me an account of any communication . . . made to the heads of Departments acting as a Cabinet council.”17 Clay retaliated on December 26 by introducing a series of four resolutions to censure Jackson. The fi rst three resolutions addressed whether the circumstances justified the removal of the deposits. The fourth resolution condemned Duane’s removal: “By dismissing the late Secretary of the Treasury because he would not, contrary to his sense of his own duty, remove the money of the United States in deposite [sic] with the Bank of the United States and its branches, in conformity with the President’s opinion; and by appointing his successor to effect such removal, which has been done, the President has assumed the exercise of a power over the treasury of the United States, not granted to him by the constitution and laws, and dangerous to the liberties of the people.” In debating these resolutions, Clay charged, “We are . . . in the midst of a revolution, hitherto bloodless, but rapidly tending towards a total change of the pure republican character of the Government, and to the concentration of all power in the hands of one man.”18 Clay later submitted additional anti-Jackson resolutions providing: 1. Resolved, That the constitution of the United States does not vest in the President power to remove at his pleasure officers under the Government of the United States, whose offices have been established by law. 2. Resolved, That, in all cases of offices created by law, the tenure of holding which is not prescribed by the constitution, Congress is authorized by the constitution to prescribe the tenure, terms, and conditions on which they are to be holden. 3. Resolved, That the Committee on the Judiciary be instructed to inquire into the expediency of providing by law that in all instances of appointment to office by the President, by and with the advice and consent of the Senate, other than diplomatic appointments, the power of removal shall be exercised only in concurrence with the Senate, and when the Senate is not in session, that the President may suspend any such officer, communicating his reasons for the suspension to the Senate at its first succeeding session; and, if the Senate concur with him, the officer shall be removed, but if it do not concur with him, the officer shall be restored to office.19 The fi nal version read, “That the President, in the late executive proceedings in relation to the public revenue, has assumed upon himself authority not conferred by the constitution and laws, but in derogation of both.” Despite the best efforts of Jackson’s supporters, these resolutions passed the Senate on March 29, 1834, by a vote of twenty-six to twenty. 20 Clay also

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considered instituting impeachment proceedings against Jackson, based on Jackson’s removals and vetoes, but was dissuaded by his colleagues. Passage of this censure resolution enraged Jackson. In response, he submitted a “Protest” in which he condemned the Senate’s actions. Because Jackson had been compelled to swear an oath to “preserve, protect, and defend the Constitution,” it was his “imperative duty to maintain the supremacy of that sacred instrument and the immunities of the department intrusted to my care by all means consistent with my own lawful powers, with the rights of others, and with the genius of our civil institutions.” Therefore, because the censure resolution was “not only unauthorized by the Constitution, but in many respects repugnant to its provisions and subversive of the rights secured by it to other coordinate departments,” Jackson concluded that he had no choice but to offer his “solemn protest” to the censure resolution as an unconstitutional action on the part of the Senate. 21 Jackson began his Protest by decrying the Senate’s use of resolutions as a means of declaring presidential actions unconstitutional. Aside from a few, explicit deviations clearly mandated by the Constitution, the Vesting Clauses had established a formal separation of powers. Jackson noted, “The legislative power is, subject to the qualified negative of the President, vested in the Congress of the United States . . . ; the executive power is vested exclusively in the President, except that in the conclusion of treaties and in certain appointments to office he is to act with the advice and consent of the Senate; the judicial power is vested exclusively in the Supreme and other courts of the United States, except in cases of impeachment.”22 The tripartite structure created by these Vesting Clauses should be strictly followed unless contradicted by an express constitutional provision. Admittedly, for the enumerated “special purposes,” such as the president’s veto power over legislation, Congress’s impeachment power, and the Senate’s participation in treaties and appointments, “there is an occasional intermixture of the powers of the different departments, yet with these exceptions each of the three great departments is independent of the others in its sphere of action.” These limited departures, however, constituted the only ways in which the Constitution authorized a particular branch to interfere in the affairs of any other branch: “In every other respect each of them is the coequal of the other two, and all are the servants of the American people, without power or right to control or censure each other in the service of their common superior, save only in the manner and to the degree which that superior has prescribed.”23 “Tested by these principles,” Jackson concluded, “the resolution of the Senate is wholly unauthorized by the Constitution, and in derogation of its

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entire spirit.” Although “the high functions assigned by the Constitution to the Senate are in their nature either legislative, executive, or judicial,” the censure resolution did not represent a proper exercise of any of those functions. In passing the censure resolution, the Senate could not have been acting in its legislative capacity, since the resolution “asserts no legislative power, proposes no legislative action, and neither possesses the form nor any of the attributes of a legislative measure.” Moreover, Jackson noted that the Senate’s executive powers “relate exclusively to the consideration of treaties and nominations to office, and they are exercised in secret session and with closed doors.” Because “this resolution does not apply to any treaty or nomination, and was passed in a public session,” Jackson thought it “manifest that the resolution was not justified by any of the executive powers conferred on the Senate.” And although “the whole phraseology and sense of the resolution seem to be judicial, . . . under the provisions of the Constitution it would seem to be equally plain that neither the President nor any other officer can be rightfully subjected to the operation of the judicial power of the Senate except in the cases and under the forms prescribed by the Constitution.” The only judicial power possessed by the Senate was the power to try impeachments. The Senate, however, could not have passed the resolution pursuant to its judicial power to try impeachments, since a proper impeachment would specify which laws or parts of the Constitution had been violated. Moreover, “the Constitution makes the House of Representatives the exclusive judges, in the fi rst instance, of the question whether the President has committed an impeachable offense,” and the House had instituted no such proceedings. Therefore, Jackson concluded that the Constitution did not authorize the Senate to “take up, consider, and decide upon the official acts of the Executive” simply “for the purposes of a public censure, and without any view to legislation or impeachment.”24 Jackson did not denounce only the form of the Senate’s action. He attacked its substance as well. In one of the most powerful statements ever offered in favor of the theory of the unitary executive, Jackson declared that there was nothing improper in removing Duane for his failure to follow the president’s wishes. Because the executive power and the Take Care Clauses made him “responsible for the entire action of the executive department, it was but reasonable that the power of appointing, overseeing, and controlling those who execute the laws—a power in its nature executive—should remain in his hands.” Jackson elaborated, “The whole executive power being vested in the President, who is responsible for its exercise, it is a necessary consequence that he should have a right to employ agents of his own choice to aid him in the performance of his duties, and to discharge them when he is no longer willing

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to be responsible for their acts. In strict accordance with this principle, the power of removal, which, like that of appointment, is an . . . executive power, is left unchecked by the Constitution in relation to all executive officers.”25 Jackson also contrasted the treatment of the removal power under the Constitution with the regime established by the Articles of Confederation. Jackson noted that “in the Government from which many of the fundamental principles of our system are derived the head of the executive department originally had power to appoint and remove at will all officers,” including judges, and that “it was to take the judges out of this general power of removal, and thus make them independent of the Executive, that the tenure of their offices was changed to good behavior.” The fact that no similar provision limited the president’s power to remove executive officers logically implied that the Constitution granted to the president the full removal power over executive officers wielded by the executive under the Articles of Confederation.26 And even “if there were any just ground for doubt on the face of the Constitution whether all executive officers are removable at the will of the President, it is obviated by the cotemporaneous [sic] construction of the instrument and the uniform practice under it.” As Jackson noted, “The power of removal was a topic of solemn debate in the Congress of 1789 while organizing the administrative departments of the Government, and it was fi nally decided that the President derived from the Constitution the power of removal so far as it regards that department for whose acts he is responsible.” Although this debate at fi rst focused on the State Department, its principles were subsequently extended to the Treasury Department as well, and “it appears never to have occurred to anyone in the Congress of 1789, or since until very recently that [the Secretary of the Treasury] was other than an executive officer, the mere instrument of the Chief Magistrate in the execution of the laws, subject like all other heads of Departments, to his supervision or control.” Furthermore, Jackson noted: At the time of the organization of the Treasury Department an incident occurred which distinctly evinces the unanimous concurrence of the First Congress in the principle that the Treasury Department is wholly executive in its character and responsibilities. A motion was made to strike out the provision of the bill making it the duty of the Secretary “to digest and report plans for the improvement and management of the revenue and for the support of public credit,” on the ground that it would give the executive department of the Government too much influence and power in Congress. The motion was not opposed on the ground that the Secretary was the officer of Congress and responsible to that body, . . . but on other ground, which conceded his executive character throughout. The whole discussion

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evinces an unanimous concurrence in the principle that the Secretary of the Treasury is wholly an executive officer. 27

In Jackson’s view, the constitutional basis of the removal power had been sustained ever since. “Here, then, we have the concurrent authority of President Washington, of the Senate, and the House of Representatives, numbers of whom had taken an active part in the convention which framed the Constitution and in the State conventions which adopted it, that the President derived an unqualified power of removal from that instrument itself, which is ‘beyond the reach of legislative authority.’ Upon this principle the Government has now been steadily administered for about forty-five years, during which there have been numerous removals made by the President or by his direction, embracing every grade of executive officers from the heads of Departments to the messengers of bureaus.”28 Jackson’s Protest also included a sweeping claim of executive power over the public treasury. According to the Protest, “The custody of the public property, under such regulations as may be prescribed by legislative authority, has always been considered an appropriate function of the executive department.” Since “public money is but a species of public property,” the Protest concluded that “its custody always has been and always must be . . . intrusted to the executive department.”29 Jackson later recanted this position in his so-called Codicil to his Protest, in which he averred that “it was not my intention to deny in the [previous] message the power and right of the legislative department to provide by law for the custody, safe-keeping, and disposition of the public money and property of the United States.”30 Jackson concluded, “Thus was it settled by the Constitution . . . that the entire executive power is vested in the President of the United States; that as incident to that power the right of appointing and removing those officers who are to aid him in the execution of the laws, with such restrictions only as the Constitution prescribes, is vested in the President; that the Secretary of the Treasury is one of those officers . . . ; that in the performance of these duties (the Secretary of the Treasury) is subject to the supervision and control of the President, and in all important measures having relation to them consults the Chief Magistrate and obtains his approval and sanction.” Since that time, “nearly forty-five years had the President exercised, without a question as to his rightful authority, those powers for the recent assumption of which he is now denounced. . . . And yet in no one instance is it known that any man, whether patriot or partisan, had raised his voice against it as a violation of the Constitution.” Permitting the Senate “to interfere with

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this exercise of Executive power,” Jackson warned, would inevitably lead to the complete destruction of executive independence: If the principle be once admitted, it is not difficult to perceive where it may end. If by a mere denunciation like this resolution the President should ever be induced to act in a matter of official duty contrary to the honest convictions of his own mind in compliance with the wishes of the Senate, the constitutional independence of the executive department would be as effectually destroyed and its power as effectually transferred to the Senate as if that end had been accomplished by an amendment of the Constitution. . . . It has already been maintained . . . that the Secretary of the Treasury is the officer of Congress and independent of the President. . . . Followed to its consequences, this principle will be found effectually to destroy one coordinate department of the Government to concentrate in the hands of the Senate the whole executive power, and to leave the President as powerless as he would be useless—the shadow of authority after the substance had departed. 31

A sarcastic Jackson jibed, “On this occasion it is discovered for the fi rst time that those who framed the Constitution misunderstood it; that the First Congress and all its successors have been under a delusion; that the practice of near forty-five years is but a continued usurpation; that the Secretary of the Treasury is not responsible to the President, and that to remove him is a violation of the Constitution and laws for which the President deserves to stand forever dishonored on the journals of the Senate.” In short, if “the practice by the Senate of the unconstitutional power of arraigning and censuring the official conduct of the Executive” were permitted to continue, it would “break down the checks and balances by which the wisdom of its framers sought to insure its stability and usefulness.”32 And perhaps most important of all for the future contours of presidential power, Jackson invoked the president’s unique role as the only “direct representative of the American people” in support of his authority to control all the affairs of the executive branch. Jackson maintained that “if the Secretary of the Treasury be independent of the President in the execution of the laws, then is there no direct responsibility to the people in that important branch of this Government to which is committed the care of the national finances.” Permitting the secretary of the treasury to decide for himself all issues pertaining to the Bank of the United States would effectively allow the Bank “to control . . . the whole action of the Government . . . in defiance of the Chief Magistrate elected by the people and responsible to them” so long as “a Secretary shall be found to accord with them in opinion or can be induced in practice to promote their views.” Jackson added the admonishment

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that permitting the Senate to sanction the president for purely executive acts threatened to undermine “the confidence of the people in [the President’s] ability and virtue . . . , and the real power of the Government will fall into the hands of a body holding their offices for long terms, not elected by the people and not to them directly responsible.” Moreover, Jackson cautioned that congressional interference in executive affairs exacerbated the problems of faction and regionalism, as “all the independent departments of the Government, and the States which compose our confederated Union, instead of attending to their appropriate duties and leaving those who may offend to be reclaimed or punished in the manner pointed out in the Constitution, would fall to mutual crimination and recrimination and give to the people confusion and anarchy instead of order and law, until at length some form of aristocratic power would be established on the ruins of the Constitution or the States be broken into separate communities.”33 Therefore, Jackson regarded it as his solemn duty to oppose any effort so “calculated . . . to concentrate in the hands of a body not directly amenable to the people a degree of influence and power dangerous to their liberties and fatal to the Constitution of the choice.”34 Only by permitting the president to assume responsibility for the entire executive branch, including the Treasury Department, through the unrestricted exercise of the removal power could the normative benefits of energy, accountability, and faction control envisioned by the framers of the Constitution be guaranteed. Upon the reading of the Protest in the Senate, Senator George Poindexter immediately denounced it, declaring, as Robert Remini describes, that “it could not be considered an executive message,” in that it proposed no legislation and “did not pertain to any of the public occasions in which the President is authorized to address himself to the Senate.” Poindexter charged that it was an “unofficial paper” signed by one “Andrew Jackson” that should not be received. 35 Clay seconded Poindexter, objecting specifically to Jackson’s claim as the representative of the people: “The President speaks of a responsibility to himself. . . . Thus, every thing concentrates in the President. He is the sole Executive; all other officers are his agents, and their duties are his duties. This is altogether a military idea, wholly incompatible with free government. I deny it absolutely. There exists no such responsibility to the President. All are responsible to the law, and to the law only, or not responsible at all.”36 Clay was backed up by the immense oratorical skills of John C. Calhoun, who was still embittered about being passed over as Jackson’s heir apparent and who called the protest a “tyrant’s plea.” Calhoun thundered, “Infatuated man! blinded by ambition—intoxicated by flattery and vanity! Who,

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that is the least acquainted with the human heart—who, that is conversant with the page of history, does not see, under all this, the workings of a dark, lawless, and insatiable ambition; which, if not arrested, will fi nally impel him to his own, or his country’s ruin?” Daniel Webster, after also fl irting with the Democratic Party, returned to the Whig fold and offered a scathing denunciation of the Protest: “Again and again we hear it said that the President is responsible to the American people! that he is responsible to the bar of public opinion! For whatever he does, he assumes accountability to the American people! . . . And this is thought enough for a limited, restrained, republican government!” To Webster, Jackson’s assertion of the power to order Duane to remove the deposits was tantamount to dictatorial rule: “If he may be allowed to consider himself as the sole representative of all the American people, then I say . . . that the Government (I will not say the people) has already a master.” But even so, as a distinguished constitutional authority, Webster acknowledged that the Decision of 1789 had established that the president had the constitutional power to remove when he conceded that “the power of removal does exist in the President, according to the established construction of the constitution; and, therefore, although in a particular case it may be abused, and, in my opinion, was abused in this case, yet its exercise cannot be justly said to be an assumption or usurpation.”37 The Senate voted twenty-seven to sixteen not to receive the Protest on May 8, 1834. 38 The Senate also refused to confi rm four of Jackson’s five nominees for bank directorships. 39 Jackson resolutely resubmitted their nominations, along with a message defending their candidacies.40 A Senate report acknowledged “that a right of renomination exists,” but opposed the practice except “in very clear and strong cases.”41 The Senate proceeded to reject the nominations by even wider margins than before.42 Senator Thomas Hart Benton’s motion to expunge the Senate’s refusal to receive the Protest from its Journal failed on the last day of the session.43 As a fi nal gesture of defiance, the Senate summarily rejected Taney’s nomination as secretary of the treasury.44 The debate would have been less rancorous in the Democrat-controlled House of Representatives but for a procedural blunder by one of Jackson’s closest friends and allies, James K. Polk. Jackson had hoped that Taney’s report would be referred to the Committee on Ways and Means, which Polk chaired. However, Polk failed to object when another member of Congress, at Clay’s behest, moved that Taney’s report be considered by the Committee of the Whole, which opened the issue to unlimited debate on the House floor. When Polk tried to undo the damage by passing the previous question and reconsidering its decision, the motion failed by

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three votes. Consequently, Jackson’s removal of Duane was subjected to a lengthy debate in the House of Representatives as well. One House member even considered initiating impeachment proceedings.45 Throughout this tumult, Jackson only became more resolute. Benton observed of Jackson, “I . . . never saw him appear more truly heroic and grand than at this time. He was perfectly mild in his language, cheerful in his temper, fi rm in his conviction.”46 He was aided greatly by Nicholas Biddle’s foolish decision to trigger a fi nancial panic during the winter of 1833–34. Biddle believed that the panic would scare the public into supporting rechartering the bank, but it had the opposite effect. Ultimately, it angered the public and gave Jackson and the Democrats a new complaint that could be used against the bank. Jackson responded with great skill and made several deft political moves to deflect pressure from himself onto the bank. First, he infused the debate with moral overtones, portraying the conflict as pitting honest working people against the moneyed aristocracy. Second, he deflected all criticism away from himself and toward the bank. To all those asking for relief from the monetary contraction, he responded: “What do you come to me for? . . . Go to Nicholas Biddle. We have no money here, gentlemen. Biddle has all the money.”47 Lastly, in a political coup de grâce, in January 1834 he revoked the bank’s authority to serve as the federal government’s agent in paying pensions to Revolutionary War veterans and directed Secretary of War Lewis Cass to recover the funds and accounts relating to those pensions. When Biddle refused, Jackson suspended the pension payments altogether and referred the matter to Congress, complaining that the bank “not only defied the government but infl icted needless misery on the nation’s patriotic heroes.”48 The public, unable to believe that “Jackson, the Hero of the War of 1812, would withhold funds from veterans,” proceeded to blame the entire matter on Biddle.49 By mid-February 1834, public opinion had turned against the bank. The governor of Pennsylvania, previously a strong bank supporter, condemned Biddle in his annual message to the state legislature. 50 With the chief executive of the bank’s home state openly opposed to the bank, Pennsylvania’s congressional delegation and officials in other states quickly followed suit. Buoyed by the turn in public opinion, the House Democrats fi nally closed off debate on the removal of deposits by a scant four votes. 51 Taney’s report was referred to the Ways and Means Committee, which subsequently returned a report blaming Biddle for precipitating the panic. 52 The House then promptly passed resolutions declaring (1) that the bank ought not to be rechartered, (2) that the deposits ought not to be restored, (3) that state banks ought to be continued as federal depositories, and (4) that a special

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committee should examine the bank’s role in the panic. 53 The House later summarily tabled two Senate resolutions that disapproved of Taney’s action and called for the restoration of the deposits to the bank, respectively. 54 With the House’s actions effectively overriding the previous action in the Senate, the bank was doomed. Biddle hastened the end by refusing to allow the House investigators to examine the bank’s books or correspondence and refusing to testify before Congress. Although Biddle attempted to save face by requesting an alternate investigation by the more bankfriendly Senate, the Senate Finance Committee’s report approving of the bank’s actions in refusing to cooperate with the House’s investigation was fi led after the congressional elections and thus was too late to have any effect politically. 55 The following year, Senator Calhoun reported a bill to limit the president’s removal power, the third section of which provided, “In all nominations made by the President to the Senate, to fi ll vacancies occasioned by the exercise of the President’s power to remove . . . , the fact of the removal shall be stated to the Senate, at the same time that the nomination is made, with a statement of the reasons for which such officer may have been removed.”56 The ensuing debate was a more measured and reasoned discussion of the removal power than was possible the previous session, when all positions taken on the removal power were offered in the political shadow of the great Bank War. Even Clay acknowledged that it was “extremely fortunate that this subject of executive patronage came up, at this session, unencumbered by any collateral question,” unlike in the previous session, when “the bank mingled itself in all our discussions.”57 During the debate on the proposal, Clay and Calhoun presented forceful arguments against the president’s power to remove in which they urged that the Decision of 1789 be reconsidered. 58 Webster offered a more measured statement in which he acknowledged that although he would resolve the Decision of 1789 differently were it to arise as a matter of fi rst impression, “the laws have since, uniformly, sanctioned” the president’s power to remove, including the Tenure of Office Act of 1820, which “expressly affi rms the power.” He therefore considered it “a settled point; settled by construction, settled by precedent, settled by the practice of the Government, and settled by statute.” Passage of Calhoun’s proposal, however, did not require overturning those precedents, since it did not purport to place any substantive limits on the removal power and, if anything, implicitly recognized the president’s power to remove. He could support Calhoun’s proposal without abandoning the position that the Decision of 1789 “has been established by practice, and recognized by subsequent laws, as the settled construction of

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the constitution.” He did, however, reserve Congress’s right to revisit the question should necessity require it. 59 Calhoun’s bill passed the Senate on February 21, 1835, by a vote of thirtyone to sixteen.60 House Speaker John Quincy Adams had prepared a long speech opposing Calhoun’s bill. However, he never got the chance to deliver it, as the bill was never considered by the House. The Senate exacted some measure of revenge by indefi nitely postponing action on Taney’s nomination to the Supreme Court,61 but confi rmed him as chief justice the following year.62 Finally, on January 16, 1837, the Senate erased the last vestige of its opposition to the president’s power to remove, expunging the resolution censuring Jackson for his actions from its Senate Journal.63 In discussing this vote, Leonard White says: “Jackson earned a personal triumph, and thus symbolically his reading of executive powers gained political confi rmation. ‘Never before and never since,’ wrote [Edward] Corwin, ‘has the Senate so abased itself before a President.’”64 Thus, Jackson’s victory over the Senate was complete. The Senate triumvirate of Clay, Calhoun, and Webster, each driven by presidential ambition, proved far more unified in criticizing Jackson than in supporting the bank. In considering Webster’s bill to recharter the bank, the three splintered over the length of the recharter term, and in the end, the recharter failed.65 The bank obtained a charter from Pennsylvania to keep its Philadelphia branch alive when its federal charter expired in 1836, but this extension was to be short lived. The bank ignominiously collapsed in 1841, the victim of wild speculation and fiscal mismanagement. In the fi nal analysis, even critics of the unitary executive have been forced to concede that Jackson’s removal of Duane represents a monument to the development of the unitary executive.66 Jackson’s unflagging advocacy of the president’s power to supervise federal administration and to remove executive officials invalidates any suggestion that the executive branch acquiesced to any congressional interference with executive functions. When the first half-century of presidential practice under the Constitution is viewed as a whole, it is crystal clear that the first seven presidents did not by their words or their deeds undermine the unitary executive structure created in Philadelphia in 1787. No reasonable observer could describe the whole of the presidential practice between 1789 and 1837 as constituting a longstanding, consistent presidential acquiescence to congressional efforts to limit the unitariness of the executive. Even the Virginia dynasty of presidents, whose constitutional views favored a weak chief executive, consistently opposed such congressional incursions. And as Jackson’s successful removal of

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Treasury Secretary Duane demonstrated, no one could doubt the president’s constitutional power to control the entire executive branch (including the Treasury Department) and the actions of all of his subordinates. Perhaps the clearest proof of this point comes from the writings of the most eminent constitutional commentators of that era, James Kent and Joseph Story, who clearly did not believe that the president had so acquiesced; in fact, if any established practice existed, they thought it indicated Congress’s inability to fragment the unitary executive. Kent claimed that the Decision of 1789 “amounted to a legislative construction of the constitution, and it has ever since been acquiesced in and acted upon, as of decisive authority in the case.” Kent further noted: It is supported by the weighty reason, that the subordinate officers in the executive department ought to hold at the pleasure of the head of that department, because he is invested generally with the executive authority, and every participation in that authority by the Senate was an exception to a general principle, and ought to be taken strictly. The President is the great responsible officer for the faithful execution of the law, and the power of removal was incidental to that duty, and might often be requisite to fulfi ll it. This question has never been made the subject of judicial discussion; and the construction given to the constitution in 1789, has continued to rest on this loose, incidental declaratory opinion of congress, and the sense and practice of government since that time. It may now be considered as fi rmly and defi nitely settled, and I entertain no manner of doubt of the good sense and practical utility of the Construction. 67

Kent offered a similar observation in a letter to Daniel Webster: “ I heard the question debated in the summer of 1789, and Madison, Benson, Ames, Lawrence, etc., were in favor of the right of removal by the President, and such has been the opinion ever since, and the practice.” Although Kent generally agreed with the views Hamilton expressed in The Federalist No. 77, he nonetheless concluded, “It is too late to call the President’s power in question after a declaratory act of Congress and an acquiescence of half a century. We should hurt the reputation of our government with the world, and we are accused already of the Republican tendency of reducing all executive power into the legislative, and making Congress a national convention. That the President grossly abused the power of removal is manifest, but it is the evil genius of Democracy to be the sport of factions.”68 To Kent, the unitary executive was good policy as well as settled law. In his Commentaries, he echoed the concern expressed in The Federalist No. 70 that unity was essential to energy in the execution of the laws:

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The characteristical qualities required in the executive department, are promptitude, decision, and force; and these qualities are most likely to exist when the executive authority is limited to a single person, moving by the unity of a single will. Division, indecision, and delay, are exceedingly unfavourable to that steady and vigorous administration of the law, which is necessary to secure tranquillity at home, and command the confidence of foreign nations. Every government, ancient and modern, which has been constituted on different principles, and adopted a compound executive, has suffered the evils of it; and the public interest has been sacrificed, or it has languished under the inconveniences of an imbecile or irregular administration. In those states which have tried the project of executive councils, the weakness of them has been strongly felt and strikingly displayed; and in every instance in which they have been tried, (as in Pennsylvania and Georgia, for instance,) there were soon abandoned, and a single executive magistrate created, in accordance with the light afforded by their own experience, as well as by the institutions of their neighbours.

Ensuring that all lines of responsibility ultimately ended with the president was also essential to promoting accountability. In Kent’s words, “Unity increases not only the efficacy, but the responsibility of the executive power. Every act can be immediately traced and brought home to the proper agent. . . . The eyes of the people will be constantly directed to a single conspicuous object; and, for these reasons, De Lolme considered it to be a sound axiom of policy, that the executive power was more easily confined when it was one.”69 Likewise, Story, after rehearsing the arguments advanced on both sides of the debate, recognized that Congress had acquiesced and indicated that constitutionally unlimited presidential removal power should be regarded as a settled constitutional point: “The public . . . acquiesced in [the Decision of 1789]; and it constitutes, perhaps, the most extraordinary case in the history of the government of a power, conferred by implication on the executive by the assent of a bare majority of Congress, which has not been questioned on many other occasions. Even the most jealous advocates of state rights seem to have slumbered over this vast reach of authority; and have left it untouched. . . . If there has been any aberration from the true constitutional exposition of the power of removal, which the reader must decide for himself, it will be difficult, and perhaps impracticable, after forty years’ experience, to recall the practice to the correct theory.”70 Story’s and Kent’s views in this respect were also held, as we have seen, by James Madison and Daniel Webster, both of whom thought that settled practice had conferred the removal power on the president. All four of these early and

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justly famous constitutional commentators reject the suggestion that our early constitutional practices supported anything but a unitary executive. Although Kent’s and Story’s observations were limited to the removal power, it is just as clear that the early presidents of the Republic vigorously exercised their right to direct and review the actions of their subordinates. Although some (but not all) opinions of Attorney General William Wirt suggest otherwise, presidents throughout this period often exerted their control over the execution of the laws and did not hesitate to direct lowerlevel executive officials. And in the end, Wirt’s views were subsequently disavowed during the Jackson administration. Thus, the fi rst half-century of presidential practice under the Constitution provides little support for the claim that any president accepted any limitations whatsoever on the law execution power, including with respect to the Treasury Department. On the contrary, the vigor with which the fi rst seven presidents defended that power suggests, if anything, a fifty-year founding tradition of constitutionally mandated presidential control over the executive branch.

PA RT

III

The Unitary Executive During the Jacksonian Period, 1837–1861

We now examine the presidencies during the Jacksonian period from 1837 to 1861. By modern standards, the eight presidential administrations between the Jackson and Lincoln administrations were generally unremarkable, in terms of both historical significance and executive effectiveness. Nevertheless, historical review convincingly demonstrates that the actions and words of these presidents reflected a consistent desire to protect their sole authority to execute the federal laws. One of the executive branch’s greatest antagonists throughout this period, Henry Clay of Kentucky, commented, “The executive branch of the government . . . was eternally in action; it was ever awake; it never slept; its action was continuous and unceasing, like the tides of some mighty river, which continued flowing and flowing on, swelling, and deepening, and widening, in its onward progress, till it swept away every impediment, and broke down and removed every frail obstacle which might be set up to impede its course.”1 The presidential history from this period would ultimately underscore the truth underlying Clay’s words. There was to be no systemic acquiescence to congressional interference with presidential execution of the laws during the Jacksonian era.

8

Martin Van Buren

President Martin Van Buren was generally a loyal follower and implementer of Jackson’s views, which is significant given Jackson’s enthusiastic embrace of the theory of the unitary executive during the Bank War. Van Buren’s biographer Major L. Wilson describes Van Buren’s close affi nity with Jackson as follows: “In a public letter accepting the nomination of the Democratic party to succeed Andrew Jackson as president, Martin Van Buren pictured himself ‘the honored instrument’ of the administration party and vowed ‘to tread generally in the footsteps of President Jackson.’ Friends welcomed the statement as a pledge to defend the work of Jackson. . . . When divested of partisan rhetoric, Van Buren’s statement, and others of like tenor, have been taken by historians as texts for the persistent interpretation of his presidency as the ‘third term’ of Jackson.”1 During his four years in office, Van Buren governed much as Jackson had as the leader of his political party. Van Buren, Wilson tells us, held “regular cabinet meetings” but “took no votes in the cabinet and, as usual, reserved fi nal decisions for himself.” At least two cabinet members probably favored a national bank, “yet they readily deferred to Van Buren’s views of party and presidential power.” Wilson says of Van Buren’s approach to leadership, “In regard to key questions in foreign affairs, President Van Buren took a direct and active part. He also remained involved in the affairs of the Treasury

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Department, particularly in the aspects of its operations that bore upon his proposal[s]. On other and more routine matters of administration, by contrast, Van Buren allowed virtual autonomy to department heads.”2 Van Buren’s support for the unitary executive is reflected in his continuation of Jackson’s policy toward the Treasury Department, which, as we noted earlier, represented perhaps the most dramatic confl ict over the president’s authority to control the execution of the law to take place during the fi rst fi fty years of the Republic. Van Buren adamantly believed that the “keeping and disbursing of Treasury funds without congressional safeguards . . . gave the president an unchecked control over the nation’s purse and an enormous engine of spoils.” This provoked the ire of the Whig opposition, who criticized Van Buren for carrying “to the ultimate limit that tendency under Jackson—with his bank veto, his removal of deposits, his ‘Specie Circular’—to wrest the control of the Treasury from Congress and to place the nation’s purse exclusively under executive power. . . . The forms of republican government [would] remain[ ], but its substance would flow to a Treasury Caesar.” The Whigs would repeat the cry of “Treasury Caesarism” many times. 3 Van Buren’s adherence to the theory of the unitary executive is also manifest in his use of the power of removal. Van Buren exercised this removal power sparingly at fi rst, since many of the continuing appointees were as much his as they were Jackson’s. As Van Buren began positioning himself within his party for a second term, however, he became more aggressive in his use of the removal power, looking beyond mere party affi liation and instead emphasizing personal political loyalty to his own faction of the Democratic Party. Van Buren enjoyed the full support of his predecessor in this regard. Wilson notes that Jackson “welcomed and justified the new policy. Arguing that the opinions of all officeholders ‘ought to correspond with the Executive in all of his important measures,’ Jackson urged [Major William B.] Lewis to resign as second auditor in the Treasury before he was removed. ‘Rotation in office must from the great pressure of public opinion be adopted by the President,’ he explained.”4 The Van Buren administration’s reliance on the theory of the unitary executive as the basis for its authority is reflected in an opinion written by Attorney General Benjamin Butler denying that Congress had the right to require collectors of customs to disclose their reasons for any removals of subordinate officers appointed by them. Butler concluded that “constitutional power of removal exercised by the President” prevented Congress from forcing the president to disclose the reasons underlying his removals and that, by analogy, the same principle protected collectors from being

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required to do so. 5 Van Buren did accede to two resolutions asking him to provide the House with a list of all executive removals since the adoption of the Constitution in 1787,6 a resolution with which Van Buren complied the following year.7 Passage of this resolution prompted no objection from Van Buren, since requiring a list of past removals did not in any way purport to limit the president’s ability to make further removals in the future.8 An earlier resolution that would have established a select committee to inquire into all dismissals and to consider restrictions on patronage would have been more problematic.9 The House’s failure to pass this resolution obviated any need for comment from Van Buren. The Van Buren administration did litigate a landmark Supreme Court case on the scope of the executive power, Kendall v. United States ex rel. Stokes,10 that some scholars have erroneously suggested undercuts the unitariness of the executive.11 The case arose when a group who had contracted with the Post Office to transport the mail asserted a claim for an additional payment, which Postmaster General Amos Kendall, a close confidant of Van Buren and Jackson, refused to pay. The contractors then successfully obtained enactment of private legislation directing the solicitor of the treasury to settle the claim in the contractors’ favor. After Kendall continued to refuse to honor the award even after the solicitor of the treasury had ruled otherwise, the contractors went to court and obtained a writ of mandamus from Judge William Cranch of the Circuit Court of the District of Columbia against Kendall obliging him to pay the additional money. The Supreme Court upheld the issuance of the writ of mandamus by a vote of six to three on the grounds that the solicitor’s award had left Kendall only to perform a purely ministerial act in paying the claim. The Court found Kendall had no executive discretion to decline to perform that ministerial act. Kendall ultimately bowed to the Court’s ruling and paid the additional $40,000 the contractors had claimed. The case is of landmark significance because it establishes that executive branch officials can be ordered by courts to perform ministerial duties. Although the Van Buren administration was skeptical about the propriety of this conclusion, modern proponents of the unitary executive have readily conceded its validity.12 It would be a mistake, however, to conclude that Kendall represents acquiescence by the Van Buren administration to any limitation of presidential authority to execute the laws. Van Buren’s reaction to the pressure from party leaders to pay the contractors the additional money is quite telling in this regard: Van Buren turned back this pressure, however, and stood by the postmaster general. He also supported Kendall’s decision to reject a writ of mandamus,

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which was issued . . . by the circuit court in the District of Columbia, ordering the payment of the award. In a letter to Judge William Cranch, Kendall based his refusal on a sweeping Jacksonian concept of executive power, at once unitary in nature and independent of the other branches. The act of any executive officer was ultimately the act of the president, he argued, and therefore was not liable to direction from the judiciary. He wrote: “The Executive is one—one in principle, one in object. Its object is the execution of the laws. It is not susceptible of subdivisions and nice distinctions as to its duties and responsibilities.”13

Attorney General Butler echoed the same themes when arguing Kendall before the Supreme Court, where he based his argument on the celebrated Decision of 1789. Butler told the Court: This doctrine [of the unitary executive] was also announced and established by the congress of 1789, in the debates relative to the power of removal. . . . [The theory flowed from] that clause which declares that the “executive power shall be vested in the President.” From that provision, and from the direction that the President “shall take care that the laws be faithfully executed,” [James Madison] deduced the conclusion, that it was “evidently the intention of the constitution, that the fi rst magistrate should be responsible for the executive department.” He showed that this principle of unity and responsibility was necessary to preserve that equilibrium which the constitution intended. . . . But, whether the particular question as to the power of removal was correctly decided or not; no one, in that debate, disputed the position of Mr. Madison and his associates, that the constitution had actually vested in the President the whole executive power. . . . The whole course of this debate, independently of the conclusion to which it came, is, therefore, utterly irreconcilable with the recent suggestion adopted and maintained by our learned adversaries; that when the constitution says “the executive power shall be vested in a President,” it only gives a name to the department, and merely means that he shall possess such executive power as the legislature shall choose to confer upon him.14

Even after having lost Kendall before the Supreme Court, the administration attempted to have the last word by trying to get Congress to enact legislation stripping the circuit court of its mandamus power. Van Buren made clear that the bill was intended to take away “from the judiciary at the seat of government the power to interfere with the executive in the performance of its duties, even those of a ‘ministerial’ sort.” Although the bill passed the Senate, the effort died when the House refused to take any action on it.15 Any claim that Kendall marked a large-scale derogation of the president’s authority to execute the law is further belied by dicta in the Court’s opinion drawing a distinction between executive acts and “mere ministerial act[s],”

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which do not involve any exercise of discretion. The Kendall Court elaborated as follows: “We do not think the proceedings in this case interfere[ ] in any respect whatever with the rights or duties of the executive. . . . The mandamus does not seek to direct or control the Postmaster-general in the discharge of any official duty, partaking in any respect of an executive character, but to enforce the performance of a mere ministerial act, which neither he nor the President had any authority to deny or control.”16 The Supreme Court turned the dicta into a holding two years later, as Wilson notes, in Decatur v. Paulding. That case arose after the secretary of the navy denied a claim for a general pension asserted by the widow of Stephen Decatur after she had already collected a special pension granted to her by private legislation. The circuit court refused to issue a writ of mandamus ordering the secretary to pay the pension. The Supreme Court affi rmed, adopting the arguments advanced by Attorney General Henry Gilpin and basing its decision squarely on the distinction drawn in Kendall “between executive duties and ministerial acts.” Officials exercising executive powers are “continually required to exercise judgment and discretion”; in contrast, “mere ministerial duties” do not involve any discretion at all.17 Finally, the Van Buren years saw the Supreme Court issue an important ruling in Ex parte Hennen, a case in which the administration appears not to have participated. In Hennen, the Court held that a district court clerk could be removed at any time by the judges who appointed him because inferior officers in the judicial and executive branch serve not for life but at the pleasure of the official who appointed them. In so holding, the Court specifically noted that it was the “practical construction of the Constitution that [the removal power] was vested in the President alone” and not in the president and the Senate jointly. Dicta in Hennen thus accept the Decision of 1789 as having construed the Constitution as giving the president unlimited removal power. Indeed, the point was considered so well established that all the attorneys arguing the case before the Supreme Court conceded as much.18 When it came time in 1840 to seek reelection, Van Buren, “having shaped his administration in the steps of Jackson, [looked] to reelection on the same basis.” Van Buren’s critics attacked him for the same monarchical tendencies that they discerned in Jackson. They argued that “the greatest threat to liberty was Democratic Caesarism—that is, the encroachment of executive power, supported by a drilled and disciplined party that was bent on spoils rather than the public good.” James Barbour of Virginia proclaimed, as had Henry Clay during the Bank War, “We are indeed in the midst of a revolution. . . . The forms of the Constitution are retained, but

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its spirit is gone—your President is a monarch almost absolute.” William Henry Harrison, the Whig candidate for president in 1840, “evoked thunderous applause with the declaration that ‘the Government is now a practical monarchy.’ The true issue was not democracy versus aristocracy—the people against a privileged few—as the Democrats claimed, but democracy versus monarchy.”19 Van Buren was tagged as a would-be monarch, just as Jackson had been, revealing the extent to which Van Buren’s philosophy of executive power followed Jackson’s. Van Buren was as staunch a proponent of the theory of the unitary executive as his mentor, Andrew Jackson. This is clear from Van Buren’s willingness to exercise strong presidential authority, particularly against the Treasury Department; his increasing use of his power of removal; the opinion written by Attorney General Butler reiterating that Congress has no right to require the president to disclose the reasons underlying his removals; and the positions advanced by Van Buren’s administration before the Supreme Court.

9

William Henry Harrison

The Whig presidency of William Henry Harrison saw the same aggressive defense of executive power that is often associated with the Jacksonian Democrats. This was surprising, since the Whig Party’s self-proclaimed raison d’être was belief in a limited and weak executive branch. Indeed, in correspondence prior to his election as president, Harrison had endorsed a program that would confine presidential service to a single term, establish a Treasury independent of presidential control, and strictly limit the use of the veto power.1 Many observers had assumed that the election of Harrison would mark a sharp reversal in the president’s position with regard to the unitary executive. Surely, given the vehement opposition of the Whigs to presidential removals during the Jackson and Van Buren administrations and Harrison’s preelection dedication to strict limitations on presidential power, the Harrison administration would have little choice but to forgo the transient political advantage of displacing twelve years’ worth of Democratic appointees to federal office and instead adhere to the limited vision of the executive power it had previously so vigorously espoused. However, despite the best efforts of Whig luminaries Henry Clay and Daniel Webster, Harrison clung steadfastly to a belief in the assertive use of the executive power. Harrison started out by pleasing Whigs with an inaugural address that pledged to curtail the perceived trend toward presidential despotism. He

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vowed to limit himself to a single term and promised caution in using the veto power. At the same time, however, Harrison’s inaugural address had made it clear that he believed that the Constitution conferred the removal power upon the president. Harrison commented, “It was certainly a great error in the framers of the Constitution not to have made the head of the Treasury Department entirely independent of the Executive. He should at least have been removable only upon the demand of the popular branch of the Legislature.” To Harrison, “it appear[ed] strange indeed that anyone should doubt that the entire control which the President possesses over the officers who have the custody of the public money, by the power of removal with or without cause, does for all mischievous purposes at least, virtually subject the treasure . . . to his disposal.” Although Harrison believed the decision to confer the removal power upon the president to be a mistake, he nonetheless implied that he regarded the issue to be settled. Therefore, Harrison could only offer his assurances to the people that, as a matter of policy, he would “never . . . remove a Secretary of the Treasury without communicating all the circumstances attending such removal to both Houses of Congress.”2 Harrison’s qualms about broad exercises of presidential removal power ultimately proved short lived. Although at one point he seemed to be willing or compelled to “yield his will to a majority vote in his Cabinet,” an anecdote in Leonard White’s The Jacksonians shows that Harrison ultimately believed that broad presidential power also extended to appointment of inferior officers, independent of consultation with Congress or the cabinet: “At a Cabinet meeting, so the story is told, [Secretary of State] Webster informed the President that the Cabinet had decided on James Wilson to be governor of [the] Iowa [Territory]. Harrison wrote a few words on a slip of paper and asked Webster to read them aloud: ‘William Henry Harrison, President of the United States.’ The President then rose to his feet and said, ‘And William Henry Harrison, President of the United States, tells you gentlemen, that . . . John Chambers shall be Governor of [the] Iowa [Territory].’”3 Norma Peterson, Harrison’s biographer, paints a similar picture of an active chief executive who was willing to assert his authority over the execution of the law. She notes that Harrison “visited every department to observe operations [and] then called for reports detailing the activities and responsibilities of each office.”4 Nor did the Whigs exhibit much restraint in effecting removals. In a March 1841 cabinet meeting that took place shortly after the election, the Whig leaders agreed to wield the removal power in the same partisan manner as Jackson had. 5 Harrison proceeded to remove executive officials at a

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rate far exceeding that of either Jackson or Van Buren.6 Peterson adds, “Innumerable removals were made for political reasons. All the leading Whigs, as well as lesser members of the party, had countless friends to reward. Because his department controlled more positions than any of the others, Postmaster General Granger probably held the record for dismissals. During his six months in office, he ousted seventeen hundred postmasters and boasted that had he remained in the cabinet another two or three weeks, three thousand more would have been gone. For the time being, at least, the creation of a nonpartisan civil service was impossible. The Democrats had been in command for a long period, and the Whigs were hungry.”7 In fi lling positions, Harrison repeatedly annoyed powerful Whig senator Henry Clay, who unsuccessfully tried to control administration appointments. To Clay’s immense irritation, Harrison rejected Clay’s candidate for secretary of the treasury and for the collectorship of the port of New York (a key patronage position that controlled possibly five hundred jobs). Harrison and Clay’s argument over the composition of the cabinet ultimately became so heated that Harrison ended his fi nal meeting with Clay by declaring, “Mr. Clay, you forget that I am the President.”8 Although the Whigs’ sudden conversion could cynically be attributed to the triumph of political necessity over principle, it can just as easily be attributed to structural factors: the Whigs’ return to the White House brought home the simple truth that presidents must have the power of removal if they are to ensure the proper execution of the laws. Circumstances prevented Harrison from revealing the extent to which he supported other aspects of the unitary executive. While delivering the longest inaugural address in history without wearing an overcoat on an unseasonably cold day, he caught a cold that turned into pneumonia and pleurisy. Harrison eventually died on April 4, 1841, one month to the day after he had been inaugurated.

10

John Tyler

William Henry Harrison’s untimely demise, just a month into his term as president, thrust Vice President John Tyler into the presidency. Tyler’s accession to chief executive dismayed Whig leaders in Congress. Despite Harrison’s apostasy in many areas of Whig presidential doctrine, most congressional Whigs accepted him as a “birthright” Whig whose other party loyalties were basically secure. Tyler, a traditional states’ rights Democrat who had joined the Whig ticket in the spirit of anti-Jackson coalition, did not inspire similar confidence among the Whigs. Doubts about Tyler added to general Whig hostility to presidential power. Many congressional Whig leaders immediately attempted to undermine Tyler’s nascent presidency by advancing the textually plausible claim that the Constitution did not permit a vice president actually to become president but instead only allowed the vice president to adopt the role of “acting president” while continuing in the offi cial title of vice president. To his credit, Tyler refused to accept this interpretation of constitutional law. He immediately assumed the title of president, rather than acting president, and went on to take the presidential oath of office specified by the Constitution and to collect the presidential salary. Ultimately, both houses of Congress voted to recognize Tyler as president rather than acting president.

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This incident marked the beginning of Tyler’s jealous protection of his executive powers from Congress for the remainder of his combative term. Tyler initially attempted to reassure the Whig faithful by embracing a distinctly Whiggish vision of presidential power in his inaugural address. Most notably, Tyler offered, “I deem it of the most essential importance that a complete separation should take place between the sword and the purse. No matter where or how the public moneys shall be deposited, so long as the President can exert the power of appointing and removing at his pleasure the agents selected for their custody the Commander in Chief of the Army and Navy is in fact the treasurer. A permanent and radical change should therefore be decreed.” That said, Tyler recognized that “the right to remove from office . . . [is] subject[ ] to no just restraint.” He indicated that he would “at a proper time invoke the action of Congress upon this subject.” In the meantime, he pledged to “remove no incumbent from office who has faithfully and honestly acquitted himself of the duties of his office.”1 Tyler went on to propose the creation of a five-person Independent Board of Exchequer, the majority of whose members would be appointed by the president with the consent of the Senate and could be removed “only for physical inability, incompetency, or neglect or violation of duty, with reasons laid before the Senate. The Exchequer Board was to become the sole agency to receive, hold, and disburse all public money—‘safe from Executive control.’” This scheme outdid anything ever previously proposed and can only be understood if one recollects the charges of Caesarism and Napoleonism leveled against Andrew Jackson, as well as Whig support for rechartering the Bank of the United States, which would have placed even greater limits on the president’s ability to influence fiscal policy. Happily, Tyler’s idea sank without a trace as other “issues pushed aside one so academic in nature. No President followed Tyler’s lead.”2 Tyler’s apparent willingness to permit others to interfere with his ability to control his administration would prove short lived. Tyler’s son and private secretary reported that Tyler’s fi rst cabinet meeting gave him a striking opportunity to show his belief in a strong unitary presidency. After being told by Secretary of State Daniel Webster that all matters discussed in cabinet meetings should be decided by majority vote, with each secretary and the president having only one vote, Tyler is said to have responded: “I beg your pardon, gentlemen; I am very glad to have in my Cabinet such able statesmen as you have proved yourselves to be. And I shall be pleased to avail myself of your counsel and advice. But I can never consent to being dictated to as to what I shall or shall not do. I, as President, shall be responsible for my administration. I hope to have your hearty cooperation in carrying out

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these measures. So long as you see fit to do this, I shall be glad to have you with me. When you think otherwise, your resignations will be accepted.”3 In his use of the removal power, Tyler continued the trend toward partisan removal of office holders originally authorized by Harrison. In fact, historian Carl Russell Fish, after a comprehensive comparison of the removal behavior of the Harrison and Tyler administrations with the Jackson administration, found the difference between the “sweep of 1829” and the “sweep of 1841” to be merely one of degree, with the Whig administrations making a total of 304 politically motivated removals from a potential total of 924.4 Although the Whigs’ sudden conversion could cynically be attributed to the triumph of political necessity over principle, it can just as easily be attributed to structural factors: the Whigs’ return to the White House brought home the simple truth that presidents must have the power of removal if they are to ensure the proper execution of the laws. The Democrats, having endured Whig criticism of presidential removals for twelve years, could not let this abrupt reversal in Whig constitutional philosophy pass unchallenged. Therefore, on June 17, 1841, Senator (and future President) James Buchanan introduced a resolution requesting that the president provide a list of all removals made during the current administration. Buchanan freely admitted that the resolution was introduced not to articulate a particular constitutional theory but rather to embarrass the Whigs by showing “the beautiful consistency between Whig professions and Whig practice; between promises made before the election, and the performance afterwards.” The Buchanan resolution eventually passed the Senate, and a similar resolution passed the House on July 16, 1841. 5 However, since neither of these resolutions did anything more than request a list of those officers removed, as during the Van Buren administration, the eventual passage of such a resolution cannot properly be regarded as interfering with the president’s control over the execution of federal law. More far-reaching resolutions that would have required the president to present Congress with the reasons underlying the removals of certain officers were submitted but never enacted. The same day that Buchanan introduced his resolution, Representative Julius Alford submitted a resolution requesting that the president furnish the names of all officers removed, along with the reasons for their removals. On July 1, 1841, Senator Thomas Hart Benton offered a resolution requesting that the president communicate to the Senate his reasons for removing five named officers.6 Both of these proposals died without any further formal legislative consideration. Perhaps the most striking example of Tyler’s belief in the assertive use of executive power was his aggressive defense of the presidential veto power.

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The Jacksonian Period, 1837–1861

In a confrontation that echoed the earlier Bank War of the Jackson administration, Tyler vetoed numerous pieces of Whig-sponsored legislation during his tenure. Most notably, Tyler twice vetoed bills attempting to recharter the Bank of the United States on the Jacksonian Departmentalist grounds that they were unconstitutional.7 These actions led to his expulsion from the Whig Party and the mass resignation of all the holdover cabinet secretaries appointed by Harrison (except for Daniel Webster) in September 1841, a mere five months after Tyler took office. When Tyler refused to bend to the Whig caucus, he was threatened with impeachment, making him the fi rst president to be so threatened. Impeachment went nowhere, but Tyler governed for the remainder of his term with minimal support in Congress, and the support he did have was from Jacksonian Democrats, not his fellow Whigs. The Whig fury at Tyler continued unabated for the rest of his tempestuous term. It stemmed in no small part from Tyler’s near-Jacksonian conception of presidential power. The Whigs had been formed as a party to oppose the Jacksonian view of the presidency, and so they came to consider Tyler a traitor to their cause. Tyler’s biographer Norma Peterson reports: [Tyler’s] undermining of the creation of a national bank was harmful, but what really angered the congressional Whigs was Tyler’s thwarting of their determination to control the chief executive and to destroy, for all time, presidential usurpation. Therefore, to secure the nation against future abuses, encroachments, and usurpations by the chief magistrate, the Whig caucus reiterated many of the points voiced during the 1840 campaign: a single term for the incumbent in the president’s office, the right of Congress to appoint the secretary of the treasury, severe restrictions on the president’s power to dismiss from office, the establishment of a fiscal agent (a national bank), and the adoption of an amendment to the Constitution which would limit the chief executive’s use of the veto. Tyler had to be brought to heel; otherwise, there would be three more years of “the same kind of suffering infl icted during the last twelve years by the maladministration of the Executive Department of the government.”8

Tyler’s unofficial press organ, The Madisonian, expressed the administration’s commitment to a unitary executive branch, describing what it saw as “the proper relationship between the president and his cabinet. The executive branch, it declared, should be a whole unit, with the department heads acting as sincere and willing exponents of the president’s deliberate convictions. Otherwise the administration would present to the world the ‘absurd spectacle’ of a power divided against itself. Taking issue with this point of view, the National Intelligencer [Henry Clay’s press organ] called

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it an ‘odious Jacksonian pretension.’” Tyler’s extensive correspondence with his fi rst secretary of state, Daniel Webster, indicates Tyler’s “close attention to detail and the time he spent reading documents and considering what should be done.”9 He was a hands-on chief executive who sometimes bypassed even his secretary of state in communicating directly with the U.S. ambassador to Great Britain. Tyler became particularly aggressive in partisan use of the removal power after his expulsion from the Whig Party. He commented to his treasury secretary, “We have numberless enemies in office and they should forthwith be made to quit . . . in short the changes ought to be rapid and extensive and numerous . . . we must be cautious and never appoint any other than a well known friend.”10 He drew support for his position from opinions written by his attorney general Hugh S. Legaré recognizing that the Decision of 1789 had fi rmly established that the Constitution vested the removal power in the president: “If any authority were needed to enforce considerations which seem so obvious and conclusive in themselves, I think the celebrated debate on the power of removal in the fi rst Congress would furnish it. The whole country seems to have acquiesced in the argument of Mr. Madison, in favor of that power drawn from the character of executive power and responsibility, and from the irresistible necessity of the case.”11 A later opinion similarly concluded, “Whatever I might have thought of the power of removal from office, if the subject were res integra, it is now too late to dispute the settled construction of 1789. It is according to that construction, from the very nature of executive power, absolute in the President, subject only to his responsibility to the country (his constituent) for a breach of such a vast and solemn trust.”12 As a result, turnover in the cabinet was common during the Tyler administration. Including the holdover cabinet members appointed by Harrison, the Tyler administration featured four secretaries of state, four secretaries of the treasury, five secretaries of the navy, four secretaries of war, three attorneys general, and two postmasters general.13 Even the strong-willed Whig Daniel Webster eventually resigned as secretary of state, both because Tyler was determined to push forward with the annexation of Texas and because he was trying to run for reelection as a Democrat. As Peterson explains, the one constant in Tyler’s administration was Tyler himself, and he was indisputably in control of all aspects of his administration’s policy. These removals did not pass without congressional objection. On July 27, 1842, Representative Garrett Davis reported a resolution requesting the reasons for the removal of H. H. Sylvester and proposing the president be required to present to Congress the causes of all removals made in the

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future.14 The Senate Committee on Retrenchment reported a similar bill on June 15, 1844.15 Finally, in 1845, Henry Grider and William P. Thomasson proposed instructing the Judiciary Committee to develop legislation requiring that the executive branch assign reasons for all removals or placing other restrictions on removals.16 The full Congress’s failure to act on any of these proposals allowed these challenges to the president’s power of removal to dissipate without a response from Tyler. Tyler also offered what Peterson describes as “the strongest statement made thus far by a chief executive on the president’s right to use discretion in complying or refusing to comply with congressional requests or demands for information from the executive branch.” Peterson notes, “The President, Tyler pointed out, was directed by the Constitution to ‘take care that the laws be faithfully executed.’ This included an obligation to inquire into the manner in which all public agents performed their duties. If the president were not able to use discretion in the dissemination of information collected in investigations, an inquiry could be arrested in its fi rst stage, and those who were under suspicion could elude detection.”17 Tyler also struck a blow for presidential power by issuing a signing statement in which he expressed constitutional and policy doubts about a bill dealing with the apportionment of congressional districts.18 Congress reacted with fury in a sharp and lengthy House Committee Report written by Congressman John Quincy Adams, the former president. Adams went so far as to call Tyler’s signing statement “a defacement of the public records and archives.”19 As Tyler was preparing to leave office in the winter of 1845, he succeeded, with the help of President-Elect James K. Polk, in pushing through the annexation of Texas and its admission to the Union as a state. He also secured adoption of a major treaty with Great Britain that settled a disputed boundary along the U.S.-Canadian border in a manner that presaged the Polk administration’s settlement of the Oregon boundary line. In sum, Tyler’s belief in a strong, assertive, and unitary executive branch always remained fi rm. This prompted Wilfred Binkley to note that “Tyler saved the presidency from suffering a backset,” even in the face of unimaginable personal political damage. 20

11

James K. Polk

Presidential support for the unitary theory of the executive branch did not waver when the Jacksonian Democrats returned to power under James K. Polk. A Jacksonian Democrat from Tennessee, Polk was often called “Young Hickory,” and his assertive philosophy of presidential power mirrored that of his colloquial namesake, Andrew Jackson. Polk’s biographer Paul Bergeron reports that “Polk did not conform to the Whiggish notions about weak or limited presidents who yielded to a vigorous and dominant legislative branch. Imitating the model established by his mentor, Andrew Jackson, Polk set out to dominate the nation’s capital in just about every respect possible. He knew, as all effective presidents have known, that the office is more than an enumeration of constitutional duties and prerogatives. Indeed, the presidency is whatever the occupant can make of it (within constitutional bounds, of course).” Bergeron adds that Polk “follow[ed] Jackson’s concept of the [presidential] office. Regardless of how one responds to Polk’s policies and programs, there is no question that he was a strong executive.”1 Polk articulated another Jacksonian notion that had infused the unitary executive arguments of Jackson’s protest message vis-à-vis the Bank of the United States. This was the argument that the president was the only true representative of the whole people of the United States, because he alone had

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been elected by the whole people. As Bergeron puts it, “Polk felt confident in his attitude toward and his relationship with Congress, for he believed that he was the true representative of the people of the United States. Jackson had been the fi rst to express such a startling notion; Polk reiterated it and refi ned it.” Bergeron continues, “More boldly and more cogently than Jackson had done earlier, Polk declared that the president was the representative of the whole people of the United States, whereas congressmen were relegated to lesser roles of representing only portions of the people.”2 Clearly, Polk was committed to the Jacksonian notion that the president was uniquely a spokesman of the whole people of the United States. As one historian has noted, Polk “undertook to make reality of the principle sought to be established by Washington, that the executive branch of the government was one whole to be managed by the President alone.”3 Bergeron reports: Polk effectively seized control of the governmental bureaucracy. Upon occasion he boasted, and justifiably so, of his mastery of the details of the functioning of the various executive departments. Because he kept such close scrutiny over them, he was able to control them. This was particularly noteworthy with regard to the Treasury Department, which, since the days of Alexander Hamilton, had been accustomed to functioning more or less independently of the president. But Polk did not permit his secretary of the Treasury to stray from presidential policy or to exhibit independence. One of the chief consequences of Polk’s domination was that his administration produced what could truly be called an executive budget, the fi rst such in the nation’s experience. 4

Bergeron adds that “combing through [Polk’s] diary, one is able to account for at least 364 cabinet meetings during [his] four years” in office, an incredible average of one cabinet meeting every four days. “Having an apparently prodigious mind for minute details and an accurate memory, the president astounded his cabinet members and others with his knowledge of the bureaucracy of the federal government.”5 Polk’s boast indicates that he was the ultimate hands-on president of his day, a figure comparable to Jimmy Carter or Bill Clinton in his willingness to become immersed in the details of governance and public policy. Another example of this tendency was Polk’s aggressive management of individual cabinet members, including a requirement that all secretaries read status reports to him regularly and verbatim. Polk was also the fi rst president to manage the flow of information between his subordinates and Congress, explicitly prohibiting cabinet members from communicating with members of Congress without his permission.6

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Perhaps the most striking illustration of Polk’s belief in a strong executive branch was seen in Polk’s groundbreaking use of the commander-in-chief powers of the presidency during the Mexican War. Deferring to the practical advice of his secretary of war, Polk refrained from aggressively removing military officers whose political motivations he questioned, but he nevertheless subjected their actions to a high degree of direct supervision. Polk also used the appointment power to create new positions within the military, in part to counter the influence of Zachary Taylor and Winfield Scott, whom he correctly suspected of having Whig political sympathies. Just as he managed all other aspects of war policy, Polk managed most of these appointments personally and without congressional or military input.7 Unsurprisingly, Polk’s assertive and occasionally partisan management of the Mexican War drew heavy criticism from his opponents in the Whig Party, who often referred to the confl ict as “Polk’s War.” Regardless of the merits of such criticism of Polk, it seems unquestionable that his management of state affairs during this confl ict was one of the strongest examples since Jackson of the use of presidential power to direct specifically the conduct of subordinate officers. Polk was even less restrained in his use of the removal power with respect to civilian positions. He made wide use of his removal power specifically to sweep out Whig loyalists appointed by Harrison and Tyler. In the Post Office alone, Polk used induced resignations to replace as many as thirteen thousand federal employees.8 Bergeron observes: Polk launched his removal policy in a fashion befitting the days of Andrew Jackson’s presidency. He apparently decided to make extensive removals, but in the words of one observer, he “would not tomahawk beyond what might be considered Christian ferocity.” The fi rst removal notices hit the desks of Washington clerks on 29 March; the new broom intended to sweep clean. The president ordered all department heads to submit to him detailed lists of all employees, with information about their political loyalties, the circumstances of their original appointment, and recommendations to retain or dismiss said employees. With that available data, the president would be able to proceed with a systematic realignment of personnel in the Washington offices.9

Bergeron adds with reference to Polk’s removals in the Post Office that “by the end of the administration, there had been an astounding 13,500 appointments as postmasters,” and he notes that “one marvels that the mail was ever delivered in those days of disruption and turmoil in the post offices.”10 Most of these removals were without significant debate or protest because, when Polk assumed the presidency, “the country was by

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this time so used to the practice [of partisan removal] that little complaint [was] heard.”11 Polk consulted with individual members of Congress in making local executive appointments, but he always made it clear that such consultations were purely advisory and that Congress should not abuse his courtesy. Polk observed, “I have treated [members of Congress] with great civility and have yielded to their wishes about appointments in their respective States until they seem to come to the conclusion that I must administer the Government precisely as they may direct. In this they will fi nd themselves mistaken.”12 The Polk administration’s support for the unitary executive can also be seen in the opinions of his attorneys general espousing the view that the Constitution granted the power of removal to the president. In the eyes of Attorney General John Young Mason, the removal power stemmed from “the constitutional duty of the President to take care that the laws be faithfully executed.”13 Mason’s successor, Nathan Clifford, similarly maintained that the president possessed the power to remove civil officers “at pleasure in all cases under the constitution where the term of office is not specially declared.” Although Clifford recognized that Hamilton in The Federalist No. 77 had suggested otherwise, the issue “was distinctly settled by the Congress of 1789 in favor of the power of the President,” after “one of the ablest discussions in the history of the country,” upon the ground that the power to remove “was clearly in its nature a part of the executive power, and was indispensable for a due execution of the laws and a regular administration of the public affairs.” Clifford further noted that the decision received the sanction of every department of the government, as well as Justice Story, Chancellor Kent, and the Supreme Court. Even though “several commentators on the constitution” did “not entirely admit the correctness of the construction adopted,” those commentators felt “nevertheless constrained to regard the question as closed.”14 Polk’s attorneys general, however, stopped short of arguing that the president possessed plenary power to direct his subordinates. Relying on the previous opinions offered by Attorneys General William Wirt and Roger Taney discussed earlier, Mason concluded that the president “has the power of removal, but not the power of correcting, by his own official act, the errors of judgment of incompetent or unfaithful subordinates.” Mason’s reason for rejecting the power of direction was that the president could not feasibly “undertake to review the decisions of subordinates on the weight or effect of evidence in cases appropriately belonging to them.”15 Thus, it is arguable that Mason would have condoned presidential intercession to correct subordinates’ erroneous determinations of general federal policy. Even so read,

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Mason’s opinion would represent a substantial deviation from the unitary executive model. Thus, despite the Polk administration’s fi rm support for the president’s power to remove, the administration’s position on the president’s power to direct represented another swing in the pendulum that began during the Monroe and Jackson administrations. This minor deviation hardly represents the degree of acquiescence required to establish a particular constitutional construction under the methodology of departmental or coordinate construction. It does not alter the overriding fact that Polk was a committed Jacksonian and an ardent believer in the theory of the unitary executive. He was also by any measure a strong and effective president.

12

Zachary Taylor

Zachary Taylor was a genuine war hero in the mold of Presidents George Washington, Andrew Jackson, and William Henry Harrison. He was selected as the Whig candidate for president because, like Harrison, he was a former general. Unfortunately for the Whigs, who elected only these two presidents, Taylor, like Harrison, was to die in office. Taylor’s term in office lasted only sixteen months, from March 4, 1849, to July 9, 1850. Taylor had some genuinely Whiggish ideas about the presidency and presidential power. A supportive newspaper once went so far as to say, “Taylor . . . had taken office against ‘the Executive influence, Executive patronage, Executive dictation, and the Executive veto.’ Under Jackson these elements had ‘resolved the Government into the one-man power and almost annihilated the Legislature.’ Congress under the Democrats had ‘ceased to be what it was intended to be under the Constitution, the independent and only legitimate organ for the expression of the public will.’ To correct this great evil had been a major reason for electing General Taylor.”1 Taylor was most obviously a Whig in his aversion to use of the presidential veto, which he had often denounced “as a tool of presidential tyranny.”2 Notwithstanding his opposition to use of the veto, Taylor was happy to threaten a veto of the Compromise of 1850, and he believed in the use of the veto against constitutionally suspect legislation.

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While Taylor may have had Whiggish ideas about the use of the veto, he was far from being passive and meek during his sixteen months as president, owing no doubt in part to his experience as a military commander. The British chargé d’affaires John F. Crampton emphasized Taylor’s strong will and remarked upon the “fearless and determined manner” with which Taylor pursued a course of conduct. Taylor had a “well-known reputation for bold and decisive action.” His biographer Elbert Smith reports, “During most of his presidency, Taylor bore insults and condemnations with equanimity and angry defiance. He had often been a center of controversy during his long military career, and he took the presence of enemies for granted. Indeed, like Andrew Jackson, he seemed almost to enjoy quarrels over principle. He had never been reluctant to make up his own mind and to stand firm against overwhelming pressures, and this trait did not desert him in the White House.”3 Smith further reports that Taylor dominated his cabinet and set all the major policies of his administration, which opposed the spread of slavery to California and New Mexico and opposed Texas’s territorial designs on much of present-day New Mexico. Cabinet meetings were held, but no votes were taken, and Taylor made all the important policy decisions himself. Some Taylor critics accused the president of being under the influence of William H. Seward, the free-soil Whig senator from New York, or of the cabinet, but “long before he had been elected president, Taylor had stated the basic convictions from which he did not deviate during his brief term in office. If he and most of his cabinet were a harmonious group on important policies, it was because they agreed on what should be done and not because strong advisers had captured the mind of a weak and ignorant president. Indeed, on the subject of Texas and New Mexico, Taylor’s belligerence went far beyond that of his advisers. No one had to let Taylor be Taylor; no one could have kept Taylor from being Taylor. He was neither weak nor modest, and no had always been one of his favorite words.”4 Taylor actually went so far as to threaten to protect New Mexico from any invasion by Texas over the disputed boundary, and he volunteered to lead the U.S. Army himself in defending New Mexico’s territorial integrity. Taylor “minced no words. When he announced that he would defend New Mexico, in person if necessary, no one doubted it.”5 With regard to use of the removal power, Taylor pledged circumspection and stated in his inaugural address: “So far as it is possible to be informed, I shall make honesty, capacity, and fidelity indispensable prerequisites to the bestowal of office, and absence of either of these qualities shall be deemed sufficient cause for removal.”6 It should be noted that in pledging to use the

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removal power sparingly, Taylor was acknowledging that the president had the power to remove. In any event, Taylor removed subordinates from office with great vigor. The Democrats’ legacy left almost no Whigs in federal positions by 1849, and the Whigs were keenly aware of the missed opportunities. Smith reports, “Of 17,180 governmental employees in 1849, 3,400 were removed and 2,800 resigned. The Whigs, who had previously held virtually none of the 929 presidential appointments, received 540 of these prizes, while Democratic leaders and press screamed to high heaven about the injustice of it all.”7 In other words, upon returning to offi ce, the Whigs embraced the Jacksonian spoils system and removed subordinate executive branch officials freely and at will, just as they had done in 1841. Again, senators in the opposing party could not resist the temptation to needle the Whigs for their wide-ranging removals. On December 24, 1849, Senator James Bradbury offered a resolution requesting that the president provide the charges underlying his administration’s removals.8 Bradbury subsequently amended the resolution to require only a list of persons removed, dropping the request for the reasons for the removals.9 In 1850, Senator Daniel Dickinson introduced a similar resolution calling upon the postmaster general to report the removals or attempted removals of assistant postmasters.10 Senator James Whitcomb submitted resolutions calling upon the president to transmit copies of the charges made in support of the removal of two civil officials.11 Congressional actions on these proposals generally failed to shed much light on the constitutional issues, since these resolutions were offered primarily to score political points and not to challenge the president’s power to remove. As Senator Bradbury candidly acknowledged, his resolution was intended to point out “the inconsistency between the professions and practice of the party in power” and not to call into question “the policy of making removals.”12 There is also strong anecdotal support in the historical record that Taylor, despite his public claims to the contrary, acknowledged the necessity for partisan use of the removal and appointment powers. Leonard White offers support for this contention in a story in which Taylor personally approached the secretary of the Treasury Department—the very department long asserted to possess a degree of independence from presidential control—to ensure that Whigs were receiving “their share of the offices” in the department, noting that “rotation in office, provided good men are appointed, is sound republican doctrine.”13 Thus, despite his urging of circumspection in the making of removals, Taylor in practice used the removal power vigorously and for partisan purposes, even in the supposedly “independent” Treasury Department. There was no deviation from

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the theory of the unitary executive during Taylor’s brief sixteen months in the White House. Indeed, there is one area in which the Taylor administration surpassed its immediate predecessor in its defense of the unitary executive. On the issue of presidential direction of subordinates, Taylor’s attorney general Reverdy Johnson contradicted the conclusion of Polk’s administration and took the position that the department heads had the power to direct accounting officers in their settlement of accounts. Johnson concluded that such had “been the practice of the government from its origin, and [that it was] well authorized by the laws organizing the departments, as it is absolutely necessary to the proper operation of the government.”14 Taylor’s contribution to the theory of the unitary executive is unequivocal. He was a strong president who controlled his administration down to the smallest details, and he was not afraid to take on Henry Clay and other leading members of Congress, despite his party’s doctrine of presidential submission to Congress. Taylor’s strength as president is illustrated by the fact that two days before his abrupt and somewhat mysterious death an opposition newspaper “demanded his impeachment ‘for usurping kingly powers and for trampling on the rights of a sovereign state.’”15 As Taylor’s vigorous and partisan use of the removal power attests, the unitary executive survived his administration quite intact.

13

Millard Fillmore

Vice President Millard Fillmore succeeded Zachary Taylor as president on July 10, 1850, and like John Tyler, he immediately assumed the title of president (rather than acting president) and proceeded to exercise the full powers of the presidential office. Today, Fillmore is remembered as one of America’s most forgettable presidents, but he was by no means a cipher while in office. Fillmore’s biographer Elbert Smith reports, “Millard Fillmore was neither quarrelsome nor vindictive by nature, but his bland exterior and impeccable manners concealed a fighting spirit in its own way just as tough as that of Zachary Taylor. Fillmore had not risen from dire poverty to the nation’s second highest office without a driving ambition, enormous energy, and a shrewd eye for his own best interests.”1 His first act in office was to fi re and replace all of Taylor’s cabinet, which had been tarred by a minor scandal, even though both he and Taylor were loyal members of the Whig Party. This marks the only time a succeeding vice president has ever fi red his predecessor’s entire cabinet. The fi ring and replacing of Taylor’s whole cabinet indicates Fillmore’s desire to control his own administration and his belief in the removal power. The cabinet Fillmore installed was perhaps distinguished most by the presence of Daniel Webster as secretary of state. Fillmore was not afraid of being overshadowed

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by the great Webster, and he worked effectively with Webster during their time together in office. Fillmore also threw his enthusiastic support behind the Compromise of 1850, which was then pending in Congress. His active legislative support for the Compromise indicates his desire, as a Northerner with Southern sympathies, to mediate the sectional confl ict and put it behind him. Fillmore also repeated Taylor’s pledge to defend the federal territory of New Mexico from Texas by military force if necessary. The determination of these two Whig presidents to prevent Texas from seizing big chunks of New Mexico was absolutely critical to preventing a civil war from breaking out and was essential to laying the groundwork for the fi nal passage of the Compromise of 1850. “Any show of weakness or indecision by the president that could lead the Texans to believe they would be fighting only against New Mexicans might well have invited the fatal attack.”2 Fillmore’s defense of New Mexico’s territorial integrity was an appeal to the North, for New Mexico seemed destined to be a free state, while Texas, which had designs on New Mexican land, was of course a slave state. But the Compromise of 1850, which Fillmore shepherded through Congress, had in it one big sop to the South: the passage of the Fugitive Slave Act. 3 In the wake of the Supreme Court’s decision in Prigg v. Pennsylvania,4 the onus for recovering fugitive slaves fell on the federal government, and Southerners demanded the Fugitive Slave Act as their price for allowing new free states like California to disrupt the parity between free and slave states in the Senate. The Fugitive Slave Act thus represented a key part of the Compromise of 1850. It passed with the support of Northern Whigs like Daniel Webster, but was hated by most Northerners. A key question of presidential power loomed: To what extent would Fillmore “faithfully execute” the Fugitive Slave Act in the North, where the law was bitterly opposed by much of the population? Fillmore was relentless in vigorously executing the Fugitive Slave Act. In one instance in Pennsylvania, reports Smith, Fillmore “instructed the Marine commander at Philadelphia to assist the marshal or deputy if he was supported by a federal judge.” In another prominent instance in Boston, “Fillmore, with no other legal alternative, announced that he would use troops, if necessary, to enforce the law.” He told an ally that he would “enforce the laws of the land at all hazards, and put down, with the whole power of the government, if need be, any illicit or violent attempt to counteract or overturn them.” Smith adds, “In each of the prominent fugitiveslave cases in which he could not escape responsibility, Fillmore [spoke]

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and acted decisively in support of the law.”5 The Fugitive Slave Act was a hateful law, but Fillmore fully, vigorously, and faithfully executed it, as the president was bound by oath to do. His personal willingness to execute the act in the face of enormous opposition in the North reveals him to be a proponent of the theory of the unitary executive, under which the president himself is responsible for the vigorous execution of the nation’s laws. It bears noting that Fillmore was no more willing to tolerate law-breaking activities when the South tried them. In November 1850, he received reports that Southern radicals were “planning to seize the federal forts at Charleston[, South Carolina,] as the fi rst step toward secession. The United States attorney and other federal officers in South Carolina resigned, and Fillmore had great difficulty replacing them.” Fillmore reacted to this crisis with fi rm resolution, including support from General Winfield Scott, a Mexican War hero, in cabinet meetings to develop a response to a potential insurrection: “On Scott’s advice, Fillmore strengthened the Charleston forts and stationed additional troops in both South and North Carolina. When the governor of South Carolina demanded an explanation, Fillmore replied that it was his duty as commander in chief of the armed forces to station troops wherever he thought it would serve the public interest and that he owed no explanation to the governor of South Carolina.”6 With respect to removal policy, in addition to fi ring all of Taylor’s cabinet, Fillmore publicly echoed Taylor’s policy of being willing to remove anyone who misbehaved in office. In his fi rst annual message to Congress, issued in December 1850, Fillmore observed, “In so extensive a country . . . where few persons appointed to office can be known to the appointing power, mistakes will sometimes unavoidably happen and unfortunate appointments be made notwithstanding the greatest care. In such cases the power of removal may be properly exercised; and neglect of duty or malfeasance in office will be no more tolerated in individuals appointed by myself than in those appointed by others.”7 It should be noted that in pledging to use the removal power sparingly, Fillmore, like Taylor before him, implicitly acknowledged that the president possessed the constitutional power to remove. Fillmore’s attorney general John J. Crittenden made this point explicit in opinions confi rming the constitutional foundation of the president’s removal power, consistent with the position advanced by every preceding administration up to that time.8 Fillmore’s partisan use of the removal power was striking in the sense that he employed it against members of rival factions within his own party as well as against Democrats. Early in his term, Fillmore directed one of his cabinet members to “turn out [disloyal Whigs] and put good competent Whigs in

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their places wherever it could be done without prejudice to the public service.”9 Smith also reports that Fillmore ordered “a general housecleaning of [Thurlow] Weed’s [Whig] friends holding federal offices.”10 Although while serving in Congress Fillmore had expressed some commitment to “the separation of the purse and the sword from the hands of the executive,”11 by the time he became president he had forgotten about the issue.12 The Fillmore administration, following Taylor, did adopt a rather curious position regarding the president’s power to direct subordinates. Attorney General Crittenden maintained that the president lacked the authority to direct accounting officers in their settlement of accounts but at the same time maintained that the department heads possessed such authority.13 Close analysis of Crittenden’s position reveals it to be somewhat problematic. First, it ignored the fact that many of the authorities he cited for the principle that the heads of departments could direct subordinate executive officials also recognized that the president too could direct those subordinate officials.14 Second, although Crittenden’s opinion noted the absurdity of “a theory which would make the heads of the departments and the President of the United States, who are responsible for the due and efficient administration of the executive government, . . . dependent for supplies of money . . . on the subordinate members of the Treasury Department,”15 Crittenden inexplicably failed to carry this reasoning through to its logical conclusion and instead limited its implications to the heads of departments. Finally, Crittenden himself appeared to recognize that the president might be reluctant to accept his views as the administration’s policy when he conceded that “if the President, however, should take a different view of his duty, I am prepared, most respectfully and cheerfully, to give him my opinion of the merits of each of these cases.”16 In any event, even if these isolated, subpresidential disavowals of the president’s power to direct subordinate federal officials are read for all they are worth, they are not a significant enough departure from the unbroken line of presidential statements in favor of the unitary executive to constitute presidential acquiescence. Fillmore left office in 1853, having been a faithful executor of the laws of the United States—for good and for ill. Moreover, like his fellow Whig Zachary Taylor, he had been an enthusiastic exerciser of the removal power. The unitary executive was thus alive and well at the end of the Fillmore administration when the anti-presidential-power Whigs lost power for the last time.

14

Franklin Pierce

Franklin Pierce and his successor, James Buchanan, were two of the worst presidents in American history. Pierce was totally dominated by his Southern cabinet members, especially his vocal and very visible secretary of war and future president of the Confederacy, Jefferson Davis. “The result was government by cabinet,” a disastrous result except with respect to foreign policy, where the able secretary of state, William Marcy, was able to rescue a few limited successes.1 Notwithstanding his weaknesses both as a man and as president, Pierce was a committed Jacksonian who, as a matter of political philosophy, subscribed to the broad views of executive power espoused by the Democratic Party for the previous twenty years. He believed in the presidential removal power, opposed a national bank and internal improvements, and maintained all the other elements of the Jacksonian creed with great fervor. The Democrats, for their part, began trying to associate Pierce with Andrew Jackson as early as the election campaign of 1852. This period of adulation was short lived. “Though his supporters labeled him ‘Young Hickory of the Granite Hills,’ after the election no one ever compared Pierce to Andrew Jackson” again. 2 Pierce’s biographer Larry Gara reports that “Pierce was perceived as an inept administrator incapable of carrying out his own policies.” His

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appointments rapidly became “a part of the problem in Kansas” as controversy over that state, fanned by Pierce’s own actions, began to tear the Union apart. The problem in the 1850s was that the Democrats were still living in Jackson’s glow, but lacked his ability. As Gara notes, “Jacksonian democracy had run its course. The fundamental changes at work in all aspects of American life required a degree of political adjustment that the president from New Hampshire could neither understand nor implement.”3 As best he could, Pierce tried to govern as president following the Jacksonian creed. He vetoed some bills providing for internal improvements and spending on the grounds that they were beyond the Constitution’s enumerated powers.4 Relying on a series of opinions issued by his capable but proSouthern attorney general Caleb Cushing, he backed strict enforcement of the Fugitive Slave Act, which had come to be hated in the North. Pierce was thus, like Fillmore, a faithful and vigorous executor of that iniquitous law. Pierce and his attorney general also pressed a strong defense of executive privilege. Cushing declared that “Congress had no right to make changes in rank mandatory on the president, nor did it have a right to prescribe qualifications for diplomats. With Cushing’s opinion to back him up, Pierce refused to implement some of the objectionable provisions [of a bill that Congress passed].” The best that can be said for Pierce is that he was personally involved in the matters his departments handled, and, although his cabinet was far from harmonious, none of its members resigned during Pierce’s term. 5 Backed by three opinions written by Attorney General Cushing supporting the president’s power to remove,6 Pierce did occasionally make use of the removal power, as when he fi red a governor of the Kansas territory and when he ordered a purge of every federal official with Know-Nothing sympathies. Although the presidency had switched parties once again with the election of Pierce as a Democrat, the change in partisan control did not elicit any change in presidential policy regarding the removal power. In fact, by the time Pierce took office, the power of removal had been so fi rmly entrenched that Pierce’s clean sweep of the previous appointees no longer elicited any significant political interest.7 Indeed, most debate in this extremely factional period of American history revolved around how those appointments would be distributed based on office holder, region, party faction, and view on the subject of slavery. Thus, to a significant extent, a practice had been established that reflected the general acceptance of the president’s control of the executive branch through the removal power. United States ex rel. Goodrich v. Guthrie, a case that tangentially involved the president’s removal power, reached the Supreme Court during

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the Pierce administration. Guthrie involved the issue of whether a Minnesota territorial judge, who had been removed by the president, could sue for a writ of mandamus commanding the secretary of the treasury to pay his salary for the unexpired portion of his four-year term of office. Attorney General Cushing, in his argument of the case before the Supreme Court, asserted that the president had had the removal power ever since the Decision of 1789 and that the power of removal was essential to fulfi lling the president’s constitutional duty to “take care that the laws be faithfully executed.” Eliding the removal question, the Court held that no court had the power to order the disbursement of money from the Treasury and that mandamus could only issue as to a ministerial act, which was not the nature of the act here.8 Guthrie thus implies tangential support for the theory of the unitary executive and for the notion that the president has broad removal power. The Pierce administration did not simply support the unitariness of the executive branch by asserting its removal power. It also strongly endorsed the president’s power to direct subordinate executive officials. In a strident opinion, Cushing joined Attorneys General Berrien, Taney, Butler, Johnson, and Crittenden in rejecting Wirt’s assertion that the president could direct the department heads but not lower-level executive officials. If Wirt’s view were correct, “it would have been the singular condition of a great government, in which the executive power was vested by [the] Constitution in the President, and he had authority over the primary executive officers, but neither he nor they had any authority over the secondary executive officers.” Such a doctrine was nonsensical and contrary to “settled constitutional theory,” which requires that executive discretion be exercised in accordance with the “unity of executive action, and, of course, unity of executive decision; which by the inexorable necessity of the nature of things, cannot be obtained by means of a plurality of persons, unduly independent of one another, without corporate conjunction, and released from subjection to one determining will.”9 Although the president was not under any obligation to intervene in every possible decision, there was no question that he had the authority to do so. Cushing embraced the president’s power to direct even more forcefully in a subsequent opinion. Cushing noted that in setting up the various executive departments, Congress recognized that “the great constitutional fact remains, that the ‘executive power’ is vested in the President, subject only, in the respect of appointments and treaties, to the advice and consent of the Senate.” Thus, “in the President is the executive power vested by the Constitution, and also because the Constitution commands that he shall

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take care that the laws be faithfully executed: thus making him not only the depositary of the executive power, but the responsible executive minister of the United States.” Although the attorneys general had fluctuated on the question, Cushing concluded that “no Head of Department can lawfully perform an official act against the will of the President; and that will is by the Constitution to govern the performance of all such acts.” As Cushing reasoned, “If it were not thus, Congress might by statute so divide and transfer the executive power as utterly to subvert the Government, and to change it into a parliamentary despotism, like that of Venice or Great Britain, with a nominal executive Chief utterly powerless.”10 Certain language in these opinions arguably suggested that the attorney general operated independently of presidential control when rendering legal opinions.11 However, as Nelson Lund has explained, in offering these statements Cushing simply meant to acknowledge that the attorney general was entitled to his own opinions when offering legal advice; he did not mean to suggest that the president or any other part of the executive branch would be bound to follow his opinions.12 Armed with these opinions, Pierce took control of his administration to the extent that someone of his limited ability could, issuing an executive order centralizing his control over the federal government’s legal affairs.13 The Pierce administration thus fi rmly advanced the president’s power to direct as well as the president’s power to remove. Finally, the Pierce administration rebuffed one of the earliest attempts by Congress to impose what amounted to a legislative veto, when both the House and the Senate passed separate resolutions urging that the secretary of the interior reverse his denial of a claim. Again, the administration’s primary instrument was an opinion by Attorney General Cushing. As Cushing noted, “The Constitution provides for co-ordinate powers acting in different and respective spheres of co-operation. The executive power is vested in the President, whilst all legislative powers are vested in Congress.” Thus, the Constitution gave Congress the authority to participate in the enactment of general laws. However, “the Constitution has not given to either branch of the legislature the power, by separate resolution of its own, . . . to apply [a general law] to a given case. And its resolutions have obligatory force only as far as regards itself or things dependent on its own constitutional power.” Simply put, “it seems little better than a mere truism to say, that a separate resolution of either House of Congress is not a law.” That the resolutions were directed at the secretary of the interior and not the president was immaterial. Cushing noted that a department head acts “in subordination always to his constitutional and legal relation to the President of the United States.” In other words, “the act of a Head of Department is, in effect, an

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act of the President.” Thus, “the authority of each Head of Department is a parcel of the executive power of the President. To coerce the Head of Department is to coerce the President.”14 Thus, despite the fact that Pierce is almost invariably placed toward the bottom of any attempted rating of the presidents, the incompetence of his administration did not stop it from vigorously defending the president’s sole authority to control the execution of the law. By supporting the president’s power to remove and direct and by opposing Congress’s attempt to interfere directly with the execution of the law, the Pierce administration supported every major facet of the unitary executive. Moreover, although some of the attorneys general during the Monroe, Jackson, Polk, and Taylor administrations had evinced some willingness to tolerate limitations on the president’s authority to oversee the actions of all subordinate executive officers, Pierce’s strong opposition to such limitations essentially vitiated previous executives’ acquiescence in coordinate construction.

15

James Buchanan

James Buchanan, our worst president, came to the presidency with a well-established reputation as a defender of the president’s authority to execute the law. He had defended the president’s veto power on Jacksonian grounds and had personally drafted the Democratic response to Whig assertions of limited executive power as a Democrat in the Senate during the Tyler administration. Indeed, it was Buchanan’s writings during the 1840s that effectively served as the last word on the question of presidential power to veto legislation at will.1 Buchanan’s administration got off to a horrible start, according to his biographer Elbert Smith, when the president-elect undertook to communicate with several Supreme Court justices about the pending Dred Scott case. 2 This correspondence involved a severe dereliction of duty by both Buchanan and the justices involved, and Buchanan’s involvement, in particular, constituted a failure of his responsibility faithfully to execute the Constitution—in violation of his oath of office. Buchanan’s support for the unitary executive was made manifest in his widespread use of the removal power, backed by the opinion of his attorney general. 3 Not only did Buchanan use this power freely, he took the power of partisan removal to its logical conclusion when he extended its application to Pierce appointees, despite the fact that all of them were fellow Democrats.

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Buchanan’s willingness to use the removal power is dramatically illustrated by his attempts to muster support for an early legislative effort to get Kansas admitted to the Union as a slave state when most of the people in the Kansas territory were clearly antislavery. A bill to this effect passed the Senate, with “the cabinet lobbying directly, fi ring opposing postmasters and other officeholders right and left, and using both threats and promises wholesale,” but it failed to be adopted in the House of Representatives.4 The widespread removals and threats of removals attest to Buchanan’s belief in the Jacksonian theory of an unlimited removal power. Phillip Shaw Paludan, a Lincoln biographer, reports: When Buchanan sought votes for the Lecompton [Kansas] constitution, passed because of massive vote fraud in Kansas, he bribed legislators with offers of jobs and with contracts to fi rms owned by congressmen’s relatives. . . . To get support for [another Kansas bill] the Buchanan administration walked the lobbies and aisles of the House, alternating bribes of government contracts with threats of loss of patronage. In June 1860 a committee of the House, the Covode committee, reported corruption ranging from Kansas to the navy yards in the East, including instances of promises of offices to congressmen and offers of printing contracts to editors for political support. . . . The overall effect was to brand the Buchanan administration as “the Buchaneers,” more interested in spoils than in principle. 5

As president, Buchanan was among the first to confront a new and serious attempt by Congress to limit the president’s control over his administration and the unitary executive branch: the appropriations rider. Specifically, when Congress appropriated $500,000 to complete the Washington Aqueduct in 1860, it attempted to prevent Secretary of War John B. Floyd from transferring the designer of the aqueduct, Captain Montgomery C. Meigs, to a distant post by attaching a rider requiring that the funds “be expended according to the plans and estimates” and “under [the] superintendence of Captain Meigs.”6 Buchanan signed the bill, but he criticized the rider as an unconstitutional impingement on his constitutional authority. According to Buchanan, it was impossible “that Congress could have intended to interfere with the clear right of the President to command the army and to order its officers to any duty he might deem most expedient for the public interest. If [Congress] could withdraw an officer from the command of the President and selected for the performance of an Executive duty, they might, upon the same principle, annex to an appropriation to carry on a war on condition [that] . . . a particular person of its own selection should command the army.” Since Congress could not have “intend[ed] to deprive the President of the power to order [Meigs] to any other army duty for the performance of which he might

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consider him better adapted,” Buchanan announced that he would treat this rider merely as an expression of Congress’s “preference” rather than a binding legislative command.7 His hypothetical, intended as a reductio ad absurdum, became reality during the presidency of Andrew Johnson with the passage of the rider to the Army Appropriations Act. In the end, Meigs’s bid to remain in Washington failed. In defi ance of the clear mandate of the rider, Buchanan relieved Meigs of his duties and transferred him to the Gulf of Mexico. Meigs sent the aqueduct funds to the Treasury and urged that no project expenses be incurred in his absence, but his recommendations were ignored. By the time Floyd’s resignation permitted Meigs to return to the capital six months later, the army had already paid out more than $150,000 of the $500,000 allocated, in direct contravention of the rider attached by Congress.8 In the end, Buchanan successfully rebuffed Congress’s fi rst major attempt to limit the unitary executive and presidential control over the executive branch through an appropriations rider. The momentous four-way presidential election of 1860 led to the fi rst victory for a Republican candidate: Abraham Lincoln of Illinois. There followed the greatest crisis in the “faithful execution” of the laws ever known to the Union. After the election and Lincoln’s victory, the echoes of secession grew louder, and the slaveholding states began to threaten federal forts. The South viewed the issue of the Union forts located behind Southern lines “as an indicator of Northern intentions. If the Union would give them up or if they could be taken without inciting a war, a peaceful secession would be a reality.”9 Most important was Fort Sumter, in Charleston, South Carolina. Buchanan delivered his annual message on December 3, 1860, and the only useful thing he had to say was that the South was in no danger from Lincoln’s mere election and that it should wait for some actual grievance to emerge before resorting to secession. Smith explains that Buchanan adopted perhaps the narrowest view of presidential power of any president prior to the Civil War, regarding the president as “no more than the chief executive officer of the government,” whose sole province was “not to make but to execute the laws.” Buchanan took the position that secession was unconstitutional if it was called secession, but suggested that it might be permissible if it were instead called a “revolution.” With respect to the forts, he added that the president had to fulfill his oath of office and that if anyone tried “to expel the United States from [its] property by force . . . the officer in command of the forts has received orders to act strictly on the defensive” and that “responsibility for consequences would rightfully rest upon the heads of the assailants.”10

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Buchanan thus misused the bully pulpit of the presidency to encourage rather than discourage secession, in contravention of his oath to take care that the laws be faithfully executed. President-Elect Lincoln tried to calm the waters by pledging to enforce the Fugitive Slave Act, but it was too late. Seven states in the Deep South passed ordinances of secession. Buchanan did stand fi rm in one regard, however: He would not abandon the forts, as “they were federal property and could not be taken legally under either the right of secession, which he opposed, or the right of revolution, which he defended.”11 When South Carolina seceded and its governor asked for the immediate surrender of Fort Sumter, Buchanan wrote that “only Congress . . . could decide on relations between the federal government and South Carolina, and [that] he had no power to recognize the dissolution of the Union or surrender Fort Sumter to anyone.” An attack on the fort absent congressional action would be militarily repelled. Finally, by the end of December 1860, Buchanan ordered federal warships to resupply Fort Sumter.12 Even though Buchanan may have been one of the worst presidents in American history, on the issues that are central to this survey—issues of the unitariness of the executive—he gets a passing mark. During his one term in office there was no acquiescence in any congressional plan to limit the president’s removal power or his ability to control the executive branch. Buchanan did fail to defend the Constitution and faithfully to execute the laws during the winter of 1860 to 1861, but he declined to surrender Fort Sumter, and in any event, Lincoln immediately stepped in to repair the breach. The greatest outbreak of lawlessness and insurrection against federal authority in U.S. history was to be followed by the greatest unilateral use of executive power to defend the Constitution. Buchanan was the last of the Jacksonian presidents, and at the end of this period the concept of the unitary executive bequeathed by the Founding Fathers was alive and well, even though no Jacksonian president was elected to a second term and several were very weak chief executives by modern standards. Despite the historically unremarkable administrations of many of the Jacksonian presidents, the record clearly shows that these presidents explicitly or implicitly held the same views of unitary executive power as Andrew Jackson, even though all but Polk were far weaker than Old Hickory while in office. As Leonard White observes, “The Democrats maintained the tradition that heads of departments were assistants to the President. Any doubt about the independent position of the Treasury was dispelled when Jackson removed William Duane. No Secretary from 1829 to 1861 challenged the

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supremacy of the Chief Executive. The Whigs appeared at times to lean toward a type of cabinet government, but such a theory found lodgment nowhere. The President appointed, the President gave directions, and in case of necessity, he had the undoubted power to remove the department heads.”13 This consistency is all the more remarkable when considered in the light of three historical factors specific to this period of American history. First, these presidencies all occurred during a time when congressional assertiveness had reached unprecedented heights, led by such luminaries as Henry Clay, Daniel Webster, and John Calhoun. Second, four of these presidents were nominal members of the Whig Party, whose central political tenet was an executive branch of limited power relative to Congress. Third, all of these presidencies, and particularly the last four, took place at a time when sectionalism and factionalism over slavery were eroding the power of all the branches of government, including the executive branch. In spite of these factors, all of the Jacksonian presidents were consistently aggressive and unrestrained in their use of the executive appointment, removal, and law enforcement powers under the Constitution.

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PA RT

IV

The Unitary Executive During the Civil War, 1861–1869

Buchanan’s refusal to oppose the rebellion of the Southern states set the stage for the climactic event of the fi rst century of our nation’s history: the Civil War. Struggles over the balance of power between the president and Congress emerged as an important undercurrent that ran throughout the war. The desperation of the times led Abraham Lincoln to assert and Congress to tolerate an unprecedented degree of concentration of power in the chief executive. The result was that Lincoln led and Andrew Johnson inherited perhaps the strongest presidency in our nation’s history. In fact, the unique nature of the Civil War presidencies gave rise to a paradox of sorts. The fact that Lincoln wielded more raw power than any of his predecessors appears to have led him at the same time to tolerate limitations on the devices needed to superintend the execution of the law that would otherwise be regarded as quite problematic. In addition, Johnson’s personal limitations as a politician and his almost total lack of a political power base allowed Congress to emasculate the presidency in ways that were never before possible. In the end, this confrontation between the executive and legislative branches culminated somewhat inconclusively with Johnson’s impeachment and the Senate’s ultimate refusal to remove him. That said, we believe that it would be dangerous to read too much into these developments. The extraordinariness of the times limits their

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precedential significance, and their implications are muted still further when viewed in the context of Lincoln’s extraordinary efforts to ensure the faithful execution of the laws of the land. But most important for the purposes of this book, it becomes clear that in many cases Lincoln and Johnson did not suffer these indignations in silence, and under no circumstances did they affi rmatively acquiesce to them.

16

Abraham Lincoln

If James Buchanan was one of the nation’s worst presidents, then Abraham Lincoln was one of its best. Lincoln’s administration clearly represented the zenith of presidential power during the fi rst century under the Constitution. The exigencies of the Civil War demanded that Lincoln wield a range of powers the likes of which the country had never before witnessed, and many of his enemies accused him of taking on dictatorial or tyrannical powers. Lincoln’s strong presidency is ironic because he began his political career as a Whig and, like most Whigs in the 1840s and 1850s, he had been opposed to a strong Jacksonian vision of the presidency. As Lincoln biographer Phillip Shaw Paludan reports, “Lincoln’s roots were in a world where warnings against unrestrained executive authority were party gospel.”1 Lincoln’s fi rst inaugural address laid out a sophisticated argument as to why secession was unconstitutional and why it was the president’s particular duty under the Constitution to combat secession, and his argument was eventually endorsed in most respects by the Supreme Court in Texas v. White. 2 Lincoln believed that the Union was “perpetual” and “could not lawfully be divided,” and he swore, “I shall take care, as the Constitution itself expressly enjoins upon me that the laws of the Union be faithfully executed in all the States.” With the “momentous issue of civil war” looming, Lincoln closed by maintaining that the government would not “assail”

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the South if the Union was not assailed, but that both sides needed to note that he had taken the most solemn oath “registered in Heaven” to preserve, protect, and defend the Union. 3 Lincoln was not going to stand aside and leave federal laws in the South unexecuted, as James Buchanan did, while the Union was coming apart. Between March 4, 1861, and July 4, 1861, Lincoln unleashed the most extraordinary period of unilateral presidential action that the Republic has ever witnessed. Suffice it to say that had the circumstances Lincoln faced been any less threatening, he could not be excused for taking some of the steps that he did without congressional approval. One of Lincoln’s first major decisions was when to call Congress back for an emergency session.4 “Clearing a wide space for executive initiative, he set the date for congressmen to return over two-and-a-half months away—4 July 1861. For almost its fi rst three months the Civil War was the president’s war.”5 The delay in calling Congress gave Lincoln the opportunity to take five important unilateral actions to cope with the secession crisis. First, Lincoln unilaterally ordered that Union forts and other national outposts and property be defended by federal troops from any attack or confiscation by Southern states. This required mobilizing troops and supplies without congressional consent and sometimes without constitutional authority. Second, there were dramatic increases in the size of the army and navy, all accomplished by presidential decree. This was arguably contrary to the clearly expressed congressional power “to raise and support armies.”6 However, the president has unilateral authority to federalize the state militias when he believes a crisis calls for this. Lincoln thus took a legitimate step when on April 15 he declared the existence of a sufficient state of emergency and called up seventy-five thousand members of state militias into national service.7 Third, Lincoln ordered a naval blockade of all Southern ports.8 As commander in chief, Lincoln had the authority to deploy federal warships as he saw fit—as the Supreme Court would eventually recognize in its five-to-four decision in The Prize Cases9 —but surely their use without congressional approval with respect to a domestic insurrection was extraordinary. Fourth, and most striking, Lincoln unilaterally suspended the writ of habeas corpus between Philadelphia and Washington in order to deal with riots and disorder in Maryland.10 The Constitution is silent on whether Congress or the president has the authority to suspend the writ of habeas corpus in times of emergency, but the better argument is surely that this is normally a congressional prerogative. In response to Lincoln’s suspension of the writ, “the Whig attitude toward the presidency, born of the attack on Jackson

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as ‘King Andrew,’ faded so rapidly that within weeks Lincoln was being called a dictator and his government a despotism.” Fifth, and finally, Lincoln “closed the mails to ‘disloyal’ publications; he told generals to begin raising new armies; he paid $2 million out of the Treasury to private citizens in New York to expedite recruiting; he pledged government credit for $250,000 million. He had no authority to do these things; Congress clearly did.”11 Lincoln defended his unilateral actions to repel the Southern attack and execute federal law in the South by arguing that the Commander in Chief Clause, when read in conjunction with the Take Care Clause, conveyed upon him the “war power,” which empowered him to take the sweeping actions that he did.12 Paludan explains that like Jefferson, Lincoln took it for granted that his duty to defend the Constitution and faithfully to execute the laws implicitly authorized him to take whatever steps were necessary to preserve the Republic, even if those steps were not specifically authorized by any particular constitutional provision. Lincoln noted, “I understood that my oath to preserve the Constitution to the best of my ability, imposed upon me the duty of preserving, by every indispensable means, that government, that Nation of which that Constitution was the organic law. Was it possible to lose the Nation and yet to preserve the Constitution? . . . I felt that measures, otherwise unconstitutional, might become lawful, by becoming indispensable to the preservation of the Union. Right or wrong, I assumed this ground, and now avow it.”13 As Lincoln similarly noted in a letter to Treasury Secretary Samuel Chase, “I will violate the Constitution, if necessary, to save the Union; and I suspect, Chase, that our Constitution is going to have a rough time of it before we get done with this row.”14 Whether his actions were legal or not, Lincoln undertook them, backed by the American people. He trusted that Congress would later vindicate his decisions.15 Further constitutional controversy was averted when, as Lincoln predicted, Congress ratified all of Lincoln’s actions after the fact.16 The only unilateral action Lincoln undertook that was not immediately authorized by Congress was his suspension of the writ of habeas corpus, and even that was later ratified by Congress.17 On August 2, 1861, Congress took another momentous step when it finally passed a statute giving the attorney general explicit authority to direct federal district attorneys.18 Attorneys general had sought such authority since the Washington administration. This statute marked a step in the direction of the creation of the centralized Department of Justice we know today, which was created during the Grant administration. It effected no change in formal presidential powers of control over district attorneys, but it did aid the president by explicitly acknowledging the authority of one of his direct subordinates to direct the district attorneys.

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The Civil War, 1861–1869

During the Lincoln-Douglas debates in 1858, Lincoln had addressed the issue of judicial supremacy and departmentalism, advocating the Jeffersonian-Jacksonian position we take in this book that congressmen and presidents have coequal power with the courts to engage in constitutional review.19 Lincoln reiterated his departmentalist opposition to Dred Scott in his fi rst inaugural address. 20 Upon taking office, he put into effect the departmentalist rejection of Dred Scott, and he directed his subordinates to conduct governmental affairs in a manner contrary to Dred Scott by ordering them to issue patents and visas to African American citizens. This departmentalist approach assumed new significance for Lincoln when the constitutionality of his suspension of the writ of habeas corpus was challenged in the landmark case of Ex parte Merryman, which arose when John Merryman, an officer in the Maryland militia, was placed in military custody for allegedly using his position to recruit and train Confederate sympathizers. Merryman fi led for a writ of habeas corpus before Chief Justice Roger Taney himself, and Taney granted the writ. Taney held that Lincoln’s unilateral suspension of the writ was an unconstitutional usurpation of the power of Congress and that Merryman was “entitled to be set at liberty and discharged immediately from imprisonment.”21 Rather than enforce this order from the chief justice, Lincoln ignored it and appealed directly to the American people and to Congress in his message to the special session of Congress on July 4. 22 Lincoln believed that “the president could defi ne the meaning of the Constitution and that the people themselves, in electing the president, also made constitutional law. There was too much at stake to leave the meaning of the Constitution and the polity it helped defi ne to nine justices.”23 Taney had claimed that Lincoln had violated his oath to “faithfully execute” the laws by ignoring Merryman’s writ of habeas corpus. Without ever acknowledging that his unilateral suspension of habeas corpus was illegal, Lincoln argued that regardless of legality, the national situation was so dire that it justified his actions: “The whole of the laws which were required to be faithfully executed, were being resisted, and failing of execution, in nearly one-third of the States. Must they be allowed to fi nally fail of execution, even had it been perfectly clear, that by the use of the means necessary to their execution, some single law, made in such extreme tenderness of the citizen’s liberty, that, practically, it relieves more of the guilty, than of the innocent, should, to a very limited extent, be violated? To state the question more directly, are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one should be violated?”24

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Attorney General Edward Bates followed up Lincoln’s July 4 address with a legal opinion further justifying Lincoln’s position. Bates said the three branches of government “are co-ordinate and coequal—that is, neither being sovereign, each is independent in its sphere, and not subordinate to the others, either of them or both of them together. . . . If we allow one of the three to determine the extent of its own powers, and also the extent of the powers of the other two, that one can control the whole government, and has in fact achieved the sovereignty.”25 Thus, Attorney General Bates applied Jacksonian departmentalism to the question of whether a president is obligated to follow court judgments. This may be the most sweeping departmentalist argument for presidential power ever made. On administrative matters, Lincoln paid close attention to the most minute details of military strategy, and he told his generals very specifically what he wanted them to do. On one occasion he encouraged General Joseph Hooker to speak directly with him rather than report to Hooker’s superiors, and when he later became exasperated with Hooker, Lincoln personally told Secretary of the Army Edwin Stanton to accept Hooker’s resignation. On another occasion, after the Union victory at Gettysburg, Lincoln became furious with General George Meade for failing to pursue the retreating Confederate troops. Lincoln’s general in chief, Henry Halleck, complained “that Lincoln’s ‘fi ngers itch to be into everything going on.’” This may have been fortunate because, although “Lincoln’s tactical understanding remained flawed, his larger strategic ideas were sound.” Lincoln held “the same strategic ideas that Grant held: Union superiority in numbers meant that pressure all along the Confederate front would wear out and break down Southern resistance.”26 Lincoln’s management of his cabinet was less direct than his supervision of the armies, in that Lincoln was willing to delegate authority to the very able men he had picked to advise him. A major cabinet crisis erupted in December 1862 when thirty-one of thirty-two Republican senators voted in caucus that Secretary of State William Seward should be removed, in part because Treasury Secretary Chase had been criticizing Seward on Capitol Hill. Lincoln answered the Seward opponents with fi nesse, calling upon the senators to meet with him at the White House without telling them that the entire cabinet, minus Seward, would be present. In the presence of the senators, Lincoln pointedly asked his cabinet if there was any lack of unity in the government, and all the cabinet members swallowed hard and said no. The senators then backed down, and Lincoln refused Seward’s resignation, which had been tendered. “The executive branch had established its

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ultimate autonomy, and Lincoln had clearly shown himself master of it. He, not Congress, would determine who his advisers would be.”27 In the wake of the Seward crisis, Lincoln tried to show his devotion to cabinet government by ostentatiously asking every cabinet member for a written opinion on the legality of the various extraordinary events that had made West Virginia a new state. Lincoln thought it important to do this because he was fighting a war to defend the Constitution and laws, and he wanted everyone to see that he took the laws seriously with respect to West Virginia statehood. Paludan writes, “An increasingly independent presidency was emerging, however, and the circumstances of war were validating it. A former Whig and a former Democrat, Bates and Blair, said that the president could ask for as many opinions or as few as he wished; he need not consult with them unless he wanted to. The president himself was accountable for his administration and by implication the only point at which congressmen could challenge a cabinet member was at confi rmation hearings. There could be no such thing as a ‘plural executive.’”28 In the summer of 1862, Lincoln took another momentous step in affi rming unilateral presidential power when he announced his Emancipation Proclamation, under which all slaves in areas still in revolt on January 1, 1863, would henceforth and forever after be free. 29 Lincoln’s unilateral action in issuing the Emancipation Proclamation may well be the most important unilateral act any president of the United States has ever taken, and it was truly a sweeping and extraordinary exercise of the executive power conferred by the Constitution. The Civil War was fought over the issue of the president’s authority to take care that the laws be executed in the South, but there were a number of subsidiary “take care” questions that arose during the war that merit brief mention. First was the question of returning fugitive slaves, an issue that remained alive prior to the repeal of the Fugitive Slave Act30 in some of the loyal border states. “Constitutional commitment stayed fi rm; the federal government [continued to] return fugitives until June 1864, when Congress killed the fugitive slave law.” Another “take care” issue arose over the unpopular draft law, which Democrats, lumping it with the habeas law, argued “gave the administration monarchical powers.” Lincoln wrote an “extended argument on the necessity and constitutionality of the draft . . . [and he] asserted that ‘it is my purpose to see the draft law faithfully executed.’”31 From July 13 to 17, 1863, New York City exploded with riots against the draft law, and Lincoln was faced with a serious crisis of how to execute that law. Lincoln responded discreetly, but he did station troops in New York, thus showing his dedication to enforcing even unpopular laws.

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Lincoln maintained military governments in some portions of the South that had been freed, like Louisiana, and thus he experimented unilaterally with military reconstruction there. Lincoln favored a quick, nonpunitive Reconstruction led by the military. 32 Lincoln’s control of Reconstruction “rested almost entirely on his authority as commander in chief” and on the pardon power. Members of Congress fretted that they should have some say over Louisiana, and they “worried about executive lawmaking.” Lincoln worked to bring Louisiana “quickly back into the Union,” while Congress eventually came to assert its own more radical reconstruction plans. Lincoln’s battles with Congress over Reconstruction thus represent another extraordinary exercise of the executive power. It is no wonder that on some occasions Lincoln’s Democratic opponents called him “King Lincoln” and charged him with “executive tyranny.”33 Lincoln’s unusually strong commitment to the unilateral exercise of executive power may help explain a few of his unfortunate deviations from the theory of the unitary executive. Somewhat paradoxically, though Lincoln wielded more raw power than any of his predecessors or successors, he at times tolerated congressional efforts to interfere with his removal or law execution powers. On the one hand, Lincoln dominated his cabinet, on one occasion retracting the decision of his fi rst secretary of war, Simon Cameron, to arm fugitive slaves for the Union Army and ultimately dismissing Cameron for insubordination. Lincoln also made wider use of the presidential removal power than any president before him, paying great attention to the details of patronage matters even during the crisis over Fort Sumter and removing 1,457 out of a total of 1,639 presidential officers. 34 In so doing, as Edwin Corwin notes, Lincoln “far surpassed” even Jackson’s “record as a spoilsman.”35 Although Lincoln made many of these removals in order to ensure the loyalty of government officials, he did not hesitate to remove an official on purely partisan grounds. In fact, so partisan were Lincoln’s removals that a noted commentator observed, “If Lincoln had made appointments for merit only, the war might have been shortened; on the other hand, he might not have preserved a united North to carry on the war.”36 The importance of patronage only continued to swell, as the prosecution of the war caused an almost fivefold increase in the number of federal employees. Lincoln came to regret the prevalence of patronage appointments. When facing a throng of office seekers and congressmen in his outer office, he observed that the spoils system might in the course of time become far more dangerous to the Republic than the Civil War was. Accordingly, Lincoln stubbornly resisted members of his own party who wanted to conduct a thorough “office sweep” in the beginning of his second term. Doing

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so demonstrated Lincoln’s personal control over removal policy, a conclusion reinforced by an opinion of Attorney General Bates, 37 although Bates adopted the intermediate position on presidential review fi rst advanced by Attorney General Crittenden and opined that the president may direct the heads of departments but should not direct subordinate executive officials. 38 Lincoln’s vigorous and partisan use of the removal power, in spite of his background as a former Whig, indicates his fi rm belief in the unitariness of the executive and the importance of presidential control throughout the executive branch. On the other hand, Lincoln offered no objection when Congress enacted legislation limiting Lincoln’s power to remove the comptroller of the currency, 39 military officers,40 and consular clerks,41 or when Congress in 1863 gave federal district courts the right to appoint interim federal prosecutors, or when the Joint Committee on the Conduct of the War delved far into the conduct of the military, examining past and future battle plans and the conduct of generals, even demanding the dismissal of certain generals on political grounds. This committee, formed largely because of “Old Republican” (that is, Whig) dismay over Lincoln’s executive assertiveness and Radical Republican fear that Lincoln’s approach to the war was insufficiently abolitionist, conducted wide-ranging investigations into the conduct of the war by the executive branch. Lincoln tolerated the committee and allowed it some success when it was able to play a role in forcing the resignation of Lincoln’s fi rst secretary of war, the corrupt Simon Cameron, and to suggest Stanton as Cameron’s successor. Lincoln never directly responded to these attempted congressional incursions on presidential power, preferring to pacify the Committee on the Conduct of the War whenever possible. In private, he complained, “Powers of the Government are unquestionably enlarged by a state of war but is Congress the government? I think not. . . . All the powers that Congress possess are those granted in the Constitution.” Lincoln’s unwillingness to confront the committee showed more of a desire to maintain wartime political consensus than a desire to abdicate presidential power. As Wilfred Binkley notes, Lincoln’s strategy in dealing with Congress was “no longer a question of constitutional assignments of power but a matter of maneuvering to preserve the prestige and prerogatives of the executive office which he considers not only constitutionally his but highly essential for the prosecution of the war and the salvation of the Union.”42 Lincoln thus chose pragmatism over dogmatism in dealing with Congress; he picked his constitutional battles with Congress carefully, with an eye toward gradual expansion of his overall power to administer the war. This desire to maintain wartime

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unity, especially within Republican Party ranks, was particularly important for Lincoln in the days leading up to the wartime election of 1864. For the purposes of this book, it is sufficient to acknowledge that Lincoln’s failure to object to instances of congressional interference with the unitariness of the executive branch occurred when the nation was riven by civil war. Moreover, mere silence on Lincoln’s part hardly established a historical pattern of presidential acquiescence, particularly in light of the extraordinary powers Lincoln was asserting in an unprecedented effort to see to it that the laws of the land were faithfully executed. Finally, Lincoln had said that he was willing to tolerate minor infractions of the Constitution to save the Union. This is exactly what he did when he silently tolerated unconstitutional limits on his power to remove the comptroller of the currency, military officers, and consular clerks in order to win the Civil War. Lincoln noted in his annual message to Congress on December 6, 1864, “The Executive power itself would be greatly diminished by the cessation of actual war.”43 A few months later, he became the fi rst president in American history to be assassinated, when a Southern traitor fi red a fatal shot, shouting “Sic semper tyrannis”—thus always to tyrants.44 Lincoln’s successor, Andrew Johnson, abandoned Lincoln’s commitment to equal rights for all citizens, which in turn set the stage for the epic battle between the president and Congress over the Tenure of Office Act. Lincoln, then, wielded more raw, unilateral power than any president in American history, before or since. He wielded that power specifically to uphold his oath to defend the Constitution and to see to it that the laws would be faithfully executed in all of the states, including the South. He remained silent on a few occasions when Congress transgressed the rights accorded to him as the unitary executive, but he always kept his eye on what was important, which was winning what should rightly be called the War of the Rebellion. No president ever did more than Lincoln to take care that the laws be faithfully executed, and that makes him a hero of this history of the unitary executive, his occasional lapses notwithstanding.

17

Andrew Johnson

Abraham Lincoln was succeeded by one of our worst presidents, Andrew Johnson of Tennessee. Johnson was one of only two presidents to be impeached, and, as we indicate below, his sabotage of congressional Reconstruction warranted his impeachment and removal. However, Johnson’s actual impeachment was based on his violation of the unconstitutional Tenure of Office Act, which illegally sought to limit the president’s removal power. Johnson’s acquittal (by one vote) on this charge was due to his strong defense of the unitary executive and to several senators who agreed with this defense. Importantly, Johnson promised key senators that, if acquitted, he would stop sabotaging Reconstruction during the balance of his term and would thenceforth faithfully execute all of the laws, even those with which he disagreed. Johnson began his political career as a Jacksonian Democrat, and he was added to the Republican ticket in 1864, when the Republican Party temporarily renamed itself the Union Party in order to attract support from Northern Democrats and border state Unionists. After Lincoln was assassinated, Johnson tried to assume Jackson’s presidential swagger, though “‘common sense’ dictated [that he should proceed] with caution and restraint.” As Albert Castel writes, “Andrew Jackson was [Johnson’s] hero and model,” and it did not help that Johnson “inherited from Lincoln what, in some respects,

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Andrew Johnson

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was an almost dictatorial presidency.”1 Johnson did not understand that as an accidental president, he could not immediately step into Jackson’s and Lincoln’s shoes. When Johnson rose to the presidency, he faced a nearly impossible task. Lincoln had quarreled with Congress over Reconstruction, and Johnson lacked Lincoln’s fi nely honed political skills. The fi rst signs of trouble appeared between May and December 1865, when Johnson had a window of seven months during which he could act unilaterally, if he so chose. During this window he led a presidentially dictated Reconstruction that has been called “the most spectacular exhibition of unilateral national executive authority in American history.”2 Johnson issued a broad pardon to most Southerners on May 29, 1865. 3 He then appointed a governor of North Carolina to call a convention in that state to amend the state’s constitution in preparation for its restoration to the Union.4 Similar proclamations for the other seceded states followed. 5 Johnson did all this in part because he “possessed a Jacksonian concept of the president as the tribune of all the people, whereas each congressman represented merely a fragment of the people.”6 Johnson’s proclamations resulted in the Southern states electing extremely conservative legislative bodies: “Some even refused to repeal their secession ordinances, much less abolish slavery or repudiate the Confederate debt, as Johnson had requested. Instead, [Southern state governments] passed black codes virtually remanding the freed people to a position not far removed from slavery and elected leading former Confederates—including Alexander H. Stephens, Jefferson Davis’s vice president—to Congress.”7 Johnson aggravated the situation by granting hundreds of additional pardons to former Confederate leaders on generous terms. Congress reconvened in December 1865 and refused to seat the delegations from the Southern states. Congress also immediately set up a joint committee on Reconstruction. Both actions were driven by Northern concern over the violent mistreatment of freed African Americans in the South; revulsion at the black codes, which seemed to resurrect slavery under a new name; and anger at the lack of Southern remorse implicit in the election of officials like Stephens. In February 1866, the fi rst clash between Johnson and Congress occurred over the Freedmen’s Bureau Bill, a moderate Republican measure originated by Senator Lyman Trumbull of Illinois. Johnson vetoed the bill because of constitutional objections, using language considerably harsher than that used in the initial draft prepared by Secretary of State William Seward.8 Congress then passed the Civil Rights Act of 1866,9 Johnson again vetoed the bill on constitutional grounds,10 and, for the fi rst time in

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American history, Congress overrode a presidential veto.11 Jean Edward Smith, a biographer of Ulysses S. Grant, reports that by the summer of 1866 Johnson was asking his new attorney general Henry Stanbery for an opinion as to the legitimacy of the Thirty-ninth Congress. Smith writes, “Rumors swirled that the president contemplated recognizing a new Congress made up of Southern representatives and cooperative Northern Democrats. In fact, [Johnson] posed such a possibility to Grant to gauge his reaction. The general in chief did not mince words: ‘The army will support the Congress as it now is and disperse the other.’”12 By mid-October, claims Smith, Grant was afraid of a presidential coup before the fall elections and resolved not to leave Washington to attend an aide’s wedding in Illinois. Nor was Grant the only Lincoln appointee who remained vigilant for fear of what Johnson might attempt. Critically, Secretary of War Edwin Stanton also stayed in office, to control Johnson’s cabinet and thereby prevent the president from doing any more mischief. In the summer of 1866, Congress was already so distrustful of Johnson that it reduced the size of the Supreme Court from ten to seven to ensure that Johnson would be unable to make any appointments to the Court. Johnson responded during the balance of 1866 by wielding the removal power vigorously to reward his few friends and to punish his foes, backed by additional attorney general opinions supporting his constitutional right to do so.13 This forceful use of the removal power by Johnson set the stage for passage of the Tenure of Office Act and for Johnson’s impeachment for violating that unconstitutional act. “During the last six months of 1866 Johnson . . . replaced almost seventeen hundred postmasters, three-quarters for political reasons. Postmasterships were the heart of the nation’s patronage system and the Republicans responded with alarm.”14 Patronage loomed as a particularly powerful weapon in the South, where virtually every federal job lay vacant. Historians have debated how extensively Johnson chose to make of his constitutional power to remove.15 Thomas Nast depicted Johnson in one cartoon as “King Andrew, sitting on a throne watching the beheading of a group of well-known Radicals.”16 Members of Congress took several steps to control Johnson’s use of his removal powers. In a few cases, they attempted to pressure Johnson into removing certain officers whom they found objectionable. For example, the House voted sixty-eight to thirty-seven in favor of Representative Calvin Hulburd’s resolution providing “that it is the sense of this House that Henry A. Smythe should be immediately removed from the office of collector of the port of New York.” The House had initially amended Hulburd’s resolution to provide for an impeachment investigation rather than call

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upon the president to remove Smythe. However, because it was decided in committee that “Congress having determined to adjourn, there is not sufficient time prior thereto for the Committee on Public Expenditures to conclude its investigation,” the House passed Hulburd’s resolution in its original form.17 In 1867, at the request of Secretary of War Stanton, Congress attached a rider to the Army Appropriations Act purporting to limit Johnson’s control over the military. In direct violation of the president’s removal power and his authority as commander in chief, the rider provided that “the General of the Army shall not be removed, suspended, or relieved from command, or assigned to duty elsewhere than at said headquarters without the previous approval of the Senate.” The rider further limited Johnson’s authority by requiring that “the head-quarters of the General of the army of the United States shall be at the city of Washington” and that “all orders and instructions relating to military operations issued by the President or Secretary of War shall be issued through the General of the army, and in case of his inability by the next in rank.” Also, “any orders or instructions relating to military operations issued contrary to the requirements of this section shall be null and void.” Congress backed up the rider’s prohibitions with stiff penalties, deeming “any officer who shall issue orders or instructions contrary to the provisions of this section shall be deemed guilty of a misdemeanor in office,” and subjecting any officers who knowingly “transmit, convey, or obey” such orders to imprisonment for a period of two to twenty years.18 Johnson complained bitterly about the Army Appropriations rider, protesting justifiably that its provisions “in certain cases virtually [deprived] the President of his constitutional functions as Commander in Chief of the Army,” and thus “were out of place in an appropriation act.” However, given the necessity of military appropriations during Reconstruction, Johnson felt “constrained to return the bill with [his] signature, but to accompany it with [his] protest against the sections which [he had] indicated.”19 Johnson was right that this provision was unconstitutional, but the problem the legislation tried to remedy had been triggered by Johnson’s refusal to recognize Congress’s power to authorize Reconstruction pursuant to the Guarantee Clause and its powers under Section 2 of the Thirteenth Amendment to eliminate badges of slavery. Once Johnson and Congress were reduced to fighting over keeping Grant in charge of the army, the situation was beyond repair. The emergency of the Civil War and its aftermath were rendering the ordinary practice of constitutionalism and of a unitary executive impossible to be maintained. At this point, impeachment was in all likelihood inevitable.

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The Civil War, 1861–1869

By the winter of 1867, Congress was concerned that every Southern state had rejected the Fourteenth Amendment. During this period, the members of the Fortieth Congress convened immediately following the end of the Thirty-ninth Congress for fear of what Johnson would do to wreck Reconstruction if they left town. Thinking a fresh start on Reconstruction necessary, Congress passed the First Reconstruction Act, a sweeping measure that employed Congress’s valid Guarantee Clause powers to reconstruct the South. This bill also made adoption of the Fourteenth Amendment by Southern states a requirement for their representation in Congress and for their freedom from continued military occupation. 20 Johnson vetoed the bill, 21 but it was passed over his veto. 22 Believing the Military Reconstruction Act unconstitutional, Johnson proceeded to try to undermine both the legislation and Reconstruction itself. 23 This only led Congress to pass two more Military Reconstruction Acts in order to deal with Johnson’s efforts at sabotage. 24 The stage was thus set for one of the great confrontations between the president and Congress in American history. Congress should have impeached and removed Johnson from office for failing to recognize congressional power to proceed with Reconstruction under the Guarantee Clause and failing to ensure that the laws dealing with Reconstruction were faithfully executed. Although the standard for impeachment and removal of a president must be set very high, by November 1866 Johnson was already in a virtual war with Congress and could not be reined in by ordinary means. The problem was that rather than remove Johnson for unconstitutionally impeding Reconstruction and threatening congressional authority, Congress responded by passing unconstitutional legislation that would tie Johnson’s hands with respect to the removal power. As we shall see, this error in focus would ultimately prove to be Congress’s undoing.

case study

2

The Tenure of Office Act and the Impeachment of Andrew Johnson

The most sweeping limitation placed on President Johnson’s removal power was the Tenure of Office Act. Passed during the winter of 1867 along with the First Military Reconstruction Act, the Tenure of Office Act specifically provided that all civil officers appointed with the advice and consent of the Senate would hold office until their successors were confi rmed by the Senate. If the Senate was in recess, the president was permitted to suspend an executive officer so long as he reported the reasons for the suspension to the Senate within twenty days of its return to session. If the Senate failed to concur in the suspension, the officer would be restored to his position. With an eye toward impeachment, the statute specifically designated violations of the act as “high misdemeanor[s].”1 While the House and the Senate agreed that the act should apply to inferior executive officers, the two chambers split sharply over the applicability of the act to the heads of departments. The Senate believed that the president should have a cabinet of his own choosing; it specifically included a provision excluding cabinet members from coverage under the act and twice rejected amendments to delete this exception. 2 Senators in favor of the exception emphasized that the department heads were the president’s confidential advisers and thus should be in harmony with the president’s basic policies. 3 Representative Thomas Williams, the primary sponsor of

179

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The Civil War, 1861–1869

the Tenure of Office Act in the House, disagreed, arguing that including the heads of departments within the scope of the act was “essential to the symmetry of the bill,” since the policies that underlay the bill in the fi rst place applied with even greater force to the heads of departments.4 The majority of the House acceded to Williams’s position and struck the Senate’s exception for cabinet members. 5 The conference committee on the act attempted to resolve this disagreement by drafting compromise language. This language dropped the Senate’s exception for cabinet members, substituting a proviso stating that cabinet members “shall hold their offices . . . for and during the term of the President by whom they may have been appointed, and for one month thereafter, subject to removal by and with the advice and consent of the Senate.”6 Senator John Sherman, head of the Senate conferees and the author of the compromise language, specifically informed the Senate that “its language is so framed as not to apply to the present President” and that “it would not prevent the present President from removing the Secretary of War, the Secretary of the Navy, and the Secretary of State.”7 On the basis of this understanding, the Senate passed the conference report by a wide margin, and after the House had done the same, the bill was sent to President Johnson for his consideration.8 The cabinet, having been convened by Johnson to advise him on the bill, unanimously believed that the bill was unconstitutional and recommended that the president veto it. Johnson later noted that Secretary of War Stanton’s “condemnation of the law was the most elaborate and emphatic.”9 The strength of Stanton’s opinion and his mastery of the issues led the evercrafty Johnson to ask him to draft the veto message, but, pleading physical infi rmity, Stanton demurred, and the message was actually drafted by Secretary of State William Seward with Stanton’s help. Albert Castel notes that “Seward and Stanton’s collaboration produced a veto message filled with arguments and precedents that convinced most constitutional observers then (and since) that the tenure bill was a rape of presidential powers.”10 The Veto Message relied heavily on the fact that since 1789 it had been the unbroken practice of both Congress and the president to construe the Constitution as conferring the removal power on the president, much as our book has suggested. The message stated, “That the power of removal is constitutionally vested in the President of the United States is a principle which has been not more distinctly declared by judicial authority and judicial commentators than it has been uniformly practiced upon by the legislative and executive departments of the government.” Johnson noted that the Decision of 1789 had settled the constitutional basis of the president’s

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power to remove and that this resolution had thereafter been accepted both by the Supreme Court and by learned legal commentators. Thus, “a trial of nearly eighty years, through the vicissitudes of foreign confl icts and of civil war” and a renewed challenge during the administration of Andrew Jackson had proven the propriety of the Decision of 1789. Johnson also defended his veto on structural grounds: “It can not be doubted that the triumphant success of the Constitution is due to the wonderful wisdom with which the functions of government were distributed between the three principal departments—the legislative, the executive, and the judicial—and to the fidelity with which each has confi ned itself or been confi ned . . . within its peculiar and proper sphere.” Because the preservation of such a system depended on “maintain[ing] the integrity of each of the three great departments while preserving harmony among them all,” it was “indispensable” that the executive branch be “capable . . . of executing the laws and, within the sphere of executive action, of preserving, protecting, and defending the Constitution of the United States.” Johnson therefore concluded, “Having at an early period accepted the Constitution in regard to the Executive office in the sense in which it was interpreted with the concurrence of its founders, I have found no sufficient grounds in the arguments now opposed to that construction or in any assumed necessity of the times for changing those opinions.”11 Notwithstanding these objections, Congress summarily overrode Johnson’s veto, and the Tenure of Office Act became law.12 The confl ict between the legislative and executive branches over the Tenure of Office Act reached full boil when Johnson removed Stanton as secretary of war. A holdover from the Lincoln administration who had stayed on long after the other Republican cabinet members had resigned in protest at Johnson’s policies, Stanton had close ties to many of the Republicans in Congress and often acted as their spy. Given the War Department’s central role in Reconstruction, Johnson could not long tolerate Stanton’s Republican and congressional sympathies. After a series of events underscored Stanton’s estrangement from the administration, Johnson suspended Stanton on August 12, 1867, in a terse message: “Sir: By virtue of the power and authority vested in me as President by the Constitution and laws of the United States, you are hereby suspended from office as Secretary of War, and will cease to exercise any and all functions pertaining to the same. You will at once transfer to General Ulysses S. Grant, who has this day been authorized and empowered to act as Secretary of War ad interim, all records, books, and other property now in your custody and charge.”13 Jean Edward Smith notes, “It is a tribute to Grant’s diplomatic skill—a trait with which

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The Civil War, 1861–1869

he is seldom credited—that he was able to push Reconstruction and at the same time maintain amicable relations with the president.”14 Stanton surrendered the office only grudgingly, “Under a sense of public duty I am compelled to deny your right under the Constitution and laws of the United States, without the advice and consent of the Senate and without any legal cause, to suspend me from office as Secretary of War. . . . But inasmuch as the General Commanding the armies of the United States has been appointed ad interim, and has notified me that he has accepted the appointment, I have no alternative but to submit, under protest, to superior force.”15 Although there was considerable doubt whether the Tenure of Office Act was constitutional and whether it even applied to Stanton, the president nonetheless complied with its requirements, submitting the reasons for Stanton’s suspension to the Senate immediately after it resumed session in December, along with an extended message renewing his attack on the Tenure of Office Act as an unconstitutional infringement on the unitary power of the executive. Johnson maintained, “The President is the responsible head of the Administration, and when the opinions of a head of Department are irreconcilably opposed to those of the President in grave matters of policy and administration there is but one result which can solve the difficulty, and that is a severance of the official relation. Because “it is the President upon whom the Constitution devolves, as head of the executive department, the duty to see that the laws are faithfully executed,” the president must be “allowed to select his agents” and “ought to be left as free as possible in the matter of selection and of dismissal.” Any other rule would “reverse the just order of administration and . . . place the subordinate over the superior.” Johnson justified the suspension on nonconstitutional grounds as well, noting that it was far from clear that the statute by its own terms even applied to the current members of the cabinet. As Johnson observed, at that time “it seemed to be taken for granted that as to those members of the cabinet who had been appointed by Mr. Lincoln their tenure of office was not fi xed by the provisions of the act.”16 At roughly the same time he suspended Stanton and temporarily replaced him with Grant, Johnson also took a series of removal actions to undercut congressional Reconstruction policies by replacing the most radical of the military governors with more conservative generals. Johnson began on August 17, 1867, by recalling General Philip H. Sheridan, an avowed Radical, from his post as military governor of Texas and Louisiana, replacing him fi rst with General George H. Thomas and later with Winfield S. Hancock, one of the most conservative generals in the army. Two weeks later,

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he replaced General Daniel Sickles, another well-known Radical, as military governor of the Carolinas. Johnson fi nally fi nished his housecleaning in December, when he removed General John Pope as military governor of Alabama, Georgia, and Florida and General Edward O. C. Ord as military governor of Mississippi and Arkansas. Johnson also criticized the Tenure of Office Act in his Third Annual Message, in which he declared, “The President may be thoroughly convinced that an officer is incapable, dishonest, or unfaithful to the Constitution, but under [the Tenure of Office Act] the utmost he can do is to complain to the Senate and ask the privilege of supplying his place with a better man. . . . I am entirely persuaded that under such a rule the President cannot perform the great duty assigned to him of seeing the laws faithfully executed.” The effect of such a system would be “that official malfeasance should become bold in proportion as the delinquents learn to think themselves safe,” which would “almost destroy . . . official accountability” and “disable [the president] most especially from enforcing that rigid accountability which is necessary to the due execution of the . . . laws.” Moreover, institutionally the Senate was poorly suited to judge removals, since, unlike the president, who was “responsible to the whole people,” the Senate is “a tribunal whose members are . . . responsible . . . to separate constituent bodies.” Johnson concluded, “Therefore it was that the framers of the Constitution left the power of removal unrestricted, while they gave the Senate a right to reject all appointments which in its opinion were not fit to be made. A little reflection on this subject will probably satisfy all who have the good of the country at heart that our best course is to take the Constitution for our guide, walk in the path marked out by the founders of the Republic, and obey the rules made sacred by the observance of our great predecessors.”17 Johnson’s removal campaign proved quite effective. “Stung by the reaction in the South, Senate Republicans recognized that Johnson, by deft use of his appointing authority, was on the verge of overturning Reconstruction.” Despite his decisive actions, Johnson was put on the defensive when Congress assembled in December, with much talk of his being impeached and temporarily suspended from acting as president. Jean Edward Smith reports that Johnson was determined to fi nd out where the army stood on this, “More precisely, where did the general in chief stand? To fi nd out, Johnson called on Grant at the War Department. By now, Grant had come to detest Johnson, but his duty was clear. He told the president he would resist any effort to depose or arrest him prior to the conclusion of an impeachment trial. The constitutional process would be protected. Grant then took it upon himself to inform congressional Republicans of

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The Civil War, 1861–1869

his view.”18 At that point, the efforts by Thaddeus Stevens to suspend Johnson were thwarted. The Senate eventually responded sharply to Johnson’s actions on January 13, 1868, voting thirty-five to six to decline to approve Stanton’s removal, although many senators abstained because they did not believe that the Tenure of Office Act applied to Stanton.19 To Johnson’s dismay, Grant vacated the Department of War after the Senate vote; Johnson had wanted him to stay there to precipitate a judicial determination of the act’s constitutionality. Johnson was convinced that if he could just get the Tenure of Office Act dispute into the courts, he would win. Johnson and Grant quarreled publicly, and Grant essentially called the president a liar who had set out to defame Grant’s character. Stanton resumed his position in the War Department despite physical and fi nancial problems, because he believed that his influence was needed to combat the president and to protect democracy. Despite this setback, Johnson remained determined to get rid of Stanton. Ignoring his advisers’ warnings, Johnson removed Stanton from office on February 21, 1868, in a message that was as terse as the previous suspension message: “On the 12th day of August, 1867, by virtue of the power and authority vested in the President by the Constitution and laws of the United States, I suspended Edwin M. Stanton from the office of Secretary of War. In further exercise of the power and authority so vested in the President, I have this day removed Mr. Stanton from office and designated the Adjutant-General of the Army to act as Secretary of War ad interim.”20 Adjutant General Lorenzo Thomas was hardly Johnson’s first choice. Johnson appointed Thomas only after General William T. Sherman rebuffed Johnson’s attempt to prepare him for the position by establishing a new Army of the Atlantic, headquartered in Washington, D.C., and under Sherman’s command, and by nominating him for a promotion to general of the army. Johnson only relented after Sherman, reluctant to become embroiled in politics, asked his own brother, Senator John Sherman, to oppose his nomination. This time the high-spirited Stanton refused to recognize the president’s action, swearing out a complaint for Thomas’s arrest and barricading himself inside the War Department. The stakes for the Radical Republicans were high, for if Johnson were able to name an anti-Reconstruction secretary of war, “it would mean the loss of their power in the South and eventually in the nation.”21 Congressional Republicans used the president’s defiance to rally their supporters. Senator Charles Sumner sent a one-word telegram to Stanton: “Stick,” while other senators went to the War Department to encourage Stanton to defy the order. “At Stanton’s urgent request Grant stationed extra

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troops at the War Department; in addition, Senator Chandler and Representative John A. Logan posted over one hundred volunteers in the basement of that building.”22 Meanwhile, the Senate voted twenty-eight to six in favor of a resolution declaring “that under the Constitution and laws of the United States the President has no power to remove the Secretary of War and designate any other officer to perform the duties of that office ad interim.”23 Johnson responded the following day with a Jacksonian protest against the Senate’s resolution, complaining that the Decision of 1789 had determined that Congress had no right to interfere with the president’s constitutional power of removal. He said, “The uniform practice from the beginning of the Government, as established by every President who has exercised the office, and the decisions of the Supreme Court of the United States have settled the question in favor of the power of the President to remove all officers excepting a class holding appointments of a judicial character. No practice nor any decision has ever excepted a Secretary of War from this general power of the President to make removals from office.”24 The Senate was disinclined to listen to such arguments, however, and Johnson’s words fell on deaf ears. In the House, Thaddeus Stevens rallied the president’s opposition with the cry, “If you don’t kill the beast, it will kill you.”25 The House immediately commenced impeachment proceedings against Johnson, adopting on February 24, in a strict party vote of 126 to 47, a resolution stating “that Andrew Johnson, President of the United States, be impeached of high crimes and misdemeanors in office.”26 The House subsequently adopted eleven somewhat impenetrable articles of impeachment on March 2 and 3, 1868, although the fact that Congress chose to impeach fi rst and to decide later the grounds for impeachment boded ill for how well those charges would stand up to legal scrutiny. Although the president was also accused of “bringing Congress into disrepute and failing to carry out the Reconstruction Acts,”27 the primary charges focused on Johnson’s alleged violation of the Tenure of Office Act by removing Stanton. The House appointed Stevens, John A. Bingham, George S. Boutwell, Benjamin F. Butler, John A. Logan, Thomas Williams of Pennsylvania, and James F. Wilson as managers. 28 The president, for his part, selected a distinguished array of counsel for his defense, including Attorney General Henry Stanbery, who resigned in order to represent Johnson; former Supreme Court Justice and Dred Scott dissenter Benjamin R. Curtis; future attorney general and secretary of state William M. Evarts; and war Democrats Thomas A. R. Nelson and William S. Groesbeck. 29 The trial was on. General in Chief Grant, who had done so much to uphold congressional Reconstruction when Johnson was trying to kill it, came out in favor of impeachment and removal. 30

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The Civil War, 1861–1869

After a drawn-out trial in which grand and petty politics played as important a role as legal principles, 31 the Senate in the end voted on only three of the articles. In each article, the Senate exonerated the president by a vote of thirty-five to nineteen, one vote shy of the necessary two-thirds majority. 32 Divining the constitutional significance of Johnson’s acquittal is complicated by the myriad rationales underlying particular senators’ votes. While some senators based their decision on the Constitution, it is clear that others based their decision on the statutory grounds growing out of their belief that the Tenure of Office Act did not apply to Stanton. Moreover, other senators admittedly ignored the evidence and the legal principles and openly based their votes on purely political considerations. Much has been made concerning the closeness of the vote and the courage of the seven so-called “recusants”—the Republican senators who voted for acquittal. 33 Contrary to popular wisdom, the recusants’ votes did not end their careers in Republican politics. 34 Furthermore, the vote may not have been as close as it seems; as many as four senators may have stood ready to switch their votes if needed to acquit the president. 35 The Senate subsequently adjourned sine die without voting on the other articles. The following day, Stanton resigned as secretary of war. Johnson nominated in his place General John M. Schofield, a well-known moderate whose name had been mentioned as Stanton’s likely successor during the impeachment trial to allay the concerns of certain senators about Johnson’s intentions should he be acquitted. In the aftermath of the impeachment, both houses of Congress launched investigations into its failure, but neither uncovered anything substantial. The Senate exacted a measure of revenge on Stanbery, refusing to reconfi rm him as attorney general for his defense of the president, although it did relent in confirming Evarts as attorney general.36 In the summer of 1868, the Fourteenth Amendment was declared ratified, even though “Johnson had Seward word the July 20 announcement . . . in such a way as to cast doubt on the legality of the ratifying process.”37 After failing to receive the Democratic presidential nomination in 1868, Johnson used his fi nal Annual Message to register one fi nal challenge to the Tenure of Office Act. Johnson complained, “Under the influence of party passion and sectional prejudice . . . acts have been passed not warranted by the Constitution. . . . Experience has proved that [the Tenure of Office Act’s] repeal is demanded by the best interests of the country, and that while it remains in force the President can not enjoin that rigid accountability of public officers so essential to an honest and efficient execution of the laws. Its revocation would enable the executive department to exercise the power of appointment and removal in accordance with the

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original design of the Federal Constitution.” Johnson also called for the repeal of the Army Appropriations Act rider. 38 He then returned to his home in Tennessee. Strikingly, Johnson and Grant refused to ride together in the same carriage to Grant’s inauguration ceremony, marking only the third time in American history that a president has declined to attend the inauguration of his successor. There can be no doubt about Johnson’s constitutional position with respect to the unitary executive. Johnson repeatedly and correctly condemned both the Tenure of Office Act and the Army Appropriations rider as improper invasions of the unitary executive. Johnson prevailed in his battle with Congress, though by a single vote. But even had politics prevailed and Johnson been impeached of this unjustifi able charge, it would not alter the significance of his opposition for the purposes of coordinate construction. Johnson merely becomes a link in the chain of presidents throughout this period who generally opposed almost all congressionally imposed infringements on their prerogatives. Indeed, a contemporaneous treatise writer, John Norton Pomeroy, observed regarding the removal power that “the legislative and executive construction has . . . until very recently, been uniform from the commencement of the government, and has declared in favor of the sole authority of the President.” The grounds of the Decision of 1789 “have been assented to by every administration since, and have furnished a rule for the guidance of every President, of whatever school of political opinion, from Washington to the present Executive.” The only break in this pattern was the Tenure of Office Act of 1867. Although Pomeroy was reluctant to challenge the validity of a then current statute, particularly one that was engendering such controversy, the previous discussion left little doubt that he thought the statute unconstitutional. 39 Although a young Oliver Wendell Holmes Jr. argued to the contrary,40 the existence of a single statute enacted under unusual circumstances must be weighed against the extensive debates and largely unbroken historical practices recognizing the president’s constitutional power to remove. Admittedly, Lincoln remained silent in the face of a few limited intrusions on his authority during a dire national emergency. Yet because these presidents generally took vigorous steps to protect the unitary power of the executive branch while facing an extraordinary crisis, these minor deviations fail to undercut any inference of acquiescence. The normal constitutional practice of the government was understandably suspended because of the existence of a state of civil war. Therefore, when the conduct of all the chief executives of this period is taken as a whole, their commitment to the unitary executive is clear.

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PA RT

V

The Unitary Executive During the Gilded Age, 1869–1889

The impeachment of Andrew Johnson and the passage of the Tenure of Office Act led directly to a weakened presidency during the period between 1869 and 1889. The presidents in office during those years were hampered by a Congress that had become quite used to functioning as the government itself during the heady years of the Johnson presidency. Presidents Ulysses S. Grant, Rutherford B. Hayes, James A. Garfield, Chester A. Arthur, and Grover Cleveland all fought back, and the Tenure of Office Act was ultimately repealed during the fi rst Cleveland administration. This repeal marks a great victory for the theory of the unitary executive and demarcates the period between 1869 and 1889 as one during which presidents refused to acquiesce in nonunitary constructions of presidential power. The history of this period begins with the presidency of Ulysses S. Grant.

18

Ulysses S. Grant

Ulysses S. Grant was the only president to serve eight consecutive years in the White House between the terms of Andrew Jackson and Woodrow Wilson. He became president after having served as general in chief for the entire Johnson administration, a position that allowed Grant to play a major administrative role in determining the course of Reconstruction. Indeed, it could be said that after Abraham Lincoln was shot in the waning days of the Civil War, it was Grant who held things together, received the surrender of the Confederate forces, demobilized the Union Army, and presided over Reconstruction. Grant immediately differentiated himself from Andrew Johnson by pledging in his inaugural address, “I will always express my views to Congress, and when I think it advisable, will exercise the constitutional privilege of interposing a veto. But all laws will be faithfully executed whether they meet my approval or not.”1 There would be no massive failure to ensure faithful execution of the law under Grant as there had been under Johnson. Grant’s fi rst big fight with Congress was to come over repeal of the infamous Tenure of Office Act, the statute that had nearly wrecked Johnson’s presidency. In some ways, it is surprising and striking that Grant started out his administration with this fight over presidential prerogatives. Grant on occasion expressed limited views of presidential power, asserting that

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the president was an “administrative officer” who was, “except on rare occasions[,] disposed to accept without question the work of Congress as the authoritative expression of the will of the American people.”2 Some in Congress might have hoped that the hero of Appomattox would meekly accept whatever limitations on his power Congress cared to enact. But Grant was no pushover, and he fully and vigorously defended the unitary power of the executive. Furthermore, Grant wasted no time in criticizing the Tenure of Office Act. In his fi rst annual message, Grant challenged the act’s constitutionality, averring that “it could not have been the intention of the framers of the Constitution, when providing that appointments made by the President should receive the consent of the Senate, that the latter should have the power to retain in office persons placed there by Federal appointment against the will of the President.” Noting further that the act was “inconsistent with a faithful and efficient administration of the Government,” Grant took the occasion “to earnestly recommend [its] total repeal.”3 Grant’s biographer Jean Edward Smith notes: Eighteen sixty-nine was a time of legislative supremacy in the United States, and America’s solons were reluctant to surrender the power they had wrested from the executive. The Republicans had used the [Tenure of Office Act] to thwart Johnson’s power to remove subordinates and it was now a matter of senatorial prerogative. When Grant indicated that he wanted the statute repealed, the Senate leadership circled the wagons. On March 2, the next-to-the-last day of Johnson’s term, the upper house voted down a bill to repeal the act, 35–15. Two thirds [sic] of the Senate served notice it had no intention of yielding its authority. “I wish to leave the President-elect free to the full and useful exercise of the good judgment and good qualities which we all ascribe to him,” said New York’s Roscoe Conkling. “At the same time, I wish . . . to preserve the position which the Senate has maintained in the last and most dire emergency known in our jurisprudence.”4

Most incoming presidents faced with a two-thirds majority of the Senate opposed to a policy priority might give up, but not Grant. To add some muscle to his request, he threatened not to make any additional nominations until Congress had acted on the matter. As Smith writes: When the new Congress convened following Grant’s inauguration, another effort was made to repeal the statute. Led by Congressman Benjamin Butler of Massachusetts, now one of Grant’s staunchest supporters, the House voted overwhelmingly in early March to overturn the act. Once again the Senate balked. Grant responded by announcing that until the

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The Gilded Age, 1869–1889 law was repealed he would enforce it vigorously. He would not remove any of Johnson’s appointees and would only fi ll offices that were vacant. The effect of the president’s announcement was to deny Congress the spoils it was expecting. There would be no new postmasters, pension clerks, or customs collectors until the Senate acted. Grant was scarcely the political babe in the woods sometimes depicted. By halting patronage appointments the president was using the one weapon the senators understood. Even Roscoe Conkling now suggested compromise. 5

The Senate reluctantly approved compromise legislation permitting the president to suspend any executive officer during the recess of the Senate without providing his reasons to the Senate, so long as the president informed the Senate of any such suspensions. The suspension, however, would not be fully effective until the Senate confi rmed the president’s choice of a successor.6 This meant that the president could remove an official simply by nominating and getting confi rmation for a successor. “Grant was satisfied. Rather than fight a protracted struggle for total repeal of the Tenure of Office Act, he signed the new measure on April 6.”7 Partial repeal of the infamous act thus became one of the very fi rst new laws enacted under the leadership of the Grant administration. Henry Adams was to note prophetically, however, that “the mere repeal of the Tenure-of-Office Bill cannot at once restore its [presidential] prestige, or wrest from Congress the initiative which Congress is now accustomed to exercise. The Senate has no idea of abandoning its control of power.”8 Grant’s strong objections to the Tenure of Office Act represent an important assertion of the president’s sole authority to execute the laws. In other respects, Grant’s record was not completely consistent in protecting the removal power. Somewhat curiously, Grant failed to object when Congress enacted statutes modeled on the Tenure of Office Act requiring Senate consent for removals of deputy postmasters.9 These statutes were to be declared unconstitutional by the Supreme Court in Myers v. United States,10 the landmark case on the unitary executive. Perhaps Grant thought that deputy postmasters were not policymaking officials and so, as we discussed in chapter 8, the theory of the unitary executive did not apply. Or maybe he just had other, bigger battles to fight. The fairest interpretation, given Grant’s record, is that his administration took no consistent position either in favor of or opposed to total presidential control of the removal power. In addition, Grant did not hesitate to direct the actions of subordinate executive officials. Supported by an opinion by his attorney general affi rming his authority to review the decisions of his subordinates,11 Grant also asserted his authority over his department heads, in one case overruling a

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decision made by the secretary of the interior.12 Other opinions written by Attorney General George H. Williams accepted the position asserted by Wirt that the power of direction did not apply to the decisions of accounting officers.13 Senator John Sherman complained that Grant “regarded [the] heads of departments as mere subordinates” and lamented that “the limitation of the power of the President [over cabinet members] is one that an army officer, accustomed to give or receive orders, fi nds difficult to understand and observe when elected President.” Grant’s military style of delegation in all matters of governance was hailed by former general Rutherford B. Hayes, who noted Grant’s emphasis on officer accountability, saying, “Grant’s leadership and rule is beyond question.”14 Grant’s leadership style also led him to delegate authority over Reconstruction to his attorneys general and secretaries of war, who were a mixed bunch. Three of Grant’s attorneys general—Rockwood Hoar, Amos T. Akerman, and Alphonso Taft—were superb. Akerman was the best of them, and he undertook to protect the freedmen with gusto; as one historian put it, “No attorney general before or since ‘has been more vigorous in the prosecution of cases designed to protect the lives and rights of black Americans.’” Attorneys General George Williams, who left office in a scandal, and Edward Pierrepont, who refused to protect African Americans in the South, were much more problematic. Fortunately for Reconstruction, Grant took a special personal interest in the fate of freedmen, and he began his tenure by working “mightily to secure adoption of the Fifteenth Amendment,” which was proposed by Congress on February 27, 1869, and ratified on March 30, 1870.15 Unfortunately, the South responded to the Fifteenth Amendment with a wave of violence—directed by the Ku Klux Klan—targeted at freed slaves. Grant responded immediately, and in May 1870 Congress passed the fi rst of three Enforcement Acts to counter terrorist violence. In June 1870, Grant brought Akerman to Washington to fight the Klan, and Congress took the momentous step of establishing a Department of Justice on the same level as other cabinet departments.16 Previously, the attorney general had been a one-man operation and simply served as an adviser to the president. By creating a full-scale Justice Department with numerous lawyers and for the fi rst time a solicitor general—the famous Benjamin Bristow—the Grant administration greatly enhanced the president’s ability to take care that the laws be faithfully executed and to secure the unitary executive. As Representative Thomas Jenckes noted at the time, Congress created the Justice Department “for the purpose of having a unity of decision, a unity of jurisprudence . . . in the executive law of the United States,”17 although it would

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be some time before the department was able to consolidate its control over the enforcement of the federal law. Henceforth, Justice Department staff lawyers would be able to supervise “the work of the United States attorneys and federal marshals throughout the country.”18 The team of Akerman and Bristow quickly racked up an impressive record in battling the Ku Klux Klan, securing nearly one thousand indictments in the early 1870s, of which 55 percent ended in convictions. Congress passed a second Enforcement Act in 1871, and Grant fought vigorously to prevent the Klan from, in effect, reversing the decision at Appomattox. Grant suspended the writ of habeas corpus in nine lawless counties of South Carolina and sent military reinforcements to that state. Akerman “gave full credit to the president. No one, he told a friend, was ‘better’ or ‘stronger’ than Grant when it came to enforcing antiterrorist measures.” By the end of his administration, “Grant stood watch over the South almost alone. His cabinet was uninterested, [General in Chief William T.] Sherman was dubious, the Supreme Court had eviscerated the Fourteenth and Fifteenth Amendments, and the public was more interested in reconciliation than Reconstruction.” Grant said, in retrospect, that the South should have been kept under military rule longer.19 The problem was that “the best chance of forcing fundamental change on the South was in the immediate aftermath of the war. Johnson had wasted that opportunity and, as so often in politics, once the initial impetus has passed from an attempted reform, it is virtually impossible to regenerate it.”20 In the reelection campaign of 1872, “Grant’s treatment of the South became the central issue of the campaign,” and he was reelected with 56 percent of the popular vote. The high point of Grant’s presidency came in 1872, and as “happened with Franklin Roosevelt after his landslide win in 1936 and Ronald Reagan during his second term, hubris led to mistakes, and mistakes to poor administration, corruption, and scandal.”21 Geoffrey Perret ably summarizes Grant’s scandal problem when he reports that “few people ever thought [Grant] was personally on the take. On the contrary, Grant is often portrayed as a gullible, naive man far out of his depth, taken advantage of by people a lot smarter and greedier than he was.”22 The Credit Mobilier Affair, in which a number of members of Congress purchased fi nancial interests in the Union Pacific Railroad at a discount in return for support for additional funding, stained the government’s reputation, although all the scandalous transactions occurred before Grant became president. Congress meanwhile made a sordid effort to raise its pay retroactively, which hurt its standing with the public. Two second-term cabinet secretaries, William Richardson at Treasury and George Williams

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at Justice, resigned in scandal, and throughout it all “Grant’s loyalty to his appointees went beyond prudence.”23 By November 1874, the Democrats had recaptured the House of Representatives and gained ten seats in the Senate. Another highlight of Grant’s second term was the elevation of the exceptionally able reformer Benjamin Bristow as secretary of the treasury. Bristow, who was very ambitious and sought the presidency in 1876, used his office to bust up the Whiskey Ring—a corrupt conspiracy with tentacles reaching to Orville Babcock, one of Grant’s closest aides. Grant broke with Bristow and unwisely defended Babcock, who was ultimately proved guilty. The episode tarred Grant’s reputation as he left office. Several features of the Grant administration were a triumph for the unitary executive. In particular, the partial repeal of the Tenure of Office Act and the creation for the fi rst time in American history of a Department of Justice were big victories. Also, Grant’s vigor in taking care to enforce the civil rights laws in the South deserves note and differentiates him from Andrew Johnson, his disgraced predecessor. Finally, Grant’s supervision of policy in many fields, including foreign affairs, civil service reform, and Indian policy, bespeak a commitment to mastering the details of his presidential duties. In our judgment, Grant is a misunderstood president; though he made some significant mistakes, some of which led to scandals, Grant came out on the right side of the big questions of his day. His reputation has wrongly suffered because of the scandals that plagued the end of his administration as well as his failed efforts to make Reconstruction work one hundred years ahead of its time.

19

Rutherford B. Hayes

Rutherford B. Hayes became president in 1877, when the power of the Republican Party was at a low point. This ebbing of the tide of Republican power was reflected in the presidential election of 1876, in which Hayes decisively lost the popular vote contest to Democrat Samuel Tilden, but was awarded the presidency by a special Electoral Commission that concluded he had won in the Electoral College. After the Electoral Commission had awarded him the presidency, Hayes set about picking a cabinet and, astonishingly under the circumstances, resolved to do this completely independent of Congress. As Leonard White reports, “Powerful Senators had expected to be consulted. They were not.” White further notes, “The Senate oligarchy promptly accepted the challenge, declined to confirm as a matter of courtesy, and sent the nominations to committees, not even excepting their fellow Senator, John Sherman. A storm of public indignation swept across the country and shortly thereafter the Senate confi rmed all the nominations. ‘For the fi rst time since the Civil War,’ [historian Wilfred] Binkley wrote, ‘the Senate had been vanquished on a clear-cut issue between it and the President. The upper House had passed its zenith.’”1 Hayes thus came into office with a striking show of independence and pro-reform sentiment. He was off to a good start.

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Hayes’s practice as president was untrue to his Whig origins, as “he moved away from the Whig ideal of a weak president who would be subservient to Congress, deferential to his cabinet, and would allow virtual autonomy to heads of departments.” Historian Ari Hoogenboom writes, “Hayes identified with John Quincy Adams in his struggles with Congress, his patronage policies, and his desire to use national power to foster education. Hayes, however, was a much better politician than Adams. By working hard at being president and by fighting a number of battles with Congress, Hayes would reverse the ascendancy of Congress, the independence of cabinet members, and the decline of the presidency.” Although Hayes discussed everything—big and small—at his cabinet meetings, it was he who “made the decisions, and on occasion he imposed his will upon reluctant department heads, including Sherman, Evarts, and Schurz, who were the strongest cabinet members.”2 From the start of his administration, in March 1877, Hayes confronted the question of what to do about faithfully executing the laws in the South. He thought the federal troops who were then upholding Republican governments in South Carolina and Louisiana were counterproductive. The key decision was whether to leave the federal troops in place. Hayes’s hands in this regard were tied by the Democratic House of Representatives, which was refusing to appropriate money to keep the army in the South. Rather than fight with the House, as he successfully did on other occasions, Hayes capitulated. The Hayes administration also witnessed the enactment of the Posse Comitatus Act of 1878. 3 This law, which remains on the books to the present day, limits the use of federal troops for ordinary law enforcement. The act has been interpreted as forbidding “direct and active participation [of troops] in traditional civilian law enforcement, like making arrests or conducting searches.” More “passive assistance, like providing equipment, training and advice” is allowed.4 The Posse Comitatus Act reflected Democratic anger over the role federal troops played in the South during the disputed HayesTilden election, their guarding polling places, arresting members of the Ku Klux Klan, disrupting illegal whiskey production, and putting down labor unrest. One hundred and twenty years after enactment of the Posse Comitatus Act, the administration of President George W. Bush was to consider asking for modification of the act to facilitate the use of the military in antiterrorist law enforcement efforts. 5 Hayes’s failures with respect to enforcing civil rights in the South did not stop him from strongly defending and reasserting the president’s sole

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authority over the execution of the law. In fact, Hayes soon became embroiled in two landmark battles with Congress over the unitary executive. The fi rst of these was the extraordinary battle of wills between Hayes and the House of Representatives over federal election law that amounted to Hayes’s fi nest moment in the White House. Southerners in control of the House repeatedly tried to repeal Reconstruction-era legislation that authorized the president to use federal troops to protect the rights of black voters. The Democrats attempted to accomplish this objective by attaching riders to unrelated appropriations bills. Hayes anticipated the attack, and was fully set and determined to preserve both the civil rights laws and presidential prerogatives. Hayes wrote in his diary on March 18, 1879, “An important struggle then begins. The Democrats will attempt coercion of the President to secure a repeal of legislation which I deem wise and important. This is to place the Executive ‘under the coercive dictation’ of a bare majority of the two Houses of Congress. . . . It is a ‘measure of coercion,’ a revolutionary measure. . . . No precedent shall be established with my consent to a measure which is tantamount to coercion of the Executive.” If riders repealing the test oath and prohibiting the use of federal troops at elections were attached, wrote Hayes, “he would not even consider the merits of the bills so presented.”6 James Rawley describes what followed: “On April 29, 1879, an outraged Hayes vetoed an army appropriations measure carrying such a rider. A month later, the Democrats passed a bill prohibiting federal troops from serving as peacekeepers at polls unless requested to do so by a state. Hayes hurled back another successful veto. In all, Congress passed seven such bills, five saddled with riders repealing the elections laws and two designed to circumvent them. With his seven vetoes, Hayes fulfilled his oath to enforce the nation’s laws and moreover increased unity within the Republican party as members rallied to his support.”7 Hayes objected to the use of the riders as an unconstitutional attempt to force his hand on repeal of the so-called Force or Enforcement Acts. In one veto message Hayes wrote, “The new doctrine, if maintained, will result in a consolidation of unchecked and despotic power in the House of Representatives. A bare majority of the House will become the government. The Executive will no longer be what the framers of the Constitution intended—an equal and independent branch of the Government.”8 The Democrats were in a quandary as it gradually became clear that “Hayes’s vetoes were strengthening him and his party . . . and had helped [the Republicans] prepare for the 1880 presidential campaign.” Hayes was able to savor a victory over Congress, but “he knew that his southern policy had failed.”9 White concludes that the battle over the riders “was a clean-cut

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victory for the President and a powerful precedent against congressional encroachment on the executive power by means of appropriations riders. The action was defensive and protective, but it was important. Congress was forced to enact the long-delayed appropriations acts without imposing its will on the President; the integrity of the veto power was sustained; and the popularity of an unpopular president was repaired.” White observes that only “the courage and stubbornness of Hayes halted this House aggression on executive power,” and he concludes that “the House lost prestige in the battle of the riders.”10 Hayes’s clash with the House of Representatives over the appropriations riders was matched by a scuffle with the Democratically controlled Senate over the presidential prerogatives of removal, nomination, and appointment. Hayes came into office with civil service reform and the ending of the spoils system as primary objectives. In addition to wanting to end the congressional practice of dictating nominations to the executive, Hayes wanted to end the practice of “assessments,” in which federal workers were asked to contribute 2 to 7 percent of their annual salary for campaign funds. As a member of Congress, Hayes had supported legislation that would have required that those who performed best on an open competitive examination be appointed to the civil service. Now that as president he supervised a bureaucracy of a hundred thousand employees, Hayes was no less eager to make civil service reform a reality. In April 1877, shortly after taking office, Hayes had Treasury Secretary John Sherman appoint a special commission to investigate the corrupt New York customhouse, and commissions were also appointed to investigate corruption at the Philadelphia, New Orleans, and San Francisco customhouses. The New York commission was headed up by John Jay, grandson of the fi rst chief justice. Jay recommended sweeping changes, and Hayes ordered the reluctant Sherman to implement Jay’s recommendations. In June 1877, Hayes issued an order prohibiting federal employees from engaging in any political activity aside from voting and public speaking.11 This sweeping presidential order exacerbated the growing factionalism of the Republican Party by irritating the so-called Stalwart wing of the party, led by the powerful New York senator Roscoe Conkling, a close ally of former president Grant. Matters came to a head when Hayes sought to replace Chester A. Arthur, future president and collector of the New York customhouse, and Alonzo Cornell, the naval officer of the New York customhouse, both key Conkling allies. When Arthur and Cornell refused to resign, Hayes “sent the names of their successors to the Senate for confi rmation, nominations which were greeted with derisive laughter and referred to the Committee on Commerce,

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of which Senator Conkling was chairman. The committee reported adversely, and the nominations were rejected.”12 The Senate was fortified in taking these actions by the amended Tenure of Office Act, which of course was still in place. Hayes wrote in his diary, “I am now in a contest on the question of the right of Senators to control nominations. . . . But I am right, and will not give up the contest.”13 In the summer of 1878, “Hayes summarily dismissed Arthur and Cornell, made recess appointments, and in December again sent in his nominations for these vacant posts. Conkling held up action for two months, but fi nally defeated himself by his unrestrained attacks on the President. The Senate voted to confi rm on February 3, 1879.”14 Hayes had won as big a victory over the Senate on presidential prerogatives of nomination and appointment as he was to win over the House on appropriations riders. The key to Hayes’s victory over Conkling was his refusal to back down on the removal of Arthur and Cornell from their posts at the New York customhouse. Hayes resolved that, no matter what the Senate’s action concerning his nominees, “in no event will the old incumbents be allowed to return to their former places, if I have power to prevent it, and as to that I am not in doubt.”15 Thus armed with the removal power, Hayes reclaimed presidential control over the prerogatives of nomination and appointment. At the end of his term, Hayes described his victory in his diary as follows: The end I have chiefly aimed at has been to break down congressional patronage, and especially Senatorial patronage. The contest has been a bitter one. It has exposed me to attack, opposition, misconstruction, and the actual hatred of powerful men. But I have had great success. No member of either house now attempts even to dictate appointments. My sole right to make appointments is tacitly conceded. It has seemed to me that as Executive I could advance the reform of the civil service in no way so effectively as by rescuing the power of appointing to office from the congressional leaders. I began with selecting a Cabinet in opposition to their wishes, and I have gone on in that path steadily until now I am fi lling the important places of collector of the port and postmaster at Philadelphia almost without a suggestion even from Senators or Representatives!16

Hayes’s removals of Arthur and Cornell would prove the exception and not the rule. Although Hayes employed his removal power to ensure that certain key positions were occupied by officials loyal to him, as a longtime supporter of civil service reform he was committed to using the removal power more sparingly than had his immediate predecessors, observing in his fi rst annual message that he had “endeavored to reduce the number of changes in subordinate places usually made upon the change of the general

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administration.”17 Hayes regarded “congressional demands for patronage [as] not only a great evil, but also a usurpation of executive prerogatives.”18 In general, Hayes’s “reluctance to fi re able civil servants” to promote political friends “marks him as the least partisan president between John Quincy Adams and Theodore Roosevelt.”19 The opinions of his attorneys general, reaffi rming that the president’s constitutional power to remove had been long established by the Decision of 1789 and subsequent opinions of the attorneys general, underscored that his reticence to remove was based on matters of policy and did not mark a deviation from the position asserted by previous presidents regarding the removal power’s constitutional basis. 20 In other areas of domestic policy, Hayes undertook several notable actions to take care that the laws be faithfully executed. In the summer of 1877, when there was great labor unrest following a railroad workers’ strike, Hayes ordered federal troops to restore order in West Virginia and in Pittsburgh, “where local militiamen had sided with the strikers. Although Hayes pursued these deployments cautiously, they nevertheless made him the fi rst president since Andrew Jackson to use troops in a labor dispute. The mere presence of the troops quelled the violence.”21 Hayes asserted the president’s power to control the executive branch even more directly in his third annual message, in which he strongly attacked the notion that inferior federal officials had any executive authority separate from that of the president. In Hayes’s opinion, the sole responsibility of subordinate officers was to “their superior in official position.” Hayes elaborated, “It is their duty to obey the legal instructions of those upon whom that authority is devolved, and their best public service consists in the discharge of their functions irrespective of partisan politics. Their duties are the same whatever party is in power and whatever policy prevails.”22 In order to depoliticize the process, Hayes recommended that Congress develop clear qualifications to govern the appointment and removal of lower executive officials. But the earlier portions of Hayes’s address, quoted above, made it clear that under any such proposal, failure to follow the directions of higher-ranking executive officials must necessarily constitute proper grounds for removal. Any doubts in this regard were eliminated the following year in Hayes’s fourth annual message, in which he explicitly called for the outright repeal of the nefarious Tenure of Office Act. 23 Hayes considered the president the sole judge of who should continue to serve in the executive branch, without any interference from the Senate. The great disaster of Hayes’s presidency was, of course, his withdrawal of federal troops from the South and the ending of Reconstruction. But in terms of restoring the power and prestige of the presidency, Hayes deserves

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praise. He beat the House on appropriations riders and the Senate on appointments and removals. The price of restoring some presidential power that had been lost by previous administrations, however, was high. The removal of Arthur and Cornell had monopolized the attention of the administration for nearly eighteen months. It became clear that the Senate’s continued involvement in executive removals through the amended Tenure of Office Act would remain a significant obstacle to the president’s control over the execution of the laws until it was repealed.

20

James A. Garfield

James A. Garfield was elected to the House of Representatives in 1862, where he served as a Radical Republican member until his election to the presidency. While in the House, Garfield exhibited an unsurprising pro-Congress bias. He favored a proposal to give department heads seats in Congress in order to rein in the executive branch. And in 1869, when Grant pushed a bill that would have repealed the Tenure of Office Act through the House of Representatives, Garfield opposed it: “Never by my vote shall Congress give up the constitutional principle and allow to any one man, be he an angel from Heaven, the absolute and sole control of appointments to and removals from office in this country.”1 At the start of the Hayes administration, the ever-fickle Garfield changed his mind about the Tenure of Office Act. Writing in 1877, Garfield said: “During the last twenty-five years, it has been understood, by the Congress and the people, that offices are to be obtained by the aid of senators and representatives, who thus become the dispensers, sometimes the brokers of patronage. . . . [The Tenure of Office Act] has virtually resulted in the usurpation, by the senate, of a large share of the appointing power . . . has resulted in seriously crippling the just powers of the executive, and has placed in the hands of senators and representatives a power most corrupt and dangerous.”2 Thus, by 1877 Garfield was publicly on record as opposing the Tenure of Office Act.

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As president, the malleable Garfield was besieged by office seekers. He wrote in his journal, “My day is frittered away by the personal seeking of people, when it ought to be given to the great problems which concern the whole country. Four years of this kind of intellectual dissipation may cripple me for the remainder of my life.” On June 6, 1881, Garfield wrote in his diary that after an absence of three days, “the stream of callers which was damned up by my absence became a torrent and swept away my day.” Two days later he noted, “My day in the office was very like its predecessors. Once or twice I felt like crying out in the agony of my soul against the greed for office and its consumption of my time.”3 While in office, Garfield sent somewhat confl icting signals about the president’s power to control the executive branch. As we noted earlier, Garfield had condemned the Tenure of Office Act during Hayes’s battle with the Senate in 1877. In his inaugural address, however, the ever-changing Garfield announced his intention to ask Congress to place substantive limits on the removal power by “prescrib[ing] the grounds upon which removals shall be made” in order to “protect[ ] . . . incumbents against intrigue and wrong.” The import of this proposal was mitigated by the fact that Garfield specifically limited his proposed civil service tenure to “minor offices of the Executive Departments.”4 The fact that policymaking offices were not covered by Garfield’s proposal makes it consistent with the theory of the unitary executive, which calls for unlimited presidential removal power only over policymaking officials. It also renders Garfield’s inaugural address consistent with his 1877 criticisms of the Tenure of Office Act. Because his administration was tragically cut short when he was assassinated by a frustrated office seeker, Garfield never had the chance to expound further on his views of the president’s power to control the executive branch. The one major contribution of his all too brief administration suggests that Garfield would have ardently defended the president’s authority over the executive branch and the unitary executive. After his inauguration, the Stalwart faction in Congress, led by the ubiquitous Senator Conkling, attempted to dictate Garfield’s nominations to many minor but important executive branch offices. Garfield refused and openly defied the Stalwarts by nominating William H. Robertson, a not-so-able ally of Conkling’s chief rival, as collector of the port of New York. To Garfield, the issue was simple: “Shall the principal port of entry in which more than 90% of all our customs duties are collected be under the control of the administration or under the local control of a factional senator?”5 Garfield wrote that the Robertson nomination “brings on the contest at once and will settle the question whether the President is the registering clerk of the Senate or the Executive of the Nation. It

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is probable that the contest will be sharp and bitter but I prefer to have the fight ended now.”6 Conkling threw the entire weight of his political machine against Garfield, but the public sided with the president. On May 5, Garfield strengthened his hand by withdrawing all nominations but Robertson’s, indicating that he “considered the power and prestige of the presidency to be at stake.”7 Thus compromised, Conkling and his fellow New York senator Thomas C. Platt resigned their seats in the U.S. Senate in the hopes that the New York legislature would restore their reputations by reelecting them. Conkling’s gambit backfi red when the legislature declined to reelect either of them. Garfield’s actions were hailed as a milestone in the revival of the power and prestige of the presidency, and Conkling never held public office again. Garfield’s assassination on July 2, 1881, turned the feckless politician into a martyr for the cause of civil service reform, a cause he had supported tepidly at best while still alive. The general reaction of the public was universal indignation over the spoils system. Garfield’s presidency of six months was too brief to permit many conclusions to be drawn about it, but it is noteworthy that Garfield arrived in office as a stated opponent of the Tenure of Office Act. The one great struggle of his six months in office was with Roscoe Conkling, and it showed that Garfield was determined to wrest back presidential control over the appointment power from the barons of the Senate. Garfield, like Hayes, Grant, and Johnson before him, is thus justifiably regarded as a defender of the unitary executive.

21

Chester A. Arthur

Vice President Chester A. Arthur had been placed on the Republican ticket in 1880 to create sectional and ideological balance. There was little in Arthur’s “background to prepare him for executive leadership.”1 As we noted in chapter 19, from 1871 until his dismissal in 1878, Arthur had been the spoilsman collector of the port of New York, a post in which he had been found by the Jay Commission to be notoriously corrupt. Worst of all, his administration was hamstrung by the fact that he assumed the presidency without having been elected to it. The beginning of Arthur’s administration showed great promise. Arthur at first appeared to be a good administrator, and “his conduct during the assassination crisis . . . won him public sympathy.”2 He held sumptuous feasts for his political ally Conkling but did not let him gain control over his administration. Thus, although thousands of patronage jobs were available in the Treasury Department alone, “by the summer of 1882, only sixteen removals had been made.” Most dramatically, Arthur resisted appeals to fi re Robertson from his post as collector of the port of New York. Reacting swiftly to the Star Route scandal, in which postal officials accepted bribes in return for awarding delivery contracts, Arthur ordered a series of removals, and in his fi rst annual message he pledged to prosecute offenders “with the utmost vigor of the law.”3 Arthur’s biographer Justus Doenecke notes,

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“As a man Arthur may have been saddened to see his cronies indicted, but as president he wholeheartedly supported the prosecuting attorneys.”4 The Pendleton Act to reform the civil service, which was fi nally adopted during Arthur’s administration, established a bipartisan Civil Service Commission of three members appointed by the president with senatorial consent but critically subject to removal by the president. It required that open, competitive examinations be held, with appointments going to those who earned the highest grades. It apportioned the civil service among the states equitably. It also provided for protection of the so-called classified service (that is, positions covered by civil service protections) against political assessments by explicitly providing that public servants could not be forced to contribute to political funds or be removed for failure to contribute to do so. The act also prohibited federal officials from soliciting political contributions from employees and barred anyone from soliciting or receiving such contributions in any public building. The president was given the power to extend the classified service to more employees by executive order. 5 The end product was a model law that ended the spoils system and revolutionized the American civil service. Soon after its enactment, commentators noted a great reduction in the level of incompetence in the civil service, and the proceeds from assessments dropped by as much as half. During the debates on civil service reform, Arthur never clearly stated his position on the removal power. It is important to note, however, that a close reading of his comments regarding an early version of the Pendleton Act suggests that Arthur would have opposed any congressionally imposed limits on the removal power. The bill, as reported by the Senate, was modeled on the British civil service system, providing for competitive examinations for entrance into the public service, security of tenure for most civil officers, and the political neutrality of the civil service.6 Arthur supported the bill in principle but complained that “there are certain features of the English system which have not generally been received with favor in this country”; these included limiting entry into the civil service to people no older than twenty-five and granting federal employees “a tenure of office which is substantially a life tenure.”7 The fi nal version of the act incorporated several key changes to the initial legislation to address some of these concerns, making the examinations more practical in character and deleting the provision permitting entrance into the civil service only at the lowest grade. In addition, the bill left to the president the determination of which, if any, officers would be covered by the act. The result, Arthur noted, was to limit the scope of the bill to “subordinates whose duties are purely administrative and have no legitimate connection with any political principles.”8

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And most important, for the purposes of this book, the revised act deleted all restrictions on the president’s power to remove, preserving, as Arthur indicated, a power essential for ensuring presidential control of all officials in policymaking and political positions. The bill thus cured, Arthur signed it without reservation, although he would subsequently fi le a limited objection to its appointment provisions.9 His subsequent approval of the legislation is thus fully consistent with the view that Arthur did not acquiesce in any congressionally imposed limitations on the president’s power to control the executive branch. Arthur never specifically commented on the Tenure of Office Act during his presidency, but he preserved presidential removal power through the civil service reform battles of the early 1880s. This was no mean feat. It was not until the Lloyd–La Follette Act of 1912 that removal “was required to be made only to promote the efficiency of the [civil] service.”10 Once appointments had to be awarded to the winner of competitive exams, there was no longer incentive to make partisan removals. Removals therefore decreased substantially of their own accord in the classified civil service. The unitary executive was thus alive and well when Jacksonian Democrat Grover Cleveland became the fi rst Democrat to be elected president since James Buchanan in 1856.

22

Grover Cleveland’s First Term

As president, Grover Cleveland pledged public allegiance to “a Whiggish version of the presidency—the chief executive restricted to administrative duties and abjuring a role in the legislative process”—but in his heart he was “nostalgic for the Jacksonian past,” as Cleveland biographer Richard E. Welch Jr. puts it. Cleveland’s “political heroes” were Jefferson and Jackson, and like Jackson, he believed the president, with his unique national constituency, was “the people’s tribune.” He particularly admired Jackson’s “presidential independence and the authority of the righteous executive in contest with mischievous senators.” Cleveland’s Jacksonian pedigree suggests his belief in the untrammeled importance of the presidential removal power. His “aggressive insistence on presidential independence led him to exercise increasing control of the executive branch and then to seek influence over Congress and national legislation.” In the end, Cleveland was to live up to his idol in protecting the presidential removal power from attempted congressional incursions. He was thus accused by his critics of “monarchical arrogance,” a charge often leveled at strong and effective presidents.1 Cleveland was “fascinated by detail,” and he rapidly buried himself in his work. He made it “understood that [his cabinet members] were his loyal lieutenants and were to avoid intramural quarrels or dissent. Cabinet officers were expected to observe the policies established by Cleveland for each

209

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The Gilded Age, 1869–1889

executive department.” Importantly, “in cabinet meetings everyone was encouraged to speak, but no votes were taken. Cleveland would listen carefully to the opinion of each cabinet officer in turn, but he alone would make the fi nal decision on administration policy.”2 Another Cleveland biographer asserts that in Cleveland’s cabinet meetings “there were no set speeches, and no votes were taken, the President’s theory being that in a cabinet there are many voices, but one vote. Each member was free to express his views; but when the illumination of frank comment and informal discussion was over, it was the president who must make the decision.”3 The confl ict between the president and Congress over control of the executive branch and the Tenure of Office Act had been brewing since the Grant administration, and it reached its climax during Cleveland’s fi rst term. In his fi rst annual message, Cleveland laid out a formalist vision of the separation of powers: “Contemplation of the grave and responsible functions assigned to the respective branches of the Government under the Constitution will disclose the partitions of power between our respective departments and their necessary independence, and also the need for the exercise of all the power intrusted [sic] to each in that spirit of comity and cooperation which is essential to the proper fulfillment of the patriotic obligations which rest upon us as faithful servants of the people.”4 Consistent with this vision, Cleveland quickly asserted the authority to direct all executive officials, in one instance overruling a decision of the secretary of the interior. 5 The fi rst Democrat elected to the White House in a quarter century, Cleveland also suspended 643 officials during his fi rst ten months in office. The Republican-controlled Senate attempted to force the new administration into admitting that it had made these removals for partisan purposes by refusing to confi rm the new appointees until Cleveland had informed it of the reasons for the removals. After three months, only fi fteen of the 643 nominations had been approved. As Welch notes, “Senate Republicans were in a contentious mood and were determined to demonstrate the hypocrisy of Cleveland’s stance as a civil service reformer. They would force him to admit that partisan animus alone dictated his appointments policy, and in the revised Tenure of Office Act they believed they had the necessary tool.”6 Under the Tenure of Office Act as revised in 1869, “no longer did a president have to charge officeholders with criminal misconduct before he could suspend them, and no longer would a president have to provide the Senate with ‘the evidence and reasons’ for his action.” The president could suspend office holders and appoint temporary replacements, but he would have to submit “the names of all replacements within thirty days after the Senate

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had reconvened.” The revised act lessened the obstructionist authority of the Senate, “but presidential control over the dismissal of civil officers in the executive branch was still restricted. It was the intention of the Republican senators to expand that restriction.”7 Senate Republicans “caucused and decided to refuse to confi rm Cleveland’s appointments unless he produced all documents bearing on the suspension of the former officeholder, as well as the nomination of his successor.” Cleveland saw this as an invasion of presidential prerogatives, and he instructed his subordinates “not to submit any papers concerning suspensions but to continue to provide ‘official papers’ in support of nominations submitted for senatorial confi rmation.” Cleveland was determined to prevent the Senate from engaging in a fishing expedition “to publicize confidential or irrelevant communications.”8 The dispute between Cleveland and the Republican-controlled Senate came to a head over the case of Republican George M. Duskin, whom Cleveland had suspended as U.S. attorney for the Southern District of Alabama.9 Cleveland nominated Democrat John D. Burnett to replace Duskin. George F. Edmunds, the crusty chairman of the Senate Judiciary Committee, believed Duskin’s suspension was the ideal test case. On January 25, 1886, the Senate passed a resolution directing the attorney general to submit all documents relating to this suspension. “The battle was joined, and it was understood by both sides that it was a battle over more than the installation of Duskin’s successor. At stake was the President’s ability to assure the cooperation of officials who would have responsibility for executing administration policy, the proper breadth of the investigatory powers of the Senate, and the issue of presidential control over papers deposited in executive departments.”10 The attorney general refused the Senate’s demand for all documents relating to the Duskin suspension, stating that the president had directed him not to comply with the resolution. When the Senate persisted with its call for the information, Cleveland responded on March 1, 1886, with a scathing message challenging the constitutionality of both the original and the revised versions of the Tenure of Office Act and denying the Senate’s right to request such information. This message was targeted to the American public as well as the Republican Senate and placed its primary reliance on the text of the Constitution, declaring that “the power to remove or suspend such officials is vested in the president alone by the Constitution, which in express terms provides that ‘the executive power shall be vested in a President of the United States of America,’ and that ‘he shall take care that the laws be faithfully executed.’” The Senate, in contrast, “belongs to the

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legislative branch of the Government.” Although Cleveland conceded that “the Constitution by express provision [had] superadded to its legislative duties the right to advise and consent to appointments to office and to sit as a court of impeachment,” these provisions represented an “express and special grant of such extraordinary powers” and were “a departure from the general plan of our Government, [and thus] should be held, under a familiar maxim of construction, to exclude every other right of interference with Executive functions.” Any doubts as to the propriety of this view, Cleveland submitted, had been resolved by “the fi rst Congress which assembled after the adoption of the Constitution,” which had similarly sustained “the independence of the Executive in the matter of removals from office.”11 The Senate retaliated by considering a series of four resolutions condemning the actions of the attorney general and declaring that it would refuse to act on any of Cleveland’s nominations until the requested information was provided. After a prolonged debate, the Senate proceeded to pass all four of the resolutions, although the key resolution refusing to consider any further nominations until the requested information was provided passed by only a single vote.12 However, after this vote was taken, it was discovered that the entire debate concerning Duskin’s suspension was for naught, as his appointment had already expired according to its own terms. Cleveland’s message of March 1 had generated support from the public and the press, even though a few Mugwumps like Carl Schurz sided with the Republican Senate. Having exhausted their political resources and facing a wave of adverse public opinion, Senate Republicans finally conceded defeat and promptly confi rmed Cleveland’s nominee to succeed Duskin. Shortly thereafter, an exhausted Congress fi nally repealed the Tenure of Office Act in its entirety,13 after Senator George Frisbie Hoar, “a devout Republican whose allegiance to the Constitution exceeded his love for the Grand Old Party, proposed repeal. Cleveland had the pleasure of signing the repeal bill on March 3, 1887. With its passage, Congress formally abrogated its claim ‘to control presidential discretion in suspending or removing officials in the executive branch.’”14 Years later, Cleveland wrote: “Thus was an unpleasant controversy happily followed by an expurgation of the last pretense of statutory sanction to an encroachment upon constitutional Executive prerogatives, and thus was a time-honored interpretation of the Constitution restored to us.”15 Cleveland eventually settled into a general policy of immediately replacing “corrupt and inefficient spoilsmen” but allowing current Republican office holders “who had not made themselves obnoxious” to fi nish their four-year terms. Cleveland wanted to improve the efficiency of the civil service and

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right the partisan imbalance in the service after twenty-four years of unbroken Republican rule. By the spring of 1886, Cleveland had become worried about Democratic criticism, and he accelerated the removal of Republicans. By the end of his fi rst term in March 1889, “some 75 percent of the one hundred thousand nonclassified workers had been replaced, with fourth-class postmasters furnishing a large share of the total.”16 Although Cleveland was not afraid to clean house with respect to partisan jobs through vigorous exercise of his removal power, he did make major efforts to extend the merit system of classified appointees created by the Pendleton Act. When it was enacted under President Arthur, the act initially protected 11 percent of the government’s 131,000 employees, but it allowed the president to extend the merit system to additional employees by adding them to the classified civil service. After Cleveland had been defeated for reelection in 1888, he extended the merit system significantly in order to limit the patronage authority of his Republican successor and to protect Democratic office holders. “When Cleveland left the White House in March 1889, the classified list had expanded from sixteen thousand to twentyseven thousand officeholders. . . . The extension of the merit system had a slow but incremental effect in making the federal civil service less political and more professional.”17 It would be a mistake to conclude that in supporting the expansion of civil service protections Cleveland sanctioned any interference with the president’s power to execute the law. As president, he opposed the creation of a Civil Service Commission rule that required “a statement of cause of removal to be fi led,” and he never supported a requirement that removals of classified officials be made only with just cause.18 Such a requirement would not appear until the McKinley administration added such a rule in 1897 and the Lloyd–La Follette Act wrote these and other requirements into the federal statute books in 1912. The Cleveland administration also bore witness without comment to a development often mistakenly regarded as establishing presidential acquiescence to a nonunitary executive: the birth of the so-called independent regulatory commissions. It is indisputable that under the Interstate Commerce Act of 1887 members of the Interstate Commerce Commission (ICC) were removable by the president for inefficiency, neglect of duty, or malfeasance. However, a close historical analysis indicates that Congress did not intend this clause to represent a departure from the unitariness of the executive branch. It is far from clear that these removal provisions in any way precluded the president from removing a member of the ICC simply for disagreements over policy.19 Indeed, the Supreme Court was to hold in

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The Gilded Age, 1869–1889

the Shurtleff case discussed in chapter 25 that language like that in the ICC statute did not impair the president’s general power to remove at will, 20 and it was not until Humphrey’s Executor in 1935 that this conclusion came to be questioned. 21 In fact, independence from the president was never discussed during the debates leading up to the enactment of the ICC, and the discussions that did take place suggest that Congress was primarily concerned with bipartisanship, not independence from executive control. As an early scholar of the independent regulatory commissions has noted, Congress viewed the removal provisions “more as a protection to the public by providing a way to get rid of objectionable commissioners than as a limitation on Presidential authority.”22 The legislative history supports the same conclusion. The early committee reports proposing the establishment of the ICC recommended that it be set up within the executive department. 23 Individual legislators endorsed the same position. 24 If anything, the Senate appeared to go out of its way to avoid taking a position on the proper characterization of the ICC. When Senator John Morgan proposed an amendment providing that “the commissioners appointed under this act shall be considered and regarded as being executive officers, and shall not exercise either legislative or judicial powers,” Senator Samuel Maxey responded by stating, “It is not a matter of the slightest consequence to me whether the powers are called executive, judicial, legislative, or ministerial. We have defi ned on the face of the bill the powers which are to be exercised by the commissioners, and if those powers are not constitutional, that fact ought to be pointed out. Therefore I see no necessity whatever for the amendment proposed by the Senator from Alabama.”25 Consistent with this view, the ICC was initially placed within the Department of the Interior and thus was not independent at all.26 It was not until 1889 that the ICC was removed from the Department of the Interior, 27 and even that shift was made for purely practical reasons. 28 When one fully appreciates that Congress never indicated an intent for the ICC to be a structural innovation to limit presidential control over the execution of the laws, it becomes less surprising that its creation failed to evoke a presidential response. 29 One fi nal development of note occurred during Cleveland’s fi rst term: the U.S. Supreme Court’s decision in United States v. Perkins. Perkins was a case involving a naval cadet engineer who had been discharged from his position by the secretary of the navy even though he appeared to be entitled by statute to the job. The issue was whether when Congress by law vests the appointment of inferior officers in the heads of departments, it may limit

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and restrict the power of removal of those heads of departments as it deems best for the public interest. It is of critical importance that in Perkins it was the secretary of the navy and not the president who was trying to exercise the removal power. After noting that the case did not involve a presidential removal of a Senate-confi rmed principal officer, the Court said: “We have no doubt that when Congress, by law, vests the appointment of inferior officers in the heads of Departments it may limit and restrict the power of removal as it deems best for the public interest.”30 This conclusion makes eminent good sense as applied to the removal power of heads of departments. Because the secretary of the navy is a creature of statute to begin with, and because he gets his authority to appoint inferior officers from Congress, it makes sense that Congress could restrict the secretary of the navy’s statutory removal power. Importantly, the Perkins case did not involve an effort by the president to remove such an inferior officer or to delegate his executive power of removal to the secretary of the navy. The Perkins Court thus elided that far more interesting and provocative question in a cursory three-page opinion that was largely devoid of analysis. Moreover, even if Perkins were read as limiting the president’s power to remove at will inferior officers appointed by heads of departments, nothing in Perkins precludes principal officers from supervising and directing all exercises of executive power by inferior officers. Failure to follow such supervision or direction would, in our judgment, constitute “just cause” grounds for removal. From the perspective of the unitary executive, Cleveland’s record is an unequivocal triumph. Welch sums up his achievements as follows: “The presidency was reestablished as a branch of the government coordinate in authority with the Congress, and this was in large part attributable to the labors and personality of Grover Cleveland. The administrative reforms that he encouraged in the various departments, his extensive use of the veto power, his fight for executive independence during his battle with the Senate over the Tenure of Office Act . . . gave the executive branch a vigor and a morale that it had not known for twenty years.”31 The end of the fi rst Cleveland term thus marked the close of a century of presidential administration in which the president remained fi rmly in control of the executive branch of the government. Presidents throughout the period 1837 to 1889 persisted in opposing almost all congressional attempts to infringe upon their sole power to execute the laws. With the exception of one loose statement by John Tyler that was never acted upon and a few wartime laws limiting the removal power

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The Gilded Age, 1869–1889

that President Lincoln did not have the political capital and energy to block, every president during this fifty-two-year period forcefully defended the unitary executive. Admittedly, Presidents Grant and Cleveland failed to enter their objections when Congress enacted statutes that could be read as limiting the president’s power of removal. In Grant’s case a statute passed limiting his ability to remove minor nonpolicymaking postal officials, and in Cleveland’s case the Interstate Commerce Commission was created, although it did not truly become independent until Shurtleff was discarded by Humphrey’s Executor. However, in light of Grant’s vigorous opposition to the Tenure of Office Act and Cleveland’s resolute defense of his removal of U.S. Attorney Duskin, it is difficult to construe these limited departures from the presidents’ uniform espousal of the unitariness of the executive branch as sufficient to constitute acquiescence for the purposes of coordinate construction. On the contrary, by the end of the century, the presidency had managed to reclaim most of the prestige and authority lost during Andrew Johnson’s administration. Throughout this period, presidential opposition to invasions of the unitariness of the executive branch was so consistent and sustained that, in the words of one foreign observer studying the subject, “by the combined action of the three branches of government the principle of superior control became fi rmly rooted in the second half of the nineteenth century.”32 Leonard White similarly notes, “The executive power was the constitutional possession of the President, and it carried with it the practical authority to see that the laws were enforced. The President, in short, was the constitutional head of the administrative system.”33

PA RT

VI

The Unitary Executive During the Rise of the Administrative State, 1889–1945

We now examine the presidencies during the third half-century of our constitutional history, beginning with Benjamin Harrison and ending with Franklin Delano Roosevelt. In the process, we offer an extended analysis of FDR’s failed attempt in 1937 and 1938 to implement the Brownlow Committee’s proposal to reorganize the executive branch, an event that is typically acknowledged as the next key battle between the president and Congress over control of the execution of the law after the fight over the Tenure of Office Act.1 In many ways, this period represents the crux of the debate over whether our history under the Constitution has given rise to an established practice vitiating the unitary executive. It is during this period that two institutions generally assumed to be inconsistent with the unitary executive—independent agencies and civil service protections for federal employees—became more widespread. This period also bore witness to the appointment of special prosecutors on three occasions, as well as the rapid growth of the federal bureaucracy spurred by the New Deal. Many constitutional theorists, led by Bruce Ackerman, regard these changes to be so sweeping as to constitute a “constitutional moment” that implicitly ratified major changes in the allocation of power within the federal government. 2 Other commentators, such as Stephen Skowronek, 3 argue that the civil administration, the army,

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The Administrative State, 1889–1945

and the regulatory mechanisms changed fundamentally during this period. We disagree that there was a change that diminished the president’s power of control over the executive branch. We believe presidents throughout this period insisted on the unitariness of the executive branch and on sole presidential authority to control the execution of the law. There was no acquiescence by the presidents of this period in any congressional attempt to create a headless fourth branch of the government. The period between 1889 and 1945 also bore witness to a shift in the balance of power between Congress and the president. As of 1889, Congress still dominated the presidency, as it had since the Civil War. The administrations of Theodore Roosevelt, Woodrow Wilson, and Franklin Roosevelt caused the presidency to reemerge from the shadow of congressional dominance. Moreover, external forces began to transform the relationship between Congress and the president. Domestically, the rise of big corporations sparked, for the fi rst time, calls for broad federal regulation. America’s emergence as an international power also strengthened the case for stronger centralized control. As America became more imperial, its presidents took on an imperial persona as well. The presidency expanded to fi ll new roles and, in the process, continued to defend its power to control the execution of the laws.

23

Benjamin Harrison

When in 1889 Benjamin Harrison became the fi rst and only grandson of a president to be elected to the presidency, many Americans were uncertain how much to expect from him. He had been selected by the Electoral College after losing the popular vote to Grover Cleveland. Moreover, Harrison had had only a short career in national politics before assuming the presidency. Any doubts about Harrison’s willingness to take responsibility for executing the law would prove short lived. As his biographers Homer Socolofsky and Allan Spetter report, “Benjamin Harrison lacked experience as an administrator and had had only six years in Washington as a United States senator by the time he became president. Thus, political observers concluded that he would defer on many issues to members of his cabinet who had been long in the public eye. Halfway through his presidency the skepticism about Harrison’s ability to lead his own administration had changed. By then it was recognized that he was absolutely the head in his administration. Harrison was sure of his position. While he did not interfere in the departmental work of members of his cabinet, neither would he permit any encroachment on his overall presidential power.”1 Thus, Harrison took charge of his administration and directed the actions of his subordinates. He recognized that as president he possessed the

219

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The Administrative State, 1889–1945

executive power, and accordingly he told his subordinates what to do. Socolofsky and Spetter comment that “Harrison would be sensitive about his executive and administrative authority as president and would not tolerate challenges to his power.”2 Harrison offered the most defi nitive statement of his attitude regarding the president’s sole authority to execute the law in his memoirs published after he left office. He specifically noted that the president “is responsible for all executive action.” Although “routine matters proceed without the knowledge or interference of the President . . . if any matter of major importance arises the Secretary presents it for the consideration and advice of the President.” The chief executive may make some effort to accommodate the views of one of his cabinet members, but “when the President has views that he feels he cannot yield, those views must prevail, for the responsibility is his, both in a Constitutional and popular sense.” Allowing cabinet members to exercise authority inconsistent with the views of the president “would be a farming-out of his Constitutional powers” to “eight Presidents” that would be inconsistent with the framers’ rejection of an executive council in favor of an executive branch headed by a single figure. 3 Harrison vigorously exercised his appointment power as a way of supervising the executive branch. He “ignored the bosses,” against whom he waged a continuing battle “over the spoils of victory—patronage.” He personally oversaw many civil service matters in a somewhat impractical attempt to keep personal control over appointments, and appointed a young Theodore Roosevelt to the Civil Service Commission. He changed almost 75 percent of the postal officers and 27 percent of the postmasters, numbers comparable to those of his predecessor, Cleveland.4 It is a common misconception that the Civil Service Act of 1883 placed substantive limits on the president’s removal power. As we indicated earlier, the act left the president’s removal power largely unfettered, aside from preventing him from discharging a federal employee for refusing to make political contributions. Indeed, some of the most ardent supporters of the civil service stridently opposed using the civil service system to impose limits on the president’s power to remove. George William Curtis, former chairman of the Civil Service Commission under Grant and perhaps the foremost advocate of civil service reform, noted: “Having annulled all reason for the improper exercise of the power of dismissal, we hold that it is better to take the risk of occasional injustice from passion and prejudice, which no law or regulation can control, than to seal up incompetency, negligence, insubordination, insolence, and every other mischief in the service, by requiring a virtual trial at law before an unfit or incapable clerk can be

Benjamin Harrison

221

removed.”5 Consistent with this view, Harrison’s Civil Service Commission refused to construe the Civil Service Act of 1883 as imposing any limits on the president’s removal power and disclaimed any authority to investigate removals aside from those for failure to pay political assessments.6 Harrison also took a number of other key actions in domestic policy that demonstrated his vigor as an executor of federal law. Under Harrison, a number of new federal statutes were passed that delegated substantial new powers to the executive branch, including the Sherman Antitrust Act;7 the McKinley Tariff Act, which delegated significant powers to the president to grant exemptions;8 and the Land Revision Act of 1891, which delegated to the president the power to set aside public lands as national forests.9 Thus, the amount of delegated power whose execution the president could control increased dramatically during the Harrison years. The most important matter involving the unitary executive that arose during the Harrison administration was the extraordinary series of events surrounding the attempted assassination of Supreme Court Justice Stephen Field by David S. Terry. Terry and his wife were litigants in a case heard by Justice Field and two other federal judges while the justice was riding circuit in California. Justice Field ruled against Terry’s wife, after which Terry attempted to assault him in open court. In the wake of that attempt and after Terry and his wife had been overheard making threats to kill Justice Field, Attorney General William Henry Harrison Miller assigned U.S. Marshal David Neagle to accompany the justice on his travels in California and to protect him from the Terrys. While riding a train in California, Terry encountered Justice Field and attacked him. U.S. Marshal Neagle came to Justice Field’s defense and shot Terry dead when he refused to cease and desist.10 California officials took Neagle into custody for Terry’s murder, and Neagle sought habeas corpus relief under a federal statute that allowed release if Neagle had killed Terry “in pursuance of a law of the United States.” No statute had been enacted under which Neagle was safeguarding Justice Field, but Neagle was assigned to protect Justice Field on the orders of the attorney general, who had assumed there was implied executive power to protect the officers and instrumentalities of the United States even in the absence of a statutory mandate. In re Neagle thus presented the question of whether the constitutional grant of the executive power to the president authorized the president to take action despite the absence of any statutory mandate, the same issue that would arise in the Steel Seizure Case a half-century later.11 Related to this was the question of whether Neagle had killed Terry “in pursuance of a law of the United States” because the

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The Administrative State, 1889–1945

president was validly acting under his implied presidential powers stemming from the Vesting Clause and the Take Care Clause of Article II. The Harrison administration was in charge of litigating this case before the Supreme Court. Attorney General Miller argued the case himself, maintaining: It was the duty of the Executive Department of the United States to guard and protect, at any hazard, the life of Mr. Justice Field in the discharge of his duty: (1) Because such protection is essential to the existence of the government; (2) Because it is enjoined upon the President, as the executive, he being required “to take care that the laws be faithfully executed;” (3) The marshal was merely the hand of the executive, and unless protected by the marshal the courts and judges have no protection. The reason why I say it is the duty of the Executive Department to protect the judicial, and why I say it has the authority so to do, is because the power of self-preservation is essential to the very existence of the government.12

Miller mentioned Abraham Lincoln’s extraordinary actions without statutory authority as support for the Harrison administration’s extrastatutory protection of the life of Justice Field. He also pointed out that the presidential oath of office requires the president to defend the government, its officers, and its instrumentalities. He observed that after Washington had been inaugurated but before Congress had met to pass any laws, the president surely had the authority to defend the U.S. government. Continuing in that vein, the attorney general told the Court that “the President, in like manner, by the very fact that he is made the chief executive of the nation, and is charged to protect, preserve, and defend the Constitution, and to take care that the laws are faithfully executed, is invested with necessary and implied executive powers which neither of the other branches of the government can either take away or abridge; that many of these powers, pertaining to each branch of the government, are self-executing, and in no way dependent, except as to the ways and means, upon legislation.”13 Miller specifically argued that the Vesting Clause of Article II grants the president the executive power of the nation and that the Constitution further enjoins upon him the duty to take care that the laws be faithfully executed. Rejecting the “assumption that the doctrine of necessary and implied power . . . is confi ned to the legislative branch of the Government, and that the executive has no powers except those expressly granted in the Constitution,” Miller “insist[ed] that when, by the Constitution, the President is invested with the executive power of the nation, and when that instrument enjoins upon him that he shall ‘take care that the laws be faithfully executed,’ it confers upon him all powers reasonably incident to the exercise of the

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executive function, and necessary to the vindication and enforcement of the laws, which has not been withheld from him by the Constitution.” If presidents could not protect courts with U.S. marshals, they would not be able to protect even themselves against assassination attempts.14 Finally, Miller concluded that Neagle’s federal acts in protection of Justice Field trumped state law under the principles of Cohens v. Virginia,15 Ableman v. Booth,16 and McCulloch v. Maryland.17 These arguments to the Court by Harrison’s attorney general constituted a complete acceptance by the Harrison administration of a number of key tenets of the theory of the unitary executive. Miller endorsed the Lincolnian view that the Vesting Clause of Article II, taken together with the Take Care Clause, vests the president with the whole executive power of the nation, giving the president broad, implied powers to execute both the Constitution and the laws. These implied, nonstatutory powers were broad enough to support Neagle’s taking of Terry’s life. While the attorney general made no mention of the implied presidential power of removal and direction per se, that power is narrower in scope than the protective power he found implicit in Article II. It is inconceivable that an administration that endorsed Miller’s Lincolnian interpretation of Article II would not also believe that the president had the authority to control subordinate executive officials in their execution of federal law. Indeed, the attorney general exercised precisely those powers of direction and control when he specifically told subordinates in California to take steps to protect Justice Field by giving him a bodyguard. If Harrison had the inherent authority to order David Terry to be killed absent a statute, then surely he had the lesser inherent power to remove and direct subordinates. The Supreme Court in Neagle enthusiastically endorsed the Harrison administration’s position, over the spirited dissent of Justice Lamar joined by Chief Justice Fuller. The Court said it did not matter that there was no statute being executed here by the president, reasoning that “any obligation fairly and properly inferrible from [the Constitution] . . . is ‘a law’ within the meaning of this phrase.” Indeed, it would be absurd if the Constitution did not allow presidents to protect judges in the ordinary exercise of their duties, and the Court pointed out that it was dependent on the marshals to execute federal judgments. The Court added, “If we turn to the executive department of the government, we find . . . [that t]he Constitution, section 3, Article 2, declares that the President ‘shall take care that the laws be faithfully executed.’ . . . He is declared to be commander-in-chief of the army and navy of the United States. The duties which are thus imposed upon him he is further enabled to perform by the recognition in the Constitution, and the creation

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by acts of Congress, of executive departments.” The Court concluded by saying that federal law authorized Neagle to do whatever California law would have authorized a marshal to do in keeping the peace. The Court therefore affi rmed the lower court in granting habeas relief to Neagle.18 The scope and nature of the majority’s ruling is underscored by the arguments made in Justice Lamar’s dissent. It may be noteworthy here that Justice Lamar was a Southerner who may not have liked the Lincolnian arguments of the majority with respect to executive and federal power. Justice Lamar argued that the habeas statute would only protect Neagle if he had acted pursuant to a federal statute and not if he was acting under some claim of implied presidential power. Justice Lamar denied that the executive could act without a statute, arguing that under the Necessary and Proper Clause, Congress alone has the power to legislate to protect judges. Justice Lamar’s dissenting view was that Congress was the depository of all the federal government’s implied lawmaking powers.19 The majority ruled ringingly in favor of implied presidential power, which is surely helpful to those who believe in an implied presidential power to remove, direct, or nullify. 20 Another case arose in the Supreme Court during the Harrison years that has tangential relevance to our thesis. In McAllister v. United States, the Court ruled six to three that the president had the statutory authority to remove a judge appointed for the territory of Alaska before the territorial judge’s four-year statutory term of office expired. 21 The 1869 amendment to the Tenure of Office Act discussed earlier, which was still in force at the time the dispute arose, acknowledged the president’s right to suspend and replace any civil officer so long as the new office holder’s nomination was submitted to the Senate within thirty days of the commencement of its next session. 22 Because the statute on its face recognized the president’s right to remove McAllister, the case did not present an occasion for the Court to address the constitutionality of congressional attempts to restrict the removal power. 23 One major question hanging over the Harrison administration was the president’s role in foreign policy given the presence of James G. Blaine as secretary of state. Blaine was a towering figure in national politics who had been the GOP candidate for president in 1884, as well as a leader of the GOP going back to the 1880 national convention. Fortunately for Harrison, Blaine was constantly ill between 1889 and 1893. In 1891, when Blaine was completely incapacitated, Harrison seized the opportunity to put his imprint on the nation’s foreign policy. As Socolofsky and Spetter comment, “Since the 1960s, various studies have asserted Harrison’s importance in late-nineteenth century foreign policy—placing Blaine in

Benjamin Harrison

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proper perspective—and have acknowledged these accomplishments among others: his major contribution to the development of the new navy, the establishment of the fi rst American protectorate in Samoa, participation in the fi rst Pan-American Conference, and a most successful commercial reciprocity policy.”24 In addition, Socolofsky and Spetter give Harrison personal credit for “the attempt to obtain a fi rst naval base in the Caribbean, the encouragement of the construction of a Central American canal, and, of course, the effort to annex Hawaii—not so much a failure as a fi nal step toward the events of 1898.” After Harrison dictated the nation’s policy in unresolved disputes with Chile, Great Britain, and Italy, Blaine was reduced to a minimal role, in the face of which he fi nally resigned. 25 In sum, Harrison was an active, involved president who was in every sense the head of his administration. He directly supervised the affairs of his administration and made large numbers of removals. And, in Neagle, his administration argued for and obtained a Supreme Court ruling that was the Court’s broadest statement of implied executive power up to that time. In McAllister, the Harrison administration sought and got a broad ruling on the president’s statutory authority to remove territorial judges. The Harrison administration thus provides strong support for the unitary theory of the executive.

24

Grover Cleveland’s Second Term

The presidential election of 1892 represented the fi rst contest between candidates who had both seen presidential service at the time of the election. Richard Welch emphasizes that Grover Cleveland was “a latter day Jacksonian” who wished to be seen as the tribune of the people. Cleveland appreciated that the American public was weary of the personal quarrels and bickering that had characterized American politics since the Civil War and would look with favor upon a candidate and a president who appeared to stand tall and independent, an example of rugged individualism and political courage. He was “well aware that only one other Democrat had ever run in three consecutive presidential elections: his hero, Andrew Jackson.” Like Jackson, Cleveland was destined to win a popular majority three times in a row—a feat that was not exceeded until the administration of Franklin Delano Roosevelt.1 Cleveland had “a conception of the presidency that if not imperial, was vaguely monarchical. Convinced that the President was the sole officer of the national government who was elected by ‘all the people,’ he felt an obligation jealously to safeguard and protect the prerogatives of the presidential office for his successors.” For this reason, Welch reports, “Republican cartoons often portrayed Cleveland in the toga of a Roman emperor, and there was a general belief that Cleveland was exerting the authority of the

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presidential office and intervening in legislative policy in an unprecedented manner.” Welch concludes, “There can be little dispute that Cleveland dominated the executive branch of the government during both of his administrations.” He adds that “Cleveland was successful in asserting the autonomy of the presidency, and he was unsuccessful in achieving executive-legislative collaboration.”2 As a good Jacksonian Democrat, Grover Cleveland was a staunch defender of the president’s removal power and of the unitary executive. In fact, as we noted earlier, he had obtained the actual repeal of the revised Tenure of Office Act during his fi rst term and took a wide range of other measures to defend the president’s authority to execute the law. Cleveland thus took office for the second time, in 1893, as a committed friend of the unitary executive. For our purposes, the most important domestic issue of Cleveland’s second term was his use of federal troops in Chicago in July 1894 to ensure the free movement of railroad traffic and the end of the Pullman strike. This strike was a major labor action caused by the extraordinary wage cuts enacted by the Pullman Car Company, which led to a strike of its employees and a sympathy strike by members of the American Railway Union, headed by the socialist Eugene V. Debs. Debs persuaded the railway union to boycott all Pullman cars effective June 26, which meant that the union workers refused to work on any train that carried a Pullman car. Welch indicates that by “the early days of July, rail traffic to and from Chicago was at ten percent of its usual volume, the federal mails were seriously obstructed, and the Chicago Tribune was denouncing Debs as an anarchist who had dictatorial ambitions.”3 The Cleveland administration responded to these developments by having Attorney General Richard Olney obtain a sweeping court injunction barring any efforts to interfere with rail traffic in and out of Chicago. Cleveland then dispatched federal troops to Chicago with orders to make sure that the injunction was obeyed. Welch reports, “By July 10, Debs, with seventy other union members, had been indicted and arrested for violating the judicial injunction, and federal troops had secured the safe passage of rail traffic through Chicago. Strikes and disorders in states west of the Mississippi were ended by means of other injunctions and the dispatch of other units of the United States Army.” All in all, it was a very dramatic show of executive and federal power by Cleveland. He was not the fi rst president to send federal troops to restore order during a strike; he was, however, the fi rst “to do so at his own initiative and not at the application of a state governor.”4

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The controversy over the Pullman strike of July 1884 became the subject of litigation when the Cleveland administration went into federal court and sought an injunction against the strikers, not for violating any statute but for obstruction of interstate commerce and the U.S. Postal Service. The Cleveland administration’s claim was that the Constitution gave the federal government an implied power to keep interstate commerce and the mails free of any obstructions and that the executive could do this either on its own or with the aid of a court order. The injunction was issued, and Debs and others were imprisoned for six months for violating it. 5 Debs sought habeas relief and pursued his claim up to the U.S. Supreme Court, which ruled unanimously for Cleveland in a sweeping opinion by Justice Brewer. The Court found that the national government had jurisdiction over this local Illinois disturbance because the disturbance was clogging interstate commerce and the passage of the mails. Thus, even though Debs was not tried by a jury for violating any federal statute, he and his cohorts had nonetheless created a public nuisance that interfered with valid federal powers and from which Debs could be enjoined by a court of equity. In essence, the Court found an implied federal power in the absence of legislation, and the Court held that the executive could execute (and litigate under) that implied federal power in the absence of any federal statute. In fact, the Court suggested in dicta that the president could have dispatched troops to clear away the strikers even in the absence of any court injunction.6 In short, the Court, egged on by the Cleveland administration, took a Lincolnian view of the breadth of the president’s protective executive power. Consonant with the unitary executive thesis, Debs supports the notion that, notwithstanding the Steel Seizure Case,7 the president has broad implied power to act in the absence of a statute even if doing so deprives individual citizens of their liberty.8 If the president has that implied power, as Debs suggests he does, then it would be hard to imagine he does not have authority to control his subordinates in the execution of the laws and to remove them at will. Welch nicely sums up the ironies of Cleveland’s role in breaking the strike of 1894: For a student of the American presidency, the most interesting feature of Cleveland’s actions during the Pullman strike is the witness they offer to his evolving conception of presidential authority. In the campaign of 1884, Cleveland had run on a Democratic platform calling for renewed respect for the rights and sovereignty of the individual states, and for many years thereafter he had given periodic warning against undue centralization of power in the federal government. In 1894 he claimed for the chief executive

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of the national government the authority to supersede the state of Illinois as the protector of law and order within its boundaries. Brushing aside the objections of Governor Altgeld, Cleveland assumed the police powers traditionally reserved to state and local governments as he authorized the use of federal military power in a labor-management dispute. Like his hero Andrew Jackson, Cleveland could simultaneously speak against the centralization of power in the federal government and expand the power of the federal executive. . . . He quoted Jefferson when denouncing federal interference in local elections, but he acted like Jackson when he overrode Governor Altgeld and claimed supremacy for the federal government and its chief executive during the Chicago railroad strike.9

In short, Cleveland asserted presidential power more successfully than had any other president since Lincoln, and “in his role as ‘the national sheriff of public law and order,’” he extended “the authority of the federal government despite his repeated warnings against the evils of undue centralization of power.”10 The second Cleveland administration also initiated a noteworthy case that implicated the presidential removal power even more directly, although the Supreme Court would not resolve the case until the McKinley administration. The case arose when Cleveland fi red Lewis Parsons from his job as a district attorney for no reason other than that Parsons was a holdover from the Harrison administration. The dispute centered on the 1820 statute enacted during the Monroe administration that established a four-year term for many civil officers while explicitly providing that these officers “shall be removable from office at pleasure.”11 The language explicitly authorizing removal was deleted by the Tenure of Office Act of 1867.12 It was unclear, however, whether the repeal of the Tenure of Offi ce Act of 1867 during Cleveland’s fi rst administration reinstated the provision recognizing the president’s right to remove district attorneys before their four-year terms expired. In Parsons v. United States, a unanimous Court, speaking through Justice Peckham, issued what amounts to a paean to the unitary executive. Justice Peckham discussed the full history of the removal power from the Decision of 1789 up through the repeal of the Tenure of Office Act, mentioning that such leading figures as John Adams, Justice Story, Chancellor Kent, Attorney General Clifford, and Attorney General Crittenden had all regarded it settled as a matter of both interpretation and practice that the removal power was vested in the president alone. Justice Peckham’s opinion basically gives an abbreviated history of the removal power from 1789 up to the 1890s that is thoroughly consistent with the thesis of our book. He

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describes the Tenure of Office Act as an aberration from the well-established practice of the government that was best explained by the extraordinarily poor relations between President Andrew Johnson and Congress in the wake of the Civil War. Justice Peckham leaves no doubt that he believes the repeal of the Tenure of Office Act restored the pre-1867 practice of an unlimited presidential power of removal, and he construes the repeal statute as authorizing Cleveland’s fi ring of Parsons.13 The Parsons case is thus a resounding victory for a broad presidential power of removal. The fact that Cleveland fi red Parsons and then litigated the case up to the Supreme Court establishes that the second Cleveland administration was just as devoted to the theory of the unitary executive as the fi rst was. A fi nal area of domestic policy in which Cleveland made an important contribution during his second term was the expansion of the number of federal employees covered by the civil service system. Cleveland expanded the classified service from sixteen thousand positions to twenty-seven thousand in 1889 and then by another forty-four positions in 1895 and 1896. In sum, Cleveland expanded the civil service system in terms of percentage by a larger degree than any other president.14 Although the expansion of the civil service is often perceived as inconsistent with the unitariness of the executive branch, the opposite is actually true. Aside from preventing officials from dunning federal employees into paying political assessments, the original Civil Service Act did not purport to place any limits on the removal power. Its effect was instead to weaken the patronage influence of the Senate. Leonard White quotes one senator complaining that “‘the reform of the civil service has doubtless shorn the office of Senator of a good deal of power.’ Conversely, it tended to add authority to the office of Chief Executive.”15 The expansion of the civil service is more properly regarded as a mechanism that presidents employed to enhance, rather than weaken, their control over the administration of the law. Cleveland’s policies of expanding the classified service while refusing to permit any restrictions on the president’s power to remove thus tended to reinforce the unitariness of the executive. Cleveland also rejected a request from the Civil Service Commission, which for a time included Theodore Roosevelt as a holdover member from the Harrison administration, that he issue an executive order requiring a written statement of reasons for each and every removal.16 Cleveland objected that requiring the reasons for removal be made public amounted to a presumption of bad faith on the part of the removing officer and would place executive officials in a “hampered, suspected, and discredited position.”17

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After leaving office, Cleveland offered a ringing endorsement of the unitary executive in his book Presidential Problems: The Constitution declares: “The executive power shall be vested in a President of the United States of America,” and this is followed by a recital of the specific and distinctly declared duties with which he is charged, and the powers with which he is invested. The members of the convention were not willing, however, that the executive power which they had vested in the President should be cramped and embarrassed by any implication that a specific statement of certain granted powers and duties excluded all other executive functions; nor were they apparently willing that the claim of such exclusion should have countenance in the strict meaning which might be given to the words “executive power.” Therefore we fi nd that the Constitution supplements a recital of the specific powers and duties of the President with this impressive and conclusive additional requirement: “He shall take care that the laws be faithfully executed.” This I conceive to be equivalent to a grant of all the power necessary to the performance of his duty in the faithful execution of the laws. . . . It is therefore apparent that as the Constitution, in addition to its specification of especial duties and powers devolving upon the President, provides that “he shall take care that the laws be faithfully executed,” and as this was evidently intended as a general devolution of power and imposition of obligation in respect to any condition that might arise relating to the execution of the laws.18

In sum, Cleveland was thus a strong defender of the theory of the unitary executive who secured repeal of the Tenure of Office Act during his fi rst term and won two important Supreme Court victories for broad inherent executive power during his second. There was certainly no acceptance of any diminution in the president’s powers over removal or law execution during Grover Cleveland’s second term.

25

William McKinley

William McKinley became president in 1897 after having been elected as the candidate of the Republican Party—a party torn between its Whiggish roots and its recent Lincolnian past. Lewis Gould, McKinley’s biographer, reports that the “Whiggish heritage of the Republicans made them suspicious of a strong executive; a powerful Congress was the appropriate vehicle for their nationalism.” In the end, McKinley turned out to be another strong president in the mold of Lincoln or Cleveland. In the process, he laid the foundations of the modern presidency, anticipating many innovations associated more today with Theodore Roosevelt. Gould further observes, “Imperceptibly but inexorably, the power of the presidency expanded under McKinley’s deft direction. He left no overt statement that he intended to restore the prestige and authority of his office, but his actions during his fi rst year reveal a president with an instinct for power and a clear purpose of augmenting it. So transformed was the office that McKinley ‘surrounded the presidency with a dignity that became almost imperial.’”1 In domestic affairs, McKinley quietly retained fi rm control of his administration. He was a conscientious chief executive who met with his cabinet twice a week. One contemporary reports, “Sometimes he led discussion . . . [but] quite as often he fi rst elicited the views of his counselors.”2 McKinley also “left the operations of the Justice Department to [his] attorney

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general.” It would be a mistake, however, to construe McKinley’s willingness to consider the views of his department heads as passivity. Gould comments, “Whatever their experience with McKinley, the cabinet officers knew who ran the administration.” In particular, McKinley successfully asserted “the primacy of the President in foreign affairs.” He did this not only by strengthening the president’s control of foreign policy as compared with the Congress but also by asserting his control over what his secretaries of state were able to do. John Sherman—who accepted the position of secretary of state at the age of seventy-three as a capstone for his distinguished career in public service, only to prove too past his prime to be effective in the job—offered some telling remarks when stepping down. Gould reports, “When John Sherman resigned [as secretary of state], he wrote that McKinley ‘evinced a disposition to assume all the functions of the members of his Cabinet and especially the duties of the State Department.’ The outgoing secretary of state added that McKinley’s ‘cabinet counsels were not a free exchange of opinions but rather the mandates of a paramount ruler.’” McKinley also asserted his authority over Sherman’s successor, John Hay, such that McKinley “supervised and controlled the overall outlines of what Hay did.”3 McKinley confronted a more difficult situation when controversy emerged regarding Secretary of War Russell Alger’s inability to manage the logistics of supporting the Spanish-American War. McKinley tried in various subtle ways to induce Alger to resign, but when Alger made a public statement saying he would not leave, McKinley dispatched Vice President Garret A. Hobart to tell Alger that the president wanted him to submit his resignation. Alger promptly resigned, in one of the more public removals of the McKinley administration. As the Alger and Sherman departures indicate, McKinley was not shy about triggering the resignations of top aides in whom he had lost confidence. McKinley made at least one removal from office during his tenure as president that was to trigger an important case in the history of the removal power: Shurtleff v. United States. Ferdinand Shurtleff was nominated, confi rmed, and then appointed to be a general appraiser of merchandise under the Customs Administrative Act, which provided that he could be removed for inefficiency, neglect, or malfeasance in office.4 On May 3, 1899, McKinley removed Shurtleff without citing any of those grounds for removal and without any notice or hearing. McKinley instead relied exclusively on the general power of removal possessed by all presidents going back to the Decision of 1789. Shurtleff sued, seeking back pay on the grounds that the Customs Administrative Act had limited the president’s power to remove him. 5

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The McKinley administration defended the validity of the removal. As an initial matter, the administration’s brief asserted, “The question as to the power of the President to remove all such officers, for reasons satisfactory to himself, is no longer open to discussion.” Indeed, the issue had been settled by “the practical construction of the Constitution adopted more than one hundred years ago, and never departed from by the court in any case,” as acknowledged by the Court in Parsons. The brief contended, however, that the Court did not need to address that issue in order to dispose of this case, since the statute did not attempt to limit the removal power. Construing the provision limiting removals to “inefficiency, neglect of duty, or malfeasance in office” as imposing substantive limits on the president’s power to remove would effectively give executive officials a tenure in office during good behavior. Parsons had found such a construction problematic just four years earlier when rejecting arguments that proscribing a fi xed duration of office secured for the incumbent a term of office for that period. Indeed, as Parsons acknowledged, the only statute ever to purport to limit the president’s removal power was the Tenure of Office Act of 1867. The effect of its subsequent repeal was “‘to concede to the President the power of removal, if taken from him by the original tenure of office act, and by reason of the repeal to thereby enable him to remove an officer when, in his discretion he regards it for the public good.’”6 The Court upheld the executive branch’s claim of power. Justice Peckham was the author of Shurtleff, just as he had been the author of the Parsons decision under Cleveland. Assuming arguendo that the Constitution permitted Congress to limit the removal power, Peckham concluded that it would have to do so by “very clear and explicit language.” Peckham concluded that life tenure was a rare condition under the Constitution, intended only for judges, and that limiting the removal power “would involve the alteration of the universal practice of the government for over a century.” Accordingly, Peckham construed the act narrowly as only giving general appraisers a right to a hearing when they were removed for inefficiency, neglect, or malfeasance. The act did not protect general appraisers from the president’s general removal power, which could be used for any reason whatsoever.7 It is hard to know precisely what to make of the language in Shurtleff, assuming for the purposes of that decision that Congress might be able to restrict the president’s power to remove. At least three plausible interpretations come to mind. First, this language could represent dicta acknowledging that limitations on the removal power might be constitutional. Second, the Court could simply have intended to reserve for another day an issue that was not properly presented. Third, Shurtleff might be regarded as an

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early example of the principle that courts will not deviate from the traditional distribution of authority unless Congress employs unmistakably clear language signifying that that is its intent,8 an interpretation that implicitly affi rms the constitutional foundation of the removal power. Two considerations favor an interpretation that regards Shurtleff as being consistent with the unitary executive. The fi rst is the fact that the opinion was written by Justice Peckham, who also wrote the ringing endorsement of the unitary executive in Parsons. The second is that subsequent Supreme Court cases following Shurtleff regarded the constitutionality of congressionally imposed limits to the removal power to be an open question.9 The Shurtleff decision went out of its way to construe statutory language that could easily have been read as limiting the president’s removal power so that it would not have that effect. It established a presumption that to limit the president’s removal power a statute would, at a minimum, have had to say “the president can remove for inefficiency, neglect, malfeasance in office and for no other cause.” It is of critical importance that the statute setting up the Interstate Commerce Commission in 1887, typically regarded as the fi rst independent agency, did not include such language. Under Shurtleff, ICC commissioners and later FTC commissioners were removable at will. It was not until 1935, when the Supreme Court opinion in Humphrey’s Executor misread Shurtleff, that ICC and FTC commissioners became independent.10 The significance of Shurtleff, then, is that it postponed the birth of the headless fourth branch of government from 1887 to 1935. McKinley’s willingness to enforce federal law is further demonstrated by his willingness to send federal troops to restore order during a labor dispute in the Coeur d’Alene mining district of Idaho in the spring of 1899. Moreover, it was during the McKinley years that the Supreme Court fi rst recognized the right of presidents to issue signing statements, saying: “It has properly been the practice of the President to inform Congress by message of his approval of bills, so that the fact may be recorded.”11 And McKinley’s willingness to assert control of the administration of the law is also evident in his policies with respect to the civil service. While McKinley had long supported civil service reform, he faced calls from his own party to make more positions available for patronage by scaling back the expansion of the classified service promulgated during the waning days of the Cleveland administration. In the end, McKinley attempted to steer a middle course, pulling back somewhat from the position adopted by Cleveland but stopping short of the wholesale reversal desired by many of his fellow Republicans. McKinley modestly reduced the scope of civil service protection by expanding the number of federal employees who were exempt from competitive

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examinations. McKinley took a characteristically direct role in setting these policies. There can be little question that the key decisions were made by him and him alone.12 On July 27, 1897, McKinley took the step that Cleveland had refused to take and issued an executive order requiring that “no removal shall be made from any position subject to competitive examination except for just cause and upon written charges . . . and of which the accused shall have full notice and an opportunity to make defense.”13 As the U.S. Civil Service Commission would subsequently make clear, because this order was adopted pursuant to the president’s general executive authority rather than the Civil Service Act of 1883, the determination of what constituted proper cause rested solely with the president.14 Lower courts rejected attempts to turn McKinley’s executive order into a limit on the removal power, reasoning that aside from prohibiting dismissals for failure to make political contributions or to render political service, the Civil Service Act of 1883 did not place any restrictions on the removal power: “It leaves the appointing power as free as before its passage to make removals at will, save only for refusal to contribute to political funds or neglect to render political service.” Although such regulations as the 1897 executive order could limit the manner in which subordinates could exercise the removal power on behalf of the president, these regulations “cannot give to office holders vested rights in their offices.”15 The Supreme Court gave its approval to this position in Keim v. United States, in which the Court relied on its previous decisions in Ex parte Hennen and Parsons to hold that the fitness of a federal employee to remain in office is a matter “peculiarly within the province of those who are in charge of and superintending the departments, and until Congress by some special and direct legislation makes provision to the contrary, we are clear that [it] must be settled by those administrative officers.”16 But the clearest example of presidential control was McKinley’s supervision of the conduct of the Spanish-American War, which represents the single most significant event of his presidency. Not only did the war liberate Cuba from Spain; when combined with the earlier annexation of Hawaii, the acquisition of Puerto Rico and the Philippines as American territory also marked the United States’ arrival on the scene as an imperial and colonial power. All men close to the White House agreed that McKinley “ran the war on the American side.” According to one contemporary, “In all the movements of the army and navy the President’s hand is seen.” Another contemporary commented, “From the first, President McKinley assumed a close personal direction, not only of the organization of the forces but of the general plan of operations. He was Commander-in-Chief not merely in name but in fact.”17

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As Gould points out, by means of the telephone and telegraph McKinley was able to use “remote voice communication for the first time to project presidential presence into the battle zone on a near real time basis while he remained in Washington.” McKinley would often check in at the War Room headquarters to see how things were going, and “by the President’s orders, he was to be awakened at any hour of the night if important intelligence should come in.” Gould adds, “Day by day, and sometimes on an hour-tohour basis, the president oversaw the war. In so doing, he laid the foundation for the modern presidency.” When the war was easily won, McKinley was just as involved in the peace negotiations as he had been in battlefield strategy. The “president’s guiding hand [was to be] seen at every point in the negotiations.”18 In short, the vigor with which McKinley prosecuted the war greatly strengthened the presidency. Gould reports, “In conducting the SpanishAmerican War, McKinley had expanded the powers and authority of his office. Some months later, signing an order to shift American installations that lay outside the United States, he observed: ‘It seems odd to be directing the transfer of navy yards, naval stations &c in Cuba.’ . . . In bearing and manner, in action and policy, [McKinley] would become something of an imperial tutor to the American people.”19 McKinley relied upon the War Power in administering Puerto Rico and Cuba after they were conquered and in suppressing an insurrection in the Philippines. He also sent troops to China during the Boxer Rebellion without congressional authorization. His skillful use of the War Power “facilitated the accretion of power in the executive and in the federal government generally,” and he showed how “broadly and creatively” his office could be used. 20 Gould concludes, “By 1901 the nation had an empire and a president whose manner and bearing anticipated the imperial executives of six decades later.” In the process, McKinley “transformed the presidential office from its late-nineteenth-century weakness into a recognizable prototype of its present-day form.” By the time McKinley died in office of an assassin’s bullet, a contemporary journalist was able to write that “in the legislative branch of the Government, it is the executive which influences, if it does not control, the action of Congress; while the power originally vested in the executive alone has increased to an extent of which the framers of the Constitution had no prophetic vision.”21

26

Theodore Roosevelt

Theodore Roosevelt assumed the presidency on September 14, 1901, after the assassination of McKinley. The take-charge style that would become the hallmark of his administration did not appear right away. Roosevelt held his fi rst cabinet meeting on September 20, during which he immediately asked all members of McKinley’s cabinet to stay on and received reports on the varied business of their departments. Secretary of State John Hay, who had worked for Lincoln and been close to Garfield, was devastated when his friend McKinley became the third president to fall to an assassin. He tried to resign, but Roosevelt asked him to remain. As time passed, however, there were “frequent shifts in cabinet personnel,” as Roosevelt’s biographer Lewis Gould points out. After Hay’s health failed in 1905, Roosevelt asked the exceptionally able secretary of war, Elihu Root, to assume the position.1 Theodore Roosevelt came to offi ce at a time when the presidencies of Grover Cleveland and William McKinley had produced “a gradual rise in presidential power . . . culminating in the emergence of the modern offi ce under McKinley.” Roosevelt took this condition and supplemented it with the personal presidency: the people’s attachment to the person and not the constitutional offi ce of the presidency. He was “visible and controversial . . . in a personalized way,” and his personal appeal and that of his

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family gave him a “capacity to keep the nation entertained and involved in his conduct.”2 Through his charisma, Roosevelt made the presidency the voice of the nation and the government, and he led people to think that as president he was protecting them from a do-nothing, status quo Congress. Gould says that Roosevelt “personalized the office in a way that had not occurred since Andrew Jackson.”3 It is no accident that his role models were Jackson and Lincoln, and he repeatedly expressed his belief in “the Jackson-Lincoln theory of the Presidency.” As Roosevelt said, the course he “followed, of regarding the executive as subject only to the people, and, under the Constitution, bound to serve the people affi rmatively in cases where the Constitution does not explicitly forbid him to render the service, was substantially the course followed by both Andrew Jackson and Abraham Lincoln.” Roosevelt rejected the opposite course, which he denigrated as the “narrowly legalistic view that the President is the servant of Congress rather than the people, and can do nothing, no matter how necessary it be to act, unless the Constitution explicitly commands the action.”4 Roosevelt chose to follow the path of “Old King Andrew,” as President Jackson “had never hesitated ‘to cut any red tape that stood in the way of executive action.’”5 Roosevelt also greatly admired Alexander Hamilton, who believed in strong executive and national power. He thus saw his vision of the presidency as going back to the beginnings of the nation.6 Unsurprisingly, Roosevelt had a very low opinion of Congress as an institution, regarding it as “indecisive and irresolute,” and “he distrusted the motives of his opponents in both houses.”7 Roosevelt liked to “appeal[ ] over the heads of the Senate and House leaders to the people, who were masters of both of us. [He] continued in this way to get results until almost the close of [his] term; and the Republican party became once more the progressive and indeed the fairly radical progressive party of the Nation.”8 As president, Roosevelt expanded the scope of presidential power beyond what anyone had previously imagined. In his view, the executive branch was the dominant, not merely a coordinate, branch of the federal government. Like Lincoln before him, Roosevelt believed that the president’s role was not limited to seeing to it that the laws passed by Congress were faithfully executed. As Roosevelt later explained in his autobiography, he regarded the president as “a steward of the people bound actively and affi rmatively to do all he could for the people.” Under this stewardship theory, “it was not only his right but his duty to do anything that the needs of the Nation demanded.”9 Gould describes Roosevelt’s stewardship theory of presidential power as follows: “His authority ‘was limited only

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by specific restrictions and prohibitions appearing in the Constitution or imposed by the Congress under its [c]onstitutional powers.’ There was no need to wait for ‘some specific authorization’ to take a needed action in the public interest. Instead, the chief executive should act, ‘unless such action was forbidden by the Constitution or by the laws.’ As Roosevelt phrased it in his autobiography, ‘I did not usurp power, but I did greatly broaden the use of executive power.’”10 Gould goes on to note that in “his autobiography, Roosevelt asserted that he had been prepared to act under ‘the Jackson-Lincoln theory of the presidency’ because ‘occasionally great crises arise which call for immediate and vigorous executive action.’” Roosevelt was to accuse his successor, William Howard Taft, of subscribing to the James Buchanan theory of the presidency because of Taft’s apostasy in disagreeing with Roosevelt’s stewardship theory. Taft admired Roosevelt’s goals but “thought a president should observe the law strictly and not construe his authority as broadly as Roosevelt had done.” It turned out that during “the time they had worked together, [Roosevelt and Taft] had few occasions to sit down and go over their contrasting philosophies of the presidency.”11 A believer in the Progressive faith in expert administration, Roosevelt’s style was “to select qualified subordinates and let them exercise their own judgment.” A contemporary English observer said that Roosevelt had “gathered around him a body of public servants who are nowhere surpassed,” and questioned “whether they are anywhere equaled, for efficiency, self-sacrifice, and an absolute devotion to their country’s interests.” Gould comments: Theodore Roosevelt was a gifted and often effective presidential administrator. He usually evoked a high morale from his immediate subordinates, who relished the chance to work for such an inspiring executive. His men admired Roosevelt for his willingness to consult them and for his support when they faced a crisis or criticism. Roosevelt handled a great deal of business each day with speed and thoroughness. His ability to read quickly and his retentive mind enabled him to move through large amounts of information easily. He also possessed the capacity to make up his mind promptly and decisively. He did not spend time reconsidering the actions he had taken. When the president’s interest was engaged, his administrative talents were impressive.12

In sum, Roosevelt was a hands-on administrator who was very much in control of the executive branch. Given the expansiveness of his views on presidential power, it is no surprise that Roosevelt’s actions indicate strong support for the unitary theory of the presidency. Roosevelt maintained strict control of his cabinet members,

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reducing them to mere “echoes and adulators.”13 He also wielded the removal power freely, on several occasions summarily discharging several companies of troops.14 Furthermore, and of greatest relevance to our book, Roosevelt’s eighth annual message specifically proposed “that all existing independent bureaus and commissions . . . be placed under the jurisdiction of appropriate executive departments,” arguing that it was “unwise from every standpoint, and results only in mischief, to have any executive work done save by the purely executive bodies, under the control of the President; and each such executive body should be under the immediate supervision of a Cabinet Minister.”15 Roosevelt was also not afraid as president to take decisive action. As Gould points out, in the area of law enforcement, he personally directed investigations into government scandals, naming lawyers to serve as special assistants to the Justice Department. For example, in 1902 Roosevelt directed that a lawsuit be brought under the Sherman Act to stop a railroad combination, and he “directed that suitable action should be taken to have the question judicially determined.” In a legal investigation regarding rebates, Roosevelt told his attorney general: “Please do not file the suit until I hear from you.” The White House later told the attorney general that the suit “should be abandoned.” In 1903, Roosevelt took vigorous action in response to allegations that postal officials were taking bribes and kickbacks in exchange for promotions, instructing the official initially assigned to look into the scandal “that I wished nothing but the truth and that I wished the whole truth and care not a rap who is hit.” Eventually Roosevelt appointed Democrat Holmes Conrad and Republican Charles J. Bonaparte as special prosecutors to pursue the matter. The investigation ultimately implicated Assistant Attorney General John Tyner as well as Charles Emory Smith and Perry S. Heath, who had been the postmaster general and fi rst assistant postmaster general during the McKinley administration.16 In 1905, Roosevelt’s attorney general Philander Knox appointed Democrat Francis J. Heney to investigate a land fraud scandal implicating former commissioner of the general land office Binger Hermann. Roosevelt’s use of special prosecutors does not pose the same problem for the unitary executive as the independent counsels appointed during the post-Watergate era, since these special prosecutors were all removable at will and thus subject to presidential control. The stewardship theory found particularly strong expression in Roosevelt’s actions on conservation issues. Roosevelt and his chief of the Bureau of Forestry, Gifford Pinchot, concluded that they could add enormous amounts of western land to the nation’s forest reserves despite the absence

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of any statutory authority for doing so. Roosevelt created eighteen national monuments during his presidency, and he withdrew sixty-six million acres from public entry in 1906 alone. Ultimately, Congress adopted an amendment “to limit the president’s power to create forest reserves.” This “was more than just a sign of western impatience over conservation policy; it also demonstrated a general congressional dislike for the president’s assertion of executive power.”17 Roosevelt’s assertion of the power to withdraw western land from public entry absent any statutory authority was a breathtakingly broad claim of presidential power. Kenneth R. Mayer adds that Roosevelt was “the fi rst president to make extensive use of executive orders,” and according to Mayer, Roosevelt issued an astonishing 1,091 such orders during his tenure as president, “nearly as many as had been issued by all previous presidents over the prior 111 years (1,259).”18 Edmund Morris says of Roosevelt that “he understood better than any President before him . . . the executive order.” Roosevelt would use an executive order to circumvent Congress if it “persisted in depriving” him of what he needed or wanted.19 Roosevelt also admired vigorous executive actions taken by others. In the summer of 1903, after reading of how the governor of Indiana had ended a race riot, Roosevelt wrote the governor to praise him for “the admirable way in which [he] vindicated the majesty of the law by [his] recent action in reference to lynching.” On another occasion, the president became enchanted with the idea of telling the Nicaraguans that an 1846 treaty gave the United States the right to go ahead with the building of a canal across the isthmus; this “thesis appealed to Roosevelt’s broad concept of executive power.”20 Another aspect of Roosevelt’s support for the unitary executive was his policy with respect to the civil service. Roosevelt was a longtime advocate of civil service reform, having served as a civil service commissioner during both the Harrison and the second Cleveland administrations. Like McKinley, Roosevelt had to balance the public’s desire for civil service reform with GOP demands for patronage hiring. Gould reports, “During his presidency, the classified civil service—positions that were subject to competitive examination—grew from just over 46 percent of the total government service to 66 percent by the time he stepped down. The number of classified positions increased by more than 116,000, and Roosevelt broadened the number of agencies and bureaus that were under civil-service rules. In general, Roosevelt issued and enforced regulations to curb federal employees from direct involvement in partisan affairs or political campaigns.” 21 As we noted earlier, because the Civil Service Act did not purport to limit the removal power, expanding the classified service enhanced, rather than restricted, the

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president’s control over the administration of the law by insulating executive officials from senatorial courtesy. In addition, Roosevelt issued an executive order clarifying that the previous order issued by McKinley requiring that removals be made only for “just cause” was simply meant to guard against the type of politically motivated removals prohibited by the statute and not to impose any other substantive limits on the removal power. Roosevelt’s order declared that the term “just cause” as used in the executive order issued by McKinley “is intended to mean any cause, other than one merely political or religious, which will promote the efficiency of the service.”22 The Civil Service Commission emphasized that this declaration made clear that “the right of removal . . . remains, as it has always been, discretionary on the part of the appointing officer,” subject only to the limitation that it not be for political or religious considerations and that the person removed be provided with adequate notice and opportunity to be heard. 23 Lower courts would similarly affi rm that the Civil Service Act of 1883 was “never intended to limit the power of removal except for the single cause of failure to contribute money or services to a political party” and that “any other conclusion would encourage inefficiency and incompetency in office, and be fruitful of insubordination.”24 This conclusion was further bolstered by the Supreme Court’s decision in Shurtleff, which, although begun during the McKinley years, was handed down during Roosevelt’s presidency. 25 Frustrated by his inability to redress gross incompetence, Roosevelt subsequently weakened the original order still further by making even these mere procedural protections discretionary for removals made in the presence of the president or department head. 26 Another distinctive feature of the Roosevelt administration was the president’s penchant for appointing commissions, often without statutory authority, to advise him on various subjects. The most important of these commissions became known as the Keep Commission, after its chair, Charles Keep. This commission “addressed the issue of how well the federal government functioned.” Gould reports: The Keep Commission did accomplish worthwhile results on its own, and it established an important precedent for future efforts to make the federal government more efficient. The commission saved public money through its exposure of lax practices, it reformed some procedures, and it introduced order into the routine business of the bureaucracy. The panel began an examination into how supplies were acquired, and it raised the question of salaries and pensions for governmental employees. Above all, it asserted the principle that the president should be in control of the management of the

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The Administrative State, 1889–1945 executive agencies. In that sense the Keep Commission was a notable forerunner of the reforms that created the modern structure of the presidency.

Obviously, Theodore Roosevelt was a hands-on administrator who maintained close control over his subordinates in the executive branch. Congress certainly understood that these commissions represented Roosevelt’s effort to reduce Congress’s “control over appointments and key departments.”27 Roosevelt’s take-charge style can perhaps best be encapsulated in one symbolic act that his cabinet took at the start of Roosevelt’s second term. The entire cabinet resigned before the second term began, as if to express through this act where the true authority for their positions rested. By “returning to Roosevelt the power of appointment—or reappointment,” his cabinet demonstrated that he had ultimate authority not only over their offices but also over their agencies and employees. 28 We saw earlier how the Monroe Doctrine, like Washington’s Neutrality Proclamation before it, was a broad exercise of the executive power conferred on the president by the Vesting Clause of Article II. The Roosevelt administration was to engage in a similar use of “the executive Power” when it proclaimed the famous Roosevelt Corollary to the Monroe Doctrine. Under the Roosevelt Corollary, not only did the United States take it upon itself to say hands off the Americas to all European powers; the United States also asserted its responsibility to keep order in the Americas. Roosevelt described his corollary this way: “If the United States sought to say ‘Hands Off’ to the powers of Europe, then sooner or later we must Keep order ourselves.” Secretary of State Elihu Root elaborated that “what we will not permit the great Powers of Europe to do, we will not permit any American republic to make it necessary for the great Powers of Europe to do.” Gould notes that as “an idea, the Roosevelt Corollary suggested the United States had a greater innate political capacity than did its Latin neighbors, and it did so in the context of a strong assertion of presidential power.” The Roosevelt Corollary, combined with Roosevelt’s work in laying the foundation for the digging of the Panama Canal and his dispatch of seven warships and several companies of marines when Ion Perdicaris was kidnapped in Morocco, gave his administration’s foreign policy a distinctively assertive air. 29 We have seen that Theodore Roosevelt greatly admired Presidents Andrew Jackson and Abraham Lincoln, and like them he believed fi rmly that the executive branch was an independent interpreter of the Constitution and not bound meekly to follow the Supreme Court. Roosevelt remarked, “I grew to realize that all that Abraham Lincoln had said about the Dred Scott decision could be said with equal truth and justice about the numerous decisions

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which in our own day were erected as bars across the path of social reform, and which brought to naught so much of the effort to secure justice and fair dealing for workingmen and workingwomen, and for plain citizens generally.”30 In sum, the administration of Theodore Roosevelt went far beyond the Reaganite theory of the unitary executive in the claims it made of presidential power. Not only did Roosevelt claim a presidential power to remove and direct subordinates, his stewardship theory of presidential power also claimed an inherent authority to act in the absence of a statute wherever action was not forbidden. As a result, his vision of the presidency far exceeded the claim of inherent presidential power made during the Truman administration in the Steel Seizure Case, which was, we believe, justifiably rejected by the Supreme Court. 31 Although Lincoln was allowed to wield such powers in the spring of 1861, that exercise of power was justified, if at all, only in light of the crisis that confronted the nation. As a result, the stewardship theory of presidential power has properly been consigned to the dustbin of history. The powers Roosevelt was claiming cannot be safely vested in the hands of any one individual. One can reject the excesses of the stewardship theory while still praising the Roosevelt administration’s contribution to asserting and maintaining the unitariness of the executive. The fact that Roosevelt may have overreached should not obscure the fact that under him there certainly was no acquiescence to any diminution of the president’s powers of removal and control over law execution.

27

William H. Taft

William Howard Taft’s view of presidential power was considerably more modest than Theodore Roosevelt’s; as Taft’s biographer Paolo E. Coletta observes, Taft did not at all follow Roosevelt’s practice of appealing “over the head of Congress to the people.”1 Taft attacked the stewardship theory as “an unsafe doctrine,” and he disagreed with Roosevelt’s view that “the Executive is charged with responsibility for the welfare of all the people in a general way, that he is to play the part of a Universal Providence and set all things right, and that anything that in his judgment will help the people he ought to do, unless he is expressly forbidden not to do it.”2 Taft was appalled that Roosevelt had, for example, “appointed a number of extralegal, unsalaried commissions and denied the right of Congress to limit him in seeking advice from them. [Roosevelt had] also used executive agreements with abandon and denied the right of the Senate to advise him on his executive duties, although it of course must approve nominations and treaties.”3 Taft believed that “the true view of the Executive functions is . . . that the President can exercise no power which cannot be fairly and reasonably traced to some specific grant of power or justly implied and included within such express grant as proper and necessary to its exercise” appearing “either in the Federal Constitution or in an act of Congress passed in

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pursuance thereof.” Critically, Taft goes on to say: “There is no undefi ned residuum of power which he can exercise because it seems to him to be in the public interest.”4 Coletta argues that Taft had “a juridical rather than political conception of the presidency.” Taft revealed this in a letter he sent to William Kent where he said: “We have a government of limited power under the Constitution, and we have got to work out our problems on the basis of law. Now, if that is reactionary, then I am a reactionary. . . . Pinchot is not a lawyer and I am afraid he is quite willing to camp outside the law to accomplish his beneficent purposes. I have told him so to his face. . . . I do not undervalue the great benefit that he has worked out, but I do find it necessary to look into the legality of his plans.” Taft also expressed his belief in “following a limited, legal concept of presidential leadership” in a letter of January 22, 1912, to Otto T. Bannard, an old friend. Taft alluded to his upcoming battle for reelection against Theodore Roosevelt and Woodrow Wilson and said, “I am afraid I am in for a hard fight without any knowledge of military strategy, and with very little material for organization, but I am going to stay in anyhow. . . . I believe I represent a safer and saner view of our government and its Constitution than does Theodore Roosevelt, and whether beaten or not I mean to continue to labor in the vineyard for those principles.”5 Taft thought his role as president was “to consolidate and to put upon a sound legal foundation the changes Roosevelt had made.” Taft “construed congressional conservation statutes more narrowly than did the courts, took a limited view of the power of the presidency itself, and was determined to regularize what he considered to be Roosevelt’s extralegal methods regardless of the results for conservation.” He thus “regularized and legitimatized the work begun under Roosevelt” while repudiating his method and the spirit in which his actions were taken.6 Coletta contrasts Taft with Roosevelt, saying, “If Roosevelt could not achieve his purpose on the basis of some constitutional or legal power, he would ask if a contemplated move were anywhere prohibited. If it was not, he would act. Trained in the law, Taft took a conservative and legalistic approach to government. He must fi nd authority in the Constitution or in law prior to acting. There was no ‘undefi ned residuum of power’ which he could use merely because the public interest required it.”7 Taft argued that Roosevelt should not be elected to a third term in 1912 because “one who so little regards Constitutional principles, especially the independence of the judiciary; and one who is so naturally impatient of legal restraints and of due legal procedure, and who has so misunderstood what liberty regulated by law is, could not be safely trusted with successive

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Presidential terms.” Before long, “Taft was calling Roosevelt a ‘dangerous egotist’ and a ‘demogogue’ [while] Roosevelt [was] calling the man he made President a puzzlewit and fathead.”8 It would be a mistake, however, to construe Taft’s criticism of Roosevelt’s stewardship theory as indicating any lack of support for the unitary theory of the executive. Once a power has been delegated to the president, Taft acknowledged, “the grants of Executive power are necessarily in general terms in order not to embarrass the Executive within a field of action plainly marked for him.”9 Thus, once power has been delegated to the chief executive, the president should be given broad and plenary control over those powers. Although Taft never had the opportunity to comment directly on the removal power or the unitary executive while he was president, he later offered defenses of the president’s power to remove in his book Our Chief Magistrate and His Powers. As Taft eloquently stated: It was settled, as long ago as the fi rst Congress, at the instance of Madison, then in the Senate, and by the deciding vote of John Adams, then VicePresident, that even where the advice and consent of the Senate was necessary to the appointment of an officer, the President had the absolute power to remove him without consulting the Senate. This was on the principle that the power of removal was incident to the Executive power and must be untrammeled. In the administration of Andrew Johnson, the Republican Congress regarded the President as an apostate and a traitor to Republican principles. With a two-thirds majority in each House, it sought to reverse this principle as to the power of removal by the tenure of office act.10

Taft’s masterful and scholarly opinion in Myers v. United States leaves no doubt whatsoever that given the opportunity, he would have indicated his strong support. Chief Justice Taft’s opinion in Myers represents one of the cornerstones of unitary executive scholarship, and there can be no question but that the author of Myers was a vigorous defender of the unitary executive. In Myers, Chief Justice Taft explicitly asserts that “the vesting of the executive power in the President was essentially a grant of the power to execute the laws,” and he further notes that “the natural meaning of the term ‘executive power’ granted the President included the appointment and removal of executive subordinates.”11 Myers’s author fully appreciated and supported the legal and historical arguments in favor of the unitary executive. The manner in which Taft exercised the removal power indicates the importance of that power in unifying the execution of the law. One of the most politically costly episodes, as described by Coletta, was the squabble between Forestry Bureau Chief Gifford Pinchot and Interior Secretary Richard

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Ballinger. As a holdover from the previous administration, Pinchot still supported Roosevelt’s willingness to bring lands within the national forest system despite the absence of authorizing legislation. Ballinger’s background as an attorney led him to favor Taft’s belief that such actions were improper without statutory sanction. When Taft resolved this rift in federal policy by siding with Ballinger, Pinchot, who was an idealist with a “penchant for martyrdom,” attempted to take the matter to Congress and the people. The crux of Pinchot’s allegations was that Ballinger had given preferential treatment to a former client in recognizing homestead claims to certain coal-bearing lands. Taft had no choice but to remove Pinchot from office, telling him: “If I were to pass over this matter in silence, it would be most demoralizing to the discipline of the executive branch of the government. By your own conduct you have destroyed your usefulness as a helpful subordinate of the government, and it therefore now becomes my duty to direct the secretary of agriculture to remove you from your office as the forester.”12 The furor grew so great that the controversy became known as the “American Dreyfus case.” A congressional investigation ensued that ultimately exonerated Ballinger.13 Congressional supporters of conservation attempted to pass a resolution calling for Ballinger’s removal, but it failed to receive the support of either the committee or the full Senate. Ballinger eventually resigned, citing health reasons.14 Taft’s support for the unitary executive is also evident in his policies toward the civil service. His belief in efficiency made him a modest supporter of civil service reform. He began in 1910 by extending the classified service to cover consular officers, subordinate diplomatic officials, and fi rstclass and second-class assistant postmasters and clerks. Then in 1912 he extended civil service protection to twenty thousand skilled workers in navy yards and thirty-five thousand third-class and fourth-class postmasters.15 Taft also issued an executive order in 1912 reaffi rming the previous executive orders regarding the civil service issued by McKinley and Roosevelt and restoring the procedural protections set aside by Roosevelt for removals made in the presence of the president or a department head.16 As the Civil Service Commission explained, the Taft executive order continued the policy of not imposing any substantive limits on the removal power: “The rules are not framed on a theory of life tenure, fi xed permanence, nor vested right in office. . . . Appointing officers, therefore, are entirely free to make removals for any reasons relating to the interests of good administration, and they are made the final judges of the sufficiency of the reasons.”17 This requirement was ultimately codified by the Lloyd–La Follette Act, which incorporated the requirement limiting removals to “such cause as will

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promote the efficiency of [the civil] service.”18 The legislative history provides little insight into what this standard required and as such did not provide any basis for questioning the President’s power to remove. On the contrary, the fact that the statute incorporated the same language used in the executive orders raises the opposite inference. As a result, the Lloyd–La Follette Act has never been construed as interfering with the president’s removal power in any way. On the contrary, as Gerald Frug has concluded, “the legislative and executive branches continued to affi rm the importance of executive discretion as established by the Decision of 1789, a joint position broken only by the constitutional crisis over the Tenure of Office Act of 1867.”19 Taft’s interest in executive reorganization provides further evidence of his support for presidential control over the administration of the law. Taft “lamented the proliferation of departments and . . . asserted the need of a thorough reorganization of the executive structure.” He hoped that “by similar grouping of related functions he could thus control the administrative agencies of the government.”20 The Taft administration enjoyed some modest success in undertaking administrative reorganization of the Departments of State, War, and the Navy as well as the reorganization of the Customs Service by executive order. Taft launched a broader initiative in 1910 when he obtained funding for a Commission on Economy and Efficiency. 21 He was appalled by the overlap in agency responsibilities and the use of inconsistent record keeping and accounting systems. Taft was thus the fi rst president “to have the federal administration studied in detail as one mechanism.”22 A related problem was the president’s inability to control the budget process. Until 1909, each executive agency submitted its own budget proposal, which the treasury secretary would compile into a “Book of Estimates.” The inaccuracy of these estimates and the lack of coordination in the budget process had forced Congress to enact a seemingly incessant stream of supplemental appropriations. Frustrated with this situation, Congress enacted an appropriations rider directing the treasury secretary to transmit a detailed statement of the Book of Estimates to the president so that “he may . . . advise the Congress how in his judgment the estimated appropriations could with the least injury to the public service be reduced so as to bring the appropriations within the estimated revenues, or, . . . that he may recommend to Congress such loans or new taxes as may be necessary to cover the deficiency.”23 Budget reform also became a major agenda item for the Commission on Economy and Efficiency. The commission’s report recommended a sweeping reorganization of the executive branch, standardization of the federal

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government’s accounting practices, significant decreases in the number of federal employees, and a marked reduction in public works projects. It also proposed that the current budget system be abolished and that instead each executive department submit its estimates to the president, who would integrate the proposals into a coherent national budget. Taft forwarded the commission’s recommendations to Congress and ordered the department heads to prepare budget estimates in the manner recommended by the commission in addition to the traditional one to be forwarded directly to Congress.24 The commission’s proposal met with a frosty reception on Capitol Hill. Coletta notes, “Congress spurned Taft’s recommendations largely because they weakened its power over the purse and reduced the areas of control its committees had over federal fi nances and administrative policies.”25 Rather than act on the report’s recommendations, Congress responded by attaching a rider to a pending appropriations bill directing executive officials to submit budget estimates “only in the form and at the time now required by law, and in no other form and at no other time.”26 Taft signed the measure, but he ignored its provisions and attached to the traditional Book of Estimates a presidential budget of the type recommended by the commission. In defense of his actions, Taft pointed out that “the President is the constitutional head of an organization that is continental in scope,” bearing the constitutional duty to send to Congress “a regular statement and account of the receipts and expenditures” and to make such recommendations to Congress as “he shall judge necessary and expedient.”27 Congress essentially nullified Taft’s actions by ignoring his budget proposal. Despite their lack of success, Taft’s efforts to strengthen the president’s control over the administration of the law were important steps in the long process of consolidating the president’s authority to execute the law. Leonard White notes, “The work of the Keep Committee and of President Taft’s Commission on Economy and Efficiency . . . are the visible symbols not only of a transfer of initiative for administrative reform from the legislative to the executive branch, but also of the tipping of the constitutional balance from Congress to the President of the United States. This shift was momentous and was not reversed.”28 Kenneth Mayer thus argues, “For a president generally considered to be weak, especially in the shadow of Theodore Roosevelt, Taft managed to play a key role in laying the foundation for a major expansion of presidential power.”29 The Commission on Economy and Efficiency eventually led to the creation of the Bureau of the Budget, which today is known as the Office of Management and Budget. William Howard Taft is thus the grandfather of the OMB—one of the most powerful centralizing tools the president has today at his disposal.

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Mayer adds that, in addition to vindicating presidential power with his Commission on Economy and Efficiency, Taft in 1909 withdrew three million acres in California and Wyoming from private development because the land was thought to contain a substantial oil reserve. Although he had no statutory authority to withdraw this land, the Supreme Court upheld presidential power to do so in United States v. Midwest Oil Co. 30 This landmark decision established “the principle that a presidential action, even taken in the absence of explicit statutory authorization (or taken in apparent contravention of the law), can be valid in the face of congressional acquiescence.”31 That is the very principle, of course, that animates in part this book. In sum, William Howard Taft was at heart more a lawyer and a judge than a vigorous executive. In his book Our Chief Magistrate and His Powers and in his scholarly and masterful opinion in Myers v. United States, Taft made his name as the president who wrote at the greatest length and in the most depth to defend the president’s possession of the removal power and the theory of the unitary executive. His support for the Commission on Economy and Efficiency also represents an important assertion of the president’s authority to execute the law. Thus, despite his relatively modest vision of presidential power, neither his words nor his deeds may properly be regarded as acquiescing in any diminution of the unitary executive.

28

Woodrow Wilson

Presidential support for the unitary executive continued during the administration of Woodrow Wilson. That Wilson emerged as a major champion of presidential power came as something of a surprise. His doctoral thesis, which became a well-known and widely acclaimed 1885 book entitled Congressional Government, remains one of the classic endorsements of parliamentary government. Written in the wake of the series of relatively weak presidents that had been dominated by the Reconstruction Congresses, Congressional Government dismisses the presidency as a weak office, concerned with “mere administration,” the chief executive reduced to little more than “the fi rst official of a carefully-graded and impartially regulated civil service system.” Beneath the president are arrayed the various executive departments, each operating with relative independence, such that “the President cannot often be really supreme in matters of administration.” In short, “our latter-day Presidents live by proxy; they are the executive in theory, but the Secretaries are the executive in fact.” Even the cabinet secretaries “are not in fact the directors of the executive policy of the government.” True control of the administration lies with Congress. And congressional policy with respect to administration is dictated by the standing committees, which are vulnerable to special interest pressures and unresponsive to the popular will.1

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In addition, Congressional Government asserted that the constitutional commitment to the separation of powers was a “grievous mistake” and a “radical defect in our Federal system” that prevented either the President or Congress from emerging as the “supreme ultimate head . . . which can decide at once and with conclusive authority what shall be done at those times when some decision there must be.” Under the best of circumstances, the division of authority led to deadlock; in times of duress, it led to a “paralysis in moments of emergency” that could be “fatal.” At this point, Wilson thought that the best way to make the federal government more responsive to the public will was to adopt a more parliamentary style of government, in which members of Congress also served as heads of executive departments and the government was subject to votes of no confidence. Under such a vision, Congress would clearly emerge as the locus of federal power, and administrative head would no longer be a primary part of the presidential portfolio. 2 Over time, however, Wilson’s views on the proper allocation of power between the presidency and Congress evolved. The examples of a vigorous presidency set by Grover Cleveland, William McKinley, and especially Theodore Roosevelt changed Wilson’s thinking. Kendrick Clements, Wilson’s biographer, notes: By 1908, after his own experience of executive power at Princeton and after seven years of Theodore Roosevelt’s vigorous national leadership, Wilson was ready to fi nd in the presidency the possibilities of leadership and national unification that he had so long sought. “We have grown more inclined,” he said that year in a series of published lectures delivered at Columbia University, “to look to the President as the unifying force in our complex system, the leader both of his party and of the nation.” The president’s leadership of his party gave him influence over Congress, Wilson argued in 1908, but more importantly his standing as the interpreter of the country’s instinctive wishes and desires made him a unique national figure. 3

The transformation of Wilson’s views is evident in the rather striking shift in tone and focus in his second master work, Constitutional Government in the United States, published in 1908. In it Wilson noted that the country “ha[d] grown more and more inclined . . . to look to the President as the unifying force in our complex system. . . . His is the only national voice in affairs. Let him once win the admiration and confidence of the country, and no other single voice can withstand him, no combination of forces will easily overpower him. His position takes the imagination of the country. He is the representative of no constituency, but of the whole people.” Wilson continued, “If he rightly interpret the national thought and boldly insist upon

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it, he is irresistible; and the country never feels the zest of action so much as when its President is of such insight and calibre. . . . It is for this reason that it will often prefer to choose a man rather than a party. A President whom it trusts can not only lead it, but form it to his own views.” In fact, Wilson went so far as to suggest that the sole purpose of the cabinet is to relieve the president of the burdens of day-to-day administration. If cabinet members do their jobs properly, their departments “may proceed with their business for months and even years together without demanding [the president’s] attention.” Wilson’s views in this regard no doubt reflected the Progressive era’s faith in technocracy and the feasibility of separating politics from administration. Regardless of the ultimate merits of this approach, there can be little doubt that it embraces the belief that the bureaucracy must be highly responsive to presidential control.4 Wilson’s change of heart can best be explained by his desire for vigor in government. Simply put, by 1908 he had concluded that institutionally the president was better situated than Congress to provide the necessary leadership. Although Wilson had previously viewed administration as essentially a mechanical process of carrying out political decisions made by Congress, he came to appreciate that administrative actions were themselves an important source of public law. As such, all administration needed to be subject to presidential control. Clements describes Wilson’s attitude as one of “glorification of the presidency,” in which the chief executive possessed “extraordinary potential power deriving from his triple functions as party leader, symbol of national unity, and interpreter of the wishes of the people.” These views would only strengthen during Wilson’s service as governor of New Jersey, which set the stage for his election as president. It was “a remarkable change from Wilson’s earlier belief that leadership should be lodged in the legislature and was a slightly ominous foretaste of the ‘imperial presidency’ of half a century later.”5 These commitments were evident in the way that Wilson conducted his administration. He had long recognized the constitutional foundations of the president’s removal power. Even Wilson’s early, pro-parliamentary writings condemned the Tenure of Office Act as “repugnant . . . to the original theory of the Constitution.”6 The manner in which Wilson wielded the removal power indicates that this belief was no mere paper commitment. He did not hesitate to dismiss cabinet officials or put them in a situation where they felt they needed to resign. Secretary of State William Jennings Bryan resigned, believing that Wilson was unnecessarily pushing America into World War I. William C. Redfield, the fi rst secretary of commerce, also resigned, believing

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Wilson was not supportive enough of business. And, most dramatically, Wilson fi red Secretary of State Robert Lessing. Indeed, Wilson was to fight with his cabinet for acting independently of him even when he was incapacitated by his stroke. And perhaps most important of all, Wilson directed his postmaster general to dismiss Frank S. Myers as postmaster fi rst class. Although the removal of a fairly minor federal official would not ordinarily be noteworthy, in this case it would provide the basis for the Supreme Court’s most influential decision regarding the removal power: Myers v. United States.7 The Wilson administration also successfully defended the removal power before the Court of Claims, which declined to overturn a removal decision on the grounds that the decision whether to exercise the removal power lay solely with the proper officials of the proper department.8 Thus, as one commentator observed at the time, “it may be said with entire accuracy . . . that the law in its present state offers no obstacle to the removal of an employee for inefficiency and that responsibility for failure to make such removal . . . rests wholly upon the administrative officer.”9 In addition, Wilson opposed numerous congressional attempts to infringe upon his authority to execute the laws. For example, on May 13, 1920, he vetoed an appropriations bill that subjected the printing of magazines by executive agencies to the prior approval of the Joint Committee on Printing as “an invasion of the province of the Executive.” As Wilson further asserted, “The Congress and the Executive should function within their respective spheres. . . . The Congress has the power and the right to grant or deny an appropriation, or to enact or refuse to enact a law; but once an appropriation is made or a law is passed, the appropriation should be administered or the law executed by the executive branch of the Government. In no other way can the Government be efficiently managed and responsibility definitely fi xed.” This same veto message also criticized a provision of a previous appropriations act giving the Public Buildings Commission, a body that included four members of Congress, absolute control over the allotment of all space in federal buildings in the District of Columbia.10 Even more significant was Wilson’s veto of the Budget and Accounting Act the following month. This act would have largely implemented the recommendations of Taft’s Commission on Economy and Efficiency by authorizing presidential coordination of the budget process through the newly created Bureau of the Budget. The act would also have established a General Accounting Office (GAO), headed by the comptroller general, which would have had the power to conduct audits to verify that the administration allocated federal funds in accordance with the appropriations legislation enacted by Congress. To ensure that the comptroller general and the GAO

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possessed the independence from the executive branch needed to conduct a proper audit, the act would have made the comptroller general removable only by concurrent resolution, a legislative device that merely required the assent of both houses of Congress and did not require the president’s signature. Had the act stopped there, it might not have drawn Wilson’s ire. Unfortunately, it also assigned to the comptroller general the responsibilities of preapproving all expenditures and of adjusting accounts that were previously assigned to the comptrollers and the auditors of the Treasury Department—responsibilities that were clearly executive in nature. Strikingly, the proposed Bureau of the Budget would be placed in the Treasury Department, which had been claimed to be a special annex of Congress’s going back to the days of Andrew Jackson. Despite his avid support for the proposal, Wilson nonetheless vetoed this measure, on the grounds that it shielded an officer wielding executive power from direct presidential removal. As Wilson noted in his veto message, “The Congress is without constitutional powers to limit . . . the power of removal derived from the Constitution.” Wilson reasoned, “It has . . . always been the accepted construction of the Constitution that the power to appoint officers of this kind carries with it, as an incident, the power to remove.” Consequently, he concluded: “Regarding as I do the power of removal from office as an essential incident to the appointing power, I cannot escape the conclusion that the vesting of this power of removal in the Congress is unconstitutional and therefore I am unable to approve the bill.”11 Thus, even in such a situation as this, where adopting the contrary position would have had the practical effect of greatly enhancing the president’s power, Wilson remained true to the unitary theory of the executive. Wilson made other efforts to centralize his control of the execution of the laws. His initial efforts to reorganize the government foundered in the face of strong congressional opposition. However, the exigencies of World War I fi nally led to the passage of the Overman Act of 1918, which authorized Wilson to coordinate and consolidate executive agencies by executive order.12 Armed with this authority, Wilson issued twenty-four executive orders that, among other things, placed the work of all law officers under the supervision of the attorney general and centralized control of all health activities under the secretary of the treasury.13 Although the Overman Act limited the reorganization power to war-related agencies and prohibited the abolition of any agency, it did lay the foundation for the reorganization proposals that were to follow. The Wilson administration also bore witness to the birth of three additional agencies that would later come to be regarded as independent: the Federal

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Reserve Board, the Federal Trade Commission (FTC), and the U.S. Shipping Board. The members of the FTC and the Shipping Board were protected by the same removal restrictions contained in the amended Interstate Commerce Act, limiting removals to “inefficiency, neglect of duty, or malfeasance,”14 while the statute establishing the Federal Reserve Board provided for a ten-year term unless removed by the president “for cause.”15 Congress also created a Water Power Commission that would be the predecessor of the Federal Power Commission and the Federal Energy Regulatory Commission. Unlike the successor agencies, which were created as independent agencies, the original Water Power Commission was composed entirely of cabinet officers and thus was without question an executive agency.16 Like Cleveland, Wilson offered no objections to the creation of these agencies, which since 1935 have been regarded as being independent. As in the case of the Cleveland administration, however, it would be wrong to read anything into Wilson’s failure to object. As we noted earlier, there is no reason to think that Congress intended the language in the original Interstate Commerce Act to preclude the president from removing commissioners over disagreements about policy. As Robert Cushman, the leading early commentator on the history of the independent regulatory commissions, has observed, the for-cause removal protections of the Interstate Commerce Act were regarded “more as a protection to the public by providing a way to get rid of objectionable commissioners than as a limitation on Presidential authority.” In addition, removal provisions prompted little discussion, suggesting that Congress did not view these restrictions as key to determining the commissions’ independence. The scant legislative history that does exist suggests that Congress probably did not have any clear idea of the relationship between the independent agencies and the president. If anything, the legislative history suggests that Congress regarded the removal provisions in the FTC Act as a check on the commission’s power, not the president’s, and that Congress thought about the FTC’s independence in terms of freedom from partisanship rather than freedom from presidential control.17 In fact, during consideration of the FTC Act, Wilson insisted that the commission remain relatively weak, reflecting his view that it was “an executive agency charged with executive and administrative duties” and “was merely to supplement existing law-enforcement agencies.” Wilson’s theory seems to have won the day, as he “secured the inclusion in the Federal Trade Commission Act of the clause authorizing the President to direct the commission to make certain investigations.” Cushman goes on to note, “Throughout the discussions of this whole period there runs an underlying assumption that the commission’s policy, if not actually directed from the White House, at

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least conforms to the President’s wishes, that the President cannot escape responsibility for the commission’s policy, and that an incoming President objecting to such policy should change it, if not by the actual issuance of orders to the commission, at least by making of suitable appointments.”18 The conclusion that Congress intended these new commissions to operate subject to presidential control is further reinforced when the removal provisions are read in the light of the statutes’ other provisions. For example, the Federal Reserve Board as constituted in 1914 included both the secretary of the treasury and the comptroller of the currency as ex officio members, specifically to ensure that the executive branch would be able to exert an appropriate degree of control over monetary policy.19 Similarly, the FTC Act specifically authorized the president to direct the FTC’s investigatory activities. 20 Moreover, the act creating the U.S. Shipping Board clearly envisaged that the board would exercise important managerial duties under the direction of the president. In fact, the year after the U.S. Shipping Board was established, the exigencies of World War I led Congress to enact legislation giving the president new powers to control shipbuilding, 21 authority that he promptly delegated to the board. The board acknowledged that it would act “solely as the agent of the President,”22 and it was universally regarded as such throughout the conduct of World War I. After the war ended, Congress would transfer some of the president’s authority back to the board. 23 The clear role for presidential involvement in these commissions’ operations vitiates any suggestion that the commissions were intended to be independent of presidential control. Moreover, Wilson’s treatment of these new institutions underscored the fact that he did not regard them as independent of his authority. As Cushman has concluded, “There is no doubt that Wilson . . . felt that he was entitled to impress his policies on the independent commissions and to expect their conformity to those policies.” Accordingly, Wilson did not hesitate to use his power to direct FTC investigations, launching many of the FTC’s major initiatives. Wilson also threatened to remove the entire Federal Reserve Board for disagreeing with his policies. 24 But the most compelling explanation for why Wilson failed to object to these provisions is the Supreme Court’s decision in Shurtleff. 25 The removal language included in these new statutes was identical to the language that Shurtleff held did not place any limits on the president’s power to remove. Therefore, Congress was doubtless aware that under Supreme Court precedent, including that same language in the FTC Act and the Shipping Act appears to make the members of the bodies created by those statutes removable at will. This conclusion is reinforced by the fact that in 1908, five years

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after Shurtleff, Congress amended the statute at issue in Shurtleff to make explicit that general appraisers of customs could be removed for cause and for no other reason. 26 The decision to employ language identical to that used in Shurtleff rather than the language used in the amended customs statute would thus appear to be no accident, and it raises the strong inference that Congress did not intend to limit the president’s power to remove members of the FTC or the U.S. Shipping Board. In light of Shurtleff, the FTC was not truly an independent agency and would not become one until the Supreme Court’s 1935 decision in Humphrey’s Executor v. United States. 27 The eventual emergence of Wilson’s views regarding the centrality of the institution of the presidency and his strong opposition to repeated congressional attempts to interfere with his authority to execute the laws appear to provide strong support for the unitary executive. Although three new independent agencies were created under his administration without his objection, the evidence shows that neither Congress nor Wilson regarded these commissions to be independent of presidential control. Congress did include the key language identified by Shurtleff as signaling Congress’s intention to limit the removal power in the two statutes establishing boards to facilitate the resolution of railway labor disputes. 28 That said, Wilson’s record viewed as a whole is more than sufficient to overcome any suggestion that Wilson acquiesced to any derogation of his authority to control the execution of the law, notwithstanding his failure to object to these relatively minor agencies that were only to become independent after 1935.

29

Warren G. Harding

The presidency of Warren Harding is consistently ranked as one of the worst, if not the worst, in our nation’s history.1 Indeed, Harding was well aware of his own shortcomings, having once admitted to Columbia University’s president that “I am not fit for this office and should never have been here.”2 A congenial man who abjured conflict, Harding was by nature most comfortable remaining outside the fray and conciliating divergent interests. This outlook made him deeply suspicious of strong presidential power, which he believed could only lead to troubled relations with Congress, as it had during the Wilson administration. As a result, he attempted to pay respect to Congress’s prerogatives by adopting a narrow conception of presidential power. This vision turned the presidency into a largely ceremonial office whose main purpose was to serve as a beloved source of national pride. There was little room in it for political leadership. Harding’s legacy was ultimately consumed by a series of scandals, which culminated in the conviction and imprisonment of one of his cabinet secretaries for accepting bribes for oil leases in Teapot Dome, a scandal we discuss in the next chapter. If ever there was a president who might have been expected to abandon the unitary executive, it was Harding. Viewed in this light, Harding’s record in defending the president’s authority to execute the laws may be regarded as something of a pleasant surprise.

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Harding did not hesitate to take steps to ensure that the agencies that were to become independent after 1935 acted in accord with the administration’s policy agenda. His actions included communicating his preferred policy positions to members of the Interstate Commerce Commission (ICC) and the Shipping Board, requiring commissioners to submit their undated resignations before receiving their appointments, ignoring the statutory provisions purporting to limit presidential removal authority, and threatening to remove Shipping Board members who disagreed with his policies. Even more important were his efforts to reconstitute the independent agencies with members more in tune with his pro-business orientation. Harding made a number of transformative appointments to the ICC, the Federal Reserve Board, the U.S. Tariff Commission, and the Federal Trade Commission that effectively brought the regulatory program of the Progressive era to an end. Harding did fail to object when Congress included removal restrictions when establishing a commission to investigate a series of coal strikes. 3 Such a minor deviation does not seem sufficient to constitute acquiescence when viewed in light of Harding’s overall record with respect to the independent agencies. Believing that promoting efficiency would make the government more responsive to business, Harding also embraced efforts to reorganize the executive branch. He appointed his good friend Walter F. Brown as the chairman of the Joint Congressional Committee on Reorganization established at the end of the Wilson administration. The plan Brown developed called for wholesale consolidation of the federal bureaucracy into ten departments. Most important for our purposes is the fact that the proposal reiterated the position fi rst advanced by Teddy Roosevelt and recommended that the independent agencies be consolidated into the executive departments.4 This plan prompted a spate of bureaucratic infighting that rendered its enactment a practical impossibility. Although some cabinet members were able to achieve limited success in modernizing the operations of their departments, plans to impose more extensive changes were eventually ended by Harding’s untimely death and the advent of the Coolidge administration, which did not share Harding’s interest in executive branch reorganization. But the most important step Harding took to bolster the unitary executive was the completion of the effort to establish a Bureau of the Budget initiated by Taft and continued by Wilson. Under the Budget and Accounting Act of 1921, 5 “the Bureau of the Budget was part of the executive branch, reporting to the president. The budget director was not to take instruction from cabinet officers but only from the president, which gave the director the authority to plan a responsible budget without constant interference.” The impact on the president’s ability to control his administration was palpable

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and immediate. Under the leadership of the very able Charles Dawes, the Bureau of the Budget was able to save more than one billion dollars during its fi rst year of operation. Even more important, the bureau allowed the president to exert far more control over federal spending than ever before.6 Ironically, Harding’s greatest achievement in asserting the president’s authority to execute the law was simultaneously his greatest failure. Attached to the legislation creating the Bureau of the Budget was a provision creating the General Accounting Office, headed by a comptroller general appointed to a fi fteen-year term and removable by joint resolution rather than by concurrent resolution as proposed during the Wilson administration.7 Because a joint resolution necessarily requires the president’s signature to be effective, this provision guaranteed presidential participation in any removals. The use of a joint resolution, however, prevented the president from initiating the removal of the comptroller general and from exercising the removal power without congressional consent. Moreover, the bureau was placed in the supposedly Congress-friendly Department of the Treasury. These were precisely the problems that had induced Wilson to veto the previous version of the Budget and Accounting Act, notwithstanding his avid support for the bill. Harding failed to follow suit and signed the act into law. Harding’s failure to object to the limits on the president’s power to remove the comptroller general undeniably constituted a blow to the unitary executive. At worst, however, Harding’s approval of the Budget and Accounting Act represents something of a mixed bag. The case can be made that the creation of the Bureau of the Budget greatly enhanced the president’s ability to execute the laws and control the executive branch. To his credit, Harding did use the full capabilities of the Bureau of the Budget to assert his control over executive agencies, establishing fi rm control over the budget process and requiring agencies to submit all legislative proposals that might involve presidential spending to the Bureau of the Budget for clearance. Harding’s reorganization proposal also recommended that the newly created General Accounting Office be transferred into the Treasury Department.8 This initiative was ultimately doomed by Congress’s failure to embrace any aspect of Harding’s reorganization plan. Harding was also unsuccessful in his effort to get authority for the Bureau of the Budget to exercise central legislative clearance before the agencies were ready for such a change, and cabinet secretaries torpedoed the change until the administration of Franklin Roosevelt, when this and many other concentrations of presidential power came to be approved. Ultimately, Harding’s legacy would be undone by his decision to include in his cabinet two personal friends who subsequently became enmeshed in

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scandal. Ironically, most of Harding’s major executive and judicial nominees were men of outstanding talent and ability. Harding appointed the very talented Charles Evans Hughes to be secretary of state and named the brilliant Andrew W. Mellon secretary of the treasury. Rising star Herbert Hoover was named secretary of commerce, and the formidable William Howard Taft was nominated to be chief justice of the Supreme Court. Harding’s biographers, Eugene Trani and David Wilson, observe, “For quality it would be hard to surpass men such as Hoover, Hughes, and [Agriculture Secretary Henry] Wallace.”9 It is thus ironic that two bad appointments— Albert Fall as secretary of the interior and Harry Daugherty as attorney general—would forever besmirch the reputation of an administration led by an otherwise distinguished cabinet. Mercifully, Harding died unaware of the damage that his friends’ improprieties would do to his reputation. On the whole, Harding’s record in defending the unitariness of the executive is somewhat equivocal. Notwithstanding his rather constrained vision of the proper scope of presidential power, Harding did take a number of steps to defend the president’s authority to execute the law, as evidenced by his willingness to dominate the agencies and to populate the executive branch with an able cabinet staffed by giants like Hughes and Mellon. Even more important is his role in creating the Bureau of the Budget, which is regarded by many as one of his administration’s more significant achievements and which represents the precursor to the agency that has become the presidency’s primary mechanism for centralizing control of the administration of the law: the Office of Management and Budget. At the same time, it is undeniable that Harding’s failure to maintain Wilson’s objections to the restrictions on the removal of the comptroller general constitutes a clear failure of a president to defend the unitariness of the executive branch. Also somewhat troublesome is Harding’s reluctance to enforce the mandates of the Eighteenth Amendment and the Volstead Act of 1919 on Prohibition. Harding was the fi rst president burdened with having to balance the political unpopularity of Prohibition and the obligation to enforce it. The contradiction between his public support for Prohibition, on the one hand, and the implications of his personal habits and the almost farcical level of enforcement, on the other hand, does not do him much credit. When viewed in the light of the overall historical record, however, these episodes provide at most modest support for the claim that Harding acquiesced to a nonunitary executive branch. Unfortunately, what little good Harding was able to accomplish in his brief two years in office has largely been eclipsed by the Teapot Dome scandal, which, as we shall see, surfaced after his death, during the Coolidge administration.

30

Calvin Coolidge

Warren Harding’s death elevated Calvin Coolidge to the presidency. A reticent man who reflected many of the values of his rural New England roots, “Silent Cal” was the antithesis of the activist president. Indeed, Walter Lippmann reported that his “political genius . . . was his talent for effectively doing nothing.”1 Coolidge’s reluctance to assume national leadership or to impose his will on Congress did not, however, translate into reluctance to defend the president’s prerogatives. Coolidge was more than willing to fight to assert the president’s sole right to control the execution of the federal laws. For instance, the degree of influence he exerted over the independent agencies indicates that he envisioned them as being subject to his will. Consistent with congressional statements that the Federal Trade Commission and other commissions “should subordinate their judgment to the opinions of the Executive” and that “they properly were mere agencies to register the policies of the administration,”2 Coolidge attempted to dominate the independent agencies by influencing the rediscount policy of the Federal Reserve Board, dictating policy to the U.S. Shipping Board, requiring that commissioners submit undated letters of resignation before appointing them, and threatening to remove commissioners who disagreed with his policies. The fact that the threatened removal of these commissioners failed

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to evoke any congressional protests suggests that Congress also did not regard the statutory removal restrictions as vitiating any of the president’s constitutional powers. Coolidge “moved carefully but fi rmly to create a protectionist majority on the Tariff Commission,” removing one commissioner and appointing another to be an ambassador in order to give himself a vacancy to fi ll. A third low-tariff commissioner was driven to resign in 1928 as Coolidge established complete control over the commission. 3 The fact that from 1927 to 1929 Congress made expenditures of appropriations with respect to the Merchant Marine conditional on approval by the president and not the U.S. Shipping Board further contradicts any suggestion that Congress thought that the independent agencies should exercise their authority altogether independently of executive control.4 Congress would create two minor independent agencies without drawing any objection from Coolidge. 5 Coolidge further exerted control over the independent agencies by appointing commissioners who were sympathetic to his pro-business policies. These efforts culminated with the appointment of William E. Humphrey to the chairmanship of the FTC. Humphrey bragged about the impact of his appointment, noting that “if [the FTC] was going east before, it is going west now.” He added, “Do you think I would have a body of men working here under me that did not share my ideas about these matters? Not on your life. I would not hesitate a minute to cut their heads off if they disagreed with me. What in the hell do you think I am here for?”6 These rather extreme statements by Humphrey are important because they reveal the extent to which the independent agencies were in tune with Coolidge’s basic policies. It is clear that both Harding and Coolidge moved aggressively to turn the direction of the independent agencies around one hundred and eighty degrees. While the merits of the laissez-faire policy they pursued are open to dispute, there can be no question but that Harding and Coolidge ensured that these agencies acted in accordance with the vision determined by the president, notwithstanding the supposed statutory guarantees of independence. Humphrey’s aggressive statements about his own role in implementing Coolidge’s laissez-faire policies certainly help to explain why FDR was so eager to remove Humphrey in the litigation that ultimately became Humphrey’s Executor v. United States.7 Coolidge also used his control over the executive branch and the new powers vested in the president by Harding’s creation of the Bureau of the Budget to rein in the federal debt. As president, he saw the federal debt drop from $22.3 billion in 1923 when he took office to $16.9 billion in 1929 when he left office, a dramatic reduction indeed. Robert Ferrell, Coolidge’s

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biographer, reports, “In holding down government expenditures and saving enough money to retire the debt, Coolidge employed several devices, one of which was the Bureau of the Budget. The very fact that the bureau’s statisticians and accountants were screening the proposed expenses of cabinet departments and the independent agencies gave comfort to the parsimonious president. The bureau’s experts also could watch for special proposals by those well-known spendthrifts, the members of Congress. When the president presented his annual budget he could feel fairly sure that it was as low as he properly should go, and not a crazy quilt of special interest propositions.”8 Thus, the Bureau of the Budget proved its usefulness to the presidency from its inception, compensating for Harding’s agreeing to limits on the removal of the comptroller general. The most significant step that the Coolidge administration took to defend the unitary executive was its role in briefi ng and arguing Myers v. United States.9 Its role in Myers began when the administration continued to defend Wilson’s removal of Frank Myers in defiance of the statutory restriction on the removal of postmasters. In the brief and oral argument presented to the U.S. Supreme Court, Solicitor General James M. Beck offered a series of ringing statements on the exact controversy that is the subject of this book. Beck’s brief argued that “from the Beginning of the Government removal has been recognized as essentially an executive function.” The Constitutional Convention did not discuss the removal power because its members thought it was “axiomatic that the power to remove was an executive power and that it was included within the grant of ‘executive power’ to the President and the special grant that he should ‘take care that the laws be faithfully executed.’” Beck further observed, “There is, however, a very significant difference between the fi rst sections of Article I and Article II, respectively. Article I, section 1, provides: ‘All legislative Powers herein granted shall be vested in a Congress of the United States.’ . . . Section 1 of Article II is, however, differently phrased. It provides: ‘The executive Power shall be vested in a President.’ It does not use the words ‘herein granted,’ nor does it speak of a class of powers as the preceding section, but it speaks of the ‘executive powers’; and the executive power, as understood at that time in the science of government, always included both the power to appoint and the power to remove.”10 Beck’s brief goes on to recount the entire history of the removal power from the Decision of 1789 of the First Congress up through the controversy in the Jackson and Johnson administrations, specifically noting the long presidential insistence on the removal power (encompassing Presidents John Adams, Jackson, Andrew Johnson, Grant, Cleveland, Wilson,

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and Coolidge) and citing the many attorney general opinions defending a unilateral presidential power of removal.11 The brief is a ringing defense of the unitary executive, making every constitutional argument for it that can be made. Beck reiterated many of these positions during oral argument. “In my judgment,” he declared, “the President can remove any one in the Executive Department of the Government.” Beck went on to say that the executive power was not granted to an Executive Department. That is, again, a very significant thing. [The framers] might have limited it. But they said, “The executive power shall be vested in a President of the United States”—distinguishing him from all other servants of the Executive Department, and making him the repository of this vast, undefi ned grant of power called “the executive power.” Then they went on to say what that power was—not in any way attempting to classify or enumerate it; but they simply gave its objective, and that was “to take care that the laws be faithfully executed.” It was common sense in the days of the Fathers, when our country was a little one; it is common sense today, when we are the greatest nation in the world; when we have, as I say, 800,000 employees of the State—that the President cannot take care that the laws are faithfully executed, unless he has the power of removal, and the summary power of removal, without any interference or curb upon him. And that has been shown again and again in our history.12

In sum, Beck’s brief and oral argument before the Court in Myers was a paean to the theory of the unitary executive as set out in our book. One could not have asked for a more ringing reaffi rmation of the theory than was provided by the Coolidge administration. At a few points Beck hinted at narrower grounds of decision, but he provided all of the raw material needed to construct a great opinion defending the constitutional basis of the removal power. The majority opinion in Myers was written by Chief Justice William Howard Taft, the former president, over the powerful dissents submitted by Justices Holmes, McReynolds, and Brandeis. The consistency of the refusal by previous presidents to accept congressionally imposed limits on presidential removals played a large role in Chief Justice Taft’s opinion. In light of the opposition offered by Presidents Jackson, Grant, Cleveland, Wilson, and Coolidge, any limits on “the independent power of the President to remove . . . can not be said really to have received the acquiescence of the executive branch of Government,” just as we claim in this book.13 The whole Myers episode is undoubtedly the Coolidge administration’s defi ning moment with

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respect to the theory of the unitary executive, and it can fairly be said that the administration ranks with Andrew Jackson’s and Grover Cleveland’s as one of the staunchest defenders of the president’s removal power. Another major controversy of the Coolidge years came as a result of the administration’s need to address the burgeoning Teapot Dome scandal, which arose when a member of Harding’s cabinet granted oil leases in return for cash and other fi nancial considerations. Coolidge responded by appointing two special prosecutors to try the cases that arose from the scandal: one a Republican, the future Supreme Court justice Owen J. Roberts, and the other a Democrat, Atlee Pomerene. These two individuals were fully removable by Coolidge, although this episode represents the only instance in history in which a special prosecutor was confi rmed by the Senate.14 Roberts and Pomerene ably prosecuted the scandal, with no impairment of Coolidge’s powers of control over the executive branch. Because the special prosecutors came from different political parties, public trust in the government was restored. The prosecution would eventually culminate in the conviction of Secretary of the Interior Albert Fall, who became the fi rst cabinet officer ever sentenced to prison for malfeasance in office. Coolidge’s handling of the Teapot Dome scandal was thus a model of what a strong president with integrity could do to clean up a government scandal that had not happened on his watch. Future presidents might do well to emulate his example of two executive branch coprosecutors, one from each major political party. Unfortunately for Coolidge, Congress was not content to let him prosecute these cases. It also wanted to become involved in the removal of the executive branch officers implicated by the scandal. Indeed, it was the tenacity of the congressional investigation that produced the information that led to the conviction of Secretary Fall. Thus, the Senate debated a series of resolutions calling for the president to demand the resignation of Secretary of the Navy Edwin Denby for his role in the Teapot Dome affair, which consisted solely of Denby’s decision to transfer jurisdiction over the oil reserves to Fall. Although several senators raised the objection that the Senate had no right “to require the President to accede to [the Senate’s demand] and dismiss the man,” the Senate adopted a resolution calling for Denby’s removal by a vote of forty-seven to thirty-four.15 Coolidge rebuffed the Senate resolution, announcing that “no official recognition can be given to the passage of the Senate Resolution relative to their opinion concerning members of the Cabinet or other officer under executive control.”16 Coolidge regarded it “as a vital principle of our Government”

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that “the dismissal of an officer of the Government . . . other than by impeachment, is exclusively an executive function,” supporting his argument by quoting both Cleveland’s statement regarding the Duskin suspension and the seminal statements offered by Madison in the Decision of 1789.17 This annexing of the “opinions of Presidents James Madison and Grover Cleveland” gave a bipartisan ring to Coolidge’s claim of a unilateral presidential removal power.18 Ultimately, despite Coolidge’s support, both Denby and Daugherty resigned because, as Denby indicated, their continuance in the cabinet was proving an embarrassment to the president. While continuing to challenge the constitutionality of the Senate’s resolutions, Coolidge regretfully accepted their resignations for purely prudential reasons, assuring Denby, “You will go with the knowledge that your honesty and integrity have not been impugned.”19 Coolidge responded in a similar fashion to the Senate’s March 12, 1924, resolution calling for an investigation of the Bureau of Internal Revenue. Although Coolidge acknowledged that “whatever may be necessary for the information of the Senate or any of its Committees in order better to enable them to perform their legislative or other constitutional functions ought always to be furnished willingly and expeditiously by any Department,” he complained that “the attack which is being made on the Treasury Department goes beyond any of these legitimate requirements” and threatened to upset the “comity between the Executive departments and the Senate.” Coolidge emphasized that “the constitutional and legal rights of the Senate ought to be maintained at all times. Also the same must be said of the Executive departments. But these rights ought not to be used as a subterfuge to cover unwarranted intrusion. It is the duty of the Executive to resist such intrusion and to bring to the attention of the Senate its serious consequences. That I shall do in this instance.”20 The Coolidge administration also had to defend itself against a special Senate committee investigating Jess W. Smith, a confidant of Attorney General Harry Daugherty; Smith had taken bribes and committed suicide as his transgressions began to come to light. The committee never secured any concrete evidence against Daugherty, who was acquitted in both of his trials (albeit in the second by a single vote). Coolidge stood by Daugherty for a time but became increasingly concerned by the mounting evidence that Daugherty was on the verge of a nervous breakdown. Coolidge eventually demanded Daugherty’s resignation, and after Daugherty somewhat pugnaciously refused to resign, Coolidge summarily dismissed him. This was in essence a presidential removal, and it was to be the most spectacular removal of the Coolidge years.

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The fact that the resignations of Denby and Daugherty precluded further confl ict with Congress over control of the removal power does nothing to dissipate the significance of Coolidge’s opposition to Congress’s action. Particularly when combined with his assertion of control over the so-called independent regulatory agencies, his administration’s opposition to congressional attempts to limit the removal power clearly represents another link in the chain of presidential defenses of the unitary executive. There was another, somewhat idiosyncratic issue during the Coolidge years with respect to the president’s power and duty to take care that the laws be faithfully executed: the enforcement of the Eighteenth Amendment and the Volstead Act of 1919 implementing Prohibition. Ferrell reports, “Curiously, many contemporary and later Americans described Prohibition as the most outrageous example of government intrusion into the social lives of citizens, but in reality, enforcement of Prohibition was so light as to have been virtually nonexistent.” In short, “federal enforcement [of Prohibition] was a joke.” In this regard, Coolidge was no worse than the vast majority of politicians. Members of Coolidge’s cabinet, such as Secretary of State Frank B. Kellogg and Treasury Secretary Andrew W. Mellon, were known to drink illegally, and stories of violations by members of Congress were legion. The states, for their part, “behaved shamelessly,” simply “pass[ing] the task of enforcement to the federal government.” Most political leaders were ambivalent about enforcement. They had only supported Prohibition out of political expediency and were more than happy to abandon it if convenient. As a result, they were content to follow “an exquisitely inattentive course toward enforcement, sensing that Prohibition would either gather support and make itself effective or lose support and go down to defeat.”21 Eventually, the latter would prove to be the case, rendering moot the willingness or lack of willingness to enforce Prohibition. The Coolidge administration also bore witness to the creation of another agency in 1927: the Federal Radio Commission (FRC). The act creating the FRC represented a compromise between the House, which favored a regime in which the commission and the secretary of commerce shared authority, and the Senate, which preferred vesting all of the regulatory responsibilities in an independent agency. The legislation that was ultimately adopted gave the FRC the initial authority to allocate frequencies, set technical standards, and issue licenses. After one year, those responsibilities were to be transferred to the secretary of commerce, after which time the FRC would turn into a part-time appellate body to review the secretary’s decisions. 22 The interim nature of the FRC’s authority raises serious questions as to the commission’s independence. Congress extended the initial division of

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authority through the end of the Coolidge administration by granting a pair of one-year extensions23 and eventually gave the FRC permanent status during the initial year of the Hoover administration. 24 In the wake of the landmark decision in Myers, however, Congress did not even maintain the pretense of including any restrictions on the president’s power to remove commissioners. Finally, the Coolidge years saw Secretary of State Kellogg disavowing the Roosevelt Corollary of the Monroe Doctrine. Ferrell reports that Kellogg stated outright that “the United States had no right to use the Monroe Doctrine to enforce Latin American good behavior.” Kellogg “explained that under the Monroe Doctrine, the rights and interests of the United States were ‘against Europe and not against the Latin Americas.’ The Doctrine ‘is not a lance; it is a shield.’”25 The Coolidge administration thus effected a significant change of direction in U.S. foreign policy. The fact that Coolidge could superintend such a change of course attests to the strength of the president’s authority, not to its weakness. In sum, the Coolidge administration took a wide range of steps to defend the unitariness of the executive, most importantly by litigating and winning the great case of Myers v. United States. There can be no question that an administration which litigated and won Myers did not acquiesce in any diminution of the unitary executive.

31

Herbert Hoover

Herbert Hoover reached the White House after lengthy service as secretary of commerce and labor to Presidents Harding and Coolidge. Although Hoover shared Coolidge’s reticence about interfering with the prerogatives of Congress, that reticence did not stop him from continuing his predecessors’ defense of the president’s authority to execute the law. In fact, his opposition to infringements on the unitariness of the executive branch began long before his inauguration. While a member of the Coolidge administration, Hoover had questioned the constitutional propriety of conferring executive powers upon independent agencies, arguing that “there should be single-headed responsibility in executive and administrative functions.” Hoover elaborated, “The necessarily divided minds of the best board in the world ha[ve] always resulted in failure in executive work. Every member must have a four-way independent responsibility. He is responsible for every act of the board to the country as a whole, to his particular constituency, to his political party and finally to Congress. There is only one responsibility that he does not have and that is to the President of the United States, who, at least under the spirit of the Constitution, should be vested with all administrative authority.”1 Hoover reiterated these views after assuming the presidency. Addressing the problem of departmental reorganization in his fi rst annual message,

273

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Hoover urged that all executive administrative activities should be placed under single-headed responsibility. “Indeed,” Hoover concluded, “these are the fundamental principles upon which our Government was founded, and they are the principles which have been adhered to in the whole development of our business structure, and they are the distillation of the common sense of generations.”2 Consistent with these views, Hoover assumed full responsibility for all executive policies, issuing directives to the ICC regarding passenger rates and railroad consolidation. Hoover’s biographer Martin Fausold reports that Hoover asserted his authority over Andrew Mellon, the strong-willed secretary of the treasury, by ordering Mellon’s department “to publish all large governmental refunds of gift, estate, and income taxes[, which] was an important repudiation of the secretary’s earlier policies.”3 There was no question that Hoover was a hands-on administrator fully in charge of his own administration. Even Congress appears to have concurred in the view that the president should be the head of the administrative system. Following the Supreme Court’s decision in Myers v. United States,4 Congress deliberately omitted any removal restrictions when it replaced the original Federal Power Commission (FPC) with a five-member commission. 5 When asked why the removal provisions fi rst enacted in the Interstate Commerce Act were deleted from the bill, the House sponsor of the legislation replied that such a provision was unnecessary because the Supreme Court had already decided that the president “can remove any public official at any time for malfeasance in office.”6 Hoover again defended the removal power when the Senate “reconsidered” its votes to confi rm three nominees to the FPC because of intervening allegations of corruption. In a statement described by a Senate historian as a “declaration of independence,”7 Hoover denounced the Senate’s action as an attempt “to encroach upon the Executive functions by removal of a duly appointed executive officer under the guise of reconsideration of his nomination.”8 The Senate ignored Hoover’s protestations and, upon reconsideration, reconfi rmed two of the nominees but rejected the nomination of George Otis Smith.9 Congress also considered appropriations legislation that would have withheld salary payments to any officials whose nominations were being reconsidered by the Senate, but it failed to enact them into law.10 In the end, Hoover prevailed when the Supreme Court held that the reconsideration of nominations violated the Senate’s rules, without reaching the constitutional issues surrounding the president’s removal power.11 That said, the struggle between Hoover and the Senate was clearly over control over the FPC.12 And regardless of the basis for the Court’s ruling, the most

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important point for our purposes is that Hoover vigorously opposed the Senate’s attempt to give itself a greater role in removals and defended his authority to control his administration. Hoover did temporarily accede to Congress’s attempt to involve itself in the execution of the laws when he signed the Economy Act of 1932. This act permitted him to reorganize any administrative agency, including the independent regulatory commissions, by executive order.13 Hoover was an avid supporter of executive reorganization. Fausold reports that while Hoover had trouble handling electoral politics, “he was in his element in the world of administration. The Hoover presidency would accommodate twentieth century ideas of executive reorganization and the managerial presidency.”14 Hoover embraced the Progressive vision of expert, nonpolitical administration and sought to make it a reality; he was eager to continue the work begun by Teddy Roosevelt’s Keep Commission and William Howard Taft’s Commission on Economy and Efficiency. His experience reorganizing the Commerce Department under Presidents Harding and Coolidge gave Hoover confidence in his ability to bring the same benefits to the entire executive branch. However, in accordance with Hoover’s suggestions,15 the act provided that executive reorganization orders were subject to a one-house legislative veto, whereby either house could overturn the order by passing a resolution within sixty days of its issuance.16 In fact, when Hoover submitted a series of reorganization proposals to Congress after his defeat in the 1932 elections, the Democratically controlled Congress nullified every one of them, ostensibly to preserve the incoming president’s latitude to effect his own reorganization.17 Hoover’s tolerance for the legislative veto proved to be short lived. Just before leaving office, Hoover vetoed a bill requiring that a joint committee of Congress approve all refunds in excess of $20,000 as an improper infringement of the president’s power to execute the laws.18 As the opinion written by Attorney General William D. Mitchell that Hoover attached to his veto message intoned, “The Constitution of the United States divides the functions of the Government into three great departments—the legislative, the executive, and the judicial—and establishes the principle that they shall be kept separate, and that neither the legislative, executive, nor judicial branch may exercise functions belonging to the others.” The legislative veto provision contained in this legislation, however, “violates this constitutional principle” by “attempt[ing] to entrust to members of the legislative branch, acting ex officio, executive functions in the execution of the law.” Anticipating the bicameralism requirement acknowledged in INS

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v. Chadha,19 Mitchell alternatively argued that even if the approval of tax refunds were regarded as a legislative function, “the proviso in this bill is equally obnoxious to the Constitution because a joint committee has not power to legislate, and legislative power can not be delegated to it.” Mitchell extended this reasoning to criticize the one-house legislative veto contained in the Economy Act of 1932, charging that “the attempt to give to either House of Congress, by action which is not legislation, power to disapprove administrative acts, raises a grave question as to the validity” of that provision as well. Although this one legislative veto provision “may not be important itself,” Mitchell recognized that “the principle at stake [was] vital,” because “to acquiesce in legislation having a tendency to encroach upon the executive authority results in establishing dangerous precedents.” No president since Washington had acquiesced in such encroachments, Mitchell noted, and Hoover would not be the fi rst. 20 Congress apparently acceded to these concerns. When it reenacted the president’s reorganization authority during the closing days of the Hoover administration, Congress again authorized the president to transfer or abolish any executive agency or independent agency, prohibiting only the complete abolishment of a department. In so doing, it discarded the legislative veto provided by the 1932 act, substituting the less restrictive requirement that the reorganization orders lie before Congress for sixty days before becoming active. 21 In addition, Hoover faced the same issue of Prohibition and the faithful execution of the laws faced by his predecessors. By 1931, it appeared there had been a complete breakdown in the enforcement of Prohibition by both the federal government and the states. In stark contrast to Harding and Coolidge, Hoover met this challenge by dutifully attempting to enforce the law. Fausold observes, “The president dealt conscientiously with the issue of prohibition. He increased the number of federal enforcement personnel and upgraded their qualifications. He transferred the federal supervision of prohibition from the Treasury to the Justice Department. He implored states to assume proper concurrent enforcement responsibility. Most important, however, was the president’s appointing the Wickersham Commission of distinguished Americans to critically consider . . . the more effective organization of our agencies of investigation and prosecution.”22 One major question is why Hoover chose to stick with support of Prohibition even when he knew it was not working. Fausold reports, “Hoover’s explanation of his commitment to prohibition, even as it failed during his administration, was his constitutional responsibility as president. The great lawyer Elihu Root told him that the president’s mere suggestion of repeal

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would undermine the enforcement of the amendment in those places where it had been successful. More important, the Constitution provided no role for the president in the amendment process.”23 Other factors in Hoover’s retention of Prohibition were undoubtedly political motivations, his austere Quaker background, and the fact that for Hoover Prohibition was a social ordering device with a noble motive that appealed to his conservative temperament. Thus, it was Hoover’s fate that he would only “fan[ ] the fi res of the prohibition debate among Republicans by standing fi rm on the enforcement of the amendment, even when most Republicans and the vast majority of Americans favored its drastic revision, if not its repeal.”24 Regardless of the political advisability of his position, there can be no doubts as to the faithfulness with which Hoover faithfully executed the laws on Prohibition. Finally, just as the Monroe and Roosevelt administrations had invoked “the executive Power” to formulate U.S. foreign policy, so too did the Hoover administration, and it became known for the Stimson Doctrine, named after Hoover’s eminent secretary of state, Henry L. Stimson, which was directed at the ongoing confl ict between China and Japan. The Stimson Doctrine announced that the United States would not recognize any treaty that was inconsistent with any existing treaties, such as the Kellogg and Nine Power pacts. Vigorous presidential direction of foreign affairs represents another confi rmation of Hoover’s willingness to assert his authority over the execution of federal law. In retrospect, it is clear that Hoover believed in a hierarchical administrative structure for the executive branch, with the president at the top. He had opposed independent agencies prior to becoming president, and in his actions as president he asserted control over the whole of the executive branch. He appears to have prevailed in his battle with Congress over the legislative veto, just as he had prevailed in his confl icts with Congress over the independent agencies and the removal power. Whenever Hoover was confronted with congressional attempts to intrude upon the unitariness of the executive branch, he offered his strong opposition. Even with respect to the nation’s ill-fated experiment with Prohibition, he faithfully discharged his constitutional duty. Therefore, by the end of the Hoover Administration, no president had yet acquiesced in any encroachment upon his sole authority to execute the laws.

32

Franklin Delano Roosevelt

The scope of presidential power exploded during the presidency of Franklin Delano Roosevelt. One of the fi rst critical issues facing FDR when he assumed office on March 4, 1933, was how to deal with the crisis of the Great Depression. What followed was a burst of activity during the fi rst hundred days of his administration that was the quintessence of “executive energy rapidly applied.” Roosevelt augmented his formal legislative program with weekly press conferences and regular national radio addresses, which would later become known as fi reside chats. Although he offered few defi nitive statements on the issue, his aggressive actions to combat the Depression left little doubt that his vision of presidential power was expansive. “The hectic pace of the Hundred Days . . . left many breathless,” as FDR’s biographer George McJimsey points out, but it established Roosevelt’s leadership and put the presidency in the spotlight, where he wanted it to be. Franklin Roosevelt’s presidency was to demonstrate “the indispensable ingredient of political leadership.”1 By mobilizing the country, FDR greatly augmented his power and placed the presidency at center stage in national politics. In the process, Roosevelt pioneered a revolutionary new vision of administration that rejected the vision of the Progressive movement, which idealized expert administrators who were insulated from politics. Instead, FDR envisioned a more pluralist vision of administration, in which “the key to

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effective administration was less its expertise than its ability to connect with the public.”2 His goal was to make administration more political, rather than less. The primacy of politics over technocracy is evident in FDR’s decision to employ a special session of Congress rather than a series of executive orders as the vehicle for implementing the fi rst hundred days, which Barry Karl, a major student of administrative history, regards as “perhaps the most crucial decision of Roosevelt’s presidency and the most characteristic.”3 Leonard White, whose works we have constantly relied on in this book, was another administrative law scholar inspired by FDR’s radically new approach to problems of public administration. Under this new vision, the ideal administrators are “permanent officials . . . who are able by their personal leadership to mediate between the technician, the politician, and the public.”4 The administrative structure that Roosevelt used to carry out his pluralist vision was chaotic. Roosevelt often set up administrators in competition with one another in contrivances that “baffled his contemporaries and puzzled scholars, who came up with the term ‘competitive bureaucracy’ to describe his work.” Roosevelt’s administrative systems worked well by encouraging subordinates to compete with one another to solve the problems he had put before them. McJimsey contends that Roosevelt was something of an administrative genius, and this pluralist approach to administration, coupled with his keen eye for picking able subordinates, allowed him to get a great deal done. At the same time, the open structure of the administration allowed him to keep “the power of decision for himself. One searches the record of Roosevelt’s presidency in vain to find a major issue that ‘got away’ from him. The failures of his presidency resulted from bad judgment, not inattention.” McJimsey reports, “Even by the end of his second term, there had developed a kind of celebration of executive leadership and government by administration,” such that “bureaucracy seemed the wave of the future” and the task of the president “was to employ pluralistic methods to make bureaucracy an instrument of democracy.” In the end, however, Roosevelt was never to “create a political-administrative structure that would securely and predictably achieve his vision.” His administrative style remained susceptible to all of the classic vulnerabilities and complexities of pluralism. Mobilizing citizen constituencies often simply provided them with the opportunity to redirect government resources toward their own purposes. Roosevelt might receive low marks for rational management and political maneuvering in administration, but he kept a steady flow of information and options that allowed him always to reserve the power of decision for himself. 5 Roosevelt wasted little time in centralizing his control over the execution of the laws. During the opening months of his administration, Roosevelt

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issued an executive order transferring all of the government’s legal authority to the Justice Department.6 As we will subsequently discuss at some length, Roosevelt also transferred the Bureau of the Budget from the Treasury Department to the newly created Executive Office of the President, so that it could become the president’s principal means for asserting his control over the entire executive branch. This should be highly significant to those scholars who wrongly think the Treasury Department was some kind of a congressionally run department. Here, FDR moved the Bureau of the Budget from Treasury to the White House staff itself. Accordingly, Roosevelt directed the bureau to keep him informed about the various agencies’ activities, to advise the agencies on administrative organization and practice, and to review agencies’ substantive policy proposals and congressional testimony.7 These moves were of monumental importance in increasing presidential control over the administration of the law. Both the Bureau of the Budget and the Justice Department were to become key agencies by which the president controlled the executive branch. “During World War II, [the Bureau of the Budget] grew dramatically—with its staff increasing from forty to six hundred—and it assumed broader authority granted by both executive orders and legislative delegation.”8 Roosevelt also issued a series of executive orders banning racial discrimination in government procurement. As Frank Cross has observed, in so doing Roosevelt “issued a direct order to members of the executive branch regarding their administration of federal law.”9 The initial order, which required that a specific nondiscrimination provision be included in all defense contracts, was somewhat vague as to its legal basis, citing “the authority vested in [the president] by the Constitution and the statutes.”10 Although a later order allowing this provision to be incorporated by reference relied on other grounds,11 Roosevelt’s third and fi nal nondiscrimination order, which extended the requirement to all government contracts, again invoked his authority under “the authority vested in [the president] by the Constitution and the statutes,” as well his power as commander in chief.12 As one observer has noted, “Even the most adventuresome commentators have been unable to unearth the statutes upon which President Roosevelt claimed to have based his antidiscrimination orders.”13 It thus seems clear that FDR based these executive orders on the constitutional authority conferred upon him by Article II.14 Following Pearl Harbor, FDR also employed executive orders to initiate the internment of Japanese Americans residing in the western United States. The fi rst of these orders, Executive Order 9066 (issued February 19, 1942) invoked Roosevelt’s authority “as President of the United States, and

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Commander in Chief of the Army and Navy” to give the secretary of war and his delegates the authority to establish military areas and to exclude any and all persons from those areas.15 On March 2 and 16, the commander of the Western Defense Command, General J. L. DeWitt, issued public proclamations declaring California, Washington, Oregon, Idaho, Montana, Nevada, Utah, and portions of Arizona to be military areas and requiring Japanese, German, and Italian nationals as well as any person of Japanese ancestry residing in the area who moved residence to fi le a “Change of Residence Notice.”16 Simultaneous with the promulgation of the second of these public proclamations, Roosevelt issued Executive Order 9102, which established the War Relocation Authority and charged it to develop and implement the removal and relocation of persons designated under Executive Order 9066.17 On March 21, Congress followed a practice similar to the one it followed after Lincoln unilaterally suspended the writ of habeas corpus and blockaded Southern ports, by enacting legislation providing that anyone violating the program established by Executive Order 9066 was guilty of a misdemeanor and subject to fi nes and imprisonment.18 Three days later, DeWitt issued the fi rst in the series of Civilian Exclusion Orders that established the internment program and also issued a third public proclamation, which imposed a curfew on all Japanese, German, and Italian nationals and all persons of Japanese descent.19 When the constitutionality of the curfew program was challenged in Hirabayashi v. United States, the Supreme Court concluded, “We have no occasion to consider whether the President, acting alone, could lawfully have made the curfew order in question, or have authorized others to make it. For the President’s action has the support of the Act of Congress, and we are immediately concerned with the question whether it is within the constitutional power of the national government, through the joint action of Congress and the Executive, to impose this restriction as an emergency war measure.”20 The Court adopted similar reasoning when rejecting a constitutional challenge to the internment program in Korematsu v. United States. 21 That said, the predominantly presidential character of the curfew and internment programs is underscored by the fact that the proclamations and orders implementing those programs refer solely to the authority of Executive Order 9066, without mentioning congressional authorization. Moreover, although the Supreme Court construed the statute as ratifying Executive Order 9066, the fact that the legislative history of the act “stated explicitly that its purpose was to provide means for the enforcement of orders issued under Executive Order No. 9066” means that the statute can be read as being purely remedial and that the authority for the substance of

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these programs derived exclusively from the president. 22 In any event, at the time the initial executive order was issued, it represented, in the words of Greg Robinson’s landmark analysis of the internment, “an unprecedented assertion of executive power.”23 As the last few paragraphs demonstrate, Roosevelt overcame his initial reluctance to issue executive orders and ultimately ended up “issu[ing] far more orders than any other President.”24 It was also during his tenure that the Federal Register Act regularized the promulgation and publication of executive orders and proclamations. 25 Roosevelt also issued more presidential signing statements than all of his predecessors combined, although most of these statements were rhetorical. 26 When he signed the Emergency Price Control Act of 1942, 27 FDR demanded that a provision he thought was unconstitutional be removed or, he said, he would treat it as a nullity. Roosevelt bluntly stated, “In the event that the Congress should fail to act, and act adequately, I shall accept the responsibility, and I will act.”28 Further confl ict was averted when Congress acceded to Roosevelt’s wishes and repealed the offending provision.29 Roosevelt also rebuffed congressional attempts to interfere directly with the execution of the laws. On May 19, 1937, Congress passed a joint resolution to establish a commission to control the United States’ participation in the 1939 New York World’s Fair because the commission was composed of six members of Congress and three cabinet members. Roosevelt vetoed the legislation, citing an attorney general opinion concluding that permitting a commission composed largely of members of Congress to appoint executive staff and to administer public expenditures constituted “an unconstitutional invasion of the province of the executive.”30 Four years later, Roosevelt reacted strongly when the House Un-American Activities Committee attempted to force the president to remove three “crackpot, radical bureaucrats” it believed were unfit for continued government employment31 when it attached a rider to the Urgent Deficiency Appropriation Act prohibiting the use of federal funds to pay their salaries.32 (The list of supposed subversives was pared down from an initial list that was thirty-nine names long.)33 The House debated for two months over the propriety of using its control of appropriations to effect a removal, but in the end voted 318 to 62 in favor of the rider. The Senate initially objected to the rider but fi nally yielded to the House’s intransigence by a vote of forty-eight to thirty-two. 34 Given the importance of the supplemental appropriations provided under the bill, Roosevelt had little choice but to sign it. He nonetheless issued a signing statement condemning the rider as “not only unwise and discriminatory, but unconstitutional.” Since “this rider is

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an unwarranted encroachment upon the authority of both the executive and judicial branches,” Roosevelt concluded that “it is not, in my judgment, binding upon them.”35 Not wanting to dignify Congress’s intrusion upon his removal power any further, Roosevelt declined to submit these officials’ names for confi rmation as suggested by the rider. The disbursing officers stopped paying them, however, and within six months all three had left government service. Moreover, when the three affected officials brought an action in the Court of Claims complaining, among other things, that the rider “attempts to effect legislative removal of plaintiff, and is therefore an unconstitutional encroachment on executive power,”36 Attorney General Francis Biddle declined to defend the constitutionality of the statute, and Congress was forced to employ special counsel to argue its position. 37 The Court of Claims sided with the officials, resolving the case on nonconstitutional grounds. The suit would not ultimately be resolved until the Truman administration, when the Supreme Court issued its decision in United States v. Lovett. 38 The prolonged nature of the proceedings should not obscure the fact that the Roosevelt administration strongly defended the president’s power to remove throughout the litigation. Roosevelt also asserted his control over the independent agencies as well as the executive departments. Despite the fact that the Water Power Act clearly provided that after the president had designated the fi rst chairman of the Federal Power Commission the commission would select its own chairman, Roosevelt successfully pressured George Otis Smith into resigning, thus ending the tenure of the official whom Hoover had so staunchly defended during the Senate’s attempt to reconsider his confi rmation. Roosevelt designated Frank R. McNinch as Smith’s successor in order to make the FPC fully responsive to his policies. Roosevelt further dominated the FPC when he instructed it to cooperate with other branches of the executive department. Moreover, just as Congress did not include any restrictions on presidential removals when it created the FPC in 1927, it also failed to include any such restrictions when it created the Securities and Exchange Commission39 and the Federal Communications Commission.40 Apparently, with one minor exception,41 in the aftermath of the Supreme Court’s decision in Myers,42 Congress did not believe that such restrictions were worth the effort. Franklin Roosevelt’s most important assertion of control over an independent agency came with his attempted removal of the notorious, right-wing Federal Trade Commission chairman, William E. Humphrey. Humphrey refused several requests from Roosevelt that he resign. As FDR

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The Administrative State, 1889–1945

said in the fi nal such request, “You will, I know, realize that I do not feel that your mind and my mind go along together on either the policies or the administering of the Federal Trade Commission, and, frankly, I think it is best for the people of this country that I should have a full confidence.”43 When Humphrey still refused Roosevelt’s request that he resign, FDR fi nally informed him on October 7, 1933, that “effective as of this date you are hereby removed from the office of Commissioner of the Federal Trade Commission.”44 Roosevelt’s summary removal of Humphrey made clear that the Roosevelt administration had no doubts as to the president’s power to remove any official exercising executive authority. Evidently, Congress agreed, offering not a single word of protest to Roosevelt’s actions, and the Senate confi rmed Humphrey’s replacement without incident. The reactionary Humphrey would not go quietly, however. He sued for his salary, and his lawsuit was litigated after his death by his executor, Samuel F. Rathbun, all the way up to the Supreme Court. The Roosevelt administration briefed and argued Humphrey’s Executor, taking a very strong pro-unitary executive line. The administration devoted the bulk of its brief to the argument that under Shurtleff the statute did not place any limits on the president’s removal power as a matter of statutory construction. Relying heavily on the Supreme Court’s sweeping opinion in Myers, the brief argued in the alternative that to the extent the statute did purport to restrict the president’s removal power, the restrictions in the FTC Act constituted “a substantial interference with the constitutional duty of the President to ‘take care that the laws be faithfully executed’” and that the legislative and quasi-judicial functions performed by the FTC did not differ in nature from those performed by the regular executive departments.45 The administration reinforced its basic points in its oral arguments. First, the administration argued that the removal provisions of the FTC Act were identical to the removal provisions held in Shurtleff not to impose any restrictions on the president’s power to remove.46 The administration bolstered its argument by noting that in 1908, five years after Shurtleff was decided, Congress had amended the statute at issue in Shurtleff so that it would clearly state that general appraisers could be removed for “inefficiency, neglect of duty, or malfeasance in office ‘and no other cause.’”47 Congress had extended similar protection to six other minor offices.48 These amendments provided the clear statement that Shurtleff held was necessary before a statute would be construed as limiting the removal power. The failure to include the words “and no other cause” in the FTC Act meant that under Shurtleff the FTC Act should not be construed as interfering with the president’s generalized power of removal. The administration relied here upon the following statement of

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Chief Justice Taft in Myers: “Since the provision for an Interstate Commerce Commission, in 1887, many administrative boards have been created whose members are appointed by the President, by and with the advice and consent of the Senate, and in the statutes creating them have been provisions for the removal of the members for specified causes. Such provisions are claimed to be inconsistent with the independent power of removal by the President. This, however, is shown to be unfounded by the case of Shurtleff v. United States. . . . [Shurtleff’s reasoning] is an indication that many of the statutes cited are to be reconciled to the unrestricted power of the president to remove, if he chooses to exercise his power.”49 The administration was thus on strong ground in contending that, under the construction given in Shurtleff to statutory language identical to that contained in the FTC Act, federal trade commissioners could be removed at will. 50 The administration’s second argument in its brief and oral argument was that if the FTC Act were read as restricting Roosevelt’s authority to dismiss Humphrey, then the act was unconstitutional under Myers. This was a relatively straightforward application of Myers, a mere nine years after that great case had been decided. The Supreme Court ruled unanimously against the Roosevelt administration in a fourteen-page opinion that confi ned Myers to purely executive agencies, of which the Court said the FTC was not one. Justice Sutherland, writing for the Court, distinguished Shurtleff by noting that the statute at issue in that case did not provide for a specific term of years for general appraisers. The holding in Shurtleff that general appraisers were removable at will was thus driven by the fear that had the Court decided otherwise, general appraisers would enjoy what amounted to life tenure. Such concerns would not arise, however, with respect to the FTC Act, which combined a provision stating that an official could only be removed for cause with a provision limiting that official’s term of office to a specified term of years. When that was the case, the Court deemed it more appropriate to presume that the relevant officials were entitled to hold their offices for the entire statutory term unless they were removed for cause. 51 This limitation of Shurtleff seems highly suspect. It is especially strained as an interpretation of congressional intent underlying the FTC Act, because when that act was enacted in 1914, the 1903 decision in Shurtleff suggested that the mere presence alone of for-cause removal provisions did not deprive the president of his general power to remove at will. The second part of Humphrey’s Executor, distinguishing Myers, was even more remarkable. Here the Court distinguished Myers as applying only to purely executive branch offices like that of a fi rst-class postmaster. The FTC,

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according to Justice Sutherland, was not a purely executive entity, because it also exercised quasi-legislative and quasi-judicial functions. Such entities could be insulated, according to the Court, from presidential exercises of the removal power, and the Court promised in future cases to explain which entities were purely executive and governed by Myers and which were quasilegislative and quasi-judicial and governed by Humphrey’s Executor. 52 All in all, Humphrey’s Executor was a surprising repudiation of the decision nine years earlier in Myers and thirty-two years earlier in Shurtleff. It seems inconceivable that either the Myers or the Shurtleff Court would have decided Humphrey’s Executor the same way. Indeed, the confusion sown by Humphrey’s Executor is evident in the comments at oral argument in Isbrandtsen-Moller Co. v. United States53 by Justice Sutherland, who wrote Humphrey’s Executor despite having joined the majority in Myers and having written the formalist opinion in Springer v. Philippine Islands:54 Mr. James W. Ryan . . . was urging upon the Court the argument . . . that the United States Shipping Board could not constitutionally be put by executive order or by act of Congress in the executive branch. The Shipping Board, he argued, was not an “executive” agency and could not be an “executive” agency because it was not in the executive branch of the government. Justice Sutherland, who had been sitting back in his chair . . . leaned forward quickly when he heard this. “Did you say that the Shipping Board was not in the executive branch of the government?” He spoke as though he did not believe he had heard correctly, and several other Justices smiled condescendingly at counsel as though he were making a farfetched proposal. “Yes, your Honor,” Mr. Ryan replied. “What makes you think that? Where do you fi nd any legal basis for such a conclusion?” the Justice wished to know. “Why, in your Honor’s opinion in the Humphrey case, this Court held that the Federal Trade Commission and similar regulatory agencies were not in the executive branch of the government. The Shipping Board fell within the same general category as the Federal Trade Commission and the Interstate Commerce Commission.” Mr. Ryan then proceeded to read certain portions of that opinion. “What branch of the Government do you think the Shipping Board was in, if it was not in the executive branch?” the Justice wanted to know. “In the legislative branch, your Honor.” Justice Sutherland shook his head, as though he disagreed, and seemed to be thinking the question over as the discussion went on to other points. 55

The most likely explanation is that Humphrey’s Executor represents another example of the hostility toward the Roosevelt administration exhibited by

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many Supreme Court decisions of that period. For our purposes, the Supreme Court’s rejection of the administration’s arguments is beside the point; what matters is that the administration defended the unitary executive with sufficient vigor to foreclose any claim of presidential acquiescence. Naturally, Congress’s interest in imposing removal restrictions revived after Humphrey’s Executor. After the announcement of that decision, Congress subsequently included removal restrictions in the legislation establishing the National Labor Relations Board, 56 the U.S. Maritime Commission, 57 and the Civil Aeronautics Board. 58 In addition, the legislation that removed the treasury secretary and the comptroller of the currency from the Federal Reserve Board imposed removal restrictions on the board for the fi rst time. 59 The enactment histories of these bills underscore the importance of the Supreme Court’s decision. The initial version of the National Labor Relations Act did not include any removal restrictions, and Congress ignored the issue until after the issuance of the opinion in Humphrey’s Executor. The Senate specifically postponed consideration of a proposal to impose removal restrictions on the Federal Reserve Board pending the Supreme Court’s resolution of the issue. In return for the loss of presidential control represented by these changes, the president gained the right to designate the governor of the Federal Reserve Board as well as the power to remove him from the governorship at pleasure. The debates regarding the Civil Aeronautics Board are perhaps the most revealing of all. A number of legislators, including the future president Harry S Truman, objected that executive duties could not be given to a body that was independent of presidential direction.60 Although their efforts were initially unsuccessful, they eventually prevailed when Roosevelt used his reorganization power to consolidate the Civil Aeronautics Board back into the Commerce Department.61 Roosevelt regarded his defeat in Humphrey’s Executor as a personal affront. Even more important, it threatened his ability to coordinate the execution of the law. His subsequent conduct reveals that the decision did not alter his belief in the president’s power to remove independent regulatory commissioners. In March of 1938, despite the belief of many in Congress that the Tennessee Valley Authority Act shielded TVA board members from presidential removal,62 Roosevelt removed Arthur E. Morgan as TVA chairman after Morgan questioned the integrity of his fellow board members and insisted that he was answerable only to Congress. Although Roosevelt conceded that “obviously the Congress has full power of investigation,” Morgan’s claim that he was not answerable to the president contradicted the provision of “the Constitution of the United States declar[ing] that ‘the executive power shall be vested in a President of the United States.’” Roosevelt also relied on

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The Administrative State, 1889–1945

the Take Care Clause, contending that “it would violate my constitutional duty to take care that the laws are faithfully executed if I should leave unsupported charges hanging indefinitely over the heads of two officials who have cooperated in the difficult task of divided authority and thereby permit a recalcitrant non-cooperative official further freedom to sabotage Government operations at a crucial time.”63 Roosevelt also drew support from an attorney general opinion concluding that Morgan could be removed under Myers and Humphrey’s Executor because the TVA was neither quasi-legislative nor quasi-judicial and because the TVA Act did not disclose any congressional intent to restrict the removal of TVA board members.64 Therefore, Roosevelt consistently asserted his constitutional authority to control the independent agencies and remove their members even in the face of judicial authority to the contrary. This time, however, the courts would uphold Roosevelt’s actions on the grounds that the TVA Act did not satisfy Shurtleff’s requirement that Congress must employ clear and explicit language before courts will construe a statute to limit the president’s power of removal.65 With respect to the civil service, during the Roosevelt administration the courts continued to rule that the Civil Service Act did not interfere with the president’s power to remove.66 This simple analysis is complicated somewhat by the enactment of the Veterans’ Preference Act of 1944, which provided veterans with preferred access to federal employment. It also provided for expanded procedural safeguards with respect to removal, requiring that removals be made in writing with a chance to reply and, most important, giving veterans the right to appeal adverse actions to the Civil Service Commission.67 Although some have suggested that the act provided the impetus for more searching judicial scrutiny of the substance of removal decisions,68 such a conclusion is belied by the fact that the act employed the same standard for dismissal as the Lloyd–La Follette Act, which had consistently been recognized as not placing any substantive limits on the removal power. The legislative history of the Veterans’ Preference Act gave no indication that Congress intended to adopt a different standard.69 As a result, after the enactment of the Veterans’ Preference Act, courts continued to limit their review to procedural compliance and decline to review the underlying substance.70 Courts would subsequently hold that insubordination represented sufficient cause under the act to justify removal.71 Since the freedom to discharge officers who fail to carry out the president’s instructions is the very essence of the removal power, the Veterans’ Preference Act appears to be completely consistent with the unitary executive. These considerations suggest that the additional protections provided by the act were driven by a

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desire to help returning veterans reintegrate into society rather than a desire to limit executive discretion over removals.72 Finally, Roosevelt intermittently resisted Congress’s attempt to encroach upon the president’s executive authority through the use of the legislative veto. At various points during his tenure, Roosevelt signed legislation containing legislative vetoes without entering any objections to the practice.73 However, when facing the legislative veto provision in the Lend-Lease Act,74 Roosevelt entered his constitutional objections in an unpublished legal opinion entrusted to the care of Attorney General Robert H. Jackson, a future Supreme Court justice.75 Roosevelt offered a more public protest when confronted with legislation requiring that all naval real estate acquisitions be submitted to the Naval Affairs Committees for approval.76 He warned that permitting such committee vetoes would “disregard principles basic to our form of government.” Although Roosevelt signed the bill, he took the view that “efficient and economical administration can be achieved only by vesting authority to carry out the laws in an independent executive and not in legislative committees. This act, in my opinion, impinges deeply upon this fundamental principle of good government embodied in the Constitution.”77 Thus, while Roosevelt’s opposition to the legislative veto was not absolute, when one views it in the light of his centralization of control over the executive branch, his drive to dominate the independent agencies, his defenses of the removal power, and his veto of the 1937 New York World’s Fair Commission, it becomes clear that Roosevelt offered strong enough resistance to Congress’s attempts to invade the province of the presidency to foreclose any inference of acquiescence. At times, such as in his signing of the Lend-Lease Act discussed above and in the debates surrounding the Reorganization Act of 1939 discussed in the ensuing Case Study 3, political necessity forced Roosevelt to blunt the force of his constitutional objections. Nonetheless, such practical concessions do not properly form the basis for inferring presidential capitulation to deviations from the unitary executive for the purposes of coordinate construction. Equally important is the manner in which FDR transformed the presidency as an institution. He was the quintessential activist president, and the American people would forever after view the presidency in a different light. Although later presidents would expand presidential authority still further, as McJimsey notes, “Roosevelt started the momentum.”78 Indeed, his views on presidential power became even more expansive following the onset of World War II. Roosevelt followed Lincoln’s example and adopted a prerogative theory of the presidency in which the president could act without specific authorizing legislation during times of emergency. As we noted

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The Administrative State, 1889–1945

earlier, he had warned in January 1942 that should Congress fail to remove a statutory provision in the Emergency Price Control Act that he felt was constitutional, he was willing to act without legislative authorization and accept the responsibility. Later that year, he again admonished Congress to take action to stabilize prices, warning that if Congress failed to take the action desired, he would have to take action under the president’s emergency war powers.79

case study

3

The Brownlow Committee and the Reorganization Act of 1939

The event during the Roosevelt administration with the greatest significance for the unitary executive was the debate over the Brownlow Committee’s proposal to reorganize the executive branch, which, as Elena Kagan has pointed out, “established the infrastructure underlying all subsequent attempts by the White House to supervise administrative policy.”1 When Roosevelt announced his intention to reorganize the executive branch in January 1937, few expected that he would face significant opposition. Politically, Roosevelt seemed almost invincible. His recent Electoral College landslide appeared to be a ringing endorsement of both his leadership and his New Deal policies. By 1937, the need for executive reorganization was also apparent. The explosion of agencies spawned by the New Deal, driven in large part by Roosevelt’s own improvisational style of management, had made an already unwieldy executive branch virtually unmanageable. Despite his desire to make broader use of his reorganization authority under the 1933 act during his fi rst term, concerns about the economy made it impossible for FDR to focus his attention on the task. Consequently, he was only able to use the power sparingly before it expired on March 3, 1935, submitting just twenty-seven reorganization orders consolidating a number of agencies. 2 This relative inattention did not reflect lack of interest. Roosevelt feared that the bureaucrats were combining with key members

291

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The Administrative State, 1889–1945

of Congress to pursue their own ambitions by catering to special interest groups to the detriment of national policy. In order to address these concerns, Roosevelt created a Committee on Administrative Management, commonly known as the Brownlow Committee, to develop a new proposal to reorganize the executive branch, 3 while also encouraging both Houses of Congress to establish Select Committees on Government.4 Consisting of “distinguished political scientists and public administrators,”5 the Brownlow Committee commenced its work in 1936. After nearly a year of intensive analysis and the active input of Roosevelt, the Brownlow Committee issued its recommendations on January 8, 1937. Laying out a vision aptly described as “Jacksonian,”6 the committee’s report, in the words of one commentator, sounded “a clarion call for exclusive presidential control of government reorganization.”7 As the report observed: It was . . . not by accident but by deliberate design that the founding fathers set the American Executive in the Constitution on a solid foundation. Sad experience under the Articles of Confederation, with an almost headless Government and committee management, had brought the American Republic to the edge of ruin. . . . Consequently, there was grim purpose in resolutely providing for a Presidency which was to be a national office. The President is indeed the one and only national officer representative of the entire nation. There was hesitation on the part of some timid souls in providing the President with [the powers enumerated in the Constitution]. . . . But this reluctance was overcome in the face of need and a democratic executive established. 8

Only by adhering to this vision of “a responsible and effective chief executive as the center of energy, direction, and administrative management” could the benefits of a strong and vigorous President be preserved. Accordingly, the Brownlow Committee defi ned its purpose as investigating and reporting on “the organization of the duties imposed upon the President in exercising the executive power vested in him by the Constitution of the United States” so that the president could better fulfi ll his role as “Chief Executive and administrator within the Federal system and service.”9 As George McJimsey notes, “The plan was designed for a ‘strong’ president who could master political situations but would need strong management tools to follow through.”10 Four of the report’s various recommendations had particularly strong implications for the unitariness of the executive branch. First, the report recommended that the White House staff and the Bureau of the Budget be expanded so that they could provide better coordination of the execution of

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the laws. In particular, the report envisioned that the Bureau of the Budget could serve as a central clearinghouse for all administrative policies, departmental regulations, and legislative proposals.11 Second, the report recommended that the independent agencies be integrated into the executive departments. The independent agencies, the report concluded, were inconsistent with the principle of the separation of powers. In particular, the Article II Vesting Clause, in conjunction with the Take Care Clause and the other sections of the Constitution, “places in the President, and in the President alone, the whole executive power of the Government of the United States.” Consistent with this vision, the early practice was to place all executive officials in departments, all of which were “directly under the President in accordance with the constitutional principle of separation of powers.” Independent agencies, however, possessed wide power to execute the laws without being subject to executive or even legislative supervision, effectively “leav[ing] the President with responsibility without power. Placed by the Constitution at the head of a unified and centralized Executive Branch, and charged with the duty to see that the laws are faithfully executed, he must detour around powerful administrative agencies which are in no way subject to his authority and which are, therefore, both actual and potential obstructions to his effective over-all management of national administration.” Calling these agencies more “irresponsible” than “independent,” the report warned that “power without responsibility has no place in a government based on the theory of democratic control, for responsibility is the people’s only weapon, their only insurance against abuse of power.” As such, the independent agencies had become “a headless ‘fourth branch’ of government, a haphazard deposit of irresponsible agencies and uncoordinated powers” that did “violence to the basic theory of the American Constitution that there should be three major branches of the Government.” Moreover, “The multiplication of these [independent regulatory] agencies cannot fail to obstruct the effective over-all management of the Executive Branch of the Government. . . . Every bit of executive and administrative authority which [independent regulatory agencies] enjoy means a relative weakening of the President, in whom, according to the Constitution, ‘the executive Power shall be vested.’ As they grow in number his stature is bound to diminish. He will no longer in reality be the Executive, but only one of many executives, threading his way around obstacles which he has no power to overcome.”12 The problems posed by the independent agencies were more than just theoretical: “Not only by constitutional theory, but by the steady and mounting insistence of public opinion, the President is held responsible for the wise

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The Administrative State, 1889–1945

and efficient management of the Executive Branch of the Government. The people look to him for leadership.” However, independent agencies were increasingly “vested with duties of administration and policy determination with respect to which they ought to be clearly and effectively responsible to the President.” Therefore, the report concluded, the government should return to the department-based organization of 1789 by incorporating all the various independent agencies into an executive department.13 Third, reiterating the concerns that had led President Woodrow Wilson to veto the original Budget and Accounting Act, the report condemned the combination of legislative and executive functions in the comptroller general. The committee acknowledged that “to establish strict accountability of the Executive Branch for the faithful execution of the laws enacted by the Congress, there must be an independent audit of fi nancial transactions by an independent officer reporting directly to the Congress who does not exercise any executive authority.” Separation-of-powers principles nonetheless required a clear segregation of legislative and executive responsibilities. “The general theory underlying the Constitution is that the Congress shall be responsible for the determination and approval of the fiscal policies of the Nation and that the Executive shall be responsible for their faithful execution. . . . The Congress, as representative of the people, enacts the laws; the duty of executing them is placed by the Constitution on the President.” In support of this conclusion, the report quoted President Wilson’s May 13, 1920, veto message objecting to a previous congressional attempt to control federal expenditures after enactment of the relevant appropriations act.14 The comptroller general, however, was “inconsistent with Executive responsibility and efficient administration” because the settlement of accounts and the supervision of administrative accounting systems are executive functions; under the Constitution they belong to the Executive Branch of the Government.” When the comptroller general exercises his executive authority to control expenditures, settle accounts and claims, and prescribe administrative accounting systems outside presidential direction, “he is improperly removed from any executive direction and responsibility,” and the president is “depriv[ed] . . . of [the] essential power needed to discharge his major executive responsibility.” Therefore, “the vesting of such authority in an officer independent of direct responsibility to the President for his acts, is clearly in violation of the constitutional principle of the division of authority between the Legislative and Executive Branches of the Government.” The Brownlow Committee also maintained that “the removal from the Executive of the fi nal authority to determine the uses of appropriations, conditions of employment, the letting of contracts, and the

Brownlow Committee and Reorganization Act

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control over administrative decisions, as well as the prescribing of accounting procedures and the vesting of such authority in an officer independent of direct responsibility to the President for his acts” violated the Take Care Clause as well. Returning the executive functions exercised by the comptroller general to the Treasury Department would bring the federal government back into line with the unitary structure erected by the framers. Doing so would also avoid the practical problem of permitting a public officer to audit his own accounts, fi nancial acts, and decisions, a situation inconsistent with sound management and accounting principles.15 Fourth, and fi nally for our purposes, to accomplish all of these goals and to guard against the emergence of similar problems in the future, the report suggested that the president have continuing responsibility for reorganization. The report also recommended that the White House staff be enlarged, that the civil service be expanded to cover more federal employees, and that a National Resources Planning Board and Departments of Social Welfare and of Public Works be created.16 Roosevelt warmly endorsed the Brownlow Report and its historic espousal of the unitariness of the executive branch in his message transmitting the report to Congress on January 12, 1937, calling it “a great document of permanent importance.” Referring to himself “as one on whom . . . the constitutional responsibility for the whole of the Executive Branch of the Government has lain,” Roosevelt called on Congress to return to the structure of “the Executive Branch as it is established under the Constitution.” Roosevelt similarly noted later in this message, “The Presidency was established as a single, strong Chief Executive office in which was vested the entire executive power of the National Government. . . . What I am placing before you is the request not for more power, but for the tools of management and the authority to distribute the work so that the President can effectively discharge those powers which the Constitution now places upon him. Unless we are prepared to abandon this important part of the Constitution, we must equip the President with authority commensurate with his responsibilities under the Constitution.”17 In particular, Roosevelt agreed with the committee’s view that the independent agencies had become a “‘fourth branch’ of the government for which there is no sanction in the Constitution” and which had begun to “defeat the Constitutional intent that there be a single responsible Chief Executive to coordinate and manage the departments and activities in accordance with the laws enacted by Congress.” Therefore, Roosevelt specifi cally embraced the report’s recommendation that the independent agencies be consolidated into the executive departments.18

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The Administrative State, 1889–1945

Roosevelt also adopted the report’s condemnation of the office of the comptroller general as an “unconstitutional assumption of Executive power.” Roosevelt observed, “The Presidency was established as a single, strong Chief Executive office in which was vested the entire Executive power of the national Government, even as the legislative power was placed in the Congress and the judicial in the Supreme Court and inferior courts.” Permitting an officer who was primarily accountable to Congress to exercise part of that power was inconsistent with the Constitution.19 If Congress were to centralize the executive power in the president, Congress would not be giving the President an undue amount of power: it would do nothing more than “go[ ] back to the Constitution” and return to what the framers intended. Therefore, Roosevelt called upon Congress to give its immediate and expeditious consideration to the Brownlow Committee’s report and even called a special session of Congress during the usual recess period between November 1937 and January 1938 so that the reorganization bill and other key pieces of legislation could receive more rapid consideration. 20 At fi rst the reorganization proposal faced little opposition. The House acted fi rst, passing by wide margins bills providing for the additional White House staff recommended by the committee and restoring the president’s reorganization authority. 21 As Roosevelt requested, the House bill did not include a legislative veto provision, requiring only that the reorganization orders lie before Congress for sixty days. 22 The House bill failed to accommodate the president’s request that all agencies be subject to the reorganization authority, exempting the independent agencies as well as four other agencies. 23 McJimsey notes, “Conservatives disliked the proposal to do away with the office of comptroller general, which, in the hands of a Republican appointee, had held up various New Deal projects.”24 The debate began to heat up when the Senate considered all of the Brownlow Committee’s recommendations as one bill. 25 Coming out of committee, the Senate version, like the House version, exempted the independent agencies from the president’s reorganization authority and made no provision for a legislative veto. 26 The Senate rejected a floor amendment to reinstate the legislative veto27 and voted on four separate amendments to add to this list, as Senators from various states banded together in an attempt to shield their pet programs from the president’s reorganization power. These amendments all failed, with the closest calls being two tie votes on Senator Bennett Champ Clark’s amendments to exempt the Veterans Administration. After the failure of these amendments, Clark and his supporters recognized there was little chance of attaching any additional exemptions to the bill, and he

Brownlow Committee and Reorganization Act

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allowed his amendments to exempt fourteen other agencies to be rejected by voice votes with virtually no debate. 28 Although the bill passed the Senate by a surprisingly close vote of fortynine to forty-two, a procedural blunder prevented the floor manager from substituting the House bill so that it could go to conference. The unanimous consent decree which closed debate provided that no further amendments would be allowed after three o’clock on March 28, 1938, and that after voting on the pending amendments, “the Senate shall proceed to vote upon the bill . . . without further debate.”29 As Barry Karl notes, “Someone pulled [Senator James Byrnes’s] coattail to ask a question in the midst of debate and by the time his attention could be returned to the discussion, it was too late.”30 Although Byrnes tried to call up the House bill in order to substitute the language of the Senate bill immediately after the vote, he knew he lacked the votes needed to close debate. With his political capital already drained, Byrnes withdrew his motion after receiving assurances that the Senate bill would receive expedited consideration in the House. 31 The reorganization bill would have to pass the House a second time if it were to have any chance of becoming law. The closeness of the Senate vote revealed how much the political climate had changed since the House vote in 1937. Moreover, even though the economy had taken a downturn in the middle of 1937, the sense of emergency that prevailed in 1933 when Roosevelt was fi rst granted the reorganization power was missing. The failure of several of the president’s key legislative proposals, such as the Fair Labor Standards Act, revealed deep divisions in the Democratic Party. But most important, the fight over the court packing plan wasted valuable political resources and badly damaged FDR’s prestige. 32 In short, Roosevelt had lost control of Congress. Public interest in the reorganization bill was also running sky high, fanned by the efforts of Father Charles Coughlin and Frank Gannett’s Committee to Uphold Constitutional Government. The rise of dictatorships in Europe had made the public wary about granting broad powers to the president. McJimsey notes, “As with the Supreme Court reorganization plan, executive reorganization seemed to threaten the institutional balance within the government. This was just the kind of issue that could break down barriers between ‘liberals’ and ‘conservatives.’”33 Finally, the reorganization bill’s opponents were also aided by large numbers of agency bureaucrats who feared that reorganization might cost them their power bases or even their jobs. To make matters worse, the two gambits Roosevelt used to try to turn the tide backfi red badly. First, Roosevelt offered that the reorganization bill’s close victory in the Senate “proves that the Senate cannot be purchased by

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The Administrative State, 1889–1945

organized telegrams based on direct misrepresentations.”34 The comment impugned the integrity and sincerity both of the senators who voted against the reorganization bill and of the citizens who had made their sentiments known to their representatives. Second, Roosevelt called a press conference at two o’clock in the morning to release a copy of a letter to an anonymous friend disavowing any intention of becoming a dictator. The letter emphasized, “A: I have no inclination to be a dictator. B: I have none of the qualifications which would make me a successful dictator. C: I have too much historical background and too much knowledge of existing dictatorships to make me desire any form of dictatorship for a democracy like the United States of America.” Roosevelt also took the opportunity to criticize the legislative veto. Although he acknowledged that he would accede to Congress’s wishes “in the overwhelming majority of cases,” he still felt that the legislative veto was unconstitutional. Reorganization orders had the force of law and as such had to be repealed by conventional legislation, passed by both houses of Congress and signed by the president. Concurrent resolutions, which do not require the president’s signature, were “merely an expression of congressional sentiment and could not ‘repeal executive action taken in pursuance of a law.’”35 Roosevelt’s reassurances did little to quiet the fears of the people and Congress. These factors made the second House debate on the Brownlow Committee’s recommendations one of the hottest debates in years. Representative John O’Connor, chairman of the House Rules Committee and a staunch opponent of the bill, blocked all attempts to pass a rule to govern the debate, and the House leadership’s attempt to close debate on the bill failed.36 Roosevelt began scrambling to avoid defeat, dropping his opposition to the legislative veto and offering exemptions to the pet agencies of key constituencies. Despite the Roosevelt administration’s best efforts, the House voted 204 to 196 to recommit the bill to committee, effectively killing it until the following year.37 Despite frenzied efforts by the administration to ensure its passage, one hundred and eight Democrats voted against the proposal, including a number of President Roosevelt’s staunchest supporters. William Leuchtenburg calls it “the worst rebuff Roosevelt was ever to suffer in the House.”38 Bowing to the inevitable, Roosevelt sent a message to the House leaders thanking them for “the fi ne fight.”39 The following year, after the furor had died down, Roosevelt submitted a watered-down version of the reorganization bill. The Reorganization Act of 1939 provided for the additional White House staff recommended by the Brownlow Committee but conceded the most contentious issues of the year before, exempting a laundry list of agencies from reorganization, dropping the provision abolishing the

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comptroller general, and reinstating the two-house legislative veto.40 Even with these changes, the administration needed to put forth extraordinary efforts to get it passed.41 Roosevelt completed the administrative reform process in September 1939, by issuing an executive order forming the Executive Office of the President, which was divided into six departments, including the Bureau of the Budget brought over from the Treasury Department.42 This is perhaps one of the most striking executive orders in American history, as it created “the touchstone of modern presidential leadership.”43 The creation of the Executive Office of the President was an important legacy of the Roosevelt administration and one that would greatly enhance presidential control over the by now sprawling executive branch. The fact that the Brownlow Committee’s proposal ended in compromise does nothing to change the implications of this debate for the existence of a constitutional custom regarding the unitary executive. Even though Roosevelt eventually yielded on each of the major issues, he did begin by vigorously asserting the president’s right to control all executive functions of the federal government and saw his views accepted to some extent by both the House and the Senate. Under the principles of coordinate construction, the mere fact that Roosevelt in the end bowed to political realities does not dissipate the force of his initial opposition. Particularly when viewed along with his other efforts to defend the unitariness of the executive branch, Roosevelt’s abandonment of the Brownlow Committee’s initial recommendations does not represent the type of acquiescence needed to give rise to an established practice permitting congressionally imposed restrictions on the president’s power to execute the laws. Our systematic examination of the practices with respect to the unitary executive during the third half-century of our Republic thus leads to a conclusion that is quite at odds with the conventional wisdom. Far from supporting an established practice sufficient to foreclose arguments in favor of the unitary executive as a matter of history, as some scholars have suggested, the record shows that presidents throughout this period consistently asserted and defended the president’s sole authority to execute the law. To the extent that the historical evidence supports the existence of an established practice in either direction, it would tend to favor those supporting, rather than those opposing, the unitariness of the executive branch. The briefest review of the major events between 1889 and 1945 bearing on the unitary executive confi rms this conclusion. As we noted earlier, one of the signature developments of this period is the increasing reliance on the

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The Administrative State, 1889–1945

so-called independent agencies, such as the ICC, the FTC, and the Federal Reserve Board. Robert Cushman’s classic study of the independent regulatory commissions demonstrated how each of the presidents during this period exerted his authority over those agencies to ensure that they executed the law in accordance with administration policy.44 Our own review of the historical record confi rms Cushman’s conclusion. Backed by the Supreme Court’s decisions in McAllister,45 Parsons,46 Shurtleff,47 and especially Myers,48 every president during this era treated these agencies in the same manner as purely executive agencies, directing their operations and removing commissioners who disagreed with the president’s vision for the enforcement of the law. Not until the Supreme Court’s 1935 decision in Humphrey’s Executor49 was there even a colorable claim that these commissions were in any way independent of the president. And even after Humphrey’s Executor, FDR continued to assert his authority over the independent agencies and to remove members as he saw fit. Roosevelt further attempted to resolve the issue by pushing through the recommendations of the Brownlow Committee that the independent agencies should be integrated into the executive departments, only to see that effort derailed by the change in political winds caused by the failure of FDR’s court packing plan. Another development of this period that is often cited as precluding arguments in favor of the unitary executive is the advent of the civil service system. As we have shown, the history of civil service reform during this period is completely consistent with the unitary executive. Until 1897, the civil service laws did not even purport to place any substantive restrictions on the president’s removal power aside from prohibiting removals for refusing to contribute to political campaigns. Although subsequent executive orders and statutes provided that members of the classified service could only be removed for “cause,” this requirement was consistently construed by the presidents, the Civil Service Commission, and the courts as simply reflecting the statutory requirement mentioned above and not as creating any substantive limits on the removal power. Although such limits would eventually arise, they would not appear until after this period had run its course. In addition, it was during the years between 1889 and 1945 that Congress attempted to expand the use of the legislative veto as a means for controlling the execution of the law. As the Supreme Court explicitly recognized in INS v. Chadha, presidents during this period opposed the legislative veto with enough consistency to foreclose any suggestion that they acquiesced to this particular derogation of the unitary executive. 50 The institution of the special prosecutor made an occasional appearance, but all the special prosecutors were subject to presidential direction and removal.

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Throughout this period, presidents also asserted their authority in other myriad ways to ensure that federal officials executed the law in accordance with their wishes. They freely exercised the removal power and opposed efforts to lodge executive functions in officials answerable only to Congress. They widely supported executive reorganization and created the Bureau of the Budget and the Executive Office of the President to centralize control of federal spending. There can be little doubt that all the presidents from Benjamin Harrison to Franklin Roosevelt were committed defenders of the theory of the unitary executive. Thus, contrary to what some have asserted, the historical record does not serve as a trump that obviates consideration of the broader range of constitutional arguments regarding the president’s authority to execute the law. Perhaps most important of all, the period between 1889 and 1945 saw a tremendous growth in presidential power, as strong presidents like the two Roosevelts and Wilson (and to a lesser extent Cleveland and McKinley) helped remake the institution of the presidency into the primary institution for mobilizing and implementing political will. Their administrations set the stage for the imperial presidency that would dominate modern times.

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PA RT

VII

The Unitary Executive During the Modern Era, 1945–2007

We now examine the presidencies during the fourth half-century of our constitutional history to see the views expressed by presidents from Harry Truman to George W. Bush regarding the scope of the president’s power to execute the law. The years 1945 to 2007 represent a particularly interesting period in the constitutional history of presidential power. The executive branch that emerges during the second half of the twentieth century is a mammoth operation that dwarfs the scale of administration during the time of George Washington. Indeed, the size of the modern federal bureaucracy far exceeds even the burgeoning administrative state that had emerged by the end of the New Deal. In addition, the presidency wields far more power and plays a far larger role in setting and coordinating federal policy in modern times than it did in previous periods. Ever since 1945, the fact that the president has possessed the power to deploy nuclear weapons on a global scale if the circumstances call for it provides the most dramatic demonstration of the increasing importance of the office. Indeed, the presidency now far surpasses any other governmental institution in terms of political leadership. Chief executives typically establish a direct relationship with the American people and have become the embodiment and focal point of the national will. Thus, presidents like Truman, Dwight D. Eisenhower, and Ronald Reagan wielded more power and were

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more central to the life of the nation than were such predecessors as Franklin Pierce or Benjamin Harrison. For better or worse, we now have an imperial presidency.1 As a result, many nonformalist theories of constitutional interpretation contend that the presidency of Franklin Roosevelt represents a turning point in the history of the separation of powers in which the polity effectively sanctioned a fundamental redistribution of power among the three branches. Interestingly, different scholars draw starkly different normative inferences from this fact. Some, such as Peter Strauss, Abner Greene, and Martin Flaherty, have argued that the increased policymaking functions of the modern administrative state justify permitting Congress to place greater limits on presidential control over the execution of the law. 2 Others, including most notably Lawrence Lessig and Cass Sunstein, have drawn the opposite conclusion, arguing that the increase in discretionary, policymaking authority wielded by administrative agencies has strengthened the case in favor of the unitary executive. 3 We take issue with both approaches. Contrary to the prognosis of Ackerman and Flaherty, presidents throughout the post–World War II era consistently asserted their sole authority to execute the laws, often with the support of the judiciary. Indeed, the reaffi rmations of the unitariness of the executive branch that we discuss are part of a seamless position that presidents have consistently advanced since the founding. Thus, from the standpoint of constitutional law, what we fi nd singular is not the supposed fundamental discontinuity that drives the constitutional moment envisioned by Ackerman but rather the consistency with which the executive branch has asserted its vision of the proper scope of presidential power. From the standpoint of three-branch constitutional interpretation, the conduct of presidents throughout the period extending from 1945 to 2007 stands as a strong reaffi rmation of the unitariness of the executive branch that is more than sufficient to vitiate any inference that the executive branch has acquiesced to any encroachments upon its prerogatives.

33

Harry S Truman

Harry S Truman succeeded Franklin D. Roosevelt as president at a time when the world was consumed by war. Fortunately, as Truman’s biographer Donald R. McCoy points out, his character “enabled him to make much of his on-the-job training as president. He was brisk, decisive, direct, industrious, practical, and tough.” Truman “exercised command vigorously,” and he gets high marks as “a supremely tough, decisive leader” who from the start was completely in control of his entire administration.1 David McCullough reports that upon being sworn into office, Truman made clear to the members of Roosevelt’s cabinet that “he welcomed their advice. He did not doubt that they would differ with him if they felt it necessary, but fi nal decisions would be his and he expected their support once decisions were made.”2 Despite his initial determination to continue Roosevelt’s policies, Truman soon realized that “there could be no Truman administration unless he had his own people in office” and had a cabinet that was “in entire sympathy with what I wanted to do.” Truman therefore acted swiftly to assemble his own White House staff. Six months into his presidency, only three of the ten cabinet members he had inherited from FDR remained. Truman relied “more heavily on his top subordinates than had Roosevelt,” and he “had daily meetings with his chief White House aides and at least

305

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weekly meetings with cabinet members.” McCoy describes Truman’s position as follows: “Cabinet members were to help the president ‘carry out policies of the government; in many instances the Cabinet could be of tremendous help to the President by offering advice whether he liked it or not but when [the] President [gave] an order they should carry it out. I told them I expected to have a Cabinet I could depend on and take in my confidence and if this confidence was not well placed I would get a Cabinet in which I could place confidence.’”3 When cabinet members did not execute the law in accordance with his wishes, Truman did not hesitate to remove them or force them to resign. For example, Secretary of Defense Louis A. Johnson was told to resign because of his “confl icts with other officials, his verbal indiscretions, his chumminess with Republicans, and his slowness in conforming to new policies during a war.”4 Even more dramatic was the forced resignation of Attorney General J. Howard McGrath. The sequence of events that led to McGrath’s undoing began on February 1, 1952, when Truman appointed Newbold Morris as a special prosecutor to investigate alleged corruption in the Bureau of Internal Revenue and the Department of Justice’s Tax Division, only the fi fth occasion in history in which a special prosecutor had been named. After Morris had attempted to identify senior Justice Department officials who might be taking bribes by preparing a lengthy questionnaire intended to identify those officials whose lifestyles outstripped their salaries, McGrath ordered that the questionnaires not be distributed. When Morris then sought access to McGrath’s official and personal records, McGrath fi red him, which in turn prompted Truman to fi re McGrath later that same day. The investigation was then completed by James P. McGranery, who succeeded McGrath as attorney general. Truman disagreed with McGrath’s actions as a matter of policy; at no point, however, did he suggest that McGrath lacked the authority to dismiss Morris. As befits a person with a sign on his desk proclaiming “The buck stops here,” Truman exerted direct supervisory control over other aspects of his administration as well. Truman listened to and relied upon his White House staff and the Bureau of the Budget, but it was always “clear he was the boss, the person on whose desk ‘the buck stops.’ For all their influence, they were advisors, not executives or policy makers.” Truman is also seen by some as “creat[ing] the institution of the presidency” by refi ning the structure of the White House staff and increasing the use of the Bureau of the Budget, the Council of Economic Advisors, and the National Security Council. 5 The development of efficient means of using the White House staff to police the executive branch greatly enhanced the unitary executive.

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From the outset, Truman defi ned in no uncertain terms the unitary nature of executive power in military and foreign policy matters. Indeed, Truman’s “fi rst major act after the election in November [1949] had been to instruct the State Department to open negotiations for the new alliance [NATO], and he rightly considered it his treaty.” And when faced with the incredibly burdensome and historical decision of whether the atomic bomb would be used against the Japanese, Truman took full personal responsibility as commander in chief. After the attacks on Hiroshima and Nagasaki, Truman informed his cabinet that there was to be “no further use of atomic bombs without his express permission.” As he saw it, “the real issue was one of broad policy and that the bomb must not be the responsibility of anyone other than the president, because of his constitutional role as both Commander in Chief and Chief Magistrate.”6 By the summer of 1950, Truman found himself being drawn into a major undeclared war in Korea. Truman “had been advised to proceed on the basis of presidential authority alone and not bother to call on Congress for a war resolution.” This decision was characteristic of President Truman. He always kept in mind how his actions would affect future presidential authority. And although such prominent advisers as General Omar Bradley, among others, seriously objected to General Douglas MacArthur’s planned invasion at Inchon, Truman backed the plan. McCullough observes, “In time to come, little would be said or written about Truman’s part in the matter—that as Commander in Chief he, and he alone, was the one with the fi nal say in Inchon. He could have said no, and certainly the weight of opinion among his military advisers would have been on his side. But he did not. He took the chance, made the decision for which he was neither to ask nor receive anything like the credit he deserved.”7 The conflict would also lead to one of the most dramatic removals ever in American history when Truman relieved General Douglas MacArthur of his command of U.S. troops in Korea for insubordination and open intervention in the political arena. Truman believed that MacArthur’s actions posed “a danger to the fundamental principle of civilian supremacy over the military.”8 Against the president’s direct policy of a cease-fi re proposal, MacArthur had issued a communiqué to the Chinese communists in which he threatened to expand the war into the Chinese mainland. MacArthur then, in a letter to House Minority Leader Joe Martin, voiced his opposition to the president’s policy. Truman, who had already lost faith in MacArthur as a general, decided on his own, and then again after meeting with the joint chiefs, that MacArthur was to be fi red. The criticism Truman received from Congress and the country was overwhelming: “The full Republican

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leadership held an angry emergency meeting in Joe Martin’s office at 9:30 in the morning, after which Martin talked to reporters of ‘impeachments,’ the accent on the plural. ‘We might want the impeachments of 1 or 50.’ A fulldress congressional investigation of the President’s war policy was in order.”9 Yet Truman was completely unintimidated and would not budge; he felt his decision was wholly within his prerogative as commander in chief. The hearings proceeded, but interest in MacArthur faded. While some spoke of his fi ring of MacArthur as a courageous act, Truman would respond that “courage didn’t have anything to do with it. . . . General MacArthur was insubordinate and I fi red him. That’s all there was to it.” Dean Rusk captured Truman’s perspective perfectly with regard to the president’s insistence on executive removal power: “Truman’s confl ict with MacArthur . . . was more than a clash of egos or a contest of wills; Truman was concerned about the presidency. . . . I am convinced that 95 percent of Truman’s decision to fi re MacArthur hinged on the relationship of the President as the Commander in Chief to his general and on civilian control of the military.”10 This highly visible removal illustrates dramatically why the removal power is so important for the president if he or she is to be in charge of the executive branch. Not only was Truman willing to exercise the removal power; he also vigorously defended it against congressional attempts to place limits on its exercise, as evinced by his continuation of the defense of the removal power in connection with the case of United States v. Lovett, begun during the Roosevelt administration.11 As we noted earlier, the Lovett case arose when Congress attached a rider to an appropriations bill specifying that no federal funds could be used to pay Lovett and two other named executive branch employees suspected of holding subversive views. In essence, the issue in Lovett was whether Congress could use its spending power to remove executive branch employees whom the president wanted to retain. Although the Court of Claims had decided in favor of the administration’s position, it failed to provide the strong endorsement of the removal power that the administration sought. Dissatisfied with the court’s disposal of the case on nonconstitutional grounds, the attorney general successfully petitioned for certiorari in early 1946. His decision to seek Supreme Court review is telling because the outcome he desired had prevailed in the Court of Claims. Therefore he petitioned for certiorari not to change the result in the judgment below but rather to change its rationale. The Truman administration’s brief on the merits primarily attacked the appropriations rider as an impermissible infringement on the president’s power to remove, as did its presentation during oral argument. The

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administration’s brief specifically stated, “If the President is to perform his constitutional obligation to execute the laws, he must have power to control the subordinate officers through whom the executive function is administered. The principal control which the President has over executive officers is his power to remove them, and it has been said that he is . . . Chief of the Executive only through his power of removing appointees who are recalcitrant and unwilling to follow his wishes. Any exercise of the removal power by the legislative branch necessarily interferes with the executive power and tends to subject the executive branch to the control and domination of Congress.” The Truman administration’s brief further claimed that in England the “power to remove executive officers was vested in the Crown,” and the brief specifically cited the Vesting Clause of Article II as the source of the president’s removal power. The brief concluded its argument against a congressional power to remove Lovett by showing that the consistent practice from 1789 up through the 1940s was of presidential not congressional power to remove.12 Although the Supreme Court did reach the constitutional questions avoided by the Court of Claims, it upheld the administration’s position without reaching the removal issue, on the grounds that the statute represented a bill of attainder.13 As a result, none of the administration’s arguments on the removal power found its way into the Supreme Court’s opinion. For the purposes of our discussion here, however, it is of no consequence that the Supreme Court chose not to base its resolution of the case on the removal power. The fact that the Truman administration strongly opposed congressional infringement upon the removal power is sufficient to show that Truman did not acquiesce in this deviation from the unitary executive. Having failed in its attempt to use its control over appropriations to remove certain executive officers, Congress tried to remove Commissioner of the Bureau of Reclamation Michael W. Straus and Regional Reclamation Director Richard L. Boke by arbitrarily changing the qualifications for their positions.14 Truman complained that this statutory change in job qualifications, designed as it was to “effect the removal of two men now holding such positions,” was “contrary to the spirit, if not the letter, of those provisions of the Constitution which guarantee the separation of legislative and executive functions.” However, because Congress had already adjourned, Truman felt that he “had no choice” but to sign the bill. But he indicated that “had [it] been possible to veto this bill without bringing the vital work of the Department to a standstill,” he would have done so.15 Congress persisted the following year, attaching a provision to a continuing resolution prohibiting the use of appropriated funds for paying Straus’s and Boke’s salaries.16

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Again Truman objected in much the same terms.17 Perhaps chastened by its defeat in Lovett, Congress fi nally backed down the following month when it deleted the changes in these offices’ qualifications without having forced Straus and Boke out of their posts.18 Truman’s insistence that executive power over removals not be sapped by congressional or other pressures was shown on many other occasions as well. When a member of his staff, Harry Vaughn, was attacked by the media and Republicans for accepting a decoration from the Argentine dictator Juan Perón, Truman responded in blanket fashion: “No commentator or columnist names any members of my Cabinet, or my staff. . . . I name them myself. And when it is time for them to be moved on, I do the moving— nobody else.” As McCullough notes, “It was a sentiment that had been felt by other presidents before him and would be often again by more who followed in his place, but that none stated so openly in so many words.” On another occasion, Republicans in both houses led by Senator Joseph McCarthy called on Truman to fi re his secretary of state, Dean Acheson, for statements Acheson had made concerning the case engineered against Alger Hiss by the House Un-American Activities Committee (Acheson had stated to reporters that he did “not intend to turn his back on Alger Hiss”). Acheson offered to resign, but Truman would not consider such a concession. Again, Truman would not have anyone other than the president “do the moving.” When a reporter mentioned to Truman that some Republicans had called for Acheson’s resignation, Truman replied, “‘Mr. Acheson would remain. Period.’”19 That said, there were occasions on which Truman did not consistently support the unitariness of the executive branch. He equivocated regarding the president’s power to direct and overrule subordinate executive officials’ exercises of discretion, as shown by his administration during the consideration of the Reorganization Act of 1945. Although Truman’s initial proposal would have included all of the independent agencies within the president’s reorganization authority, 20 Congress refused to comply and instead followed the pattern established in the Reorganization Act of 1939 by specifically exempting certain agencies from the act altogether and by strictly limiting the degree to which certain other agencies could be reorganized. 21 Truman also implicitly condoned another deviation from the unitariness of the executive branch when he recommended that Congress incorporate the legislative veto provision of the 1939 reorganization statute into the 1945 version. 22 Congress, of course, took Truman up on his offer and included a two-house legislative veto in the 1945 act. 23 Truman also tolerated the enactment of other legislative vetoes without comment. 24

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Truman began to offer greater resistance to such intrusions after he won reelection in his own right. In so doing, he relied on the recommendations of the fi rst Commission on Organization of the Executive Branch of the Government, which was commonly known as the fi rst Hoover Commission after its chairman, former president Herbert Hoover, and which was created by a Republican Congress to bolster presidential control even though at the time the Democrats controlled the White House. The commission’s report called for a “clear line of control from the President to these department and agency heads and from him to their subordinates.” The report elaborated, “Responsibility and accountability are impossible without authority—the power to direct. The exercise of authority is impossible without a clear line of command from the top to the bottom, and a return line of responsibility and accountability from the bottom to the top.” Far from posing a threat to free and responsible government, “strength and unity in an executive make clear who is responsible for faults in administration and thus enable the legislature better to enforce accountability to the people.” The commission continued, “That line of responsibility still exists in constitutional theory, but it has been worn away by administrative practices, by political pressures, and by detailed statutory provisions. Statutory powers often have been vested in subordinate officers in such a way as to deny authority to the President or a department head.” Therefore, the commission recommended that all agencies be placed within executive departments and that all independent authorities granted to subordinate executive officials by statute or appropriations rider be eliminated. The commission also recommended that Congress not exempt any agencies from the president’s reorganization authority, including in particular the independent regulatory commissions. Furthermore, Congress should not place any limitations based on an agency’s “independent exercise of quasi-legislative or quasi-judicial functions.” Such phrases are too “vague and of uncertain meaning” and would only inhibit the president’s proper control over the executive branch. 25 Although the commission stopped short of the Brownlow Committee’s challenge to the constitutionality of the independent agencies, it still leveled several criticisms at their structure. First, it complained that the independent agencies’ exercise of executive authority was cumbersome and badly coordinated with the rest of the executive branch. Therefore, the commission recommended that “all administrative responsibility be vested in the chairman of the commission,” and that a number of executive functions be transferred to cabinet departments. Finally, the commission’s task force recommended that the president be given the authority to designate and remove at will the particular commissioners who would serve as chairman. 26

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Hoover reiterated these recommendations in a letter to the president pro tempore of the Senate, in which he again stated, “We must reorganize the executive branch to give it the simplicity of structure, the unity of purpose, and the clear line of executive authority that was originally intended under the Constitution.”27 Consistent with these recommendations, Truman asked in 1949 that Congress make the president’s authority to reorganize the government permanent and extend it to cover all governmental agencies, including the independent regulatory commissions. In Truman’s eyes, “the new reorganization act should be comprehensive in scope; no agency or function of the executive branch should be exempted from its operation.” Truman’s growing support for the unitariness of the executive branch, however, was still incomplete: his recommendation continued to condone the legislative veto procedure contained in the Reorganization Acts of 1939 and 1945 “whereby a reorganization plan submitted to the Congress by the President becomes effective in 60 days unless rejected by both Houses of Congress.”28 In support of this proposal, the Attorney General’s Office issued a memorandum repudiating the formalist critique of the legislative veto offered by Attorney General William D. Mitchell during the Hoover administration. The memorandum reasoned that legislative vetoes did not represent “an improper legislative encroachment upon the Executive in the performance of functions delegated to him by the Congress. . . . The authority given to the President to reorganize the Government is legally and adequately vested in the President when the Congress takes the initial step of passing a reorganization act.” Thus, Congress simply reserved “the right to disapprove action taken by the President under the statutory grant of authority.” In fact, the memorandum did not regard the legislative veto as being any more sinister than a provision requiring that the executive branch report its intended actions to Congress and then wait for a specified period of time: “It cannot be questioned that the President in carrying out his Executive functions may consult with whom he pleases. . . . There would appear to be no reason why the Executive may not be given express statutory authority to communicate to the Congress his intention to perform a given Executive function unless the Congress by some stated means indicates its disapproval.”29 Congress accepted the gist of Truman’s proposal and removed all of the exemptions from the president’s reorganization authority, except for those governing the comptroller general and the General Accounting Office. Congress did exact a price for surrendering its ability to protect specific agencies that were of special interest to its members: it added the requirement that all proposed changes to certain agencies be contained in a single reorganization

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plan unmingled with reorganizations affecting other agencies, and it broadened the two-house legislative veto into a one-house legislative veto.30 Truman used this authority to assert greater presidential control over the independent agencies. 31 Again building on the recommendations of the fi rst Hoover Commission, he submitted a reorganization plan on June 20, 1949, making sweeping changes to bring the U.S. Maritime Commission under more direct control of the executive branch. 32 A subsequent plan abolished the U.S. Maritime Commission, transferring its functions in part to the secretary of commerce and in part to the newly constituted, semi-independent Federal Maritime Board within the Commerce Department. 33 The following year, Truman submitted a similar series of plans proposing that the executive and administrative functions of all of the independent agencies be centralized in the chairman and that the chairman be made appointable and removable at will by the president. 34 Congress’s response demonstrated the legislative veto’s effectiveness in interfering with the proper functioning of the executive branch. Even though Congress had dropped the specific exemptions for the independent agencies from the Reorganization Act of 1949, it was still able to frustrate Truman’s efforts to assert greater control over the Interstate Commerce Commission, the Federal Communications Commission, and the National Labor Relations Board by exercising its legislative veto over the plans to reorganize those agencies. 35 Perhaps in response to the mischief caused by these legislative vetoes, Truman began to object to the legislative veto as an improper interference with the independence of the executive branch. His fi rst such protest arose when Congress revived the provision requiring that government publications be subject to the prior approval of the Joint Committee on Printing that had drawn the wrath of both President Wilson and President Hoover several decades earlier. 36 Truman signed this legislation but objected to it as an “invasion of the rights of the executive branch by a legislative committee.” Although he acknowledged Congress’s right to establish printing policies and to place limits on the printing activities of the executive branch, he stated that “restrictions imposed by the Congress should be left to the executive agencies to administer.”37 Truman did propose substitute legislation to eliminate this problem, but Congress took no action on it. Truman offered even stronger resistance to subsequent congressional efforts to control executive discretion. In 1951, when Congress attempted to enact a provision similar to one that Roosevelt had previously tolerated requiring that all significant military real estate projects be approved in advance by the Armed Services Committees, Truman drew the line. Concerned by Congress’s increasing tendency to attempt to influence the execution and

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administration of the laws, he vetoed the legislation. Truman reasoned, “Under our system of Government it is contemplated that the Congress will enact the laws and will leave their administration and execution to the executive branch.”38 The House voted 312 to sixty-eight to override the veto. 39 The Senate, however, took no action, and the veto stood. Just four months later Congress was able to frustrate Truman’s efforts to oppose the legislative veto by attaching an almost identical provision to the Military Construction Act of 1951.40 Because of the urgent need for the legislation, the president had no choice but to sign it. Truman continued his opposition to legislative vetoes the following year when he pocket vetoed a bill that would have required the postmaster general to “come into agreement” with the Public Works Committees before consummating lease-purchase contracts for the construction of post offices. Truman objected to the bill because it “contain[ed] a provision which would infringe upon the functions of the Executive branch to such an extent that I feel I cannot give my approval.” He considered it improper to “giv[e] Committees veto power over executive functions authorized by the Congress to be carried out by executive agencies.”41 Thus, by the end of his term, Truman’s metamorphosis into a steadfast opponent of the legislative veto was complete. Truman’s vigor as president was further illustrated by the frequency of his vetoes. In the tradition of that great Democratic president Andrew Jackson, Truman liked to portray himself as “the tribune of the people” and “the people’s president.” Truman cast himself as the people’s champion against the special interest groups that held such influence with Congress. In the 1948 campaign, he saw the contest as being between “Truman—the world class champion of peace, prosperity, democracy, and the people—fighting against special interests at home and authoritarianism abroad.” As he said explicitly on September 18, 1948, at a campaign stop, “The issue is the people against the special interests.”42 Truman also exerted his executive power by issuing twice as many signing statements as FDR issued, including two statements favorable to a key constituency—labor—when he signed the Hobbes Act and the Portal to Portal Act.43 Another major exercise of the executive power occurred when Truman invoked the authority vested in him “by the Constitution and the laws of the United States” and issued a pair of executive orders directing all cabinet secretaries to institute programs to ensure nondiscrimination in federal employment44 and in the military.45 That these orders were based on the president’s inherent authority appears to have been no accident, as evidenced by the fact that Truman invoked specific statutory authority when issuing a similar

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executive order mandating nondiscrimination in government contracting.46 McCoy reports, “By the time Truman left office, the work of this committee would lead to substantial racial integration in the military and to fairer procedures for promotion and training.” Black Americans saw these executive orders as “unprecedented since the time of Lincoln.”47 One of the most famous controversies of the Truman administration arose over the president’s decision to seize the steel mills, which led to the U.S. Supreme Court’s famous Steel Seizure decision—a decision that limits executive power, but in a way that is wholly consistent with the theory of the unitary executive. “The steel crisis had been brewing since late 1951, when it became clear that the United Steelworkers wanted a large wage increase. On April 8, 1952, Truman directed Commerce Secretary Charles Sawyer “to take over and continue the operation of the steel mills because a ‘work stoppage would immediately jeopardize and imperil our national defense.’”48 Signing Executive Order No. 10340, Truman saw his emergency action as mandated and sanctioned by his office. “These are not normal times,” he stated, “I have to think of our soldiers in Korea . . . the weapons and ammunition they need.” McCullough continues: From his reading of history, Truman was convinced his action fell within his powers as President and Commander in Chief. In a state of national emergency, Lincoln had suspended the right to habeas corpus, he would point out. Tom Clark, now on the Supreme Court, had once, as Attorney General, advised him that a President, faced with a calamitous strike, had the “inherent” power to prevent a paralysis of the national economy. [Truman] acknowledged the power of Congress to supersede his policy and act on its own to pass a new law enabling the government to operate the mills as an emergency measure. Such legislation, he said, might be “very desirable.” But Congress did not choose to grant him such power. Instead, there were calls for congressional investigations, calls for his impeachment. 49

Truman’s actions led to an uproar, with members of the House demanding impeachment and members of the Senate attempting to restrict the use of federal funds for operating the steel mills. Furthermore, several attempts were made to resolve the situation through litigation. The district court issued an order enjoining the seizure on April 29, and the government took the case directly to the Supreme Court for resolution. 50 In its brief in the Steel Seizure Case, the Truman administration vigorously pressed the view that the Vesting Clause of Article II is a generalized grant of power to the president. The administration’s brief explicitly argued, “Section 1 of Article II provides that ‘the executive Power shall be vested in a President of the United States of America.’ In our view, this

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clause constitutes a grant of all the executive powers of which the government is capable. Remembering that we do not have a parliamentary form of Government but rather a tripartite system which contemplates a vigorous executive, it seems plain that Clause 1 of Article II cannot be read as a mere restricted defi nition which would leave the Chief Executive without ready power to deal with emergencies.”51 The brief also pointed to the Take Care Clause, as construed in In re Neagle52 and in In re Debs, 53 as justifying President Truman’s seizure of the steel mills. The brief went on to note numerous actions by presidents in which property was taken in wartime, beginning with the War of 1812 and continuing during the administrations of Presidents Lincoln, Wilson, and Franklin Roosevelt. And it also cited Inland Waterways Corp. v. Young54 and United States v. Midwest Oil Co. 55 for the proposition that constitutional power “when the text is doubtful, may be established by usage.”56 The Steel Seizure Case involved a far more sweeping claim of executive power than we assert when we say that the Vesting and Take Care Clauses give the president power over removals and law execution. Thus, for our purposes, the fact that the Truman administration also claimed that those clauses enabled it to seize the steel mills means only that Truman is another in a long line of presidents to read the Article II Vesting Clause as a grant of power to the president alone. The Supreme Court, of course, rebuffed the Truman administration in the Steel Seizure Case and, most damagingly of all, Justice Jackson explicitly said in his famous concurrence that the Article II Vesting Clause is a mere designation of the title of the president and is not an affi rmative grant of the executive power. 57 Other justices did not follow Jackson on this point, with Justice Frankfurter in his concurrence accepting the notion that long-established custom or usage could be a “gloss on the ‘executive power’ vested in the President by § 1 of Art. II.”58 Of course, the very premise of this book is that presidential construction of the Vesting and Take Care Clauses as authorizing a presidential power over removal and law execution is supported by a tradition of executive branch construction extending over more than two hundred years. We agree with the Court’s ruling in Youngstown that the president’s executive power did not authorize a seizure of the steel plants on the facts presented in that case. We think, however, that this does not change the fact that the Vesting Clause of Article II is a sweeping grant of power to the president, as the Truman administration argued it was. Thus, by the end of his tenure in the White House, Truman had adopted a position largely consistent with the unitary executive, strongly defending the president’s removal power, using his reorganization powers to assert his control over the

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independent agencies, and objecting to the legislative veto as an unconstitutional infringement on the president’s power to execute the laws. Truman stopped short of condemning the independent agencies as unconstitutional, and he did permit the enactment of a few additional legislative vetoes without registering any objection. 59 Yet Truman’s level of opposition to congressional infringements on the unitary executive on constitutional grounds was sufficient to preclude the inference that he acquiesced in them for the purposes of coordinate construction.

34

Dwight D. Eisenhower

In sharp contrast to Franklin D. Roosevelt and Harry S Truman, Dwight D. Eisenhower did not aspire to be an activist president. As a career soldier, he considered it his duty to remain above politics, and he consistently strove to operate behind the scenes when guiding national policy. As his biographers Chester J. Pach Jr. and Elmo Richardson observe, “At a time of widespread discontent with the ‘imperial presidency,’ restraint in the exercise of presidential power looked far more attractive than it had a decade earlier.” The general consensus of historians, however, is that Eisenhower “only appeared to be a passive chief executive. He actually used his power vigorously and deftly, but often behind the scenes, to achieve his goals.” One of the reasons why people believed Eisenhower was not in control of his administration was that he would sometimes deliberately duck questions at press conferences by pretending to garble his syntax. Pach and Richardson note, “Critics seized upon such responses as evidence that the president did not know what was going on in his own administration. Usually, he did, but his spontaneous oral statements seemed to suggest otherwise.”1 Eisenhower’s penchant for behind-the-scenes management of his administration has led political scientist Fred I. Greenstein to label “this method of governing ‘hidden-hand leadership.’ Eisenhower made the critical policy decisions, but he carefully muffled his responsibility.”2 Pach and Richardson

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note that a cost of hidden-hand leadership is that “it created the appearance that Eisenhower was not in charge of his own administration” even when he was in fact highly skilled politically. Another reason Eisenhower was not perceived as being actively in charge of his administration was his penchant for delegation. Eisenhower’s leadership style was very much the product of his prior career as a general. “Rather than grapple with matters that puzzled or bored him, he acted as any general would—he delegated the task to a subordinate. John Foster Dulles thus handled foreign affairs; George M. Humphrey shaped economic policy; Sherman Adams took responsibility for a host of domestic matters. . . . The president presided over his administration, but he did not run it.” Eisenhower also relied heavily on his attorney general designate, Herbert Brownell Jr., and on his longtime friend and associate General Lucius D. Clay in picking the other members of his cabinet. He was the fi rst president to confer cabinet status on the director of the Bureau of the Budget—an office of vital importance to the unitary executive that had been created under the Harding administration and been moved to the White House by FDR. 3 It was also during the Eisenhower administration that the Office of Legal Counsel (OLC) was created in the Justice Department. OLC would become a strenuous advocate of presidential power and control over the executive branch and a bulwark of the unitary executive. Eisenhower’s willingness to delegate responsibility should not be confused with a lack of willingness to assert control over the conduct of his administration: “Contemporaries often misunderstood Eisenhower’s style of leadership; they mistook, for example, his delegation of authority for his abdication of it. Despite these misapprehensions, Eisenhower was in control of his presidency from its inception. Indeed, during the months between his election and inauguration, he carefully organized an administration that reflected his style of leadership and his assessment of the needs of the nation.”4 This style of leadership continued throughout his presidency. Thus, at the end of his presidency, when reporters asked him about giving Nixon more responsibility in light of the upcoming election, Eisenhower responded flatly “that he alone could make the decisions . . . [and] if a decision had to be made, ‘I’m going to decide it according to my judgment.’” Later, Eisenhower commented: “I don’t see why people can’t understand this: No one can make a decision except me. . . . I have all sorts of advisors, and one of the principal ones is Mr. Nixon. . . . Now, if you talk about other people sharing a decision, how can they? No one can because then who is going to be responsible?”5 There can be no doubt that Eisenhower executed his office in full adherence to the principle that the president, and only the president, ran the executive branch.

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Eisenhower took several steps to enhance and assert his authority to direct and review the actions of his subordinates. When Congress included a provision in the Defense Reorganization Act of 1958 requiring the secretary of defense to submit his reorganization plans directly to Congress without presidential oversight,6 Eisenhower flatly instructed the secretary to submit any such plans to him before transmitting them to Congress.7 Eisenhower also unsuccessfully backed the second Hoover Commission’s recommendation to consolidate all federal legal services in the Department of Justice.8 Even without such centralization, Eisenhower did not hesitate to intervene in the legal affairs of the federal government, at one point even personally drafting part of the brief during the remedial phase of Brown v. Board of Education.9 Indeed, Brown set the stage for one of the most courageous examples of presidential determination to enforce the law in our nation’s history. After the Court handed down its landmark opinion in Brown, Eisenhower made it clear that, whatever his personal misgivings about the decision, his duty as president and citizen was compliance with the Court’s order: “The Supreme Court has spoken and I am sworn to uphold the constitutional processes in this country; and I will obey.”10 Pach and Richardson note, “Indeed only a day after the decision, Eisenhower asked the Board of Commissioners of the District of Columbia to set an example of peaceful desegregation.”11 In September 1957, Little Rock, Arkansas, erupted in violent opposition to Court-ordered school integration. Eisenhower denounced the “mob of extremists” and pledged to use “whatever force may be necessary . . . to carry out the orders of the Federal Court.” Hours later, Eisenhower ordered “Gen. Maxwell D. Taylor, the army chief of staff, to dispatch 1,000 paratroopers from the 101st Airborne Division to Little Rock” and federalized the Arkansas National Guard.12 The president “wanted Taylor to move quickly in order to demonstrate how rapidly the Army could respond. Within a few hours, Taylor had five hundred paratroopers of the 101st Airborne Division in Little Rock; another five hundred were there by nightfall.”13 Eisenhower felt a critical sense of duty “to protect the Constitution and uphold federal law. Despite his own reservations about the Brown decision, he could not turn his back on a mob that tried to substitute its will for that of a federal judge. ‘If the day comes when we can obey orders of our Courts only when we personally approve of them,’ he reminded [boyhood friend and navy captain] Swede Hazlett, ‘the end of the American system, as we know it, will not be far off.’”14 It was for this reason that Dwight D. Eisenhower became the fi rst president since Ulysses S. Grant to send troops to the South to protect the civil

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rights of African Americans. The sending of U.S. troops to Little Rock “served notice that riotous obstruction of federal court orders might provoke the armed intervention of the national government, a possibility that had been unthinkable for eighty years.”15 “At the critical moment, he lived up to his oath of office. In the process, he convinced most white southerners that they could not use force to prevent integration.”16 Eisenhower further opposed racial discrimination by renewing and extending the executive orders fi rst initiated during the FDR and Truman administrations prohibiting discrimination in federal contracting and employment. Unlike his predecessors, Eisenhower explicitly based his orders on statutory rather than constitutional grounds.17 The Eisenhower administration also preserved the unitariness of the executive branch through his policies with respect to the civil service system. As of the 1950s, the civil service laws did not impose any limits on the president’s removal power.18 The governing statute provided that officials could be removed from the civil service only “for such cause as will promote the efficiency of said service.”19 Although on its face this language would appear to give federal officials covered by the civil service laws substantive protections against dismissal, both the executive branch and the courts had repeatedly construed this language as not placing any substantive limits on the executive branch’s unlimited discretion in determining what constitutes adequate cause for removal. Congress had enacted the Veterans’ Preference Act of 1944 giving veterans certain procedural protections, providing them with written notice of removals, the right to submit a reply, and the right to appeal adverse disciplinary actions to the Civil Service Commission. 20 The 1944 legislation did not alter the substantive standards governing removal, and courts continued to construe it as not placing any restrictions on the exercise of the president’s removal authority. 21 For example, in Bailey v. Richardson, the D.C. Circuit reviewed what it regarded as an unbroken 160-year history of judicial noninterference in removals and concluded, “No function is more completely internal to a branch of government than the selection and retention or dismissal of its employees.”22 The Civil Service Commission was thus limited to conducting informal investigations to ensure compliance with procedural requirements, and even decisions with respect to procedural compliance were not made binding on agencies until 1948. 23 The Supreme Court would acknowledge one narrow restriction on the president’s removal power by protecting federal employees against dismissal for exercising constitutionally protected activity. 24 Such a limitation was concededly quite narrow25 and was also consistent with the provisions

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of the Civil Service Act of 1883 preventing supervisors from requiring federal employees to pay political assessments or engage in political activity in order to keep their jobs. Most important, the Court would subsequently make clear that the doctrine prohibiting removals for the exercise of constitutionally protected activity did not apply to removals related to job performance. 26 This would be demonstrated most eloquently by the Court’s decision in Cafeteria and Restaurant Workers Local 473 v. McElroy, in which the Court “summarily denied” the existence of limits on the removal power in cases involving “the Federal Government’s dispatch of its own affairs.” The Court indicated that the executive branch had the unfettered discretion to deny a security clearance to an employee of a government contractor whose garrulousness posed a security risk. 27 At times, the Civil Service Commission did seek a greater role in reviewing the substance of agency removal decisions. 28 This recommendation was effectively quashed by the harsh criticism of it leveled by the second Hoover Commission, which noted: A judicial proceeding . . . leads to the worst kind of supervisor-employee relations because it requires the building of a written record and the accumulation of formal evidence sufficient to stand up as a support for the supervisor’s action. It relieves the employee of any necessity for demonstrating his competence and usefulness to his department, and in effect, guarantees him a job unless his supervisor can prove in a formal proceeding that he is incompetent. This leads to working situations which are intolerable. If the supervisor acts on his best judgment, he normally disciplines or separates an employee as soon as the misconduct occurs or the incompetence is evident. But, if he does so, he may be unable to substantiate his action judicially because he has not waited to accumulate documentary evidence. 29

The Eisenhower administration also strongly asserted the unitariness of the executive branch by exerting control over the independent agencies. Here, Eisenhower drew again upon the recommendations of the second Hoover Commission30 and a report by Professor Emmette Redford requested by the president toward the end of his administration, which emphasized the need for greater presidential control over the independent agencies in order to ensure proper leadership and guidance in policy development. 31 Redford later published a modified version of this study, in which he concluded, “The President should have responsibility for leadership and guidance of the commissions in the development of policies to implement the objectives embodied in law.” Only when authority over the commissions was returned to the president could the president fulfill the “constitutional and statutory

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responsibilities which separately and cumulatively require his attention to many policy aspects of regulation” as well as “the expectancy of people that the President will supply unity and leadership in the execution of the laws.” Therefore, Redford recommended that the president be given the authority to issue policy guidance to the commissions, to designate and remove the chairmen of all of the commissions at pleasure, and to have greater latitude to dismiss commissioners. 32 Eisenhower used a wide variety of means to influence the independent agencies. He conducted policy studies on specific areas of agency jurisdiction, jawboned individual commissioners, issued policy statements and suggestions, and notified the commissions about his budgetary and legislative priorities. Eisenhower even tried to turn the independent agency commission chairmen into executive officers by giving them second hats as special assistants to the president. However, congressional opposition and jealousy from other agency officials quickly put an end to this practice. Although the Eisenhower administration did not completely ignore the agencies’ supposed independence, 33 there can be little question that it asserted control over them when possible. The issue of presidential control over the independent agencies came to a head when Eisenhower removed Myron Wiener and Georgia Lusk after they refused to resign from the War Claims Commission, a body created to provide compensation to persons injured by the enemy during World War II. Eisenhower based his actions solely on the importance of presidential superintendence over the execution of federal law, noting that he “regard[ed] it as in the national interest to complete the administration of the War Claims Act of 1948, as amended, with personnel of my own selection.”34 Wiener brought suit in the Court of Claims to recover the salary he would have been paid had he not been removed. The Court of Claims dismissed this action on the grounds that Congress had not intended to impose any restrictions on the removal of war claims commissioners. 35 The issue then proceeded to the Supreme Court. In its brief, the Eisenhower administration defended its actions primarily on unitariness grounds. The brief began its summary-of-argument section by stating: A constitutional usage which goes back to the very fi rst year in which the Constitution became effective establishes that the President has the unlimited power to remove all the “officers of the United States” appointed by him, subject only to constitutional or statutory restrictions with respect to nonexecutive officers. The President’s removal power rests essentially on three considerations: fi rst, the canon of construction well known to the Founding Fathers that

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The Modern Era, 1945–2007 the power to appoint carries with it the power to remove; second, the President’s constitutional duty to take care that the laws be faithfully executed—a duty which cannot be performed if the President is unable to control the offi cers who carry out the laws; and third, the postulate of executive unity—i.e., that the President is the head of the entire executive branch. 36

The brief went on to argue two clearly correct propositions, both of which were destined to be rejected by the Supreme Court. First, the brief argued that Wiener was a core executive employee and that he was thus outside the ambit of Humphrey’s Executor v. United States, 37 which sanctioned congressionally imposed limitations on the president’s removal power of quasi-legislative and quasi-judicial officers. Second, the brief argued that even if Wiener were seen as being a quasi-judicial employee, the case was still outside the ambit of Humphrey’s Executor because Congress had been utterly silent about removal in the statute setting up the War Claims Commission. In Shurtleff v. United States, the Supreme Court had previously imposed a clear statement rule, holding that it would not construe any statute as limiting the president’s removal power unless Congress employed “very clear and explicit language” indicating that such was its intent. 38 Statutory language merely stating that an officer may be removed for “inefficiency, neglect of duty or malfeasance in office” was not sufficient. As the Court of Claims had noted, the statute at issue in Wiener was completely silent as to removal, providing only that the Commission wind up its affairs no later than three years after the last claim was fi led. 39 Under Shurtleff, the government argued, the relevant statute should not be construed as limiting the president’s unfettered authority to remove Wiener. In a remarkably brief opinion by Justice Frankfurter, the Supreme Court unanimously concluded that Eisenhower lacked the power to remove Wiener even though, as the Court twice noted, the statute did not purport to place any limits on the removal power. Instead, the Court inferred Congress’s desire to impose such limits from the fact that war claims commissioners were quasi-judicial officers.40 In so holding, the Court took the remarkable step of implicitly reversing the presumption acknowledged in Shurtleff against construing statutes as limiting the removal power, at least when quasi-judicial officers were involved. To do so without any significant analysis of the considerations that led the Shurtleff Court to erect the presumption in the fi rst place was quite unfortunate. From the standpoint of politics, Wiener can be regarded as the converse of Humphrey’s Executor. While Humphrey’s Executor represented an attempt by a largely conservative Supreme Court to snub a president who was

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considerably more progressive, Wiener represented a decision by a mostly New Deal Supreme Court that rebuked a president seeking to take the administration of federal law in a different direction. For purposes of this book, it matters little that the Eisenhower administration’s arguments in Wiener ultimately proved unsuccessful.41 What matters is that the administration’s defense of the removal power effectively undercuts any inference of acquiescence by Eisenhower to a nonunitary executive under the principles of coordinate construction. Just as Eisenhower was content to assume more of a background, supervisory role in the conduct of executive affairs, he was also measured in his dealings with Congress, insisting that FDR and Truman “had upset the constitutional equilibrium between the White House and Capitol Hill and promis[ing] to exercise restraint in order to restore the balance.”42 Eisenhower’s desire to rebalance the relationship between the presidency and Congress should not be taken, however, as a sign of any reluctance to defend the unitariness of the executive branch. As we shall see, Eisenhower resolutely defended presidential power. Most notably, he outdid the Truman administration in opposing the legislative veto as infringing on the president’s power to execute the law. The second Hoover Commission had challenged the constitutionality of the legislative veto. Specifically, the commission “question[ed] the appropriateness of congressional committee participation in the executive function of operation on the ground that it is an invasion of the executive by the legislative branch.”43 The Eisenhower administration registered its fi rst objection to the legislative veto in a memorandum opposing a proposal that would have required the administrator of general services or the postmaster general to come into agreement with the Committees on Public Works before acquiring property for the construction of post offices.44 The memorandum objected that such a provision would violate Article II of the Constitution, which “vests the Executive power in the President and directs that ‘he shall take care that the laws be faithfully executed.’” Although Congress could overturn a particular executive action through formal legislation, “Congress may not through its committees administer or share in the administration of a statute.” Allowing Congress to interfere in this matter would represent “a departure from our constitutional practice which, if systemically pursued, could result in a radical change in the distribution of the powers of the Federal Government.”45 After the Senate declined to delete this provision by a vote of sixty to eight,46 the Justice Department transmitted an even more detailed memorandum to the chairman of the House Committee on Public Works.

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While this legislation was pending before a conference committee, Eisenhower vetoed a bill that would have required the secretary of the army to “come into agreement” with both the House and Senate Armed Services Committees before transferring the Camp Blanding Military Reservation to the State of Florida. Eisenhower vetoed the bill because by “plac[ing] the power to make such agreement jointly in the Secretary of the Army and the members of the Committees on Armed Services,” the bill “violate[d] the fundamental constitutional principle of separation of powers prescribed in articles I and II of the Constitution which place the legislative power in the Congress and the executive power in the executive branch.” Eisenhower supported this conclusion with a forceful exposition against placing executive functions outside the executive branch: “The making of such a contract or agreement on behalf of the United States is a purely executive or administrative function, like the negotiation and execution of government contracts generally. Thus, while Congress may enact legislation governing the making of Government contracts, it may not delegate to its members or committees the power to make such contracts, either directly or by giving to them a power to approve or disapprove a contract which an executive officer proposes to make.” Echoing Hamilton’s pronouncements in The Federalist No. 70, Eisenhower concluded that “such a procedure destroys the clear lines of responsibility for results which the Constitution provides.”47 In response to these objections, the Conference Committee on the fi rst bill struck the committee veto provision and replaced it with a requirement directed at Congress prohibiting the appropriation of any funds without prior approval by the Public Works Committee.48 Since this restriction was directed at Congress and not the executive, Attorney General Brownell advised Eisenhower to sign the bill.49 Eisenhower continued his opposition to the legislative veto the following year in a signing statement accompanying the Defense Appropriations Act of 1956. In an attempt to thwart Eisenhower’s attempt to privatize many of the Department of Defense’s functions, members of Congress whose districts contained military facilities likely to be adversely affected attached a rider requiring that the administration provide justification to the House and Senate Appropriations Committees that the “discontinuance is economically sound and the work is capable of performance by a contractor without danger to the national security” before transferring work to a contractor, by subjecting all such transfers to a committee veto. 50 Eisenhower signed the bill even though he believed that the justification and committee veto provisions were unconstitutional. In language reminiscent

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of his objections to the Camp Blanding Bill, Eisenhower acknowledged that “Congress has the power and the right to grant or to deny an appropriation.” However, Eisenhower maintained that “once an appropriation is made the appropriation must, under the Constitution, be administered by the executive branch of the Government alone, and the Congress has no right to confer upon its committees the power to veto Executive action or to prevent Executive action from becoming effective.” In so observing, Eisenhower embraced a strongly formalist vision of the separation of powers: “The Constitution of the United States divides the functions of the Government into three departments—the legislative, the executive, and the judicial—and establishes the principle that they shall be kept separate. Neither may exercise functions belonging to the others.” Accordingly, Eisenhower felt “bound to insist that Executive functions be maintained unimpaired by legislative encroachment” and refused “to acquiesce in a provision that seeks to encroach upon the proper authority of the Executive.” Therefore, he insisted, “To the extent that this section seeks to give to the Appropriations Committees of the Senate and House of Representatives authority to veto or prevent Executive action, such section will be regarded as invalid by the executive branch of the Government . . . unless otherwise determined by a court of competent jurisdiction.”51 The same day, Attorney General Brownell released an opinion that the legislative veto provision violated Article II of the Constitution by “usurp[ing] power confided to the executive branch” and by intruding into the authority “to engage in the administration and execution of the law, which by constitutional warrant, has been the responsibility and right of the executive branch since the founding of our constitutional form of Government.” Brownell also anticipated the Supreme Court’s decision in Chadha52 by noting that the provision raised problems under Article I as well. 53 Eisenhower’s announced refusal to enforce the provision touched off a confrontation between the president and the comptroller general. Recognizing his role as “the agent of the Congress,” the comptroller general informed Congress that he would enforce the law and disallow any covered expenditure that did not gain committee approval. 54 Facing personal liability for issuing checks without the comptroller general’s approval, the Defense Department personnel ignored the president’s wishes and complied with the committee veto provision. Further confl ict was averted when the provision was dropped the following year. Three days after signing the Defense Appropriations Act, Eisenhower vetoed yet another bill because it contained two legislative veto provisions. As before, he indicated that such committee vetoes “would destroy the

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clear lines of responsibility which the Constitution provides.” Eisenhower further noted: While the Congress may enact legislation governing the making of Government contracts, it may not constitutionally delegate to its Members or committees the power to make such contracts, either directly or by giving them the authority to approve or disapprove a contract which an executive officer proposes to make. Two years ago I returned, without my approval, a bill . . . containing similar provisions. At that time I stated that such provisions violate the fundamental constitutional principle of separation of powers prescribed in Articles I and II of the Constitution which place the legislative power in the Congress and the executive power in the Executive Branch. Once again, I must object to such a serious departure from the separation of powers as provided by the Constitution. Any such departure from constitutional procedures must be avoided. 55

In response to the veto, Congress changed the legislative veto into a “report and wait” provision, which afforded executive action the force of law but delayed its effective date for a fi xed amount of time so that Congress could decide whether to enact formal legislation revoking the action. 56 Because report and wait provisions do not purport to give Congress the authority to effect a change in the law without having to comply with the constitutionally required process for enacting legislation, this amendment eliminated Eisenhower’s constitutional concerns. Congress later returned to the legislative veto by enacting a provision requiring congressional committee approval of all contracts authorized by the Small Reclamation Projects Act of 1956. 57 Eisenhower again registered his constitutional objections. To the extent that committee vetoes could be regarded as an executive act, they constituted “an unconstitutional infringement of the separation of powers prescribed in Articles I and II of the Constitution.” Eisenhower further explained, “I do not believe that the Congress can validly delegate to one of its committees the power to prevent executive actions taken pursuant to law. To do so in this case would be to divide the responsibility for administering the program between the Secretary of the Interior and the designated committees. Such a procedure would be a clear violation of the separation of powers within the Government and would destroy the lines of responsibility which the Constitution provides.” Alternatively, to the extent to which the committee veto exercised a legislative function, “the section is open to the objection that it involves an unlawful delegation by the Congress to its committees of a legislative function which the constitution contemplates the Congress itself, as an entity, should

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exercise.” The committee veto also violated Article II by itself. Eisenhower noted, “The negotiation and execution of a contract is a purely executive function. Although the Congress may prescribe the standards and conditions under which executive officials may enter into contracts, it may not lodge in its committees or members the power to make such contracts, either directly or by giving them the power to approve or disapprove a contract which an executive officer proposes to make.” Eisenhower nonetheless “approved this bill only because the Congress is not in session to receive and act upon a veto message and because I have been assured that the committees which handled the bill in the Congress will take action to correct its deficiencies early in the next session.” In the meantime, the president directed the secretary of the interior to initiate the programs covered by the act in the expectation that Congress would remove or revise the objectionable section. 58 As Eisenhower predicted, Congress replaced the committee veto with a “no appropriation” provision the next session. 59 Although Eisenhower did accede without objection to a few legislative vetoes,60 he subsequently objected to a provision providing a two-house legislative veto over Tennessee Valley Authority power projects61 and successfully called for the repeal of the provision enacted during the Truman administration giving a legislative veto to a single member of Congress.62 Eisenhower also questioned the constitutionality of a provision that subjected the attorney general’s decisions to parole certain refugees into the United States to a legislative veto that would eventually give rise to the decision in INS v. Chadha. 63 But Eisenhower’s most sustained opposition to the legislative veto was his attempt to overturn the committee veto in the Military Construction Act of 1951 (to which Truman had acceded) that subjected all major military real estate transactions to the approval of the Armed Services Committees.64 Bolstered by the recommendations of the second Hoover Commission and an opinion from Acting Attorney General William Rogers,65 Eisenhower’s 1961 Budget Message directed the secretary of defense to “disregard the section unless a court of competent jurisdiction determines otherwise.”66 Congress eventually relented and converted the committee veto into a constitutionally permissible report and wait requirement.67 Eisenhower took a number of other steps to defend the president’s sole authority to execute the law. He quietly opposed an amendment to the U.S. Constitution proposed by Senator John Bricker designed to curb presidential power over foreign affairs by barring the use of executive agreements and prohibiting the negotiation of any treaty that abridged constitutional rights or affected “any other matters essentially within the domestic jurisdiction

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of the United States.”68 Eisenhower steadfastly opposed the amendment on the grounds that it would “cripple the Executive power to the point that we [would] become helpless in world affairs.”69 On the issue of executive privilege, Eisenhower dealt Senator Joe McCarthy a “stunning blow by invoking executive privilege to prevent congressional interrogation of members of the executive branch.” Pach and Richardson call this “the boldest assertion of executive privilege in the history of the republic.”70 Eisenhower maintained that “Congress has absolutely no right to ask them to testify in any way, shape or form about the advice that they were giving to me at any time on any subject.” He felt that McCarthy’s requests were an unacceptable infringement upon executive autonomy. “What was at stake, as Eisenhower saw it, was the modern Presidency. . . . There were so many things Eisenhower felt he had to keep secret . . . that he was willing to vastly expand the powers of the Presidency to do it.” In a letter directing the withholding of information from McCarthy’s committee, Eisenhower confi rmed his view that “it is essential to efficient and effective administration that employees of the Executive Branch be in a position to be completely candid in advising with each other on official matters . . . it is not in the public interest that any of their conversations or communications, or any documents or reproductions, concerning such advice be disclosed.” Indeed, Eisenhower’s response to McCarthy constituted “the most absolute assertion of presidential right to withhold information from Congress ever uttered to that day in American history. Earlier Presidents had held that their conversations in Cabinet meetings were privileged and confidential, but none had ever dared extend this privilege to everybody in the Executive branch.”71 McCarthy infuriated Eisenhower by publicly appealing to federal employees to disregard Eisenhower’s directive and testify irrespective of the president’s invocation of the executive privilege. A furious Eisenhower made sure that the issue came up at his next press conference in order to tell reporters “that in my opinion this is the most arrogant invitation to subversion and disloyalty that I have ever heard of. I won’t stand for it for one minute.”72 In the end, Eisenhower’s actions so severely crippled the senator by robbing him of his subpoena power that McCarthy eventually crumbled. Thus, by the end of his administration, Eisenhower had defended the removal power, had asserted his control over the executive branch and the independent agencies, had resisted congressional attempts to interfere with the execution of the laws through the legislative veto, and had taken other actions to assert the unitariness of the executive branch. There was no acquiescence in any diminution of the unity of the executive branch during the Eisenhower years.

35

John F. Kennedy

John F. Kennedy viewed himself as a strong, active president “in the Democratic tradition of Woodrow Wilson, Franklin D. Roosevelt, and Harry S. Truman.”1 He wrote before becoming president, “When the Executive fails to lead . . . it leaves a vacuum that the Legislative branch is ill-equipped to fi ll.” In his criticism, he “charged the executive branch with having had a ‘failure of nerve.’ . . . The key words were challenges, vigorous, fight, and the need for a president ready to ‘exercise the fullest powers of his office.’”2 Kennedy’s splendid inaugural address immediately demonstrated his talent for using the bully pulpit of the presidency. His call for national service—“Ask not what your country can do for you, ask what you can do for your country”3 —helped inspire a generation of Americans to commit themselves to anticommunism abroad and the protection of civil rights at home. It also marked a return to a vision of the president as a leader and shaper of public opinion. From the outset of his administration, Kennedy was determined to exercise full control over the executive branch, illustrated most dramatically by his decision to appoint his brother Robert to the post of attorney general. Although the decision drew significant criticism, James Giglio, Kennedy’s biographer, reports that the president “knew that in Robert Kennedy he had his most trusted associate on board.”4 It would be hard for a president to do more to

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retain control over the law execution function than by appointing his closest sibling and former campaign manager to run his Justice Department. In structuring his cabinet and White House staff, Kennedy was critical of the extent to which Eisenhower had relied upon cabinet government. He saw this as “a ponderous bureaucratic system, resulting in group or corporate decisions.” Giglio notes that “Kennedy specifically objected to the extent to which Eisenhower had shared power with the cabinet (which met weekly); the chief of staff, Sherman Adams; and the National Security Council (NSC), created in 1947 to advise the president on foreign and domestic policy.” Giglio reports, “As president, Kennedy proved less willing to delegate power outside the Oval Office. His staff, far smaller than Eisenhower’s or Johnson’s, consisted for the most part of loyalists from the Senate or his campaign staff, many of them still in their thirties. They remained completely devoted to Kennedy and knew exactly what he wanted.”5 Kennedy was reluctant to meet regularly with the cabinet, preferring to communicate with his officials indirectly. He received weekly written summaries from cabinet department heads about their most significant activities. He followed these up with requests for additional information by communicating with cabinet members through his White House staff. Kennedy met frequently with certain favored cabinet members, particularly his brother Robert, who was his “lightning rod for untested ideas and [his closest] personal adviser.” The most prominent removal during the Kennedy administration was of Undersecretary of State Chester Bowles, in which “ideology and personal displeasure” both played a role. Bowles was summarily handed a press release indicating that George Ball would replace him. As Bobby recalled, “The President snuck up on him one day and got him fi red before he knew it.” Behind the dismissal was “indeed the effort to clarify the lines of authority within the State Department.”6 Kennedy’s dynamism led him to exert his power over the execution of federal laws to its fullest. For example, Kennedy followed the practice of FDR, Truman, and Eisenhower by issuing executive orders requiring all federal officers and government contractors not to discriminate on the basis of race, color, creed, or national origin. This nondiscrimination mandate was now to be enforced by the newly created President’s Committee on Equal Employment Opportunity. Kennedy’s nondiscrimination orders exceeded the scope of previous orders by requiring that all government contractors undertake “affi rmative action to ensure that applicants are employed, and that employees are treated during their employment, without regard to race, creed, color, or national origin.” In issuing these orders, Kennedy returned to the practice followed by FDR and Truman and based the orders on “the

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authority vested in [the president] by the Constitution and the statutes.”7 The comptroller general acknowledged, “In this instance the Executive order is not based on any Congressional directive. The authority to issue the order must, therefore, stem from the general executive power under Article II of the Constitution.”8 The attorney general concurred, claiming that Congress’s failure to object to presidential nondiscrimination orders meant that Congress had acquiesced in the president’s power to issue such orders.9 Kennedy also used his power as commander in chief to take care to enforce civil rights. When James Meredith, a black student, attempted to join the all-white student body of the University of Mississippi at Oxford, violence ensued. Kennedy “issued a proclamation calling on obstructionists to cease their activities and disperse peaceably. Hundreds of marshals were dispatched to the site, and they were reinforced by federalizing the Mississippi National Guard and the deployment of U.S. troops to the Millington Naval Air Station at Memphis.”10 Kennedy further took a leading role in helping two black students register at the University of Alabama over the opposition of Alabama’s segregationist governor, George Wallace. “Kennedy federalized the Alabama National Guard, signaling Wallace that he intended to enforce the court order militarily if necessary.”11 Kennedy’s dramatic exercises of presidential power even included his decision in 1961 to establish “the Peace Corps . . . by executive order and [to fund] it without any appropriations.” Kennedy paid for the Corps activities out of funds provided by the Mutual Security Act “until Congress provided a specific authorization seven months later.”12 The Kennedy administration also declined to defend a provision of the Hill-Burton Act that permitted federal funding of racially segregated hospitals.13 The courts eventually struck down the provision, with the administration intervening on the side of those attacking the constitutionality of the statute.14 The Kennedy administration also issued an executive order making small changes in the civil service laws. As we noted earlier, those laws did not give federal employees any substantive protection against dismissal. Although some lower court decisions took small steps toward limits on the removal power,15 real limits would not emerge until Supreme Court cases in the 1970s.16 Indeed, decisions from the Kennedy era continued to reaffi rm that a supervisor’s lack of confidence in a subordinate was by itself sufficient grounds for removal.17 Veterans, who composed roughly half of the federal workforce, did enjoy a greater degree of procedural protection than nonveterans. Kennedy eliminated this discrepancy by issuing an executive order extending procedural protections similar to those provided by the Veterans’ Preference Act of 1944 to nonveterans as well. He thus required that each

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agency establish a system for hearings and appeals.18 Although this change did not place any substantive limits on the president’s authority to remove,19 it did attest to Kennedy’s belief in his authority to exercise control over the entirety of the federal bureaucracy. Kennedy also made clear that he thought that his power to control the executive branch extended to the independent agencies when he included them in his executive order imposing ethical standards on confl ict of interest and ex parte communications. 20 That Kennedy believed he possessed the authority to direct the independent agencies should have come as no surprise. After he was elected but before he had been sworn in, Kennedy asked former Securities and Exchange Commission and Civil Aeronautics Board chairman and former Harvard Law School dean James Landis to prepare a report on the independent agencies. Landis concluded, among other things, that the lack of effective interagency coordination was inhibiting federal policy development. Calling the distinction between independent and executive agencies “meaningless,” Landis recognized that the president’s “constitutional duty to see that the laws are faithfully executed” was “applicable to the execution of laws entrusted to regulatory agencies, whether technically ‘independent’ or not.” Therefore, Landis recommended strengthening the controls that the president possessed over the independent agencies, through appointments and removals (subject to the limitation that commissioners could only be removed “for cause”), Bureau of the Budget clearance of commission budget proposals and legislative proposals, and the president’s power to appoint the chairmen of all the commissions except the Interstate Commerce Commission (ICC) and perhaps the Federal Power Commission (FPC). The president could also influence commissions through less formal means, either by engaging outside consultants to conduct surveys of their affairs or by consulting with commissioners directly. Landis also recommended that the president be permitted to use his reorganization powers to make the chairmen of the commissions removable at will and to give them authority over all administrative matters, including the preparation and review of budget estimates, the distribution of appropriated funds, the appointment of personnel, and control over the commission’s internal organization. Also, recognizing that policy development required “a close and intimate relationship to the President,” Landis recommended that the president create separate offices within the Executive Office of the President to coordinate and develop transportation, communications, and energy policy as well as an Office for the Oversight of Regulatory Agencies charged with preparing reorganization plans specifically for the FPC, ICC, Civil Aeronautics Board, and Federal Communications Commission. 21 That

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Landis would come to such a conclusion is nothing short of remarkable. An early proponent of independent agencies and one of the primary architects of the New Deal, Landis had believed that the simple tripartite form of government, in which power is “divided neatly between legislative, executive and judicial,” was inadequate to deal with modern problems and must give way to the exigencies of modern governance. 22 Armed with Landis’s report, Kennedy strongly asserted his control over the independent agencies. The chairmen of all of the commissions except the Federal Reserve Board submitted their resignations, and Kennedy replaced all of them except the chairman of the Federal Maritime Board. The omission of the Federal Maritime Board turned out to be insignificant, as Kennedy replaced the entire membership of the board with his own appointees when he reorganized it into the Federal Maritime Commission. 23 Kennedy also sent a message to Congress entitled “Regulatory Agencies,” calling for greater presidential oversight of the commissions. 24 Kennedy backed up his rhetoric by impressing upon his nominees the importance of national policy coordination. He further expressed the hope that his appointees would follow the declared policies of his administration by conducting numerous policy studies and conferences to guide commission decisionmaking and by requiring that the commissions send him monthly reports. Moreover, Solicitor General Archibald Cox refused to let the Federal Trade Commission present its own views to the Supreme Court. 25 Clearly, Kennedy did not acquiesce in the supposed “independence” of the independent agencies. Kennedy, however, was more tolerant of the legislative veto than Truman or Eisenhower had been. 26 He even went so far as to propose that an agricultural quota and an income support program be subject to a committee veto. 27 As his presidency progressed, however, he began to oppose the legislative veto. Acting on the advice of the attorney general, Kennedy challenged the constitutionality of a provision in the Foreign Aid and Related Agencies Appropriation Act of 1963 that subjected changes in economic assistance funds administered by the Agency for International Development (AID) to a committee veto. 28 Kennedy charged that “this provision is unconstitutional either as a delegation to Congressional committees of powers which reside only in the Congress as a whole or as an attempt to confer executive powers on the Committee in violation of the principle of separation of powers prescribed in Articles I and II of the Constitution.” In signing the bill despite these constitutional objections, Kennedy followed the earlier example set by Presidents Roosevelt, Truman, and Eisenhower. Kennedy did, however, direct the AID administrator “to treat this provision as a request for information.”29

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Despite its brevity, the Kennedy administration emerges as a steady defender of presidential prerogatives. Kennedy’s dominance over his cabinet, his executive orders on civil rights, his claims of supervisory authority over the independent agencies, and his eventual determination to oppose the legislative veto place him squarely in the unitary executive camp. In fact, the president and his brother waged a war on organized crime that was so effective that some have speculated that it led to the president’s assassination in Dallas on November 22, 1963. It is thus clear that there was no significant acquiescence in any diminution of the unitary executive on John Kennedy’s watch.

36

Lyndon B. Johnson

Anyone familiar with Lyndon Johnson’s legendary personality would have little doubt that he would be a strong chief executive. That said, Johnson ascended to the presidency under extraordinarily difficult conditions, having to succeed a charismatic leader who, after capturing the imagination of the country, died under tragic circumstances. Having sworn to continue Kennedy’s vision, Johnson inherited a fully staffed executive branch to which he could not make significant changes without seeming to abandon Kennedy’s legacy. For instance, in order to associate his antipoverty campaign with Kennedy, Johnson appointed Kennedy’s brother-in-law, Sargent Shriver, to head the War on Poverty. In what would become typical Johnson operating procedure, when Shriver hesitated over accepting and asked for time to decide, Johnson telephoned him and “in a very low, confidential sounding voice, the President explained that he had the Cabinet with him and had to keep his voice down. ‘You just have to understand, Sargent, this is your President speaking, and I’m going to announce you as the head of the war against poverty. Boom,’ Johnson hung up. Shriver turned to his wife and said: ‘Looks as if I’m going to be the new head of the war against poverty.’”1 Although Johnson was respectfully slow to make significant changes to the administration, it would be a mistake to construe his reticence to change

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personnel as hesitancy to exert full control over the workings of the executive branch. When Adlai Stevenson complained that he really wanted to be secretary of state rather than an errand boy, Walter Lippman quipped, “If you are Lyndon Johnson’s secretary of state, you’ll be an errand boy.”2 Clearly, Johnson was confident that he and he alone would determine the direction of his administration. In fact, one of the foremost considerations in Johnson’s appointment policy was his ability to control his subordinates. Perhaps the plainest example of this policy occurred when Johnson made his choice of a vice presidential running mate in the 1964 election campaign. By that time it was well understood among vice presidential potentials that “a Johnson Vice President would need to be a ‘yes man’ who conformed to LBJ’s every wish. ‘Whoever he is,’ Johnson told people in 1964, ‘I want his pecker . . . in my pocket.’” When Johnson fi nally decided upon Hubert Humphrey, the offer was accompanied by a demand for unequivocal loyalty. The president instructed Humphrey: “You can be against me in our conferences until . . . I make up my mind . . . then I want you to follow my policies.” Johnson reiterated that Humphrey had to “understand that this is like a marriage with no chance of divorce. I need complete and unswerving loyalty.” The bottom line was that “Johnson hated criticism or any challenge to his authority. Everyone who worked for him was expected to be 100 percent a Johnson man, a loyalist who, whatever his inner thoughts, would subordinate his views and ambitions to Johnson’s. This is not to say that Johnson wanted only ciphers around him. To the contrary, he valued having the services of ‘the best and the brightest.’ But at the same time, he wanted them to bend the knee, to take a back seat, to subordinate themselves to the President. . . . ‘I want people around me,’ Johnson said repeatedly, ‘who would kiss my ass on a hot summer’s day and say it smells like roses.’”3 Johnson’s biographer Vaughn Davis Bornet reports that while “Hubert Humphrey talked to the President at length upon occasion, he could not count on prevailing,” and neither could anyone else. Bornet adds that during his years in office, President Johnson ran the executive branch and—after listening to much advice—made thousands of fi nal decisions himself, while delegating masses of detail in administration to those whom he fully trusted. “Together, the eager president and his ambitious team in the executive branch dominated the federal government from 1963 to 1969.”4 In another example of Johnson’s insistence on fierce loyalty from subordinates, when it came time to appoint a head of his cabinet Department of Housing and Urban Development, everyone expected Johnson to select Robert Weaver, administrator of the Housing and Home Finance Agency, as the fi rst black cabinet member. Before giving him the post, however, as

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Joseph Califano, one of Johnson’s closest aides, recalled, Johnson “made it clear he could break or make Weaver—by doing both. He gave me a glimpse of the trait that sometimes drove him to crush and reshape a man before placing him in a job of enormous importance, much the way a ranch hand tames a wild horse before mounting it. To Johnson, this technique helped assure that an appointee was his alone.”5 And when it became clear that he did not “own” his subordinates, Johnson dismissed them forthwith, as in the case of Robert MacNamara, who made the mistake of disagreeing with the president’s policy in Vietnam. Johnson was a workaholic who wanted to outdo his predecessors in every possible way, including in the field of foreign affairs. Bornet reports that Johnson counted every meeting he had had with a foreign head of state compared with those of his four predecessors and was pleased that he far exceeded them, particularly in meetings held outside the United States. Johnson was also very aware “that his was the fi nger on the button” for starting a nuclear war, and he insisted “that the buck would stop with him on matters involving central war or peace.”6 Johnson micromanaged law execution in a way that certainly asserted presidential power, but to a degree that would be seen as offensive today. Bornet reports, “When an FBI agent hesitated to check the phone records of the Republican vice-presidential candidate, Spiro Agnew, Johnson himself ‘came on the phone and proceeded to remind [the agent] that he was commander in chief and he should get what he wanted.’ Johnson aides used presidential powers to push agents to check on matters they thought promising.” Bornet adds that “President Johnson was a person who inhaled every detail of the national budget, kept track of the votes and predilections of even the most obscure congressman, and had time to fi nd out many obscure things.” He was certainly aware of the extralegal surveillance activities of the FBI, and he knew about the secret taping of phone conversations “in the Oval Office, for it was done by a secretary on his signal. . . . National safety and, sometimes, personal power were placed above the Constitution and the law in those years.”7 Notwithstanding Johnson’s great attention to details, the administration of many of the programs in his war on poverty was surprisingly poor. Bornet reports that the “administration of the [Office of Economic Opportunity] proved to be a nightmare” and that “‘anti-poverty programs became political pork-barrel-type programs and were taken over by sophisticated middle-class bureaucrats.’” These administrative problems became all the more significant because the total number of federal employees increased from 1,100,000 in 1963 to 1,300,000 in 1969, and two new cabinet departments, Housing

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and Urban Development (HUD) and Transportation, were added during the Johnson years. “The cumulative effect of Great Society legislation was to produce far greater problems of executive structure and coordination than had existed at any other time, except perhaps during the Civil War, the Great Depression, and World War II. The problems were permanent, ‘threatening the capacity of the administrative system to fulfill policy objectives.’”8 The Johnson years were also marked by the assassinations of Malcolm X, Martin Luther King Jr., and Robert Kennedy, as well as many other threats to the faithful execution of federal laws. Bornet observes that Johnson was surprisingly lax in his law execution efforts in response to some of these threats, in part because of the liberal outlook of his attorneys general. Bornet states, “Riots, mass demonstrations, and defiance of the federal government’s authority to draft youths for military service combined to make law enforcement difficult. Johnson accepted the burden with marked reluctance, given his public emphasis on positive factors. His attorney generals [sic] knew that the law of the land had to be enforced, but they hoped that, somehow, expenditures on education, money for better food and housing, and a multitude of services would keep crime from growing.” This laxity in law enforcement was surprising because in all other respects during the Johnson years “the executive branch . . . developed, in the hands of this leader and his associates, into a dynamic administrative unit never likely to be equaled.”9 Johnson also strongly resisted attempts by Congress to limit his authority to administer the laws. For example, Congress passed a bill in 1966 that purported to restrict the president’s authority to propose a fi nancial plan for agricultural research for fiscal year 1968.10 Johnson indicated that he would ignore the provision as an improper infringement upon executive power by stating, “The provision thus clearly intrudes upon the Executive function of preparing the annual budget. In developing the budget for fiscal 1968, I will give careful consideration to the view of Congress expressed in this act—but I will propose an agricultural research program designed and financed to make the best possible use of the resources available to us.”11 Two months later, after the secretary of commerce exercised his authority under the Export Control Act of 1961 to impose export controls on leather and cattle hides, Congress attached a rider to the Commerce Department’s appropriations bill prohibiting the department from using any appropriated funds to enforce the export controls.12 Johnson complained that “in this rider . . . Congress attempts to control the manner in which the Export Control Act is to be administered.” These objections notwithstanding, Johnson signed the bill; foreign demand for hides had fallen to the point where the secretary

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was planning to drop the controls anyway. However, since conditions might again require the imposition of export controls on leather, Johnson directed the secretary of commerce and the director of the budget to submit legislation removing this restriction.13 The following year, Johnson objected that three provisions of the Military Construction Authorization Act of 1968 were “inconsistent with the sound management of America’s military establishment and raise[d] questions concerning the constitutional separation of powers.” These provisions prohibited Johnson from closing the Naval Academy’s dairy farm, froze the present geographic boundaries and headquarters of the eleven Naval Districts, and prohibited the Department of the Army from closing a particular installation in Hawaii.14 Johnson’s signing statement dripped with sarcasm when he quipped, “Thus the Congress, which has given the Navy Department authority over the world’s most powerful fleet, has withdrawn the Department’s authority over 380 cows.”15 In the end, however, the dairy remained open. Johnson also issued more general directives to the executive officers, such as his order to continue the antidiscrimination and affi rmative action programs begun during the Kennedy administration. This order expanded the Kennedy administration’s program in two significant ways. First, it applied the antidiscrimination prohibitions to all of a contractor’s activities during the performance of the contract, not just those activities connected with the contract. Second, it expanded the program to include sex discrimination as well. Like Kennedy, Johnson did not rely upon his defense or procurement powers as the basis for his actions, nor did he rely upon the newly enacted Civil Rights Act of 1964. Instead, Johnson followed Kennedy’s example and simply invoked “the authority vested in [him] as President of the United States by the Constitution and statutes of the United States.”16 Courts and commentators have struggled to determine whether Johnson issued the order pursuant to statutory authority or under his implied powers as president.17 Enactment of the Civil Rights Act of 1964 raised a whole new round of questions about the propriety of these executive orders. Opponents of the executive order argued that in passing Title VII, which is the portion of the act dealing with employment discrimination, Congress had explicitly prohibited the use of quotas, preempting the president’s authority, and that the House’s failure to pass an amendment explicitly authorizing the executive antidiscrimination program suggested that it was unauthorized. The order’s supporters pointed out that the Senate’s failure to pass an amendment that would have explicitly provided that Title VII constituted the exclusive remedy for discrimination bolstered

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the imposition of additional antidiscrimination protection.18 Regardless of how this controversy is resolved, Johnson’s actions clearly indicate that he believed he had the authority to direct the manner in which the subordinate executive officers executed the laws. Johnson also pioneered what would emerge as a critical device in allowing the president to control the execution of the law when he began using the oversight responsibilities of the Bureau of the Budget to influence the development of important agency regulations.19 Thus, Johnson plainly had little doubt about his authority to control the execution of the laws. It is symptomatic of Johnson’s views that he “pocket vetoed a bill creating an independent maritime administration, and thus the Maritime Administration remained in the Department of Commerce.”20 Johnson exerted his influence over the independent agencies as well. When he met with the heads of the commissions shortly after taking office, his remarks indicated a broad view of presidential responsibility and left little doubt that presidential intervention would be forthcoming if and when the commissions failed to discharge their responsibilities in a manner consistent with the president’s policies. 21 Consistent with this vision, Johnson directed the heads of three commissions involved in the regulation of transportation to begin intra-agency consultations on their problems. A Bureau of the Budget circular also established guidelines on the responsibilities of the Federal Power Commission and other executive agencies in the acquisition of water data. 22 In addition, “Johnson, ever the New Dealer faithful to the conviction that consolidation of control in the executive assured greater economy and efficiency, intended to create a Department of Transportation responsible for all phases of national mobility and safety.” And in an attempt to make the nation’s cities more habitable, Johnson created the cabinet-level Department of Housing and Urban Development. He severely cut NASA’s budget and made certain to have “Johnson men” in the State Department “to be sure those damned fools didn’t do something stupid.”23 Furthermore, Johnson ardently opposed the legislative veto as an unconstitutional infringement on the unitary executive. Rather than vetoing bills with legislative vetoes embedded in them, Johnson tended to use signing statements to construe the legislation in a manner that preserved its constitutionality. For example, within the fi rst few weeks of his administration, Johnson criticized a provision of the Public Works Appropriation Act that prohibited the Panama Canal Company from disposing of any real property without obtaining the prior approval of congressional committees. 24 Condemning the committee veto as either “an unconstitutional delegation to Congressional committees of powers which reside only in the Congress as a

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whole, or an attempt to confer executive powers on the committees in violation of the principle of separation of powers set forth in the Constitution,” Johnson directed the secretary of the army to treat the provision as a request for information rather than a formal committee veto. 25 Similarly, in signing the Agricultural Trade Development and Assistance Act of 1964, 26 Johnson objected to two legislative veto provisions. One provision, he stated, “seeks to give either the House Committee on Agriculture and Forestry or the Senate Committee on Agriculture and Forestry a veto power over certain proposed dispositions of foreign currencies accruing from sales under Public Law 480. The other seeks to prevent the President from making certain loans at interest rates below a specified level unless he has concurrence of an advisory committee composed in part of Members of Congress and in part of his own executive appointees.” Since “both such provisions represented a clear violation of the constitutional principle of separation of powers,” Johnson directed executive officials to keep Congress informed and consult with them on all aspects of the law. 27 Later that same month, Johnson signed legislation requiring that the rules and regulations prescribed by the director of central intelligence for the establishment and maintenance of a new Central Intelligence Agency Retirement and Disability System were not to take effect until approved by the chairmen and ranking minority members of the Armed Services Committees. 28 Johnson noted that “such a provision attempts to confer executive powers on the members of the legislative branch, in violation of the constitutional principle of separation of powers.” Accordingly, Johnson instructed the director to “treat the provision as a request for consultation with the named committee members.”29 Johnson’s opposition to legislative vetoes was so strong that he refused to accept provisions fi rst enacted during the Eisenhower administration that prohibited Congress from appropriating funds for particular uses unless a particular committee had given its prior approval, on the grounds that such provisions were the functional equivalents of legislative vetoes. Because Congress is free to establish its own rules of procedure, and these provisions served to limit only the discretion of Congress before it enacted legislation and not the discretion of the executive branch after legislation had been enacted, Eisenhower had accepted such provisions as constitutional. When confronted with such a provision in the Water Resources Research Act of 1964, 30 Johnson directed the secretary of the interior not to request any funds under the act. Although Johnson acknowledged that such provisions were technically constitutional, he still objected to them in principle and refused to implement the act until Congress eventually amended

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the legislation to remove the committee approval provision. 31 Johnson later went so far as to veto legislation containing such a provision, concluding that such committee approval “seriously violates the spirit of the division of powers between the legislative and executive branches” and “infringes upon the responsibilities of the executive branch.” As Johnson reasoned, “The executive branch is given, by the Constitution, the responsibility to implement all laws—a specific and exclusive responsibility which cannot be shared with a committee of Congress.” Johnson accordingly withheld his approval from the bill until the offending provision was removed. 32 Similarly, Johnson objected to a provision in the Omnibus Rivers and Harbors Act providing that “no appropriation shall be made to construct, operate or maintain [certain water resource development projects] if such project has not been approved by resolutions adopted by the Committees on Public Works of the Senate and the House of Representatives.”33 Johnson concluded that acceding to such a provision “would make the President a partner in the abdication of a fundamental principle of our Government—the separation of powers prescribed by the United States Constitution,” which “would dilute and diminish the authority and powers of the Presidency.” Unlike the previous provision, the provision contained in this legislation was optional rather than obligatory. Because nothing in the act prevented Johnson from signing it and then directing his administration not to exercise the authority provided by the act until the provision was removed, Johnson concluded that the better course would be to sign the bill so that the remaining legislative provisions could be enacted. 34 The following year, Johnson criticized a provision that prohibited Congress from appropriating funds for rural-renewal loans unless the loans had been approved by the Agriculture Committees. 35 Johnson called such provisions “repugnant to the Constitution. They represent an improper encroachment by the Congress and its committees upon executive responsibilities, and dilute and diminish the authority and powers of the Presidency.” Therefore, Johnson directed the appropriate departments to submit corrective legislation and ordered his administration not to approve any loans that would require committee approval. 36 Finally, Johnson even objected to a type of provision that every previous president had agreed was constitutional: the “report and wait” provision. He indicated that he would accept that a “reasonable 30-day period of notification” be given to congressional committees. The proposed Military Construction Act, however, required that the administration wait 120 days. Although the bill was technically not unconstitutional, Johnson nonetheless vetoed the bill, condemning it as “repugnant to the Constitution” and “a

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fundamental encroachment on one of the great principles of the American Constitutional system—the separation of powers between the Legislative and Executive branches.” Johnson continued, “By the Constitution, the executive power is vested in the President. . . . [The President] cannot sign into law a bill which substantially inhibits him from performing his duty.” As a result, Johnson concluded that “the limitations upon . . . the executive branch of the government here sought to be imposed are a clear violation of separation of powers. . . . The Congress enacts the laws. Their execution must be left to the President.” It is “the President [who] is responsible . . . for the faithful execution of the laws enacted by Congress.” Johnson supported his conclusion by quoting James Madison’s statement during the Decision of 1789 and by noting that “Attorneys General in unbroken succession since at least the time of President Wilson” had opposed the use of such legislative vetoes. 37 Johnson eventually signed corresponding legislation that contained a more modest, thirty-day waiting period. 38 However, he again objected when Congress attempted to extend the waiting period to thirty days of continuous congressional session. 39 Johnson expressed his doubts as to whether such a waiting period was reasonable and warned that his “responsibilities as President and Commander in Chief [would] require [him] to seek prompt revision of the restriction if future circumstances prove[d] it to be inimical to the national interest.”40 Thus, Johnson opposed the legislative veto more vehemently than any other previous president. Moreover, he consistently objected to congressional efforts to encroach upon his authority, and he resolutely asserted his control over all parts of the executive branch. The conclusion is therefore inescapable that there was no acquiescence in any diminution of the unitary executive during Lyndon Johnson’s presidency.

37

Richard M. Nixon

Richard M. Nixon came to the presidency with a deep admiration for the system of cabinet governance that he thought had prevailed during the Eisenhower administration. His initial plan was to let department heads run their programs quite independently, while he concentrated on foreign policy. But, during his five-year tenure in office, he in fact appointed thirty cabinet heads, breaking the old record held by Ulysses S. Grant, and the median length of tenure of cabinet secretaries fell from forty months to eighteen. Nixon was not afraid to make removals, as the frequent turnover in his cabinet secretaries illustrates. Indeed, he began his second term by asking for the resignations of all his cabinet secretaries so that he could decide which ones to retain. He noted in doing so that once a cabinet official has been in place for a while, the bureaucracy starts to run him instead of the other way around. As early as the middle of 1969, his biographer Melvin Small points out, Nixon “had begun to rethink his approach to the cabinet,” and “as the White House weakened the power of the departments, Nixon’s chief of staff became more important.” Chief of Staff H. R. Haldeman became Nixon’s buffer, which Nixon later conceded was a mistake. Alexander Haig, who ultimately replaced Haldeman as chief of staff, functioned much the same way, with Nixon praising him as “the meanest, toughest, most ambitious son of a bitch I ever knew.”1

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Notwithstanding the many troubles that would eventually come to engulf his administration, Richard Nixon proved to be a stalwart defender of the president’s authority to execute the laws. 2 For example, Nixon protected the president’s removal power when he successfully resisted Congress’s attempt to remove his Office of Management and Budget director Roy Ash and his deputy OMB director Fred Malek by abolishing their positions and reestablishing them subject to Senate confi rmation. Nixon complained that “this legislation would require the forced removal by an unconstitutional procedure of two officers now serving in the executive branch.” The president’s “power and authority to remove, or retain, executive officers” was “deeply rooted in our system of government.” Although Nixon did “not dispute Congressional authority to abolish an office or to specify appropriate standards by which the officers may serve,” he vetoed the bill because “the power of the Congress to terminate an office cannot be used as a back-door method of circumventing the president’s power to remove.” Nixon closed by quoting James Madison’s ringing endorsement of the separation of powers in the Decision of 1789. 3 Nixon eventually prevailed in his defense of the removal power when, after failing to override his veto,4 Congress amended the legislation the next year to require Senate confi rmation only of future OMB directors and deputy directors. 5 A major administrative change that Nixon ushered in was the transformation of the Bureau of the Budget, created under President Harding and moved to the White House by FDR, into the modern, more powerful Office of Management and Budget. Melvin Small describes this change as meaning that “instead of just clearing all budgets except for those of the Central Intelligence Agency and Defense before they were sent to Congress, the OMB would be concerned with policy and operations management. This was another way for the White House to exert more control over the departments.”6 This was a crucial step in reinforcing the unitary executive, because the power of OMB could be centrally harnessed by the president to bring recalcitrant cabinet departments and agencies into line. Political scientist David Lewis notes, “The Office of Management and Budget . . . is also a source of presidential institutional memory. The OMB has historically sought to increase presidential influence and control. It is the locus of administrative management in the executive establishment.” During his second term, Nixon had hoped to expand the management authority of OMB, but he was soon overwhelmed by the Watergate scandal.7 Nonetheless, Nixon made a serious sustained attempt to bypass “Congress in an effort to ‘effect domestic policy directly through control of agency discretion,’”8 an effort that Richard Nathan dubbed the “administrative presidency.”9

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Nixon began his efforts to assert control over the executive branch by expanding the program of White House oversight of regulatory policy begun during the Johnson administration. Nixon’s program was initially restricted to the Environmental Protection Agency (EPA), which Nixon created by executive order in 1970, the regulations of which he sought to subordinate to OMB’s centralized clearance.10 The Nixon oversight program began on May 21, 1971, when OMB director George Shultz sent a memorandum to EPA administrator William Ruckelshaus requiring OMB cost-benefit clearance for all EPA decisions that were expected to have a significant impact on the policies of other agencies, impose significant costs on nonfederal sectors, or “create additional demands on the federal budget.”11 Nixon later expanded this initiative into a larger program termed “Quality of Life” review, which required agencies to submit covered regulations thirty days before draft publication, along with an analysis of the proposed regulation’s objectives, alternatives, and expected costs and benefits. OMB then solicited comments from other agencies, which were forwarded to the agency proposing the rule. A similar process, focusing on public comments and new issues raised during the rulemaking, was required twenty days before the publication of fi nal rules.12 Although the program was nominally extended to all federal policy proposals involving consumer protection, public health and safety, and occupational health and safety, in practice EPA remained the only agency routinely required to submit its proposals to OMB.13 In addition, OMB theoretically only facilitated interagency comments and mediated interagency confl icts; the issuing agency ostensibly retained control over the fi nal decision. In practice, OMB was able to use Quality of Life review to effect significant changes in EPA policy. Nixon further strengthened his control over regulatory policy on July 31, 1972, when OMB Circular A-19 required that agencies “submit proposed testimony, reports, or legislation to OMB prior to their transmission to Congress.”14 The extent to which Nixon centralized administrative control in OMB is underscored by the fact that leading EPA administrators were unable to obtain written assurances that they retained independent decisional authority. It is true that these administrators sometimes threatened to resign over their inability to obtain assurances that they would have the fi nal say over EPA regulations.15 Such threats are properly regarded as being consistent with the unitary executive, rather than evidence of agency independence as some have suggested,16 since resignation or removal is the natural outcome under our theory when an executive official fi nds himself or herself out of step with administration policy.

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Nixon extended the policy initiated by Kennedy of extending the civil service protection enjoyed by veterans to all federal employees. A pair of executive orders giving nonveterans the right to appeal adverse employment actions to the Civil Service Commission17 and revoking the agency review process established by Kennedy in favor of exclusive review by the Civil Service Commission18 in effect extended the procedural protections of the Veterans’ Preference Act of 1944 to all federal employees, veterans and nonveterans alike. This action is fully consistent with the unitary executive because, as we have noted, the procedural protections were not construed as placing any limits on the president’s unfettered power to remove. In addition, the fact that the president had the power to remove civil service commissioners at will rendered any authority wielded by the commission unproblematic from the standpoint of the unitary executive. That said, we acknowledge that the Nixon administration did bear witness to the emergence of the fi rst real limits on the president’s removal power over the civil service. Interestingly, the threat to presidential power came not from Congress but from the courts. The Supreme Court began to recognize that the civil service laws gave federal employees a sufficient property interest in their jobs to give them the benefit of procedural due process protections when fi red.19 And, even then, such noted commentators as Gerald Frug criticized the Court’s decisions as starkly ahistorical and inconsistent with the longstanding, judicially recognized tradition of unfettered presidential removal. 20 In any event, contrary to popular belief, the idea that the civil service laws limit the president’s power to remove is of fairly recent vintage, dating back only to 1974. Given the Court’s acknowledgment in INS v. Chadha that the fact that presidents ever since the Wilson administration had consistently opposed a particular practice was sufficient to keep a question open as a constitutional matter, 21 it is hard to see how this development could turn the civil service laws into an established derogation of the unitariness of the executive branch. Nixon also asserted his authority to direct federal officials’ execution of the laws. In one example of this, he continued the program initiated by Johnson’s executive order requiring that government contractors institute affi rmative action plans. Invoking the president’s authority under the Constitution and the statutes of the United States, Nixon issued an executive order declaring a federal policy of nondiscrimination in federal employment and continuing the program initiated by Johnson requiring that all government agencies and contractors institute affi rmative action programs. 22 The comptroller general issued a series of opinions suggesting that the order was unenforceable because it did not spell out the minimum requirements of a

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satisfactory affi rmative action program. 23 In response, Secretary of Labor George Shultz issued a revised version known as the Philadelphia Plan that gave more specific guidance on what was required. 24 After the comptroller general ruled that the additional guidance provided by the Philadelphia Plan imposed quotas in violation of Title VII of the Civil Rights Act of 1964, 25 Attorney General John Mitchell issued an opinion clarifying that the plan involved mere goals, not quotas. 26 Shultz accepted Mitchell’s saving construction. Finally, after a complicated series of legislative maneuvers, Congress implicitly endorsed the Philadelphia Plan’s legitimacy in 1972 when it rejected a rider barring the use of any appropriations to finance any contract that the comptroller general determined to be illegal. 27 But up to that point, Nixon, like Kennedy and Johnson before him, had derived the authority to require executive branch affi rmative action programs directly from his authority to control the execution of federal law. Nixon also undertook efforts to dominate the independent agencies. His efforts were based on the conclusion of the Advisory Council on Executive Organization (commonly known as the “Ash Council” after its chairman, OMB director Roy Ash) that the commissions were “an anomaly in government structure.” Independence had originally been intended to shield the regulatory process from the partisanship of the executive branch, but, instead, it had rendered the agencies “not sufficiently accountable to either Congress or the executive branch.” The report elaborated: Congress has conceived of these commissions as independent of executive branch control, but in fact the commissions are almost as independent of Congress itself. Apart from appropriations approval, periodic program review, and the intermittent interest of one or several of its members, Congress does not exercise the degree of oversight with respect to regulatory commissions that it does for executive departments and other agencies of the executive branch. Congress has sought to preserve the independence of the regulatory commissions, even as their activities increasingly affect the implementation of national policy. The executive branch, responsible for carrying out national policy, has been reluctant to support reforms needed to integrate regulatory activities with executive programs because the President does not have sufficient responsibility for commission direction. 28

Therefore, “if regulation is to be more responsive to the public interest and coordinated with national programs, it must fi rst be brought within the ambit of elective government, with accountability to those officials to whom the public and the regulated industries alike look for fair and constructive application of national policy.” To accomplish these goals, the Ash Council recommended abolishing most independent agencies and transferring their

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functions to newly created executive agencies headed by single administrators serving at the president’s pleasure. The adjudicative type of review previously performed by the independent agencies would henceforth be conducted by the Administrative Court of the United States. Only in that way could the president fulfi ll his constitutional duty to “take care that the laws be faithfully executed” and his role as the person to whom the American public “looks . . . for leadership in pursuing national policy goals, including those affected by the regulatory process.” The fact that previous presidents had offered similar regulatory reform proposals demonstrated that “these Presidents presumably felt that such recommendations were part of their responsibility to oversee faithful execution of the laws.” Furthermore, including the independent regulatory commissions in the president’s reorganization power demonstrated that Congress also “recognized the President’s role in the regulatory scheme.”29 Small reports that bolstered by the proposals of the Ash Council, Nixon proposed a massive government-wide reorganization in which all executive functions would have been consolidated into four new superagencies. This proposal eventually sank during the controversy caused by the Watergate scandal. In the meantime, Congress defended its ability to control the independent agencies by considering a proposal to make the commissions even more independent of presidential control than they already were, by permitting them to transmit their budget requests directly to Congress. Although this proposal eventually failed, Congress did subsequently enact legislation authorizing designated independent agencies to submit their budgets concurrently to Congress and the president, 30 and it granted independent litigating authority to the Federal Trade Commission. 31 Nixon also presided over the transformation of the Postal Service “from the cabinet to become the independent, self-supporting U.S. Postal Service, owned by the federal government.”32 In one sense this action weakened presidential control over postal employees, but it improved the quality of service of the post office, and there is nothing in the theory of the unitary executive to preclude the government from owning a corporation as federal property. Nixon also opposed congressional attempts to interfere with the president’s execution of the laws through the legislative veto. Although he returned to the position adopted by Eisenhower that statutes providing that “no appropriation shall be made” for particular purposes until approved by certain congressional committees constituted an internal guideline limiting the discretion of Congress, rather than being an external mandate affecting the presidency, 33 Nixon offered numerous objections to provisions more properly regarded as legislative vetoes. For example, he objected to

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a provision of the Second Supplemental Appropriations Act of 1972 that subjected approval of three building projects to a committee veto. 34 Such committee vetoes “infring[ed] on the fundamental principle of the separation of legislative and executive powers.”35 After Congress persisted in its efforts to include a committee veto, 36 Nixon announced that he would disregard it. 37 Nixon then objected that a committee veto contained in the Public Buildings Amendments of 197238 was an unconstitutional “infring[ement] upon the fundamental principle of the separation of legislative and executive powers” because it “conditioned the authority of the executive branch upon an action by committees of the Congress.” Consequently, President Nixon directed the General Services Administration to disregard those legislative veto provisions and submit remedial legislation. 39 Relatedly, Nixon vetoed the War Powers Resolution in part because of the legislative veto provision it contained.40 Although Nixon did subsequently sign several legislative veto provisions into law without comment,41 his previous objections were doubtlessly sufficient to preserve his constitutional challenge for the purposes of coordinate construction. At one point during the Nixon administration, Congress even considered a proposal to turn the Department of Justice into an independent agency. Under this proposal, the attorney general, deputy attorney general, and solicitor general would serve six-year terms and would be removable by the president only for “neglect of duty or malfeasance of office.”42 The administration challenged the constitutionality of this proposal through the able testimony of Assistant Attorney General Robert G. Dixon Jr. As Dixon noted, the Article II Vesting Clause and the Take Care Clause compelled two conclusions: “First, the enforcement of the laws is an inherently executive function, and second, the executive branch has the exclusive constitutional authority to enforce laws.” Dixon also argued that making the Department of Justice independent was ill advised as a matter of democratic political theory. As Hamilton had recognized in The Federalist No. 70, and the Landis Report and the Ash Council had recently reaffi rmed, a plural executive would tend “to conceal faults, and destroy responsibility.” Finally, Dixon argued that “an ‘independent’ Department of Justice would be a constitutional anomaly fundamentally inconsistent with the whole theory of a tripartite government envisioned by the Founding Fathers and specified in the fi rst three articles of the Constitution.”43 Former attorney general Nicholas Katzenbach agreed, arguing that the president “is responsible for the administration of the law and should be, and can be, held accountable for that stewardship.” Even Archibald Cox

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opposed the notion that the attorney general should be made independent of presidential control: “I believe in focusing individual responsibility. There is no substitute for that responsibility. No president should be relieved of it—or of the consequences of default.” Indeed, any attempt to insulate the attorney general from presidential direction would have the effect of erecting the “presumption that our Attorneys General cannot be trusted. The presumption should be the other way, and they should be held responsible when they were proved incompetent or unfaithful.”44 Nixon asserted his right to control the execution of the laws throughout the Watergate scandal. The issue fi rst arose during the hearings concerning Elliott Richardson’s confi rmation as attorney general. Richardson agreed in principle that a special prosecutor should be appointed, but he insisted on the importance “that the Attorney General must retain ultimate responsibility” for the special prosecutor’s work. Alternatively, the special prosecutor could be responsible only to the chief executive, since “Executive power is vested in the President [by the Constitution] and since it has been ruled by the Supreme Court that the conduct of investigations and prosecutions as defi ned by the law are executive branch functions.” Richardson insisted, “I know of no way constitutionally whereby any individual who has been vested with prosecutorial responsibility can be removed from responsibility to a superior within the executive branch.”45 Nixon’s belief in his sole authority to control the execution of the law was demonstrated most dramatically by the “Saturday Night Massacre,” in which he directed Attorney General Richardson and Deputy Attorney General William Ruckelshaus to remove Archibald Cox as Watergate special prosecutor, notwithstanding the Justice Department order granting Cox the “greatest degree of independence that is consistent with the Attorney General’s statutory accountability” and providing that Cox could not be removed “except for extraordinary improprieties on his part.”46 After Richardson resigned and Ruckelshaus was removed over their refusal to fi re Cox, the task of fi ring him fell to Solicitor General Robert Bork. Although regrettable, the Saturday Night Massacre remains a vivid, if controversial, assertion of Nixon’s belief in his authority to control the execution of the law. The Nixon administration continued to press its belief in the impropriety of insulating executive functions from presidential control when opposing the welter of bills seeking to authorize the appointment of temporary special prosecutors under the control of the courts. In Senate hearings on the legislation, Acting Attorney General Bork testified, “The executive alone has the duty and the power to enforce the laws by prosecutions brought before the courts.” Giving such authority to another branch “is simply not our system

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of government.”47 Bork offered a similar observation in his testimony before a House subcommittee, arguing that “to suppose that Congress can take that duty from the Executive and lodge it in either itself or in the courts is to suppose that Congress may by mere legislation alter the fundamental distribution of powers dictated by the Constitution.”48 Over time, many leading Justice Department officials have questioned the conventional wisdom that the Saturday Night Massacre showed the need for a prosecutorial institution operating independently of presidential control.49 The political uproar following Cox’s dismissal forced Nixon to appoint another special prosecutor, Leon Jaworski, who completed the Watergate investigation and drove Nixon out of office. The aftermath of the Saturday Night Massacre showed how political constraints can ensure the effectiveness of investigations of high-level government misconduct without resorting to constitutionally problematic institutional arrangements. From this perspective, it is Jaworski’s successful completion of the Watergate prosecution rather than Cox’s removal that shows the central lesson for the separation of powers. Regardless of where one comes down in this debate, the fact remains that Cox’s removal and the administration’s opposition to congressional attempts to authorize special prosecutors operating independently of presidential control represent prominent examples of Nixon’s steadfast insistence on the unitariness of the executive branch. Nixon had an extraordinary belief that the president had the implied authority to authorize, on national security grounds, actions by the FBI that were otherwise in violation of statutes. This was a Lincolnian claim of emergency power made during an emergency far less dire than Lincoln had faced in the spring of 1861. Thus, Nixon defended a plan targeted at violent radicals such as the Black Panthers against charges of illegality by saying that “when the president ‘approves an action because of national security, because of a threat to internal peace . . . the President’s decision . . . is one that enables those who carry it out to carry it out without violating a law.’”50 This view that as president he could sanction actions in violation of statutes is part of why Nixon was quite deserving of being the fi rst president in American history to be forced to resign. A related step Nixon took was to impound funds appropriated by Congress so executive employees could not spend them. This practice was eventually stopped by Congress in 1974, when Nixon had been weakened by Watergate and Congress passed by overwhelming majorities the Budget and Impoundment Control Act, which made it very hard for future presidents to impound funds. This act also established the Congressional Budget Office as a counterweight to OMB.

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One remarkable feature of the Nixon White House was the organization of the White House Special Investigations Unit, later known as the Plumbers, to undertake illegal activities, such as breaking into the office of Nixon foe Daniel Ellsberg’s psychiatrist—an illegal action that Nixon appears to have ordered. This action was ultimately followed by a group of White House operatives breaking into the headquarters of the Democratic National Committee, thus launching the Watergate scandal. Ultimately, Nixon’s presidency was undone by “a variety of illegal and extralegal political actions directed by the president and his chief assistants, including the former attorney general of the United States, that attempted to subvert the American political system.”51 Although Richard Nixon’s presidency was deeply problematic because of the many violations of federal law that he committed, Nixon did not acquiesce in any deviation from the theory of the unitary executive. We believe that Congress was right to force him to resign under threat of impeachment, but it is vital to remember that this was accomplished without an independent counsel law. Watergate thus shows not that such a law is needed but that the traditional system of checks and balances can be made to work.

38

Gerald R. Ford

When Gerald R. Ford came to the White House, he had every reason to expect that he would be hard pressed to defend the prerogatives of the executive branch, given that Watergate had effectively destroyed public confidence in the presidency. Moreover, having never run for national office, Ford lacked the mandate and the broad base of political support needed for vigorous presidential action. More than any other post–World War II president, Ford could have been expected to acquiesce in congressionally imposed invasions on the unitariness of the executive branch. Instead, aided by his assistant attorney general for the Office of Legal Counsel, Antonin Scalia, Ford held fi rm and defended the unitariness of the executive. When Ford assumed office, his biographer John Robert Greene notes that “political sagacity dictated that [he] fi re the Nixon people as quickly as possible and when he installed his own advisers that he steer clear of a Haldeman-like chief of staff.” Ford immediately indicated that White House Chief of Staff Alexander Haig could stay on for a short while, but that he would soon be replaced by a young Donald Rumsfeld. Rumsfeld’s strong personality guaranteed that there would be at least some centralized control of White House operations and of the executive branch more generally. During the one-month honeymoon period between Nixon’s resignation and Ford’s pardon of Nixon, public opinion began to support the idea of a

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strong cabinet, “as most of the country had come to view the Nixon White House as a fortress where access was forbidden and advice ignored.” Ford made some moves toward a stronger cabinet, but he did not totally buck the modern trend toward strong White House staffs. “The pattern that actually emerged in Ford’s administration fell in between these extremes of policy development. Ford’s style with his cabinet was neither as heavy-handed as Nixon’s nor did it offer a collegial return to cabinet government.”1 The fi rst two major issues of the Ford presidency emerged one month into his administration, when he pardoned both former president Richard M. Nixon and many individuals who had evaded the draft during the Vietnam War. These two pardons “destroyed [Ford’s] honeymoon with the American people.” The pardon of the draft evaders was a major decision about the execution of the criminal laws, based on Ford’s belief that it was necessary to bring to an end the “‘long national nightmare’ of the sixties.” This pardon cemented Ford’s reputation as a conciliator, and it was in accord with previous exercises of the pardon power to bring the American people together after a major war. 2 The question of whether to pardon Nixon had “hung over the administration like the sword of Damocles,” since it had been a major item of discussion at Ford’s fi rst cabinet meeting. Ford felt the pardon was appropriate both because of Nixon’s precarious health—a trial might have killed him—and because Ford wanted, in the language of the Preamble of the Constitution, to “ensure domestic tranquility.”3 Obviously, the two pardons together were a major law enforcement decision made by Ford personally about what degree of law enforcement would best serve the interests of the nation. The fact that Ford made these two law enforcement decisions himself as the nation’s chief law enforcement officer is telling support for the theory of the unitary executive. After the Nixon pardon, congressional power vis-à-vis the executive branch began to grow enormously, continuing a trend that had started in the Johnson and Nixon administrations. There was a public perception that what Arthur Schlesinger called an imperial presidency4 had developed, and that the time had come to restore some power to Congress. The “stinging” and “bipartisan” opposition on Capitol Hill to the Nixon pardon began a long process of power flowing away from the White House. “A new day had dawned, and Ford had to work in that new day—clearly, the locus of power in the federal government had shifted back from the White House to Capitol Hill.”5 As two of Nixon’s attorneys general had been convicted of crimes, it was essential that Ford pick a person of impeccable character to serve as his

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attorney general. Ford did precisely that by turning to Edward Levi, then the president of the University of Chicago. “Levi made it clear to Ford early in the nominating process that he would not take the job unless Justice was made apolitical.” Ford and Levi together faced many crises, including the threat of violence attending school desegregation in Boston. “Ford was ready to intercede if violence broke out. He had ordered the Department of Defense to put fifteen hundred troops of the Eighty-second Airborne on an increased state of readiness, which would allow them to be in Boston in nine hours.” This shows how seriously Ford took his obligation faithfully to execute the laws.6 In May 1975, Ford presided as commander in chief over the rescue of American passengers and crew on the Mayaguez, a ship that had been captured by the Cambodians. Strikingly, Ford took military action without consulting Congress under the recently enacted War Powers Act, and when members of Congress complained about his failure to consult them he said, “It is my constitutional responsibility to command the forces and to protect Americans.” Ford lived up to that responsibility and rescued the Mayaguez crew and passengers.7 In November 1975, Ford made major personnel changes in his administration that showed he was not afraid to remove people when he thought it necessary to do so. First, Ford asked for the resignations of Defense Secretary James Schlesinger and CIA Director William Colby. He also removed the ailing Rogers Morton as commerce secretary and stripped Secretary of State Henry Kissinger of his second job as White House national security adviser. George H. W. Bush replaced Colby at the CIA; Rumsfeld replaced Schlesinger at the Pentagon; and a young Dick Cheney replaced Rumsfeld as White House chief of staff. The next day, it was announced that Ford would drop Vice President Nelson Rockefeller from the ticket when Ford ran for reelection in 1976. This was a move to reach out to conservatives then gathering around the White House candidacy of Ronald Reagan, since conservatives detested Rockefeller and were certain to be disappointed by Ford’s fi ring of Schlesinger. With these bold and decisive personnel moves, Ford showed that he and he alone was fi rmly in control of the executive branch.8 One other prominent removal during the Ford years was the firing of Agriculture Secretary Earl Butz in the middle of Ford’s reelection campaign. Greene indicates that Butz foolishly told off-color jokes to Rolling Stone magazine correspondent John Dean that were subsequently published in the national press to the great embarrassment of the administration. “On Monday morning Butz met with Ford; around noon with tears in his eyes, he went before

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the press and resigned. Ford’s assessment of Dean was entirely predictable: ‘a low-down, no-good, son of a bitch. A sniveling bastard.’”9 Ford took other steps that demonstrated his willingness to take control of his administration. For example, Ford did not hesitate to direct the actions of subordinate executive officials, at one point directing the Department of Health, Education, and Welfare to suspend a rule so that it could be reexamined.10 Ford also continued the Quality of Life program begun by President Nixon, adding the requirement that major rules include an “inflation impact statement” comparing the costs and inflationary effects with the benefits of the rules.11 These statements would then be reviewed by the newly formed Council on Wage and Price Stability, although such review would only proceed after the proposed rule had been published in the Federal Register, and the council had no power to mandate changes in the rules.12 During the Ford administration, the Office of Legal Counsel “aggressively asserted the president’s right not to enforce legislation it deemed to be unconstitutional, even though the president had signed the legislation into law.” Thus, in response to several Supreme Court decisions invalidating sex-based distinctions in federal law, the Justice Department “scoured through other portions of the [federal law in question], looking for those the Court found unconstitutional and then declined to enforce them.” The Ford administration also construed the Federal Advisory Committee Act as not applying to the American Bar Association’s Standing Committee on the Federal Judiciary, which advised the administration on judicial nominees. The government was eventually sued for failure to enforce the act, but it won its case in the Supreme Court.13 Finally, the Office of Management and Budget during the Ford years set up an “interagency review process to encourage greater analytical rigor by agencies, particularly regarding the costs of regulations.”14 Ford also rebuffed congressional attempts to impinge upon the president’s authority to execute the law, as when members of the Ford administration testified against the establishment of independent prosecutors. Attorney General Levi maintained that the creation of a special prosecutor appointed by the judiciary was “constitutionally dubious.”15 Assistant Attorney General Michael M. Uhlmann challenged the constitutionality of the proposal as well, on the grounds that control of prosecution lay at “the very core of ‘executive functions.’”16 Deputy Attorney General Harold Tyler Jr. similarly criticized the proposal as “constitutionally inappropriate” because “unlike [the removal of] any other officer of the Executive branch [the special prosecutor’s] removal would be beyond the discretion of the President.”17

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Ford instead offered a proposal in which special prosecutors would be appointed by the president to three-year terms, confi rmed with the advice and consent of the Senate, and subject to supervision and removal by the attorney general.18 The Senate approved Ford’s proposal by a vote of ninetyone to five,19 but the House declined to do so, on the grounds that the creation of a permanent position would lead to the instigation of too many special prosecutor investigations. Members of the House instead favored a temporary special prosecutor appointed by a special panel of judges. 20 In retrospect, it is now clear that the House had it precisely backward. It is the absence of executive control rather than the permanence of the office that represents the greater danger. However, the fact that Congress declined to enact this legislation does not weaken the constitutional import of the president’s insistence that executive functions remain subject to presidential control. As a Congressman, Ford had supported the creation of an independent consumer agency, but in 1975 President Ford announced that he now opposed the idea and was able to kill the plan with a veto threat. David Lewis observes, “Ford’s change of heart about the wisdom of a new independent consumer agency coincided with his move from the House of Representatives to the White House. He is an excellent example of how the incentives of presidents are different from those of members of Congress and how much influence presidents can have over the design of administrative agencies.”21 Furthermore, after initially signing numerous bills containing legislative vetoes without any objection, Ford began to challenge the legislative veto as an impermissible invasion of the unitary executive. At fi rst, Ford was only willing to question the device, issuing a signing statement challenging the legislative veto as improperly “inject[ing] the Congress into the process of administering education laws” and “attempting to stretch the constitutional role of the Congress.” Although Ford acknowledged that “the Congress can and should hold the executive branch to account for its performance,” he also recognized that “for the Congress to attempt to administer Federal programs is questionable on practical as well as constitutional grounds.” Accordingly, President Ford “asked the Attorney General for advice on these provisions.”22 Two months later, Ford’s opposition to these provisions stiffened when he vetoed a bill because it contained a twohouse legislative veto. 23 Ford also objected to legislative vetoes twice more in 1975, calling the legislative veto “an unconstitutional exercise of Congressional power.”24 In the latter of these two instances, Ford instructed the secretary of health, education, and welfare “to treat this provision . . . simply as a request for information about the proposed standards in advance

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of their promulgation.”25 Furthermore, Assistant Attorney General Scalia tirelessly testified before Congress in opposition to the legislative veto. 26 But it was not until 1976, when the House was considering legislation that would have subjected all agency regulations to a legislative veto, 27 that Ford offered his boldest criticisms of the legislative veto. Ford entered no fewer than six vetoes and five signing statements criticizing the legislative veto, basing many of his objections on the unitariness of the executive branch. 28 At one point Ford noted, “The exercise of an otherwise valid Executive power cannot be limited by a discretionary act of a committee of Congress nor can a committee give the Executive a power which it otherwise would not have. The legislative branch cannot inject itself into the Executive functions, and opposition to attempts of the kind embodied in this bill has been expressed for more than 50 years.”29 Similarly, Ford later objected that legislative veto provisions purported to involve the Congress in the performance of day-today executive functions in derogation of the principle of separation of powers, resulting in the erosion of the fundamental constitutional distinction between the role of the Congress in enacting legislation and the role of the executive in carrying it out. 30 Ford repeatedly announced his support for challenging the constitutionality of the practice in court. 31 Thus, even though Ford at times tolerated the enactment of legislative vetoes, there can be little doubt that he raised numerous objections and exerted sufficient control over his subordinates, overcoming any suggestion that he acquiesced in congressional interference in the execution of the laws. Despite all the handicaps that Gerald Ford faced as an unelected president and as a result of the Nixon pardon, Ford compiled an impressive record as a steady defender of the president’s authority to execute the laws.

39

Jimmy Carter

The administration of Jimmy Carter almost certainly represents the nadir of presidential power in the post–World War II era. Unable to articulate a clear vision for the country and beset by the oil and Iranian hostage crises, Carter proved ill suited to assume the strong leadership role taken by many of his predecessors.1 His political weaknesses, however, did not translate into a willingness to allow control over the execution of the law to be transferred from the White House to Capitol Hill. On the contrary, in spite of its other problems, the Carter administration appears for the most part to have solidly defended the unitariness of the executive branch. From the outset, Carter wanted to run his own White House and thus began his administration with no strong White House chief of staff. His biographer Burton I. Kaufman reports, “Carter organized the White House staff intending that his cabinet secretaries have direct access to him. In particular, there was to be no chief of staff able to control and regulate the vital arteries of communication between the Oval Office and the rest of the administration—as had H. R. Haldeman during the Nixon administration, and, to a lesser extent, Richard Cheney and Donald Rumsfeld during the Ford administration.”2 Carter was obsessed with detail and spent too much time planning his administration during the transition, and then throughout the course of his presidency.

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By the end of his fi rst year in office, “voters . . . [complained] that the president was trying to do too much at once, [and] that he was trying to do too much himself.”3 This was evident in all policy areas, including foreign policy, which was being made in the Oval Office, not in the State Department. In a major cabinet shake-up toward the end of his administration, following his famous speech in which he claimed that the nation was suffering from a spirit of malaise,4 “Carter named Hamilton Jordan as chief of staff and instructed the rest of the White House to obey Jordan’s orders ‘as if they were the president’s own.’”5 This was a response to critics who had long maintained that Carter needed someone to run the day-to-day operations of the White House in order to limit intrusions on Carter’s time. Jimmy Carter was not at all shy about using the removal power. Kaufman notes that during the major cabinet shake-up in which Health, Education, and Welfare Secretary Joseph Califano, Treasury Secretary Michael Blumenthal, and Energy Secretary James Schlesinger were all essentially fired, Carter requested the pro forma resignations of all his cabinet members so he could decide which ones he wanted to keep. In addition, there were a number of other very dramatic removals from office during the Carter years. After General John K. Singlaub, the third-ranking army officer in Korea, publicly said that Carter’s removal of troops from South Korea would in his judgment lead to war, the president “immediately relieved Singlaub of his command and ordered him home,” thus “replicating President Harry Truman’s fi ring of General Douglas MacArthur in 1951 for questioning official policy.”6 During the scandal involving his Office of Management and Budget director Bert Lance, Carter essentially pushed Lance into resigning, in what was effectively a major removal of one of his best friends. Finally, with Carter’s support, Attorney General Griffin Bell fi red a Ford holdover U.S. attorney in Philadelphia, David Marston, in yet another dramatic illustration of the Carter administration’s broad willingness to use its removal power. But most important are the specific efforts President Carter made in the wake of Richard Nixon’s forced resignation from office to protect presidential prerogatives from an imperial and self-aggrandizing Congress. Critically, the Carter administration shelved a proposal, advanced during the 1976 presidential election campaign, to respond to the Watergate era abuses by turning the entire Justice Department into an independent agency, with the attorney general appointed for a fi xed ten-year term. Carter himself endorsed this idea on Meet the Press, but Attorney General Bell squashed the proposal once he took office.7 In order to convince the president of the problems entailed in the plan to turn the Justice Department into an independent agency, Bell wrote of his

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“serious doubt as to the constitutionality” of the plan. According to Bell, “the fi rst sentence of Article II vests the executive power of the Government in the President and charges him with the general administrative responsibility for executing the laws of the United States.” When this is combined with the Appointments and Take Care Clauses, Bell concluded, “the President is given not only the power, but also the constitutional obligation to execute the laws.” Moreover, the Supreme Court had made it clear in Myers v. United States 8 that “the President’s freedom to remove executive officials cannot be altered by legislation.” Bell considered this particularly true for the attorney general: The Attorney General is the chief law enforcement officer of the United States. He acts for the President to ensure that the President’s constitutional responsibility to enforce the laws is fulfi lled. To limit a President in his choice of the officer to carry out this function or to restrict the President’s power to remove him would impair the President’s ability to execute the laws. Indeed, the President must be held accountable for the actions of the executive branch; to accomplish this he must be free to establish policy and defi ne priorities. Because laws are not self-executing, their enforcement obviously cannot be separated from policy considerations. The Constitution contemplates that the Attorney General should be subject to policy direction from the President. As stated by the Supreme Court: “The Attorney General is . . . the hand of the President in taking care that the laws of the United States . . . be faithfully executed.” Removing the Attorney General from the President’s control would make him unaccountable to the President, who is constitutionally responsible for his actions.9

Finally, Bell went on to argue that any limitation on the president’s power to remove the attorney general, even if self-imposed by executive order, “would be restricting [the president’s] ability to fulfi ll his constitutional responsibility to ensure that the laws be faithfully executed. That constitutional responsibility for the execution of the laws cannot be waived.” Thus, Bell concluded, “there is no method, short of a constitutional amendment, to separate the Attorney General from Presidential control.”10 That Carter was willing to embrace these arguments despite his campaign promise to take the contrary approach is further evidence that he supported the idea of a unitary executive at least to some extent. That said, the Carter administration’s ability to resist encroachments on presidential authority to execute the laws was limited by the shadow of Watergate, as is demonstrated by the fate of the administration’s constitutional objections to a troika of ethics reform proposals enacted over a two-week span in 1978.

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The fi rst big piece of reform legislation passed was the Ethics in Government Act of 1978 (EIGA), which represented a watered-down version of the proposal to make the whole Justice Department an independent agency. The heart of the act was a regime of judicially appointed special prosecutors to investigate and prosecute high-level wrongdoing in the executive branch. Most notably, the statute provided that independent counsels could only be removed “for extraordinary impropriety,” in an attempt to allow independent counsels to conduct their investigations and prosecutions with a degree of independence from presidential control.11 A subsequent amendment substituted the term “independent counsels” for “special prosecutors” and adopted the convention followed with respect to independent agencies by providing that independent counsels could be removed only for “good cause” instead of “extraordinary impropriety.”12 With respect to the EIGA, John Harmon, Carter’s assistant attorney general for the Office of Legal Counsel, suggested that the provision of the act that vested the power to remove special prosecutors in a special panel of the D.C. Circuit raised “serious constitutional questions.” Under Myers, Congress may not ordinarily impose limits on the president’s power to remove, and Harmon said it was not altogether clear whether the Humphrey’s Executor13 exception to Myers applied to special prosecutors. In addition, there were serious questions about the need for such a statute. Harmon’s discussion of the removal provisions is a study in lawyerly circumspection, noting that the Justice Department had no objections to the provisions.14 Congress responded in part to this concern by amending the legislation to place the removal power in the attorney general, but prohibiting such removals except for “extraordinary impropriety, physical disability, mental incapacity, or any other condition that substantially impairs the performance of such special prosecutor’s duties.”15 Indeed, subsequent events raised questions as to whether a regime of judicially appointed special prosecutors was needed. When allegations of presidential misconduct had surfaced regarding a money-laundering scheme involving the Carter peanut warehouse, Attorney General Bell had appointed his own special prosecutor, subject to his supervision and removal. This special prosecutor had then successfully completed his investigation in an exemplary manner that enjoyed widespread public confidence.16 Indeed, over time, Jimmy Carter’s Justice Department and his two attorneys general were to emerge as leading critics of the EIGA.17 Despite his Justice Department’s misgivings about judicially appointed special prosecutors, Carter had little choice but to overlook the constitutional problems and sign the independent counsel bill into law.18 In the

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wake of Watergate and the criminal convictions of two of Nixon’s attorneys general, there was an extraordinary need to restore public confidence in the government. For these reasons, the Justice Department was willing to experiment with restraints on the president’s removal power.19 This experiment was a mistake by the Carter administration, but it must be seen in light of the fact that the administration fought very hard and largely successfully to preserve presidential control over the Justice Department in the face of a hostile Congress. The EIGA was a small price to pay for the greater goal of preventing a post-Watergate Congress from turning the whole Justice Department into an independent agency. The second big piece of reform legislation was the Inspector General Act of 1978, which vested the existing audit and investigative authority previously held by each of the executive departments in an independent Office of Inspector General in a number of agencies. Each inspector general was required to report the results of audits or investigations to the head of the department concerned and to make general reports to Congress on a semiannual basis. The statute also required that the president communicate the reasons for removing any inspector general to both houses of Congress.20 Harmon denounced this legislation as making “the Inspectors General subject to divided and possibly inconsistent obligations to the executive and legislative branches, in violation of the doctrine of separation of powers.” For example, he believed that the provision requiring that the inspectors general report directly to Congress impermissibly interfered with the president’s authority to control the execution of the laws. He pointed out in his opinion that, “Article II vests the executive power of the United States in the President. This includes general administrative control over those executing the laws. The President’s power of control extends to the entire executive branch, and includes the right to coordinate and supervise all replies and comments from the executive branch to Congress.” The opinion also noted, “The Justice Department has repeatedly taken the position that continuous oversight of the functioning of executive agencies, such as that contemplated by the requirement that the Inspector General keep Congress fully and currently informed, is not a proper legislative function. In our opinion, such continuing supervision amounts to an assumption of the Executive’s role of administering or executing the laws.” By providing for unlimited access to executive branch materials, the bill also risked infringing upon executive privilege. Moreover, the requirement that the president provide Congress with reasons for any removal of an inspector general constituted “an improper restriction on the President’s exclusive power to remove Presidentially appointed executive officers.” Although the opinion acknowledged

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the exception created by Humphrey’s Executor and Wiener for quasi-judicial or quasi-legislative officers, “the power to remove a subordinate appointed officer within one of the executive departments is a power reserved to the President acting in his discretion.”21 Furthermore, the Inspector General Act violated the unitariness of the executive branch by authorizing the comptroller general to prescribe the audit standards that would apply to the executive branch. 22 The third major piece of reform legislation was the Civil Service Reform Act of 1978 (CSRA), 23 which grew out of a bill submitted by Carter proposing that the Civil Service Commission be replaced by two newly created agencies. The commission’s administrative responsibilities would be transferred to the Office of Personnel Management (OPM), while its appellate functions would be vested in the Merit Systems Protection Board (MSPB) and its investigatory functions would be lodged in an Office of Special Counsel within the MSPB. While this legislation was pending before Congress, Carter issued a reorganization plan and an executive order largely implementing his legislative proposals. 24 When Congress enacted the CSRA, it retained the same standard for dismissal that existed in previous statutes, allowing removals “only for such cause as will promote the efficiency of the service.” It added a list of prohibited personnel practices, including, among other things, discrimination, political coercion, nepotism, and retaliation against whistleblowers. In an apparent desire to limit the range of adverse action that would be reversed on appeal, 25 the CSRA also scaled back some of the procedural protections promulgated by the Civil Service Commission in the aftermath of Arnett v. Kennedy. 26 It also provided for broader judicial review of adverse personnel decisions by giving the courts jurisdiction to overturn MSPB decisions that were arbitrary or capricious, obtained without the applicable procedural protections, or unsupported by substantial evidence. The statute did contain provisions exempting all officials who were appointed by the president; who were confi rmed by the Senate; who served in the foreign service or worked for the Central Intelligence Agency; or who were determined by the president, an agency head, or the OPM to occupy positions “of a confidential, policy-determining, policy-making or policy-advocating character.”27 By exempting all policymaking personnel, this provision in effect limited the scope of the CSRA to purely ministerial officials. As such, this provision did not represent a significant derogation from the unitariness of the executive branch. Other provisions of the CSRA, however, were more problematic. Unlike the Civil Service Act of 1883, which made civil service commissioners

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removable by the president at will, and in contrast to the president’s initial proposal, which was silent on the point and presumably would have allowed for unfettered removal of MSPB members, the version of the CSRA actually adopted provided that MSPB members “may be removed by the President only for inefficiency, neglect of duty, or malfeasance in office.” In addition, the statute extended the same removal protections to the Office of Special Counsel charged with investigating wrongful terminations. 28 Harmon challenged the removal provisions, pointing out that “the functions of the Special Counsel would be predominantly executive in character. . . . Since he will be performing largely executive functions, [the Office of Legal Counsel] believe[s] that Congress may impose no restrictions on the President’s power to remove him.”29 However, when the areas involved did not relate so directly to ethical abuses by the executive branch, Carter was better able to defend the president’s authority to execute the laws. In 1978, Carter vetoed a bill that would have required three cabinet officers to report to Congress whenever the president’s budget requests for certain activities were less than the amounts authorized by Congress and to explain why the higher amounts were not requested. Calling it an “unacceptable intrusion” on his obligations and ability to make budget recommendations, Carter refused to comply. 30 Moreover, the following year he refused to comply with a rider barring him from closing ten specified U.S. consulates, 31 announcing in a signing statement that he would treat the rider as a “recommendation and not a requirement.”32 Carter had closed seven of the ten protected consulates by early the following year. 33 Carter did not hesitate to intervene directly in legal matters of personal concern, dictating the administration’s position in Bakke 34 and overruling Bell’s objection to the use of public funds to pay the salaries of persons working in church schools. 35 The Carter administration also centralized its control over federal litigation, emphasizing the “Attorney General’s plenary power over governmental litigation.”36 Toward this end, Carter created the Federal Legal Council to facilitate “coordination and communication among Federal legal offices” in order to “avoid inconsistent or unnecessary litigation by agencies.”37 Unlike Eisenhower, Carter did permit the agencies to present their own views before the Supreme Court. During the late 1970s, Congress extended the legislative veto into a wide range of new areas, including the war power, national emergencies, impoundment, presidential papers, and federal salaries. As Congress’s use of the legislative veto expanded, Carter continued to oppose the device as an unconstitutional infringement of the president’s exclusive authority

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to execute ongoing federal programs. 38 Carter protested that the legislative veto had “the potential of involving Congress in the execution of the laws, a responsibility reserved for the President under the Constitution.” Therefore, in signing one bill with such a veto, he noted his “intention to preserve the constitutional authority of the President.”39 A month later, Carter even more explicitly based his objection on the unitariness of the executive branch by adding a key word to the language he used in his previous signing statement. The execution of the laws was “a responsibility reserved exclusively to the President under the Constitution.” In the alternative, Carter also anticipated the basis for the Supreme Court’s decision in INS v. Chadha 40 by objecting that legislative vetoes violated Article I, Section 7, of the Constitution. Carter informed Congress that he would treat the legislative veto in the War Powers Act as a “notify and wait” provision.41 He entered similar objections in other signing statements.42 Similar concerns were voiced by Attorney General Bell as well other Justice Department officials.43 Moreover, in a general message to Congress issued on June 21, 1978, Carter issued a sweeping condemnation of all legislative vetoes. In his eyes, legislative vetoes unconstitutionally “inject[ed] the Congress into the details of administering substantive programs and laws.” Such congressional participation in the execution of the laws violated the Take Care Clause by “infring[ing] on the Executive’s constitutional duty to faithfully execute the laws.” Although he noted that “the Attorney General [was] seeking a defi nitive judgment” on the constitutionality of legislative vetoes, Carter observed that “no immediate resolution is in prospect.” Furthermore, legislative vetoes unconstitutionally “authorize[d] Congressional action that has the effect of legislation while denying the President the opportunity to exercise his veto,” effectively “circumvent[ing] the President’s role in the legislative process established by Article I, Section 7 of the Constitution.” Carter also objected to legislative vetoes on policy grounds, pointing out that they contributed to administrative delays, tended to politicize the administrative process, and gave agencies incentive to rely on case-by-case adjudication rather than issuing clear, uniform rules. Therefore, Carter urged Congress not to include legislative vetoes in future legislation and informed Congress that he would treat all extant legislative vetoes as “report and wait” provisions. Furthermore, “if Congress subsequently adopts a resolution to veto an Executive action, we will give it serious consideration, but we will not, under our reading of the Constitution, consider it legally binding.” Carter did acknowledge one major exception to his position: legislative vetoes contained in reorganization acts do “not involve Congressional intrusion into

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the administration of on-going substantive programs, and [they] [preserve] the President’s authority because he decides which proposals to submit to Congress.”44 Consequently, Carter entered no objection when signing the Reorganization Act of 1977.45 The day after Carter’s message to Congress was issued, Bell and White House Adviser Stuart Eizenstat each emphasized that, although the president could not be bound by a legislative veto as a constitutional matter, as a matter of comity he nonetheless had every reason to accommodate the interests of Congress whenever possible.46 As promised, Carter thereafter determinedly opposed legislative vetoes, refusing to sign at least two bills because they contained legislative vetoes47 and announcing in numerous signing statements thereafter his intention to treat legislative vetoes as “report and wait” requirements.48 In three statements, President Carter specifically stated that congressional attempts to exercise a legislative veto would be given serious consideration but not be regarded as legally binding.49 Moreover, like the Ford administration, the Carter administration challenged the constitutionality of the legislative veto in court. For example, the Carter administration questioned the constitutionality of the legislative veto before the Supreme Court in Nixon v. Administrator of General Services. 50 The Court resolved the case without reaching the question, noting only that “whatever are the future possibilities for constitutional confl ict in the promulgation of regulations respecting public access to particular documents, nothing contained in the Act renders it unduly disruptive of the Executive Branch and, therefore, unconstitutional on its face.”51 The Carter administration did face some problems framing the legislative veto as an issue in a justiciable controversy. Even though President Carter instructed the secretary of agriculture in 1978 that he should proceed without following a certain legislative veto provision, 52 the Justice Department concluded that “in spite of the President’s direction, the Department [of Agriculture] and the Forest Service should cooperate with . . . the Congress” and advised the Department of Agriculture that it could voluntarily comply with the legislative veto provision as a matter of policy. The Department of Agriculture ordered the Forest Service “to proceed as if [the legislative veto provision] were applicable,” the president’s instructions notwithstanding. The Forest Service complied with the department’s orders. 53 And even when a court of appeals considered the constitutional merits of the legislative veto, the Carter administration obtained mixed results. 54 These challenges were of more than passing interest to the president. In two separate signing statements, Carter mentioned his intent to bring a judicial challenge to the legislative veto. 55 Moreover, after the Ninth Circuit struck down the legislative

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veto, 56 Carter issued a statement applauding the decision and urging the attorney general to “seek[ ] Supreme Court review of the decision as soon as possible.”57 In fact, the Carter administration even went so far as to ignore Congress’s attempt to exercise a legislative veto over a series of education regulations. Attorney General Benjamin Civiletti advised that the legislative veto provision violated the Constitution and that the secretary was “entitled to implement the regulations in question in spite of Congress’ disapproval.” Civiletti concluded, “Only the executive branch can execute the statutes of the United States.” The executive branch had a duty to execute the law faithfully. However, the attorney general pointed out, the “duty to enforce the fundamental law set forth in the Constitution” at times overrides the “duty to enforce the law founded in the Acts of Congress.” Civiletti continued, “Once a function has been delegated to the executive branch, it must be performed there, and cannot be subjected to continuing congressional control except through the constitutional process of enacting new legislation.” Because the legislative veto “intrude[d] upon the constitutional prerogatives of the Executive,” statutes including legislative vetoes represented an instance in which the president’s duty to the Constitution overrode the president’s duty to enforce properly enacted statutes. To recognize the legislative veto “as legally binding would constitute an abdication of the responsibility of the executive branch, as an equal and coordinate branch of government with the legislative branch, to preserve the integrity of its functions.”58 Despite Congress’s insistence that the attorney general abide by the legislative veto provision, 59 the secretary of education followed Civiletti’s advice and implemented the regulations.60 Congress did not give up without a fight. The House attempted to enforce its legislative veto by adding an amendment to two key appropriations bills providing that “none of the funds appropriated . . . by this Act shall be available to implement, administer, or enforce any regulation” that had been vetoed by Congress.61 The Office of Legal Counsel responded with an opinion condemning the amendments as an attempt by Congress to place indirect restrictions on the president that, if placed directly, would violate the Constitution.62 Like Nixon and Ford, Carter refused to follow the legislative veto procedures required by the War Powers Resolution. However, Carter opposed the provisions as an infringement of his powers as commander in chief, rather than his exclusive power to execute the laws.63 Therefore, although the Carter administration did tolerate the enactment of a few legislative vetoes without comment, it is clear that Carter did defend the unitariness of the executive branch by fi rmly opposing the legislative veto.

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Carter did not merely react to congressional attempts to control the execution of the laws: he also proactively asserted his control over the executive branch by continuing the Nixon-Ford program of OMB review of proposed regulations. Upon assuming office, Carter ordered agencies to continue to analyze the inflationary impact of regulations and directed them to give more detailed consideration to the economic cost of regulations as well. Carter supplemented these directives the following year with an executive order entitled “Improving Government Regulations” that far exceeded previous regulatory review efforts. This program required that executive agencies include a “Regulatory Analysis” in all important proposals, outlining the alternatives considered by the agency and explaining why the agency chose the particular alternative it selected. The order also required that “agencies . . . publish at least semiannually an agenda of significant regulations under development or review.” The order cited no specific authority as its basis, relying simply on Carter’s authority as president of the United States.64 Although the initial draft of the order clearly contemplated that it would apply to the independent agencies as well as the executive departments,65 Carter decided in the end to avoid a “confrontation with Congress over the applicability of the order to the independent regulatory agencies”66 and opted instead simply to ask the chairmen of the commissions to comply voluntarily with the order’s procedures.67 To supplement the order, Carter created the Regulatory Analysis Review Group (RARG) to conduct an intensive review of ten to twenty major regulations a year and to submit its findings during those regulations’ public comment periods. In addition, Carter created a Regulatory Council charged with keeping a calendar of forthcoming significant regulatory proposals and using it to identify and mediate interagency conflicts.68 The Carter administration also issued OMB Circular A-19, laying out procedures for coordinating and clearing agencies’ legislative recommendations, and required that all agencies submit draft signing statements to OMB for approval.69 This circular on its face applied to the independent regulatory commissions, although it should be noted that several of the commissions’ organic statutes provided that the commissions were not subject to OMB circulars. Finally, in 1980 Congress enacted two statutes that further strengthened OMB’s control over agency regulations. The Regulatory Flexibility Act required agencies to analyze the impact of their regulations on small businesses.70 The Paperwork Reduction Act required that OMB review and clear all information collection requests and created the Office of Information and Regulatory Affairs to conduct regulatory reviews.71 In addition, the Executive Office of the President reviewed a large number of the proposed regulations and

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intervened directly in numerous regulatory decisions. Carter also exerted his authority by denying procurement contracts to companies that failed to follow “voluntary” wage and price guidelines.72 The D.C. Circuit eventually upheld Carter’s actions as an exercise of his powers under the general procurement statutes.73 Although this conclusion was quite a stretch, in the end it demonstrates that Carter’s imposition of wage and price controls was an exercise of statutory authority and not an exercise of the president’s power to control the execution of the laws. Like the Quality of Life Review of the Nixon and Ford administrations, Carter’s program stopped short of centralized supervision of the rulemaking process. Although the president and OMB gave some guidance as to which rules should be subjected to regulatory analyses and how regulatory analyses should be conducted,74 the fi nal decisions on those issues were left to the individual agencies. Furthermore, RARG had no authority to block agencies from issuing proposed or fi nal regulations and did not begin its review until after the proposed regulation had been published in the Federal Register. The fact that RARG review occurred after a rule had already been proposed marked a significant change from the Quality of Life Review, since it prevented reviewers from attempting to influence regulations before they were proposed. Nonetheless, commentators have generally acknowledged that Carter’s regulatory review program did enable the president to increase his control over regulatory policy.75 Carter left office after negotiating a sweeping settlement for the Iranian hostage crisis of 1979 and 1980. Under the settlement, the Iranians released the hostages in return for the release of all Iranian assets frozen in the United States and the establishment of an arbitration process to settle the claims of private parties against Iran. Many lawyers thought that given its sweeping impact on private property rights the agreement might be unconstitutional in the absence of legislation. The Supreme Court disagreed and upheld Carter’s sweeping claim of presidential power in Dames and Moore v. Regan,76 a case that seemed to run counter to the Steel Seizure decision.77 Thus, despite his acceptance of post-Watergate legislation that impinged on his authority to execute the laws, on balance Carter emerges as a defender of the unitary executive. The fact that short-term political pressures effectively precluded him from asserting the president’s prerogatives on a few occasions does not signify acquiescence in a diminution of the unitary executive for purposes of coordinate construction. Rather, Carter’s rejection of Congress’s attempts to turn the whole Justice Department into an independent agency and his opposition to the legislative veto clearly mark him as another defender of the unitary executive.

40

Ronald Reagan

The inauguration of Ronald Reagan marked the nation’s reemergence from its post-Watergate malaise and a major turning point in the balance of power between the president and Congress over the administration of the law. Both the Reagan administration’s supporters and its critics generally considered the defense of the unitary executive a key part of Reagan’s policy program.1 As Charles Fried, Reagan’s solicitor general, has written, “The Reagan Administration had a vision about the arrangement of government power: the authority and responsibility of the President should be clear and unitary. The Reagan years were distinguished by the fact that that vision was made the subject of legal, rather than simply political, dispute.”2 In particular, Reagan ushered in an era of much greater control by the White House staff through the Office of Management and Budget than had existed before 1981. In addition, Reagan’s second attorney general, Edwin Meese III, sketched out a broad understanding of presidential power that has largely prevailed over the past twenty-five years. Other observers have been more equivocal about the depth of Reagan’s commitment to the unitary executive. As Reagan’s first attorney general, William French Smith, later wrote, “If there was one area in which the White House was deficient during my years in office, it was in the protection of presidential power. Decisions there were made on the basis of the substance

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of individual issues. There was no effective concern or review of the impact that issue or the position taken with respect to it would have on presidential power. Nor was there any effort to identify governmental activities elsewhere that, if developed, would adversely affect the province of the executive. Nor, to be candid, was the bully pulpit used to provide leadership or defense of that vital institution.”3 In support of Smith’s criticism, Gary Lawson and Nelson Lund have pointed out that President Reagan never once vetoed a bill because it infringed upon presidential power, and he mistakenly signed the bill reauthorizing the special prosecutor law for five years.4 Regardless of how deep one thinks Reagan’s commitment to the unitary executive ran, it is crystal clear that Reagan never acquiesced in or agreed to a congressional power that deviated from the unitary executive. Reagan quickly showed that he was his own man on personnel actions, as evidenced by his decision not to give Meese, his longtime confidant and the head of his transition team, the job he wanted and frankly deserved the most: White House chief of staff. Instead, that job went to James Baker, formerly of George Bush’s presidential campaign, with Meese receiving a free-floating White House spot as counselor to the president. Reagan then made Michael Deaver the third member of his White House troika for the fi rst term, giving him the title of deputy chief of staff. Meese, Baker, and Deaver appeared to struggle for preeminence on the White House staff during Reagan’s fi rst term. This apparent struggle for preeminence left Reagan able to pick and choose from the policy options that his three subordinates presented to him, although the ever-loyal Meese usually prevailed in the end. The net result was to augment Reagan’s power and control. 5 Reagan was not at all hesitant to use the removal power to further his administration’s goals. Early in the fi rst term, Reagan had his fi rst major cabinet removal crisis when it became clear that Secretary of State Alexander Haig was not working out well. Just as Reagan had been determined in picking Baker over Meese as White House chief of staff, he was determined in forcing Haig to resign. In addition, during his fi rst year in office Reagan dramatically used his removal power to settle an air-traffic controllers’ strike by fi ring the striking air-traffic controllers. During his second term, Reagan subtly forced the resignation of his White House chief of staff Donald Regan because of Regan’s failure to detect the Iran-Contra affair.6 Reagan also demonstrated his support for the unitary executive by the manner in which he wielded his removal power to displace three members of the U.S. Commission on Civil Rights in 19837 and numerous other officials previously thought to be insulated from presidential control.8 Although the courts did not always approve of Reagan’s removals,9

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the fact that Reagan often used his power to remove officials shows his commitment to the unitary executive. Reagan also supported the unitary executive by opposing all three of the post-Watergate ethics statutes reluctantly accepted by the Carter administration. First, in 1981 Reagan removed a dozen inspectors general without complying with the statutory requirement that he inform Congress of the reasons for his removals. Instead, Reagan simply explained that he wanted inspectors general in whom he had total confidence.10 Second, Reagan pocket vetoed the proposed Whistleblower Protection Act of 1988, which would have amended the Civil Service Reform Act in ways that would have derogated from the unitary executive. The Whistleblower Protection Act would have moved the Office of Special Counsel outside the Merit Systems Protection Board and turned it into a freestanding independent agency.11 Other provisions would have given the Office of Special Counsel independent litigating authority that was not subject to coordination by the Justice Department. It would also have authorized the OSC to transmit information to Congress “without review, clearance, or approval by any other administrative authority.”12 Recalling the concerns fi rst raised by John Harmon, Reagan objected that the Act “creates an Office of Special Counsel and purports to insulate the Office from presidential supervision and to limit the power of the President to remove his subordinates from office.” Reagan was also concerned about a second provision, which “purport[ed] to prohibit review within the Executive branch of views of the Office of Special Counsel proposed to be transmitted in response to congressional committee requests.” These provisions clearly raised “serious constitutional concerns.” But Reagan reserved his sharpest criticism for the section of the bill that would have authorized the OSC to challenge the decisions of the MSPB in court. Permitting two executive agencies to resolve a dispute in court “confl ict[ed] with the constitutional grant of the Executive power to the President which includes the authority to supervise and resolve disputes between his subordinates.” Such a provision was antithetical to the theory of the unitary executive.13 Third, the Reagan administration in due time came to oppose the Ethics in Government Act as an unconstitutional infringement on the unitariness of the executive branch. Although the administration did not enter any objections when the act was fi rst reauthorized in 1983,14 by the time Congress revisited the issue again in 1987, the administration had begun to voice more serious concerns. Assistant Attorney General John R. Bolton challenged the constitutionality of the act during hearings, arguing that all prosecutors were properly considered executive officers, who thus had to be subject to

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the direction and control of the president.15 Assistant Attorney General for the Office of Legal Counsel Charles Cooper endorsed Bolton’s position.16 Reagan concurred, declaring that “an officer of the United States exercising executive authority in the core area of law enforcement necessarily, under our constitutional scheme, must be subject to executive branch appointment, review, and removal. There is no other constitutionally permissible alternative.” However, in light of the fact that the matter was being litigated before the D.C. Circuit and “in order to ensure that public confidence in government not be eroded while the courts are in the process of deciding these questions,” Reagan chose to “tak[e] the extraordinary step of signing this bill despite [his] very strong doubts about its constitutionality,” while at the same time pressing his opposition to the independent counsel statute in the administration’s briefs before the D.C. Circuit and the Supreme Court in the litigation leading up to Morrison v. Olson.17 In his brief in the Morrison case, Solicitor General Charles Fried argued that the Vesting and Take Care Clauses of Article II demanded that the president be able to control the actions of, and remove, independent counsels. The argument section of Fried’s brief began by saying: Article II, Section 1, of the Constitution declares: “The executive Power shall be vested in a President of the United States of America.” Section 3 of the same Article then charges the President with the corresponding duty: “he shall take Care that the Laws be faithfully executed.” The independent counsel statute violates the plain meaning of those words by taking an important part of the executive power, and of the concomitant duty to see the faithful execution of the laws, away from the President and assigning it to a person unaccountable to the President in her selection and her performance and her tenure. The statute vests executive power other than in the President, in direct contravention of Article II, Section 1’s “grant of power.”18

The brief goes on to assert, “Whatever limits Congress may constitutionally impose on the President’s various means of holding other officers to account, it may not deny his power to remove purely executive officers like an independent counsel.” The brief distinguishes Humphrey’s Executor19 and Wiener 20 by saying that those cases concerned entities that were quasilegislative or quasi-judicial, and here the prosecution of high-level wrongdoing was a core executive function. All in all, the brief was a ringing defense of the unitary executive, which unfortunately led to a disastrous Supreme Court decision. 21 The Court in Morrison v. Olson divided seven to one, with Chief Justice Rehnquist writing for the Court in upholding the constitutionality of the

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Ethics in Government Act. The most important part of Rehnquist’s decision for the purposes of this book was his apparent conclusion that even officers performing such core executive functions as prosecution could be insulated from presidential removal. 22 Justice Scalia wrote an eloquent dissent in which he berated the majority not only for its erroneous interpretation of Article II but also for failing to follow Humphrey’s Executor, which itself did not purport to apply to core executive functions like prosecution. 23 The Reagan administration lost the battle in the Morrison case. Even though the administration’s arguments failed to convince a majority of the Supreme Court, the fact that the administration advanced them is suffi cient to overcome any claims that the executive branch acquiesced in the institution of the independent counsel as a deviation from the unitary executive. Indeed, many scholars have questioned whether Morrison precludes a president from removing a member of an independent agency for failing to follow a presidential policy directive. 24 Reagan also joined his predecessors in objecting to the legislative veto, which continued to command significant support in Congress. Indeed, the Senate passed legislation that would subject all agency rules to a legislative veto. 25 Although Reagan primarily based his attacks on the bicameralism and presentment requirements of Article I, Section 7, of the Constitution, 26 he also condemned legislative vetoes “because of the potential for involving the Congress in the day-to-day implementation of the law, a responsibility allocated solely to the President under the Constitution.” Reagan further noted, “These provisions can be expected to inject an unnecessarily disruptive element by subjecting proposed programs to disapproval, congressional or even committee, even after they have been examined by the executive branch and found to be compatible with congressionally adopted standards and supportive of the national interests of the United States.”27 The Reagan administration backed up its rhetoric by successfully challenging the legislative veto in the Courts of Appeals and by pressing the case before the Supreme Court, in which it argued that the legislative veto impermissibly allows Congress to participate in the execution of the laws. 28 These efforts culminated during the Reagan years in the landmark ruling in INS v. Chadha holding that the legislative veto violates the bicameralism and presentment requirements of Article I, Section 7. 29 The fact that the Supreme Court resolved the case on alternative grounds does not change the import of the Reagan administration’s assertion of the unitary executive for the purposes of coordinate construction. Indeed, Reagan continued his opposition to legislative vetoes in the face of Congress’s refusal to follow Chadha when Congress continued to pass laws containing legislative

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vetoes. Reagan’s signing statements approving these laws consistently said that the unconstitutional legislative veto provisions would be ignored.30 The Chadha decision bolstered the legitimacy of presidential signing statements when footnote 13 cited signing statements from Woodrow Wilson up to Ronald Reagan objecting to legislative vetoes as being unconstitutional. 31 After Chadha, the Reagan administration did enter into some informal agreements with Congress that served much the same purpose as legislative vetoes. 32 The fact that the executive branch at times may voluntarily choose to keep Congress informed, however, is not in any way inconsistent with the unitary executive or any other provision of the Constitution. 33 The Reagan administration also revived the objections raised by Presidents Woodrow Wilson and Franklin Roosevelt to permitting the comptroller general to have any role in the execution of the laws. For example, when signing the Gramm-Rudman-Hollings Balanced Budget and Emergency Deficit Control Act, which gave the comptroller general the authority to issue sequestration orders that would lead to a series of mandatory budget cuts, Reagan noted that “under the system of separated powers established by the Constitution, . . . executive functions may only be performed by officers in the executive branch.” Thus, Reagan concluded, the “significant role” the bill assigned to the comptroller general raised “serious constitutional questions,” because the comptroller general was an agent of Congress who could not properly wield such executive power. Although Reagan signed the legislation, he emphasized that he was “in no sense dismissing the constitutional problems or acquiescing in a violation of the system of separated powers carefully crafted by the framers of the Constitution.” Reagan also harbored constitutional concerns about a provision in the act requiring comptroller general approval of all presidential terminations and modifications of defense contracts. Reagan noted, “Under our constitutional system, an agent of Congress may not exercise such supervisory authority over the President.”34 Therefore, notwithstanding his approval of the act, the Reagan administration successfully challenged Gramm-Rudman in court, arguing among other things that it unconstitutionally encroached upon the president’s Article II power to execute the laws. 35 Footnote 1 of the Supreme Court’s decision in Bowsher v. Synar relied on Reagan’s objections made in the signing statement when the Gramm-Rudman-Hollings Act was enacted into law. 36 For the same reasons, the Reagan administration also challenged the parts of the Competition in Contracting Act (CICA) that let the comptroller general resolve protests entered by unsuccessful bidders for government contracts. 37 Reagan “vigorously object[ed] to certain provisions that would

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unconstitutionally attempt to delegate to the Comptroller General of the United States, an officer of Congress, the power to perform duties and responsibilities that in our constitutional system may be performed only by officials of the executive branch.”38 Thus, Attorney General Smith and OMB Director David Stockman issued orders to the executive agencies not to comply with CICA, and the administration subsequently refused to comply with a district court order upholding CICA’s constitutionality. 39 Although the courts did not ultimately accept Reagan’s objections to CICA,40 the fact remains that the Reagan administration protested Congress’s efforts to assign the comptroller general a role in executing the law as being inconsistent with the unitary executive. The Reagan administration also asserted the president’s authority to control the execution of the laws directly. For instance, Reagan took fi rm control of the federal government’s legal affairs, expanding the Federal Legal Council, using opinions issued by the Office of Legal Counsel to centralize control of governmental litigation in the attorney general, and even assuming a role in the positions that his administration took before the Supreme Court. The Reagan administration also repudiated several informal nonstatutory understandings regarding the division of responsibility between the executive departments and the independent agencies and challenged one such agency’s efforts to fi le an amicus brief in federal appellate court.41 In fact, the administration went so far as to question the very constitutionality of these agencies’ supposed “independence.” As Attorney General Meese noted, “Federal agencies performing executive functions are themselves properly agents of the executive. They are not ‘quasi’ this or ‘independent’ that. In the tripartite scheme of government, a body with enforcement powers is part of the executive branch of government.” Indeed, Meese suggested that “the entire system of independent agencies may be unconstitutional.”42 The Reagan administration took another step that was to prove to be of critical importance to the theory of the unitary executive. Thus, Reagan asserted the president’s authority to control the execution of the laws directly by continuing and expanding upon the regulatory review program initiated by his predecessors. Executive Order 12291 directed all executive agencies to develop regulatory agendas summarizing all of the proposed regulations that an agency expects to issue and to employ cost-benefit analysis in implementing the regulations. The order further required them to submit all rules to OMB for prepublication review and to prepare Regulatory Impact Analyses of all major rules, with each RIA explicitly laying out the anticipated costs and benefits of a rule, the alternatives considered, and an explanation, if appropriate, of the reasons why the most cost-effective means of achieving

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the anticipated benefits was not adopted. OMB would review the proposed rules and the RIAs to maximize the “aggregate net benefits to society.”43 In addition, the regulatory planning process enhanced political accountability by ensuring that agency heads took an active role in setting agency priorities and in shaping major regulatory initiatives before they became set in stone.44 Strikingly, Kenneth Mayer points out that since Executive Order 12291 “itself cites no specific statutory or constitutional provision as the basis for the president’s authority to issue it . . . , it relies on a unitary picture of presidential authority—the idea that the president, as chief executive, has the authority to manage and control the activities of all executive branch officials and agencies (at least insofar as permitted by statute).”45 George H. W. Bush’s White House counsel C. Boyden Gray aptly noted that Executive Order 12291 was “considered revolutionary at the time . . . and has earned the reputation as one of the most far-reaching government changes made by the Reagan Administration.”46 Reagan supplemented Executive Order 12291 with Executive Order 12498, which empowered OMB to take formal control of the regulatory planning process by requiring agencies to submit to OMB a “draft regulatory program” describing “all significant regulatory actions” to be undertaken that year. OMB would then resolve any inconsistencies between the draft regulatory program and the administration’s policies and would consolidate them into the administration’s overall regulatory plan.47 Like the Carter administration, the Reagan administration considered including the independent regulatory commissions within its program of regulatory review, but declined to do so.48 Reagan specifically disclaimed any intent to direct agency decisionmaking, noting that nothing in the order “shall be construed as displacing the agencies’ responsibilities delegated by law.”49 Reagan did not invoke any particular statutory authority for issuing these orders, instead relying solely on “the authority vested in [him] as President by the Constitution and laws of the United States of America,” as had so many of his predecessors. 50 Courts reviewing these orders apparently agreed. 51 These two orders extended the White House’s control over the agencies to a far greater degree than ever before by dictating substantive criteria that agencies had to employ in issuing regulations and by permitting OMB to postpone indefi nitely the publication of regulations of which it disapproved. Even opponents of the unitary executive theory recognized that the regulatory review program did in fact have a direct impact on regulatory outcomes and represented one of the most sweeping invocations of the unitary executive yet seen. 52 Christopher Kelley accurately notes that, “taken

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together, these two executive orders enabled the president to control a great deal of the policies that made their way through the bureaucracy. As one former staff member at the EPA noted, ‘You don’t spend two years thinking about a regulation without thinking about whether OMB is going to shoot it down.’”53 As David Lewis points out, “In response to President Reagan’s subjection of all new regulations to cost-benefit analysis beginning in 1981, Congress attempted in 1986 to defund the agency responsible, the Office of Information and Regulatory Affairs (OIRA). After extracting what members believed to be concessions from the OMB and the White House, Congress relented in its attempts. Ambiguities in the agreement, however, led to continued confl ict between the legislative and executive branches over the regulatory review practices of the OMB.”54 In 1987, Reagan extended the program of OMB review by issuing executive orders requiring agencies to consider the effect proposed regulations would have on families and on federalism. 55 The Reagan administration won a key victory for presidential power in the 1984 Supreme Court decision in Chevron USA Inc. v. Natural Resources Defense Council, in which the Court held that where statutory language was ambiguous and could reasonably be interpreted in different ways, the federal courts should defer to the interpretation made by the implementing executive branch agency. 56 This gave the executive branch a great deal of new leeway in interpreting the laws. Taken together with Executive Orders 12291 and 12498, Chevron “pushed ‘interpretation of the meaning’ of the law up to political officers within the executive branch—to the OMB and the White House staff.”57 This led to a major increase in the power of the president to control the executive branch. During his second term, Reagan designated Meese to lead the Justice Department by appointing him attorney general. Meese was very fi rmly committed to the theory of the unitary executive as well as to the authority and duty of all three branches to interpret the Constitution. As we mentioned above, Meese explicitly questioned the constitutionality of independent agencies in a major speech. He also made a speech defending departmentalism—the notion that all three branches of the federal government are coequal interpreters of the Constitution—that was worthy of Thomas Jefferson or Abraham Lincoln. 58 Meese’s so-called Tulane speech defending departmentalism is every bit as ringing as Lincoln’s similar speech responding to Dred Scott. Finally, Meese launched a Reagan administration initiative to bolster the visibility and importance of presidential signing statements. In February 1986, Meese secured the agreement of the West Publishing Company to publish presidential signing statements in the legislative history section of the United States Code Congressional and Administrative

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News along with House and Senate committee reports. This placement was designed to secure signing statements more attention as presidential legislative history. The announcement of the signing statement initiative was then followed up with a sustained effort by the Reagan administration to craft signing statements to promote the administration’s legal views. Important and controversial signing statements issued by the Reagan administration included those that accompanied the Safe Drinking Water Act, the Immigration Reform and Control Act, and the Sentencing Act of 1987. 59 Reagan was decisive and personally in charge when it came to most matters of policy. When the question arose whether to invade and liberate the tiny Caribbean nation of Grenada, Reagan tersely ordered his joint chiefs of staff, “Do it.” In the key arms control negotiation with Mikhail Gorbachev in Reykjavik, Iceland, Reagan took personal charge of the negotiations, and when Gorbachev tried to force him to abandon the Strategic Defense Initiative, Reagan dramatically walked out of the Reykjavik talks. Jimmy Carter’s national security adviser, Zbigniew Brzezinski, was later to identify Reagan’s walkout at Reykjavik as the key moment when the cold war was won.60 Even after the disastrous Iran-Contra scandal broke Reagan took the decisive action of appointing a three-member board of inquiry headed by former senator John Tower to investigate the scandal and get to the bottom of what had happened. Reagan was, in short, a very decisive leader who always knew what direction he wanted policy to go in. The historical record thus shows Ronald Reagan to be a steadfast proponent and supporter of the unitary executive. Even if one agrees with Attorney General Smith that the Reagan administration could have done more to protect presidential power, Reagan’s efforts on behalf of the unitary executive certainly do not show any acquiescence in congressional dismemberment of the unitary executive. While Reagan should not have signed the reauthorization of the special prosecutor law, he did fight that law and all others like it in the courts. Ronald Reagan was, like his hero FDR, a committed proponent of the unitary executive.

41

George H. W. Bush

More than almost any other president besides William Howard Taft, George Herbert Walker Bush staunchly defended the unitariness of the executive branch.1 Bush was a vigorous, hands-on leader, and his attention to detail was appreciated by the public after concerns in Ronald Reagan’s later years over his inattention to detail. Bush’s biographer John Robert Greene reports, “Despite Americans’ latent affection for Ronald Reagan, long before 1988 they had become troubled with his hands-off, detached approach to presidential leadership. In George Bush they found Reagan’s polar opposite. Bush’s style of executive leadership was characterized by indefatigable energy. Indeed the words ‘energetic’ and ‘hyperactive’ damn Bush with faint praise; by any defi nition he was a workaholic. . . . Bush’s staff continually complained (or boasted, depending on whom they were talking to) about the long hours and the phone calls in the middle of the night from a boss who just wanted to talk.”2 George H. W. Bush was clearly in charge of his administration and was very attentive to details. Thanks in large measure to White House Counsel C. Boyden Gray and his superb legal staff, Bush defended the unitariness of the executive branch with almost academic rigor. The Bush administration began with the somewhat surprising decision that after eight years of Ronald Reagan, it was time to clean house. Greene reports, “Far from the ‘friendly takeover’ that many members of the press,

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and later, one influential scholarly book viewed it to be, Bush sounded as if he were taking the office away from a president of the other party.” Greene notes that superficially the cabinet seemed to belie this, as seven Reagan cabinet members continued in the Bush administration. But since “Bush had absolutely no intention of dispersing power back to the departments,” what really mattered was his complete overhaul of the White House staff. Greene further notes, “As the administration carried on, cabinet meetings became more infrequent. Though he made it clear to his staff that any member of his cabinet could see him at any time, Bush reserved the policy-making role for his White House staff.”3 Early on in his administration, Bush engaged in a major battle with the Democrats, who controlled the Senate, over the nomination of former senator John Tower to be the new secretary of defense. Tower had been very supportive of Bush’s career in Texas politics, and Bush stuck with him loyally and doggedly to the very end. When Tower’s nomination was fi nally rejected on a vote of fi fty-three to forty-seven, it became the fi rst cabinet nomination to fail since the last years of the Eisenhower administration. Bush immediately recovered by appointing Dick Cheney to be secretary of defense in place of Tower, and Cheney was easily confi rmed. Bush’s willingness to support Tower against all the odds sent an important signal to subordinates in the executive branch that loyalty would be a two-way street in the fi rst Bush administration. Almost immediately after his inauguration, Bush expressed his concerns about the erosion of presidential power. In response to these concerns, Bush embarked upon one of the most aggressive defenses of the president’s prerogatives the republic had ever seen. Bush used a plethora of vetoes and signing statements to protect against any invasions of the constitutional authority of the presidency that he perceived.4 Confronting from day one a Democratic majority in both the House and the Senate, Bush realized from the start that he was going to have to wield his veto power to great effect if he wanted to play a role in policymaking, and in the end Bush was to achieve astonishing success in using the veto, vetoing forty-four bills. The only Bush veto ever to be overridden was of the Cable Television Protection and Competition Act of 1992. 5 Greene reports, “As a result of his successes with the veto, Bush was able to use the threat of it to affect how legislation was constructed. As of 25 July 1991, the White House Press Office had recorded thirty-eight threats of a presidential veto of legislation; the vast majority of the legislation on the list did not ever become law.” In this way, Bush was able “to put a conservative cast on legislation that was, in its original form at least, marked by the liberal slant of the Democratic Congress.”6

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Perhaps the most important example for our purposes is the Ethics in Government Act, which was scheduled to expire in 1992. In a speech, Bush indicated that he would veto any extension of the independent counsel statute unless significant changes were made.7 At a luncheon with reporters, Attorney General William Barr reiterated the Bush administration’s dissatisfaction with the act and confi rmed the likelihood of a veto of the proposal then pending before Congress.8 This veto threat, when combined with a fi libuster organized by Senate Republicans, doomed the reauthorization legislation and caused the act to lapse. Bush undertook other steps to assert control over his administration. For example, Bush charged that permitting executive agencies to present to Congress views differing from those of the administration “infringed upon my constitutional responsibility to supervise my subordinates and to ensure that the executive branch speaks with one voice.” Therefore, Bush indicated that he would “interpret these provisions in a manner consistent with my constitutional authority, as head of a unitary executive branch, to resolve disputes among my subordinates before their views are presented to the Congress.”9 Bush similarly issued a signing statement objecting to a provision requiring an agency to report simultaneously to both the president and Congress, on the grounds that the provision “would intrude upon the President’s authority to supervise subordinate officials in the executive branch.”10 Bush also expressed constitutional concerns about a statutory provision authorizing an executive official to submit “‘reports, recommendations, testimony, or comments’ to the Congress without prior approval or review by ‘any officer or agency of the United States.’”11 Bush also opposed statutes purporting to prohibit the president from changing any decisions made by executive officials, objecting that insulating subordinate officials of the Department of Health and Human Services from presidential review deprives the president “of his constitutional authority to supervise their actions.”12 Similarly, Bush noted that the use of “‘independent’ appraisers, who would not be subject to supervision by the President,” was “contrary to Article II of the Constitution.”13 Any such provisions, he said, “must be interpreted in light of my constitutional responsibility, as head of the unitary executive branch, to supervise my subordinates.”14 Bush raised similar objections to statutes that attempted to limit his ability to resolve confl icts within the executive branch. For example, when faced with a provision purporting to determine how the president would resolve a dispute between the secretary of energy and the administrator of the Agency for International Development, Bush concluded that the provision must be interpreted “consistent with my inherent constitutional authority as head of

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the executive branch to supervise my subordinates in the exercise of their duties, including my authority to settle disputes that occur between those officials through means other than those specified in the statute.”15 Bush also objected that attempts to limit regulatory review by OMB “could be interpreted to interfere with my authority under the Constitution to supervise the decision-making process within and management of the executive branch.”16 Bush noted, “When a member of the executive branch acts in an official capacity, the Constitution requires that I have the ultimate authority to supervise that officer in the exercise of his or her duties.”17 Clearly, if any president aspired to a “zero-tolerance” policy with regard to infringements on the unitary executive, it was Bush. The Bush administration backed up these words with action. It ignored the failure of the Reagan administration’s challenges to the comptroller general’s role in executing the Competition in Contracting Act and ignored the fee-recovery provision of the act for similar reasons.18 Furthermore, the Bush administration pressured Congress into enacting a version of the Whistleblower Protection Act that omitted the constitutionally objectionable features that had led Reagan to pocket veto the initial version.19 Specifically, the revised Whistleblower Protection Act dropped the previous attempt to give the Office of Special Counsel independent litigating authority. As Bush noted in his signing statement, this change “addresse[d] the chief constitutional concerns raised by earlier versions of this legislation. The most substantial improvement in the bill is the deletion of provisions that would have enabled the Special Counsel, an executive branch official, to oppose other executive branch agencies in court. Under our constitutional system, the executive branch cannot sue itself.”20 The amendment also resolved one of the other problems with the original legislation by providing that any materials submitted by the Office of Special Counsel to Congress would be submitted “concurrently” to the president, dropping the clause providing that such materials would be submitted without the president’s review. 21 In his signing statement Bush construed these provisions in a manner consistent with the unitary executive by saying, “I do not interpret these provisions to interfere with my ability to provide for appropriate prior review of transmittals by the Special Counsel to the Congress.”22 This particular signing statement was one of many that the Bush administration published as it took the Reagan signing statement initiative and carried it to a whole new level. Bush issued almost as many signing statements in his four years as president (214) as Reagan had in eight years (276). But more important, 146 of Bush’s signing statements raised constitutional issues, whereas only seventy-one of Reagan’s did. The most significant Bush

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signing statement accompanied a landmark statute, the Civil Rights Act of 1991, through which the Bush administration planted an alternative and greatly narrowing legislative history into the public record. 23 Another major signing statement came with the Clean Air Act Amendments of 1990. 24 In addition, the Bush administration continued the Reagan era practice of writing signing statements to urge executive branch agencies to treat as unconstitutional practices that had been upheld as constitutional by the courts. 25 Bush also asserted his control over the executive branch by continuing the regulatory review program established by Executive Orders 12291 and 12498 during the Reagan administration. Bush supplemented these executive orders by creating an interagency task force known as the Council on Competitiveness, which was charged with coordinating regulatory policy and mediating disputes arising between the Office of Information and Regulatory Affairs and the agencies during the regulatory review process. 26 Through this mechanism, the Bush White House was able to exert its control over the entire executive branch in an extremely effective manner. David Lewis reports that the Council on Competitiveness irked Congress so much that in “1992, the House voted to delete funding for the salaries of staffers on the council, but the Senate restored the funds when President Bush threatened a veto.”27 The Council on Competitiveness’s effectiveness is especially evident, for example, in an incident when Bush partially overruled both OMB and the Food and Drug Administration, approving a modification to food labeling requirements proposed by the FDA over OMB’s objections, but changing its substantive scope by exempting restaurants in partial accommodation of OMB’s concerns. It would be a mistake to construe Bush’s willingness to compromise as suggesting that the decision was anyone’s but the president’s to make. As FDA Commissioner David Kessler acknowledged, “If the decision went against me, I could not disobey an order from the President. For me as a political appointee, the only response to defeat was to leave.” Indeed, when Deputy Chief of Staff Bob Zoellick informed Kessler of the fi nal outcome, he flatly stated, “This is the President’s decision.”28 It is true that Bush found himself unable to mandate OMB’s preferred solution. Bush noted with some surprise, “I can’t just make a decision and have it promptly executed, that the Department can’t just salute smartly and go execute whatever decision I make.”29 Some critics of the unitary executive have taken this statement as a reflection of limitations on the president’s sole authority to execute the law. 30 Closer inspection reveals any such conclusions to be erroneous. Bush’s inability to impose OMB’s proposal did not reflect any substantive restrictions on the president’s authority to execute

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the law. Changes of the magnitude proposed by OMB would have to be subjected to the notice and comment requirements of the Administrative Procedure Act, which would delay the decision by at least six to eight weeks and leave the fi nal decision to the Clinton administration. 31 Bush also attempted to assert his control over the independent agencies when he directed the U.S. Postal Service to withdraw its suit against the Postal Rate Commission “pursuant to the President’s authority as Chief Executive and his obligation to take care that the laws are faithfully executed.”32 Bush backed up his order by threatening to remove members of the Postal Service’s Board of Governors who refused to go along with his order. That the courts eventually refused to back up Bush’s order33 does not blunt the fact that the Bush administration’s position represented a strong assertion of the unitariness of the executive branch. We mentioned earlier the way the Reagan administration augmented its control of the executive branch with its victory in the Chevron case. 34 The Bush administration added to this victory by winning a five-to-four victory in Rust v. Sullivan, 35 a case in which an ambiguous statute already on the books got reinterpreted and the reinterpretation received judicial deference. 36 This decision again greatly augmented presidential power. There was one major removal in the Bush years, and it involved John Sununu, Bush’s fi rst White House chief of staff. Although brilliant and dedicated, Sununu ultimately became a liability to Bush. George W. Bush and Andrew Card, Sununu’s deputy, ultimately persuaded Sununu that Bush wanted him to resign, and he fi nally did so on December 3, 1991. There is no question that the resignation was a forced one, for the angry Sununu did not want to leave. In addition, Bush continued the pattern of presidential opposition to the legislative veto as an impermissible violation of the separation of powers. 37 Accordingly, Bush announced that he would “treat [legislative vetoes] as having no legal force or effect in this or any other legislation in which they appear.”38 Although the Bush administration did enter into at least one informal agreement with Congress that would have had much the same effect as a legislative veto, 39 such informal arrangements did not raise the same constitutional concerns as true legislative vetoes.40 But even an administration as vigilant as Bush’s about protecting presidential power was occasionally derelict in its duty to protect the unitariness of the executive branch. Despite Bush’s attempt to object to every legislative veto, Reagan and Bush reportedly signed more than two hundred new legislative vetoes into law after Chadha and often complied with them.41 Moreover, when Congress enacted a statute permitting members of Congress to

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exercise control over the management of Washington National and Dulles Airports, the Bush administration failed to challenge its constitutionality before the Supreme Court when given the opportunity to do so.42 The Bush administration did not suffer for its mistake, as the Supreme Court nonetheless struck down the legislation in part because it represented an impermissible exercise of executive power by members of the legislative branch.43 The Bush administration’s failure to defend the unitary executive in this one regard simply underscores the propriety of requiring that a presidential practice be systematic, unbroken, and longstanding before it can form the basis of inferring acquiescence for the purposes of coordinate construction. It should not undermine the other, ample evidence that President Bush determinedly defended the president’s authority to execute the laws throughout his administration and that he almost invariably acted to protect the unitariness of the executive branch against any and all congressional attempts to encroach upon it. The Bush administration ended with some extraordinary Christmas pardons of leading figures being investigated in the Iran-Contra probe headed by independent counsel Lawrence Walsh. Among those pardoned were Caspar Weinberger, former secretary of defense to President Reagan. The Walsh investigation was seen by the fi rst President Bush and by most Republicans as being a partisan, vindictive witch hunt. Indeed, it is fair to say that Republicans saw the Walsh investigation as an abusive prosecution in the same way Democrats later viewed Kenneth Starr’s investigations of President Bill Clinton. President Bush’s pardons of Weinberger and others for all practical purposes ended the Walsh investigation dead in its tracks. These pardons showed the fi rst President Bush’s determination not to let a court-appointed independent counsel interfere with the presidential power to see to it that the laws were faithfully executed. The Christmas pardons were thus a triumph for the unitary executive. They allowed the president to reassert executive power over the Walsh investigation that the Ethics in Government Act had wrongly taken away from him.

42

Bill Clinton

Although Bill Clinton has emerged as one of the most controversial presidents of the twentieth century,1 all agree that Clinton’s intelligence and knowledge of policymaking details are very impressive. As Elena Kagan has shown, Clinton was a master at asserting presidential control over the executive branch of the government, including the independent agencies. 2 Joe Klein, Clinton’s biographer, notes that the president’s ability awed his staff, because of “Clinton’s intelligence—particularly, his encyclopedic knowledge of policy questions—his perseverance and his ability to charm almost anyone under any circumstances; he was, without question, the most talented politician of his generation. At close range, his skills could be breathtaking: He was always the center of attention; he fi lled any room he entered.” Klein adds that Clinton “seemed to know everything there was to know about domestic social policy.” Others echo these conclusions with regard to Clinton’s knowledge of policymaking details. Klein quotes one observer as saying that Clinton was “just remarkable. You call him up and ask, ‘Who’s doing interesting things in housing?’ And he can tell you what everyone is doing—every last housing experiment in every state.”3 Harold Varmus, Clinton’s director of the National Institutes of Health, remembered Clinton grilling “AIDS researchers for several hours, asking questions so detailed and sophisticated that most of the participants were

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shocked by his mastery of the issue.” Clinton seemed to promise so much with “his intelligence and remarkable political skills, . . . his detailed knowledge of almost every government activity, . . . his very presence.”4 In sum, there can be no doubt about the force of Clinton’s intelligence or about his mastery of the details of policymaking. In addition, Clinton was an unusually hardworking president who was deeply immersed in the policymaking details of his administration. He demanded total control over the workings of the executive branch—and this attitude fi ltered into his decisions in appointing and dismissing as well as controlling subordinates: Clinton’s problems stem not from his oft-reported love of detail, but also from his desire to reach down into his administration to make minor decisions best left to others. Consider the delays in fi lling important jobs in the administration. Clinton demanded that he be involved in “signing off on the appointment of every assistant secretary, and sometimes deputy assistant secretaries.” The desire to be involved in every level of administration and in the many detailed debates of his policies reflects more than a quest for excellence; it suggests a need for control. . . . By setting up a freewheeling staff system without clear lines of authority, by allowing lines of authority to be blurred, and by attempting to act as his own chief of staff, Clinton not only retains a large measure of control but remains the focus and the center. By appointing a cabinet that reflects both strong left-of-center leanings (Donna Shalala, Henry Cisneros, Robert Reich) and strong moderate leanings (Lloyd Bentsen, Janet Reno), Clinton has done more than ensure he will get conflicting views; he has set himself as the center, as the person to be convinced, the person toward whom all debate is addressed. 5

Much like Lyndon Johnson, Clinton wanted no disagreement, indeed no independent forces, within his executive department. In the words of biographer Stanley Renshaw, both Bill and Hillary Clinton “have a greater need than is good for them to have people around them whose loyalty—and lack of independence—wasn’t in question.” When it came to selecting his fi rst chief of staff, “friend after friend of Clinton said Clinton didn’t want a Jim Baker (Reagan’s strong, and cunning chief of staff). He wanted someone with whom he was utterly comfortable, whom he could completely trust, who had no agenda of his own, and who wouldn’t get in his way,” because “to his own great detriment, Clinton wanted to be his own Chief of Staff.”6 In addition, Clinton did not hesitate to exercise his authority to remove executive officials. In October 1993, following a major battle in Somalia and a major blunder in Haiti, National Security Adviser Anthony Lake and

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Secretary of State Warren Christopher both offered to resign, but Defense Secretary Les Aspin, who was “less prompt with his tender, was the one who was asked to leave.”7 The effective dismissal of Aspin was probably the most visible removal of the Clinton administration. In addition to determining the composition of his administration, Clinton meticulously protected the executive from infringements on constitutional power throughout his term when signing legislation into law. For example, when signing the Digital Millennium Copyright Act, he warned against any congressional interference with any executive functions exercised by the Register of Copyright.8 Clinton also raised concerns about legislation that purported to dictate the substantive positions that the president would have to take when negotiating with foreign countries, on the grounds that “Article II of the Constitution confers the Executive power of the United States on the President alone.”9 Clinton also employed a wide array of institutional arrangements to ensure that he retained control over the execution of the law, which have been superbly documented in a recent article in the Harvard Law Review by Elena Kagan, who worked on Clinton’s White House staff.10 For example, although Clinton eliminated Bush’s Council on Competitiveness, he issued Executive Order 12866 expanding the system of Office of Management and Budget regulatory oversight instituted during the Reagan and Bush administrations in order “to ensure that regulations are consistent with applicable law, the President’s priorities, . . . and that decisions made by one agency do not confl ict with the policies or actions taken or planned by another agency.” Specifically, Clinton continued to require agencies to participate in a regulatory planning process and to submit major regulations for OMB review. That Clinton would continue and expand this program might be regarded as something of a surprise after the criticism leveled by Democrats at OMB involvement in the regulatory process during the Reagan and Bush administrations, and underscores the extent to which OMB regulatory review is not a partisan institution but instead reflects more fundamental issues about presidential control over the federal bureaucracy. Clinton did, though, institute some changes in the program to mitigate the more deregulatory bent of the Reagan-Bush program of regulatory review. Although Clinton’s scheme continued to evaluate rules through the lens of cost-benefit analysis, it broadened the inquiry to allow consideration of other factors, such as “equity,” “distributive impacts,” and “qualitative measures.” In addition, the Clinton program regularized many of the procedures surrounding regulatory review, requiring disclosure of all ex parte contacts and written communications between the Office of Information and Regulatory

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Affairs and the agency, and placing limits on the time available for OMB review. The executive order implementing the scheme also listed as one of its goals the “reaffi rm[ation of] the primacy of Federal agencies in the regulatory decision-making process” and averred that “the regulatory process shall be conducted with due regard to the discretion that has been entrusted to the Federal agencies.”11 Kenneth R. Mayer notes that under Clinton, OIRA refocused its “limited resources on fewer reviews, with the number of rules reviewed dropping by almost 75 percent from the 1980’s. At the same time, the percentage of proposed rules that undergo some sort of change during the review process has gone up, from about 14 percent of all reviewed rules under Reagan to 38 percent in Clinton’s fi rst term.”12 What did not change was the commitment to the unitariness of the executive branch underlying the institution of OMB review. Clinton’s executive order clearly put the president in the position of resolving any interagency disputes that emerged from OMB review. “At the end of this review process, the President, or the Vice President acting at the request of the President, shall notify the affected agency . . . of the President’s decision with respect to the matter.”13 Centralized regulatory planning and oversight continued to give the president a powerful tool for exercising control over his administration. Moreover, the decision to make the president the person to resolve any conflicts “constituted a striking assertion of executive authority.”14 Indeed, although centralized regulatory review was criticized as a largely deregulatory-oriented institution during the Reagan and Bush administrations, the experience of the Clinton administration was that its importance transcends mere partisan politics. Instead, it is driven by the more fundamental and enduring issue of the proper balance of power within the federal government and is the most effective way to ensure effective execution of the law. In some ways, Clinton expanded the regulatory review process far beyond that employed by Reagan and Bush. For example, Clinton added the additional requirement that every agency designate a regulatory policy officer charged with promoting good regulatory practices and facilitating the goals of OMB review. Furthermore, unlike Reagan, who asserted that he had the authority to include the independent agencies within OMB review, but declined to do so as a matter of discretion, Clinton required the independent agencies to participate in the regulatory planning process. Policies proposed by the independent agencies that were in confl ict with other agency action or “the President’s priorities” would be required to participate in “further consideration.”15 Clinton’s belief in the president’s authority over the independent agencies was also evident in his response to legislation turning the

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Social Security Administration into an independent agency headed by an administrator who was removable only for “neglect of duty or malfeasance in office.”16 When signing the bill into law, Clinton noted that the removal provisions raised significant constitutional questions.17 Clinton also sent letters to the independent agencies requesting that they take action on particular issues, although it has been suggested that these communications resembled requests more than orders from the head of the administrative state. As Kagan notes, the inclusion of the independent agencies within the regulatory planning process “signified a strong commitment to presidential oversight of administration” that exceeded even that asserted under Reagan.18 The Clinton administration was thus a time of triumph for the unitary executive, at least vis-à-vis the independent agencies. Clinton also demonstrated his support for the president’s authority to implement the laws by issuing directives to other federal officials about how they should exercise their discretionary authority across a wide range of areas.19 In short, “the President . . . asserted his right as head of the executive branch to determine how its internal processes and constituent units were to function.” Although both Reagan and Bush had employed this device in the past, Clinton took it to a completely different level. Not only did Clinton issue many more such directives than did any of his predecessors. Clinton’s interventions also went far beyond the managerial issues that had previously been the subject of such directives, like the administration of the national park system, the armed forces, and federal contracting. Instead, Clinton’s orders had a broad impact on nongovernmental actors and rights customarily viewed as private. Such authority was extremely helpful with respect to issues that transcended the classic departmental boundaries or required significant coordination. Presidential authority became all the more important after the Democrats lost control of Congress. Clinton’s domination of the lower agencies “sa[id] something significant about the nature of the relationship between the agencies and the President— . . . that they were his and so too were their decisions.”20 The policy was famously summed up by White House Adviser Paul Begala, who told New York Times reporter James Bennett, “Stroke of a Pen . . . Law of the Land. Kind of cool.”21 Predictably, Clinton’s penchant for sweeping executive orders of a policymaking type sometimes landed him in trouble from which he was forced to retreat. An imminent order to overturn the ban on gays and lesbians in the military led to congressional legislation mandating a policy that Clinton eventually had to sign. The legislation in question not only went much less far than Clinton had wanted to go in opening the military to gays and lesbians: it also enshrined in a federal statute the so-called “don’t ask, don’t

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tell” policy. This was a clear case of Congress trumping an unduly assertive Clintonian executive order. Much the same thing happened again when Clinton issued Executive Order 13083, which suspended a Reagan era executive order designed to limit executive branch actions that adversely affected states and local governments. 22 In the ensuing uproar, Clinton was forced to beat a hasty retreat by superseding Executive Order 13083 with Executive Order 13095. 23 Clinton’s close association with regulatory policy was apparent not only in his willingness to assert control over the agencies but also in the manner in which he communicated about those policies with the American people. Kagan notes, “In this administration, . . . nothing was too bureaucratic for the President. In event after event, speech after speech, Clinton claimed ownership of administrative actions, presenting them to the public as his own—as the product of his values and decisions. He emerged in public, and to the public, as the wielder of ‘executive authority’ and, in that capacity, the source of regulatory action.” The manner in which Clinton used the bully pulpit to control the direction of his administration and to mobilize public support for his regulatory program “sent a loud and lingering message: these were his agencies; he was responsible for their actions; and he was due credit for their successes.” Indeed, so great was Clinton’s domination of his administration that one senator accused Clinton of “debasing the constitutional structure.” Using language reminiscent of criticisms leveled at Andrew Jackson, Abraham Lincoln, and Andrew Johnson, Congressman J. C. Watts criticized Clinton for “pretty much . . . acting as the king of the world.”24 Consistent with this approach, the Clinton administration expanded on the Reagan and Bush administrations’ signing statement initiative. Clinton issued 394 signing statements, compared with 276 issued by Reagan and 214 by Bush; 105 of these signing statements addressed constitutional issues, compared with seventy-one such statements during the Reagan years. 25 Clinton’s Office of Legal Counsel, under the capable leadership of Walter Dellinger, issued an important memorandum on the president’s authority to decline to execute unconstitutional statutes. This memorandum bears quoting from at length: Let me start with a general proposition that I believe to be uncontroversial: there are circumstances in which the President may appropriately decline to enforce a statute that he views as unconstitutional. First, there is significant judicial approval of this proposition. Most notable is the Supreme Court’s decision in Myers v. United States, 272 U.S. 52 (1926). . . . Second, consistent and substantial executive practice also confi rms this general proposition. Opinions dating to at least 1860 assert the President’s authority to

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decline to effectuate enactments that the President views as unconstitutional. Moreover, . . . numerous Presidents have provided advance notice of their intention not to enforce specific statutory provisions, and the Supreme Court has implicitly endorsed this practice. See INS v. Chadha, 462 U.S. 919, 942 n.13 (1983) (noting that Presidents often sign legislation containing constitutionally objectionable provisions and indicate that they will not comply with those provisions). . . . In accordance with these propositions, we do not believe that a President is limited to choosing between vetoing, for example, the Defense Appropriations Act and executing an unconstitutional provision in it. In our view, the President has the authority to sign legislation containing desirable elements while refusing to execute a constitutionally defective provision. 26

Dellinger’s approach was dramatically put into action when the Republican Congress enacted an appropriations rider requiring the executive branch to do all of its printing work with the congressionally controlled Government Printing Office. Clinton issued a signing statement objecting that requiring the executive agencies to obtain certification from a legislative official before printing documents outside the Government Printing Office raised “serious constitutional concerns.” Accordingly, Clinton announced that he would interpret the provision “in a manner that minimizes the potential constitutional deficiencies” by limiting its scope to “documents intended primarily for distribution to and use by the general public” and excluding routine photocopying and laser printing within the executive branch. 27 Dellinger subsequently wrote a memo directing the general counsel of the General Services Administration to ignore this unconstitutional infringement on executive branch prerogatives, stating that the Justice Department would not civilly or criminally pursue any executive branch officer who violated the terms of the appropriations rider. 28 Another major initiative launched by Clinton was the attempt to reinvent government as smaller and more efficient. Vice President Albert Gore was charged with being the point man on the “Reinventing Government” reform portfolio. Klein describes Gore’s involvement in the project as follows: “The Reinventing Government project was perfect for [Gore], very worthy if eminently vice presidential: Presidents usually have more important things to worry about than how the government actually works. But Reinventing Government was a particular favorite of New Democrats, who loved the idea of a direct assault upon the ancient paradigm of federal bureaucracy.” Many aspects of this program would prove quite successful. “The federal workforce would be reduced by about 350,000 and an estimated $157 billion saved. Equally important, 16,000 pages of bureaucratic regulations

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would be tossed—including some of the more famous government snafus, like the purchasing regulations at the Pentagon that resulted in $700 toilet seats and $150 hammers.” Ultimately, however, the plan to reinvent government was to some degree sidetracked by Clinton’s desire for new programs in health care and housing. That Clinton was unable to marshal the resources to carry through the attempt to reinvent government should not be taken as any belief that he lacked the power to do so. 29 It must be conceded that one low point of the Clinton administration from the point of view of the unitary executive came with the creation of the Social Security Administration as an independent agency in 1995. 30 Given all the extraordinary steps Clinton took to augment presidential control over the executive branch, this must be seen as a relatively minor departure in an administration that was otherwise quite committed to executive unitariness. It must be noted, however, that the functions performed by the Social Security Administration are lower level and mostly ministerial. This is not a major independent policymaking entity like the Federal Reserve Board, the Federal Trade Commission, or the Federal Communications Commission. Moreover, as was mentioned above, Clinton’s signing statement approving the agency noted that its independence was constitutionally problematic. 31 To be sure, this was not the only time the Clinton administration protected the executive from infringements on constitutional power. For example, in Federal Election Commission v. NRA Political Victory Fund, the government’s brief before the Supreme Court argued that a statute designating the secretary of the Senate and the clerk of the House of Representatives as having nonvoting membership on the Federal Election Commission violated separation-of-powers principles by improperly giving legislative officers a role in the execution of the law. 32 The Supreme Court disposed of the case on the grounds that the FEC lacked independent authority to fi le a petition for certiorari without reaching the merits of the constitutional arguments. 33 This conclusion itself was a victory for the unitary executive because it confi rmed that the FEC had to seek certiorari through the presidentially controlled Solicitor General’s Office in the Department of Justice. The administration also asserted the president’s sole authority over the execution of the law in United States v. Weatherhead, which arose from the administration’s refusal to divulge a confidential letter sent from the British government to the U.S. Department of Justice in response to a Freedom of Information Act request. The government’s brief asserted that the executive branch’s “authority to classify and control access to information bearing on national security . . . flows primarily from the constitutional investment of power in the President . . . as head of the Executive Branch

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and as Commander in Chief” and thus “exists quite apart from any explicit congressional grant.” In addition, this practice had been sanctioned by Congress: “Congress itself had, over the course of almost 200 years, consistently acquiesced in decisions by the President to decline to furnish information pertaining to foreign affairs, or otherwise accommodated his requests to maintain the confidentiality of such information. . . . That history of congressional respect for the Executive’s judgments concerning the confidentiality of information about foreign relations or national defense provides compelling support for a rule of great deference to the Executive’s classification judgments in the context of FOIA.” The government also invoked the president’s authority under Article II, Section 3, to “receive Ambassadors and other public Ministers.”34 The Supreme Court again failed to reach the merits of the argument, vacating the judgment as moot. 35 The fact that the Court stopped short of addressing the arguments asserted by the government does not mitigate the fact that they were asserted. These positions taken in the Supreme Court provide eloquent examples of the Clinton administration’s willingness to defend the president’s sole authority over the execution of the law. The Clinton administration ended in January 2001 with quite a bang. Clinton chose to leave the presidency only after “granting 177 presidential pardons and commutations of sentences on his last night in office.” Klein reports, “There was a libidinous crudeness to all of this. It was a fi nal selfindulgence, a total loss of control. Other presidents had granted last-minute pardons, had signed last-minute executive orders, had staged [p]athetic farewell tours—but the rapacious enormity of these conceits and absolutions seemed to recapitulate Clinton’s most loathsome qualities.”36 The only bright spot about the pardons was that they showed the extent to which, for better or worse, the Constitution puts the president squarely in charge of the law enforcement process. Although there is always room for disagreement as to the substance of Clinton’s policies, in retrospect his commitment to the unitariness of the executive branch cannot be gainsaid. As Clinton himself noted toward the end of his presidency, “I think if you go back over the whole reach of our tenure here, I have always tried to use the executive authority.”37

case study

4

The Clinton Impeachment and the Fall of the Ethics in Government Act

The Clinton years also witnessed one of the most climactic moments in the history of the unitary executive: the demise of the Ethics in Government Act (EIGA) and the institution of court-appointed independent counsels. This demise began when Clinton directed Attorney General Janet Reno to investigate allegations of improper conduct regarding the Arkansas Whitewater Development Corporation. Because the EIGA had lapsed at the end of the Bush administration thanks to the fi rst President Bush’s constitutionally motivated veto threats, Reno invoked her authority under Justice Department regulations to appoint Robert Fiske, a moderate Republican and prominent member of the New York Bar who had served as U.S. attorney for the Southern District of New York during the Carter administration, as special counsel to investigate Whitewater.1 While the investigation was under way, Congress reenacted the Ethics in Government Act, and Clinton foolishly—and to his great later detriment—signed the act back into law. In the wake of the reenactment of the EIGA, Fiske was removed as the Whitewater independent counsel on the grounds that because he had been picked by the administration to investigate Whitewater, he was insufficiently independent. In a fateful move, the three-judge court that was designated under the EIGA to pick independent counsels instead tapped Kenneth Starr, a former federal circuit judge and

400

Clinton and the Ethics in Government Act

401

solicitor general during the Bush administration, to be the Whitewater independent counsel. 2 Starr’s inquiry kept expanding as more and more new subjects opened up for him to investigate, including fi rings in the White House Travel Office and even the suicide of Deputy White House Counsel Vince Foster. Eventually, the Starr investigation collided with a sexual harassment suit brought against Clinton by Paula Jones, who alleged that Clinton had exposed himself to her and had demanded oral sex after seeing her managing the registration desk at a conference when Clinton was governor of Arkansas. Jones sued Clinton, who claimed an executive privilege to the effect that a sitting president is not subject to civil suit for events that took place before he took office. This issue went up to the Supreme Court, and the Clinton administration’s Solicitor General’s Office argued that the Court should fi nd a privilege such that Jones’s suit would be postponed until after Clinton left office. The administration’s brief began with the claim that: To require that the President defend against private civil lawsuits in state and federal courts during his term of office would intrude impermissibly upon the President’s performance of his constitutional duties, in violation of separation of powers principles. In both constitutional and practical terms, the demands placed upon the President under Article II are unceasing. A sitting President cannot defend himself against litigation seeking to impose personal fi nancial liability without diverting his energy and attention from the exercise of the “executive Power” of the United States. A judicial order requiring the President to participate in the defense of a private civil suit would therefore place the court in the position of impairing a coordinate Branch of the government in the performance of its constitutional functions. 3

The Supreme Court ruled unanimously against Clinton,4 although Justice Breyer fi led what can best be described as a Clinton-friendly concurrence. 5 One great point of amusement about the Court’s opinion in Clinton v. Jones was Justice Stevens’s statement, hilarious in retrospect, that the case was “highly unlikely to occupy any substantial amount of [Clinton’s] time.”6 In the wake of the Supreme Court’s decision in Clinton v. Jones, Jones’s attorneys deposed the president, asking him about his not-so-secret affair with Monica Lewinsky, a White House intern. When confronted with the Lewinsky allegations, Clinton denied under oath having had a sexual relationship with Lewinsky, which in turn led Starr to investigate charges of perjury and obstruction of justice by the president. These charges ultimately led to Clinton’s impeachment by the House of Representatives on December 19, 1998, and his subsequent acquittal by the Senate on February 12, 1999.

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The Modern Era, 1945–2007

Although some scholars predicted that the Clinton impeachment would weaken the presidency, just as had the failed impeachment of Andrew Johnson,7 other scholars wrote that this view overlooks a fundamental difference between the two impeachments. Although there was certainly a partisan element to both impeachments, as Keith Whittington has eloquently demonstrated, “the Johnson impeachment was centrally about presidential power.” Whittington writes that the Johnson impeachment was particularly concerned with which branch would control Reconstruction and with Johnson’s conception of the president as the direct spokesperson for the people and the sole head of a unitary executive branch. The Johnson impeachment was thus in no small part a battle between Congress and Johnson over the proper role of the presidency in the constitutional order. Indeed, it is no accident that the “high crime” that provided the basis for Johnson’s impeachment—the removal of Secretary of War Edward Stanton in contravention of the Tenure of Office Act of 1867—was a crime that could only have been committed by the president and not by any other individual. Nothing less than the very structure of the federal government hung in the balance during the Johnson impeachment.8 In stark contrast, the Clinton impeachment focused on the particular individual holding the office of president, not on the presidency itself. Indeed, as Whittington notes, “the Clinton impeachment was so unsatisfying in part because it seemed so constitutionally unimportant.” Neither the president nor Congress used the impeachment process as a platform for advancing a vision of the president’s place within the constitutional order. As a result, Whittington argues that the Clinton impeachment is unlikely to have significant implications for the distribution of power between the legislative and executive branches.9 In the end, the most important consequence of these events for the theory of the unitary executive was that it led to the Clinton administration’s abandonment of its prior support for the Ethics in Government Act and the whole system of court-appointed independent counsels. This was the case in part because Clinton was by no means the only member of his administration to be dogged by an independent counsel investigation. Five members of Clinton’s cabinet were investigated by special prosecutors, as many as all the Carter, Reagan, and Bush officials investigated between 1978 and 1992. Thus, when the Ethics in Government Act came up for renewal in 1999, the Clinton administration dropped its previous support for the act, and it ultimately lapsed. The fi rst indication of this change in position appeared in Deputy Attorney General Eric Holder’s testimony during House subcommittee hearings

Clinton and the Ethics in Government Act

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on reauthorization.10 Attorney General Reno offered similar testimony before the Senate Committee on Governmental Affairs about the act: After much reflection and inquiry, we [at the Justice Department] have decided—reluctantly—to oppose reauthorization of the Independent Counsel Act. . . . In 1993, as many of you know, I testified in support of the statute. . . . However, after working with the Act, I have come to believe—after much reflection and with great reluctance—that the Independent Counsel Act is structurally flawed and that those flaws cannot be corrected within our constitutional framework. . . . Our Founders set up three branches of government: a Congress that would make the laws, an Executive that would enforce them, and a judiciary that would decide when they had been broken. The Attorney General, who is appointed by the President and confi rmed by the Senate, is publicly accountable for her decisions. . . . In contrast, the independent counsel is vested with the full gamut of prosecutorial powers, but with little of its accountability. He has not been confi rmed by the Senate, and he is not typically subject to the same sorts of oversight or budgetary constraints that the Department faces day in and day out. Accountability is no small matter. It goes to the very heart of our constitutional scheme. Our Founders believed that the enormity of the prosecutorial power—and all the decisions about who, what, and whether to prosecute—should be vested in one who is responsible to the people. That way—and here I am paraphrasing Justice Scalia’s dissent in Morrison v. Olson—whether we’re talking about over-prosecuting or under-prosecuting, “the blame can be assigned to someone who can be punished.” It was for this reason that the American republic survived for over 200 years without an Independent Counsel Act.11

Both the fi rst (Archibald Cox) and the last (Kenneth Starr) of the modern independent counsels asked Congress to let the statute die. Senators Howard Baker, Robert Dole, and George Mitchell, as well as a bipartisan array of former attorneys general and independent counsels, also called for restoring control over prosecution of senior government officials to the executive branch,12 although some former independent counsels continued to support the act.13 The Clinton administration’s opposition to reauthorization dealt a fi nal deathblow to the post-Watergate Ethics in Government Act. Republicans still upset about Lawrence Walsh’s investigation of Iran-Contra joined with Democrats outraged by the Starr investigation of Clinton to bring an end to the regime of court-appointed independent counsels. The statute was allowed to lapse, and subsequent regulations gave the attorney general the authority to appoint and supervise executive branch special counsels charged

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The Modern Era, 1945–2007

with investigating top government officials. The abruptness with which support for the act collapsed was somewhat shocking. At the end of 1997, the statute still enjoyed broad support, although many commentators and legislators believed some adjustments might be necessary. By the end of 1998, political support had almost completely evaporated. Thus, as we predicted in an article in 1997, the rise and fall of the Ethics in Government Act was ultimately to parallel the rise and fall of the Tenure of Office Act of 1867 discussed earlier.14 Both statutes were enacted by imperial Congresses at a time of great presidential weakness: during the Andrew Johnson administration in the one case and during the postWatergate Carter administration in the other. Both statutes lasted roughly twenty years, during which time they worked ineffectively and caused a lot of trouble. Both statutes were then finally repealed in a show of bipartisan determination to return to the system of presidential removal power that the framers so wisely bequeathed us.

43

George W. Bush

We complete our chronicle of the unitary executive by offering a few observations about the presidency of George W. Bush. Obviously, the full history of the current administration has yet to be written, but given the importance of recent events to the historical narrative of the battle between the president and Congress for control over the administration of federal law, it seems appropriate to offer a brief discussion of some of the major events that occurred during President Bush’s fi rst seven years in office. As we noted in the Introduction, the Bush administration has attempted at times to invoke the theory of the unitary executive as the basis for broad, inherent executive powers in the foreign policy realm. Most of the administration’s references to the unitary executive, however, are in the more conventional and limited context of the president’s power to supervise the execution of federal law by removing and directing subordinates. George W. Bush assumed the presidency under exceptionally trying circumstances after an election that was as chaotic and controversial as the Hayes-Tilden election of 1876. Bush entered the White House having lost the popular vote by a significant margin and having carried one essential state, Florida, by only a few hundred votes. To make matters worse, Bush’s victory in Florida was confi rmed in what was essentially a five-to-four decision of the Supreme Court.1 One question many skeptics raised about Bush

405

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during his presidential campaign was whether he was a lightweight whose administration would in fact be run by others behind the scenes. If so, the unitary executive under Bush would have been unitary only in name. David Frum, Bush’s biographer and former speechwriter, reports that his very fi rst impression of Bush was that he was thoroughly in control of his administration: “In that hour, Bush had settled one thing in my mind: I could never again take seriously the theory that somebody else was running this administration—not Cheney, not Rove, not Card.” Vice President Dick Cheney was often identified as the man running the Bush administration behind the scenes because of his past work as Gerald Ford’s White House chief of staff and as defense secretary during the fi rst Gulf War under the fi rst President Bush. However, Cheney’s strength depended entirely on Bush’s trust in him—and he earned that trust by subordinating himself entirely to Bush. “Cheney was certainly a powerful figure within the Administration. But those who identified him as a shadowy shogun who secretly controlled Bush, the weak mikado, could not have been more wrong. Even on energy, the domestic issue Cheney cared about most, Bush made the ultimate decisions—and Cheney’s views, authoritative though they were, were often overridden.”2 Despite the political controversy that accompanied Bush’s accession to the presidency, Bush emphatically endorsed the unitariness of the executive branch. His defense of the president’s sole authority over the administration of the law was evident in his signing statements, in which he relied on the theory of the unitary executive to continue the objections raised by previous presidents to the legislative veto, 3 independent agencies,4 the insulation of inspectors general from presidential control, 5 and attempts to vest executive functions in the comptroller general.6 He also used his signing statements to oppose congressional attempts to limit Office of Management and Budget review of regulatory initiatives,7 to control the resolution of interagency disputes,8 to direct the actions of subordinate executive officers,9 to limit the president’s untrammeled power over prosecutions,10 and other efforts to micromanage executive affairs.11 Moreover, Bush invoked the theory of the unitary executive to oppose congressional attempts to limit his exercise of the president’s commander-in-chief and foreign affairs powers by placing limits on the manner in which certain troops could be used12 or by attempting to direct the administration to adopt certain foreign policy positions.13 In addition, the president repeatedly insisted that congressional requests that executive agencies submit legislative proposals14 or reports15 did not interfere with the president’s ability to exert sole control over the affairs of the executive branch. Finally, Bush routinely included clauses in his

George W. Bush

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executive orders requiring that they be implemented in a manner consistent with “the President’s constitutional authority to . . . supervise the unitary executive branch.”16 The Bush administration staunchly protected the autonomy of the executive branch in the courts. Consider, for example, Cheney v. U.S. District Court for the District of Columbia, a case concerning whether the Federal Advisory Committee Act authorized discovery of the process by which the Vice President and other senior advisers gathered information to advise the president. The administration’s brief offered a detailed historical and constitutional basis for its arguments: “Article II, section 1 of the Constitution vests ‘the executive Power’ in the President of the United States. In order to fulfi ll his executive duties, the President must be able to consult with his advisors and to obtain their candid guidance and expertise. Both the Opinions Clause and Recommendations Clause reflect this need and provide specific textual foundations for the President’s powers to gather information and develop policy—and both clauses are manifestly not subject to manipulation or interference by Congress.” The brief concludes this argument in sweeping fashion: “For the reasons set forth above, the Constitution, by its textual commitment of ‘executive Power’ to the President and by the Opinion and Recommendations Clauses, has struck any balance there is to be struck—the Constitution preserves the zone of autonomy for the President in obtaining advice he seeks to perform his duties.”17 By a vote of seven to two, the Supreme Court vacated the judgment of the U.S. Court of Appeals for the D.C. Circuit dismissing the vice president’s application for a writ of mandamus and his attempted interlocutory appeal. The Court found that the Court of Appeals had failed to ask whether the district court’s actions in entering discovery orders constituted an unwarranted impairment of another branch in the performance of its constitutional duties and that it evaluated the case under the mistaken assumption that the assertion of executive privilege was a necessary precondition to the vice president’s separation-of-powers objections.18 The decision marked a major, albeit temporary, victory for the administration’s stance on executive privilege. Bush’s control over his own administration was vividly illustrated during the debate in 2001 over the federal government’s policy on stem cell research. Some presidents might have taken a poll on the issue and then, having discovered that stem cell research was popular, would have allowed it. Polls did in fact show that “two-thirds of the public favored stem cell research,” as did many major donors and prominent Republicans, such as Nancy Reagan. If “Bush were the puppet of his staff or his vice president

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The Modern Era, 1945–2007

that so many journalists still believed him to be, now was the moment for him to snap to. But he didn’t.” Instead, he brooded and then reached as prolife a position as he could under the circumstances. “Bush did not want to retreat. He held true to his principles.”19 Bush’s leadership ability was most dramatically on display after the terrorist attacks of September 11, 2001. Shortly after the attacks, Bush went to New York City to see the devastation of the World Trade Center buildings, and using “American vernacular, the plain language of the frontier,” Bush pledged to “‘smoke out’ the killers and ’git ’em’ . . . ‘dead or alive.’” Frum reports that from the moment of the attacks, Bush was fi rmly in charge of the situation. “Within hours of the attack, he had made two crucial decisions that would determine the aims and conduct of the whole war [on] terror.” The fi rst decision was to treat the War on Terrorism as a real war. In so doing, Bush did something that no president other than Ronald Reagan in dealing with Libya had done, and that was to “interpret a terrorist attack as an act of war, demanding a proportionately warlike response.” By deciding himself to interpret the September 11 attacks as an act of war and by holding the Taliban accountable for their support of Osama Bin Laden, Bush showed he was fully in charge of his administration. 20 The second was to hold accountable for the destruction not only the terrorists but also those who had aided and harbored them, a decision that came to be known as the Bush Doctrine. Bob Woodward concludes that this “was an incredibly broad commitment to go after terrorists and those who sponsor and protect terrorists, rather than just a proposal for a targeted retaliatory strike. Like the Monroe Doctrine, the Bush Doctrine proclaimed a major executive branch policy decision. This decision was made without consulting Cheney, Powell or Rumsfeld.” Woodward further reported that Bush was adamant that he guide the war policy. When Cheney proposed that a war cabinet be composed that would devise “options” and then report to the president, Bush rejected the idea outright: “No, Bush said, I’m going to do that, run the meetings. This was a commander-in-chief function—it could not be delegated. He also wanted to send the signal that it was he who was calling the shots, that he had the team in the harness. He would chair the full National Security Council meetings.”21 One of Bush’s most important actions relevant to the unitary executive debate came during the development of the Department of Homeland Security: his insistence on unilateral presidential power to fi re subordinate federal employees in that key department. 22 This led to a major impasse between the Bush administration and the Democratic Senate right before the 2002 midterm elections. Bush demanded that the Senate create his

George W. Bush

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Homeland Security Department without the usual labor rules protecting the job security of department employees. Senate Democrats refused, and Bush, rather than caving in, took the issue to the people in the 2002 midterm election and won. Republicans specifically won a Senate race against Max Cleland in Georgia on the very issue of Cleland’s refusing to vote for Bush’s Department of Homeland Security on Bush’s terms. This is significant because the fight over the Department of Homeland Security was in essence a fight over the removal power, and Bush fought that fight and won. This victory establishes that our forty-third president is just as committed to the importance of the president’s removal power as were such past great presidents as Andrew Jackson, William Howard Taft, Franklin Roosevelt, and Ronald Reagan. In addition to championing presidential removal power vis-à-vis the Department of Homeland Security, Bush made two very high-profile removals during his first term that deserve note. After concluding that the economy was in recession and that his economic team needed revamping, Bush removed his treasury secretary Paul O’Neill and his chief White House economic adviser Larry Lindsey, replacing them both with a new economic team. By showing this vigor in firing two officials whose policies did not seem to be working, Bush made it clear that he expected results from his subordinates in the executive branch, and that he would fire those who did not produce. At the same time, Bush made one very high-profi le decision not to remove leaders of intelligence agencies in the immediate aftermath of the September 11 attacks. Many individuals thought that after those attacks FBI Director Robert Mueller and CIA Director George Tenet should be fi red, but Bush retained them both. Frum’s account is worth quoting at length: After the Bay of Pigs fiasco, President Kennedy is supposed to have said to CIA director Allen Dulles, “If we lived under a parliamentary system, I’d have to resign. We don’t so you have to.” September 11 was a debacle that made the Bay of Pigs look like MacArthur’s triumphant landing at Inchon, yet Bush insisted that both FBI director Robert Mueller and CIA director George Tenet stay at their posts. In the case of Mueller, Bush’s forbearance was hard to gainsay: the FBI man had been sworn in only nine days before September 11. Keeping Tenet was a tougher call. Tenet had run the CIA for six years. If there was any obvious candidate to bear the blame for the 9/11 catastrophe, Tenet was the guy. Yet Bush protected him. Why? The very toughest decisions a president makes are often the decisions to do nothing. When the country’s blood is running hot, and the press is twitching, and the aides are panicking, it’s tempting to quell the crisis with a bold audacious maneuver. In the very

410

The Modern Era, 1945–2007 short run, these maneuvers often seem to work. The president is seen to be leading, and people are so impressed that they don’t ask too many questions about where he is leading them. 23

Bush was too strong a leader to be stampeded into fi ring George Tenet after September 11, when he thought Tenet was not to blame for the 9/11 fiasco. Tenet was ultimately removed in 2004 because of the CIA’s mistaken intelligence about weapons of mass destruction in Iraq. The unitary executive is protected when presidents refuse public pressure to dismiss subordinates. There was only one major call for a special investigation of alleged executive wrongdoing during the fi rst six years of George W. Bush’s administration. That fact is in itself an achievement, considering that the administrations of Jimmy Carter, Ronald Reagan, and Bill Clinton all had more ethics cases in their fi rst four years than Bush’s did. In Bush’s case, allegations were raised that his White House political adviser Karl Rove and Vice President Cheney’s chief of staff “Scooter” Libby had illegally disclosed the identity of a CIA agent, thus violating federal law. Attorney General John Ashcroft initially investigated this allegation and ultimately designated a special prosecutor, Patrick Fitzgerald, the U.S. attorney in Chicago, Illinois, to investigate Rove and Libby. 24 This appointment was done in the fashion traditionally followed prior to the enactment of the Ethics in Government Act, under which special prosecutors such as Archibald Cox and Leon Jaworski were picked. It is noteworthy that this one investigation was handled well, without the cumbersome and unconstitutional apparatus of the EIGA. Had that act been around, it is doubtful that these allegations could have been investigated as justly and as secretly as they were in this the case. Ultimately, Fitzgerald cleared Rove of any charges of wrongdoing, but he indicted Libby for perjury. Libby was convicted, at which point Bush commuted any prison sentence he might have to serve, but did not pardon him. Bush and his fi rst attorney general, John Ashcroft, took exceptionally vigorous measures to execute the law to protect the safety of Americans after September 11. “The Bush Justice Department detained more than 1000 people who might have relevant information about the terror attacks,” and the administration fought enthusiastically to exercise absolute control as to these detentions, irrespective of the citizenship or place of capture of the detainee. 25 Advancing an argument reminiscent of the vision of presidential authority asserted by Abraham Lincoln in 1861, Theodore Roosevelt’s Stewardship Theory, and Harry Truman’s justification for seizing the steel mills in 1952, the Bush administration maintained that it did not need a specific authorization from Congress

George W. Bush

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in order to detain “enemy combatants,” since Article II gave the executive plenary authority to detain. 26 Although the Supreme Court addressed the constitutionality of the Bush administration’s detention program in the landmark cases of Hamdi v. Rumsfeld and Rumsfeld v. Padilla, the Court was able to resolve both cases without having to address whether the Constitution gave the executive the authority to pursue its detention program in the absence of statutory authorization. 27 In addition, Bush has claimed the power to interrogate suspects in the War on Terrorism using methods like water boarding that are arguably a form of torture and has set up military commissions to try suspects apprehended in the War on Terrorism relying on FDR’s use of such commissions in Ex parte Quirin, 28 a case that we think was wrongly decided. His use of military commissions was struck down by the Supreme Court in Hamdan v. Rumsfeld, 29 but this decision was immediately rendered a nullity when Congress passed the Military Commissions Act of 2006, which gave the legislature’s approval to President Bush’s use of military commissions. 30 Bush used his implied, inherent protective powers to wiretap all conversations between terror suspects overseas and individuals in the United States. Importantly, the administration has taken many of its most ambitious actions, such as the decision to engage in the National Security Administration wiretaps, by secret classified executive orders. Some of these actions are only now coming to light, and it may be that there are additional such actions we do not know about as we finish this book in 2007. Secret, classified, and broad uses of implied, inherent executive power may be problematic because they could undermine one of the core reasons why both of us have defended the unitary executive for our entire academic careers. One of the foundational arguments made in support of a unitary executive from Alexander Hamilton on down to the present is that a unitary executive promotes accountability by making it clear who is the one person responsible for the conduct of the executive branch. Such accountability is completely lost when the executive branch acts in secret. We thus think that the executive branch ought not to claim broad implied, inherent presidential powers in classified documents as a general rule, because doing so undermines the theory of the unitary executive. The exigencies of winning the War on Terrorism may provide an exception here, but only so long as congressional leaders and the intelligence committees are informed of what is going on. Support for the unitariness of the executive branch does not necessarily require supporting all of the broad claims of inherent executive authority in the foreign policy context advanced by the Bush administration. Even Justice Scalia, whose dissent in Morrison v. Olson remains one of the defi nitive

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The Modern Era, 1945–2007

statements in support of the unitary executive,31 took the view that citizens detained as enemy combatants must be either charged with treason or be released, absent a congressional act suspending the right to habeas corpus. 32 We agree with Justice Scalia on this point and think that the administration’s doctrine of detaining citizens as enemy combatants takes the Lincolnian view of presidential emergency powers too far. As in the Steel Seizure Case, 33 the Court was right in Hamdi to say that citizens cannot be deprived of life, liberty, or property without due process of law, even if the president has designated them to be enemy combatants in a war. As this book has we hope made clear, we generally reject such broad claims of presidential power to deprive people of life, liberty, or property in the absence of statutory authority, although we have some sympathy for the limited, implied protective power endorsed in In re Neagle 34 and in In re Debs. 35 We should say in the Bush administration’s defense that it faced an extraordinary threat in the War on Terrorism, and the administration has done an extraordinary job in preventing any successful terrorist attacks in the fi fty United States since September 11, 2001. This is an unappreciated accomplishment. If anyone had predicted after September 11 that five years would go by without another successful terrorist attack on the United States, no one would have believed it. The administration would have been better served if it had sought congressional backing for the steps it took in the aftermath of 9/11. There is every reason to think Congress would have provided such backing, which would have put the president in a much stronger constitutional and political position. The fact the Bush administration has made such extraordinary claims of presidential power—claims that go well beyond a claim of control over the removal and law execution powers defended in this book—shows that there was no acquiescence in any diminution in presidential power during the fi rst term of George W. Bush. The fact that at times Bush may have pushed an unduly vigorous view of presidential power that expanded far beyond the logical boundaries of the unitary executive implicitly confi rms his determination to defend the prerogatives of the executive branch. President Bush’s second term is still under way as we complete this book, but he has already taken a series of striking actions that show his continued support of the theory of the unitary executive and of an unlimited presidential removal power. On January 18, 2007, for example, Bush issued Executive Order 13422 amending the OMB regulatory review program established by Reagan and Bush and expanded by Clinton by subjecting “significant guidance documents” as well as formal agency action to OMB review. The order also requires that the regulatory policy officers created by Executive

George W. Bush

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Order 12866 be presidential appointees and eliminates the requirement that the RPOs report to the head of the agency. Executive Order 13422 further requires RPO approval before commencing any rulemaking and eliminates the requirement that the head of the agency approve the regulatory plan.36 Although the impact of these changes is not yet clear, 37 they certainly do not represent any weakening of the president’s assertion of authority to coordinate and control the executive branch. Bush also replaced many of his cabinet members at the start of his second term and essentially removed a number of top officials like Secretary of State Colin Powell and Attorney General Ashcroft by forcing them to resign when they did not want to leave. After Bush lost the 2006 midterm election to the Democrats, he removed his very powerful defense secretary Donald Rumsfeld. It is fair to say that Bush has not hesitated to fi re people in his administration when they have failed to perform or when the needs of the nation have demanded it. Bush also suffered at least one striking setback. The Bush administration secured temporarily the repeal of a little-known provision of federal law that provided that when a U.S. attorney is removed, the local federal district court ought to appoint an interim replacement. This statutory provision arguably violated the Appointments Clause, and it created a disincentive for the removal of U.S. attorneys by the president. In a huge victory for the theory of the unitary executive, this statutory provision was repealed as part of the reauthorization of the PATRIOT Act. 38 This provision allowed the president to appoint interim U.S. attorneys, and therefore Bush was for a few months freer than ever to fi re incumbent U.S. attorneys. This unfortunately led to a second-term scandal. In June 2006, the administration dismissed H. E. “Bud” Cummins III, the U.S. attorney for Arkansas. On December 7, 2006, the administration followed up that dismissal by fi ring seven additional U.S. attorneys. 39 Congressional Democrats immediately screamed foul, accusing the administration of improperly politicizing the administration of justice in a way that was at best incompetent and at worst culpable. It gradually became apparent that the White House had played a major role in the dismissals, and some evidence emerged that Karl Rove, Bush’s senior political adviser, had been involved. In the wake of all of this, Congress took away the president’s authority to appoint interim U.S. attorneys and gave it back to the federal district courts.40 The administration had no choice but to cave and accept this law. Congressional Democrats held multiple hearings, demanded appointment of an independent counsel to investigate the scandal, and in some cases called for the impeachment of Attorney General Alberto Gonzales. On August 27, 2007, just as

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The Modern Era, 1945–2007

this book was about to go to press, Gonzales succumbed to the mounting pressure and submitted his resignation. Although this episode clearly weakened the president politically, it has done little to alter the president’s constitutional authority over the executive branch. Several points about the unitary executive remain clear, however. First, everyone—Democrat and Republican alike—concedes, as all must, that U.S. attorneys serve at the pleasure of the president and can be removed at will at any time. This is a basic axiom of the unitary executive, supported by the Supreme Court’s decision in Parsons41 as well as by statutory language specifying that “each United States attorney is subject to removal by the President.”42 Everyone also concedes, however, that the president cannot use his or her removal power in a way that violates other provisions in the Constitution. Removing U.S. attorneys or directing prosecutions to accomplish partisan goals, for example, to help Republicans win elections, would be an unconstitutional act. It would violate the First Amendment and would be an abuse of the executive power. A president or an attorney general who uses his or her power of prosecution for political ends has committed a high crime and misdemeanor. For the record, both Bush and Gonzales have denied that they removed the eight U.S. attorneys for partisan ends, and as of the time this book is to go to press, no evidence has emerged that they did so. Second, the reenactment of the statute vesting the district courts with the power to appoint interim U.S. attorneys does not interfere with the president’s power to remove the interim U.S. attorneys so appointed. There is no violation of the removal power or of the power of supervision: There is only a potential violation of the Appointments Clause. Thus, as of August 2007, this statute has not led to any renunciation of the unitary executive by the Bush administration or to any repudiation of it by Congress. Third, critics of the unitary executive have always asked what protection there would then be against politically motivated removals. Supporters of the unitary executive have always responded to this criticism by saying there are political safeguards in place similar to those that prevent a president from appointing his or her spouse to be secretary of state. This controversy proves that the supporters of the unitary executive are right. The political check in place to respond to the U.S. attorney scandal is ferocious. The Bush administration badly wounded itself with this move, and it will never fully recover. In sum, the fi rst seven years of the Bush administration have revealed a president who is totally committed to the theory of the unitary executive. Assessments of Bush’s position on presidential power will likely focus on his claims of implied, inherent executive authority to fight the War on

George W. Bush

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Terrorism as well as on the controversy surrounding the removal of the U.S. attorneys that ultimately led to the resignation of Attorney General Gonzales. Many observers will regard both as part of a unified scheme to aggrandize presidential power. A close inspection of the historical record leads to a strikingly different conclusion. Our nation’s practices provide only sporadic support at best for the type of broad, implied executive powers asserted by the Bush administration. At the same time, a longstanding tradition exists supporting the president’s authority to direct and remove U.S. attorneys. Thus, while the debate over the Bush administration’s assertion of inherent executive authority raises important and difficult constitutional questions, the controversy over the removal of the U.S. attorneys is in essence political and breaks no new constitutional ground. Indeed, the concept of executive unity is quite distinct and independent from broad notions of inherent executive authority. It is possible to be quite skeptical of the expansive measures that the Bush administration has undertaken to fight the War on Terrorism, while still believing that energetic enforcement of the law and political accountability require that all officials executing federal law must ultimately be accountable to the president. Unfortunately, the negative publicity surrounding both controversies has largely obscured the key differences in the underlying constitutional issues. The entanglement of what should be different and independent constitutional concepts, combined with the political weakness caused by the mishandling of both controversies, may end up unfairly discrediting the classic theory of the unitary executive by association. That said, the fact the Bush administration has made such extraordinary claims of presidential power—claims that go well beyond a claim of control over the removal and law execution powers defended in this book—shows that there was no acquiescence in any diminution in presidential power during George W. Bush’s fi rst seven years in office. The fact that at times Bush may have pushed an unduly vigorous view of presidential power that expanded far beyond the logical boundaries of the unitary executive implicitly confi rms his determination to defend the prerogatives of the executive branch.

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PA RT

VIII

Conclusion

Now that we are done with our review of the practices of all fortythree presidents, from George Washington to George W. Bush, we can weigh the claim that is often made that the theory of the unitary executive is foreclosed by the sweep of history. As we said in the Introduction, we weigh this claim as departmentalists who believe in three-branch constitutional interpretation, of the kind defended in The Federalist No. 49 and endorsed by Thomas Jefferson, Andrew Jackson, Abraham Lincoln, Franklin D. Roosevelt, Ronald Reagan, and a veritable all-star list of constitutional scholars. Departmentalism holds that Congress and the president share with the courts the power and the duty to interpret and enforce the Constitution. Giving one branch—whether it be Congress or the federal courts—the last word in expounding the Constitution’s meaning would not only place resolution of a separation-of-powers dispute in the hands of an interested party. It would also stifle valuable interbranch dialogue about the proper interpretation of the Constitution itself. For this reason, departmentalists do not regard a separation-of-powers issue as settled unless there is a consistent practice pursued with the knowledge of the other branches and in which the other branches have acquiesced, as occurred in the Pocket Veto Cases,1 United States v. Midwest Oil Co., 2 and a host of other Supreme Court decisions. 3 In the words of Justice

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Frankfurter’s concurrence in the Steel Seizure Case, “A systematic, unbroken, executive practice, long pursued to the knowledge of Congress and never before questioned, engaged in by the presidents who have also sworn to uphold the Constitution, making as it were such exercise of power part of the structure of our government, may be treated as a gloss on ‘executive power’ vested in the President by § 1 of Art. II,” notwithstanding the presence of a handful of counterexamples.4 Conversely, as the Court recognized in INS v. Chadha, where one branch has consistently fought a construction of the Constitution, that opposition is enough to stop an argument from being considered foreclosed by historical practice. 5 We have not argued in this book that all three branches of the federal government have consistently endorsed the theory of the unitary executive, although the wealth of examples that we have discussed would lend considerable support to such a claim. We make a much more limited, defensive claim, which is that all forty-three presidents, from George Washington to George W. Bush, have insisted on the view that the Constitution gives them the power to remove and direct subordinates as to law execution. All fortythree presidents have refused to acquiesce in repeated congressional efforts to sabotage the unitary executive bequeathed to us by the framers. We have seen that every single president in American history has vigorously asserted the unitariness of the executive branch by insisting on the president’s constitutional power to remove and direct subordinates, including those in entities like the Treasury Department, the Post Office, federal prosecutors, and the independent agencies that some have said are beyond presidential powers of control. Furthermore, presidents have issued executive orders, proclamations, and signing statements that go back to the beginnings of our history. Many presidents, including several of our most famous, have defended departmentalism—the notion that the president has a right and a duty to interpret and enforce the Constitution as he understands it independently of the way the federal courts understand it. In addition, a large number of presidents have challenged the constitutionality of the legislative veto. The executive branch’s repeated and persistent opposition to any limits on the president’s power to control the execution of federal law forecloses the argument that a “gloss” on the meaning of the words “the executive Power” has emerged, allowing Congress to create a headless fourth branch of government wielding executive power outside presidential control. We think the text of the Constitution plainly gives the president the power to control and remove subordinates in the executive branch and we think this is normatively desirable. Many scholars dispute these claims and argue by referring to statutory enactments that there is a long and well-settled practice of Congress

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creating entities independent of presidential control. This book shows that presidents have never acquiesced in such a practice. All forty-three presidents from George Washington to George W. Bush have asserted the power to remove and control subordinates in the executive branch with sufficient vigor to preclude any claim that arguments in favor of the unitary executive have been trumped by history. Congress has sometimes endorsed the unitary executive, as it did in the Decision of 1789, and has sometimes opposed it by limiting removal power over independent agency commissioners. The Supreme Court has sometimes supported the unitary executive, as it did in Myers v. United States, 6 and has sometimes opposed it, as happened in Morrison v. Olson.7 All forty-three presidents, however, have never wavered. As we discuss in the highlights of the historical record traced below, there is a consistent practice of more than two centuries whereby every single president has endorsed the essential tenets of the theory of the unitary executive. Certain key institutions often thought to serve as precedents for institutions wielding executive power independent of presidential control, such as the rise of the civil service system, the emergence of independent agencies, and the nation’s experimentation with special prosecutors, on closer inspection turn out to be consistent with the unitary executive. In the absence of a consistent practice in which all three branches have acquiesced, the constitutional issue must be resolved on its textualist and narrative merits. At the same time, the historical record does not support claims that the unitary executive is the source of broad, inherent executive power. Whatever inherent power exists is much more limited than that asserted by at least some in the current administration.

Removal Our review of the historical record reveals that every single one of our forty-three presidents has acted in accord with the precedent established by the Decision of 1789 and has employed the removal power as an essential means for exercising presidential control over the execution of federal law. The need for unitary control over the executive branch is what led Andrew Johnson to challenge the Tenure of Office Act by removing Secretary of War Edwin M. Stanton, which led to his impeachment and ultimate acquittal. Our chief executives have exercised the removal power freely and have included within its scope such departments as the supposedly Congressfriendly Treasury Department and the Post Office, highlighted by Andrew Jackson’s removal of Treasury Secretary William Duane during his battle with the second Bank of the United States. Presidents have wielded the removal power over district attorneys and Justice Department officials on the

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understanding that prosecution represents a core executive function and a critical component of the execution of the law. The record is so consistent that countless authorities, including Justice Story, Chancellor Kent, James Madison, Daniel Webster, and Leonard White, although harboring some doubts about the resolution had it arisen as a matter of fi rst impression, regard this interpretation as so well established as to render the issue settled. In sum, our examination of the historical practices under our Constitution shows that all forty-three presidents—each of them an interpreter of the Constitution—have vigorously exercised and defended an unlimited presidential removal power. The executive branch has never acquiesced in any diminution of the president’s removal power, opposing major incursions like the Tenure of Office Act and the Ethics in Government Act until they were eventually repealed.

Direction of Subordinates Another clear conclusion emerging from our study is that almost all of our presidents, including all of our greatest presidents, have exercised the power to direct and control the actions of subordinates. Deriving its authority from the language in Article II, Section 1, vesting the executive power in the president as well as the mandate in Article II, Section 3, that the president “take care that the laws be faithfully executed,” this tradition was established by George Washington, who asserted control over subordinate executive officers from the beginning of his administration. Washington’s assertion of control over the government immediately after his inauguration on April 30, 1789, must have been based on his understanding of his constitutional powers alone, since there was as yet no statutory framework purporting to describe the power of the president relative to the heads of the cabinet departments. Washington also regarded his cabinet secretaries as being his assistants. Equally important, Washington specifically directed federal prosecutors in the manner in which they enforced federal law, notwithstanding the absence of specific statutory authority to do so. Several entities are sometimes claimed to have been insulated from Washington’s control, such as the Treasury Department, the Post Office, and federal prosecutors, but in fact none of them was independent. Washington was in complete control of all the commissions created during his presidency, including the Patent Office. The precedent set by Washington was followed by all of his successors. Prominent examples include Thomas Jefferson’s control of prosecutions under the Alien and Sedition Act, his control of the prosecution of Aaron Burr, and his close supervision of subordinate treasury officials’ enforcement of

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the Embargo Act; Andrew Jackson’s directive to his treasury secretaries to remove federal deposits from the second Bank of the United States; and the bold steps taken by Lincoln at the outset of his presidency as well as his intimate involvement in the conduct of the Civil War and at least the initial stages of Reconstruction. This tradition of presidential direction of subordinates continued into the modern presidency, as is shown by presidential orders adopted by every president since FDR prohibiting discrimination in federal hiring, contracts, and procurement and by these presidents’ demonstrated willingness to issue policy directives to subordinate federal officials, including members of independent regulatory commissions. Perhaps the most dramatic assertion of the chief executive’s authority to supervise subordinate officers is the program, begun by Lyndon Johnson and continued and expanded by every president since, giving fi rst the Bureau of the Budget and later the Office of Management and Budget centralized control over the federal budgetary and regulatory initiatives. Administrations did occasionally disclaim authority to supervise subordinates. For example, James K. Polk’s attorney general disavowed any presidential power of direction, while the attorneys general for Millard Fillmore and Abraham Lincoln opined that although the president could direct cabinet secretaries, the secretaries could not supervise the actions of subordinate executive officials. In addition, Monroe’s attorney general William Wirt touched off decades of debate regarding the president’s authority to direct accounting officers. Wirt’s constrained view was contradicted in opinions issued by attorneys general for Presidents Jackson, Taylor, Pierce, and Grant, and it ultimately had little import for the unitariness of the executive branch, since regardless of their position on the power of direction, the attorneys general have been unequivocal in their support for the power to remove. In addition, the Supreme Court established in Kendall v. United States ex rel. Stokes that courts can order executive branch officials to perform statutorily required ministerial duties.8 The Van Buren administration contested this claim vigorously, which forecloses any suggestion that the administration acquiesced here in a derogation of executive power under the methodology of coordinate construction followed in this book. In any event, as the Court indicated in Kendall and would make clear in Decatur v. Paulding, this precedent was limited to purely ministerial duties and would not apply to functions involving a degree of executive discretion.9 The theory of the unitary executive we defend is entirely consistent with the Kendall decision, and we believe that case is foundational and rightly decided. In short, our review of more than two centuries of the historical record shows that presidential powers of direction are deeply rooted in American

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history and in past presidential practice. The case for a presidential power to direct subordinates is only slightly less strong as a matter of practice than is the case for a presidential removal power.

The Civil Service One of the most interesting results of our study is that certain institutions often regarded as precedents for permitting the exercise of executive power independent of presidential control are in fact largely consistent with the unitary executive. A prime example is the civil service system. It is a common misconception that the Civil Service Act of 1883 placed substantive limits on the president’s removal power. Indeed, the act left the president’s removal power unfettered, aside from prohibiting the discharge of a federal employee for refusing to make political contributions, which would arguably be a violation of the First Amendment. In fact, the original Senate bill contained broader limits on the removal power. These provisions were removed in response to President Arthur’s specific objections. If anything, the civil service laws had the effect of reinforcing, rather than weakening, the president’s authority over the execution of the law. By limiting appointments for non-policy-related positions to those who had passed a competitive examination, the act weakened the Senate’s influence over federal patronage, which in turn had the inevitable effect of strengthening the president’s authority as chief executive. Thereafter, a long line of chief executives, including Presidents Benjamin Harrison, Cleveland, McKinley, Theodore Roosevelt, Taft, Franklin Roosevelt, Eisenhower, Kennedy, Nixon, and Carter, all maintained that the Civil Service Act placed no substantive limits on the power to remove. Subsequent executive orders and statutes added greater procedural protections and provided that members of the classified service could only be removed for “just cause.” Presidents and courts have consistently construed these new restrictions as simply reinforcing the statutory prohibition on removals for failure to contribute to political campaigns without imposing any other substantive limits. In other words, the phrase “for cause” was read as only preventing removals for failure to make political contributions. It was not until the mid-1970s that the fi rst real limits on the president’s removal power over the civil service fi nally emerged. Interestingly, the threat to presidential power came not from Congress but from a series of Supreme Court decisions holding that the civil service system gave federal employees a property interest in their jobs for purposes of procedural due process. The subsequent enactment of the Civil Service Reform Act of 1978 (CSRA)

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as part of the post-Watergate move toward imposing greater limits on the executive codified some of these procedural protections. Even so, the CSRA retained the previous standard for dismissal limiting removals “only for such cause as will promote the efficiency of the service” and added a list of prohibited personnel practices, including, among other things, discrimination, political coercion, nepotism, and retaliation against whistleblowers. The statute also contained provisions exempting all officials occupying policymaking positions, which limited the scope of the Civil Service Reform Act to purely ministerial officials.10 Thus, the act did not represent a significant derogation from the unitariness of the executive branch. The idea that the civil service laws limit the president’s power to remove is thus of surprisingly recent vintage. Given the consistency with which presidents have asserted that the civil service system did not limit the president’s power to remove policymaking officials, it is hard to see how this development could turn the civil service laws into an established derogation of the unitariness of the executive branch.

Independent Agencies Independent agencies, such as the Securities and Exchange Commission and the Federal Communications Commission, are often regarded, incorrectly as it turns out, as another established derogation from the unitary executive. The institution of the independent agency is generally traced to the creation of the Interstate Commerce Commission (ICC) by the Interstate Commerce Act of 1887. It turns out, however, that the ICC was not originally an independent agency when it was created in 1887, and it did not acquire this status until the Supreme Court’s misguided decision during the 1930s in Humphrey’s Executor.11 Thus, throughout the decade-long debate leading up to the act’s passage, members of Congress consistently referred to the ICC as part of the executive branch. Consistent with this view, the ICC was initially placed within the Department of Interior and thus was not independent at all. It was not until 1889 that the ICC was removed from the Department of the Interior, and even that shift was made for purely practical reasons. It is also not true that the provision limiting removal of members of the ICC for inefficiency, neglect of duty, or malfeasance was intended to limit the president’s unilateral power to remove ICC commissioners at will. Even critics of the unitary executive acknowledge that these removal provisions do not necessarily preclude the president from removing a member of the ICC simply for disagreements over policy. Independence from the president was never discussed during the debates leading up to the enactment of the

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Interstate Commerce Act, and the discussions that did take place suggest that Congress was primarily concerned with bipartisanship, not independence from executive control. As Robert Cushman noted in his classic study of the independent regulatory commissions, Congress viewed the removal provisions “more as a protection to the public by providing a way to get rid of objectionable commissioners than as a limitation on Presidential authority.”12 Critically, the Supreme Court in Shurtleff v. United States construed a statutory provision providing that a customs appraiser could only be removed for inefficiency, neglect, or malfeasance in office as not in any way taking away the president’s unilateral power to remove at will.13 Under Supreme Court precedent, therefore, from 1887 to 1935 ICC commissioners were removable at will. The ICC simply did not become an independent agency until Humphrey’s Executor was decided in 1935. When one fully appreciates that Congress never intended the ICC to be a structural innovation to limit presidential control over the execution of the laws, it becomes less surprising that its creation failed to evoke significant presidential objection (although Cleveland harbored private doubts about the constitutional soundness of “government by commission”).14 An analysis of other early independent agencies is similarly revealing. For example, the Federal Reserve Board as constituted in 1914 included both the secretary of the treasury and the comptroller of the currency as ex officio members specifically to ensure that the executive branch would be able to exert an appropriate degree of control over monetary policy, and governors of the Federal Reserve Board were removable at will. Similarly, the Federal Trade Commission (FTC) Act reflected the fact that “nearly everyone . . . who discussed [the relationship between the FTC and the president] during this early period regarded the commission as an executive agency charged with executive and administrative duties” by specifically authorizing the president to direct the FTC’s investigatory activities.15 The clear role for presidential involvement in these commissions’ operations vitiates any suggestion that they were originally meant to be independent of presidential control. These developments were soon punctuated by the Supreme Court’s sweeping endorsement of the president’s removal power in Myers v. United States.16 Following Myers, Congress did not even bother to include any removal restrictions when it created the Federal Power Commission, the Securities and Exchange Commission, and the Federal Communications Commission. The fact that presidents did not regard these commissions as being independent is also underscored by the fact that Presidents Cleveland, Wilson, Hoover, and Franklin Roosevelt did not hesitate to direct commission policies and to intervene in commission matters.

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It was thus not until the Supreme Court’s 1935 decision in Humphrey’s Executor v. United States that there was even a colorable claim that these commissions were in any way independent of the president.17 And even after Humphrey’s Executor, FDR continued to assert his authority over the independent agencies and to remove members as he saw fit. Roosevelt further attempted to resolve the issue by pushing through the recommendation of the Brownlow Committee that the independent agencies should be integrated into the executive departments, only to see that effort derailed by the change in political winds caused by the failure of FDR’s court packing plan. Subsequent presidents continued the practice of asserting their control over the so-called independent agencies. Backed by reports issued by the fi rst and second Hoover Commissions, James Landis, and the Ash Council, Presidents Truman, Eisenhower, Kennedy, Johnson, Nixon, Carter, Reagan, George H. W. Bush, and Clinton all issued policy directives to the independent agencies; included them in executive orders mandating ethical standards, ex parte contacts, and procurement rules; and subjected them to centralized budget and regulatory review by the Office of Management and Budget. In fact, a number of distinguished administrative and constitutional law scholars, including Kenneth Culp Davis, Lawrence Lessig, Richard Pierce, Peter Strauss, Cass Sunstein, and Laurence Tribe, have questioned whether the “for cause” removal restrictions preclude presidents from removing a member of an independent agency for failing to follow a presidential policy directive.18 It is thus clear that the establishment of the so-called independent regulatory agencies by the Supreme Court in 1935 is not a development in which presidents since then have acquiesced.

Independent Counsels The institution of special prosecutors has a long history that dates back to the administrations of Presidents Theodore Roosevelt, Coolidge, and Truman. The fact that the special prosecutors during these administrations were fully removable by the president makes them completely consistent with the unitary executive. Political support for independent counsels insulated from presidential control began to grow following the “Saturday Night Massacre,” in which Nixon directed Attorney General Elliott Richardson and Deputy Attorney General William Ruckelshaus to dismiss Archibald Cox as Watergate special prosecutor, notwithstanding a Justice Department order granting Cox the “greatest degree of independence that is consistent with the Attorney General’s statutory accountability” and providing that Cox would not

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be removed “except for extraordinary improprieties on his part.”19 When Richardson resigned and Ruckelshaus was removed for refusing to fi re Cox, it became Solicitor General Robert Bork’s job to fi re him. Prominent Department of Justice officials from both parties have long questioned the conventional wisdom that the Saturday Night Massacre showed the need to have a prosecutorial institution that operates free from presidential control. The furor surrounding Cox’s dismissal forced Nixon to appoint another special prosecutor, Leon Jaworski, whose completion of the Watergate investigation led to Nixon’s departure. The aftermath of the Saturday Night Massacre demonstrated that political constraints can ensure effective investigations of high-level government misconduct without the use of constitutionally problematic institutional arrangements. Accordingly, it is Jaworski’s completion of the Watergate prosecution, rather than Cox’s removal, that represents the central lesson for the unitary executive debate. Indeed, the fact that Nixon was forced to resign under threat of impeachment without an independent counsel law shows that the traditional system of checks and balances can be made to work in the absence of such a law. Nonetheless, the post-Watergate years witnessed the enactment of the Ethics in Government Act of 1978 (EIGA), the fi rst statute to sanction independent counsels operating outside executive control. Despite the severe misgivings of senior Carter administration officials about the act’s constitutionality, the political atmosphere in the wake of Watergate was such that Carter had little choice but to sign the law. This decision must be seen in the light of the fact that the administration fought hard to preserve presidential control over the Department of Justice in the face of a hostile Congress. The EIGA was a small price to pay for the greater goal of preventing a post-Watergate Congress from turning the entire Justice Department into an independent agency. The constitutionality of the EIGA was opposed (albeit not with complete consistency) by every president that followed Carter. Of particular note is the opposition of Ronald Reagan, who pushed his challenge to the constitutionality of the EIGA all the way to the Supreme Court, only to be turned back in the landmark decision of Morrison v. Olson. 20 The years that followed bore out Justice Scalia’s warning that special prosecutors could be manipulated for political purposes, 21 as each party accused the other of using ethics probes as political weapons. The controversy over independent counsels eventually culminated with the impeachment of President Clinton. In the wake of the impeachment, the Clinton administration opposed reauthorization of the EIGA as an unconstitutional violation of the separation of powers. A bipartisan array of former attorneys general, senators, and independent counsels

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agreed. The abruptness of the collapse of political support for the EIGA was somewhat shocking. At the end of 1997, the statute still enjoyed broad support, although many commentators and legislators believed some adjustments might be necessary. By the end of 1998, political support had almost completely evaporated, and the statute was allowed to lapse in 1999. Thus, as we predicted in 1997, the rise and fall of the EIGA would ultimately parallel the rise and fall of the Tenure of Office Act of 1867. 22 Both statutes were enacted by imperial Congresses at a time of great presidential weakness: the Andrew Johnson administration in the one case and the postWatergate Carter administration in the other. Both statutes lasted roughly twenty years, during which time they worked ineffectively. Both statutes were then fi nally repealed in a show of bipartisan determination to return to the system of presidential removal power that the framers so wisely bequeathed us.

Centralized Review of Agency Regulations Perhaps the most important recent mechanism through which presidents have asserted control over the execution of the law is centralized review of agency regulatory programs through the Office of Management and Budget. Often described as a creation of the Reagan administration, the OMB regulatory review program can be traced to the creation of the Bureau of the Budget during the Harding administration as well as Lyndon Johnson’s initial attempts to use the oversight responsibilities of the Bureau of the Budget to influence the development of important agency regulations. Every succeeding president, regardless of party, built upon Johnson’s initial efforts. President Clinton’s retention and expansion of the program is particularly telling in this regard, coming as it did after twelve years of accusations that OMB review represented nothing more than a reflection of the Reagan and Bush administrations’ commitment to deregulation. Thus, Reagan is more properly regarded as one contributor, albeit a very influential contributor, to a more longstanding and more fundamental development in the structure of federal administrative law. The ever-increasing sprawl of the federal bureaucracy and the concomitant increase in the difficulty of coordinating regulatory policy across agencies made the evolution of some new means for coordinating regulatory policy inevitable. Interestingly, the regulatory review process has enhanced communication and coordination not just across agencies but within agencies as well. Before the White House required agencies to prepare annual regulatory agendas, agency heads often did not fi nd out about new regulatory initiatives

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until the eleventh hour, after agency staff had already committed significant resources to the project and long after the basic outlines of the program had already been determined. The regulatory planning process and the prospect of subsequent OMB scrutiny provided both the means and the incentive for all levels of the agency to become actively involved in setting agency priorities and in shaping major regulatory initiatives. The bipartisan nature of the support for centralized OMB review of regulatory initiatives also supports regarding it as a reflection of the fundamental importance of unitary control of the executive branch combined with the dramatic growth in the size and importance of the administrative state. As the preceding summaries have already suggested, the case we have made for the Reagan era concept of the unitary executive is best regarded as a claim for fairly modest presidential powers. All we have argued for in this book in asserting that the executive power is unitary is that whatever executive powers may exist must be exercised subject to presidential control. In this sense, our Reagan era concept of the unitary executive is agnostic about what the extent of the executive power is beyond the fact that it includes a removal power and a power to control subordinates. The administration of President George W. Bush has invoked the theory of the unitary executive as a basis for broad, implied, inherent executive powers in the foreign policy realm. Although these claims have been quite controversial, they are hardly unprecedented. For example, Thomas Jefferson contradicted his earlier statements that the Constitution would have to be amended before the federal government would have the authority to undertake the Louisiana Purchase. Instead he claimed that the president’s power to act as a “‘guardian’ or ‘steward’ of the people” gave him the authority to act even in the absence of statutory authorization and suggested that Congress was honor bound to ratify his actions after the fact.23 Lincoln offered a similar justification for his actions at the outset of the Civil War, during which he claimed the implied, inherent power to blockade the South, to mobilize and increase the size of the army, and to suspend on his own the writ of habeas corpus, as well as later in the war when he freed millions of African American slaves. He asserted that the need to preserve the Union and the Constitution provided all the justification he needed. Theodore Roosevelt boldly asserted that the president was the “steward” of the people who possessed not only the “right but [also the] duty to do anything that the needs of the Nation demanded,” except when the Constitution expressly forbids. In so doing, Roosevelt rejected Taft’s “narrowly legalistic view that the President is the servant of Congress rather than the people, and can do nothing, no matter how necessary it be to act, unless

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the Constitution explicitly commands the action.”24 In a similarly assertive spirit, FDR warned that if Congress failed to take steps to stabilize prices, he would take action himself, notwithstanding the lack of statutory authorization. 25 Truman based his takeover of the steel industry not on any legislation authorizing him to do so but on a supposed inherent power to prevent a paralysis of the national economy in wartime. Nixon asserted implied, inherent executive powers to authorize emergency acts by the FBI that were contrary to federal statutes based on his view that “when the president ‘approves an action because of national security, because of a threat to internal peace . . . the President’s decision . . . is one that enables those who carry it out to carry it out without violating a law.’”26 Nixon made the same claim when he argued for a presidential power to impound funds Congress had appropriated by statute and decline to spend those funds. George W. Bush’s reliance on the advice of Berkeley law professor John Yoo to make sweeping claims of implied, inherent presidential power in the War on Terror are best seen as following in the tradition established by Jefferson, Lincoln, the two Roosevelts, and Nixon. It is a stewardship theory of the presidency that has led the Bush administration on John Yoo’s advice to detain aliens and even American citizens by designating them as “enemy combatants” without giving them a day in court, to interrogate suspects in the War on Terrorism using methods like water boarding, to set up military commissions to try suspects apprehended in the War on Terrorism, and to wiretap all conversations between terror suspects overseas and individuals in the United States. In so doing, Bush’s legal advisers urged him to push the envelope of presidential power to its outer limits. Although Bush deserves a lot of credit for his steps to safeguard the country, the cost of the bad legal advice that he received is that Bush has discredited the theory of the unitary executive by associating it not with presidential authority to remove and direct subordinate executive officials but with implied, inherent foreign policy powers, some of which, at least, the president simply does not possess. This book is not the occasion to review each step the Bush administration has taken in the War on Terror and assess its constitutionality. But we think that taken cumulatively these steps clearly reveal that there were at least some excesses in the powers that the Bush administration claimed. Accepting the theory of the unitary executive does not necessarily require accepting the claims of inherent executive power advanced by the Bush administration. As we noted earlier, aside from the power to remove and direct, the theory of the unitary executive is ultimately agnostic about the question of the scope of executive power. Its central claim is that

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all of the executive power, whatever its source, falls within presidential control. This necessarily entails the conclusion that the clause of the Constitution vesting the executive power in the president also necessarily vests in him or her the implicit authority to supervise the executive branch through the powers of removal and direction. We also think that the president possesses a narrow implied, inherent power to protect the instrumentalities of government even in the absence of specific statutory authorization. 27 The best example of this is perhaps In re Neagle, in which the attorney general ordered a U.S. marshal to protect Supreme Court Justice Stephen Field, who was being stalked by disgruntled litigant David Terry. After the litigant attacked the justice and refused a command to desist, the marshal shot and killed Terry. The Supreme Court ultimately exonerated the marshal from the state charges on the grounds that he had killed Terry “in pursuance of a law of the United States.” Because there was no statute authorizing marshals to protect Supreme Court justices, the law pursuant to which the marshal was acting had to be a protective power inherent in the Constitution’s grant of the “executive Power” to the president. 28 This power expands with the nature of the exigency with which the president is confronted. For example, it arguably justifies the sweeping actions taken by Lincoln shortly after his inauguration. That said, we do not think that the protective power supports presidential suspensions of the writ of habeas corpus or the use of military commissions for U.S. citizens or aliens resident in the fifty United States when it is perfectly feasible to try enemy combatants in Article III federal courts. Military Commissions to try suspects apprehended on the field of battle in the war on terror and held at Guantánamo Bay may be another matter. We think that President Bush and Alberto Gonzales, his White House counsel and later attorney general, were poorly served by their legal advisers on these matters, and the bad advice they were given is going to lead to a buildup of bad precedents for presidential power in the Supreme Court. In sum, we think that the historical practice offers modest support for the existence of a limited, implied protective power of the kind asserted in Neagle. We disavow, however, the very broad claims of implied, inherent power asserted by Theodore Roosevelt, Franklin Roosevelt, Truman, Johnson, and Nixon as being deviations from the more moderate general practice. The key point for our purposes is that nothing in the theory of the unitary executive compels acceptance of such claims. It is completely consistent to maintain a limited view of inherent executive power while simultaneously insisting that whatever executive power does exist be wielded subject to presidential oversight and control.

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Our central conclusions, then, are as follows. First, there is a deeply entrenched presidential practice whereby all forty-three presidents have claimed the removal power. This presidential practice forecloses any claims that Congress has through the passage of time won an easement over Article II that lets it impose limits on the president’s power to remove. If anything, custom and practice establish the opposite proposition: that Congress cannot limit the president’s removal power. Second, there is an almost but not quite as deeply entrenched presidential practice of directing the actions of policymaking subordinates in the executive branch. Efforts by Congress to make policymaking subordinates independent of presidential control thus not only violate the text of the Constitution and good public policy. They violate our customary practice as well. Third, most presidents have claimed some modest implied, inherent executive powers or have claimed that the Vesting Clause of Article II is a power grant. A minority of presidents, including Lincoln, the two Roosevelts, Truman, Nixon, and George W. Bush, have claimed broad implied, inherent executive powers. We think that the constitutional text, policy considerations, and historical practice support the Reagan administration’s vision of the unitary executive but not all of the more ambitious theories of presidential power advanced during the administration of the second President Bush. It is not the purpose of this book to resolve the question of whether and to what extent practice ought to be dispositive in constitutional law. Our only claim is that to whatever extent practice counts, one must consult executive branch practices as well as Congress’s actions in writing and adopting statutes and the Supreme Court’s actions in deciding cases or controversies. Arguments from practice in separation of powers have tended to proceed with scholars pointing to congressionally written enactments and declaring that those statutes reflect our practice. The actions of our forty-three presidents—each of them a discrete constitutional interpreter—also form an important part of our practice, and, as we have shown, none of the presidents has accepted any diminution in the unity of the executive branch. There is thus nothing in the practices of our forty-three chief executives that would foreclose the conclusion that the Constitution gives the president sole authority over the execution of the law. We thus reject the suggestion that arguments in favor of the unitary executive have been trumped by the sweep of history. Instead, any disputes over the proper scope of executive power must thus be resolved with reference to the text and the structure of the Constitution.

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Notes

Part I. An Introduction to the Unitary Executive Debate The Oldest Debate in Constitutional Law and Why It Still Matters Today 1. Gerald E. Frug, Does the Constitution Prevent the Discharge of Civil Service Employees?, 124 U. Pa. L. Rev. 942, 943–46 (1976). 2. As Judge Robert H. Bork warned Steven Calabresi even as he was preparing to work in the Reagan administration, trying to get the bureaucracy to do something is often like wading through wet concrete—you have to try to keep moving even as it hardens around you! 3. 416 U.S. 134 (1974). 4. Frug, supra note 1, at 943–46. 5. INS v. Chadha, 462 U.S. 919, 942 n.13 (1983). 6. 487 U.S. 654 (1988). 7. Humphrey’s Ex’r v. United States, 295 U.S. 602 (1935).

The Modern Debate 1. Pub. L. No. 95-521, 92 Stat. 1824. 2. Ethics in Government Act Amendments of 1982, Pub. L. No. 97-409, sec. 5(d), § 596(a)(1), 96 Stat. 2039, 2042. The original 1978 version of the EIGA referred to “special prosecutors” rather than “independent counsels” and used the term “extraordinary impropriety” instead of good cause. Sec. 601, § 596(a)(1), 92 Stat. at 1872. 3. Archibald Cox & Philip B. Heymann, After the Counsel Law, N.Y. Times, Mar. 10, 1999, at A19; Benjamin Ginsberg & Martin Shefter, Ethics Probes as Political Weapons, 11 J.L. & Pol. 497 (1995). For an analysis of the impact of the political abuse of independent counsels for the separation of powers, see Steven G. Calabresi, Some Normative Arguments

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Notes to Pages 11–15

for the Unitary Executive, 48 Ark. L. Rev. 23, 90–95 (1995) [hereinafter Calabresi, Some Normative Arguments]; Steven G. Calabresi, Some Structural Consequences of the Increased Use of Ethics Probes as Political Weapons, 11 J.L. & Pol. 521 (1995). 4. 487 U.S. 654 (1988). 5. Id. at 712–14, 727–30 (Scalia, J., dissenting). 6. 462 U.S. 919, 942 n.13 (1983). 7. Louis Fisher, The Legislative Veto: Invalidated, It Survives, 56 Law & Contemp. Probs. 273, 273, 288 (1993). 8. See, e.g., Bowsher v. Synar, 478 U.S. 714 (1986) (challenging the Gramm-RudmanHollings Act’s efforts to give executive powers to a legislative official known as the comptroller general). 9. Clinton v. City of New York, 524 U.S. 417 (1998) (striking down the line item veto); Clinton v. Jones, 520 U.S. 681 (1997) (holding that the president is not immune from civil lawsuits). 10. Elena Kagan, Presidential Administration, 114 Harv. L. Rev. 2245 (2001). 11. Confi rmation Hearing on the Nomination of Samuel F. Alito, Jr. to Be an Associate Justice of the Supreme Court of the United States: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 38, 43, 351–52, 368–69, 482–84, 524, 564–65, 585–86, 588–89, 593–95, 601–02, 613, 633, 700, 709, 712, 716, 719–22 (2006). 12. For an overview of this commentary, see Steven G. Calabresi & Christopher S. Yoo, The Unitary Executive During the First Half-Century, 47 Case W. Res. L. Rev. 1451, 1463–72 (1997). 13. Steven G. Calabresi & Saikrishna B. Prakash, The President’s Power to Execute the Laws, 104 Yale L.J. 541, 635–63 (1994); Gerhard Casper, An Essay in Separation of Powers: Some Early Versions and Practices, 30 Wm. & Mary L. Rev. 211, 212–24 (1989); Gerhard Casper, Executive-Congressional Separation of Power during the Presidency of Thomas Jefferson, 47 Stan. L. Rev. 473 (1995); Kent Greenfield, Original Penumbras: Constitutional Interpretation in the First Year of Congress, 26 Conn. L. Rev. 79, 82–111 (1993); Lawrence Lessig & Cass R. Sunstein, The President and the Administration, 94 Colum. L. Rev. 1, 5–84 (1994); Saikrishna Prakash, The Essential Meaning of Executive Power, 2003 U. Ill. L. Rev. 701, 789–800. 14. Forrest McDonald, The American Presidency: An Intellectual History 180 n.35 (1994); Martin S. Flaherty, The Most Dangerous Branch, 105 Yale L.J. 1725, 1816 (1996); Charles Tiefer, The Constitutionality of Independent Offi cers as Checks on Abuses of Executive Offi cers, 63 B.U. L. Rev. 59, 103 (1983). 15. 1 Bruce Ackerman, We the People: Foundations 105–08 (1991). 16. 295 U.S. 602 (1935). See Marshall J. Breger & Gary J. Edles, Established by Practice: The Theory and Operation of Independent Federal Agencies, 52 Admin. L. Rev. 1111, 1236 (2000). 17. Lessig & Sunstein, supra note 13, at 84 n.334 (noting that “a full account of the growth of presidential power” would allow consideration of “the enormously significant and self-conscious changes in the role of the presidency from the period following Jackson through Franklin Roosevelt”). 18. Calabresi & Prakash, supra note 13, at 595–99. 19. Calabresi, Some Normative Arguments, supra note 3; Steven G. Calabresi, The Vesting Clauses as Power Grants, 88 Nw. U. L. Rev. 1377 (1994); Calabresi & Prakash, supra note 13; Steven G. Calabresi & Kevin H. Rhodes, The Structural Constitution: Unitary Executive, Plural Judiciary, 106 Harv. L. Rev. 1153 (1992). 20. Edmund Burke, Reflections on the Revolution in France 85 (J. G. A. Pocock ed., 1987). 21. 462 U.S. 919, 942 n.13 (1983). 22. 279 U.S. 655, 679–83 (1929).

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23. 236 U.S. 459, 474 (1915). 24. Dames & Moore v. Regan, 453 U.S. 654, 668–69, 686 (1981); Myers v. United States, 272 U.S. 52, 170–76 (1926); Stuart v. Laird, 5 U.S. (1 Cranch) 299, 309 (1803). 25. Youngstown Sheet & Tube Co. v. Sawyer (Steel Seizure Case), 343 U.S. 579, 610–11 (1952) (Frankfurter, J., concurring). 26. 272 U.S. 52, 250–91 (1926) (Brandeis, J., dissenting). 27. Flaherty, supra note 14, at 1816–21, 1823–24; Abner S. Greene, Checks and Balances in an Era of Presidential Lawmaking, 61 U. Chi. L. Rev. 123, 153–95 (1994); Peter L. Strauss, The Place of Agencies in Government: Separation of Powers and the Fourth Branch, 84 Colum. L. Rev. 573 (1984). 28. Lessig & Sunstein, supra note 13, at 93–106. 29. Calabresi, Some Normative Arguments, supra note 3, at 51–55; Christopher S. Yoo, Can Interagency Dialogue Serve as the New Separation of Powers?, 116 Yale L.J. Pocket Part 131, 132 (2006). 30. Martin S. Flaherty, History “Lite” in Modern American Constitutionalism, 95 Colum. L. Rev. 523 (1995); see also Alfred H. Kelly, Clio and the Court: An Illicit Love Affair, 1965 Sup. Ct. Rev. 119. 31. Justice Scalia speculated that Chief Justice Taft might have had to expand the three years and seventy pages he devoted to drafting his history of the unitary executive in Myers into thirty years and seven thousand pages in order to do the subject justice. Antonin Scalia, Originalism: The Lesser Evil, 57 U. Cin. L. Rev. 849, 852 (1989). 32. 272 U.S. 52 (1926). 33. Youngstown Sheet & Tube Co. v. Sawyer (Steel Seizure Case), 343 U.S. 579 (1952). 34. 158 U.S. 564 (1895). 35. Compare John Yoo, The Powers of War and Peace: The Constitution and Foreign Affairs after 9/11, at 55–142 (2005), and Saikrishna B. Prakash & Michael D. Ramsey, The Executive Power over Foreign Affairs, 111 Yale L.J. 231 (2001), with Curtis A. Bradley & Martin S. Flaherty, Executive Power Essentialism and Foreign Affairs, 102 Mich. L. Rev. 545 (2004). 36. Compare John C. Yoo, War and the Constitutional Text, 69 U. Chi. L. Rev. 1639, 1677–78 (2002), with Michael D. Ramsey, Textualism and the War Powers, 69 U. Chi. L. Rev. 1543 (2002). 37. Compare Youngstown Sheet & Tube Co. v. Sawyer (Steel Seizure Case), 343 U.S. 579, 585–87 (1952), with id. at 637–38 (Jackson, J., concurring).

Why Presidential Views of the Scope of Presidential Power Matter 1. For a helpful description and list of examples of coordinate construction, see Louis Fisher, Constitutional Dialogues: Interpretation as Political Process 231–46 (1988) [hereinafter Fisher, Constitutional Dialogues]. 2. In The Federalist No. 49, James Madison declared: “The several departments being perfectly co-ordinate by the terms of their common commission, neither of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries between their respective powers.” The Federalist No. 49, at 339 (James Madison) (J. Cooke ed., 1961). 3. Gerald Gunther, Constitutional Law 21–28 (11th ed. 1985); Gary Apfel, Whose Constitution Is It Anyway? The Authority of the Judiciary’s Interpretation of the Constitution, 46 Rutgers L. Rev. 771, 777–82 (1994); Michael Stokes Paulsen, The Merryman Power and the Dilemma of Autonomous Executive Branch Interpretation, 15 Cardozo L. Rev. 81, 85–97 (1993). For a comprehensive collection of instances of presidential constitutional construction by numerous presidents from Franklin Pierce to George H. W. Bush, see Christopher N. May, Presidential Defi ance of “Unconstitutional” Laws: Reviving the Royal Prerogative, 21 Hastings Const. L.Q. 865, 904–86 (1994). For an

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interesting discussion of examples of constitutional construction by Congress, see Donald G. Morgan, Congress and the Constitution: A Study of Responsibility (1966). A speech that Meese, then attorney general, delivered at Tulane University in 1987, which brought renewed attention to the issue, is reprinted along with other useful commentaries in Symposium, Perspectives on the Authoritativeness of Supreme Court Decisions, 61 Tul. L. Rev. 979 (1987). For other useful compilations of executive, legislative, judicial, and scholarly materials on the subject, see Louis Fisher & Neal Devins, Political Dynamics of Constitutional Law 16–26 (1992); Walter F. Murphy et al., American Constitutional Interpretation 195–247 (1st ed. 1986). 4. Thomas W. Merrill, Judicial Opinions as Binding Law and as Explanations for Judgments, 15 Cardozo L. Rev. 43, 49 n.26 (1993) (citing Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics 263–64 (1962); Edward S. Corwin, Court over the Constitution: A Study of Judicial Review as an Instrument of Popular Government 68–69 (1939); Philip B. Kurland, Politics, the Constitution, and the Warren Court 116 (1970); Gerald Gunther, The Subtle Vices of the “Passive Virtues”—A Comment on Principle and Expediency in Judicial Review, 64 Colum. L. Rev. 1, 25 n.155 (1964); Henry P. Monaghan, Constitutional Adjudication: The Who and When, 82 Yale L.J. 1363, 1363 n.2 (1973); Herbert Wechsler, The Courts and the Constitution, 65 Colum. L. Rev. 1001, 1008 (1965)). 5. For a more complete enumeration of commentary on coordinate construction through 1996, see Steven G. Calabresi & Christopher S. Yoo, The Unitary Executive during the First Half-Century, 47 Case W. Res. L. Rev. 1451, 1463–72 (1997). For more recent scholarship, see Larry Alexander & Frederick Schauer, On Extrajudicial Constitutional Interpretation, 110 Harv. L. Rev. 1359 (1997); Rachel E. Barkow, More Supreme Than Court? The Fall of the Political Question Doctrine and the Rise of Judicial Supremacy, 102 Colum. L. Rev. 237 (2002); Neal Devins & Louis Fisher, Judicial Exclusivity and Political Instability, 84 Va. L. Rev. 83 (1998); Michael Dorf & Barry Friedman, Shared Constitutional Construction, 2000 Sup. Ct. Rev. 61; Barry Friedman, The History of the Countermajoritarian Diffi culty, Part One: The Road to Judicial Supremacy, 73 N.Y.U. L. Rev. 333 (1998); Edward A. Hartnett, A Matter of Judgment, Not a Matter of Opinion, 74 N.Y.U. L. Rev. 123 (1999); Larry D. Kramer, Foreword: We the Court, 115 Harv. L. Rev. 4, 6–16 (2001); Neal Kumar Katyal, Legislative Constitutional Interpretation, 50 Duke L.J. 1335, 1364 (2001); Frank I. Michelman, Living with Judicial Supremacy, 38 Wake Forest L. Rev. 579 (2003); Robert F. Nagel, Judicial Supremacy and the Settlement Function, 39 Wm. & Mary L. Rev. 849 (1998); Saikrishna B. Prakash & John C. Yoo, The Origins of Judicial Review, 70 U. Chi. L. Rev. 887 (2003); Robert A. Schapiro, Judicial Deference and Interpretive Coordinacy in State and Federal Constitutional Law, 85 Cornell L. Rev. 656 (2000); Keith E. Whittington, Extrajudicial Constitutional Interpretation: Three Objections and Responses, 80 N.C. L. Rev. 773 (2002). 6. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803). The most famous dicta expressing the judicial supremacy position was announced in Cooper v. Aaron, 358 U.S. 1, 18 (1958), which proclaimed that “the federal judiciary is supreme in the exposition of the law of the Constitution.” Subsequent cases referred to the “responsibility of this Court” as the “ultimate interpreter of the Constitution.” Baker v. Carr, 369 U.S. 211 (1962); Powell v. McCormack, 395 U.S. 486, 549 (1969); United States v. Nixon, 418 U.S. 683, 704 (1974). 7. Marbury, 5 U.S. (1 Cranch) at 177. 8. John Agresto, The Supreme Court and Constitutional Democracy 104–07 (1984); Fisher, Constitutional Dialogues, supra note 1, at 242–43; 1 Laurence H. Tribe, American Constitutional Law § 3-2, at 210–11 (3d ed. 2000); Paul Brest, Congress as Constitutional Decisionmaker, and Its Power to Counter Judicial Doctrine, 21 Ga. L. Rev. 57, 63 (1974); Paul Brest, The Conscientious Legislator’s Guide to Constitutional Interpretation, 27

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Stan. L. Rev. 585 (1975); Merrill, supra note 4, at 51; Michael Stokes Paulsen, The Most Dangerous Branch: Executive Power to Say What the Law Is, 83 Geo. L.J. 217, 241–45 (1994); William W. Van Alstyne, A Critical Guide to Marbury v. Madison, 1969 Duke L.J. 1, 37. 9. Paulsen, supra note 8, at 228–40. 10. Some forms of coordinate construction have remained quite controversial. Vigorous debate currently rages over whether or not the president is obligated to enforce federal court judgments. Paulsen says he is not, while Lawson and Moore disagree. Compare Paulsen, supra note 8, with Gary Lawson & Christopher D. Moore, The Executive Power of Constitutional Interpretation, 81 Iowa L. Rev. 1267 (1996). Moreover, to pick a different context, many commentators have questioned the Supreme Court’s deference to congressional interpretations of the Fourteenth Amendment fi rst announced in Katzenbach v. Morgan, 384 U.S. 641 (1966). See Stephen L. Carter, The Morgan “Power” and the Forced Reconsideration of Constitutional Decisions, 53 U. Chi. L. Rev. 819 (1986); William Cohen, Congressional Power to Interpret Due Process and Equal Protection, 27 Stan. L. Rev. 603 (1975); Robert C. Post & Reva B. Siegel, Legislative Constitutionalism and Section Five Power: Policentric Interpretation of the Family and Medical Leave Act, 112 Yale L.J. 1943 (2003); Stephen F. Ross, Legislative Enforcement of Equal Protection, 72 Minn. L. Rev. 311 (1987). But see Robert A. Burt, Miranda and Title II: A Morganatic Marriage, 1969 Sup. Ct. Rev. 81, 112–18 (defending the Morgan power). 11. Louis Fisher, Separation of Powers: Interpretation outside the Courts, 18 Pepp. L. Rev. 57, 57–62 (1990); Archibald Cox, The Role of Congress in Constitutional Determinations, 40 U. Cin. L. Rev. 199, 204–05 (1971); Abner J. Mikva & Joseph R. Lundy, The 91st Congress and the Constitution, 38 U. Chi. L. Rev. 449, 497–98 (1971). 12. Compare Merrill, supra note 4, at 53, with David A. Strauss, Presidential Interpretation of the Constitution, 15 Cardozo L. Rev. 113, 131–34 (1993). For example, it is somewhat troubling that Chief Justice Rehnquist wrote the majority opinion in Morrison v. Olson, 487 U.S. 654 (1988). Up to that point he had been a strong supporter of presidential power, Fisher & Devins, supra note 3, at 147, and just two years earlier had supported an early draft of Bowsher v. Synar, 478 U.S. 714 (1986), strongly endorsing the president’s right to remove all officers wielding executive power, Bernard Schwartz, An Administrative Law “Might Have Been”—Chief Justice Burger’s Bowsher v. Synar Draft, 42 Admin. L. Rev. 221, 226–27, 232 (1990). And yet, Rehnquist wrote a sweeping opinion upholding the removal restrictions in the Ethics in Government Act as a constitutionally permissible infringement upon the executive branch. A disturbing explanation of his position is that as chief justice, Rehnquist possessed the power under the act to select the members of the special division of the D.C. Circuit that would control all independent counsel investigations and prosecutions. Thus, the chief justice arguably had a strong interest in upholding the constitutionality of the act. Although we in no way mean to suggest that this motivation actually underlay the chief justice’s authorship of Morrison, it does serve to illustrate that the Supreme Court’s pronouncements about its own power relative to the other two branches may be subject to greater skepticism than its opinions in any other area of constitutional law. 13. Agresto, supra note 8, at 10, 93, 152; Paul Bator et al., The Federal Courts and the Federal System 363 (2d ed. 1973); Bickel, supra note 4, at 240; Michael Perry, The Constitution, the Courts, and Human Rights 125–26 (1982); Brest, Congress as Constitutional Decisionmaker, supra note 8, at 103; Cox, supra note 11, at 260; Jonathan L. Entin, Separation of Powers, the Political Branches, and the Limits of Judicial Review, 51 Ohio St. L.J. 175, 218–23 (1990); Louis Fisher, Constitutional Interpretation by Members of Congress, 63 N.C. L. Rev. 707, 744 (1985) [hereinafter Fisher, Constitutional Interpretation]; Merrill, supra note 4, at 45.

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14. Fisher, Constitutional Dialogues, supra note 1, at 243–44; Fisher, Constitutional Interpretation, supra note 13, at 716–17, 746; Michael J. Glennon, The Use of Custom in Resolving Separation of Powers Disputes, 64 B.U. L. Rev. 109, 139–41 (1984). 15. We realize, of course, that many will deny that presidents are defending turf here, since our conclusion in that regard presumes that the framers meant to create a strongly unitary executive. We do presume this for reasons that have been amply explained in prior writings, and we ask here whether any contrary practice has grown up that would trump the original understanding. The absence of such a contrary practice suggests, if anything, that we are right about the original history and that Lessig, Sunstein, and Flaherty are wrong. It would be very difficult indeed to argue that for more than two centuries, from George Washington to George W. Bush, presidents have always uniformly asserted a view of presidential power that was both rejected by the framers and that was at odds with the constitutional text. 16. Van Alstyne, supra note 8, at 34. 17. United States v. Midwest Oil Co., 236 U.S. 459, 474 (1915). 18. Youngstown Sheet & Tube Co. v. Sawyer (Steel Seizure Case), 343 U.S. 579, 610–11 (1952) (Frankfurter, J., concurring). 19. Stuart v. Laird, 5 U.S. (1 Cranch) 299, 309 (1803) (“Practice, and acquiescence under it, for a period of several years, commencing with the organization of the judicial system . . . and has indeed fi xed the construction.”); Mo. Pac. Ry. Co. v. Kansas, 248 U.S. 276, 283–84 (1919) (relying on established practices to decide the quorum rules for Congress); Myers v. United States, 272 U.S. 52, 163 (1926); The Pocket Veto Case, 279 U.S. 655, 688–89 (1929) (“The views which we have expressed as to the construction and effect of the constitutional provision here in question are confi rmed by the practical construction that has been given to it by the Presidents through a long course of years, in which Congress has acquiesced. Long settled and established practice is a consideration of great weight in a proper interpretation of constitutional provisions of this character.”); United States v. Curtiss-Wright Corp., 299 U.S. 304, 327–28 (1936) (“A . . . practice such as we have here, evidenced not by only occasional instances, but marked by the movement of a steady stream for a century and a half of time, goes a long way in the direction of proving the presence of unassailable ground for the constitutionality of the practice, to be found in the origin and history of the power involved, or in its nature, or in both combined.”); Cincinnati Soap Co. v. United States, 301 U.S. 308, 315 (1937) (quoting the foregoing language with approval); Dames & Moore v. Regan, 453 U.S. 654, 668–69, 686 (1981) (noting “the history of (congressional) acquiescence in executive claims settlement,” the Court held that “Congress may be considered to have consented to the President’s action in suspending claims”). 20. 462 U.S. 919, 942 n.13 (1983). 21. Robert H. Jackson, A Presidential Legal Opinion, 66 Harv. L. Rev. 1353, 1357–59 (1953). 22. In fact, some scholars have argued that historical acquiescence by earlier presidents cannot be dispositive, no matter how longstanding. Douglas W. Kmiec, OLC’s Opinion Writing Function: The Legal Adhesive for a Unitary Executive, 15 Cardozo L. Rev. 337, 357 (1993) (“Later presidents cannot be estopped from returning to the original understanding [of the Constitution].”). 23. 272 U.S. 52 (1926). 24. 189 U.S. 311 (1903). 25. 167 U.S. 324 (1897). 26. 478 U.S. 714 (1986). 27. 295 U.S. 602 (1935). 28. 357 U.S. 349 (1958). 29. 487 U.S. 654 (1988).

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30. Youngstown Sheet & Tube Co. v. Sawyer (Steel Seizure Case), 343 U.S. 579, 640–41 (1952) (Jackson, J., concurring).

The Preratification Origins of the Unitary Executive Debate and the Decision of 1789 1. Charles Fried, Order and Law: Arguing the Reagan Revolution—A Firsthand Account 133 (1991); Elena Kagan, Presidential Administration, 114 Harv. L. Rev. 2245, 2278–80, 2332 (2001); Morton Rosenberg, Congress’s Prerogative over Agencies and Agency Decisionmakers: The Rise and Demise of the Reagan Administration’s Theory of the Unitary Executive, 57 Geo. Wash. L. Rev. 627, 629, 634 (1989); Cass R. Sunstein, The Myth of the Unitary Executive, 7 Admin. L.J. Am. U. 299, 300–02 (1993). 2. Charles Thach, The Creation of the Presidency, 1775–1789 (1922); Gordon Wood, The Creation of the American Republic 1776–1787 (1969). For other leading accounts, see Willi Paul Adams, The First American Constitutions: Republican Ideology and the Making of the State Constitutions in the Revolutionary Era (Rita & Robert Kimber trans., 1973); Edward S. Corwin, The President: Office and Powers 4–17 (1940); Forrest McDonald, The American President: An Intellectual History 125–208 (1994); Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution 244–88 (1996); Steven G. Calabresi & Saikrishna B. Prakash, The President’s Power to Execute the Laws, 104 Yale L.J. 541, 599–635 (1994); Louis Fisher, The Efficiency Side of Separated Powers 5 J. Am. Stud. 113 (1971); Gary J. Schmitt, Separation of Powers: Introduction to the Study of Executive Agreements, 27 Am. J. Juris. 114, 121–29 (1982). For a contrary view, see Martin S. Flaherty, The Most Dangerous Branch, 105 Yale L.J. 1725, 1755–1810 (1996). 3. John Adams, Novanglus Papers No. 5 (1774), reprinted in 4 Works of John Adams 57, 79 (Charles Francis Adams ed., Books for Libraries Press 1969) (1851), quoted in Wood, supra note 2, at 63. 4. 2 The Records of the Federal Convention of 1787, at 35 (Max Farrand ed., 1911). 5. Rakove, supra note 2, at 252. 6. James Madison, Vices of the Political System in the United States (Apr. 1787), in 9 The Papers of James Madison 345, 353–54 (Charles F. Hobson & Robert A. Rutland eds., 1975). 7. Thomas Jefferson, Notes on Virginia (1781–82), in 3 The Writings of Thomas Jefferson 85, 223 (Paul Leicester Ford ed., New York, G. P. Putnam’s Sons 1897). 8. Letter from James Madison to Caleb Wallace (Aug. 23, 1785), in 8 The Papers of James Madison, supra note 6, at 351. 9. Thach, supra note 2, at 52. 10. Id. at 62, 74. 11. Id. at 51–53, 76; Wood, supra note 2, at 432, 435–37, 471–74, 521, 551–52; Schmitt, supra note 2, at 125. 12. Letter from James Madison to Thomas Jefferson (Oct. 24, 1787), in 3 The Records of the Federal Convention of 1787, supra note 4, at 131, 132. 13. Forrest McDonald, Novus Ordo Seclorum: The Intellectual Origins of the Constitution 241 (1985); Ruth Weissbourd Grant & Stephen Grant, The Madisonian Presidency, in The Presidency in the Constitutional Order 31, 31 (Joseph M. Bessette and Jeffrey Tulis eds., 1981). 14. Letter from James Madison to Caleb Wallace, supra note 8, at 351. 15. John Adams, Defence of the Constitutions of Government of the United States of America against the Attack of M. Turgot in his Letter to Dr. Price, 22 March 1778 (Jan. 1, 1787), in 4 Works of John Adams, supra note 3, at 271, 585–86; Letter from Thomas Jefferson to James Madison (June 20, 1787), in 4 The Writings of Thomas Jefferson, supra note 7, at 390; Letter from Thomas Jefferson to Edward Carrington (Aug. 4, 1787), in 4 The Writings of Thomas Jefferson, supra note 7, at 423, 424–25.

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16. 1 The Records of the Federal Convention of 1787, supra note 4, at 65–66, 96–97. 17. 2 id. at 329, 342–44, 367, 495, 538–39, 541–43. 18. Letter from James Madison to Thomas Jefferson, supra note 12, at 132. 19. U.S. Const. art. II, §§ 1, 3. 20. Peter L. Strauss, The Place of Agencies in Government: Separation of Powers and the Fourth Branch, 84 Colum. L. Rev. 573, 600 (1984) (“If the Convention was clear in its choice of a single executive—and its associated beliefs that such a person might bear focused political accountability for the work of law-execution and serve as an effective political counterweight to Congress—it was ambivalent in its expectations about the President’s relations with those who would actually do the work of law-administration.”); Lawrence Lessig & Cass R. Sunstein, The President and the Administration, 94 Colum. L. Rev. 1, 8 (1994) (“No one denies that in some sense the framers created a unitary executive; the question is in what sense.”). 21. The Federalist No. 77, at 515 (Alexander Hamilton) (J. Cooke ed., 1961) (“The consent of [the Senate] would be necessary to displace as well as to appoint.”). As we discuss in chapter 1, Hamilton offered this passing comment on removal as a prelude to a large discussion of whether vesting the appointment power jointly in both the president and the Senate roles would give the president too much influence over the Senate or vice versa. Hamilton later renounced this position, concluding that the issue was settled by the Decision of 1789. 22. For classic analyses of the Decision of 1789, see James Hart, The American Presidency in Action, 1789: A Study in Constitutional History 155–248 (1948); Charles C. Thach Jr., The Creation of the Presidency 1775–1789, at 141–65 (1923). For more critical accounts, see Edward S. Corwin, The President’s Removal Power under the Constitution (1927), reprinted in 1 Corwin on the Constitution 317, 332 (Richard Loss ed., 1981); David P. Currie, The Constitution in Congress: The First Congress and the Structure of Government, 1789–1791, 2 U. Chi. L. Sch. Roundtable 161, 195–203 (1995). Calabresi and Prakash have offered their own analyses. Calabresi & Prakash, supra note 2, at 642–45; Saikrishna Prakash, New Light on the Decision of 1789, 91 Cornell L. Rev. 1021 (2006). For other contemporary treatments, see Gerhard Casper, An Essay in Separation of Powers: Some Early Versions and Practices, 30 Wm. & Mary L. Rev. 211, 233–43 (1989); Kent Greenfield, Original Penumbras: Constitutional Interpretation in the First Year of Congress, 26 Conn. L. Rev. 79, 82–111 (1993). 23. 2 Joseph Story, Commentaries on the Constitution of the United States §§ 799–800, at 572 (Boston, Hilliard, Gray 1833); 1 James Kent, Commentaries on American Law, lecture 16, at 289–90 (New York, O. Halsted 1826). 24. See, e.g., Bowsher v. Synar, 478 U.S. 714, 723–24 (1986); Myers v. United States, 272 U.S. 52, 174–75 (1926). 25. 11 Reg. Deb. 461 (1835); accord id. at 470; 10 Reg. Deb. 1664, 1687–88 (1834). 26. Myers v. United States, 272 U.S. 52, 110–33 (1926); Sierra Club v. Costle, 657 F.2d 298, 405 (D.C. Cir. 1981); Rakove, supra note 2, at 250–53, 257–58; Arthur M. Schlesinger Jr., The Imperial Presidency 2, 384 (1973); Strauss, supra note 20, at 599–601.

Part II. The Unitary Executive During the Early Years of the Republic, 1787–1837 1. Lawrence Lessig & Cass R. Sunstein, The President and the Administration, 94 Colum. L. Rev. 1, 8 (1994). 2. 1 James Kent, Commentaries on American Law 289–90 (New York, O. Halsted 1826); 2 Joseph Story, Commentaries on the Constitution of the United States §§ 799–800, at 572 (Boston, Hilliard, Gray 1833).

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Chapter 1. George Washington 1. Letter from George Washington to Joseph Jones (May 14, 1780), in 18 The Writings of George Washington 356, 356–57 (John C. Fitzpatrick ed., 1939); Letter from George Washington to the President of Congress (July 10, 1775), in 3 The Writings of George Washington, supra, at 320, 324; Letter from George Washington to the President of Congress (July 20, 1775), in 3 The Writings of George Washington, supra, at 346, 350. 2. Glenn A. Phelps, George Washington and American Constitutionalism 143 (1993). 3. Id. at 103–04, 144. 4. Letter from George Washington to Eleanor Francois Elie, Comte de Moustier (May 25, 1789), in 30 The Writings of George Washington, supra note 1, at 333, 334. 5. Letter from George Washington to the Secretary of War (Sept. 24, 1792), in 32 The Writings of George Washington, supra note 1, at 160. 6. Leonard D. White, The Federalists: A Study in Administrative History 27 (1948). 7. Jerry L. Mashaw, Recovering American Administrative Law: Federalist Foundations, 1787–1801, 115 Yale L.J. 1256, 1266–67 (2006). 8. Letter from George Washington to the Acting Secretary of War (May 9, 1789), in 30 The Writings of George Washington, supra note 1, at 313. 9. Letter from George Washington to the Acting Secretary for Foreign Affairs (June 8, 1789), in 30 The Writings of George Washington, supra note 1, at 343, 344 & n.30. 10. James Hart, The American Presidency in Action, 1789: A Study in Constitutional History 135 (1948). 11. White, supra note 6, at 32–33, 106–07. 12. 30 The Writings of George Washington, supra note 1, at 343 n.29. 13. Hart, supra note 10, at 135. 14. Memorandum from Jefferson to the Heads of Departments (Nov. 6, 1801), in 8 The Writings of Thomas Jefferson 99, 100 (Paul Leicester Ford ed., New York, G. P. Putnam’s Sons 1897). 15. Letter from George Washington to the Secretary of War (Aug. 15, 1792), in 32 The Writings of George Washington, supra note 1, at 115, 116–17. 16. White, supra note 6, at 170–72, 285, 288. 17. Id. at 27. 18. Rexford G. Tugwell, The Enlargement of the Presidency 43, 134–35 (1960). 19. Phelps, supra note 2, at 145. 20. Kenneth R. Mayer, With the Stroke of a Pen: Executive Orders and Presidential Power 51 (2001). 21. Hart, supra note 10, at 134; see also White, supra note 6, at 27 n.4 (“Washington . . . took full advantage of [the department heads’] counsel and was deferential to their views.”). 22. Letter from George Washington to Eleanor Francois Elie, Comte de Moustier, supra note 4, at 334. 23. Phelps, supra note 2, at 146. 24. Compare An Act to Establish the Treasury Department, ch. 12, § 1, 1 Stat. 65, 65 (1789), and An Act for the Temporary Establishment of the Post-Office, ch. 16, § 1, 1 Stat. 70, 70 (1789) with An Act for Establishing an Executive Department, to be Denominated the Department of Foreign Affairs, ch. 4, § 1, 1 Stat. 28–29 (1789) and An Act to Establish an Executive Department, to be Denominated the Department of War, ch. 7, § 1, 1 Stat. 49–50 (1789). 25. § 1, 1 Stat. at 29; § 1, 1 Stat. at 49–50; §§ 2, 4, 1 Stat. at 66. 26. An Act to Prove More Effectually for the Settlement of Accounts Between the United States, and Receiver of Public Money, ch. 20, § 1, 1 Stat. 512, 512 (1797).

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Notes to Pages 44–48

27. Gerhard Casper, An Essay in Separation of Powers: Some Early Versions and Practices, 30 Wm. & Mary L. Rev. 211, 240–42 (1989); Lawrence Lessig & Cass R. Sunstein, The President and the Administration, 94 Colum. L. Rev. 1, 27–30, 71–72 (1994); Mashaw, supra note 7, at 1285–86, 1288, 1340. 28. Act of Sept. 11, 1789, ch. 13, § 1, 1 Stat. 67, 67. 29. Letter from George Washington to the Secretary of the Treasury (Mar. 15, 1791), in 31 The Writings of George Washington, supra note 1, at 233, 234–49. 30. Mashaw, supra note 7, at 1287, 1305–07. 31. White, supra note 6, at 29. Other historians concur. Forrest McDonald, The Presidency of George Washington 65 (1974). 32. Phelps, supra note 2, at 46. 33. Mashaw, supra note 7, at 1290. 34. U.S. Dept. of the Treasury, Fact Sheets: Treasury Building, http://www.treas.gov/ education/fact-sheets/building/history.shtml (last accessed Aug. 10, 2007); U.S. Dept. of the Treasury, FAQs: Main Treasury Building, http://www.treas.gov/education/faq/treasury/building.shtml (last accessed Aug. 10, 2007). 35. David P. Currie, The Constitution in Congress: The First Congress and the Structure of Government, 1789–1791, 2 U. Chi. L. Sch. Roundtable 161, 203 (1995). 36. § 1, 1 Stat. at 70. 37. Letter from George Washington to the Acting Postmaster General (July 3, 1789), in 30 The Writings of George Washington, supra note 1, at 352, 352–53. 38. Letter from George Washington to the Acting Postmaster General (July 17, 1789), in 30 The Writings of George Washington, supra note 1, at 356, 356. 39. Letter from George Washington to the Postmaster General (Aug. 29, 1791), in 31 The Writings of George Washington, supra note 1, at 348, 348. 40. Letter from Edmund Randolph to George Washington (Dec. 26, 1791), reprinted in 1 American State Papers, Miscellaneous 45–46 (Walter Lowrie & Walter S. Franklin eds., Washington, D.C., Gales & Seaton 1834). 41. 3 Annals of Cong. 85–88, 134, 329–31, 407 (1792). 42. Susan Low Bloch, The Early Role of the Attorney General in Our Constitutional Scheme: In the Beginning There Was Pragmatism, 1989 Duke L.J. 561, 567; Harold J. Krent, Executive Control over Criminal Law Enforcement: Some Lessons from History, 38 Am. U. L. Rev. 275, 286–87 (1989); Lessig & Sunstein, supra note 27, at 16–17. 43. William B. Gwyn, The Indeterminacy of the Separation of Powers and the Federal Courts, 57 Geo. Wash. L. Rev. 474, 492–93 (1989); see also Mashaw, supra note 7, at 1290, 1303. 44. Saikrishna Prakash, The Chief Prosecutor, 73 Geo. Wash. L. Rev. 521, 546–553 (2005). 45. 4 William Blackstone, Commentaries at *268–69. 46. Wilkes v. The King, 97 Eng. Rep. 123 (K.B. 1768). 47. Prakash, supra note 44, at 548–551. 48. Id. at 553–58. 49. Id., at 553. 50. George Washington, Proclamation (Sept. 15, 1792), in 1 A Compilation of the Messages and Papers of the Presidents 116, 116–17 (James D. Richardson ed., 1925) [hereinafter Messages & Papers]. 51. Letter from George Washington to the Secretary of the Treasury (Oct. 1, 1792), in 32 The Writings of George Washington, supra note 1, at 173–74. 52. George Washington, Fourth Annual Address (Nov. 6, 1792) [hereinafter Washington, Whiskey Rebellion Proclamation], in 1 Messages & Papers, supra note 50, at 117, 119. 53. Prakash, supra note 44, at 554. 54. Phelps, supra note 2, at 133.

Notes to Pages 48–51

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55. George Washington, Proclamation (July 10, 1795), in 1 Messages & Papers, supra note 50, at 173. 56. Letter from George Washington to William Rawle (Mar. 13, 1793), in 32 The Writings of George Washington, supra note 1, at 386, 386. 57. Prakash, supra note 44, at 554 n.204 (citing Letter of Thomas Jefferson to Christopher Gore (Nov. 22, 1793)). 58. George Washington, Proclamation (Apr. 22, 1793), in 1 Messages & Papers, supra note 50, at 148, 149. 59. Journal of the Proceedings of the President (May 10, 1793), in 32 The Writings of George Washington, supra note 1, at 455 n.35 (emphasis added). Both the attorney general and the secretary of state entered numerous other requests for specific actions with regard to prosecutions. White, supra note 6, at 407–08 & n.10. 60. Letter from Thomas Jefferson to George Hammond (June 13, 1793), in 26 The Papers of Thomas Jefferson 270–71 (Julian Boyd ed., 1950). 61. Letter from Thomas Jefferson to District Attorneys in Massachusetts, New York, Pennsylvania, Maryland, and South Carolina (Nov. 29, 1793), in 27 The Papers of Thomas Jefferson, supra note 60, at 456. 62. Phelps, supra note 2, at 132. 63. Krent, supra note 42, at 309. 64. Prakash, supra note 44, at 567. 65. Phelps, supra note 2, at 132–33. 66. George Washington, Proclamation (Mar. 19, 1791), in 1 Messages & Papers, supra note 50, at 93. 67. Letter from Thomas Jefferson to William Murray, Kentucky District Attorney (Mar. 22, 1791), in 19 The Papers of Thomas Jefferson, supra note 60, at 598. 68. George Washington, Proclamation (Dec. 12, 1792), in 1 Messages & Papers, supra note 50, at 129. 69. George Washington, Fifth Annual Address (Dec. 3, 1793), in 1 Messages & Papers, supra note 50, at 130, 133. 70. Prakash, supra note 44, at 556. For a discussion of Bingham’s case, see Mashaw, supra note 7, at 1326. 71. 2 U.S. (2 Dall.) 409 (1792). 72. Letter from Washington to the Attorney General (Oct. 1, 1792), in 32 The Writings of George Washington, supra note 1, at 171–72; United States v. Lawrence, 3 U.S. (3 Dall.) 42, 48–49 (1795) (argument of Attorney General William Bradford noting the president’s motives for intervening in the litigation). 73. Extract of a Letter from Richard Harrison to Timothy Pickering (Oct. 3, 1795), reprinted in 1 American State Papers: Foreign Relations 626–27 (Walter Lowrie & Mathew St. Clair Clarke eds., Washington, D.C., Gales & Seaton 1833). 74. Maeva Marcus & Robert Teir, Hayburn’s Case: A Misinterpretation of Precedent, 1988 Wis. L. Rev. 527, 537 (quoting Justice Iredell’s notes on Attorney General Randolph’s argument in Hayburn’s Case). 75. Prakash, supra note 44, at 576–596. 76. Act of Mar. 1, 1790, ch. 2, § 3, 1 Stat. 102; Act of July 5, 1790, ch. 25, § 1, 1 Stat. 129; Act of July 20, 1790, ch. 29, §§ 1, 4, 1 Stat. 131, 133; Act of July 22, 1790, ch. 33, § 3, 1 Stat. 137, 137–38; Act of Mar. 3, 1791, ch. 15, § 44, 1 Stat. 209. 77. The statutes provided a bounty to informers without making clear whether the bounty was for successful prosecution of a qui tam action or for providing information. Act of July 31, 1789, ch. 5, §§ 29, 38, 1 Stat. 44, 44–45, 48; Act of Sept. 1, 1789, ch. 11, § 21, 1 Stat. 60; Act of Sept. 2, 1789, ch. 12, § 8, 1 Stat. 67; Act of Aug. 4, 1790, ch. 35, § 69, 1 Stat. 177, Act of Mar. 3, 1791, ch. 8, § 1, 1 Stat. 195, 195–96. 78. 13 Op. Off. Legal Counsel 207, 249 (1989).

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Notes to Pages 51–56

79. 96 Eng. Rep. 315 (K.B. 1765). 80. 97 Eng. Rep. 531 (K.B. 1759). 81. 74 U.S. (7 Wall.) 454 (1868). 82. 91 U.S. 474 (1875). 83. 95 U.S. 149 (1877). 84. Prakash, supra note 44, at 588–91. 85. Mashaw, supra note 7, at 1316. 86. Id. at 1291, 1301–02. 87. An Act Establishing a Mint, and Regulating the Coins of the United States, ch. 16, § 18, 1 Stat. 246, 250 (1792). 88. An Act Supplementary to the Act Making Provision for the Debt of the United States, ch. 38 § 6, 1 Stat. 281, 282 (1792). 89. An Act Regulating the Grants of Lands Appropriated for Military Services, and for the Society of United Brethren, for Propagating the Gospel Among the Heathen, ch. 46, § 2, 1 Stat. 490, 491 (1796). 90. It might be added that these early statutes would today be considered problematic under the Supreme Court’s present-day Appointments Clause jurisprudence. Weiss v. United States, 510 U.S. 163 (1994). 91. 295 U.S. 602 (1935). 92. Mashaw, supra note 7, at 1302. 93. An Act to Promote the Progress of Useful Arts, ch. 7, § 1, 1 Stat. 109, 110 (1790). 94. § 1, 1 Stat. at 110. 95. An Act to Incorporate the Subscribers to the Bank of the United States, ch. 10, §§ 1, 4, 1 Stat. 191, 192 (1791). 96. Mashaw, supra note 7, at 1320. 97. Alexander Hamilton, Pacifi cus No. I (June 29, 1793), in 4 The Works of Alexander Hamilton 432, 437–39 (Henry C. Lodge ed., 1971) (emphasis in original). 98. Id. at 438. 99. Id. at 439 (emphasis added). 100. The Federalist No. 70, at 471, 476 (Alexander Hamilton) (Jacob E. Cooke ed., 1961). 101. The Federalist No. 72, at 487 (Alexander Hamilton) (Jacob E. Cooke ed., 1961). 102. The Federalist No. 77, at 496–97 (Alexander Hamilton) (Edward M. Earle ed., 1976) 103. Richard Loss, Corwin on Alexander Hamilton and the President’s Removal Power, in Corwin on the Constitution 373, 374–77 (Richard Loss ed., 1981); Douglas Adair, The Authorship of the Disputed Federalist Papers, 3 Wm. & Mary Q. 9, 235 (1944), reprinted in Fame and the Founding Fathers 27, 73 (Trevor Colbourn ed., 1974); see also Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution 286 (1996) (calling this statement “puzzling” and noting that Hamilton repudiated it a year later); Myers v. United States, 272 U.S. 52, 137–39 (1926) (interpreting the Pacifi cus letters as repudiating the view expressed in The Federalist No. 77). 104. The edition of The Federalist published in 1802, which Hamilton personally reviewed, includes Hamilton’s comment that “it is now settled in practice, that the power of displacing belongs exclusively to the president.” The Federalist No. 77 (Alexander Hamilton), reprinted in 4 The Papers of Alexander Hamilton 638, 638 n.3 (Harold C. Syrett & Jacob E. Cooke eds., 1962); see also David McGowan, Ethos in Law and History: Alexander Hamilton, The Federalist, and the Supreme Court, 85 Minn. L. Rev. 755, 890 (2001); accord 4 Op. Att’y Gen. 603, 609 (1847). 105. Letter from Thomas Jefferson to James Madison (July 7, 1793), in 6 The Writings of Thomas Jefferson 338, 338 (Paul Leicester Ford ed., New York, G. P. Putnam’s Sons 1895).

Notes to Pages 56–61

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106. James Madison, Helvidius, in 1 Letters and Other Writings of James Madison 152 (Philadelphia, J. B. Lippincott 1865) (emphasis omitted). 107. 1 Annals of Cong. 479–82, 499, 518 (Joseph Gales ed., 1789). 108. Loss, supra note 103, at 23 & nn.147–51; Statement of Henry Cabot Lodge, in 4 The Works of Alexander Hamilton 489 n.1 (Henry Cabot Lodge ed., 1904); Hans J. Morgenthau, In Defense of the National Interest 14 (1951). 109. Act of Sept. 2, 1789, ch. 12, § 3, 1 Stat. 66, 66. 110. Act of March 3, 1795, ch. 48, § 4, 1 Stat. 441, 442. 111. Bloch, supra note 42, at 578 n.55; Lessig & Sunstein, supra note 27, at 27. 112. 1 Annals of Cong. 613, 614 (Joseph Gales ed., 1789) (statements of Representatives Sedgwick and Benson). 113. Queries on a Line of Conduct to Be Pursued by the President (May 10, 1789), in 30 The Writings of George Washington, supra note 1, at 319. 114. Letter from George Washington to James Madison (May 5, 1789), in 12 The Papers of James Madison 131, 132 (Charles F. Hobson & Robert A. Rutland eds., 1979).

Chapter 2. John Adams 1. Leonard D. White, The Federalists: A Study in Administrative History 92 (1948). 2. Letter from John Adams to John Penn (1776), in 4 The Works of John Adams, Second President of the United States 204, 205 (photo reprint 1969) (Charles Francis Adams ed., 1851). 3. Letter from John Adams to Secretary Livingston (Feb. 14, 1782), in 7 The Works of John Adams, supra note 2, at 510. 4. Letter from John Adams to Thomas Jefferson (July 18, 1789), in 6 The Works of John Adams, supra note 2, at 430–31. 5. Letter from John Adams to Roger Sherman (July 20, 1789), in 6 The Works of John Adams, supra note 2, at 432, 434. 6. James Hart, The American Presidency in Action: 1789, at 217–18 (1948). 7. Act of Sept. 11, 1789, ch. 13, § 1, 1 Stat. 67, 67. 8. White, supra note 1, at 29. 9. Letter from John Adams to Timothy Pickering (Oct. 31, 1797), in 8 The Works of John Adams, supra note 2, at 559, 560. 10. Letter from John Adams to Oliver Wolcott, Jr. (Oct. 20, 1797), in 8 The Works of John Adams, supra note 2, at 554, 555. 11. Saikrishna Prakash, The Chief Prosecutor, 73 Geo. Wash. L. Rev. 521, 558–60 (2005). 12. John C. Miller, Crisis in Freedom: The Alien and Sedition Acts 88 (1951). 13. Letter from John Adams to Timothy Pickering (Aug. 1, 1799), in 9 The Works of John Adams, supra note 2, at 5. 14. Letter from Timothy Pickering to John Adams (Aug. 1, 1799), in 9 The Works of John Adams, supra note 2, at 7. 15. 10 Annals of Cong. 184 (1800). 16. Letter from John Adams to the Attorney General and the District Attorney of Pennsylvania (May 16, 1800), in 9 The Works of John Adams, supra note 2, at 56. 17. Prakash, supra note 11, at 559 (citing 9 The Works of John Adams, supra note 2, at 217, 415). 18. Letter from John Adams to Timothy Pickering, Secretary of State (July 20, 1799), in 8 The Works of John Adams, supra note 2, at 668. 19. White, supra note 1, at 285, 287–89. 20. Frank B. Cross, Executive Orders 12,291 and 12,498: A Test Case in Presidential Control of Executive Agencies, 4 J.L. & Pol. 483, 486 n.11 (1988).

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Notes to Pages 62–68

21. Letter from John Adams to Timothy Pickering (May 12, 1800), in 9 The Works of John Adams, supra note 2, at 55. Pickering later acknowledged that he expected that his opposition to the nomination of Adams’s son-in-law would lead to his own removal. White, supra note 1, at 251. 22. Mary Burke Hinsdale, A History of the President’s Cabinet 35 (1911). 23. White, supra note 1, at 36–37.

Chapter 3. Thomas Jefferson 1. Letter from Thomas Jefferson to John Adams (Nov. 13, 1787), in 12 The Papers of Thomas Jefferson 349, 351 (Julian P. Boyd ed., 1955). 2. Leonard D. White, The Federalists: A Study in Administrative History 94–96 (1948). 3. Id. at 95. 4. Thomas Jefferson, The Anas (Feb. 4, 1818), in 1 The Writings of Thomas Jefferson 154, 165 (Paul Leicester Ford ed., New York, G. P. Putnam’s Sons 1892). 5. Opinion on the Questions Whether the Senate Has the Right to Negative the Grade of Persons Appointed by the Executive to Fill Foreign Missions (Apr. 24, 1790), in 5 The Writings of Thomas Jefferson, supra note 4, at 189, 189 . 6. Letter from Alexander Hamilton to James A. Bayard (Jan. 16, 1801), in 10 Works of Alexander Hamilton 412, 413 (Henry C. Lodge ed., 1971). 7. Letter from Thomas Jefferson to George Washington (Sept. 9, 1792), in 6 The Writings of Thomas Jefferson, supra note 4, at 101, 104. 8. Letter from Thomas Jefferson to William Short (Sept. 30, 1790), in 5 The Writings of Thomas Jefferson, supra note 4, at 243, 243–44. 9. Bruce Ackerman, The Failure of the Founding Fathers: Jefferson, Marshall, and the Rise of Presidential Democracy 5, 44 (2005). For a contrary view, see Steven G. Calabresi, The President, the Supreme Court, and the Founding Fathers: A Reply to Professor Ackerman, 73 U. Chi. L. Rev. 469 (2006). 10. Letter from Thomas Jefferson to A. C. V. C. Destutt de Tracy (Jan. 26, 1811), in 9 The Writings of Thomas Jefferson, supra note 4, at 305, 308. 11. White, supra note 2, at 71 (citations omitted). 12. Jerry L. Mashaw, Reluctant Nationalists: Federal Administration and Administrative Law in the Republican Era, 1801–1830, 116 Yale L.J. 1636, 1640 (2007). 13. Saikrishna Prakash, The Chief Prosecutor, 73 Geo. Wash. L. Rev. 521 (2005); Letter from Thomas Jefferson to Wilson Cary Nicholas (June 13, 1809), in 9 The Writings of Thomas Jefferson, supra note 4, at 253; Letter from Thomas Jefferson to Edwin Livingston (Nov. 1, 1801), in 8 The Writings of Thomas Jefferson, supra note 4, at 58 n.1; Letter from Thomas Jefferson to Gideon Granger (Mar. 9, 1814), in 9 The Writings of Thomas Jefferson, supra note 4, at 454. 14. Act of July 14, 1798, ch. 74, § 4, 1 Stat. 596, 597. 15. Letter from Thomas Jefferson to Edward Livingston, supra note 13, at 57; accord Letter from Thomas Jefferson to Albert Gallatin (Nov. 12, 1801), in 8 The Writings of Thomas Jefferson, supra note 13, at 57 n.1 (reiterating Jefferson’s determination to treat the Alien and Sedition Acts as a “nullity”). 16. Letter from Thomas Jefferson to Albert Gallatin (Nov. 28, 1801), in 8 The Writings of Thomas Jefferson, supra note 4, at 106. 17. Letter from Thomas Jefferson to Wilson Cary Nicholas, supra note 13, at 253–54. 18. Prakash, supra note 13, at 562. 19. Id. (footnotes omitted) (quoting Leonard W. Levy, Jefferson and Civil Liberties: The Darker Side 71 (1963)). 20. White, supra note 2, at 70. 21. Prakash, supra note 13, at 562.

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22. Message from Thomas Jefferson to Elias Shipman and Others, a Committee of the Merchants of New Haven (July 12, 1801); in 8 The Writings of Thomas Jefferson, supra note 4, at 67, 70. 23. Thomas Jefferson, First Inaugural Address (Mar. 4, 1801), in 1 A Compilation of the Messages and Papers of the Presidents 309, 310 (James D. Richardson ed., 1925). 24. Message from Jefferson to Shipman, supra note 22, at 70. 25. Letter from Thomas Jefferson to William B. Giles (Mar. 23, 1801), in 8 The Writings of Thomas Jefferson, supra note 4, at 25, 25. 26. Letter from Thomas Jefferson to Abigail Adams (Sept. 11, 1804), in 8 The Writings of Thomas Jefferson, supra note 4, at 311 n.1 (emphasis added). 27. Letter from Thomas Jefferson to William Charles Jarvis (Sept. 28, 1820), in 10 The Writings of Thomas Jefferson, supra note 4, at 160, 160–61. 28. Letter from C. A. Rodney to Thomas Jefferson (July 15, 1808), reprinted in Gilchrist v. Collector of Charleston, 10 F. Cas. 355, 358–59 (C.C.D.S.C. 1808) (No. 5420). 29. 5 U.S. (1 Cranch) 137 (1803). 30. Forrest McDonald, The American Presidency: An Intellectual History 259 (1994) (quoting Jefferson, First Inaugural Address, supra note 23, at 324). 31. Mashaw, supra note 12, at 1646. 32. Jerry Mashaw, Recovering American Administrative Law: Federalist Foundations, 1787–1801, 115 Yale L.J. 1256, 1285–86 (2006). 33. Mashaw, supra note 12, at 1647, 1649. 34. Ch. 5, §§ 2, 11, 2 Stat. 506, 507, 510. 35. Mashaw, supra note 12, at 1654–55. 36. Id. at 1657, 1659–61. 37. Id. at 1662, 1664, 1666–67. 38. 4 Henry Adams, History of the United States during the Administrations of Thomas Jefferson and James Madison 251 (New York, C. Scribner’s Sons 1890). 39. Mashaw, supra note 12, at 1659. 40. 10 F. Cas. 355 (C.C.D.S.C. 1808) (No. 5420). 41. Mashaw, supra note 12, at 1678. 42. Id. at 1679, 1685. 43. Id. at 1735, 1738. 44. Kenneth R. Mayer, With the Stroke of a Pen: Executive Orders and Presidential Power 7 (2001). 45. Gerhard Casper, Executive-Congressional Separation of Power during the Presidency of Thomas Jefferson, 47 Stan. L. Rev. 395, 490–96 (1995). 46. Letter from Thomas Jefferson to John Breckenridge (Aug. 12, 1803), in 8 The Writings of Thomas Jefferson, supra note 4, at 244 n.1. 47. Letter from Thomas Jefferson to John B. Colvin (Sept. 20, 1810), in 9 The Writings of Thomas Jefferson, supra note 4, at 279. 48. Peter M. Shane & Harold H. Bruff, Separation of Powers Law: Cases and Materials 16 (1996). 49. Letter from Thomas Jefferson to A. C. V. C. Destutt de Tracy, supra note 10, at 306–07.

Chapter 4. James Madison 1. Letter from James Madison to Edmund Randolph (May 31, 1789), in 1 Letters and Other Writings of James Madison 473 (Philadelphia, J. B. Lippincott 1865) (emphasis added). 2. James Hart, The American Presidency in Action: 1789, at 178 (1948) (footnotes omitted).

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Notes to Pages 78–87

3. 1 Annals of Cong. 481–82 (Joseph Gales ed., 1789) (emphasis added). 4. Mary Burke Hinsdale, A History of the President’s Cabinet 51–52 (1911). 5. 2 George H. Haynes, The Senate of the United States 793 n.4 (Russell & Russell 1960) (1938) (citing Lucy M. Salmon, History of the Appointing Power of the President 44 (New York, G. P. Putnam’s Sons 1886)); Charles Warren, Presidential Declarations of Independence, 10 B.U. L. Rev. 1, 5 (1930). 6. Leonard D. White, The Jeffersonians: A Study in Administrative History, 1801– 1829, at 379 (1951). 7. Letter written by James Madison (1834), in 4 Letters and Other Writings of James Madison, supra note 1, at 349. 8. Like the debates over Dred Scott or in 1937, over the constitutionality of the New Deal. 9. Letter from James Madison to Edward Coles (Oct. 15, 1834), in 4 Letters and Other Writings of James Madison, supra note 1, at 366, 368–69 (emphasis added). 10. Letter from James Madison to John M. Patton (Mar. 24, 1834), in 4 Letters and Other Writings of James Madison, supra note 1, at 342, 342. 11. Letter from James Madison to Edward Coles (Aug. 29, 1834), in 4 Letters and Other Writings of James Madison, supra note 1, at 354, 355.

Chapter 5. James Monroe 1. Letter from Secretary of State James Monroe to Congressman Adam Seybert (June 10, 1812), in 5 The Writings of James Monroe 203 (Stanislaus M. Hamilton ed., New York, G. P. Putnam’s Sons 1898). 2. Letter from James Monroe to William B. Giles (Feb. 11, 1815), reprinted in 1 American State Papers: Military Affairs 605, 606 (Walter Lowrie & Mathew St. Clair Clarke eds., Washington, D.C., Gales & Seaton 1834). 3. James Monroe, Seventh Annual Message to Congress (Dec. 2, 1823), in 2 A Compilation of the Messages and Papers of the Presidents 776 (James D. Richardson ed., 1925) [hereinafter Messages & Papers]. 4. Youngstown Sheet & Tube Co. v. Sawyer (Steel Seizure Case), 343 U.S. 579, 683, 685 (1952) (Vinson, C.J., dissenting) (emphasis added). 5. Leonard D. White, The Jeffersonians: A Study in Administrative History, 1801– 1829, at 67 (1951). 6. Entry for January 12, 1819, in 4 Memoirs of John Quincy Adams 217 (Charles Francis Adams ed., 1874–77) (emphasis added). 7. White, supra note 5, at 68–69, 74 (quoting Entry for January 8, 1820, in 4 Memoirs of John Quincy Adams, supra note 6, at 501). 8. Id. at 241–45 (quoting Letter from James Monroe to Andrew Jackson, 2 Correspondence of Andrew Jackson 329–31 (John Spencer Bassett ed., 1926–35)). 9. Id. at 379–80. 10. Id. at 380 (quoting 5 The Memoirs of John Quincy Adams, supra note 6, at 158). 11. James Monroe, Special Message to the Senate of the United States (Apr. 13, 1822), in 2 Messages & Papers, supra note 3, at 698. 12. Christopher S. Kelley, The Unitary Executive and the Presidential Signing Statement 57 (2003) (unpublished Ph.D. dissertation, Miami University), available at http://www. ohiolink.edu/etd/send-pdf.cgi?miami1057716977. 13. Tenure of Office Act, ch. 102, § 1, 3 Stat. 582, 582 (1820). 14. Letter from Thomas Jefferson to James Madison (Nov. 29, 1820), in 15 The Writings of Thomas Jefferson 294, 294–95 (Paul Leicester Ford ed., New York, G. P. Putnam’s Sons 1895).

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15. Letter from James Madison to Thomas Jefferson (Dec. 10, 1820), in 3 Letters and Other Writings of James Madison 196 (Philadelphia, J.B. Lippincott 1865). 16. Letter from James Madison to President Monroe, in 3 Letters and Other Writings of James Madison, supra note 15, at 44. 17. Tenure of Office Act, 1, 3 Stat. at 582. 18. Entry for Feb. 7, 1828, in 7 Memoirs of John Quincy Adams, supra note 6, at 424–25. 19. Parsons v. United States, 167 U.S. 324, 339 (1897); 11 Reg. Deb. 461 (1835) (statement of Sen. Daniel Webster). 20. James Monroe, Message to the House of Representatives (Jan. 10, 1825), in 2 Messages & Papers, supra note 3, at 847. 21. Act of Mar. 3, 1817, ch. 45, § 10, 3 Stat. 366, 367. 22. Act of May 15, 1820, ch. 107, § 1, 3 Stat. 592, 592. 23. 2 Op. Att’y Gen. 482 (1831). 24. 2 Op. Att’y Gen. 67 (1828). 25. 1 Op. Att’y Gen. 596, 597–98 (1823). 26. 1 Op. Att’y Gen. 624, 625 (1823). 27. 1 Op. Att’y Gen. 636, 636–37 (1824); 1 Op. Att’y Gen. 678 (1824); 1 Op. Att’y Gen. 705, 705–06 (1825). 28. 2 Op. Att’y Gen. 53, 53–54 (1827). Wirt concluded that in this particular case such a direction would have been inappropriate, since a court had granted the prosecutor’s request for an injunction in this case more than two years before. Id. at 54–56. Had the matter not already been decided by a court of law, however, there is little doubt that Wirt would have endorsed dismissal of the suit. 29. Susan Low Bloch, The Early Role of the Attorney General in Our Constitutional Scheme: In the Beginning There Was Pragmatism, 1989 Duke L.J. 561, 578 n.55; Harold J. Krent, Executive Control over Criminal Law Enforcement: Some Lessons from History, 38 Am. U. L. Rev. 275, 288 (1989). 30. Lee S. Liberman, Morrison v. Olson: A Formalistic Perspective on Why the Court Was Wrong, 38 Am. U. L. Rev. 313, 337 & n.156 (1989). 31. Nelson Lund, Lawyers and the Defense of the Presidency, 1995 B.Y.U. L. Rev. 17, 27 & n.24 (citing examples when presidents overruled their attorneys general). 32. Wirt’s two opinions concerning the direction of accounting officers may be distinguished in that the second opinion dealt with the general accounting laws while the fi rst involved special legislation. Thus differences in the availability of presidential review arguably could have flowed from differences in congressional intent. 2 Op. Att’y Gen. 625 (1834) (discussing this distinction without referring to either of Wirt’s opinions). This resolution, however, still fails to provide an adequate explanation of Wirt’s opinion on the president’s power to direct district attorneys.

Chapter 6. John Quincy Adams 1. Leonard D. White, The Jeffersonians: A Study in Administrative History, 1801– 1829, at vii–viii, 41 (1951). 2. Letter from John Quincy Adams to Abigail Adams (May 16, 1817), in 6 The Writings of John Quincy Adams 179, 182 (Worthington Chauncey Ford ed., 1913–17). 3. Entry for Jan. 12, 1819, in 4 Memoirs of John Quincy Adams 217 (Charles Francis Adams ed., 1874–77). 4. White, supra note 1, at 41, 64 (citing Entry for Mar. 15, 1828, in 7 Memoirs of John Quincy Adams, supra note 3, at 475). 5. Joseph P. Harris, The Advice and Consent of the Senate 52 (1953).

450

Notes to Pages 92–101

6. 2 Op. Att’y Gen. 67 (1828). 7. White, supra note 1, at 380. 8. S. Doc. No. 88, 19th Cong., 1st Sess. 2, 14–15 (1826), reprinted in 2 Reg. Deb. app. at 133 (1826). Curiously, the Report’s reliance on dynamic constitutional theory is inconsistent with its proposal of two constitutional amendments to create the proper balance between executive and legislative control of federal patronage. These amendments implicitly recognize that the proper way to adapt the Constitution to contemporary exigencies is by amending it. Indeed, the Report emphasizes, “The people made the Constitution, and they can amend it. They are the only constitutional triers of the amendment. They alone have the power to adopt it.” Id. at 12. 9. White, supra note 1, at vii, 76.

Chapter 7. Andrew Jackson 1. Lawrence Lessig & Cass R. Sunstein, The President and the Administration, 94 Colum. L. Rev. 1, 78 (1994). 2. Letter from James Madison to Edward Coles (Oct. 15, 1834), in 4 Letters and Other Writings of James Madison 366, 368 (Philadelphia, J. B. Lippincott 1865) (emphasis added). 3. Letter from James Madison to Edward Coles (Aug. 29, 1834), in 4 Letters and Other Writings of James Madison, supra note 2, at 354, 355. 4. Leonard B. White, The Jacksonians: A Study in Administrative History, 1829–1861, at 23–28 (1954). 5. Forrest McDonald, The American Presidency: An Intellectual History 201 (1994). 6. Robert V. Remini, Andrew Jackson and the Bank War 129 (1967). 7. White, supra note 4, at 46–47. 8. Id. at 6. 9. Andrew Jackson, Veto Message (July 10, 1832), in 3 A Compilation of the Messages and Papers of the Presidents 1139, 1144–45 (James D. Richardson ed., 1925) [hereinafter Messages & Papers]. 10. 31 U.S. (6 Peters) 515 (1832). 11. Jean Edward Smith, John Marshall: Defi ner of a Nation 516–18 (1996). Smith agrees with the received view that Jackson probably did not make the statement, at least in this form, and he notes that at this point Jackson did not have a responsibility to enforce the Court’s judgment. 12. Andrew Jackson, Veto Message (May 27, 1830), in 3 Messages & Papers, supra note 9, at 1046; Andrew Jackson, Veto Message (July 10, 1832), in 3 Messages & Papers, supra note 9, at 1139. Jackson used the veto far more often than his predecessors did, and he greatly expanded the use of the veto for purely policy reasons. White, supra note 4, at 28–33. Jackson also originated the use of the pocket veto. Andrew Jackson, Second Annual Message (Dec. 6, 1830), in 3 Messages & Papers, supra note 9, at 1063, 1071. 13. White, supra note 4, at 40–42. 14. Id. at 33. 15. Id. at 307–08 & n.24. 16. 6 Reg. Deb. 367 (1830) (Theodore Hunt); id. at 457–70 (William Clark). 17. S. Doc. No. 103, 21st Cong., 1st Sess. (1830). 18. 6 Reg. Deb. 385, 396 (1830). 19. S. Doc. No. 41, 22d Cong., 1st Sess. (1832). 20. 6 Reg. Deb. 374 (1830) (tabling Barton’s resolution regarding Hunt); id. at 396 (voting to postpone the Holmes resolutions by a vote of twenty-four to twenty-one); 2 George H. Haynes, The Senate of the United States 794 & n.2 (Russell & Russell 1960) (1938) (noting that Barton’s resolution regarding Clark failed twenty-two to twenty-six); Smith, supra note 11, at 3 (noting the failure of the Ewing resolutions).

Notes to Pages 101–08

451

21. Andrew Jackson, Message to the Senate (Feb. 10, 1835), in 3 Messages & Papers, supra note 9, at 1351, 1352. 22. 2 Haynes, supra note 20, at 797. 23. 2 Op. Att’y Gen. 302, 303–04 (1829). 24. 2 Op. Att’y Gen. 482, 489, 492 (1831). 25. 2 Op. Att’y Gen. 507, 508, 509, 510 (1832); see also 2 Op. Att’y Gen. 544 (1832). 26. 2 Op. Att’y Gen. 515 (1831). 27. 2 Op. Att’y Gen. 652 (1834). 28. Mary Burke Hinsdale, A History of the President’s Cabinet 313–14 (1911). 29. Andrew Jackson, First Annual Message (Dec. 8, 1829), in 3 Messages & Papers, supra note 9, at 1005, 1016–17. 30. Act of May 29, 1830, ch. 153, § 1, 4 Stat. 414, 414. 31. 2 Op. Att’y Gen. 482, 487, 489, 491–92 (1831). 32. Id. at 492. 33. Arthur S. Miller, The Attorney General as the President’s Lawyer, in Roles of the Attorney General 41, 51 (1968) (quoting Sen. George H. Williams’s account of events). 34. Andrew Jackson, Special Message to the Senate and House of Representatives of the United States (May 30, 1830), in 3 Messages & Papers, supra note 9, at 1046. 35. H.R. Rep. No. 27-909 (1842).

Case Study 1. Jackson’s Battle with the Bank and the Removal of Treasury Secretary Duane 1. Andrew Jackson, Veto Message (July 10, 1832), in 3 A Compilation of the Messages and Papers of the Presidents 1139 (James D. Richardson ed., 1925 [hereinafter Messages & Papers). 2. Arthur M. Schlesinger Jr., The Age of Jackson 89 (1946). 3. Act of Apr. 10, 1816, ch. 44, § 16, 3 Stat. 266, 274. The president’s power to remove the deposits essentially vitiates the suggestion that the second Bank of the United States constituted “the fi rst truly independent agency in the republic’s history.” Lawrence Lessig & Cass R. Sunstein, The President and the Administration, 94 Colum. L. Rev. 1, 30 (1994). Although only a minority were presidential appointees, the president always retained the power to eliminate the bank’s role in federal fiscal policy by ordering the removal of federal moneys from the bank. Thus, as subsequent events would soon demonstrate, nothing about the bank’s structure prevented the president from asserting complete control over the execution of federal policy. Once all federal funds were removed from the bank, it became in essence a wholly private entity with no governmental role of any kind. At that point, it ceases to be relevant that only five of the twenty-five directors were presidential appointees. 4. William J. Duane, Address to the People of the United States (Dec. 2, 1833), reprinted in 10 Reg. Deb. app. at 305 (1834). 5. Andrew Jackson, Removal of the Public Deposits (Sept. 18, 1833), in 3 Messages & Papers, supra note 1, at 1225–26. 6. Id. at 1229–35, 1237. 7. Wash. Globe, Sept. 20, 1833, reprinted in 10 Reg. Deb. app. at 306 (1834). 8. Robert V. Remini, Andrew Jackson and the Bank War 124 (1967) [hereinafter Remini, Bank War]. 9. Letter from the Secretary of the Treasury to the President of the United States (No. 2, Sept. 21, 1833), in 10 Reg. Deb. app. at 306, 307 (1834). 10. Letter from the President of the United States to the Secretary of the Treasury (No. 3, Sept. 21, 1833), in 10 Reg. Deb. app. at 307 (1834) (returning Duane’s fi rst letter). 11. Letter from the Secretary of the Treasury to the President of the United States (No. 4, Sept. 21, 1833), in 10 Reg. Deb. app. at 307, 308 (1834); Letter from the Secretary of the

452

Notes to Pages 108–13

Treasury to the President of the United States (No. 5, Sept. 21, 1833), in 10 Reg. Deb. app. at 308, 308 (1834); Letter from the Secretary of the Treasury to the President of the United States (No. 6, Sept. 21, 1833), in 10 Reg. Deb. app. at 308, 309 (1834). 12. Letter from the President of the United States to the Secretary of the Treasury (No. 7, Sept. 23, 1833), in 10 Reg. Deb. app. 309 (1834). 13. Letter from the Secretary of the Treasury Transmitting a Report upon the Subject of the Removal of the Public Deposits from the Bank of the United States (Dec. 3, 1833), in 10 Reg. Deb. app. at 59 (1834). Interestingly, Taney accepted the Treasury portfolio even though he owned stock in one of the state banks recruited to hold the federal funds in place of the Bank of the United States. This, of course, placed Taney in a direct confl ict of interest. Taney’s position worsened further when that state bank’s fi nancial troubles led it to balance its own accounts by improperly drawing on funds that the federal government had given to it to protect against any future retaliation by the Bank of the United States. Ralph C. H. Catterall, The Second Bank of the United States 303 (1902). 14. Claude Bowers aptly entitles his chapter discussing this debate “The Battle of the Gods.” Claude G. Bowers, The Party Battles of the Jackson Period 322 (1965). Thomas A. R. Nelson similarly observed in his closing argument during the impeachment trial of Andrew Johnson, “There were giants in those days.” 2 The Trial of Andrew Johnson, President of the United States, Before the Senate of the United States, on Impeachment by the House of Representatives for High Crimes and Misdemeanors 161 (Washington, Gov’t Printing Off. 1868). 15. 10 Reg. Deb. 23–37 (1833). 16. 10 Reg. Deb. app. at 284 (1834). 17. Andrew Jackson, Message to the Senate (Dec. 12, 1833), in 3 Messages & Papers, supra note 1, at 1255, 1255. 18. 10 Reg. Deb. 58–59 (1833). 19. Id. at 834–36 (1834). 20. Id. at 1187. 21. Andrew Jackson, Protest (Apr. 15, 1834) [hereinafter Jackson, Protest], 3 Messages & Papers, supra note 1, at 1288, 1289 (emphasis in original). 22. Id. at 1290. 23. Id. 24. Id. at 1291–92, 1295–98. 25. Id. at 1298–99. As Jackson further noted in his private memorandum book, only through the exercise of the appointment and removal powers can the president ensure “that the laws are faithfully executed and those measures adopted which are best calculated to promote the public interest.” Robert V. Remini, Andrew Jackson and the Course of American Democracy, 1833–1845, at 102 (1984) [hereinafter Remini, Course of Democracy]. 26. Jackson, Protest, supra note 21, at 1299. 27. Id. at 1299–1301. 28. Id. at 1299–1300. 29. Id. at 1301. 30. Andrew Jackson, Message to the Senate (Apr. 21, 1834), in 3 Messages & Papers, supra note 1, at 1312, 1312. The Codicil further conceded, “I admit without reserve, as I have before done, the constitutional power of the Legislature to prescribe by law the place or places in which the public money or other property is to be deposited, and to make such regulations concerning its custody, removal, or disposition as they may think proper to enact. Nor do I claim for the Executive any right to the possession or disposition of the public property or treasure or any authority to interfere with the same, except when such possession, disposition or authority is given to him by law. Nor do I claim the right in any manner to supervise or interfere with the person intrusted with such property or treasure, unless he be an officer whose appointment under the Constitution and laws, is devolved

Notes to Pages 114–19

453

upon the President alone or in conjunction with the Senate, and for whose conduct he is constitutionally responsible.” Id. at 1313. 31. Jackson, Protest, supra note 21, at 1304–05. 32. Id. at 1306, 1309. 33. Id. at 1309–10; see also id. at 1290 (noting that the president was properly held accountable by “the bar of public opinion” as well as by the Constitution “for every act of his Administration”). 34. Id. at 1311. 35. Remini, Course of Democracy, supra note 25, at 155. 36. 10 Reg. Deb. 1575 (1834). 37. Id. at 1664, 1687–88. 38. Id. at 1711–12. 39. 10 Reg. Deb. app. at 310–11 (1834) (rejecting the nominations of Peter Wager by a vote of twenty to twenty-five, Henry D. Gilpin by a vote of twenty to twenty-four, John T. Sullivan by a vote of eighteen to twenty-seven, and Hugh McElderry by a vote of twenty to twenty-five). 40. Andrew Jackson, Message to the Senate (Mar. 11, 1834), in 3 Messages & Papers, supra note 1, at 1260. 41. S. Doc. No. 333, 23d Cong., 1st Sess. 11–14 (1834), reprinted in 10 Reg. Deb. app. at 314, 315 (1834). 42. 10 Reg. Deb. app. at 316 (1834) (rejecting the renominations by a vote of eleven to thirty). Jackson subsequently stood by his defeated nominees, designating them for other positions with mixed success. James A. Bayard, the one nominee who was confi rmed by the Senate, declined to serve. 43. The Senate tabled Benton’s motion by a vote of twenty-nine to twenty-seven. 11 Reg. Deb. 727–28 (1835). 44. 4 S. Exec. J. 427–28 (June 24, 1834). 45. Remini, Course of Democracy, supra note 25, at 123–24, 150. 46. 1 Thomas Hart Benton, Thirty Years’ View 424 (New York, D. Appleton 1865). 47. Remini, Course of Democracy, supra note 25, at 114. 48. Andrew Jackson, Message to the Senate and House of Representatives (Feb. 4, 1834), in 3 Messages & Papers, supra note 1, at 1258. 49. Remini, Course of Democracy, supra note 25, at 160. 50. Bowers, supra note 14, at 318. 51. Remini, Bank War, supra note 8, at 165. 52. 10 Reg. Deb. app. at 156–76 (1834). 53. 10 Reg. Deb. 3474–77 (1834). 54. Remini, Course of Democracy, supra note 25, at 167. 55. Remini, Bank War, supra note 8, at 168. 56. S. Doc. No. 109, 23d Cong., 2d Sess. (1835), reprinted in 11 Reg. Deb. app. at 219–31 (1835); see also id. at 468 (statement of Sen. Webster) (quoting the bill). 57. 11 Reg. Deb. 513 (1835). 58. Id. at 513–24 (Clay); id. at 553–63 (Calhoun). 59. Id. at 461, 470. 60. Id. at 576. 61. S. Exec. J. 484 (Mar. 3, 1835). 62. Id. at 520 (Mar. 15, 1836). 63. 13 Reg. Deb. 504–05 (1837) (passing expungement resolution by a vote of twentyfour to nineteen). 64. Leonard B. White, The Jacksonians: A Study in Administrative History, 1829–1861, at 44 (1954) (citing Edward S. Corwin, The President: Office and Powers 267 (1940)).

454

Notes to Pages 119–31

65. Webster offered a compromise recharter term of three or six years, but Clay, obstinately refusing to concede anything to Jackson, declined to support anything but a full twenty-year term, while Calhoun favored a twelve-year term. Remini, Bank War, supra note 8, at 165. 66. Lessig & Sunstein, supra note 3, at 76–83. 67. 1 James Kent, Commentaries on American Law 289–90 (New York, O. Halsted 1826) (emphasis added). 68. Letter from James Kent to Daniel Webster (Jan. 21, 1830) (emphasis added), in 1 The Private Correspondence of Daniel Webster 486, 486–87 (Fletcher Webster ed., Boston, Little, Brown 1857), quoted in Myers v. United States, 272 U.S. 52, 148–49 (1926). 69. Kent, supra note 67, at 253–55. 70. 2 Joseph Story, Commentaries on the Constitution of the United States §§ 799–800, at 572 (Boston, Hilliard, Gray 1833).

Part III. The Unitary Executive During the Jacksonian Period, 1837–1861 1. Cong. Globe, 27th Cong., 2d Sess. 165 (1842).

Chapter 8. Martin Van Buren 1. Major L. Wilson, The Presidency of Martin Van Buren xi (1984). 2. Id. at 70, 171. 3. Id. at 95, 99, 114, 197. 4. Id. at 131. 5. 3 Op. Att’y Gen. 325, 326 (1838). 6. Cong. Globe, 25th Cong., 3d Sess. 225 (1839). 7. H.R. Doc. No. 26-130 (1840). 8. Darrell H. Smith, The United States Civil Service Commission 4–6 (1928). 9. Cong. Globe, 25th Cong., 2d Sess. 189 (1838). 10. 37 U.S. (12 Pet.) 524 (1838). 11. Lawrence Lessig & Cass R. Sunstein, The President and the Administration, 94 Colum. L. Rev. 1, 55–61 (1994). 12. Steven G. Calabresi & Kevin H. Rhodes, The Structural Constitution: Unitary Executive, Plural Judiciary, 106 Harv. L. Rev. 1153, 1166 n. 53 (1992); Gary Lawson, The Rise and Rise of the Administrative State, 107 Harv. L. Rev. 1231, 1242 n. 65 (1994). 13. Wilson, supra note 1, at 174. 14. Kendall, 37 U.S. (12 Pet.) at 597–98 (argument of Attorney General Benjamin F. Butler) (citation omitted). 15. Wilson, supra note 1, at 175. 16. Kendall, 37 U.S. (14 Pet.) at 610, 614. 17. 39 U.S. (14 Pet.) 497, 509, 514–16 (1840). 18. 38 U.S. (13 Pet.) 230, 258–60 (1839); see also id. at 233–35, 238 (argument of Mr. Coxe); id. at 246 (argument of Mr. Gilpin); id. at 255 (argument of Mr. Jones). 19. Wilson, supra note 1, at 191, 197–98.

Chapter 9. William Henry Harrison 1. Letter from William Henry Harrison to Harmar Denny (Dec. 2, 1838), reprinted in 2 William M. Goldsmith, The Growth of Presidential Power 637–41 (1974). 2. William H. Harrison, Inaugural Address (Mar. 4, 1841), in 4 A Compilation of the Messages and Papers of the Presidents 1860, 1863–68 (James D. Richardson ed., 1925). 3. Leonard D. White, The Jacksonians: A Study in Administrative History, 1829–1861, at 46–48 (Macmillan 1967) (1954) (quoting Parmelee, Recollections of an Old Stager, 47 Harper’s New Monthly Magazine 753, 754 (1873)).

Notes to Pages 131–40

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4. Norma Lois Peterson, The Presidencies of William Henry Harrison & John Tyler 39 (1989). 5. Paul P. Van Riper, History of the United States Civil Service 41 (Greenwood Press 1976) (1958). 6. 2 Goldsmith, supra note 1, at 981–82; Carl Russell Fish, The Civil Service and the Patronage 73–76 (1905). 7. Peterson, supra note 4, at 39–40. 8. Id. at 34.

Chapter 10. John Tyler 1. John Tyler, Inaugural Address (Apr. 9, 1841), in 4 A Compilation of the Messages and Papers of the Presidents 1889, 1890–91 (James D. Richardson ed., 1925) [hereinafter Messages & Papers]. 2. Leonard D. White, The Jacksonians: A Study in Administrative History, 1829–1861, at 43–44 (Macmillan 1967) (1954). 3. Norma Lois Peterson, The Presidencies of William Henry Harrison and John Tyler 86 (1989) (citing Interview with John Tyler, Jr., 41 Lippincott’s Monthly Magazine 417, 417–18 (1888)). 4. Carl Russell Fish, The Civil Service and the Patronage 150 (1905). 5. Cong. Globe, 27th Cong., 1st Sess. 63–64, 102, 230 (1841); S. Res. 25, 27th Cong. (1841); H.R. Doc. No. 27-48, at 1 (1841). 6. H.R. Doc. No. 27-48, at 65–66, 133 (1841). 7. John Tyler, Veto Message (Aug. 16, 1841), in Messages & Papers, supra note 1, at 1916; John Tyler, Veto Message (Sept. 9, 1841), in 4 Messages & Papers, supra note 1, at 1922. 8. Peterson, supra note 3, at 89–90. 9. Id. at 71, 145. 10. Id. at 147 (quoting Letters from John Tyler, President, to John C. Spencer, Treasury Secretary (May 13, 1843, and Sept. 2, 1843)). 11. 3 Op. Att’y Gen. 673, 676 (1841). 12. 4 Op. Att’y Gen. 1, 1–2 (1842); see also 4 Op. Att’y Gen. 165 (1843) (reasoning that even assuming arguendo that Congress may restrain cabinet secretaries’ exercise of the removal power, “the power of the President as head of the government, under the constitutional injunction to see the laws faithfully executed, stands, I incline to think, in a different category”). 13. Peterson, supra note 3, at 146. 14. H.R. Rep. No. 27-945 (1842). 15. S. Doc. No. 28-399 (1844). 16. Cong. Globe, 28th Cong., 2d Sess. 40 (1845) (Grider resolution); Cong. Globe, 28th Cong., 1st Sess. 99 (1844) (Thomasson resolution). 17. Peterson, supra note 3, at 170, 172. 18. John Tyler, Special Message to the House of Representatives (June 25, 1842), in 5 Messages & Papers, supra note 1, at 2012. 19. H.R. Rep. No. 27-909 (1842). 20. Wilfred E. Binkley, President and Congress 104 (1947).

Chapter 11. James K. Polk 1. Paul H. Bergeron, The Presidency of James K. Polk xi–xii (1987). 2. Id. at xiii, 183. 3. Rexford G. Tugwell, The Enlargement of the Presidency 134–35 (1960).

456

Notes to Pages 140–50

4. Bergeron, supra note 1, at xii. 5. Id. at 36, 45. 6. Tugwell, supra note 3, at 135; Leonard D. White, The Jacksonians: A Study in Administrative History, 1829–1861, at 76 (Macmillan 1967) (1954). 7. White, supra note 6, at 55–57, 60–61. 8. Paul P. Van Riper, History of the United States Civil Service 41 (Greenwood Press 1976) (1958); White, supra note 6, at 311–12. 9. Bergeron, supra note 1, at 139. 10. Id. 11. Carl Russell Fish, The Civil Service and the Patronage 160 (1905). 12. White, supra note 6, at 122 n.47. 13. 4 Op. Att’y Gen. 515, 516 (1846). 14. 4 Op. Att’y Gen. 603, 609 (1847) (citing in part Ex parte Hennen, 38 U.S. (13 Pet.) 230, 259 (1839)). 15. 4 Op. Att’y Gen. at 516 (emphasis added).

Chapter 12. Zachary Taylor 1. Elbert B. Smith, The Presidencies of Zachary Taylor & Millard Fillmore 144 (1988). 2. Id. at 146. 3. Id. at 75, 66, 128; see also id. at 55–66 (“As a military commander, Taylor was not accustomed to take votes on important decisions, although he was always open to advice.”). 4. Id. at 62–63. 5. Id. at 191. 6. Zachary Taylor, Inaugural Address (Mar. 5, 1849), in 6 A Compilation of the Messages and Papers of the Presidents 2542, 2544 (James D. Richardson ed., 1925). 7. Smith, supra note 1, at 58–59, 66; see also Paul P. Van Riper, History of the United States Civil Service 41 (Greenwood Press 1976) (1958) (noting that Taylor removed 30 percent of all civil officers during his fi rst year alone). 8. Cong. Globe, 31st Cong., 1st Sess. 74–75 (1849). 9. Cong. Globe, 31st Cong., 2d. Sess. 37 (1850). 10. Cong. Globe, 31st Cong., 1st Sess. 111 (1850). 11. Cong. Globe, 31st Cong., 1st Sess. 601 (1850) (regarding the removal of J. D. G. Nelson and John Webster). 12. Cong. Globe, 31st Cong., 1st Sess. app. at 51 (1850). 13. Leonard D. White, The Jacksonians: A Study in Administrative History, 1829–1861, at 312 (Macmillan 1967) (1954) (quoting Thurlow Weed Barnes, Memoirs of Thurlow Weed 177–176 (1884)). 14. 5 Op. Att’y Gen. 87 (1849). 15. Smith, supra note 1, at 157 (quoting Daily Union, July 7, 1850).

Chapter 13. Millard Fillmore 1. Elbert B. Smith, The Presidencies of Zachary Taylor & Millard Fillmore 162, 257 (1988). 2. Id. at 192. 3. Act of Sept. 18, 1850, ch. 60, 9 Stat. 462. 4. 41 U.S. (16 Pet.) 536 (1842). 5. Smith, supra note 1, 211–13, 216, 239, 241 (“Fillmore could point to a consistent record of supporting the compromise and trying to enforce the Fugitive Slave Act.”).

Notes to Pages 150–55

457

6. Id. at 217. 7. Millard Fillmore, First Annual Message (Dec. 2, 1850), in 4 A Compilation of the Messages and Papers of the Presidents 1860, 1863 (James D. Richardson ed., 1925). 8. 5 Op. Att’y Gen. 287, 288 (1851); 5 Op. Att’y Gen. 275, 278 (1850). 9. Letter from Millard Fillmore to Daniel Webster (Apr. 16, 1851), in 1 Millard Fillmore Papers 341, 341 (Frank H. Severance ed., 1907). 10. Smith, supra note 1, at 207. 11. Letter from Millard Fillmore to Thurlow Weed (Sept. 23, 1841), in 2 Millard Fillmore Papers, supra note 9, at 225, 225. 12. Leonard D. White, The Jacksonians: A Study in Administrative History 1829–1861, at 44 n.62 (Macmillan 1967) (1954). 13. 5 Op. Att’y Gen. 635, 635–36 (1852); see also 5 Op. Att’y Gen. 386, 387 (1851) (opining that the Secretary of War’s decision to promote to command officers to brevet ranks was binding on the accounting officers of the treasury). Crittenden’s earlier opinions on this subject were arguably based on prudential grounds. 5 Op. Att’y Gen. 287, 288 (1851) (opining that it would be “judicious” for the President not to interfere with the functions of subordinate public officers); 5 Op. Att’y Gen. at 277 (opining that presidential interference with the particular duties of subordinate officers would be “exceedingly injudicious” and would embroil the president in “an endless and invidious task”). 14. 2 Op. Att’y Gen. 463, 464–65 (1831); 2 Op. Att’y Gen. 302, 303 (1829). 15. 5 Op. Att’y Gen. at 641. 16. 5 Op. Att’y Gen. at 278.

Chapter 14. Franklin Pierce 1. Larry Gara, The Presidency of Franklin Pierce 53–54, 183 (1991). 2. Id. at 38, 75. 3. Id. at 51–52, 113, 126. 4. Franklin Pierce, Veto Message (Aug. 14, 1856), in 6 A Compilation of the Messages and Papers of the Presidents 2921 (James D. Richardson ed., 1925) [hereinafter Messages & Papers]; Franklin Pierce, Veto Message (Aug. 11, 1856), in 6 Messages & Papers, supra, at 2921; Franklin Pierce, Veto Message (May 19, 1856), in 6 Messages & Papers, supra, at 2919; Franklin Pierce, Veto Message (Dec. 30, 1854), in 6 Messages & Papers, supra, at 2790; Franklin Pierce, Veto Message (May 22, 1856), in 6 Messages & Papers, supra, at 2920; Franklin Pierce, Veto Message (Aug. 4, 1854), in 6 Messages & Papers, supra, at 2789; Franklin Pierce, Veto Message (May 3, 1854), in 6 Messages & Papers, supra, at 2780. 5. Gara, supra note 1, at 57, 70–71. 6. 6 Op. Att’y Gen. 87 (1853); 7 Op. Att’y Gen. 242 (1855); 8 Op. Att’y Gen. 223 (1856). 7. Paul P. Van Riper, History of the United States Civil Service 42 (Greenwood Press 1976) (1958). 8. 58 (17 Howard) U.S. 284, 286–87, 303–05 (1854). 9. 6 Op. Att’y Gen. 326, 342–43 (1854) (citing 1 Op. Att’y Gen. 624 (1823) (Wirt); 2 Op. Att’y Gen. 302 (1829) (Berrien); 2 Op. Att’y Gen. 507 (1831) (Taney); 2 Op. Att’y Gen. 652 (1834) (Butler); 5 Op. Att’y Gen. 87 (1849) (Johnson); 5 Op. Att’y Gen. 630 (1852) (Crittenden)). 10. 7 Op. Att’y Gen. 453, 460, 464, 469–70 (1855) (citing 1 Op. Att’y Gen. 636 (1824) (Wirt); 2 Op. Att’y Gen. 302 (1829) (Berrien); 2 Op. Att’y Gen. 507 (1832) (Taney); 5 Op. Att’y Gen. 630 (1852) (Crittenden); 6 Op. Att’y Gen. 326 (1854) (Cushing)). 11. Id. at 463–64 (“I perceive, in the Constitution or in the general statutes of departmental organization, no departure from this rule except where advice or an opinion is to be given. That advice or opinion must of course embody the individual thought of the

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Notes to Pages 155–66

officer giving it. Thus, when the President calls on any of the Heads of Department for ‘advice,’ either in writing or verbal, such advice must, in the nature of things, be their act, not his. So when the ‘opinion’ of the Attorney General, ‘upon questions of law,’ is requested by one of the Secretaries, it is his opinion, not that of the President, and equally so when that opinion is required by the President himself, just as when the President demands executive advice of the Attorney General or of the Secretaries.”); 6 Op. Att’y Gen. at 333–34 (“In the discharge of the [duty to give advice and opinion in questions of law to the President and to the heads of departments], the action of the Attorney General is quasi judicial. . . . Although the act, requiring this duty of the Attorney General, does not expressly declare what effect shall be given to his opinion, yet the general practice of the Government has been to follow it.”). 12. Nelson Lund, Rational Choice at the Offi ce of Legal Counsel, 15 Cardozo L. Rev. 437, 441–46 (1993). 13. Homer C. Cummings & Carl McFarland, Federal Justice: Chapters in the History of Justice and the Federal Executive 152 (1937). 14. 6 Op. Att’y Gen. 680, 682, 684–85 (1854) (citing Decatur v. Paulding, 39 U.S. (14 Pet.) 497 (1840)).

Chapter 15. James Buchanan 1. Rexford G. Tugwell, The Enlargement of the Presidency 117–18 (1960). 2. Elbert B. Smith, The Presidency of James Buchanan 23–29 (1975). 3. 9 Op. Att’y Gen. 516, 518 (1860) (acknowledging the president’s power to “remove[ ] [his subordinates] at pleasure”). 4. Smith, supra note 2, at 31–42, 44. 5. Phillip Shaw Paludan, The Presidency of Abraham Lincoln 22–23 (1994). 6. Act of June 25, 1860, ch. 211, 12 Stat. 104, 106. 7. James Buchanan, Special Message to the House (June 25, 1860), in 4 Compilation of the Messages and Papers of the Presidents 1860, 1863 (James D. Richardson ed., 1925) [hereinafter Messages & Papers]. 8. Christopher N. May, Presidential Defi ance of “Unconstitutional” Laws: Reviving the Royal Prerogative, 21 Hastings Const. L.Q. 865, 949–51 (1994); Charles Warren, Presidential Declarations of Independence, 10 B.U. L. Rev. 1, 18 (1930). 9. Smith, supra note 2, at 168–69. 10. James Buchanan, Fourth Annual Message (Dec. 3, 1860), in 7 Messages & Papers, supra note 7, at 3157, 3159, 3161–66. 11. Smith, supra note 2, at 169–70. 12. Id. at 177, 183. 13. Leonard D. White, The Jacksonians: A Study in Administrative History, 1829–1861, at 85 (Macmillan 1967) (1954).

Part IV. The Unitary Executive During the Civil War, 1861–1869 Chapter 16. Abraham Lincoln 1. Phillip Shaw Paludan, The Presidency of Abraham Lincoln 27 (1994). 2. 74 U.S. (7 Wall.) 700 (1868). 3. Abraham Lincoln, First Inaugural Address (Mar. 4, 1861), in 7 A Compilation of the Messages and Papers of the Presidents 3206, 3208, 3212 (James D. Richardson ed., 1925) [hereinafter Messages & Papers]. 4. Abraham Lincoln, Proclamation (Apr. 15, 1861), in 7 Messages & Papers, supra note 3, at 3214.

Notes to Pages 166–70

459

5. Paludan, supra note 1, at 70. 6. U.S. Const. art. I, § 8, cl. 12. 7. Abraham Lincoln, Proclamation (Apr. 15, 1861), in 7 Messages & Papers, supra note 3, at 3214. 8. Abraham Lincoln, Proclamation (May 3, 1861), in 7 Messages & Papers, supra note 3, at 3216; Abraham Lincoln, Proclamation (Apr. 19, 1861), in 7 Messages & Papers, supra note 3, at 3215. 9. 67 U.S. (2 Black) 635 (1862). 10. Abraham Lincoln, Executive Order to the Commanding General of the Army of the United States (Apr. 27, 1861), in 7 Messages & Papers, supra note 3, at 3219. Lincoln later expanded the geographic scope of this order. Abraham Lincoln, Proclamation (May 10, 1861), in 7 Messages & Papers, supra note 3, at 3217, 3218 (authorizing the suspension of the writ of habeas corpus in portions of Florida); Abraham Lincoln, Executive Order to the Commanding General of the Army of the United States (July 2, 1861), in 7 Messages & Papers, supra note 3, at 3220 (authorizing the suspension of the writ of habeas corpus as far north as New York); Abraham Lincoln, Executive Order to Lieutenant-General Winfield Scott (Oct. 14, 1861), in 7 Messages & Papers, supra note 3, at 3240 (authorizing the suspension of the writ of habeas corpus as far north as Bangor, Maine). 11. Paludan, supra note 1, at 71. 12. Abraham Lincoln, Special Session Message (July 4, 1861), in 7 Messages & Papers, supra note 3, at 3221, 3224–25, 3232. 13. Letter from Abraham Lincoln to A. G. Hodges (Apr. 4, 1864), in 7 Abraham Lincoln, Collected Works 281 (Roy P. Basle ed., 1953–55). 14. Peter M. Shane & Harold M. Bruff, Separation of Powers Law 18 (1996) (citing Ward H. Lemon, Recollections of Abraham Lincoln 221 (1911)). 15. Lincoln, Special Session Message, supra note 12, at 3225. 16. Act of Aug. 6, 1861, ch. 63, 12 Stat. 326 (1863) (“All the acts, proclamations, and orders of the President of the United States after [March 4, 1861], respecting the army and navy of the United States, and calling out or relating to the militia or volunteers from the States, are hereby approved and in all respects legalized and made valid, to the same intent and with the same effect as if they had been issued and done under the previous express authority and direction of the Congress of the United States.”); Act of July 31, 1861, ch. 34, 12 Stat. 284–85 (1863) (authorizing payment of volunteers called up by the president, and authorizing the president to “accept the service of such volunteers without previous proclamation”). 17. Act of. Mar. 3, 1863, ch. 81, 12 Stat. 755 (1863). 18. Act of Aug. 2, 1861, ch. 37, § 1, 12 Stat. 285, 285. 19. 2 The Collected Works of Abraham Lincoln 516 (Roy P. Basler ed., 1953). 20. Lincoln, First Inaugural Address, supra note 3, at 3210–11. 21. 17 F. Cas. 144, 147 (C.C.D. Md. 1861) (No. 9487). 22. Lincoln, Special Session Message, supra note 12, at 3225–26. 23. Paludan, supra note 1, at 77. 24. Lincoln, Special Session Message, supra note 12, at 3226. 25. 10 Op. Att’y Gen. 74, 76 (1861). For a critique of the use of departmentalism in this context, which nonetheless defends the extraordinary decision in the Merryman case, see Steven G. Calabresi, Caesarism, Departmentalism, and Professor Paulsen, 83 Minn. L. Rev. 1421 (1999). 26. Paludan, supra note 1, at 203, 207–08, 261. 27. Id. at 181. 28. Id. at 175, 178. For an interesting discussion of the constitutional issues raised by West Virginia’s statehood, see Vasan Kesavan & Michael Stokes Paulsen, Is West Virginia Unconstitutional?, 90 Cal. L. Rev. 291 (2002).

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Notes to Pages 170–75

29. Abraham Lincoln, Emancipation Proclamation (Jan. 1, 1863), in 7 Messages & Papers, supra note 3, at 3358. 30. Act of June 28, 1864, ch. 166, 13 Stat. 200 (repealing the Fugitive Slave Act of 1850). 31. Paludan, supra note 1, at 134, 192, 195, 213–14; David Herbert Donald, Lincoln 448 (1995). 32. Abraham Lincoln, Third Annual Message (Dec. 8, 1863), in 7 Messages & Papers, supra note 3, at 3380, 3390–91. 33. Paludan, supra note 1, at 199, 237, 244, 251, 264–65. 34. Carl Russell Fish, The Civil Service and the Patronage 170 n.3 (1905). 35. Edwin S. Corwin, The President: Office and Powers, 1787–1984, at 241 (Randall W. Bland et al. eds., 5th rev. ed. 1984). 36. Fish, supra note 34, at 172. 37. 11 Op. Att’y Gen. 14, 16 (1864). 38. Id. at 16–19; 10 Op. Att’y Gen. 527 (1863). 39. Act of Feb. 25, 1863, ch. 58, 12 Stat. 665, 665–66 (1863) (the comptroller of the currency was removable only “by the President, by and with the advice and consent of the Senate” (emphasis added)). This provision attracted little discussion when enacted. Louis Fisher, Congress and the Removal Power, 10 Cong. & Presidency 63, 72 (1983). However, this provision was amended the following year to provide for removal “by the President, upon reasons to be communicated by him to the Senate” because the original provision, according to Senator Fessenden, changed the existing rule to all other offices. Act of June 3, 1864, ch. 106, § 1, 13 Stat. 99, 100. 40. Act of Mar. 3, 1865, ch. 79, 13 Stat. 487, 489 (1865) (providing that military officers “dismissed by authority of the President” may “make an application in writing for a trial.” Upon such application, “the President shall, as soon as the necessities of the public service may permit, convene a court-martial . . . [a]nd if such court-martial shall not award dismissal or death as the punishment of such officer, the order of such dismissal shall not be void”). 41. Act of June 20, 1864, ch. 136, 13 Stat. 137, 140 (1864) (providing that “no clerk . . . shall be removed from office except for cause stated in writing, which shall be submitted to congress at the session fi rst following such removal”). 42. Wilfred E. Binkley, President and Congress 122–23 (1947). 43. Abraham Lincoln, Fourth Annual Message (Dec. 6, 1864), in 7 Messages & Papers, supra note 3, at 3444, 3455. 44. Sic semper tyrannis is the motto of the Commonwealth of Virginia.

Chapter 17. Andrew Johnson 1. Albert Castel, The Presidency of Andrew Johnson 7, 227 (1979). 2. Harold M. Hyman & William M. Wiecek, Equal Justice under Law: Constitutional Development, 1835–1875, at 304 (1982). 3. Andrew Johnson, Proclamation (May 29, 1865), in 8 A Compilation of the Messages and Papers of the Presidents 3508 (James D. Richardson ed., 1925) [hereinafter Messages & Papers]. 4. Andrew Johnson, Proclamation (May 29, 1865), in 8 Messages & Papers, supra note 3, at 3510. 5. Andrew Johnson, Proclamation (June 13, 1865), in 8 Messages & Papers, supra note 3, at 3512 (Mississippi); Andrew Johnson, Proclamation (June 17, 1865), in 8 Messages & Papers, supra note 3, at 3516 (Georgia); Andrew Johnson, Proclamation (June 17, 1865), in 8 Messages & Papers, supra note 3, at 3519 (Texas); Andrew Johnson, Proclamation (June 21, 1865), in 8 Messages & Papers, supra note 3, at 3521 (Alabama); Andrew

Notes to Pages 175–78

461

Johnson, Proclamation (June 30, 1865), in 8 Messages & Papers, supra note 3, at 3524 (South Carolina); Andrew Johnson, Proclamation (July 13, 1865), in 8 Messages & Papers, supra note 3, at 3527 (Florida). 6. Castel, supra note 1, at 30, 44. 7. Hans L. Trefousse, Andrew Johnson, in To the Best of My Ability 126, 128 (James M. McPherson & David Rubel eds., 2000). 8. Andrew Johnson, Veto Message (Feb. 19, 1866), in 8 Messages and Papers, supra note 3, at 3597, 3598. 9. Civil Rights Act of 1866, ch. 31, 14 Stat. 27. 10. Andrew Johnson, Veto Message (Mar. 27, 1866), in 8 Messages & Papers, supra note 3, at 3603. 11. Civil Rights Act of 1866, ch. 31, 14 Stat. 27; see also Castel, supra note 1, at 71. 12. Jean Edward Smith, Grant 427–28 (2001). 13. 12 Op. Att’y Gen. 421 (1868); 12 Op. Att’y Gen. 32 (1866). The opinions of Johnson’s attorneys general also asserted the president’s constitutional right to review the decision of the department heads. In the process, they accepted Attorney General Bates’s position that the president cannot directly review the actions of subordinate executive officials. 12 Op. Att’y Gen. 32, 43 (1866). 14. Smith, supra note 12, at 432. 15. Compare Michael Les Benedict, The Impeachment and Trial of Andrew Johnson 47–49 (1973) (arguing that Johnson made liberal use of his removal power to organize a new political party around himself); Hyman & Wiecek, supra note 2, at 314 (same); with Eric L. McKitrick, Andrew Johnson and Reconstruction 377–94 (1960) (contending that Johnson failed to take full advantage of his patronage powers); Howard K. Beale, The Critical Year 117–23 (1930) (same). 16. Castel, supra note 1, at 94. 17. Cong. Globe, 40th Cong., 1st Sess. 290, 395 (1867). 18. Army Appropriations Act, ch. 170, § 2, 14 Stat. 485, 486–87 (1867). For the congressional debates on amendments to delete the Army Appropriations Rider, see Cong. Globe, 39th Cong., 2d Sess. 1351–52 (1867); id. at 1404 (rejecting House amendment by a vote of forty-one to eighty-eight); id. at 1855 (rejecting Senate amendment by a vote of eight to twenty-eight). A bill to limit the president’s authority to appoint and remove district commanders passed the House on January 21, 1868, but was not acted upon by the Senate. 19. Andrew Johnson, Message to the House of Representatives (Mar. 2, 1867), in 8 Messages & Papers, supra note 3, at 3670. Johnson reiterated these complaints in his fourth annual message, in which he contended that the provisions of the Army Appropriations Act “which interfere with the President’s constitutional functions as Commander in Chief of the Army should be at once annulled.” Andrew Johnson, Fourth Annual Message (Dec. 9, 1868), in 8 Messages & Papers, supra note 3, at 3872. 20. Act of March 2, 1867, ch. 153, § 5, 14 Stat. 428, 429. For discussion of the legal issues surrounding ratification of the Fourteenth Amendment, see Bruce Ackerman, We the People: Foundations/Transformations (1998). 21. Andrew Johnson, Veto Message (Mar. 2, 1867), in 8 Messages & Papers, supra note 3, at 3696. 22. Cong. Globe, 39th Cong., 2d Sess. 1733, 1976 (1867). 23. Although there were some valid constitutional criticisms of the Military Reconstruction Act, Johnson, as usual, ventured way beyond them, denouncing the whole act as unconstitutional, which, in our opinion, it was not. Concern over the constitutionality of aspects of the act led congressional Republicans to take extreme measures to prevent it from being tested in the courts. See Ex parte McCardle, 74 U.S. (7 Wall.) 506 (1868). 24. Act of March 23, 1867 (Second Reconstruction Act), ch. 6, 15 Stat. 2; Act of July 19, 1867 (Third Reconstruction Act), ch. 30, 15 Stat. 14.

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Notes to Pages 179–82 Case Study 2. The Tenure of Office Act and the Impeachment of Andrew Johnson

1. Act of Mar. 2, 1867, ch. 154, §§ 1, 2, 9, 14 Stat. 430, 430, 432 (1867). The statute also tried to stem the abuse of recess appointments by providing that if the Senate did not confi rm a recess appointment by the end of the following session, that office “shall remain in abeyance, without any salary, fees, or emoluments” until properly fi lled with the advice and consent of the Senate. § 3, 14 Stat. at 431. 2. The Senate bill, as originally reported by the Joint Committee on Retrenchment, contained an exception for “the Secretaries of State, of the Treasury, of War, of the Navy, and of the Interior, the Postmaster General, and the Attorney General.” Cong. Globe, 39th Cong., 2d Sess. 382 (1867). The Senate rejected an amendment by a vote of thirteen to twenty-seven that would have eliminated the exception for Cabinet members. Id. at 548. After the House of Representatives had returned the bill without this provision, the Senate voted seventeen to twenty-eight to reject the House’s amendment and insist on its original version of the bill. Id. at 1047. 3. Id. at 382–84 (statements of Sens. George F. Edmunds, Charles R. Buckalew, George H. Williams, and William Pitt Fessenden); id. at 388 (statement of Sen. Reverdy Johnson); id. at 1045–46 (statement of Sen. John Sherman). 4. Id. at 937. Williams offered similar arguments during the debate on an early House version of the bill, warning that excluding the heads of departments “would destroy the very essence of the bill.” Id. at 71 (debating H.R. 664, 39th Cong. (1866)). 5. The House passed the amendment deleting the Senate’s exception for cabinet members by a vote of eighty-two to sixty-three. Id. at 969–70. Representative Williams’s victory did not come easily, as he was defeated in his fi rst three attempts to have this amendment approved. Just two months earlier, the House had ignored Williams’s objections and voted fi fty-seven to forty-six to include an exception for cabinet members in the House’s version of this bill. Id. at 73. The next day, the House voted seventy-seven to eighty-one to reject Williams’s subsequent amendment to delete this exception. Id. at 94. Lastly, just the day before the House fi nally accepted Representative Williams’s amendment, it rejected it by a vote of seventy-six to seventy-eight. Id. at 943. Only after a colleague successfully moved to reconsider this initial rejection did Representative Williams fi nally see his amendment actually pass. Id. at 969. 6. Id. at 1340 (House); id. at 1514 (Senate). The conference report was endorsed by all the conferees except Senator Buckalew. Id. at 1514–15. 7. Id. at 1516. 8. The House voted 111 to forty-one in favor of the conference report. Id. at 1340. The Senate adopted the conference report by a vote of twenty-two to ten. Id. at 1518. 9. Andrew Johnson, Message to the Senate (Dec. 12, 1867) [hereinafter Johnson, Stanton Suspension], in 8 A Compilation of the Messages and Papers of the Presidents 3781, 3785 (James D. Richardson ed., 1925) [hereinafter Messages & Papers]. 10. Albert Castel, The Presidency of Andrew Johnson 113 (1979). 11. Andrew Johnson, Veto Message to the Senate (Mar. 2, 1867), in 8 Messages & Papers, supra note 9, at 3690, 3691, 3695–96. 12. The House voted 133 to 37 to override the president’s veto. Cong. Globe, 39th Cong., 2d Sess. 1739 (1867). The Senate vote was 35 to 11. Id. at 1966. During March of 1867, while this controversy boiled, Secretary of State Seward found time to buy Alaska from the Russians. 13. Letter from Andrew Johnson to Edwin M. Stanton (Aug. 12, 1867), reprinted in Johnson, Stanton Suspension, supra note 9, at 3781. 14. Jean Edward Smith, Grant 435 (2001).

Notes to Pages 182–87

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15. Letter from Edwin M. Stanton to Andrew Johnson (Aug. 12, 1867), reprinted in Johnson, Stanton Suspension, supra note 9, at 3782. 16. Johnson, Stanton Suspension, supra note 9, at 3785, 3787, 3790. 17. Andrew Johnson, Third Annual Message (Dec. 3, 1867), in 8 Messages & Papers, supra note 9, at 3756, 3767–69. 18. Smith, supra note 14, at 444–45. 19. 16 S. Exec. J. 129–30 (Jan. 13, 1868). 20. Andrew Johnson, Message to the Senate (Feb. 21, 1868), in 8 Messages & Papers, supra note 9, at 3819. 21. Castel, supra note 10, at 156. 22. Id. at 176. 23. The resolution is reprinted in Andrew Johnson, Message to the Senate (Feb. 22, 1868) [hereinafter Johnson, Senate Resolution Protest], in 8 Messages & Papers, supra note 9, at 3820; and 1 Trial of Andrew Johnson, President of the United States, Before the Senate of the United States on Impeachment by the House of Representatives for High Crimes and Misdemeanors 156–57 (Washington, D.C., Gov’t Printing Off. 1868). Many Republicans abstained from this vote perhaps in an attempt to discourage impeachment proceedings. Michael Les Benedict, The Impeachment and Trial of Andrew Johnson 103 (1973). 24. Johnson, Senate Resolution Protest, supra note 23, at 3820. 25. Hans L. Trefousse, Impeachment of a President 135 (1975). 26. Cong. Globe, 40th Cong., 2d Sess. 1400 (1868). 27. Trefousse, supra note 25, at 130. 28. Cong. Globe, 40th Cong., 2d Sess. 1612–19, 1642 (1868). 29. 1 Trial of Andrew Johnson, supra note 23, at 18–19. Groesbeck joined the president’s defense team only after Jeremiah S. Black, the former attorney general, withdrew. 30. Smith notes, “Grant supported conviction because (among other things) he thought Johnson created too much turbulence in his wake. Writing to his old friend Charles Ford, the general allowed as how he thought the president’s removal would ‘give peace to the country.’ . . . But it was Senator John B. Henderson of Missouri to whom Grant may have confided his deepest reason. Riding alongside Henderson on a streetcar shortly before the vote, Grant said, ‘I would impeach him because he is such an infernal liar.’” Smith, supra note 14, at 454. 31. The number of confl icts of interest surrounding Johnson’s impeachment was staggering. The fact that Johnson’s impeachment would have elevated Senate President pro Tempore Ben Wade made a number of senators hesitant to convict Johnson, some objecting to Wade’s policies and others objecting out of personal enmity. Chief Justice Chase harbored presidential ambitions even while presiding over the impeachment trial. Senator Patterson of Tennessee was Johnson’s son-in-law, while Senator Peleg Sprague was Chase’s son-in-law. House Manager Benjamin Butler had long resented Grant’s having removed him from his generalship and reportedly attempted to manipulate the trial’s timing in order to frustrate Grant’s candidacy for president. Two of the other House managers, Boutwell and Bingham, feuded throughout the trial, inhibiting the prosecution from the beginning. Benedict, supra note 23, at 126–43; Trefousse, supra note 25, at 175–79. 32. 2 Trial of Andrew Johnson, supra note 23, at 486–87, 496–97. 33. John F. Kennedy, Profi les in Courage 126–51 (1956). 34. Ralph J. Roske, The Seven Martyrs?, 64 Am. Hist. Rev. 323, 323–30 (1959). 35. Trefousse, supra note 25, at 169. 36. 16 S. Exec. J. 249 (June 2, 1868) (rejection of Stanbery); id. at 313 (July 16, 1868) (confi rmation of Evarts). 37. Castel, supra note 10, at 205–06. 38. Andrew Johnson, Fourth Annual Message (Dec. 9, 1868), in 8 Messages & Papers, supra note 9, at 3871, 3871–72.

464

Notes to Pages 187–98

39. John Norton Pomeroy, An Introduction to the Constitutional Law of the United States § 647, at 430, § 650, at 432, § 661, at 440 (New York, Hurd & Houghton 1868). 40. 1 James Kent, Commentaries on American Law 345 n.1 (O. W. Holmes Jr. ed., Boston, Little, Brown 1873).

Part V. The Unitary Executive During the Gilded Age, 1869–1889 Chapter 18. Ulysses S. Grant 1. Ulysses S. Grant, First Annual Message (Dec. 6, 1869), in 9 A Compilation of the Messages and Papers of the Presidents 3981, 3992 (James D. Richardson ed., 1925). 2. Wilfred E. Binkley, The President and Congress 159 (1947). 3. Grant, First Annual Message, supra note 1, at 3992. 4. Jean Edward Smith, Grant 479 (2001). 5. Id. 6. Act of Apr. 5, 1869, ch. 10, § 2, 16 Stat. 6, 7. 7. Smith, supra note 4, at 480. 8. Henry Adams, The Session, 108 N. Am. Rev. 615 (1869). 9. Act of June 8, 1872, ch. 335, § 2, 17 Stat. 283, 284; Act of July 12, 1876, ch. 179, § 6, 19 Stat. 78, 80–81. 10. 272 U.S. 52 (1926). 11. 15 Op. Att’y Gen. 94, 104 (1876). 12. Frank B. Cross, Executive Orders 12,291 and 12,498: A Test Case in Presidential Control of Executive Agencies, 4 J.L. & Pol. 483, 489 n.31 (1988). 13. 14 Op. Att’y Gen. 104 (1872); 14 Op. Att’y Gen. 65 (1872). 14. Smith, supra note 4, at 522. 15. Id. at 542–43. 16. Act of June 22, 1870, ch. 150, 16 Stat. 162. 17. Cong. Globe, 41st Cong., 2d Sess. 3036 (1870) (statement of Rep. Jenckes) (noting that Congress created the Justice Department “for the purpose of having a unity of decision, a unity of jurisprudence . . . in the executive law of the United States” and because of “the need to insure that the federal government spoke with one voice in its view of and adherence to the law”). 18. Smith, supra note 4, at 544. 19. Id. at 544–45, 547 571. 20. Geoffrey Perret, Ulysses S. Grant: Soldier and President 388 (1997). 21. Smith, supra note 4, at 549, 552. 22. Perret, supra note 20, at 433. 23. Smith, supra note 4, at 552–54.

Chapter 19. Rutherford B. Hayes 1. Leonard D. White, The Republican Era: 1869–1901, at 32 (1958) (quoting Wilfred E. Binkley, The President and Congress 155 (1947)). 2. Ari Hoogenboom, The Presidency of Rutherford B. Hayes 59 (1988). 3. Army Appropriation Act, ch. 263, § 15, 20 Stat. 145, 152 (1878). 4. Adam Liptak, Posse Comitatus Act Limits Armed Services at Home, N.Y. Times, July 21, 2002, at A16. 5. Editorial, Misusing the Military, N.Y. Times, July 24, 2002, at A18. 6. Diary and Letters of Rutherford Birchard Hayes 529 (Charles Richard Williams ed., 1924).

Notes to Pages 198–206

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7. James A. Rawley, Rutherford B. Hayes, in To the Best of My Ability 141, 143–44 (James M. McPherson & David Rubel eds., 2000). 8. Rutherford B. Hayes, Veto Message (Apr. 29, 1879), in 9 A Compilation of the Messages and Papers of the Presidents 4475, 4483 (James D. Richardson ed., 1925) [hereinafter Messages & Papers]. 9. Hoogenboom, supra note 2, at 75, 77–78. 10. White, supra note 1, at 38. 11. Rutherford B. Hayes, Executive Order (June 22, 1877), in 9 Messages & Papers, supra note 8, at 4402. This order represented an extension of a previous order banning political assessments and campaign activity by employees of the New York Custom House. Rutherford B. Hayes, Executive Order to John Sherman (May 26, 1877), in 9 Messages & Papers, supra note 8, at 4402. 12. White, supra note 1, at 33. 13. Rawley, supra note 7, at 143. 14. White, supra note 1, at 33. 15. Hoogenboom, supra note 2, at 142. 16. Diary and Letters of Rutherford Birchard Hayes, supra note 6, at 612–13 (entry of July 14, 1880). 17. Rutherford B. Hayes, First Annual Message (Dec. 3, 1877), in 9 Messages & Papers, supra note 8, at 4410, 4418. 18. White, supra note 1, at 26. 19. Hoogenboom, supra note 2, at 144. 20. 15 Op. Att’y Gen. 421 (1878). 21. Rawley, supra note 7, at 142. 22. Rutherford B. Hayes, Third Annual Message (Dec. 1, 1879), in 9 Messages & Papers, supra note 8, at 4509, 4514. 23. Rutherford B. Hayes, Fourth Annual Message (Dec. 6, 1880), in 10 Messages & Papers, supra note 8, at 4557.

Chapter 20. James A. Garfield 1. Cong. Globe, 40th Cong., 1st Sess. 315–18 (1869). 2. James A. Garfield, A Century of Progress, 40 Atl. Monthly 61 (1877), reprinted in 2 The Works of James Abram Garfield 463, 483 (Books for Libraries 1970) (Burke A. Hinsdale ed., 1883). 3. 2 Theodore Clarke Smith, Life and Letters of James Abram Garfield 1151–52 (1925). 4. James A. Garfield, Inaugural Address (Mar. 4, 1881), in 10 A Compilation of the Messages and Papers of the Presidents 4596, 4601–02 (James D. Richardson ed., 1925). 5. 2 Smith, supra note 3, at 1109. 6. Letter from James Garfield to Burke A. Hinsdale (Apr. 4, 1881), in Garfield-Hinsdale Letters 488, 489 (Mary L. Hinsdale ed., 1949). 7. Justus D. Doenecke, The Presidencies of James A. Garfield and Chester A. Arthur 44 (1981).

Chapter 21. Chester A. Arthur 1. Bernard A. Weisberger, Chester A. Arthur, in To the Best of My Ability 154 (James M. McPherson & David Rubel eds., 2000). 2. Justus D. Doenecke, The Presidencies of James A. Garfield and Chester A. Arthur 75 (1981).

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Notes to Pages 206–14

3. Chester A. Arthur, First Annual Message (Dec. 6, 1881), in 10 A Compilation of the Messages and Papers of the Presidents 4624, 4640 (James D. Richardson ed., 1925) [hereinafter Messages & Papers]. 4. Doenecke, supra note 2, at 93. 5. Civil Service Act of 1883, ch. 27, §§ 1–2, 11–12, 22 Stat. 403, 403–04, 406–07. 6. S. Rep. No. 47-576, at ix–x (1882). 7. Arthur, First Annual Message, supra note 3, at 4647–48. 8. Chester A. Arthur, Second Annual Message (Dec. 4, 1882), in 10 Messages & Papers, supra note 3, at 4713, 4733. 9. A month and a half after signing the act, Arthur sent a message to the Senate objecting that the provision requiring that the chief examiner be appointed by the commission, § 3, 22 Stat. at 404, violated Article II, Section 2, of the Constitution. Arthur’s message closed by nominating Silas W. Burt as chief examiner. Chester A. Arthur, Message to the Senate (Mar. 1, 1883), in 10 Messages & Papers, supra note 3, at 4745. The Senate confi rmed Burt and ever since has acquiesced in the view that the chief examiner has to be appointed in accordance with Article II. Christopher N. May, Presidential Defi ance of “Unconstitutional” Laws: Reviving the Royal Prerogative, 21 Hastings Const. L.Q. 865, 952–53 & nn.396, 971 (1994). 10. Act of Aug. 24, 1912, ch. 389, § 3, 37 Stat. 555.

Chapter 22. Grover Cleveland’s First Term 1. Richard E. Welch Jr., The Presidencies of Grover Cleveland 7, 9, 11–12, 16 (1988). 2. Id. at 49–50. 3. 1 Robert McElroy, Grover Cleveland: The Man and the Statesman 115 (1923). 4. Grover Cleveland, First Annual Message (Dec. 8, 1885), in 10 A Compilation of the Messages and Papers of the Presidents 4910 (James D. Richardson ed., 1925) [hereinafter Messages & Papers]. 5. Mary Burke Hinsdale, A History of the President’s Cabinet 324 (1911). 6. Welch, supra note 1, at 53. 7. Id. at 53–54. 8. Id. 9. For an excellent description and analysis of this controversy, see Louis Fisher, Grover Cleveland against the Senate, 7 Cong. Stud. 11 (1979). For Cleveland’s account, see Grover Cleveland, The Independence of the Executive 40–82 (1913). 10. Welch, supra note 1, at 54–55. 11. Grover Cleveland, Message to the Senate (Mar. 1, 1886), in 10 Messages & Papers, supra note 4, at 4960, 4964. 12. 17 Cong. Rec. 2810–14 (1886). 13. Act of Mar. 3, 1887, ch. 353, 24 Stat. 500. 14. Welch, supra note 1, at 55–56. 15. Grover Cleveland, Presidential Problems 76 (1904); see also Henry Campbell Black, Handbook of American Constitutional Law § 65, at 106 (St. Paul, West 1895) (concluding that repeal of the Tenure of Office Act “apparently amounts to a concession that the power of removal in such cases belongs to the President alone”). 16. Welch, supra note 1, at 57. 17. Id. at 61–62. 18. H.R. Rep. No. 51-4038, at 59 (1891). 19. Lawrence Lessig & Cass R. Sunstein, The President and the Administration, 94 Colum. L. Rev. 1, 110–12 (1994). 20. Shurtleff v. United States, 189 U.S. 311 (1903). 21. Humphrey’s Ex’r v. United States, 295 U.S. 602 (1935).

Notes to Pages 214–21

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22. Robert E. Cushman, The Independent Regulatory Commissions 60–62 (Octagon Books 1972) (1941). 23. S. Rep. No. 43-307 (1874); H.R. Rep. No. 47-1399 (1882). 24. 17 Cong. Rec. 4422 (1886) (statement of Sen. Edmunds); 18 Cong. Rec. app. at 187 (1887) (statement of Sen. La Follette). 25. 17 Cong. Rec. 4422 (1886). 26. Interstate Commerce Act, ch. 104, 24 Stat. 379 (1887). In fact, Representative Oates even referred to “the veto power which the bill gives to the Secretary of the Interior.” 18 Cong. Rec. 849 (1887). 27. Act of Mar. 2, 1889, ch. 382, 25 Stat. 855. 28. One noted commentator has indicated that the ICC was removed from the Department of the Interior at the secretary of the interior’s request. Cushman, supra note 22, at 67, 687. Other commentators have speculated that Congress removed the ICC from the Department of the Interior because of concerns about the background of incoming President Benjamin Harrison as a railroad lawyer. 5 Senate Comm. on Governmental Affairs, Study on Federal Regulation, S. Doc. No. 95-91, at 27–28 (1977). 29. Geoffrey P. Miller, Independent Agencies, 1986 Sup. Ct. Rev. 41, 74; Robert L. Rabin, Federal Regulation in Historical Perspective, 38 Stan. L. Rev. 1189, 1207–08, 1223–24 (1986). 30. 116 U.S. 483, 485 (1886). 31. Welch, supra note 1, at 89. 32. Itzhak Zamir, Administrative Control of Administrative Action, 57 Cal. L. Rev. 866, 873 (1969). 33. Leonard D. White, The Republican Era: 1869–1901, at 106 (1958).

Part VI. The Unitary Executive During the Rise of the Administrative State, 1889–1945 1. Elena Kagan, Presidential Administration, 114 Harv. L. Rev. 2245, 2274–75 (2001); Lawrence Lessig & Cass R. Sunstein, The President and the Administration, 94 Colum. L. Rev. 1, 84 n.334 (1994); Geoffrey P. Miller, Independent Agencies, 1986 Sup. Ct. Rev. 41, 79, 85. 2. 1 Bruce Ackerman, We the People: Foundations 105–08 (1991); Bruce Ackerman & David Golove, Is NAFTA Constitutional?, 108 Harv. L. Rev. 801, 845–96 (1995); Martin S. Flaherty, The Most Dangerous Branch, 105 Yale L.J. 1725, 1819–21 (1996). 3. Stephen Skowronek, Building a New American State: The Expansion of National Administrative Capacities (1982).

Chapter 23. Benjamin Harrison 1. Homer E. Socolofsky & Allan B. Spetter, The Presidency of Benjamin Harrison 84 (1987). 2. Id. at 47–48. 3. Benjamin Harrison, This Country of Ours 70, 105–06 (New York, C. Scribner’s Sons 1897). 4. Socolofsky & Spetter, supra note 1, at 29, 39–40, 43. 5. Paul P. Van Riper, History of the United States Civil Service 102 (Greenwood Press 1976) (1958) (citations omitted). 6. 9 U.S. Civ. Serv. Comm’n Ann. Rep. 77 (1892); see also Richard A. Merrill, Procedures for Adverse Actions against Federal Employees, 59 Va. L. Rev. 196, 212–13 (1973). 7. Ch. 647, 26 Stat. 209 (1890). 8. Ch. 1244, § 3, 26 Stat. 567, 612 (1890).

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Notes to Pages 221–31

9. Ch. 561, § 24, 26 Stat. 1095, 1103. 10. In re Neagle, 135 U.S. 1, 5–6, 42–54 (1890). 11. Youngstown Sheet & Tube Co. v. Sawyer (Steel Seizure Case), 343 U.S. 579 (1952). 12. Neagle, 135 U.S. at 13. 13. Id. at 14–16. 14. Brief for Appellee at 12, Neagle (No. 1472). 15. 19 U.S. (6 Wheat.) 264 (1821). 16. 62 U.S. (21 How.) 506 (1859). 17. 17 U.S. (4 Wheat.) 316 (1819). 18. Neagle, 135 U.S. at 59, 61, 63, 68–69. 19. Id. at 78–79, 82–84 (Lamar, J., dissenting). 20. Henry P. Monaghan, The Protective Power of the Presidency, 93 Colum. L. Rev. 1, 61–63 (1993) (relying on Neagle as support for an inherent presidential power to protect the personnel, property, and instrumentalities of the federal government). 21. 141 U.S. 174 (1891). 22. Act of Apr. 5, 1869, ch. 10, § 2, 16 Stat. 6, 7 (repealed 1887). 23. The statute contained an exception for judges of the courts of the United States. McAllister, 141 U.S. at 177. A long line of precedents clearly holding that territorial courts are not courts of the United States rendered this exception inapplicable. Id. at 180–84. The Court concluded, “What may be the powers of the President over territorial judges, now that section 1768 is repealed, is a question we need not now discuss.” Id. at 178. 24. Socolofsky & Spetter, supra note 1, at 125, 206–07. 25. Id. at 129–30, 136–52, 207.

Chapter 24. Grover Cleveland’s Second Term 1. Richard E. Welch Jr., The Presidencies of Grover Cleveland 106, 111, 118, 214 (1988). 2. Id. at 215, 217–19. 3. Id. at 141–47. 4. Id. at 142–43, 145. 5. In re Debs, 158 U.S. 564, 573, 599 (1895). 6. Id. at 564, 581–84, 594–99. 7. Youngstown Sheet & Tube Co. v. Sawyer (Steel Seizure Case), 343 U.S. 579 (1952). 8. Henry P. Monaghan, The Protective Power of the Presidency, 93 Colum. L. Rev. 1, 63–65 (1993) (citing Debs as support for an inherent presidential power to protect the personnel, property, and instrumentalities of the federal government). 9. Welch, supra note 1, at 147. 10. Id. at 224. 11. Tenure of Office Act, ch. 102, § 1, 3 Stat. 582, 582 (1820). 12. Tenure of Office Act, ch. 154, 14 Stat. 430, 430 (1867) (repealed 1887). 13. 167 U.S. 324, 328–40 (1897). 14. Welch, supra note 1, at 61. 15. Leonard D. White, The Republican Era: 1869–1901, at 27 (1958) (quoting 2 George Frisbie Hoar, Autobiography of Seventy Years 46 (1903)). 16. 13 U.S. Civ. Serv. Comm’n Ann. Rep. 19 (1897). 17. White, supra note 15, at 343–44 (quoting H.R. Rep. No. 51-4038, at 59 (1891)); see also Gerald E. Frug, Does the Constitution Prevent the Discharge of Civil Service Employees?, 124 U. Pa. L. Rev. 942, 956 (1976) (noting President Cleveland’s refusal to issue an executive order requiring a written statement of reasons for removal). 18. Grover Cleveland, Presidential Problems 14–16 (1904); see also Grover Cleveland, The Independence of the Executive 1–39 (1913).

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Chapter 25. William McKinley 1. Lewis Gould, The Presidency of William McKinley 2, 9, 560 (1980). 2. Charles Emory Smith, McKinley in the Cabinet Room, Saturday Evening Post, Aug. 30, 1902, at 1. 3. Gould, supra note 1, at 39, 88, 130, 161. 4. Customs Administrative Act, ch. 407, § 12, 26 Stat. 131, 136 (1890), repealed by Act of Aug. 5, 1909, ch. 6, § 28, 36 Stat. 11, 91. 5. Shurtleff v. United States, 189 U.S. 311, 311–13 (1903). 6. Brief for the United States at 5–7, Shurtleff (No. 76) (citing Parsons v. United States, 167 U.S. 324, 338, 343 (1897)). 7. Shurtleff, 189 U.S. at 314–16. 8. Gregory v. Ashcroft, 501 U.S. 452, 460–61 (1991); Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242–43 (1985). 9. Wallace v. United States, 257 U.S. 541, 545 (1922). 10. Humphrey’s Ex’r v. United States, 295 U.S. 602, 621–22 (1935). 11. La Abra Silver Mining Co. v. United States, 175 U.S. 423 (1899). 12. Gould, supra note 1, at 165, 167–68. 13. 14 U.S. Civ. Serv. Comm’n Ann. Rep. 24 (1898); see also Gould, supra note 1, at 54 (noting that “McKinley ordered that the removal process be made more open, with written notice and just cause required”). 14. 15 U.S. Civ. Serv. Comm’n Ann. Rep. 19–20 (1899). 15. Page v. Moffett, 85 F. 38, 40 (C.C.D.N.J. 1898); accord Carr v. Gordon, 82 F. 373, 377, 379 (C.C.N.D. Ill. 1897) (construing McKinley’s 1897 order as an exercise of the president’s right to regulate himself and his subordinates in the exercise of the removal power and that such restrictions may be made or unmade at the president’s pleasure and recognizing that nothing in the Civil Service Act limits the power of removal aside from the prohibition on dismissals for failing to support political campaigns). 16. 177 U.S. 290, 294, 296 (1900) (citing Ex parte Hennen, 38 U.S. (13 Pet.) 230, 259 (1830); and Parsons). 17. Gould, supra note 1, at 91 (quoting George B. Cortelyou Diary (June 8, 1898) and Letter from Charles Emory Smith to Elihu Root (Aug. 12, 1903)). 18. Id. at 92–93, 118. 19. Id. at 121 (quoting Draft of Letter from McKinley to Commission for the Evacuation of Cuba with Cortelyou’s Note of McKinley’s Remark (Dec. 6, 1898)). 20. Id. at viii, 121, 221–22. 21. Id. at viii, 152, 243.

Chapter 26. Theodore Roosevelt 1. Lewis L. Gould, The Presidency of Theodore Roosevelt 1, 16–17, 174 (1991). 2. Id. at 10, 19, 225. 3. Id. at ix. 4. Theodore Roosevelt, An Autobiography 362, 464 (1920) (1913). Roosevelt alluded here to presidents like Buchanan and Taft, whose principle of governance “represents not well-thought-out devotion to an unwise course, but simple weakness of character and desire to avoid trouble and responsibility.” Id. at 365. 5. Edmund Morris, Theodore Rex 278 (2001) (quoting George Haven Putnam, Memories of a Publisher, 1865–1915, at 145–47 (1915)). 6. Roosevelt, supra note 4, at 65. 7. Gould, supra note 1, at 11. 8. Roosevelt, supra note 4, at 352.

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Notes to Pages 239–48

9. Id. at 357. 10. Gould, supra note 1, at 197 (quoting Roosevelt, supra note 4, at 357). 11. Id. at 69–70, 272 (quoting Roosevelt, supra note 4, at 464). 12. Id. at 197, 222. 13. Mary Louise Hinsdale, A History of the President’s Cabinet 272 (1911). 14. Theodore Roosevelt, Special Message to the Senate (Dec. 19, 1906), in 15 A Compilation of the Messages and Papers of the Presidents 7329, 7329 (James D. Richardson ed., 1925) [hereinafter Messages & Papers]; Theodore Roosevelt, Special Message to the Senate (Jan. 14, 1907), in 15 Messages & Papers, supra, at 7337, 7341. 15. Theodore Roosevelt, Eighth Annual Message (Dec. 8, 1908), in 14 Messages & Papers, supra note 14, at 7198, 7229. 16. Gould, supra note 1, at 51, 113–14, 218. 17. Id. at 202, 245. 18. Kenneth R. Mayer, With the Stroke of a Pen: Executive Orders and Presidential Power 10, 51–52 (2001). 19. Morris, supra note 5, at 477, 518. 20. Gould, supra note 1, at 95, 118. 21. Id. at 199. 22. Theodore Roosevelt, Declaration of the Meaning of Section 8, Rule II (May 29, 1902), microformed on CIS Presidential Executive Orders and Proclamations 1902-EO173 (Cong. Info. Serv.). 23. 20 U.S. Civ. Serv. Comm’n Ann. Rep. 19 (1904); see also 22 U.S. Civ. Serv. Comm’n Ann. Rep. 145 (1905) (noting that the commission would not review the circumstances of a removal unless “it is alleged . . . that the removal was . . . made for political or religious reasons or that a greater penalty than usual had been imposed”). 24. United States ex rel. Taylor v. Taft, 24 App. D.C. 95, 99 (D.C. Cir. 1904), appeal dismissed,203 U.S. 461 (1906); see also Brown v. United States, 39 Ct. Cl. 255 (1904) (noting that “it can not be possible” that the Civil Service Act “intended that there should be no discharge except for incapacity or misconduct”). 25. Shurtleff v. United States, 189 U.S. 311 (1903). 26. 22 U.S. Civ. Serv. Comm’n Ann. Rep. 71 (1905); see also Lewis Mayers, The Federal Service 496 (1922) (stating that Roosevelt weakened the procedural requirements after witnessing misconduct so egregious that he did not think the employee merited the protective procedure). 27. Id. at 220, 222. 28. Morris, supra note 5, at 368. 29. Gould, supra note 1, at 80, 136, 175–76, 179, 212. 30. Roosevelt, supra note 4, at 82. 31. Youngstown Sheet & Tube Co. v. Sawyer (Steel Seizure Case), 343 U.S. 579 (1952).

Chapter 27. William H. Taft 1. Paolo E. Coletta, The Presidency of William Howard Taft 10 (1973). 2. William H. Taft, Our Chief Magistrate and His Powers 144 (1925). 3. Coletta, supra note 1, at 12. 4. Taft, supra note 2, at 139–40. 5. Id. at 12, 88–89, 223 (quoting Letter from William Howard Taft to Otto T. Bannard (Nov. 5, 1911)) (emphasis added). 6. Coletta, supra note 1. at 17, 81–83. 7. Id. at 263. 8. Id. at 233. 9. Id. at 140.

Notes to Pages 248–55

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10. Taft, supra note 2, at 56. 11. 272 U.S. 52, 117 (1926) (emphasis added). 12. Coletta, supra note 1, at 82–98 (quoting Letter from Howard Taft to Gifford Pinchot (Jan. 7, 1910)). 13. Id. at 95. Interestingly, the affair was prolonged by a rather curious set of circumstances. The special agent who initially leveled the charges against Ballinger had published his claims in Collier’s Weekly. Id. at 90. Collier’s hired future Supreme Court Justice Brandeis to defend against a potential libel suit. Brandeis was able to show that Taft could not have based his decision to fi re Pinchot on a report prepared by Attorney General George Wickersham, as Taft claimed. Instead, Taft relied upon a preliminary report prepared by a subcabinet official in the Department of the Interior who was a well-known Ballinger loyalist. This revelation was publicly regarded as vindicating Pinchot. Id. at 96–97. 14. 2 George H. Haynes, The Senate of the United States 816 (Russell & Russell 1960) (1938). 15. Coletta, supra note 1, at 137–38. In accordance with the recommendations of the Civil Service Commission, Taft declined Attorney General Wickersham’s request to extend the classified service to cover all assistant attorneys. Id. at 138. 16. William H. Taft, Amendment to the Civil Service Rules (Feb. 8, 1912), microformed on CIS Presidential Executive Orders and Proclamations 1912-EO-1471 (Cong. Info. Serv.). 17. 29 U.S. Civ. Serv. Comm’n Ann. Rep. 21–22 (1912); see also Henry Campbell Black, Handbook of American Constitutional Law §§ 77–78, at 131 (3d ed. 1910) (noting that the Civil Service Act does not impose any limits on the “right of removal, except on the single ground of failure to contribute money or services to a political party”). 18. Act of Aug. 24, 1912, ch. 389, § 3, 37 Stat. 555 (codified as amended at 5 U.S.C. § 7513(a) (2000)). This language was borrowed from the Postal Service Appropriations Act of 1912, ch. 389, § 6, 37 Stat. 539, 555. 19. Gerald Frug, Does the Constitution Prevent the Discharge of Civil Service Employees?, 124 U. Pa. L. Rev. 942, 958–59 (1976). 20. Coletta, supra note 1, at 130. 21. Sundry Civil Appropriations Act of 1910, ch. 384, 36 Stat. 703, 703. 22. Coletta, supra note 1, at 130, 132. 23. Sundry Civil Appropriations Act of 1909, ch. 299, § 7, 35 Stat. 945, 1027. 24. H.R. Doc. No. 62-854, at 186–98 (1912); see Coletta, supra note 1, at 131–32. 25. Coletta, supra note 1, at 130. 26. Act of Aug. 23, 1912, ch. 350, § 9, 37 Stat. 360, 415. 27. S. Doc. No. 62-1113 at 5–6 (1913). 28. Leonard D. White, The Republican Era: 1869–1901, at 92 (1958). 29. Kenneth R. Mayer, With the Stroke of a Pen: Executive Order and Presidential Power 117 (2001). 30. 236 U.S. 459 (1915). 31. Mayer, supra note 29, at 75.

Chapter 28. Woodrow Wilson 1. Woodrow Wilson, Congressional Government: A Study in American Politics 49, 70–72, 170, 173–74, 177, 179–80 (Meridian 1956) (1885). 2. Id. at 79, 186–89. 3. Kendrick A. Clements, The Presidency of Woodrow Wilson 7 (1992). 4. Woodrow Wilson, Constitutional Government in the United States 60, 67–68, 76 (1908). 5. Clements, supra note 3, at 8. 6. Wilson, supra note 4, at 52.

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Notes to Pages 256–62

7. 272 U.S. 52 (1926). 8. Kellom v. United States, 55 Ct. Cl. 174 (1920). 9. Lewis Mayers, The Federal Service 498 (1922). 10. Woodrow Wilson, Veto Message (May 13, 1920), in 17 A Compilation of the Messages and Papers of the Presidents 8851 (James D. Richardson ed., 1925) [hereinafter Messages & Papers] (criticizing the Legislative, Executive, and Judicial Appropriation Act of 1920, ch. 86, § 10, 40 Stat. 1213, 1270 (1919)). 11. Wilson, Veto Message, supra note 10, at 8852. 12. Ch. 78, §§ 1, 2, 4, 5, 40 Stat. 556, 556–57 (1918). 13. Exec. Order No. 2877 (May 31, 1918), microformed on CIS Presidential Executive Orders and Proclamations 1918-EO-2877 (Cong. Info. Serv.); S. Rep. No. 75-1236, at 5 (1937). 14. Shipping Act of 1916, ch. 451, § 3, 39 Stat. 728, 729; Federal Trade Commission Act of 1914, ch. 311, § 1, 38 Stat. 717, 718. 15. Federal Reserve Act of 1913, ch. 6, § 10, 38 Stat. 251, 260. 16. Federal Water Power Act of 1920, ch. 285, 41 Stat. 1063. 17. Robert E. Cushman, The Independent Regulatory Commissions 62, 153, 195–96, 198–99, 222, 239–40 (Octagon Books 1972) (1941). 18. Id. at 97, 222–23, 226. 19. Federal Reserve Act of 1913, ch. 6, § 10, 38 Stat. 251, 261. The treasury secretary and comptroller of the currency were not removed from the board until 1935. 20. Federal Trade Commission Act of 1914, ch. 311, § 6(d), 38 Stat. 717, 721. 21. Urgent Deficiencies Appropriation Act of 1917, ch. 29, 40 Stat. 182. 22. U.S. Shipping Bd. Fourth Ann. Rep. 6 (1917). 23. Merchant Marine Act of 1920, ch. 250, § 2(a)(1), 41 Stat. 988, 988. Although Congress at that time considered transferring control of the Shipping Board to a cabinet secretary, it retained the board as an independent agency, complete with the attendant restrictions on removal. Congress did amend the law so that the board’s chairman would thereafter be selected by the president rather than the board itself. Id. § 3(a), 41 Stat. at 989. Unfortunately, the debates surrounding this reorganization shed precious little light on what Congress perceived to be the proper relationship between the board and the president. Cushman, supra note 17, at 245, 247–49. 24. Cushman, supra note 17, at 196–98, 222–23, 681, 685. 25. Shurtleff v. United States, 189 U.S. 311 (1903). 26. An Act to Amend an Act Entitled “An Act to Simplify the Laws in Relation to the Collection of the Revenues,” Pub. L. No. 60-146, 35 Stat. 403 (1908). 27. 295 U.S. 602 (1935). 28. Transportation Act of 1920, ch. 91, § 306(b), 41 Stat. 456, 470 (creating a Railroad Labor Board whose members “may be removed by the President for neglect of duty or malfeasance in office, but for no other cause” (emphasis added)); Newlands Act of 1913, ch. 6, § 11, 38 Stat. 103, 108 (creating a Board of Mediation and Conciliation headed by a commissioner “who shall be removable by the President only for misconduct in office”).

Chapter 29. Warren G. Harding 1. Eugene P. Trani & David L. Wilson, The Presidency of Warren G. Harding 189–90 (1977). 2. Arthur M. Schlesinger Jr., The Age of Roosevelt: The Crisis of the Old Order, 1919– 1933, at 51 (1957). 3. Act of Mar. 4, 1923, ch. 248, § 1, 42 Stat. 1446, 1446 (creating a United States Coal Commission whose members “may be removed by the President for neglect of duty or malfeasance in office but for no other cause” (emphasis added)).

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4. S. Rep. No. 75-1236, at 5 (1937). 5. Ch. 18, §§ 207–211, 42 Stat. 20, 22. 6. Trani & Wilson, supra note 1, at 47–48, 62, 64. 7. Budget and Accounting Act of 1921, § 303, 42 Stat. at 23–24. 8. S. Rep. No. 75-1236, at 5 (1937). 9. Trani & Wilson, supra note 1, at 43, 191.

Chapter 30. Calvin Coolidge 1. White House, Calvin Coolidge, at http://www.whitehouse.gov/history/presidents/ cc30.html (last accessed Aug. 10, 2007). 2. 69 Cong. Rec. 3031 (1928) (statement of Sen. Carter Glass). 3. Robert H. Ferrell, The Presidency of Calvin Coolidge 70 (1998). 4. Robert E. Cushman, The Independent Regulatory Commissions 258–59 (Octagon Books 1972) (1941). 5. Revenue Act of 1924, ch. 234, § 900(b), 43 Stat. 253, 336–37 (creating a Board of Tax Appeals whose members “may be removed by the President for inefficiency, neglect of duty, malfeasance in office, or ineligibility, but for no other reason” (emphasis added)); Railway Labor Act, ch. 347, § 4, 44 Stat. 577, 579 (1926) (creating a Board of Mediation whose members “may be removed by the President for inefficiency, neglect of duty, malfeasance in office, or ineligibility, but for no other cause” (emphasis added)). 6. Ferrell, supra note 3, at 71–72, 720. 7. 295 U.S. 602 (1935). 8. Id. at 167, 168. 9. 272 U.S. 52 (1926). 10. Id. at 99–101; see also Substitute Brief for the United States on Reargument at 16, 20–22, Myers (No. 2), extracted in Myers v. United States, 272 U.S. 52, 98–106 (1926), and reprinted in 24 Landmark Briefs and Arguments of the Supreme Court of the United States: Constitutional Law 145 (Philip B. Kurland et al. eds., 1975). 11. Substitute Brief for the United States on Reargument, supra note 10, at 34–85. 12. Id. at 92–94 (quoting U.S. Const. art. II, §§ 1, 3). 13. Id. at 172. 14. Act of Feb. 8, 1924, ch. 16, 43 Stat. 5, 6. 15. 65 Cong. Rec. 2223–45 (1924) (covering the debate and evidence considered by the Senate before voting). 16. Charles Warren, Presidential Declarations of Independence, 10 B.U. L. Rev. 1, 33–34 (1930). 17. Calvin Coolidge, Statement, Passage of Resolution in the Senate Calling for the Resignation of Secretary of the Navy Denby (Feb. 11, 1924), in Supplement to the Messages and Papers of the Presidents Covering the Term of Warren G. Harding and the First Term of Calvin Coolidge 9366, 9366 (1925). 18. Ferrell, supra note 3, at 46. 19. 2 George H. Haynes, The Senate of the United States 819–21 (Russell & Russell 1960) (1938). 20. Calvin Coolidge, Special Message to Senate (Apr. 11, 1924), in 18 A Compilation of the Messages and Papers of the Presidents 9390, 9391 (James D. Richardson ed., 1925). 21. Ferrell, supra note 3, at 101–02, 104–06. 22. Radio Act of 1927, ch. 169, §§ 4–5, 44 Stat. 1162, 1163–64. 23. Act of Mar. 28, 1928, ch. 263, 45 Stat. 373; Act of Mar. 4, 1929, ch. 701, 45 Stat. 1559. 24. Act of Dec. 18, 1929, ch. 7, 46 Stat. 50. 25. Ferrell, supra note 3, at 142.

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Notes to Pages 273–77 Chapter 31. Herbert Hoover

1. Reorganization of the United States Shipping Board and United States Shipping Board Emergency Fleet Corporation: Hearings on H.R. 5369, H.R. 5395, H.R. 8052 Before the House Comm. on the Merch. Marine and Fisheries, 69th Cong. 13–14 (1926) (statement of Herbert C. Hoover) (emphasis added). 2. President’s Annual Message (Dec. 3, 1929), reprinted in 72 Cong. Rec. 27 (1930). 3. Martin L. Fausold, The Presidency of Herbert C. Hoover 56 (1985). 4. 272 U.S. 52 (1926). 5. Act of June 23, 1930, ch. 573, 46 Stat. 797 (amending the Federal Power Act). The original FPC was composed entirely of cabinet secretaries. Federal Water Power Act of 1920, ch. 285, 41 Stat. 1063. 6. 72 Cong. Rec. 10,332 (1930) (statement of Sen. Parker); see also Robert E. Cushman, The Independent Regulatory Commissions 293–94 (Octagon Books 1972) (1941) (noting that Congress had Myers in mind when omitting a provision restricting the president’s removal power). 7. 2 George H. Haynes, The Senate of the United States 826 (Russell & Russell 1960) (1938). 8. Message to the Senate of the United States, 74 Cong. Rec. 1929, 1930 (1931), reprinted in United States v. Smith, 286 U.S. 6, 28 n.3 (1932). 9. 74 Cong. Rec. 3939–40 (1931). 10. Id. at 2140 (proposal by Sen. Wheeler); id. at 3320–23 (amendment by Rep. LaGuardia). 11. United States v. Smith, 286 U.S. 6 (1932). 12. Cushman, supra note 6, at 683. 13. The Economy Act of 1932 was enacted as a rider to the Legislative Appropriations Act, ch. 314, § 403(1), 47 Stat. 382, 413 (1932). 14. Fausold, supra note 3, at 54–56. 15. Annual Message to the Congress on the State of the Union, Pub. Papers 404, 432 (Dec. 3, 1929); Special Message to the Congress on the Reorganization of the Executive Branch, Pub. Papers 56, 58 (Feb. 17, 1932). 16. Economy Act of 1932, § 407, 47 Stat. at 414. 17. 76 Cong. Rec. 2125–26 (1933). 18. Veto of a Bill to Supply Deficiency and Supplemental Appropriations, Pub. Papers 968, 969 (Jan. 24, 1933). 19. 462 U.S. 919 (1983). 20. 37 Op. Att’y Gen 56, 58, 63–65 (1993) (noting examples in which Presidents Washington, John Adams, Jefferson, Madison, John Quincy Adams, Jackson, Buchanan, Grant, Hayes, and Wilson had resisted congressional encroachments upon the executive power). 21. Treasury and Post Office Appropriations Act, ch. 212, § 16, 47 Stat. 1489, 1517–19 (1933); see also Donald G. Morgan, Congress and the Constitution: A Study of Responsibility 185 (1966) (“[Congress] adopted an amendment offered by Senator James F. Byrnes . . . which deleted the power of either house to disapprove executive orders and simply provided that such orders should lie before Congress for sixty days while in session.”); H. Lee Watson, Comment, Congress Steps Out: A Look at Congressional Control of the Executive, 63 Cal. L. Rev. 983, 1015 (1975) (noting that Congress removed a concurrent resolution provision from the 1934 Urgent Deficiency Act after Attorney General Mitchell advised Hoover to veto the act). Presumably, such an order could only be overridden by formal legislation, passed by both houses and either signed by the president or passed over his veto. 22. Fausold, supra note 3, at 125–26. 23. Id. at 126 (emphasis added). 24. Id. at 127–29, 195.

Notes to Pages 278–82

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Chapter 32. Franklin Delano Roosevelt 1. George McJimsey, The Presidency of Franklin Delano Roosevelt 36, 54, 288 (2000). 2. Id. at 286–87, 289–93. 3. Barry D. Karl, The Uneasy State: The United States from 1915 to 1945, at 232 (1983). 4. Leonard D. White, Introduction to the Study of Public Administration 17 (1939). 5. McJimsey, supra note 1, at 122, 286–87, 290–91, 293–95. 6. Exec. Order No. 6166, § 5 (June 10, 1933), reprinted as amended in 5 U.S.C.A. § 901 note (West 1996). 7. Exec. Order No. 8248, 3 C.F.R. 576, 577 (1938–43). 8. Kenneth R. Mayer, With the Stroke of a Pen: Executive Orders and Presidential Power 121 (2001). 9. Frank B. Cross, Executive Orders 12,291 and 12,498: A Test Case in Presidential Control of Administrative Agencies, 4 J.L. & Pol. 483, 492 (1988). 10. Exec. Order No. 8802, 3 C.F.R. 957, 957 (1938–43). 11. Exec. Order No. 9001, tit. II, pmbl. & § 2, 3 C.F.R. 1055, 1056 (1938–1943) (invoking the statutory authority conveyed by the fi rst War Powers Act of 1941 as well as the president’s authority as the commander in chief). 12. Exec. Order No. 9346, 3 C.F.R. 1280, 1280 (1938–43). 13. Robert P. Schuwerk, Comment, The Philadelphia Plan: A Study in the Dynamics of Executive Power, 39 U. Chi. L. Rev. 723, 729 (1972). 14. William H. Speck, Enforcement of Nondiscrimination Requirements for Government Contract Work, 63 Colum. L. Rev. 243, 244–49 (1963) (concluding that Executive Order 8802 was primarily based on the constitutional authority given to the president by the Article II Vesting Clause, bolstered by the Commander-in-Chief and Take Care Clauses); cf. United States v. New Orleans Pub. Serv., Inc., 553 F.2d 459, 466 (5th Cir. 1977) (concluding that Roosevelt issued these orders pursuant to his “war mobilization powers”); Contractors Ass’n of E. Pa. v. Sec’y of Labor, 442 F.2d 159, 168–69 (3d Cir. 1971) (noting that Executive Order 8802 “contained no specific statutory reference” and concluding that Roosevelt issued these orders pursuant to his “war mobilization powers”). 15. Exec. Order No. 9066, 3 C.F.R. 1093 (1938–43). 16. Pub. Proclamation No. 1, 7 Fed. Reg. 2320 (Mar. 2, 1942); Pub. Proclamation No. 2, 7 Fed. Reg. 2405 (Mar. 16, 1942). 17. Exec. Order No. 9102, 3 C.F.R. 1123 (1938–43). 18. Act of Mar. 21, 1942, ch. 191, 56 Stat. 173. 19. Public Proclamation No. 3, 7 Fed. Reg. 2543 (Mar. 24, 1942); Civilian Exclusion Order No. 1, 7 Fed. Reg. 2581 (Mar. 24, 1942). 20. Hirabayashi v. United States, 320 U.S. 81, 92 (1943); accord id. at 102–03. 21. Korematsu v. United States, 323 U.S. 214, 217 (1944) (upholding the internment program as within “the war power of Congress and the Executive”); id. at 224 (framing the analysis in terms of “the provision of the Constitution which confer on the Congress and the President power to enable this country to wage war”). 22. Id. at 89–90 (citing 88 Cong. Rec. 2722, 2725 (1942); H.R. Rep. No. 177-1906 (1942); and S. Rep. No. 77-1171 (1942)); see also Peter Irons, Justice at War 64 (1983) (noting that statutory authorization was necessary to back Executive Order 9066 with criminal sanctions); Greg Robinson, By Order of the President: FDR and the Interment of Japanese Americans 126 (2001) (describing the legislation as “provid[ing] for the enforcement of Executive Order 9066 through the federal courts”). 23. Robinson, supra note 22, at 109; see also Irons, supra note 22, at 62–63. 24. Mayer, supra note 8, at 10.

476

Notes to Pages 282–86

25. Ch. 417, 49 Stat. 500 (1935). 26. Christopher S. Kelley, The Unitary Executive and the Presidential Signing Statement 192 (2003) (unpublished Ph.D. dissertation, Miami University), available at http://www. ohiolink.edu/etd/send-pdf.cgi?miami1057716977. 27. Ch. 26, 56 Stat. 23. 28. Franklin D. Roosevelt, Statement on Signing the Emergency Price Control Act (Jan. 30, 1942), in 11 The Public Papers and Addresses of Franklin D. Roosevelt 67, 69 (Samuel I. Rosenman ed., 1942) [hereinafter Pub. Papers of FDR]. 29. Act of Oct. 2, 1942, ch. 578, § 7, 56 Stat. 765, 767. 30. Franklin D. Roosevelt, A Veto of a New York World’s Fair Appropriation as an Invasion of the Province of the Executive (May 19, 1937), in 6 Pub. Papers of FDR, supra note 28, at 206 (quoting 39 Op. Att’y Gen. 61, 62 (1937)). 31. 89 Cong. Rec. 474, 479, 486 (1943). 32. Urgent Deficiency Appropriation Act, ch. 218, § 304, 57 Stat. 431, 450 (1943) (prohibiting the use of appropriations to pay the salaries of Goodwin B. Watson, William E. Dodd Jr., and Robert Morss Lovett unless renominated and reconfi rmed for their positions). For an excellent discussion of the background of this case, see John Hart Ely, United States v. Lovett: Litigating the Separation of Powers, 10 Harv. C.R.-C.L. L. Rev. 1 (1975). 33. H.R. Rep. No. 78-448, at ii (1943). 34. 89 Cong. Rec. 4605, 7014 (1943). 35. Franklin D. Roosevelt, Statement of the President Condemning Rider Prohibiting Federal Employment of Three Named Individuals (Sept. 14, 1943), in 12 Pub. Papers of FDR, supra note 28, at 385, 386. 36. Ely, supra note 32, at 4, 16–17 (citing Record at 5–6, 19–21, 15–16, United States v. Lovett, 328 U.S. 303 (1946) (Nos. 809–811). The damages they suffered being almost insignificant, they were primarily interested in clearing their own names. Id. at 5, 8. 37. H.R. Rep. No. 78-1117, at 3–4 (1944). 38. United States v. Lovett, 66 F. Supp. 142, 146 (Ct. Cl. 1945), aff’d, 328 U.S. 303 (1946). 39. Securities Exchange Act of 1934, ch. 404, § 4, 48 Stat. 881, 885. 40. Communications Act of 1934, ch. 652, § 4, 48 Stat. 1064, 1066–67. 41. Amendment to Railway Labor Act, ch. 691, § 4, 48 Stat. 1185, 1193–94 (1934) (replacing the Board of Mediation with the National Mediation Board while maintaining the requirement that members “may be removed by the President for inefficiency, neglect of duty, malfeasance in office, or ineligibility, but for no other cause” (emphasis added)). 42. Myers v. United States, 272 U.S. 52 (1926). 43. Letter from Franklin D. Roosevelt, to William Humphrey (Aug. 31, 1933), reprinted in Humphrey’s Ex’r v. United States, 295 U.S. 602, 619 (1935). 44. Letter from Franklin D. Roosevelt, to William Humphrey (Oct. 7, 1933), reprinted in Humphrey’s Ex’r, 295 U.S. at 619. 45. Brief for the United States at 8–20, 23–26, Humphrey’s Ex’r (No. 667). 46. Shurtleff v. United States, 189 U.S. 311 (1903). 47. Act of May 27, 1908, ch. 205, sec. 3, § 31, 35 Stat. 403, 406. 48. 295 U.S. at 612–13 (noting Congress’s attempt to give statutory removal protection to members of the Commission of Mediation and Conciliation, the Board of Tax Appeals, the Railroad Labor Board, the United States Coal Commission, the Board of Mediation, and the National Mediation Board). 49. Myers v. United States, 272 U.S. 52, 171–72 (1926). 50. Humphrey’s Ex’r, 295 U.S. at 612–18 (giving the argument of Solicitor General Reed); Brief of the United States at 9, Humphrey’s Ex’r (No. 667). 51. Humphrey’s Ex’r, 295 U.S. at 622–28. 52. Id. at 626–32. 53. 300 U.S. 139 (1936).

Notes to Pages 286–89

477

54. 277 U.S. 189 (1928). 55. Robert E. Cushman, The Independent Regulatory Commissions 445–48 (Octagon Books 1972) (1941). 56. National Labor Relations Act, ch. 372, § 3(a), 49 Stat. 449, 451 (1935) (giving members five-year terms subject to removal for “neglect of duty or malfeasance in office, but for no other cause”). 57. Merchant Marine Act of 1936, ch. 858, § 201(a), 49 Stat. 1985, 1985 (giving members six-year terms subject to removal for “neglect of duty or malfeasance”). 58. Civil Aeronautics Act of 1938, ch. 601, § 201, 52 Stat. 973, 981 (giving members sixyear terms subject to removal for “inefficiency, neglect of duty, or malfeasance in office”). 59. Banking Act of 1935, ch. 614, § 203(b), 49 Stat. 684, 704 (giving board members fourteen-year terms “unless sooner removed for cause by the President”). 60. Cushman, supra note 55, at 169, 174–76, 366, 409–15. 61. Reorg. Plan No. 4 of 1940, 3 C.F.R. 1301–03 (1938–1943). 62. 83 Cong. Rec. 4196 (1938) (statement of Sen. Johnson of Calif.). 63. Franklin D. Roosevelt, The President Transmits to the Congress the Record of the Removal of the Chairman of the Tennessee Valley Authority (Mar. 23, 1938), in 7 Pub. Papers of FDR, supra note 28, at 151–153, 162–63. 64. Id. at 151 (citing 39 Op. Att’y Gen. 145 (1938). 65. Morgan v. Tenn. Valley Auth., 28 F. Supp. 732, 736–37 (E.D. Tenn. 1939), aff’d, 115 F.2d 990, 992–93 (6th Cir. 1940). The TVA Act provided that any board member “found by the President of the United States” to have applied a “political test or qualification” or otherwise have made “appointments and promotions . . . on the basis” of any other criteria except “merit and efficiency . . . shall be removed from office by the President of the United States.” Tennessee Valley Authority Act of 1933, ch. 32, § 6, 48 Stat. 58, 63 (codified at 16 U.S.C. § 831e (2000)). Subsequent judicial and executive authority has reaffi rmed this holding. Tenn. Valley Auth. v. Kinzer, 142 F.2d 833, 837 (6th Cir. 1944); Dwight D. Eisenhower, Statement by the President Upon Signing a Bill Amending the Tennessee Valley Authority Act, Pub. Papers 566 (Aug. 6, 1959); 11 Op. Off. Legal Counsel 135 (1987). 66. Love v. United States, 108 F.2d 43, 46, 49 (8th Cir. 1939); Levine v. Farley, 107 F.2d 186, 190–91 (D.C. Cir. 1939); Golding v. United States, 78 Ct. Cl. 682, 685 (1934). 67. Ch. 287, § 14, 58 Stat. 387, 390–91. 68. Gerald E. Frug, Does the Constitution Prevent the Discharge of Civil Service Employees?, 124 U. Pa. L. Rev. 942, 976, 983 (1976); Kathleen V. Buffon, Comment, Removal for Cause from the Civil Service: The Problem of Disproportionate Discipline, 28 Am. U. L. Rev. 207, 224 (1979). 69. Richard A. Merrill, Procedures for Adverse Actions against Federal Employees, 59 Va. L. Rev. 196, 236 (1973); Stephen G. Vaskov, Comment, Judicial Review of Dismissals of Civil Service Employees for Off-Duty Misconduct: The Approach of the Federal Circuit, 34 Am. U. L. Rev. 439, 459 (1985). 70. Asher v. Forrestal, 71 F. Supp. 470, 471 (D.D.C. 1947); Culligan v. United States, 107 Ct. Cl. 222, 223 (1946). 71. DeBusk v. United States, 132 Ct. Cl. 790 (1950). See generally Annotation, What Is a “Cause as Will Promote the Effi ciency of the Service,” as a Basis, under 5 U.S.C.S. § 7512, of Adverse Action Against a Preference Eligible Government Employee or His Disbarment for Future Appointment, 25 A.L.R. Fed. 443, 464–65 (1975) (collecting cases holding insubordination sufficient cause for removal). 72. Frug, supra note 68, at 959. 73. For example, Roosevelt signed the legislation that would eventually provide the basis for the decision in INS v. Chadha, 462 U.S. 919 (1983), subjecting the attorney general’s decisions to suspend deportation proceedings to a legislative veto. Alien Registration Act of 1940, ch. 439, § 20, 54 Stat. 670, 672.

478

Notes to Pages 289–95

74. Ch. 11, § 3(c), 55 Stat. 31, 32 (1941). 75. Franklin D. Roosevelt, Memorandum for the Attorney General (Apr. 7, 1941), reprinted in Robert H. Jackson, A Presidential Legal Opinion, 66 Harv. L. Rev. 1353, 1357–59 (1953) (objecting to the legislative veto as a violation of U.S. Const. art. I, § 7). Roosevelt’s rejection of the legislative veto represents a particularly strong defense of the unitary executive in that in issuing this opinion he apparently overruled the position taken by his attorney general. 76. Act of Apr. 4, 1944, ch. 165, § 1, 58 Stat. 189, 190; Act of Jan. 28, 1944, ch. 5, § 1, 58 Stat. 7, 8. 77. 90 Cong. Rec. 6154 (1944). 78. McJimsey, supra note 1, at 296. 79. Franklin D. Roosevelt, Message to the Congress Asking for Quick Action to Stabilize the Economy (Sept. 7, 1942), in 11 Pub. Papers of FDR, supra note 28, at 356, 364.

Case Study 3. The Brownlow Committee and the Reorganization Act of 1939 1. Elena Kagan, Presidential Administration, 114 Harv. L. Rev. 2245, 2275 (2001). 2. S. Rep. No. 75-1236, at 7 (1937). 3. Franklin D. Roosevelt, White House Statement on the Appointment of a Committee to Formulate a Plan for the Reorganization of the Executive Branch of the Government (Mar. 22, 1936), in 5 The Public Papers and Addresses of Franklin D. Roosevelt 144 (Samuel I. Rosenman ed., 1941) [hereinafter Pub. Papers of FDR]. 4. Franklin D. Roosevelt, Letters to the Vice President and the Speaker of the House in Reference to the Foregoing Plan (Mar. 22, 1936), in 5 Pub. Papers of FDR, supra note 3, at 145. 5. George McJimsey, The Presidency of Franklin Delano Roosevelt 172 (2000). 6. Edward S. Corwin, The President as Administrative Chief, 1 J. Pol. 17, 89 (1939); John A. Rohr, Constitutional Legitimacy and the Administrative State: A Reading of the Brownlow Commission Report, in The New Deal and Its Legacy 93, 97 (Robert Eden ed., 1989). It is interesting to note that a contemporary pamphleteer compared Roosevelt and Jackson and found them to be largely similar. Casimir W. Ruskowski, Is Roosevelt an Andrew Jackson? (1939). 7. Rohr, supra note 6, at 94. 8. President’s Comm. on Admin. Mgmt., Administrative Management in the Government of the United States 1 (1937) [hereinafter Brownlow Report] (emphasis added). 9. Id. at 2. 10. McJimsey, supra note 5, at 182. 11. Brownlow Report, supra note 8, at 5–6, 16–20. 12. Id. at 31–32, 40, 53. 13. Id. at 31–42, 45–47. Karl has called the recommendation that the government should return to the department-based organization of 1789 the most important recommendation of the report. Barry D. Karl, The Uneasy State: The United States from 1915 to 1945, at 157 (1983). 14. Brownlow Report, supra note 8, at 15 (citing Woodrow Wilson, Veto Message (May 13, 1920), reprinted in 59 Cong. Rec. 7026, 7026 (1920)). 15. Id. at 22 (citing Springer v. Philippine Islands, 277 U.S. 189, 202–03 (1928)). The comptroller general may have sensed the threat that the Brownlow Committee posed to his position. He initially refused to acknowledge its existence and delayed disbursing funds for several weeks. Barry D. Karl, Executive Reorganization and Reform in the New Deal 164–65 (1963) [hereinafter Karl, Executive Reorganization].

Notes to Pages 295–97

479

16. Brownlow Report, supra note 8, at 5–6, 9–12, 27–30, 32–36. 17. Franklin D. Roosevelt, A Recommendation for Legislation to Reorganize the Executive Branch of the Government (Jan. 12, 1937) [hereinafter Roosevelt, Brownlow Recommendation], in 5 Pub. Papers of FDR, supra note 3, at 668, 668–70, 672–73. 18. Id. at 670–72; see also Franklin D. Roosevelt, Summary of the Report of the Committee on Administrative Management Transmitted with the Preceding Message (Jan. 12, 1937) [hereinafter Roosevelt, Brownlow Summary], in 5 Pub. Papers of FDR, supra note 3, at 674, 678–79. 19. Roosevelt, Brownlow Recommendation, supra note 17, at 671–73 (quoting Brownlow Report, supra note 8, at 52); see also Roosevelt, Brownlow Summary, supra note 18, at 680 (criticizing the comptroller general for his “unconstitutional usurpation of power”). 20. Franklin D. Roosevelt, A “Fireside Chat” Discussing Legislation to be Recommended to the Extraordinary Session of the Congress (Oct. 12, 1937), in 6 Pub. Papers of FDR, supra note 3, at 429, 434. 21. For the bill providing for six additional presidential assistants, see H.R. 7730, 75th Cong. (1937). H.R. Rep. No. 75-1177 (1937) and 81 Cong. Rec. 7701–02 (1937) (passing the bill 260 to 88). For the bill restoring the president’s reorganization authority, see H.R. 8202, 75th Cong. (1937). H.R. Rep. No. 75-1487 (1937) and 81 Cong. Rec. 8874–76 (1937). Two other related bills, H.R. 8276, 75th Cong. (1937) (making the comptroller general subject to presidential supervision while transferring his audit functions to a newly established auditor general), and H.R. 8277, 75th Cong. (1937) (broadening the civil service and replacing the Civil Service Commission with a civil service administrator), were reported out of committee, H.R. Rep. No. 75-1587 (1937) (accompanying H.R. 8277); H.R. Rep. No. 75-1606 (1937) (accompanying H.R. 8276), but were never debated or brought to a vote on the House floor. However, the terms of these latter two bills were incorporated when the House debated the Senate’s version of the bill. 22. A floor amendment to add a legislative veto was defeated sixty-three to 104. 81 Cong. Rec. 8869 (1937). 23. H.R. 8202, 75th Cong. (1937). The House rejected floor amendments to add exemptions for three additional agencies. 81 Cong. Rec. 8666–67 (1937) (Rural Electrification Administration); id. at 8867–68 (Forest Service) (voting thirty-four to 130); id. at 8868–69 (Civil Service Commission). 24. McJimsey, supra note 5, at 182. 25. S. 2970, 75th Cong. (1937). This bill was later superseded by S. 3331, 75th Cong. (1938). 26. S. Rep. No. 75-1236, at 8–9 (1937). 27. 83 Cong. Rec. 3645 (1938) (voting thirty-nine to forty-three). 28. Id. at 3645 (legislative veto), 3818 (Forest Service), 3823–27 (Veterans Administration), 3844–46 (Bureau of Biological Survey and other agencies). The other agencies were the United States Employees’ Compensation Commission, National Mediation Board, Railroad Retirement Board, Bureau of Animal Industry, National Park Service, United States Tariff Commission, Bureau of Reclamation, Bureau of Public Roads, Bureau of Investigation, Soil Conservation Service, Tennessee Valley Authority, Bureau of Chemistry and Soils, and Bureau of Agricultural Economics. 29. Id. at 4204. 30. Karl, Executive Reorganization, supra note 15, at 248–49. 31. 83 Cong. Rec. 4205–07 (1938). 32. Many commentators have argued that it was merely bad fortune that the reorganization plan came up for a vote so soon after the failure of the court packing plan and that under different circumstances the plan would have passed easily. Kenneth S. Davis, FDR: Into the Storm, 1937–1940, at 100 (1993); Karl, Executive Reorganization, supra note 15, at 248–49; William E. Leuchtenburg, Franklin D. Roosevelt and the New Deal, 1932–1940,

480

Notes to Pages 297–304

at 277 (1963); Donald G. Morgan, Congress and the Constitution: A Study of Responsibility 184–85 (1966); Rohr, supra note 6, at 95. Other commentators have suggested that it was no accident that executive reorganization and the court packing plan arose at the same time, arguing that both were, along with the National Resources Planning Board proposal and Roosevelt’s unsuccessful attempt to influence congressional primaries, parts of a larger plan to concentrate power in the president. Ellis W. Hawley, The New Deal State and the Anti-Bureaucratic Tradition, in The New Deal and Its Legacy, supra note 6, at 77, 87–88; Barry D. Karl, Constitution and Central Planning: The Third New Deal Revisited, 1988 Sup. Ct. Rev. 163, 186, 192. We need not resolve the question here, because scholars on both sides of the question agree that the court packing fight all but doomed the reorganization proposal. 33. McJimsey, supra note 5, at 183. 34. 83 Cong. Rec. 4505 (1938) (statement of Rep. Hoffman); see also Morgan, supra note 32, at 192 (noting Roosevelt’s press release questioning the integrity of senators voting against the bill). 35. Franklin D. Roosevelt, The President Refutes Dictatorship Charges Connected with the Pending Reorganization Bill (Mar. 29, 1938), in 7 Pub. Papers of FDR, supra note 3, at 179, 179, 181. 36. 83 Cong. Rec. 4616 (1938) (voting 149 to 191). 37. 83 Cong. Rec. 5123–24 (1938); Leuchtenburg, supra note 32, at 279 (stating that the 204 to 196 vote was the worst defeat Roosevelt ever suffered in the House). 38. Leuchtenburg, supra note 32, at 279. 39. Franklin D. Roosevelt, A Message on the Defeat of the Reorganization Bill (Apr. 9, 1938), in 7 Pub. Papers of FDR, supra note 3, at 206. 40. Ch. 36, §§ 3(b), 5, 53 Stat. 561, 561–62. Although exempt from reorganization, the independent agencies were brought within the president’s budgetary control. Id. § 201, 53 Stat. at 565. 41. The Senate added a crippling amendment by a vote of forty-six to forty-three before presidential promises to Senator Dennis Chavez and an all-night fl ight through a snowstorm by Senator Harry Truman permitted it to be rejected forty-four to forty-six on reconsideration. 42. Exec. Order No. 8248, 3 C.F.R. 576, 577 (1938–43). 43. Kenneth R. Mayer, With the Stroke of a Pen: Executive Orders and Presidential Power 5 (2001). 44. Robert E. Cushman, The Independent Regulatory Commissions (1941). 45. McAllister v. United States, 141 U.S. 174 (1891). 46. Parsons v. United States, 167 U.S. 324 (1897). 47. Shurtleff v. United States, 189 U.S. 311 (1903). 48. Myers v. United States, 272 U.S. 52 (1926). 49. Humphrey’s Ex’r v. United States, 295 U.S. 602 (1935). 50. 462 U.S. 919, 942 n.13 (1983).

Part VII. The Unitary Executive During the Modern Era, 1945–2007 1. Arthur M. Schlesinger Jr., The Imperial Presidency (1973). 2. Martin S. Flaherty, The Most Dangerous Branch, 105 Yale L.J. 1725, 1816–21, 1823–24 (1996); Abner S. Greene, Checks and Balances in an Era of Presidential Lawmaking, 61 U. Chi. L. Rev. 123, 153–95 (1994); Peter L. Strauss, The Place of Agencies in Government: Separation of Powers and the Fourth Branch, 84 Colum. L. Rev. 573 (1984). 3. Lawrence Lessig & Cass R. Sunstein, The President and the Administration, 94 Colum. L. Rev. 1, 93–106 (1994).

Notes to Pages 305–12

481

Chapter 33. Harry S Truman 1. Donald R. McCoy, The Presidency of Harry S. Truman 15, 22, 65 (1984). 2. David McCullough, Truman 348 (1992). 3. McCoy, supra note 1, at 16–19. 4. Id. at 236. 5. Id. at 147, 164, 315. 6. McCullough, supra note 2, at 442, 460, 649, 735. 7. Id. at 226–27, 780, 789, 797. 8. Chester J. Pach Jr. & Elmo Richardson, The Presidency of Dwight D. Eisenhower 17 (1991). 9. McCullough, supra note 2, at 836, 838, 841, 844. 10. Id. at 855. 11. 328 U.S. 303 (1946). For an excellent history of the case, see John Hart Ely, United States v. Lovett: Litigating the Separation of Powers, 10 Harv. C.R.-C.L. L. Rev. 1 (1975). 12. Brief for the Petitioner at 15, 19, 21, 32–48, Lovett, 328 U.S. 303 (1946) (Nos. 809–11). 13. Lovett, 328 U.S. at 307. The House considered refusing to allocate the money to pay Watson, Dodd, and Lovett, but in the end voted ninety-eight to ninety-nine to appropriate the necessary funds. 93 Cong. Rec. 2973–75, 2977, 2987–91 (1947). 14. Interior Department Appropriation Act, ch. 754, 62 Stat. 1112, 1126 (1948). 15. Statement by the President on the Interior Department Appropriation Act, Pub. Papers 390, 390 (June 30, 1948). 16. Temporary Appropriations Act of 1949, ch. 101, 63 Stat. 67. 17. Statement by the President Upon Signing the Temporary Appropriations Bill, Pub. Papers 250 (May 12, 1949). 18. Interior Department Appropriations Act, ch. 680, 63 Stat. 765, 778–779 (1949) (reenacting previous appropriation without requirement that certain officers of the Bureau of Reclamation be engineers with five years of experience); see also Note, Pub. Papers 250 (May 12, 1949). 19. McCullough, supra note 2, at 737, 759–60, 814. 20. Letter from President Truman to the 79th Congress of the United States (May 24, 1945), in H.R. Rep. No. 79-971, at 1, 2 (1945). 21. Ch. 582, § 5, 59 Stat. 613, 615–16; see also H.R. Rep. No. 79-971, at 6, 10–11 (1945); S. Rep. No. 79-638, at 4–5 (1945). 22. Letter from President Truman to the 79th Congress of the United States, supra note 20, at 2. 23. § 6(a), 59 Stat. at 613, 616. The Senate even dallied with shifting to a one-house legislative veto, S. Rep. No. 79-638, at 3, but in the end it backed down and retained the two-house veto. 91 Cong. Rec. 10269–74, 10714 (1945). 24. Act of May 11, 1949, ch. 98, § 2, 63 Stat. 66; Act of Sept. 28, 1951, ch. 434, § 601, 65 Stat. 336, 365; Act of July 14, 1952, ch. 726, § 407, 66 Stat. 606, 625; Act of July 15, 1952, ch. 758, § 1413, 66 Stat. 637, 661. 25. Comm’n on Org. of the Executive Branch of the Gov’t., General Management of the Executive Branch: A Report to the Congress x–xi, 1, 2, 4, 32, 34 (1949). 26. Comm’n on Org. of the Executive Branch of the Gov’t, Regulatory Commissions: A Report to the Congress 5, 12–13 (1949); Comm’n on Org. of the Executive Branch of the Gov’t, Task Force Report on Regulatory Commissions app. N, at viii, 13–14, 31–33 (1949). 27. Letter from Herbert Hoover to Kenneth McKellar, President pro tempore, United States Senate (Jan. 13 1949), in S. Rep. No. 81-232, at 3 (1949). 28. Message from President Harry S. Truman to the Congress (Jan. 17, 1949), in S. Rep. No. 81-232, at 4, 5.

482

Notes to Pages 312–16

29. Letter and Memorandum from Peyton Ford, Assistant to the Attorney General, to John L. McClellan, Chairman of the Senate Committee on Expenditures (Mar. 17, 1949), reprinted in S. Rep. No. 81-232, at 18, 20 (1949). 30. Reorganization Act of 1949, ch. 226, § 6(a), 63 Stat. 203, 205. 31. David E. Lewis, Presidents and the Politics of Agency Design: Political Insulation in the United States Government Bureaucracy 21 (2003) (noting that “after Truman ascended to the White House, his enthusiasm for delegating authority to independent regulatory commissions had waned”). 32. Reorg. Plan No. 6 of 1949, 3 C.F.R. 1001 (1949–53). 33. Reorg. Plan No. 21 of 1950, 3 C.F.R. 1012 (1948–53). 34. Reorg. Plan No. 7 of 1950, H.R. Doc. No. 81-511 (1950) (ICC); Reorg. Plan No. 8 of 1950, 3 C.F.R. 1005 (1949–1953) (FTC); Reorg. Plan No. 9 of 1950, 3 C.F.R. 1005 (1949– 1953) (FPC); Reorg. Plan No. 10 of 1950, 3 C.F.R. 1006 (1948–53) (SEC); Reorg. Plan No. 11 of 1950, H.R. Doc. No. 81-515 (1950) (FCC); Reorg. Plan No. 12 of 1950, H.R. Doc. No. 81-516 (1950) (NLRB); Reorg. Plan No. 13 of 1950, 3 C.F.R. 1006 (1949–53) (Civil Aeronautics Board). 35. 96 Cong. Rec. 6886 (1950) (Senate rejection of Reorganization Plan No. 12 (NLRB)); id. at 7173 (Senate rejection of Reorganization Plan No. 7 (ICC)); id. at 7177 (Senate rejection of Reorganization Plan No. 11 (FCC)). 36. Act of July 5, 1949, ch. 296, 63 Stat. 405, 406. 37. Statement by the President on Government Printing and Binding, Pub. Papers 346, 347 (July 5, 1949). 38. Veto of Bill Relating to Land Acquisition and Disposal Actions by the Army, Navy, Air Force, and Federal Civil Defense Administration, Pub. Papers 280, 282 (May 15, 1951). 39. 97 Cong. Rec. 5434, 5444–45 (1951). 40. Ch. 434, § 601, 65 Stat. 336, 365. 41. Memorandum of Disapproval of Bill Authorizing the Postmaster General to Lease Quarters for Post Office Purposes, Pub. Papers 488, 488 (July 19, 1952). 42. McCoy, supra note 1, at 62, 104, 106, 159, 161. 43. Statement on Signing the Hobbs Bill, Pub. Papers 337 (July 3, 1946); Statement on Signing the Portal-to-Portal Act, Pub. Papers 243 (May 14, 1947). 44. Exec. Order No. 9980, 3 C.F.R. 720 (1943–48). 45. Exec. Order No. 9981, 3 C.F.R. 722 (1943–48). In this second order, Truman also invoked his authority as commander in chief. 46. Exec. Order No. 10308, 3 C.F.R. 837 (1949–53); see also United States v. New Orleans Pub. Serv., Inc., 553 F.2d 459, 466 (5th Cir. 1977) (concluding that Truman issued these orders pursuant to his “war powers”); Contractors Ass’n v. Sec’y of Labor, 442 F.2d 159, 169 (3d Cir. 1971) (concluding that Truman issued these orders pursuant to his “national defense powers,” while referencing several statutory bases). 47. McCoy, supra note 1, at 109. 48. Id. at 290–91. 49. Id. at 896–97, 899. 50. Youngstown Sheet & Tube Co. v. Sawyer, 103 F. Supp. 569 (D.D.C.), aff’d, 343 U.S. 579 (1952). 51. Brief for Petitioner at 96–97, Youngstown Sheet & Tube Co. (Nos. 744 and 745) (citing Myers v. United States, 272 U.S. 52 (1926); Theodore Roosevelt, An Autobiography 388–89 (1913); Charles Thach, The Creation of the Presidency, 1775–1789, chs. 4–5 (1922); The Federalist Nos. 70 and 71; Letter from Alexander Hamilton to George Washington (Sept. 15, 1790), in 4 The Works of Alexander Hamilton 313, 338 (Henry Cabot Lodge ed., 1904)). 52. In re Neagle, 135 U.S. 1, 63–64, 81, 83, 95–96 (1890).

Notes to Pages 316–21

483

53. In re Debs, 158 U.S. 564 (1895). 54. 309 U.S. 517, 525 (1940). 55. 236 U.S. 459, 472–73 (1915). 56. Brief for Petitioner at 98, 103–05, 121, Youngstown Sheet & Tube Co. (Nos. 744 and 745). 57. 343 U.S. at 640–41 (Jackson, J., concurring in the judgment). 58. Id. at 610–11 (Frankfurter, J., concurring). 59. Act of July 15, 1952, ch. 758, § 1413, 66 Stat 637, 661.

Chapter 34. Dwight D. Eisenhower 1. Chester J. Pach Jr. & Elmo Richardson, The Presidency of Dwight D. Eisenhower xii, 41 (1991). 2. Fred I. Greenstein, The Hidden-Hand Presidency: Eisenhower as Leader (1982). 3. Pach & Richardson, supra note 1, at xi, 34, 37, 42. 4. Id. at 29. 5. Stephen E. Ambrose, Eisenhower: Soldier and President 524–25 (1990). 6. Department of Defense Reorganization Act of 1958, Pub. L. No. 85-599, § 3, 72 Stat. 514, 515. 7. Statement by the President upon Signing the Department of Defense Reorganization Act of 1958, Pub. Papers 597, 597 (Aug. 6, 1958). 8. The second Hoover Commission believed that such consolidation of legal services was required to promote efficiency and policy coordination. United States Comm’n on Org. of the Executive Branch of the Gov’t, Task Force Report on Legal Services and Procedures 6, 16–17 (1955). Other aspects of the commission’s report, such as the recommendation that lawyers be covered by a separate civil service system in order to insulate them from politicians and career civil servants, were less favorable to the unitary executive. Id. at 7–9, 12–14. Even with such protections, Congress rejected the proposal because of concerns that the centralization of legal services would limit congressional ability to oversee agencies. 9. 347 U.S. 83 (1954). On Eisenhower’s role in drafting the brief, see Victor H. Kramer, President Eisenhower’s Handwritten Changes in the Brief on Relief in the School Segregation Cases: Minding the Whys and Wherefores, 9 Const. Commentary 223 (1992). 10. The President’s News Conference, Pub. Papers 489, 491 (May 19, 1954). 11. Pach & Richardson, supra note 1, at 142. 12. Id. at 153. 13. Ambrose, supra note 5, at 447. 14. Pach & Richardson, supra note 1, at 154. 15. Id. at 157. 16. Ambrose, supra note 5, at 448. 17. Exec. Order No. 10479, 3 C.F.R. 961 (1949–53) (invoking the president’s authority under the Act of May 3, 1945, ch. 106, § 214, 59 Stat. 106, 134); Exec. Order No. 10577, pmbl. & § 4.2, 3 C.F.R. 218, 218, 220–21 (1954–58) (invoking the president’s authority under the 5 U.S.C. § 631; the Civil Service Act of 1883, ch. 27, 22 Stat. 403; and 3 U.S.C. § 301); see also Contractors Ass’n of E. Pa v. Sec’y of Labor, 442 F.2d 159, 170 (3d Cir. 1971). 18. Gerald E. Frug, Does the Constitution Prevent the Discharge of Civil Service Employees?, 124 U. Pa. L. Rev. 942, 947–72 (1976). 19. Lloyd–La Follette Act of 1912, ch. 389, § 6, 37 Stat. 539, 555. 20. Veterans’ Preference Act of 1944, ch. 359, § 14, 58 Stat. 387, 390. 21. Levy v. Woods, 171 F.2d 145, 145–46 (D.C. Cir. 1948); Asher v. Forrestal, 71 F. Supp. 470, 471 (D.D.C. 1947); Culligan v. United States, 107 Ct. Cl. 222, 223 (1946). 22. 182 F.2d 46, 58 (D.C. Cir. 1950).

484

Notes to Pages 321–26

23. Act of June 22, 1948, ch. 604, 62 Stat. 575, 575. 24. The seminal case is Wieman v. Updegraff, 344 U.S. 183, 191–92 (1952). See also Pickering v. Bd. of Educ., 391 U.S. 563, 573–75 (1968); Slochower v. Bd. of Educ., 350 U.S. 551, 559 (1956); Bailey v. Richardson, 182 F.2d 46, 69 (D.C. Cir. 1950) (Edgerton, J., dissenting), aff’d mem. by an equally divided Court, 341 U.S. 918 (1951). 25. Frug, supra note 18, at 972–74. For example, it does not bar the limits on federal employees’ political activities imposed by the Hatch Act. Civil Serv. Comm’n v. Letter Carriers, 413 U.S. 548, 558 (1973); United Pub. Workers v. Mitchell, 330 U.S. 75, 80–81 (1946). 26. Pickering, 391 U.S. at 573 n.5; Slochower, 350 U.S. at 559. 27. 367 U.S. 886, 896, 899 (1961). 28. 48 U.S. Civ. Serv. Comm’n Ann. Rep. 41 (1931). 29. Comm’n on Org. of the Executive Branch of the Gov’t, Task Force Report on Personnel and Civil Service 96 (1955). 30. The second Hoover Commission called for greater coordination of government operations and recommended the transfer of all of the adjudicative functions of the independent regulatory commissions to a newly created Administrative Court. Comm’n on Org. of the Executive Branch of Gov’t, Task Force Report on Legal Services and Procedure 239–56, 269–82 (1955). 31. Emmette S. Redford, The President and the Regulatory Commissions (1960). 32. Emmette S. Redford, The President and the Regulatory Commissions, 44 Tex. L. Rev. 288, 307–12 (1965). 33. One of Eisenhower’s solicitors general observed that he knew of no case in which the administration “ha[d] precluded an independent agency from presenting its position,” even when that position confl icted with that of the administration. Robert L. Stern, The Solicitor General’s Offi ce and Administrative Agency Litigation, 46 A.B.A. J. 154, 157 (1960). 34. Letter from Dwight D. Eisenhower to Myron Wiener (Dec. 10, 1953), quoted in Wiener v. United States, 357 U.S. 349, 350 (1958). 35. Wiener v. United States, 142 F. Supp. 910, 910 (Ct. Cl. 1956), rev’d, 357 U.S. 349 (1958) (citing Shurtleff v. United States, 189 U.S. 311, 315–16 (1903)). 36. Brief for the United States at 15–16, Wiener (No. 52). 37. Humphrey’s Ex’r v. United States, 295 U.S. 602 (1935). 38. Shurtleff v. United States, 189 U.S. 311 (1903). 39. War Claims Act of 1948, ch. 826, § 2(d), 62 Stat. 1240, 1241. The fi ling deadline was eventually postponed until March 31, 1952. Act of Apr. 5, 1951, ch. 27, 65 Stat. 28; Act of May 27, 1949, ch. 145, 63 Stat. 112. 40. Wiener, 357 U.S. at 350, 352–54. 41. A parallel claim fi led by Commissioner Lusk was settled without litigation. Lusk v. United States, 173 Ct. Cl. 291, 294–95 (1965). Eisenhower eventually abolished the War Claims Commission in 1954. Reorg. Plan No. 1 of 1954, § 4(a), 3 C.F.R. 442, 443 (1954–58). 42. Pach & Richardson, supra note 1, at 50. 43. Comm’n on Org. of the Executive Branch of the Gov’t, Real Property Management 35–36 (1955); see also Comm’n on Org. of the Executive Branch of the Gov’t, Task Force Report on Real Property Management 92–94, 99 (1955). 44. H.R. 6342, 83d Cong. § 41(e) (1954). 45. Memorandum from J. Lee Rankin to Senator Knowland (Apr. 8, 1954), reprinted in 100 Cong. Rec. 4879 (1954). 46. 100 Cong. Rec. 10017 (1954). 47. Veto Message (May 25, 1954), reprinted in 100 Cong. Rec. 7135 (1954). 48. Act of July 22, 1954, ch. 560, § 411, 68 Stat. 518, 519; see also Watershed Protection and Flood Prevention Act of 1954, ch. 656, § 2, 68 Stat. 666, 666 (applying a similar provision to “works of improvement”).

Notes to Pages 326–30

485

49. 41 Op. Att’y Gen. 300, 305 (1957). 50. Ch. 157, § 638, 69 Stat. 301, 321. 51. Special Message to the Congress upon Signing the Department of Defense Appropriation Act, Pub. Papers 688, 689–89 (July 13, 1955). 52. INS v. Chadha, 462 U.S. 919 (1983). 53. 41 Op. Att’y Gen. 230, 231 (1955). 54. Porter Hardy Jr., No. B-124985, 1955 WL 1368, 1955 WL 2073 (Comp. Gen. Aug. 17, 1955). 55. Veto of Bill Authorizing Certain Construction at Military Installations, Pub. Papers 596, 596–97 (July 16, 1956). Section 301 of the bill made the authorizations for the Talos missile program contingent upon an agreement between the secretary of defense and the Armed Services Committees of each house. Section 419 imposed a similar requirement on contracts for the construction and acquisition of housing for military families. 56. Act of Aug. 3, 1956, ch. 939, § 419, 70 Stat. 991, 1018–19. 57. Ch. 7, § 4(c), 70 Stat. 1044, 1045. 58. Statement by the President Upon Signing the Small Reclamation Projects Act of 1956, Pub. Papers 648, 649–50 (Aug. 6, 1956). 59. Act of June 5, 1957, Pub. L. No. 85-47, sec. (b), § 4(d), 71 Stat. 48, 49. 60. Reorganization Act of 1957, Pub. L. No. 85-286, 71 Stat. 611; Defense Reorganization Act of 1958, Pub. L. No. 85-599, § 3, 72 Stat. 514, 514–16; Public Buildings Act of 1959, Pub. L. No. 86-249, § 7, 73 Stat. 479, 480; Act of July 12, 1960, Pub L. No. 86-626, 74 Stat. 425, 431; Act of Sept. 8, 1960, Pub. L. No. 86-722, 74 Stat. 821, 826. 61. Statement by the President Upon Signing a Bill Amending the Tennessee Valley Authority Act, Pub. Papers 566 (Aug. 6, 1959) (objecting to Act of Aug. 14, 1959, Pub. L. No. 86-157, 73 Stat. 338). 62. Supplemental Appropriation Act of 1953, ch. 14, § 1413, 66 Stat. 661 (1952). 63. Statement by the President Upon Signing Bill Providing for the Admission of Refugees, Pub. Papers 579, 579 (July 14, 1960). 64. Military Construction Act of 1951, ch. 434, § 601, 65 Stat. 336, 365. 65. 41 Op. Att’y Gen. 300 (1957). 66. The Budget of the United States Government for the Fiscal Year Ending June 30, 1961, H.R. Doc. No. 86-255 pt. I, at M18 (1960). 67. Act of June 8, 1960, Pub. L. No. 86-500, § 2662, 74 Stat. 166, 186–87; see also H.R. Rep. No. 86-1307, at 43–45 (1960). It was no coincidence that the vast majority of the legislative veto provisions that Eisenhower blocked were aimed at the acquisition and disposition of military facilities. As Steven Calabresi has noted, the incentives that members of Congress face leave them little choice but to try to protect the interests of their local constituencies even when those actions would be ill advised as a matter of national policy. Steven G. Calabresi, Some Normative Arguments for the Unitary Executive, 48 Ark. L. Rev. 23, 34–35, 58–70 (1995). Thus it is unsurprising that Congress has most strenuously attempted to inject itself into the execution of the laws in those situations where the consequences for local constituencies were the greatest. As Joseph Harris noted, “The requirement of advance approval by congressional subcommittees enables members of Congress to resist the closing of military installations in their districts, and it cannot be doubted that the effect is to force the retention of installations that in the interest of economy should be closed.” Joseph P. Harris, Congressional Control of Administration 223 (1964). 68. S.J. Res. 102, 82d Cong. (1951); see also 97 Cong. Rec. 11361 (1951) (statement of Sen. Bricker introducing S.J. Res. 102). 69. Pach & Richardson, supra note 1, at 60, 247–49. 70. Id. at 70. 71. Ambrose, supra note 5, at 364–65 (emphasis in original). 72. Id. at 366.

486

Notes to Pages 331–35 Chapter 35. John F. Kennedy

1. James N. Giglio, The Presidency of John F. Kennedy 29 (1991). 2. John F. Kennedy, When the Executive Fails to Lead, The Reporter, Sept. 18, 1958, at 14. 3. Inaugural Address, Pub. Papers 1, 3 (Jan. 20, 1961). 4. Giglio, supra note 1, at 21. 5. Id. at 21, 30. 6. Herbert S. Parmet, JFK: The Presidency of John F. Kennedy 204 (1983). 7. Exec. Order No. 10925, pmbl., § 301(1), 3 C.F.R. 448, 448, 450 (1959–63); Exec. Order No. 11114, pmbl., § 301(1), 3 C.F.R. 774, 774, 776–77 (1959–63). 8. 40 Comp. Gen. 592, 593 (1961). 9. Validity of Executive Order Prohibiting Government Contractors from Discriminating in Employment Practices on Grounds of Race, Color, Religion, or National Origin, 42 Op. Att’y Gen. 97, 106–07 (1961). 10. Parmet, supra note 6, at 261. 11. Giglio, supra note 1, at 179–80. 12. Exec. Order No. 10924, 26 Fed. Reg. 1789 (Mar. 2, 1961); Kenneth R. Mayer, With the Stroke of a Pen: Executive Orders and Presidential Power 55 (2001). 13. Special Message to the Congress on Civil Rights, Pub. Papers 221, 229 (Feb. 28, 1963). 14. Simkins v. Moses H. Cone Mem’l Hosp., 323 F.2d 959, 962 (4th Cir. 1963). 15. Deak v. Pace, 185 F.2d 997, 999–1000 (D.C. Cir. 1950); Murphy v. Kelly, 259 F. Supp. 914, 917 (D. Mass.) (inquiring whether removal was arbitrary or capricious), aff’d mem., 368 F.2d 232 (1st Cir. 1966); Greenway v. United States, 163 Ct. Cl. 72, 81 (1963) (ruling that removed employee is entitled to “honest consideration based on the merits”); Gadsden v. United States, 78 F. Supp. 126, 127–28 (Ct. Cl. 1948) (indicating that a removed employee has the right to the “honest judgment” of the removing officer and that the decision must not be “arbitrary or capricious” or rendered in “bad faith”). But see Vigil v. Post Off. Dep’t, 406 F.2d 921, 924–25 (10th Cir. 1969) (noting that subjecting day-to-day operations of an executive agency to judicial review would be inconsistent with good administration); Coledanchise v. Macy, 265 F. Supp. 154, 157–58, 162 (D.S.C. 1967) (noting that removals of federal employees because of inefficiency is beyond review by the courts and that courts should not be permitted to substitute their judgment for that of the executive branch). 16. Gerald E. Frug, Does the Constitution Prevent the Discharge of Civil Service Employees?, 124 U. Pa. L. Rev. 942, 970–89 (1976). 17. Leonard v. Douglas, 321 F.2d 749, 751–52 (D.C. Cir. 1963). 18. Exec. Order No. 10988, 3 C.F.R. 527 (1959–63). The executive order largely adopted the recommendations of a presidential task force. President’s Task Force on EmployeeMgmt. Relations in the Fed. Serv., A Policy for Employee-Management Cooperation in the Federal Service 24 (1951). 19. Kathleen V. Buffon, Comment, Removal for Cause from the Civil Service: The Problem of Disproportionate Discipline, 28 Am. U. L. Rev. 207, 212 (1979). 20. Exec. Order No. 10939, 3 C.F.R. 469 (1959–63). 21. Staff of the Senate Comm. on the Judiciary, 86th Cong., 2d Sess., Report on Regulatory Agencies to the President-Elect 4, 24–34, 37–39, 43–44, 48, 58, 65–66, 77, 80, 82, 85–87 (Comm. Print 1960) (written by James Landis). 22. James M. Landis, The Administrative Process 1–2 (1938). 23. The plan also provided that “each Commissioner shall be removable by the President for inefficiency, neglect of duty, or malfeasance in office.” Reorg. Plan No. 7 of 1961, § 102(a), 3 C.F.R. 875, 876 (1959–63). 24. Special Message to Congress on the Regulatory Agencies, Pub. Papers 267, 268 (Apr. 13, 1961).

Notes to Pages 335–41

487

25. Brief for the United States at 10, St. Regis Paper Co. v. United States, 368 U.S. 208 (1961) (No. 47). 26. For examples of legislative vetoes tolerated by Kennedy, see Arms Control and Disarmament Act, Pub. L. No. 87-297, § 47, 75 Stat. 631, 638 (1961); Act of Aug. 9, 1962, Pub. L. No. 87-578, 76 Stat. 335, 338; Food and Agricultural Act of 1962, Pub. L. No. 87-703, § 103, 76 Stat. 605, 608; Act of Oct. 11, 1962, Pub. L. No. 87-796, 76 Stat. 904, 905. Kennedy also failed to object to a provision requiring that the president appoint members of Congress as delegates to certain trade negotiations. Trade Expansion Act of 1962, Pub. L. No. 87-794, § 243, 76 Stat. 872, 878. 27. Special Message to the Congress on Agriculture, Pub. Papers 192, 196 (Mar. 16, 1961). Even more remarkably, Kennedy endorsed private control of executive action by proposing that the agricultural controls not be put into effect until approved by a two-thirds majority of authorized farmers. Id. at 195. Congress did not enact the proposal. 28. Pub. L. No. 87-872, 76 Stat. 1163, 1164. 29. Memorandum on Informing Congressional Committees of Changes Involving Foreign Economic Assistance Funds, Pub. Papers 6 (Jan. 9, 1963).

Chapter 36. Lyndon B. Johnson 1. Robert Dallek, Flawed Giant 76 (1998). 2. Vaughn Davis Bornet, The Presidency of Lyndon B. Johnson 25 (1983). 3. Dallek, supra note 1, at 138, 158–60. 4. Bornet, supra note 2, at 42–43. 5. Dallek, supra note 1, at 229. 6. Bornet, supra note 2, at 191, 196–97. 7. Id. at 207–08. 8. Id. at 220, 243. 9. Id. at 247–48, 351. 10. Department of Agriculture and Related Agencies Appropriation Act, Pub. L. No. 89-556, 80 Stat. 689, 690 (1966). 11. Statement by the President Upon Signing the Department of Agriculture and Related Agencies Appropriation Bill, 2 Pub. Papers 980, 981 (Sept. 8, 1966). 12. Act of Nov. 8, 1966, Pub. L. No. 89-797, § 304, 80 Stat. 1479, 1497. 13. Statement by the President Expressing Disapproval of Appropriation Act Provision Relating to Export Control of Hides, Skins, and Leather, 2 Pub. Papers 1351, 1351 (Nov. 8, 1966). 14. Pub. L. No. 90-110, §§ 809, 810(a), 1001, 81 Stat. 279, 309–10. 15. Statement by the President Upon Signing the Military Construction Authorization Act, 1968, 2 Pub. Papers 935, 935 (Oct. 21, 1967). 16. Exec. Order No. 11246, 3 C.F.R. 339 (1964–65). 17. As we noted earlier, the jurisdictional basis of the nondiscrimination executive orders has traditionally been construed as resting on the executive power vested in the president by Article II. Contractors Ass’n v. Sec’y of Labor, 442 F.2d 159, 171 (3d Cir. 1971) (holding that even if Executive Order 11246 was not statutorily authorized, it falls within the president’s implied authority to act in the absence of a contrary statute). Some courts nonetheless persisted in viewing Executive Order 11246 as being based on the procurement statute. United States v. New Orleans Pub. Serv., Inc., 553 F.2d 459, 466–67 (5th Cir. 1977), vacated and remanded on other grounds, 436 U.S. 942 (1978); N.E. Constr. Co. v. Romney, 485 F.2d 752, 760–61 (D.C. Cir. 1973); Contractors Ass’n, 442 F.2d at 171; Legal Aid Soc’y v. Brennan, 381 F. Supp. 125, 130 (N.D. Cal. 1974); United States v. Papermakers Local 189, 282 F. Supp. 39, 43 (E.D. La. 1968); Weiner v. Cuyahoga Cmty. Coll. Dist., 249 N.E.2d 907, 909–10 (Ohio 1969). But see Cramer v.

488

Notes to Pages 342–47

Va. Commonwealth Univ., 415 F. Supp. 673, 680 (E.D. Va. 1976) (holding that the order was foreclosed by statute). 18. James E. Jones Jr., The Bugaboo of Employment Quotas, 1970 Wis. L. Rev. 341, 388–94; Earl M. Leiken, Preferential Treatment in the Skilled Building Trades: An Analysis of the Philadelphia Plan, 56 Cornell L. Rev. 84, 102–09 (1970). 19. Interview with Jim Tozzi, former OMB, OIRA Deputy Administrator (June 14, 1983), cited in Erik D. Olson, The Quiet Shift of Power: Offi ce of Management & Budget Supervision of Environmental Protection Agency Rulemaking Under Executive Order 12,291, 4 Va. J. Nat. Resources L. 1, 9 & n.19 (1984). 20. David E. Lewis, Presidents and the Politics of Agency Design: Political Insulation in the United States Government Bureaucracy 34 (2003). 21. Remarks at a Meeting with the Heads of Independent Regulatory Agencies, 1 Pub. Papers 18 (Dec. 3, 1963). 22. Circular No. A-67 (Bur. of Budget Aug. 28, 1964). 23. Dallek, supra note 1, at 134, 228, 313, 423, 444. 24. Pub. L. No. 88-257, 77 Stat. 844, 847 (1963). 25. Statement by the President Upon Approving the Public Works Appropriations Act, 1 Pub. Papers 104, 104 & note (Dec. 31, 1963). 26. Pub. L. No. 88-638, 78 Stat. 1035. 27. Statement by the President Upon Signing Bill Extending the Agricultural Trade and Assistance Act, 2 Pub. Papers 1249, 1250 (Oct. 8, 1964). 28. Central Intelligence Agency Retirement Act of 1964, Pub. L. No. 88-643, § 201(a), 78 Stat. 1043, 1043. 29. Statement by the President Upon Approving Bill Authorizing a Retirement System for Certain Employees of the Central Intelligence Agency, 2 Pub. Papers 1336 (Oct. 14, 1964). 30 Pub. L. No. 88-379, § 200, 78 Stat. 329, 331. 31. Statement by the President Upon Signing the Water Resources Research Act, 2 Pub. Papers 861, 862 (July 17, 1964). The provision was deleted by the Act of Apr. 19, 1966, Pub. L. No. 89-404, 80 Stat. 129. 32. Veto Message (June 5, 1965), reprinted in 111 Cong. Rec. 12639 (1965). 33. Pub. L. No. 89-298, § 201(a), 79 Stat 1073, 1073 (1965). 34. Statement by the President Upon Signing the Omnibus Rivers and Harbors Act, 2 Pub. Papers 1082, 1082–83 (Oct. 26, 1965). 35. Act of Nov. 8, 1966, Pub. L. No. 89-796, 80 Stat. 1478 (amending the Food and Agriculture Act of 1962, Pub. L. No. 87-703, § 102(c), 76 Stat. 605, 608). 36. Statement by the President Upon Signing Bill Amending the Bankhead-Jones Farm Tenant Act, 2 Pub. Papers 1354, 1354 (Nov. 8, 1966). 37. Veto of the Military Authorization Bill, 2 Pub. Papers 907, 907–08 (Aug. 21, 1965). 38. Military Construction Authorization Act, Pub. L. No. 89-188, 79 Stat. 793, 818–19 (1965); Statement by the President Upon Signing the Military Construction Authorization Act, 2 Pub. Papers 1003 (Sept. 16, 1965). 39. Military Construction Authorization Act, Pub. L. No. 89-568, § 613(2), 80 Stat. 739, 757 (1966). 40. Statement by the President Upon Signing the Military Construction Authorization Bill, 2 Pub. Papers 1008, 1008 (Sept. 12, 1966).

Chapter 37. Richard M. Nixon 1. Melvin Small, The Presidency of Richard Nixon 41–43, 45 (1999). 2. Geoffrey P. Miller, From Compromise to Confrontation: Separation of Powers in the Reagan Era, 57 Geo. Wash. L. Rev. 401, 401 (1989) (“The Nixon years were characterized by aggressive assertions of presidential power vis-à-vis Congress”).

Notes to Pages 347–50

489

3. Veto of a Bill Requiring Senate Confi rmation of the Director and Deputy Director of the Office of Management and Budget, Pub. Papers 539, 539–40 (May 18, 1973). 4. Although the Senate voted sixty-two to twenty-two to override the veto, 119 Cong. Rec. 16507 (1973), the House failed to follow suit, voting 236 to 178 to sustain the veto, id. at 16,773. 5. Act of Mar. 2, 1974, Pub. L. No. 93-250, 88 Stat. 11. 6. Small, supra note 1, at 49–50. 7. David E. Lewis, Presidents and the Politics of Agency Design: Political Insulation in the United States Government Bureaucracy 271 (2003). 8. Christopher S. Kelley, The Unitary Executive and the Presidential Signing Statement 78–79 (2003) (unpublished Ph.D. dissertation, Miami University), available at http:// www.ohiolink.edu/etd/send-pdf.cgi?miami1057716977. 9. Richard P. Nathan, The Plot That Failed: Nixon and the Administrative Presidency (1975). 10. Reorg. Plan No. 3 of 1970, 3 C.F.R. 1072 (1966–70), reprinted in 42 U.S.C. § 4321 (1994), and 84 Stat. 2086 (1970). 11. Letter from OMB Director George P. Shultz to EPA Administrator William D. Ruckelshaus (May 21, 1971), quoted in 2 Nat’l Research Council, Decision Making in the Environmental Protection Agency 86 (1977). 12. Memorandum from George P. Shultz, Agency Regulations, Standards, and Guidelines Pertaining to Environmental Quality, Consumer Protection, and Occupational and Public Health and Safety (Oct. 5, 1971). 13. But see Harold H. Bruff, Presidential Power and Administrative Rulemaking, 88 Yale L.J. 451, 466 (1978) (describing OMB intervention in NHTSA rulemaking). 14. Legislative Coordination and Clearance, OMB Circular A-19 (July 31, 1972), revised (Sept. 29, 1979). The current version is available at http://www.whitehouse.gov/omb/ circulars/a019/a019.html (last accessed Aug. 10, 2007). 15. John Quarles, Cleaning Up America: An Insider’s View of the Environmental Protection Agency 119 (1976); Implementation of the Clean Air Act Amendment of 1970—Part I: Hearings Before the Subcomm. on Air and Water Pollution of the Senate Comm. on Public Works, 92d Cong. 325 (1972) (statement of EPA Administrator William Ruckelshaus). 16. Robert V. Percival, Presidential Management of the Administrative State: The NotSo-Unitary Executive, 51 Duke L.J. 963, 988–89 & n.154 (2001). 17. Exec. Order No. 11491, § 22, 3 C.F.R. 191, 204 (1971), reprinted in 5 U.S.C. § 7101. 18. Exec. Order No. 11787, 3 C.F.R. 876 (1971–75). 19. Arnett v. Kennedy, 416 U.S. 134, 151 (1974). Arnett followed from the Court’s decisions in Board of Regents v. Roth, 408 U.S. 564 (1972), and Perry v. Sinderman, 408 U.S. 593 (1972), regarding the dismissal of state employees. 20. Gerald E. Frug, Does the Constitution Prevent the Discharge of Civil Service Employees?, 124 U. Pa. L. Rev. 942, 977–89 (1976). As Frug notes, both Roth and Sinderman involved teachers who alleged that they were removed for their exercise of their constitutional rights to free speech. As a result, these cases could have been resolved under Wieman and Pickering without resorting to judicial innovation. Id. at 977–78. 21. INS v. Chadha, 462 U.S. 919, 942 n.13 (1983). 22. Exec. Order No. 11478, §§ 1–2, 3 C.F.R. 133, 134 (1969). 23. Ernst-Theodore Arndt, 52 Comp. Gen. 145 (172); Alton Box Bd. Co., 51 Comp. Gen. 551 (1972); Sher and Harris, 50 Comp. Gen. 844 (1971); Apache Flooring Co., 50 Comp. Gen. 627 (1971); Sec’y of Labor, 49 Comp. Gen. 59 (1969); Rep. William C. Cramer, 48 Comp. Gen. 326 (1968); Rep. William C. Cramer, 47 Comp. Gen. 666 (1968). 24. Contractors Ass’n of E. Pa. v. Sec’y of Labor, 442 F.2d 159, 165 (3d Cir. 1971). 25. 49 Comp. Gen. 59 (1969).

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Notes to Pages 350–52

26. 42 Op. Att’y Gen. 405 (1969); Office of the Solicitor, U.S. Department of Labor, Legal Memorandum: Authority Under Executive Order 11246 (July 15, 1969), reprinted in The Philadelphia Plan—Congressional Oversight of Administrative Agencies (The Department of Labor): Hearings on the Philadelphia Plan and S. 931 Before the Subcomm. on Separation of Powers of the Senate Comm. on the Judiciary, 91st Cong., 255–74 (1969) [hereinafter Senate Philadelphia Plan Hearings]. The confl ict between the comptroller general and the attorney general raised the interesting question of “whether the Executive branch of the Government has the right to act upon its own interpretations of the laws enacted by Congress, and to expend and obligate funds approved by Congress in a manner which the [Comptroller General’s] Office, as the designated agent of the Congress has found to be contrary to law.” Philadelphia Plan Hearings, supra, at 139, 147 (Staats statement). Clearly, under the unitary executive theory, subordinate executive officials are responsible only to the President for their execution of the laws and not to the comptroller general of Congress. 27. 115 Cong. Rec. 40921 (1969) (House vote rejecting the rider by a vote of 208 to 156); id. at 40,749 (Senate vote rejecting the rider by a vote of thirty-nine to twenty-nine). 28. President’s Advisory Council on Executive Organization, A New Regulatory Framework: Report on Selected Independent Regulatory Agencies 13–15 (1971) [hereinafter Ash Council Report]. 29. Id. at 16. 30. Consumer Product Safety Act, Pub. L. No. 92-573, § 27(k)(1), 86 Stat. 1207, 1229 (1972); Amtrak Improvement Act of 1973, Pub. L. No. 93-146, sec. 12, § 601(b)(1), 87 Stat. 548, 553; Regional Rail Reorganization Act of 1973, Pub. L. No. 93-236, § 202(f), 87 Stat. 985, 991–92. 31. Trans-Alaska Oil Pipeline Authorization Act, Pub. L. No. 93-153, § 408, 87 Stat. 576, 591–92 (1973). Nixon approved of this provision in return for the authorization of the Trans-Alaska Oil Pipeline. Neal Devins, Unitariness and Independence: Solicitor General Control over Independent Agency Litigation, 82 Cal. L. Rev. 255, 270–71 (1994). 32. Small, supra note 1, at 196. 33. Memorandum from President Richard M. Nixon to Secretary of Agriculture Hardin (Mar. 27, 1969), quoted in H. Lee Watson, Comment, Congress Steps Out: A Look at Congressional Control of the Executive, 63 Cal. L. Rev. 983, 1029 (1975); Second Supplemental Appropriation Act, 1972, Pub. Papers 627, 627 (May 28, 1972); Statement About Signing the Public Buildings Amendments of 1972, Pub. Papers 686, 687 (June 17, 1972) (approving of Public Buildings Amendments of 1972, Pub. L. No. 92-313, § 7(a), 86 Stat. 216, 221). 34. Pub. L. No. 92-306, 86 Stat. 163, 175. 35. Statement About Signing the Second Supplemental Appropriation Act, 1972, supra note 33, at 627. 36. Act of June 14, 1972, Pub. L. No. 92-313, § 5(f), 86 Stat. 216, 220. 37. Statement About Signing the Public Buildings Amendments of 1972, Pub. Papers 686, 687 (June 17, 1972). 38. §§ 5(f), 7, 86 Stat. at 220, 221. 39. Statement About Signing the Public Buildings Amendments of 1972, supra note 37, at 687–88. 40. Veto of the War Powers Resolution, Pub. Papers 893, 893, 895 (Oct. 24, 1973) (objecting that the War Powers Resolution, Pub. L. No. 93-148, 87 Stat. 555 (1973), violated the Constitution). Congress overrode Nixon’s veto. 119 Cong. Rec. 36198, 36221–22 (1973). 41. Act of Mar. 24, 1972, Pub. L. No. 92-261, § 5, 86 Stat 103, 107; Act of Oct. 21, 1972, Pub. L. No. 92-520, sec. 3, § 18(d)(4), 86 Stat. 1019, 1021; Emergency Petroleum Allocation Act of 1973, Pub. L. No. 93-159, 87 Stat. 627. Nixon even proposed a

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legislative veto provision, but he eventually vetoed the underlying legislation on other grounds. Watson, supra note 33, at 1016 n.160. See generally id. at 1009, 1016 n.160, 1026 n.215, 1029. 42. S. 2803, 93d Cong. § 2(c) (1973). 43. Removing Politics from the Administration of Justice: Hearings Before the Subcomm. on Separation of Powers of the Senate Comm. on the Judiciary on S. 2803 and S. 2978, 93d Cong. 84, 86, 89 (1974) (statement of Robert G. Dixon Jr., assistant attorney general, Office of Legal Counsel). 44. Id. at 153 (statement of former attorney general Nicholas Katzenbach); id. at 209, 211 (testimony of former special prosecutor Archibald Cox). 45. Nomination of Elliot L. Richardson to Be Attorney General: Hearings Before the Senate Comm. on the Judiciary, 93d Cong. 5, 132–33, 139 (1973). 46. Office of Watergate Special Prosecution Force, 38 Fed. Reg. 14688 (June 4, 1973). 47. Special Prosecutor: Hearings Before the Senate Comm. on the Judiciary, 93d Cong. 451 (1973) (statement of Acting Attorney General Robert Bork). 48. Special Prosecutor and Watergate Grand Jury Legislation: Hearings on H.J. Res. 784 and H.R. 10937 Before the Subcomm. on Criminal Justice of the House Comm. on the Judiciary, 93d Cong. 253 (1973) (statement of Acting Attorney General Robert Bork). 49. The Future of the Independent Counsel Act: Hearings Before the Senate Comm. on Governmental Affairs, 106th Cong. 29 (1999) (testimony of former attorney general Griffi n B. Bell); id. at 57 (testimony of former independent counsel Joseph E. diGenova), id. at 148 (testimony of Clinton counsel Robert S. Bennett), id. at 245 (testimony of Attorney General Janet Reno), id. at 425 (testimony of Independent Counsel Kenneth W. Starr). 50. Small, supra note 1, at 57. 51. Id. at 237–38, 256, 273.

Chapter 38. Gerald R. Ford 1. John Robert Greene, The Presidency of Gerald R. Ford 24–25, 28–29 (1995). 2. Id. at 35, 39. 3. Id. at 45, 52. 4. Arthur M. Schlesinger Jr., The Imperial Presidency (1989). 5. Greene, supra note 1, at 54–55, 58. 6. Id. at 88–89. 7. Id. at 148, 150. 8. Id. at 160–62 9. Id. at 183. 10. Harold H. Bruff, Presidential Power and Administrative Rulemaking, 88 Yale L.J. 451, 465 n.67 (1978); Frank B. Cross, Executive Orders 12,291 and 12,498: A Test Case in Presidential Control of Executive Agencies, 4 J.L. & Pol. 483, 494 (1988). 11. Exec. Order No., 11821, 3 C.F.R. 926 (1971–75); OMB Circular A-107 (Jan. 28, 1975); see also Exec. Order No. 11949, 3 C.F.R. 161 (1976) (extending Exec. Order No. 11821). 12. Some scholars have concluded that this program improved the economic analysis and influenced the decisions of some agencies. ABA Comm’n on Law & the Econ., Federal Regulation: Roads to Reform 85 (1979); Robert V. Percival, Checks Without Balance: Executive Offi ce Oversight of the Environmental Protection Agency, Law & Contemp. Probs., Autumn 1991, at 127, 140; Charles W. Vernon III, Note, The Infl ation Impact Statement Program: An Assessment of the First Two Years, 26 Am. U. L. Rev. 1138, 1160–61 (1977). Others have disagreed, arguing that the infl ation impact statements amounted to little more than “post-hoc justifications for decisions already reached.” James T. O’Reilly & Phyllis E. Brown, In Search of Excellence: A Prescription for the Future of

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Notes to Pages 359–361

OMB Oversight of Rules, 39 Admin. L. Rev. 421, 427 (1987); see also Harold H. Bruff, Presidential Power and Administrative Rulemaking, 88 Yale L.J. 451, 547 (1978); Angel M. Moreno, Presidential Coordination of the Independent Regulatory Process, 8 Admin. L.J. Am. U. 461, 489 (1994). 13. Christopher S. Kelley, The Unitary Executive and the Presidential Signing Statement 73–75 (2003) (unpublished Ph.D. dissertation, Miami University), available at http://www. ohiolink.edu/etd/send-pdf.cgi?miami1057716977; Frank Easterbrook, Presidential Lawmaking Powers: Vetoes, Line Item Vetoes, Signing Statements, Executive Orders, and Delegations of Rulemaking Authority, 68 Wash. U. L.Q. 533, 537 (1990). 14. Elena Kagan, Presidential Administration, 114 Harv. L. Rev. 2276 (2001). 15. Provision for Special Prosecutor: Hearings Before the House Comm. on the Judiciary, 94th Cong., 2d Sess. 29–30 (1976); accord id. at 33–34 (arguing that the institution of special prosecutors operating outside of presidential control was of “questionable constitutionality”). 16. Watergate Reorganization and Reform Act of 1975: Hearings Before the Senate Comm. on Government Operations, 94th Cong. 3 (1975). 17. Testimony on S. 495 Before the Senate Comm. on the Judiciary (May 29, 1976), quoted in Terry Eastland, Ethics, Politics and the Independent Counsel 53 (1989). 18. H.R. Doc. No. 94-550, at 2 (1976). 19. 122 Cong. Rec. 23075 (1976). 20. Ken Gormley, An Original Model of the Independent Counsel Statute, 97 Mich. L. Rev. 601, 622–23 (1998). 21. David E. Lewis, Presidents and the Politics of Agency Design: Political Insulation in the United States Government Bureaucracy, 1946–1977, at 70–71 (2003). 22. Statement on the Education Amendments of 1974, Pub. Papers 35, 37 (Aug. 21, 1974). 23. Veto of Atomic Energy Act Amendments, Pub. Papers 294, 294 (Oct. 12, 1974) (objecting that the legislative veto violated Article I, section 7, of the Constitution). As Dixon has noted, this was “one of the more unusual versions of a legislative veto.” Under the vetoed provisions, the act would not become effective until after the Joint Committee on Atomic Energy had submitted its evaluation of a particular study and Congress had adopted a concurrent resolution. “In effect, Congress here was reversing the normal legislative process and asking for presidential approval of substantive legislation before Congress was ready to commit itself to support the legislation.” Robert G. Dixon Jr., The Congressional Veto and Separation of Powers: The Executive on a Leash?, 56 N.C. L. Rev. 423, 430 n.24 (1978). President Ford suggested that the bill was “merely the expression of an intent to legislate” rather than actual legislation. Veto of Atomic Energy Act Amendments, supra, at 294. 24. Statement on Signing a Bill Amending Child Support Provisions of the Social Security Act, 2 Pub. Papers 1148, 1149 (Aug. 11, 1975); Statement on Signing the Amtrak Improvement Act of 1975, 1 Pub. Papers 724, 724 (May 26, 1975). Ford nonetheless signed the Amtrak Improvement Act of 1975, Pub. L. No. 94-25, sec. 8, § 404(c)(3), 89 Stat. 90, 91, “because the Nation needs the important passenger rail service it will provide.” Statement on Signing the Amtrak Improvement Act of 1975, supra, at 724. 25. Statement on Signing a Bill Amending Child Support Provisions of the Social Security Act, supra note 24, at 1149. 26. Congressional Review of Administration Rulemaking: Hearings on H.R. 3658, H.R. 8231, and Related Bills Before the Subcomm. on Administrative Law and Governmental Relations of the House Comm. on the Judiciary, 94th Cong., 1st Sess. 373 (1975); Congressional Oversight of Executive Agreements—1975: Hearings on S. 632 and S. 1251 Before the Subcomm. on Separation of Powers of the Senate Comm. on the Judiciary, 94th Cong., 1st Sess. 167, 173–74, 183–87 (1975); Improving Congressional Oversight of

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Federal Regulatory Agencies: Hearings on S. 2258, S. 2716, S. 2812, S. 2878, S. 2903, S. 2925, S. 3318, and S. 3428 Before the Senate Comm. on Government Operations, 94th Cong., 2d Sess. 80–81, 124 (1976); Congressional Review of International Agreements: Hearings on H.R. 4438 Before the Subcomm. on International Security and Scientific Affairs of the House Comm. on International Relations, 94th Cong., 2d Sess. 182 (1976); Symposium, Oversight and Review of Agency Decisionmaking Part II, Morning Session, 28 Admin. L. Rev. 661, 684–95, 700–01 (1976) (remarks of Antonin Scalia). 27. H.R. 12048, 94th Cong., 2d Sess. (1976). 28. Statement on Signing the Department of Defense Appropriation Act of 1976, 1 Pub. Papers 241, 242 (Feb. 10, 1976); Remarks Upon Vetoing the Hatch Act Amendments Bill, 2 Pub. Papers 1114 (Apr. 12, 1976); Veto of the Foreign Assistance Bill, 2 Pub. Papers 1481, 1482 (May 7, 1976); Statement on Signing the Federal Election Campaign Act Amendments of 1976, 2 Pub. Papers 1529, 1530 (May 11, 1976); Statement on Signing the International Security Assistance and Arms Export Control Act of 1976, 2 Pub. Papers 1936, 1937 (July 1, 1976); Veto of the Federal Fire Prevention and Control Bill, 2 Pub. Papers 1984 (July 7, 1976); Veto of the Federal Insecticide, Fungicide, and Rodenticide Extension Bill, 3 Pub. Papers 2144 (Aug. 14, 1976); Statement on Signing the National Emergencies Act, 3 Pub. Papers 2249 (Sept. 14, 1976); Memorandum of Disapproval of the International Navigational Rules Act of 1976, 3 Pub. Papers 2481 (Oct. 10, 1976); Statement on Signing the Veterans’ Education and Employment Assistance Act of 1976, 3 Pub. Papers 2538, 2539 (Oct. 15, 1976); Memorandum of Disapproval of the Agricultural Resources Conservation Bill, 3 Pub. Papers 2583 (Oct. 20, 1976). Ford’s attack on the legislative veto occurred at a time when the House had passed a proposal to subject all agency rules to a legislative veto. 122 Cong. Rec. 31668 (1976). 29. Statement on Signing the Department of Defense Appropriation Act of 1976, supra note 28, at 242. 30. Statement on Signing the International Security Assistance and Arms Export Control Act of 1976, supra note 28, at 1937; see also Statement on Signing the National Emergencies Act, supra note 28, at 2249 (“Such provisions are contrary to the general constitutional principle of separation of powers whereby Congress enacts laws but the President and the agencies of government execute them.”). 31. Statement on Signing the Federal Election Campaign Act Amendments of 1976, supra note 28, at 1530 (“direct[ing] the Attorney General to challenge the constitutionality of [the legislative veto] at the earliest possible opportunity”); Statement on Signing the International Security Assistance and Arms Export Control Act of 1976, supra note 28, at 1937 (reserving his right to challenge the constitutionality of a legislative veto provision); Statement on Signing the National Emergencies Act, supra note 28, at 2249 (noting that the attorney general was challenging the constitutionality of the legislative veto in the Federal Election Campaign Act). Despite its stated intentions, the Ford Administration’s brief in Buckley v. Valeo, 424 U.S. 1 (1976), chose to portray the Federal Election Commission as a legislative agency and to argue that as a legislative agency, it could not constitutionally exercise any executive functions. Brief for the Attorney General as Appellee and for the United States as Amicus Curiae at 110–20, Buckley (No. 75-436). This position necessarily forced the Ford administration to forgo any challenges to the legislative veto, since any vetoes over the Commission’s actions could not be cast as an attempt by Congress to control an executive officer or as a method by which Congress could change the law without presidential participation. Id. at 111–12. In accordance with the administration’s position, the Supreme Court did not reach the issues surrounding the legislative veto. 424 U.S. at 140 n. 176 (per curiam). But see id. at 284–85, 285–86 (White, J., dissenting) (defending the constitutionality of the legislative veto). The Ford administration did intervene as a plaintiff in a suit brought by former attorney general Ramsey Clark challenging the constitutionality of the legislative

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veto. This case, however, was dismissed as unripe. Clark v. Valeo, 559 F.2d 642, 647 (D.C. Cir. 1977) (en banc), aff’d sub nom. Carl v. Kimmitt, 431 U.S. 950 (1977).

Chapter 39. Jimmy Carter 1. In fact, Carter has subsequently indicated that he actively sought to reduce the imperial status of the presidency. Jimmy Carter, Keeping Faith 27 (1982). 2. Burton I. Kaufman, The Presidency of Jimmy Carter 27 (1993). 3. Id. at 65. 4. Energy and National Goals: Address to the Nation, 2 Pub. Papers 1235, 1237 (July 15, 1979). 5. Kaufman, supra note 2, at 37, 146. 6. Id. at 47, 63, 79, 145. 7. Griffi n B. Bell & Ronald J. Ostrow, Taking Care of the Law 28 (1982). 8. 272 U.S. 52 (1926). 9. 1 Op. Off. Legal Counsel 75, 75–76 (1977) (alterations in original) (citation omitted) (quoting Ponzi v. Fessenden, 258 U.S. 254, 262 (1921)). 10. Id. at 77. See generally Terry Eastland, Ethics, Politics, and the Independent Counsel 43–44 (1989). 11. Pub. L. No. 95-521, sec. 601, § 596(a)(1), 92 Stat. 1824, 1872. 12. Ethics in Government Act Amendments of 1982, Pub. L. No. 97-409, sec. 5(d), § 596(a)(1), 96 Stat. 2039, 2042. 13. Humphrey’s Ex’r v. United States, 295 U.S. 602 (1935). 14. Special Prosecutor Legislation: Hearings Before the Subcomm. on Criminal Justice of the House Comm. on the Judiciary, 95th Cong. 19 (1977) (testimony of John Harmon). 15. § 596, 92 Stat. at 1869. 16. S. Rep. No. 97-496, at 5 (1982), reprinted in 1982 U.S.C.C.A.N. 3537, 3541. 17. The Future of the Independent Counsel Act: Hearings Before the Senate Comm. on Governmental Affairs, 106th Cong. 28–30 (1999) (testimony of former attorney general Griffi n B. Bell); Benjamin R. Civiletti, Post-Watergate Legislation in Retrospect, 34 Sw. L.J. 1043, 1052–56 (1981); A Roundtable Discussion on the Independent Counsel Statute, 49 Mercer L. Rev. 457, 465–65 (1998) (comments of former attorney general Griffi n B. Bell). 18. Ethics in Government Act of 1978: Remarks on Signing S. 555 Into Law, 2 Pub. Papers 1854 (Oct. 26, 1978); Ethics in Government: Message to the Congress, 1 Pub. Papers 786, 788 (May 3, 1977). 19. Public Offi cials Integrity Act of 1977; Blind Trusts and Other Confl icts of Interest Matters: Hearings Before the Senate Comm. on Governmental Affairs, 95th Cong. 15–17 (1977). 20. Pub. L. No. 95-452, §§ 3(b), 5(a)–(b), 92 Stat. 1101, 1102–03. 21. 1 Op. Off. Legal Counsel 16, 17–18 (1977) (citing Myers v. United States, 272 U.S. 52, 163–64 (1926); Congress Constr. Corp. v. United States, 314 F.2d 527, 530–32 (Ct. Cl. 1963); Wiener v. United States, 357 U.S. 349 (1958); and Humphrey’s Ex’r v. United States, 295 U.S. 602 (1935)). 22. Charles J. Williams III, Comment, The New Separation of Powers Jurisprudence and the Controller General: Does He “Execute the Law” Under the Federal Employees’ Retirement Act?, 9 Geo. Mason L. Rev. 35, 41 (1986) (citing H.R. Rep. No. 95-584, at 12 (1977)). 23. Pub. L. No. 95-454, 92 Stat. 1111. 24. Exec. Order No. 12107, 3 C.F.R. 264 (1978). 25. S. Rep. No. 95-969, at 55 (1978), reprinted in 1978 U.S.C.C.A.N. 2723, 2777; Brewer v. U.S. Postal Serv., 647 F.2d 1093, 1097 (Ct. Cl. 1981).

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26. 416 U.S. 134 (1974). 27. Pub. L. No. 95-454, §§ 101, 204, 92 Stat. 1111, 1115–18, 1136, 1143–44 (codified at 5 U.S.C. § 2302(a)(2)(B)(i), 2302(b)(1)–(3) & (6)–(7), 2303(a)(2), 7511(b), 7513(a), 7703(c)). 28. § 202, 92 Stat. at 1122 (codified at 5 U.S.C. §§ 1202(d), 1204). 29. Letter from John Harmon, Assistant Attorney General, Office of Legal Counsel, to Sen. Abraham Ribicoff, Chairman of the Senate Committee on Governmental Affairs 6 (June 14, 1978), quoted in Douglas W. Kmiec, OLC’s Opinion Writing Function: The Legal Adhesive for a Unitary Executive, 15 Cardozo L. Rev. 337, 340 (1993). 30. Veto of the Sikes Act Amendments of 1978: Message to the House of Representatives Returning H.R. 10882 Without Approval, 2 Pub. Papers 1250, 1250 (July 10, 1978). 31. Act of Aug. 15, 1979, Pub. L. No. 96-60, § 108, 93 Stat. 395, 397. 32. Department of State, International Communication Agency, and Board for International Broadcasting Appropriations Bill: Statement on Signing H.R. 3363 Into Law, 2 Pub. Papers 1434, 1434 (Aug. 15, 1979). 33. 126 Cong. Rec. 21515–16, 28513 (1980). 34. Regents of Univ. of Cal. v. Bakke, 438 U.S. 265 (1978). 35. Bell & Ostrow, supra note 7, at 24–32. 36. 4A Op. Off. Legal Counsel 233, 234 (1980). 37. Exec. Order No. 12146, 3 C.F.R. 409, 410 (1979). 38. For a summary of President Carter’s positions on legislative vetoes, see Peter E. Quint, The Separation of Powers Under Carter, 62 Tex. L. Rev. 785, 829–31 (1984). For lists of President Carter’s signing statements opposing the legislative veto, see William D. Popkin, Judicial Use of Presidential Legislative History: A Critique, 66 Ind. L.J. 699, 701 n.7, 718–19 (1991); Christopher N. May, Presidential Defi ance of “Unconstitutional” Laws: Reviving the Royal Prerogative, 21 Hastings Const. L.Q. 865, 934–35 (1994). 39. International Security Assistance Act of 1977: Statement on Signing H.R. 6884 Into Law, 2 Pub. Papers 1431, 1432 (Aug. 5, 1977). 40. 462 U.S. 919 (1983). 41. Presidential War Powers Bill: Statement on Signing H.R. 7738 Into Law, 2 Pub. Papers 2186, 2187 (Dec. 28, 1977) (emphasis added). 42. Nuclear Non-Proliferation Act of 1978: Statement on Signing H.R. 8638 Into Law, 1 Pub. Papers 500, 502 (Mar. 10, 1978); International Navigational Rules Act of 1977: Statement on Signing H.R. 186 Into Law, 2 Pub. Papers 1374, 1375 (July 28, 1977). 43. Letter from Griffi n Bell to President Carter (Jan. 31, 1977), reprinted in H.R. Rep. No. 95-105, at 10–11 (1977), and in 1977 U.S.C.C.A.N. 41, 49–51; Letter from John Harmon to Sen. Abraham Ribicoff (Feb. 14, 1977); Letter from John Harmon to Rep. Joshua Eilberg (Apr. 1, 1977). 44. Legislative Vetoes: Message to the Congress, 1 Pub. Papers 1146, 1147–49 (June 21, 1978). 45. Pub. L. No. 9-17, § 2, 91 Stat. 29, 29 (codified as amended at 5 U.S.C. § 901). See 43 Op. Att’y Gen. 71 (1977). 46. Louis Fisher, The Legislative Veto: Invalidated, It Survives, Law & Contemp. Probs., Autumn 1993, at 273, 285. 47. Veto of the Navajo and Hopi Relocation Bill: Memorandum of Disapproval of H.R. 11092, 2 Pub. Papers 1925 (Nov. 2, 1978); Veto of Legislation Requiring a Study of Health Effects of Dioxin Exposure: Message to the Senate Returning S. 2096 Without Approval, 1 Pub. Papers 4 (Jan. 2, 1980). 48. Federal Insecticide, Fungicide and Rodenticide Act Extension: Statement on Signing H.R. 7018 Into Law, 3 Pub. Papers 2814, 2815 (Dec. 17, 1980); International Security and Development Cooperation Act of 1980: Statement on Signing H.R. 6942 Into Law, 3 Pub. Papers 2813 (Dec. 16, 1980); National Historic Preservation Act Amendments of 1980,

496

Notes to Pages 370–72

Statement on Signing H.R. 5496 Into Law, 3 Pub. Papers 2802, 2803 (Dec. 12, 1980); Coastal Zone Management Improvement Act of 1980: Statement on Signing S. 2622 Into Law, 3 Pub. Papers 2335, 2335 (Oct. 18, 1980); Marine Protection, Research, and Sanctuaries Appropriations Bill: Statement on Signing S. 1140 Into Law, 2 Pub. Papers 1592, 1592 (Aug. 29, 1980); Civil Rights of Institutionalized Persons Act: Statement on Signing H.R. 10 Into Law, 1 Pub. Papers 965 (May 23, 1980); International Development and Food Assistance Act of 1978: Statement on Signing H.R. 12222 Into Law, 2 Pub. Papers 1721, 1721 (Oct. 6, 1978); Department of State, International Communication Agency, and Board for International Broadcasting Appropriations Bill: Statement on Signing H.R. 3363 Into Law, supra note 32, at 1434–35; National Parks and Recreation Act of 1978: Statement on Signing S. 791 Into Law, 2 Pub. Papers 1999, 2000 (Nov. 10, 1978); Amtrak Improvement Act of 1978: Statement on Signing S. 3040 Into Law, 2 Pub. Papers 1718, 1718 (Oct. 5, 1978); Outer Continental Shelf Lands Act Amendments of 1978: Statement on Signing S. 9 Into Law, 2 Pub. Papers 1530, 1531 (Sept. 18, 1978); see also National Parks and Recreation Act Amendments: Statement on Signing H.R. 3757 Into Law, 1 Pub. Papers 432, 433 (Mar. 5, 1980) (instructing the secretary of the interior to regard the committee veto “as advisory only”). 49. Marine Protection, Research, and Sanctuaries Appropriations Bill, supra note 48, at 1592; Coastal Zone Management Improvement Act of 1980, supra note 48, at 2335; Federal Insecticide, Fungicide and Rodenticide Act Extension, supra note 48, at 2815. 50. Brief of the Appellees at 26 n.11, Nixon v. Adm’r of Gen. Servs., 433 U.S. 425 (1977) (No. 75-1605). 51. 433 U.S. at 444–45. 52. National Parks and Recreation Act of 1978, supra note 48, at 2000. 53. Additions to the National Wilderness Preservation System: Hearings Before the Subcomm. on Public Lands of the House Comm. on Interior and Insular Affairs, 96th Cong. 244–45 (1979). 54. Compare Chadha v. INS, 634 F.2d 408, 415 (9th Cir. 1980), aff’d, 462 U.S. 919 (1983) (striking down legislative veto), and McCorkle v. United States, 559 F.2d 1258, 1262 (4th Cir. 1977) (same), with Atkins v. United States, 556 F.2d 1028, 1063 (Ct. Cl. 1977) (upholding legislative veto). 55. Legislative Vetoes: Message to Congress, supra note 44, at 1147; Federal Trade Commission Improvement Acts of 1980: Statement on Signing H.R. 2313 Into Law, 2 Pub. Papers 982, 983 (May 28, 1980). 56. Chadha v. INS, 634 F.2d 408, 415 (9th Cir. 1980), aff’d, 462 U.S. 919, 959 (1983). 57. Chadha v. Immigration and Naturalization Service: Statement on the Ninth Circuit Court of Appeals Decision, 3 Pub. Papers 2836 (Dec. 24, 1980). 58. 43 Op. Att’y Gen. 231, 232, 239, 241–42 (1980). 59. Letter from Benjamin R. Civiletti to Sen. Max Baucus (July 30, 1980), reprinted in Constitutionality of GAO’s Bid Protest Function: Hearings Before a Subcomm. of the House Comm. on Government Operations, 99th Cong. 745 (1985). 60. 45 Fed. Reg. 22,634, 22,742, 23,602, 27,880 (Apr. 3, 7, 24, 1980) (codified at 45 C.F.R. §§ 100d, 134, 161c, 161g (1980)). 61. 126 Cong. Rec. 19312 (1980) (reporting the House enactment of the Levitas amendment to H.R. 7584, 96th Cong., (1980)); id. at 20507 (House enactment of Levitas amendment to H.R. 7591, 96th Cong. (1980)). 62. 4B Op. Off. Legal Counsel 731, 733–34 (1980). 63. A Review of the Operation and Effectiveness of the War Powers Resolution: Hearings Before the Senate Comm. on Foreign Relations, 95th Cong. 322 (1977). 64. Exec. Order No. 12044, pmbl., §§ 2(a), 3, 3 C.F.R. 152, 152, 159 (1979); see also Harold H. Bruff, Presidential Power and Administrative Rulemaking, 88 Yale L.J. 451, 465 & n.69 (1978).

Notes to Pages 372–74

497

65. The initial draft of Executive Order 12044 was ambiguous as to whether it applied to independent agencies, and the notice accompanying it sought public comment about whether it should be so applied. 42 Fed. Reg. 59,740 (Nov. 19, 1977). Carter was apparently advised that he had the authority to subject the independent agencies to the order. Peter L. Strauss, The Place of Agencies in Government: Separation of Powers and the Fourth Branch, 84 Colum. L. Rev. 573, 592–93 n.20 (1984); see also Bruff, supra note 64, at 499; ABA Comm’n on Law & the Econ., Federal Regulation: Roads to Reform 85 (1979). 66. 43 Fed. Reg. 12,670 (Mar. 24, 1978). 67. Improving Government Regulations: Letter to the Heads of Independent Regulatory Agencies, 1 Pub. Papers 563, 564 (Mar. 23, 1978). 68. Memorandum for the Heads of Executive Departments and Agencies, Subject: Strengthening Regulatory Management, 2 Pub. Papers 1905, 1905 (Oct. 31, 1978). 69. OMB Circular A-19 (Sept. 20, 1979). 70. Pub. L. No. 96-354, 94 Stat. 1164 (1980). 71. Pub. L. No. 96-51, 94 Stat. 2812 (1980). This office was to become a key bulwark of the unitary executive during Reagan years. 72. Exec. Order No. 12092, 3 C.F.R. 249 (1979), revoked by Exec. Order No. 12288, 3 C.F.R. 125 (1982). 73. AFL-CIO v. Kahn, 618 F.2d 784, 784–85 (D.C. Cir. 1979) (en banc). 74. Exec. Order No. 12044, § 3(a) & (b), 3 C.F.R. at 152, 154 (1979); Memorandum from Wayne G. Grandquist, Associate OMB Director for Management and Regulatory Policy, to the Heads of Departments and Agencies, Regulatory Analysis (Nov. 21, 1978), cited in Harold H. Bruff, Presidential Management of Agency Rulemaking, 57 Geo. Wash. L. Rev. 533, 548 (1989). 75. Lawrence J. White, Reforming Regulation: Processes and Problems 21–22 (1981); Frank B. Cross, Executive Orders 12,291 and 12,498: A Test Case in Presidential Control of Executive Agencies, 4 J.L. & Pol. 483, 495 (1988); Richard M. Neustadt, The Administration’s Regulatory Reform Program: An Overview, 32 Admin. L. Rev. 129, 141–42 (1980); Paul R. Verkuil, Jawboning Administrative Agencies: Ex Parte Contacts by the White House, 80 Colum. L. Rev. 943, 949 (1980). Carter also exerted his authority by denying procurement contracts to companies that failed to follow “voluntary” wage and price guidelines. Exec. Order No. 12092, 3 C.F.R. 249 (1979), revoked by Exec. Order No. 12288, 3 C.F.R. 125 (1982). Other similar steps followed. The D.C. Circuit eventually upheld Carter’s actions as an exercise of his powers under the general procurement statutes. AFL-CIO v. Kahn, 618 F.2d 784, 784–85 (D.C. Cir. 1979) (en banc). Although this conclusion was quite a stretch, in the end it demonstrates that Carter’s imposition of wage and price controls was an exercise of statutory authority and not an exercise of the president’s power to control the execution of the laws. Quint, supra note 38, at 791–98. 76. 453 U.S. 654 (1981). 77. Youngstown Sheet & Tube Co. v. Sawyer (Steel Seizure Case), 343 U.S. 579 (1952).

Chapter 40. Ronald Reagan 1. Geoffrey P. Miller, From Compromise to Confrontation: Separation of Powers in the Reagan Era, 57 Geo. Wash. L. Rev. 401, 410–12 (1989); Morton Rosenberg, Congress’s Prerogative over Agencies and Agency Decisionmakers: The Rise and Demise of the Reagan Administration’s Theory of the Unitary Executive, 57 Geo. Wash. L. Rev. 627, 628–34 (1989); Peter M. Shane, Independent Policymaking and Presidential Power: A Constitutional Analysis, 57 Geo. Wash. L. Rev. 596, 596–97 (1989). 2. Charles Fried, Order and Law: Arguing the Reagan Revolution—A Firsthand Account 133 (1991).

498

Notes to Pages 375–77

3. Nelson Lund, Lawyers and the Defense of the Presidency, 1995 BYU L. Rev. 17, 38 (quoting William French Smith, Law and Justice in the Reagan Administration 222 (1991)); see also Miller, supra note 1, at 401–02 (“In the Reagan years, the picture was mixed, with a resurgent and aggressive presidency but with Congress not relinquishing the gains it had made.”). 4. Gary Lawson, The Rise and Rise of the Administrative State, 107 Harv. L. Rev. 1231, 1245–46 (1994); Lund, supra note 3, at 42. But see infra note 13 and accompanying text (noting that Reagan pocket vetoed the Whistleblower Protection Act of 1988 in part to protect the unitariness of the executive). 5. Edmund Morris, Dutch: A Memoir of Ronald Reagan 420–21 (1999). 6. Id. at 462, 63, 620–22, 659. 7. The statute creating the Commission was silent about removals and established the Commission “in the executive branch of the Government.” Civil Rights Act of 1957, Pub. L. No. 85-315, § 101(a), 71 Stat. 634, 634. For a full discussion of the debate over the commission’s supposed “independence,” see Jonathan L. Entin, The Removal Power and the Federal Defi cit: Form, Substance, and Administrative Independence, 75 Ky. L.J. 699, 770–76 (1987). 8. For other examples of removals instigated by Reagan, see 6 Op. Off. Legal Counsel 1 (1982); 5 Op Off. Legal Counsel 337 (1981). 9. A district court enjoined Reagan from removing the Civil Rights Commissioners. On appeal, the D.C. Circuit subsequently vacated the injunction as moot, since the statutory authorization for the Commission had expired. Berry v. Reagan, 32 Empl. Prac. Dec. (CCH) ¶ 33,898 (D.D.C. Nov. 14, 1983), vacated as moot, 732 F.2d 949 (D.C. Cir. 1983) (per curiam). Congress later reconstituted the Commission, this time requiring specific cause for the removal of its members. United States Commission on Civil Rights Act of 1983, Pub. L. No. 98-183, § 2(d), 97 Stat. 1301, 1301; see also Borders v. Reagan, 518 F. Supp. 250, 268 (D.D.C. 1981) (blocking Reagan’s attempted removal of a member of the D.C. Judicial Nomination Commission). But see Kalaris v. Donovan, 697 F.2d 376, 401–02 (D.C. Cir 1983) (upholding removals); Nat’l Treasury Employees Union v. Reagan, 663 F.2d 239, 252–53 (D.C. Cir. 1981) (same). 10. Letter to the Speaker of the House and the President Pro Tempore of the Senate on the Inspector General Appointees of Certain Executive Agencies, Pub. Papers 24, 25 (Jan. 20, 1981). 11. S. 508, 100th Cong., § 1211 (1988), reprinted in 134 Cong. Rec. 19974 (1988). 12. 5 U.S.C. §§ 1212, 1217. 13. Memorandum of Disapproval on a Bill Concerning Whistleblower Protection, 2 Pub. Papers 1391, 1392 (Oct. 26, 1988). 14. Ethics in Government Act Amendments, Pub. L. No. 94-409, 96 Stat. 2039 (1983). 15. Independent Counsel Amendments Act of 1987: Hearings Before the House Comm. on the Judiciary, 100th Cong. 429–33 (1987) [hereinafter 1987 House Committee Hearings] quoting Oversight of the Independent Counsel Statute: Hearings Before the Senate Comm. on Governmental Affairs, 100th Cong. 8–9 (1987). 16. Letter from Assistant Attorney General Charles Cooper to Leon Silverman (Mar. 25, 1987), reprinted in 1987 House Committee Hearings, supra note 15, at 100. 17. Statement on Signing the Independent Counsel Reauthorization Act of 1987, 2 Pub. Papers 1524, 1524 (Dec. 15, 1987). 18. Brief for the United States as Amicus Curiae Supporting Appellees at 5–6, Morrison v. Olson, 487 U.S. 654 (1988) (No. 87-1279) (citing Myers v. United States, 272 U.S. 52, 151 (1926)). 19. Humphrey’s Ex’r v. United States, 295 U.S. 602 (1935). 20. Wiener v. United States, 357 U.S. 349 (1958).

Notes to Pages 377–79

499

21. Brief for the United States as Amicus Curiae Supporting Appellees, supra note 18, at 29. 22. Morrison, 487 U.S. at 688–91. 23. Id. at 705–08 (Scalia, J., dissenting). Interestingly, subsequent court decisions have indicated that holdover officials, such as Humphrey, do not fall within the scope of the “for cause” removal provision. Swan v. Clinton, 100 F.3d 973, 988 (D.C. Cir. 1996). It is thus now clear that under modern doctrine Humphrey’s Executor would have been decided the other way. 24. Lawrence Lessig & Cass R. Sunstein, The President and the Administration, 94 Colum. L. Rev. 1, 110–11 (1994); Peter L. Strauss, The Place of Agencies in Government: Separation of Powers and the Fourth Branch, 84 Colum. L. Rev. 573, 615 (1984); cf. 1 Kenneth Culp Davis & Richard J. Pierce Jr., Administrative Law Treatise § 2.5, at 46 (3d ed. 1994) (pointing to criticism of Humphrey’s Executor in Freytag v. Commissioner, 501 U.S. 868 (1991), as suggesting that the issue has not yet been resolved); Laurence H. Tribe, American Constitutional Law § 4–10, at 254 n.45 (2d ed. 1988) (noting the lack of clarity as to what may constitute proper cause for removal). 25. 128 Cong. Rec. 5116, 5297 (1982). 26. Statement on Signing International Security and Foreign Assistance Legislation, Pub. Papers 1202, 1203 (Dec. 29, 1981); Statement on Signing a Bill Concerning the Establishment of Alcohol Traffic Safety Programs, 2 Pub. Papers 1378 (Oct. 25, 1982); Statement on Signing the Union Station Redevelopment Act of 1981, Pub. Papers 1207 (Dec. 29, 1981); Statement on Signing a Student Aid Bill, 2 Pub. Papers 1312 (Oct. 14, 1982); Statement on Signing a Bill Amending the Indian Judgment Funds Act, 1 Pub. Papers 44 (Jan. 12, 1983). 27. Statement on Signing International Security and Foreign Assistance Legislation, supra note 26, at 1203; see also Statement on Signing a Bill Concerning the Establishment of Alcohol Traffic Safety Programs, supra note 26, at 1378 (objecting that the legislative veto “unconstitutionally involves the Congress in the executive functions of promulgating regulations under authority previously conferred, in violation of the principle of separation of powers”); 5 Op. Off. Legal Counsel 294, 297, 301–03 (1981). The Reagan administration did occasionally allow a legislative veto to be enacted without registering any protest. Act of Dec. 21, 1982, Pub. L. No. 97-337, 96 Stat. 1830, 1870 (extending the legislative veto contained in the FTC Improvements Act of 1990). 28. Brief for the Immigration and Naturalization Service at 44–56, INS v. Chadha, 462 U.S. 919 (1983) (No. 80-1832). 29. 462 U.S. 919 (1983). 30. Statement on Signing the Land Remote-Sensing Commercialization Act of 1984, 2 Pub. Papers 1052, 1053 (July 17, 1984); Statement on Signing the Department of Housing and Urban Development—Independent Agencies Appropriation Act, 1985, 2 Pub. Papers 1056, 1057 (July 18, 1984); Statement on Signing a Nuclear Regulatory Commission Appropriations Bill, 2 Pub. Papers 1686 (Oct. 30, 1984); Statement on Signing the Department of Housing and Urban Development—Independent Agencies Appropriation Act, 1986, 2 Pub. Papers 1419, 1420 (Nov. 25, 1985); Statement on Signing the National Defense Authorization Act for Fiscal Year 1987, 2 Pub. Papers 1557, 1558 (Nov. 14, 1986); Statement on Signing the Federal Triangle Development Act, 2 Pub. Papers 973, 973–74 (Aug. 22, 1987); Statement on Signing the Department of the Interior and Related Agencies Appropriations Act, Fiscal Year 1989, 2 Pub. Papers 1228 (Sept. 27, 1988); Statement on Signing the Indian Self-Determination and Education Assistance Act Amendments of 1988, 2 Pub. Papers 1284, 1285–86 (Oct. 5, 1988); Statement on Signing a Bill Providing for the Leasing of Property to the District of Columbia Chapter of the American National Red Cross, 2 Pub. Papers 1485 (Nov. 8, 1988).

500

Notes to Pages 379–81

31. 463 U.S. at 942 n.13. 32. Louis Fisher, The Legislative Veto: Invalidated, It Survives, 56 Law & Contemp. Probs. 273, 286–90 (1993). 33. City of Alexandria v. United States, 737 F.2d 1022, 1026 (Fed. Cir. 1984); Louis Fisher, Separation of Power: Interpretation outside the Courts, 18 Pepp. L. Rev. 57, 86 (1991). 34. Statement on Signing the Bill Increasing the Public Debt Limit and Enacting the Balanced Budget and Emergency Deficit Control Act of 1985, 2 Pub. Papers 1471, 1471–72 (Dec. 12, 1985). 35. Brief for the United States at 13–17, Bowsher v. Synar, 478 U.S. 714 (1986) (Nos. 85–1377, 85–1378, 85–1379). These arguments, of course, ultimately prevailed. Bowsher, 478 U.S. at 726–27. 36. 478 U.S. at 719 n.1. 37. CICA was enacted as part of the Deficit Reduction Act of 1984, Pub. L. No. 98-369, tit. VII, 98 Stat. 494, 1199 (codified as amended at 16 U.S.C. §§ 1274–1276). 38. Statement on Signing the Deficit Reduction Act of 1984, 2 Pub. Papers 1053, 1053 (July 18, 1984). 39. H.R. Rep. No. 99-138, at 308 (1985). 40. Ameron, Inc. v. U.S. Army Corps of Eng’rs, 787 F.2d 875, 881–87 (3d Cir. 1986), cert. dismissed, 488 U.S. 918 (1988); Lear Siegler, Inc. v. Lehman, 842 F.2d 1102, 1109–12 (9th Cir. 1988); Parola v. Weinberger, 848 F.2d 956, 959–60 (9th Cir. 1988); Universal Shipping Co. v. United States, 652 F. Supp. 668, 674–75 (D.D.C. 1987), vacated as moot, No. 87-5120 (D.C. Cir. Jan. 9, 1989). 41. 6 Op. Off. Legal Counsel 47, 61–62 (1982); 6 Op. Off. Legal Counsel 180, 187–88 (1982). 42. Edwin Meese III, Address Before the Federal Bar Association Annual Banquet (Sept. 13, 1985), in 32 Fed. B. News & J. 406, 406–08 (1985). 43. Exec. Order No. 12291, 3 C.F.R. 127 (1981). 44. Christopher C. DeMuth & Douglas H. Ginsburg, White House Review of Agency Rulemaking, 99 Harv. L. Rev. 1075, 1085 (1986). 45. Kenneth R. Mayer, With the Stroke of a Pen: Executive Orders and Presidential Power 128 (2001). 46. C. Boyden Gray, Special Interest Regulation and the Separation of Powers, in The Fettered Presidency: Legal Constraints on the Executive Branch 221 (L. Gordon Crovitz & Jeremy A. Rabkin eds., 1989). 47. Exec. Order No. 12498, 3 C.F.R. 323 (1985). 48. The initial draft included the independent agencies within its scope. Memorandum from U.S. Dept. of Justice, Office of Legal Counsel, to the Honorable David Stockman, Director, Office of Management and Budget, Re: Proposed Executive Order on Federal Regulation 7–13 (Feb. 13, 1981), reprinted in Role of OMB in Regulation: Hearing before the Subcomm. on Oversight and Investigations of the House Comm. on Energy & Commerce, 97th Cong. 152, 158–64 (1981) [hereinafter OMB Hearings]. This portion of the memorandum was omitted from a later revision of the same memo. 5 Op. Off. Legal Counsel 59 (1981), reprinted in OMB Hearings, supra, at 486–98. 49. Exec. Order No. 12291, § 3(f)(3), 3 C.F.R. 127, 130 (1981); see also Memorandum from U.S. Department of Justice, Office of Legal Counsel (Feb. 13, 1981), reprinted in OMB Hearings, supra note 48, at 486 (indicating that OMB’s then-proposed oversight role was “advisory and consultative” and did not authorize it to reject an agency’s judgment as to matters delegated to it). 50. Exec. Order No. 12291, pmbl., 3 C.F.R. at 127; Exec. Order No. 12498, pmbl., 3 C.F.R. at 323.

Notes to Pages 381–86

501

51. Prof. Drivers Council v. Bureau of Motor Carrier Safety, 706 F.2d 1216, 1222–23 (D.C. Cir. 1983) (affi rming application of cost/benefit requirement of Executive Order 12291); Envtl. Def. Fund v. Thomas, 627 F. Supp. 566, 570 (D.D.C. 1986) (“A certain degree of deference must be given to the authority of the President to control and supervise executive policy making.”); see also Nat’l Fed’n of Fed. Employees, Local 1622 v. Brown, 645 F.2d 1017, 1022 (D.C. Cir. 1981) (“Within the range of choice allowed by statute, the President may direct his subordinates’ choices.”). 52. Robert V. Percival, Presidential Management of the Administrative State: The NotSo-Unitary Executive, 51 Duke L.J. 963, 990–93 (2001); Morton Rosenberg, Presidential Control of Agency Rulemaking: An Analysis of Constitutional Issues that May Be Raised by Executive Order 12,291, 23 Ariz. L. Rev. 1199, 1200–01 (1981). 53. Christopher S. Kelley, The Unitary Executive and the Presidential Signing Statement 89 (2003) (unpublished Ph.D. dissertation, Miami University), available at http://www. ohiolink.edu/etd/send-pdf.cgi?miami1057716977 (quoting Joseph Cooper & William F. West, Presidential Power and Republican Government: The Theory and Practice of OMB Review of Agency Rules, 50 J. Pol. 874 (1988)). 54. David E. Lewis, Presidents and the Politics of Agency Design: Political Insulation in the United States Government Bureaucracy, 1946–1977, at 85–86 (2003). 55. Exec. Order No. 12606, 3 C.F.R. 241 (1987); Exec. Order No. 12612, 3 C.F.R. 252 (1987). 56. 467 U.S. 837 (1984). 57. Kelley, supra note 53, at 89. 58. Edwin Meese III, The Law of the Constitution, 61 Tul. L. Rev. 979 (1987). 59. Statement on Signing the Safe Drinking Water Act Amendments of 1986, 1 Pub. Papers 802 (June 19, 1986); Statement on Signing the Immigration Reform and Control Act of 1986, 2 Pub. Papers 1522 (Nov. 6, 1986); Statement on Signing the Sentencing Act of 1987, 2 Pub. Papers 1450 (Dec. 7, 1987). 60. Morris, supra note 5, at 501, 599, 658.

Chapter 41. George H. W. Bush 1. Neal Devins, Tempest in an Envelope: Refl ections on the Bush White House’s Failed Takeover of the U.S. Postal Service, 41 UCLA L. Rev. 1035, 1043 (1994); Nelson Lund, Lawyers and the Defense of the Presidency, 1995 B.Y.U. L. Rev. 17 (detailing the Bush administration’s efforts to defend presidential prerogatives). 2. John Robert Greene, The Presidency of George Bush 141 (2000). 3. Id. at 48–50. 4. Lund, supra note 1, at 36, 41–42, 44. Lund has suggested that Bush’s signing statements were so scrupulous about the separation of powers that at times they became “almost comical.” Id. at 44. 5. Pub. L. No. 102-385, 106 Stat. 1460. 6. Greene, supra note 2, at 2. 7. Remarks to the Federalist Society of Philadelphia in Philadelphia, Pennsylvania, 1 Pub. Papers 532, 535 (Apr. 3, 1992). 8. Sharon LaFraniere, Barr Urges “Fundamental Changes” in Independent Counsel Statute, Wash. Post, Apr. 8, 1992, at A5. 9. Statement on Signing the Federal Deposit Insurance Corporation Improvement Act of 1991, 2 Pub. Papers 1649, 1650 (Dec. 19, 1991). 10. Statement on Signing the President John F. Kennedy Assassination Records Collection Act of 1992, 2 Pub. Papers 2004, 2005 (Oct. 26, 1992). 11. Statement on Signing the Housing and Community Development Act of 1992, 2 Pub. Papers 2060, 2061 (Oct. 28, 1992).

502

Notes to Pages 386–89

12. Statement on Signing the Omnibus Budget Reconciliation Act of 1989, 2 Pub. Papers 1718, 1719 (Dec. 19, 1989). 13. Statement on Signing the Bill Modifying the Boundaries of the Alaska Maritime National Wildlife Refuge, 2 Pub. Papers 1664, 1664 (Nov. 21, 1990). 14. Statement on Signing the Energy and Water Development Appropriations Act, 1991, 2 Pub. Papers 1561, 1562 (Nov. 5, 1990). 15. Statement on Signing the Energy Policy Act of 1992, 2 Pub. Papers 1962, 1963 (Oct. 24, 1992). 16. Statement on Signing the Treasury, Postal Service and General Government Appropriations Act, 1993, 2 Pub. Papers 1766, 1767 (Oct. 6, 1992). 17. Statement on Signing the Housing and Community Development Act of 1992, supra note 11, at 2061. 18. A federal court did not reach the merits of the issue, dismissing the case on ripeness grounds. United States v. Instruments, S.A., Inc., 807 F. Supp. 811 (D.D.C. 1992). 19. Whistleblower Protection Act of 1989, Pub. L. No. 101-12, 103 Stat. 16. 20. Statement on the Signing of the Whistleblower Protection Act of 1989, 1 Pub. Papers 391, 392 (Apr. 10, 1989). 21. § 3(a)(13), 103 Stat. at 28. 22. Statement on the Signing of the Whistleblower Protection Act of 1989, supra note 20, at 392. 23. Statement on Signing the Civil Rights Act of 1991, 2 Pub. Papers 1504 (Nov. 21, 1991). 24. Statement on Signing the Bill Amending the Clean Air Act, 2 Pub. Papers 1602, 1603 (Nov. 15, 1990). 25. Christopher S. Kelley, The Unitary Executive and the Presidential Signing Statement 110, 115–16, 119, 129 (2003) (unpublished Ph.D. dissertation, Miami University), available at http://www.ohiolink.edu/etd/send-pdf.cgi?miami1057716977. 26. Address on Administration Goals Before a Joint Session of Congress, 1 Pub. Papers 74, 76 (Feb. 9, 1989) (announcing the creation of a Task Force (later renamed Council) on Competitiveness under the leadership of Vice President Quayle); Statement by Press Secretary Fitzwater on the Review of Regulatory Issues by Council on Competitiveness, 1 Pub. Papers 833 (June 15, 1990) (designating the Council on Competitiveness to oversee the regulatory review program established by Executive Orders 12291 and 12498). 27. David E. Lewis, Presidents and the Politics of Agency Design: Political Insulation in the United States Government Bureaucracy, 1946–1977, at 86 (2003). 28. David Kessler, A Question of Intent: A Great American Battle with a Deadly Industry 67, 70 (2001). 29. Id. at 68. 30. Robert V. Percival, Presidential Management of the Administrative State: The NotSo-Unitary Executive, 51 Duke L.J. 963, 994–95 (2001). 31. Kessler, supra note 28, at 68. 32. Memorandum of President George H. W. Bush to Postmaster General Marvin Runyon (Dec. 11, 1992), quoted in Devins, supra note 1, at 1045. 33. The D.C. Circuit ruled against the Bush administration’s arguments on all counts, enjoining the removal of the members of the Board of Governors and holding that the Postal Service had the authority to bring suit against the Postal Rate Commission despite the President’s contrary wishes. Mail Order Ass’n v. United States Postal Serv., 986 F.2d 509, 527 & n.9 (D.C. Cir. 1993). 34. Chevron USA Inc. v. Natural Res. Def. Council, 467 U.S. 837 (1984). 35. 500 U.S. 173 (1991). 36. Kelley, supra note 25, at 125–26.

Notes to Pages 389–93

503

37. Statement on Signing the Treasury, Postal Service and General Government Appropriations Act, 1990, 2 Pub. Papers 1448, 1449 (Nov. 3, 1989); Statement on Signing the Intelligence Authorization Act, Fiscal Year 1990, 2 Pub. Papers 1609, 1611 (Nov. 30, 1989); Statement on Signing the International Narcotics Act of 1989, 2 Pub. Papers 1698, 1699 (Dec. 13, 1989); Statement on Signing the Omnibus Budget Reconciliation Act of 1990, 2 Pub. Papers 1553, 1555 (Nov. 5, 1990); Statement on Signing the Department of the Interior and Related Agencies Appropriations Act, 1991, 2 Pub. Papers 1558, 1559 (Nov. 5, 1990); Statement on Signing the Treasury, Postal Service and General Government Appropriations Act, 1992, 2 Pub. Papers 1349, 1350 (Oct. 28, 1991); Statement on Signing the Department of the Interior and Related Agencies Appropriations Act, 1993, 2 Pub. Papers 1756, 1757 (Oct. 5, 1992); Statement on Signing the Treasury, Postal Service and General Government Appropriations Act, 1993, supra note 16, at 1767; see also 16 Op. Off. Legal Counsel 18 (1992) (preliminary print); 14 Op. Off. Legal Counsel 37, 38 (1990) (preliminary print). 38. Statement on Signing the Treasury, Postal Service and General Government Appropriations Act, 1990, supra note 37, at 1449; see also Statement on Signing the Department of the Interior and Related Agencies Appropriations Act, 1991, supra note 37, at 1559; Statement on Signing the Treasury, Postal Service and General Government Appropriations Act, 1992, supra note 37, at 1350; Statement on Signing the Department of the Interior and Related Agencies Act, 1993, supra note 37, at 1757; Statement on Signing the Treasury, Postal Service and General Government Appropriations Act, 1993, supra note 16, at 1767. 39. In 1989, Secretary of State James A. Baker III agreed to give four congressional committees the right to approve the release of $50 million in humanitarian aid to the Nicaraguan Contras. Louis Fisher & Neal Devins, Political Dynamics of Constitutional Law 130, 141–42 (1992); Lund, supra note 1, at 64–65. 40. Louis Fisher, Separation of Powers: Interpretation outside the Courts, 18 Pepp. L. Rev. 57, 86 (1990); Lund, supra note 1, at 65. 41. Louis Fisher, The Legislative Veto: Invalidated, It Survives, 56 Law & Contemp. Probs. 273, 288 (1993); Lund, supra note 1, at 65. 42. Lund, supra note 1, at 70–79. 43. Metro. Wash. Airports Auth. v. Citizens for Abatement of Aircraft Noise, Inc., 501 U.S. 252, 275–76 (1991).

Chapter 42. Bill Clinton 1. James Lindgren & Steven G. Calabresi, Rating the Presidents of the United States, 1789–2000: A Survey of Scholars in Political Science, History, and Law, 18 Const. Comm. 583, 591–92 (2001) (rating Clinton as the most controversial president in history). 2. Elena Kagan, Presidential Administration, 114 Harv. L. Rev. 2245 (2001). 3. Joe Klein, The Natural 3–4, 26 (2002). 4. Id. at 188, 216. 5. Stanley A. Renshon, High Hopes: The Clinton Presidency and the Politics of Ambition 260 (1998) (citations omitted) (quoting Elizabeth Drew, On the Edge: The Clinton Presidency 99 (1994)). 6. Id. at 263. 7. Id. at 73. 8. Statement on Signing the Digital Millennium Copyright Act, 2 Pub. Papers 1902, 1902 (Oct. 28, 1998). 9. Statement on Signing the Foreign Relations Authorization Act, Fiscal Years 1994 and 1995, 1 Pub. Papers 807, 808 (Apr. 30, 1994). 10. Kagan, supra note 2.

504

Notes to Pages 394–99

11. Memorandum on Review of Regulations, 1 Pub. Papers 4 (Jan. 21, 1993) (abolishing the Council on Competitiveness); Exec. Order No. 12866, pmbl., §§ 1(a), 2(b), 4, 6(a)(2), 6(b)(2)-(4), 7, 6, 3 C.F.R. 638, 638–40, 642–48 (1993) (revising and expanding the system of OMB review established by Executive Orders 12291 and 12498). 12. Kenneth R. Mayer, With the Stroke of a Pen: Executive Orders and Presidential Power 132 (2001). 13. Exec. Order No. 12866, § 7, 3 C.F.R. at 648. 14. Kagan, supra note 2, at 2289. 15. Exec. Order No. 12866, § 4(c)(4)–(6), 6(a)(2), 3 C.F.R. at 642–43, 645. 16. Social Security Independence and Program Improvements Act of 1994, Pub. L. No. 103-296, sec. 102, § 702 (a)(3), 108 Stat. 1464, 1466. 17. President’s Statement on Signing the Social Security Independence and Program Improvements Act of 1994, 2 Pub. Papers 1471, 1472 (Aug. 15, 1994). 18. Kagan, supra note 2, at 2288, 2308–09; accord Richard H. Pildes & Cass R. Sunstein, Reinventing the Regulatory State, 62 U. Chi. L. Rev. 1, 29 (1995) (arguing that the inclusion of the independent agencies within the Clinton regulatory review scheme was driven in part by “an especially strong commitment to centralized presidential oversight of the large policy judgments made by independent agencies”). 19. Kagan, supra note 2, at 2282–84, 2292, 2303–06 (detailing instances of presidential direction of federal policy in a wide range of areas, including health care; fi rearms regulation; nondiscrimination with respect to sexual orientation, parental status, or genetics; labor policy; energy and environmental policy; child support; youth smoking; and family leave). 20. Id. at 2290–92, 2300, 2312; see also id. at 2294–95 (noting that Clinton issued 107 directives at heads of policy agencies, in comparison to nine issued by Reagan and four by George H. W. Bush). 21. Mayer, supra note 12, at 7. 22. 63 Fed. Reg. 27,651 (May 19, 1998). 23. 63 Fed. Reg. 42,565 (Aug. 7, 1998). 24. Kagan, supra note 2, at 2301, 2302, 2314. 25. Christopher S. Kelley, The Unitary Executive and the Presidential Signing Statement 142 (2003) (unpublished Ph.D. dissertation, Miami University), available at http://www. ohiolink.edu/etd/send-pdf.cgi?miami1057716977. 26. 18 Op. Off. Legal Counsel 199, 199, 202–03 (1994). 27. Statement on Signing the Legislative Branch Appropriations Act of 1995, 1 Pub. Papers 1301 (July 22, 1994). 28. 20 Op. Off. Legal Counsel 214 (1996). 29. Klein, supra note 3, at 65–67. 30. Social Security Independence and Program Improvements Act of 1994, Pub. L. No. 103-296, sec. 102, § 702(a)(3), 108 Stat. 1464, 1466. 31. President’s Statement on Signing the Social Security Independence and Program Improvements Act of 1994, supra note 17, at 1472. 32. Brief for the United States as Amicus Curiae in Support of Respondent at 4, 8–9, Fed. Election Comm’n v. NRA Political Victory Fund, 513 U.S. 88 (1994) (No. 93-1151). 33. Fed. Election Comm’n v. NRA Political Victory Fund, 513 U.S. 88 (1994). 34. Brief for Petitioners, at 15, 20–21, United States v. Weatherhead, 528 U.S. 1042 (1999) (No. 98-1904) (quoting Dep’t of the Navy v. Egan, 484 U.S. 518, 527 (1988)) (alterations in original). 35. 528 U.S. 1042 (1999) (mem.). 36. Klein, supra note 3, at 204, 196. 37. The President’s News Conference, 2 Pub. Papers 2226, 2229 (Dec. 8, 1999).

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Case Study 4. The Clinton Impeachment and the Fall of the Ethics in Government Act 1. 28 C.F.R. §§ 600.1, 603.1 2. In re Madison Guar. Sav. & Loan Ass’n, No. 94-1, 1994 WL 913274 (D.C. Cir. Aug. 5, 1994). 3. Brief for the United States as Amicus Curiae in Support of Petitioner at 4, Clinton v. Jones, 520 U.S. 681 (1997) (No. 95-1853). 4. Clinton v. Jones, 520 U.S. 681 (1997). 5. Id. at 710 (Breyer, J., concurring). 6. Id. at 702. 7. R. W. Apple Jr., The Fallout of the Trial, N.Y. Times, Feb. 13, 1999, at A1 (quoting Arthur M. Schlesinger Jr.). 8. Keith E. Whittington, Bill Clinton Was No Andrew Johnson: Comparing Two Impeachments, 2 U. Pa. J. Const. L. 422, 426–31, 438–39, 443 (2000). 9. Id. at 450–59; see also Barry Friedman, The History of the Countermajoritarian Diffi culty, Part II: Reconstruction’s Political Court, 91 Geo. L.J. 1, 6 (2002) (“Unlike the other instance—the impeachment of Bill Clinton—at the center of the Johnson impeachment was a fundamental power struggle between the two branches on the most critical issues of the day.”); Laura Kalman, The (Un?)Bearable Liteness of E-Mail: Historians, Impeachment, and Bush v. Gore, 4 Theoretical Inq. L. 579, 602 (2003) (“In fact, Clinton’s impeachment bore few parallels to Johnson’s.”). 10. Reauthorization of the Independent Counsel Statute, Part I: Hearings Before the Subcomm. on Commercial and Admin. Law of the House Comm. on the Judiciary, 106th Cong. 27 (1999) [hereinafter 1999 House Subcommittee Hearings]. 11. The Future of the Independent Counsel Act: Hearings Before the Senate Comm. on Governmental Affairs, 106th Cong. 242, 247–50 (1999) [hereinafter 1999 Senate Committee Hearings] (statement of Attorney General Janet Reno). 12. Id. at 26 (testimony of former Senate majority leader Howard H. Baker Jr.); id. at 28 (testimony of former attorney general Griffi n B. Bell); id. at 56 (testimony of former independent counsel Joseph E. diGenova); id. at 204 (testimony of former independent counsel Robert Fiske); id. at 330 (testimony of former independent counsel Lawrence E. Walsh); id. at 364 (testimony of former assistant prosecutor, Whitewater Investigation, Julie Rose O’Sullivan); id. at 419 (testimony of Independent Counsel Kenneth W. Starr); 1999 House Subcommittee Hearings, supra note 10, at 139 (testimony of former attorney general William P. Barr), id. at 146 (testimony of former attorney general Benjamin R. Civiletti); Robert Dole & George J. Mitchell, American Enterprise Institute and the Brookings Institution, Project on the Independent Counsel Statute, Report and Recommendations (1999); Archibald Cox & Philip B. Heymann, After the Counsel Law, N.Y. Times, Mar. 10, 1999, at A19. 13. 1999 Senate Committee Hearings, supra note 11, at 64 (testimony of former special prosecutor Arthur H. Christy); id. at 76 (testimony of former independent counsel Curtis Emery Von Kann); id. at 283 (testimony of former associate independent counsel John Q. Barrett). 14. Steven G. Calabresi & Christopher S. Yoo, The Unitary Executive during the First Half-Century, 47 Case W. Res. L. Rev. 1451, 1462 (1997).

Chapter 43. George W. Bush 1. Bush v. Gore, 531 U.S. 98, 99 (2000). 2. David Frum, The Right Man: The Surprise Presidency of George W. Bush 29, 62 (2003).

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3. Statement on Signing the Energy and Water Development Appropriation Act, 2002, 2 Pub. Papers 1389 (Nov. 12, 2001). 4. Statement on Signing the Vision 100–Century of Aviation Reauthorization Act, 37 Weekly Comp. Pres. Doc. 1795 (Dec. 12, 2003). 5. Statement on Signing the Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005, 40 Weekly Comp. Pres. Doc. 2673 (Nov. 1, 2004); Statement on Signing the Emergency Supplemental Appropriations Act for Defense and for the Reconstruction of Iraq and Afghanistan, 2004, 39 Weekly Comp. Pres. Doc. 1549 (Nov. 6, 2003). 6. Statement on Signing the Help America Vote Act of 2002, 2 Pub. Papers 1927 (Oct. 29, 2002) (“Because this provision attempts to vest executive functions in the Comptroller General, it violates the constitutional principle of separation of powers.”). On other occasions, the president has construed statutory provisions purporting to vest executive authority in the comptroller general as a directive to inform and confer with the comptroller general in the interests of comity. Statement on Signing the Ronald W. Reagan National Defense Authorization Act, supra note 5; Statement on Signing the Strengthen AmeriCorps Program Act, 39 Weekly Comp. Pres. Doc. 876 (July 3, 2003). 7. Statement on Signing the Consolidated Appropriations Act, 2004, 40 Weekly Comp. Pres. Doc. 137 (Jan. 23, 2004); Statement on Signing the Consolidated Appropriations Resolution, 2003, 1 Pub. Papers 194 (Feb. 20, 2003). 8. Statement on Signing the Vision 100–Century of Aviation Reauthorization Act, supra note 4. 9. Statement on Signing the Energy and Water Development Appropriation Act, 2004, 39 Weekly Comp. Pres. Doc. 1732 (Dec. 1, 2003); Statement on Signing the 21st Century Department of Justice Appropriations Authorization Act, 2 Pub. Papers 2010 (Nov. 2, 2002); Statement on Signing the Foreign Relations Authorization Act, Fiscal Year 2003, 2 Pub. Papers 1697 (Sept. 30, 2002); Statement on Signing the Enhanced Border Security and Visa Entry Reform Act of 2002, 1 Pub. Papers 795 (May 14, 2002). 10. Statement on Signing the Intelligence Authorization Act for Fiscal Year 2004, 39 Weekly Comp. Pres. Doc. 1798 (Dec. 13, 2003); Statement on Signing the 21st Century Department of Justice Appropriations Authorization Act, supra note 9; Memorandum on the Congressional Subpoena for Executive Branch Documents, Memorandum for the Attorney General, 2 Pub. Papers 1509, 1510 (Dec. 12, 2001) (“Congressional pressure on executive branch prosecutorial decisionmaking is inconsistent with separation of powers and threatens individual liberty.”). 11. Statement on Signing the Ronald W. Reagan National Defense Authorization Act, supra note 5 (rejecting restrictions on legal advice given by judge advocates general); Statement on Signing the Department of Defense Appropriations Act, 2005, 40 Weekly Comp. Pres. Doc. 1453 (Aug. 5, 2004) (rejecting limits on integration of foreign intelligence information); Statement on Signing the Consolidated Appropriations Act, 2004, supra note 7 (objecting to limits on the detailing of executive branch personnel to Congress); Statement on Signing the Foreign Relations Authorization Act, Fiscal Year 2003, supra note 9 (rejecting restrictions on the State Departments authority to protect correspondents working for Voice of America). 12. Statement on Signing the Ronald W. Reagan National Defense Authorization Act, supra note 5; Statement on Signing the Intelligence Authorization Act for Fiscal Year 2004, supra note 10; Statement on Signing the National Defense Authorization Act for Fiscal Year 2004, 39 Weekly Comp. Pres. Doc. 1683 (Nov. 24, 2003). 13. Statement on Signing the Ronald W. Reagan National Defense Authorization Act, supra note 5; Statement on Signing the Vision 100–Century of Aviation Reauthorization Act, 39 Weekly Comp. Pres. Doc. 1795 (Dec. 12, 2003); Statement on Signing the Sudan Peace Act, 2 Pub. Papers 1852 (Oct. 21, 2002); Statement on Signing the Foreign Relations Authorization Act, Fiscal Year 2003, supra note 9; Statement on Signing the Export-Import Bank

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Reauthorization Act of 2002, 1 Pub. Papers 989 (June 14, 2002); Statement on Signing the Enhanced Border Security and Visa Entry Reform Act of 2002, supra note 9. 14. Statement on Signing the Ronald W. Reagan National Defense Authorization Act, supra note 5; Statement on Signing the Coast Guard and Maritime Transportation Act of 2004, 40 Weekly Comp. Pres. Doc. 1518 (Aug. 9, 2004); Statement on Signing the Federal Law Enforcement Pay and Benefits Parity Act of 2003, 39 Weekly Comp. Pres. Doc. 1836 (Dec. 19, 2003); Statement on Signing the Medicare Prescription Drug, Improvement, and Modernization Act of 2003, 39 Weekly Comp. Pres. Doc. 1774 (Dec. 8, 2003); Statement on Signing the 21st Century Nanotechnology Research and Development Act, 39 Weekly Comp. Pres. Doc. 1744 (Dec. 3, 2003); Statement on Signing the National Defense Authorization Act for Fiscal Year 2004, supra note 12; Statement on Signing the Animal Drug User Fee Act of 2003, 39 Weekly Comp. Pres. Doc. 1644 (Nov. 18, 2003); Statement on Signing the National Science Foundation Authorization Act of 2002, 2 Pub. Papers 2206 (Dec. 19, 2002); Statement on Signing the Bob Stump National Defense Authorization Act for Fiscal Year 2003, 2 Pub. Papers 2148 (Dec. 2, 2002); Statement on Signing the Intelligence Authorization Act for Fiscal Year 2003, 2 Pub. Papers 2140 (Nov. 27, 2002); Statement on Signing the Maritime Transportation Security Act of 2002, 2 Pub. Papers 2132 (Nov. 25, 2002); Statement on Signing the 21st Century Department of Justice Appropriations Authorization Act, supra note 9; Statement on Signing the Foreign Relations Authorization Act, Fiscal Year 2003, supra note 9; Statement on Signing the National Defense Authorization Act for Fiscal Year 2002, 2 Pub. Papers 1553 (Dec. 28, 2001). 15. Statement on Signing the NASA Flexibility Act of 2004, 40 Weekly Comp. Pres. Doc. 278 (Feb. 24, 2004); Statement on Signing the Intelligence Authorization Act for Fiscal Year 2004, supra note 10; Statement on Signing the Medicare Prescription Drug, Improvement, and Modernization Act of 2003, supra note 14; Statement on Signing the National Defense Authorization Act for Fiscal Year 2004, supra note 12; Letter to Congressional Leaders Certifying Actions Responsive to Ratification of the Joint Convention on Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management, 1 Pub. Papers 570 (May 29, 2003); Statement on Signing the Consolidated Appropriations Resolution, 2003, supra note 7; Statement on Signing the E-Government Act of 2002, 2 Pub. Papers 2200 (Dec. 17, 2002); Statement on Signing the Maritime Transportation Security Act of 2002, supra note 14; Statement on Signing the Homeland Security Act of 2002, 2 Pub. Papers 2128 (Nov. 25, 2002); Statement on Signing the 21st Century Department of Justice Appropriations Authorization Act, supra note 9; Statement on Signing the Small Business Paperwork Relief Act of 2002, 1 Pub. Papers 1081 (June 28, 2002); Statement on Signing the Export-Import Bank Reauthorization Act of 2002, supra note 13. 16. Exec. Order No. 13361, 3 C.F.R. 233 (Nov. 16, 2004); Exec. Order. No. 13346, § 6(d), 3 C.F.R. 186, 187 (July 8, 2004); Exec. Order No. 13345, § 5(a)(iv), 3 C.F.R. 183, 185 (July 8, 2004); Exec. Order No. 13333, § 3(d), 3 C.F.R. 158, 158 (Mar. 18, 2004); Exec. Order No. 13313, § 3(c), 3 C.F.R. 248, 252 (July 31, 2003); Exec Order No. 13,302, § 1(e), 3 C.F.R. 226, 227 (May 15, 2003); Exec. Order No. 13277, § 3(b)(i)(D), 3 C.F.R. 254, 256 (Nov. 19, 2002). 17. Brief for Petitioners at 28–29, 34, Cheney v. U.S. Dist. Ct., 542 U.S. 367 (2004) (No. 03-475). 18. 542 U.S. at 381–91 19. Frum, supra note 2, at 107, 109. 20. Id. at 141. 21. Bob Woodward, Bush at War 30, 38, 143 (2002). 22. Elizabeth Becker, Traces of Terror: Administration Insists on Control over New Agency’s Labor Rules, N.Y. Times, Aug. 1, 2002, at A20. 23. Frum, supra note 2, at 190.

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24. Dan Eggen & Mike Allen, Ashcroft Recuses Self from Leak Case: U.S. Attorney to Oversee Probe, Wash. Post, Dec. 31, 2003, at A1. 25. Frum, supra note 2 at 167. 26. Hamdi v. Rumsfeld, 542 U.S. 507, 516–17 (2004). 27. Id. at 517; Rumsfeld v. Padilla, 542 U.S. 426, 430 (2004). 28. 317 U.S. 1 (1942). 29. 126 S. Ct. 2749 (2006). 30. Pub. L. No. 109-366, 120 Stat. 2600. 31. Morrison v. Olson, 487 U.S. 654, 697–733 (1988) (Scalia, J., dissenting). 32. Hamdi, 542 U.S. at 554–79 (Scalia, J., joined by Stevens, J., dissenting). 33. Youngstown Sheet & Tube Co. v. Sawyer (Steel Seizure Case), 343 U.S. 579 (1952). 34. 135 U.S. 1 (1890). 35. 158 U.S. 564 (1895). 36. Exec. Order No. 13422, §§ 4(b), 5(b), 7, 72 Fed. Reg. 2763, 2764 (Jan. 18, 2007). 37. Compare Peter L. Strauss, Overseer or “the Decider”? The President in Administrative Law, 75 Geo. Wash. L. Rev. 696, 732–38 (2007) (arguing that Executive Order 13422 increases presidential control over policymaking), with Cary Coglianese, The Rhetoric and Reality of Regulatory Reform, 25 Yale J. on Reg. (forthcoming 2008) (questioning how much impact Executive Order 13422 will have on regulatory outcomes). 38. USA PATRIOT Improvement and Reauthorization Act of 2005, Pub. L. No. 109177, § 502, 120 Stat. 192, 246. 39. Those dismissed included: Daniel Bogden (Nevada), Paul Charlton (Arizona), Margaret Chiara (Michigan), David Iglesias (New Mexico), Carol Lam (San Diego), John McKay (Seattle), and Kevin Ryan (San Francisco). 40. Preserving United States Attorney Independence Act of 2007, Pub. L. No. 110-34, 121 Stat. 224. 41. Parsons v. United States, 167 U.S. 324 (1897). 42. 28 U.S.C. § 546(c).

Part VIII. Conclusion 1. 279 U.S. 655, 688–89 (1929). 2. 236 U.S. 459, 474 (1915). 3. Stuart v. Laird, 5 U.S. (1 Cranch) 299, 309 (1803); Mo. Pac. Ry. Co. v. Kansas, 248 U.S. 276, 283–84 (1919); Myers v. United States, 272 U.S. 52, 163 (1926); United States v. Curtiss-Wright Corp., 299 U.S. 304, 327–28 (1936); Cincinnati Soap Co. v. United States, 301 U.S. 308, 315 (1937); Youngstown Sheet & Tube Co. v. Sawyer (Steel Seizure Case), 343 U.S. 579, 610–11 (1952) (Frankfurter, J., concurring); Dames & Moore v. Regan, 453 U.S. 654, 668–69, 686 (1981). 4. Youngstown, 343 U.S. at 610–11, 613 (Frankfurter, J., concurring). 5. 462 U.S. 919, 942 n.13 (1983). 6. 272 U.S. 52 (1926). 7. 487 U.S. 654 (1988). 8. 37 U.S. (12 Pet.) 524, 610, 614 (1838). 9. 39 U.S. (14 Pet.) 497, 509, 514–16 (1840). 10. Pub. L. No. 95-454, secs. 101, 204, §§ 2302(a)(2)(B)(i), 2303(a), 7511(b)(2), 92 Stat. 1111, 1115, 1117–18, 1136 (codified at 5 U.S.C. § 2302(a)(2)(B)(i), 2303(a)(2), 7511(b)(2)). 11. Humphrey’s Ex’r v. United States, 295 U.S. 602 (1935). 12. Robert E. Cushman, The Independent Regulatory Commissions 62 (1941). 13. 189 U.S. 311 (1903). 14. Richard E. Welch Jr., The Presidencies of Grover Cleveland 79 (1988). 15. Cushman, supra note 12, at 197.

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16. 272 U.S. 52 (1926). 17. 295 U.S. 602 (1935). 18. 1 Kenneth Culp Davis & Richard J. Pierce Jr., Administrative Law Treatise §2.5, at 64 (3d ed. 1994); Laurence H. Tribe, American Constitutional Law §4–10, at 254 n.45 (2d ed. 1988); Lawrence Lessig & Cass R. Sunstein, The President and the Administration, 94 Colum. L. Rev. 1, 110–11 (1994); Peter L. Strauss, The Place of Agencies in Government: Separation of Powers and the Fourth Branch, 84 Colum. L. Rev. 573, 615 (1984). 19. Office of Watergate Special Prosecution Force, 38 Fed. Reg. 14688 (June 4, 1973). 20. 487 U.S. 654 (1988). 21. Id. at 712–14, 727–30 (Scalia, J., dissenting). 22. Steven G. Calabresi & Christopher S. Yoo, The Unitary Executive during the First Half-Century, 47 Case W. Res. L. Rev. 1451, 1462 (1997). 23. Letter from Thomas Jefferson to John Breckenridge (Aug. 12, 1803), in Thomas Jefferson, Writings 1136, 1138–39 (Merrill D. Peterson ed., 1984). 24. Theodore Roosevelt, An Autobiography 352, 362 (1920) (1913). 25. Franklin D. Roosevelt, Statement on Signing the Emergency Price Control Act (Jan. 30, 1942), in 11 The Public Papers and Addresses of Franklin D. Roosevelt 67, 69 (Samuel I. Rosenman ed., 1942) [hereinafter Pub. Papers of FDR]; Franklin D. Roosevelt, Message to the Congress Asking for Quick Action to Stabilize the Economy (Sept. 7, 1942), in 11 Pub. Papers of FDR, supra, at 356, 364. 26. Melvin Small, The Presidency of Richard Nixon 57 (1999). 27. Henry P. Monaghan, The Protective Power of the Presidency, 93 Colum. L. Rev. 1, 61–63 (1993). 28. In re Neagle, 135 U.S. 1 (1890).

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Bibliographic Note

The historical examples contained in this book were drawn from a wide variety of sources. The seminal historical analysis is Chief Justice Taft’s opinion in Myers v. United States, 272 U.S. 52 (1926). Leonard White’s multivolume history of federal administration represented a rich source of historical material: Leonard D. White, The Federalists, A Study in Administrative History (1948); Leonard D. White, The Jeffersonians: A Study in Administrative History, 1801–1829 (1951); Leonard D. White, The Jacksonians: A Study in Administrative History, 1829–1861 (1954); Leonard D. White, The Republican Era: A Study in Administrative History, 1869–1901 (1958). We were also influenced by the work of Edward Corwin: Edwin S. Corwin, The President: Office and Powers (1940); Edward S. Corwin, The President’s Removal Power under the Constitution (1927), reprinted in 1 Corwin on the Constitution 317 (Richard Loss ed., 1981). For general background information on each president, our primary sources were the series of presidential biographies published by the University Press of Kansas and the biographies cited in the notes. Other biographies consulted include: Richard Brookhiser, Founding Father: Rediscovering George Washington (1996); George Morgan, The Life of James Monroe (1921); John T. Morse, John Quincy Adams (Boston, Houghton, Miffl in 1898); Richard B. Latner, The Presidency of Andrew Jackson (1979); James C. Curtis, The Fox at Bay: Martin Van Buren and the Presidency, 1837– 1841 (1970); Oliver Perry Chitwood, John Tyler: Champion of the Old South (1964); Charles Sellers, James K. Polk: Continentalist (1966); J. G. Randall, Lincoln the President (1955); J. G. Randall, Constitutional Problems under Lincoln (rev. ed. 1963); Herman Belz, Lincoln and the Constitution (1984); Robert K. Murray, The Harding

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Era (1969); Rexford G. Tugwell, The Democratic Roosevelt (1957); Ted Morgan, FDR (1985); Herbert S. Parmet, JFK: The Presidency of John F. Kennedy (1983). On the early postratification history, the classic works are Charles C. Thach Jr., The Creation of the Presidency, 1775–1789 (1923); James Hart, The American Presidency in Action, 1789: A Study in Constitutional History (1948); Forrest McDonald, The American Presidency: An Intellectual History (1994). Other important discussions include: Gerhard Casper, An Essay in Separation of Powers: Some Early Versions and Practices, 30 Wm. & Mary L. Rev. 211 (1989); Gerhard Casper, Executive-Congressional Separation of Power during the Presidency of Thomas Jefferson, 47 Stan. L. Rev. 473 (1995); Lawrence Lessig & Cass R. Sunstein, The President and the Administration, 94 Colum. L. Rev. 1 (1994); Jerry L. Mashaw, Recovering American Administrative Law: Federalist Foundations, 1787–1801, 115 Yale L.J. 1256 (2006); Jerry L. Mashaw, Reluctant Nationalists: Federal Administration and Administrative Law in the Republican Era, 1801–1830, 116 Yale L.J. 1636 (2007). Of particular note is the growing corpus of work by Saikrishna Prakash: Steven G. Calabresi & Saikrishna Prakash, The President’s Power to Execute the Laws, 104 Yale L.J. 541 (1994); Saikrishna Prakash, The Chief Prosecutor, 73 Geo. Wash. L. Rev. 521 (2005); Saikrishna Prakash, New Light on the Decision of 1789, 91 Cornell L. Rev. 1021 (2006); Saikrishna Prakash, The Essential Meaning of Executive Power, 2003 U. Ill. L. Rev. 701. Notable analyses of more recent presidencies include: Elena Kagan, Presidential Administration, 114 Harv. L. Rev. 2245 (2001); Nelson Lund, Lawyers and the Defense of the Presidency, 1995 BYU L. Rev. 17. On Jackson’s battle with the second Bank of the United States: Thomas P. Govan, Nicholas Biddle (1959); Walter B. Smith, Economic Aspects of the Second Bank of the United States (1953). On the impeachment of Andrew Johnson: David M. Dewitt, The Impeachment and Trial of Andrew Johnson (1903). On the Civil War and Reconstruction Era more generally: Howard K. Beale, The Critical Year (1930); Harold M. Hyman & William M. Wiecek, Equal Justice Under Law: Constitutional Development, 1835–1875 (1982); John R. Labovitz, Presidential Impeachment (1978); Martin E. Mantell, Johnson, Grant, and the Politics of Reconstruction (1973); Eric L. McKitrick, Andrew Johnson and Reconstruction (1960); James M. McPherson, Battle Cry of Freedom: The Civil War Era (1988); David M. Potter, The Impending Crisis, 1848–1861 (1976); Kenneth M. Stampp, The Era of Reconstruction, 1865–1877 (1965). On executive reorganization during the New Deal: William E. Leuchtenburg, The Supreme Court Reborn: The Constitutional Revolution in the Age of Roosevelt (1995); Ellis W. Hawley, The New Deal State and the Anti-Bureaucratic Tradition, in The New Deal and Its Legacy 77 (Robert Eden ed., 1989); Barry D. Karl, Executive Reorganization and Presidential Power, 1977 Sup. Ct. Rev. 1. On independent counsels: Terry Eastland, Ethics, Politics and the Independent Counsel 53 (1989); Katy J. Harriger, Independent Justice: The Federal Special Prosecutor in American Politics (1992); Ken Gormley, Monica Lewinsky, Impeachment, and the Death of the Independent Counsel Law: What Congress Can Salvage from the Wreckage—A Minimalist View, 60 Md. L. Rev. 97 (2001); Lee S. Liberman, Morrison v. Olson: A Formalistic Perspective on Why the Court Was Wrong, 38 Am. U. L. Rev. 313 (1989); Joshua M. Perttula, The Political Price of the Independent Counsel Law, 25 Hastings

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Const. L.Q. 257 (1998); Donald C. Smaltz, The Independent Counsel: A View from Inside, 86 Geo. L.J. 2307 (1998). For other analyses exploring the president’s control over the administration of the law: Wilfred E. Binkley, President and Congress (1947); Wilfred E. Binkley, The Powers of the President (1937); Edward S. Corwin, The President as Administrative Chief, 1 J. Pol. 17 (1939), reprinted in Presidential Power and the Constitution 72 (Richard Loss ed., 1976); Frank B. Cross, Executive Orders 12,291 and 12,498: A Test Case in Presidential Control of Executive Agencies, 4 J.L. & Pol. 483 (1988); Frank B. Cross, The Surviving Signifi cance of the Unitary Executive, 27 Hous. L. Rev. 599 (1990); William M. Goldsmith, The Growth of Presidential Power (1974); Mary Burke Hinsdale, A History of the President’s Cabinet (1911); David E. Lewis, Presidents and the Politics of Agency Design: Political Insulation in the United States Government Bureaucracy, 1946–1977 (2003); Peter M. Shane & Harold H. Bruff, The Law of Presidential Power: Cases and Materials (1988); To the Best of My Ability (James M. McPherson & David Rubel eds., 2000); Stephen Skowronek, Building a New American State: The Expansion of National Administrative Capacities (1982); Norman J. Small, Some Presidential Interpretations of the Presidency (1932); Rexford G. Tugwell, The Enlargement of the Presidency (1960); Charles Warren, Presidential Declarations of Independence, 10 B.U. L. Rev. 1 (1930); Itzhak Zamir, Administrative Control of Administrative Action, 57 Cal. L. Rev. 866 (1969). On the removal power in particular: Louis Fisher, Congress and the Removal Power, 10 Cong. & Presidency 63 (1983); Jonathan L. Entin, The Removal Power and the Federal Defi cit: Form, Substance, and Administrative Independence, 75 Ky. L.J. 699 (1987); Richard Loss, Corwin on Alexander Hamilton and the President’s Removal Power, in Corwin on the Constitution 373 (Richard Loss ed., 1981). For works analyzing presidential control of the administration from the perspective of Congress: Louis Fisher, Constitutional Confl icts Between Congress and the President (4th ed. rev. 1991); Louis Fisher, The Politics of Shared Power 156 (1st ed. 1981); James Hamilton, The Power to Probe (1976); Joseph P. Harris, Congressional Control of Administration (1964); Joseph P. Harris, The Advice and Consent of the Senate (1953); George H. Haynes, The Senate of the United States (1938); Donald G. Morgan, Congress and the Constitution: A Study of Responsibility (1966); George W. Pepper, Family Quarrels: The President, The Senate, The House (1931); Charles Tiefer, The Constitutionality of Independent Offi cers as Checks on Abuses of Executive Power, 63 B.U. L. Rev. 59 (1983). Our primary source on rating presidents is James Lindgren & Steven G. Calabresi, Rating the Presidents of the United States, 1789–2000: A Survey of Scholars in Political Science, History, and Law, 18 Const. Commentary 583 (2001). The seminal presidential rankings were Arthur M. Schlesinger, What Makes a President Great? Or a Failure? The Verdict of History Provides Some Answers, Life, Nov. 1, 1948, at 66; Arthur Schlesinger Sr., Our Presidents: A Rating by Historians, N.Y. Times Magazine, July 29, 1962, at 12. Subsequent rankings include: Gary M. Maranell, The Evaluation of Presidents: An Extension of the Schlesinger Polls, 57 J. Am. Hist. 104 (1970); Arthur M. Schlesinger Jr., Rating the Presidents: Washington to Clinton, 112 Pol. Sci. Q. 179 (1997); William J. Ridings Jr. & Stuart B. McIver, Rating the

514

Bibliographic Note

Presidents (1997); Presidential Leadership: Rating the Best and the Worst in the White House (James Taranto & Leonard Leo eds., 2004). The seminal works on independent agencies are Robert E. Cushman, The Independent Regulatory Commissions (1941); Marver H. Bernstein, Regulating Business by Independent Commission (1955). Other important analyses include: Wilson K. Doyle, Independent Commissions in the Federal Government (1939); Geoffrey P. Miller, Independent Agencies, 1986 Sup. Ct. Rev. 41; Angel Manuel Moreno, Presidential Coordination of the Independent Regulatory Process, 8 Admin. L.J. Am. U. 461 (1994); Emmette S. Redford, The President and the Regulatory Commissions, 44 Tex. L. Rev. 288 (1965); The Independent Federal Regulatory Agencies (Leon I. Salomon ed., 1959); Isaiah L. Sharfman, The Interstate Commerce Commission: A Study in Administrative Law and Procedure (1931); Peter L. Strauss, The Place of Agencies in Government: Separation of Powers and the Fourth Branch, 84 Colum. L. Rev. 573 (1984); Paul R. Verkuil, The Status of Independent Agencies after Bowsher v. Synar, 1986 Duke L.J. 779. On the civil service: Carl Russell Fish, The Civil Service and the Patronage (1905); Gerald E. Frug, Does the Constitution Prevent the Discharge of Civil Service Employees?, 124 U. Pa. L. Rev. 942 (1976); Ari Hoogenboom, Outlawing the Spoils System: A History of the Civil Service Reform Movement, 1865–1883 (1961); Lewis Mayers, The Federal Service (1922); Darrell H. Smith, The United States Civil Service Commission (1928); Paul P. Van Riper, History of the United States Civil Service (1958). More recent analyses of the civil service include: Maheshwar Nath Charturvedi, Legal Protection Available to Federal Employees against Wrongful Dismissal, 63 Nw. U. L. Rev. 287 (1968); Egon Guttman, The Development and Exercise of Appellate Powers in Adverse Action Appeals, 19 Am. U. L. Rev. 323 (1970); Richard A. Merrill, Procedures for Adverse Actions Against Federal Employees, 59 Va. L. Rev. 196 (1973); Stephen G. Vaskov, Comment, Judicial Review of Dismissals of Civil Service Employees for Off-Duty Misconduct: The Approach of the Federal Circuit, 34 Am. U. L. Rev. 439 (1985); Howard C. Westwood, The “Right” of an Employee of the United States Against Arbitrary Discharge, 7 Geo. Wash. L. Rev. 212 (1938). On the legislative veto: Robert G. Dixon Jr., The Congressional Veto and Separation of Powers: The Executive on a Leash?, 56 N.C. L. Rev. 423 (1978); Louis Fisher, The Legislative Veto: Invalidated, It Survives, Law & Contemp. Probs., Aug. 1993, at 273; Robert W. Ginnane, The Control of Federal Administration by Congressional Resolutions and Committees, 66 Harv. L. Rev. 569 (1953); and H. Lee Watson, Comment, Congress Steps Out: A Look at Congressional Control of the Executive, 63 Cal. L. Rev. 983 (1975). Other works include: Joseph Cooper & Ann Cooper, The Legislative Veto and the Constitution, 30 Geo. Wash. L. Rev. 467 (1962); Cornelius P. Cotter & J. Malcolm Smith, Administrative Accountability to Congress: The Concurrent Resolution, 9 W. Pol. Q. 955 (1956). On impeachment: Raoul Berger, Impeachment: The Constitutional Problems (1973); William H. Rehnquist, Grand Inquests: The Historic Impeachments of Justice Samuel Chase and President Andrew Johnson (1992). On presidential signing statements: Kenneth R. Mayer, With the Stroke of a Pen: Executive Orders and Presidential Power (2001); Christopher S. Kelley, The Unitary Executive and the Presidential

Bibliographic Note

515

Signing Statement (2003) (unpublished Ph.D. dissertation, Miami University), available at http://www.ohiolink.edu/etd/send-pdf.cgi?miami1057716977 (last accessed Aug. 10, 2007). On the president’s authority to construe the constitution: Michael Stokes Paulsen, The Most Dangerous Branch: Executive Power to Say What the Law Is, 83 Geo. L.J. 217 (1994); Christopher N. May, Presidential Defi ance of “Unconstitutional” Laws: Reviving the Royal Prerogative, 21 Hastings Const. L.Q. 865 (1994). On the creation of the Justice Department: Griffi n B. Bell & Ronald J. Ostrow, Taking Care of the Law (1982); Griffi n Bell, The Attorney General: The Federal Government’s Chief Lawyer and Chief Litigator, or One Among Many?, 46 Fordham L. Rev. 1049 (1978); Homer C. Cummings & Carl McFarland, Federal Justice: Chapters in the History of Justice and the Federal Executive (1937). For analyses of the opinions of the attorney general: Martin S. Sheffer, Presidential Power: Case Studies in the Use of the Opinions of the Attorney General (1991); Susan Low Bloch, The Early Role of the Attorney General in Our Constitutional Scheme: In the Beginning, There Was Pragmatism, 1989 Duke L.J. 561. On the Office of Legal Counsel: Douglas W. Kmiec, OLC’s Opinion Writing Function: The Legal Adhesive for a Unitary Executive, 15 Cardozo L. Rev. 337 (1993); Nelson Lund, Lawyers and the Defense of the Presidency, 1995 BYU L. Rev. 17; Nelson Lund, Rational Choice at the Offi ce of Legal Counsel, 15 Cardozo L. Rev. 437 (1993). For discussions of centralized control over litigation by independent agencies, see Neal Devins, Unitariness and Independence: Solicitor General Control over Independent Agency Litigation, 82 Cal. L. Rev. 255 (1994); James R. Harvey III, Note, Loyalty in Government Litigation: Department of Justice Representation of Agency Clients, 37 Wm. & Mary. L. Rev. 1569 (1996); Kristen A. Norman-Major, The Solicitor General: Executive Policy Agendas and the Court, 57 Alb. L. Rev. 1081 (1994). On Office of Management and Budget control of rulemaking: Harold H. Bruff, Presidential Management of Agency Rulemaking, 57 Geo. Wash. L. Rev. 533 (1989); Joseph Cooper & William F. West, Presidential Power and Republican Government: The Theory and Practice of OMB Review of Agency Rules, 50 J. Pol. 874 (1988); Kenneth Culp Davis, Presidential Control of Rulemaking, 56 Tul. L. Rev. 849 (1982); Caroline DeWitt, Comment, The President’s Council on Competitiveness: Undermining the Administrative Procedure Act with Regulatory Review, 6 Admin. L.J. Am. U. 759 (1993); Michael Herz, Imposing Unifi ed Executive Branch Statutory Interpretation, 15 Cardozo L. Rev. 219 (1993); Erik D. Olson, The Quiet Shift of Power: Offi ce of Management & Budget Supervision of Environmental Protection Agency Rulemaking Under Executive Order 12,291, 4 Va. J. Nat. Resources L. 1 (1984); James T. O’Reilly & Phyllis E. Brown, In Search of Excellence: A Prescription for the Future of OMB Oversight of Rules, 39 Admin. L. Rev. 421 (1987); Robert V. Percival, Checks Without Balance: Executive Offi ce Oversight of the Environmental Protection Agency, Law & Contemp. Probs., Autumn 1991, at 127; Robert V. Percival, Presidential Management of the Administrative State: The Not-So-Unitary Executive, 51 Duke L.J. 963 (2001); Morton Rosenberg, Congress’s Prerogative over Agencies and Agency Decisionmakers: The Rise and Demise of the Reagan Administration’s Theory of the Unitary Executive, 57 Geo. Wash. L. Rev. 627 (1989); Lawrence J. White, Reforming Regulation: Processes and Problems (1981).

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Index

Ableman v. Booth, 223 Acheson, Dean, 310 Ackerman, Bruce, 14, 66, 217, 304 Adams, Abigail, 69, 71 Adams, Henry, 73, 192 Adams, John, 33, 45, 58–63, 66, 91, 229; on despotic power, 31; law execution and, 59–61, 62, 88; “midnight appointments,” 68; removal power and, 61–62, 69, 267; unitary executive and, 93; as vice president, 35, 248 Adams, John Quincy, 88, 91–94, 97, 138; Hayes compared with, 197, 201; as House Speaker, 119; removal power and, 92–93; as secretary of state, 85, 86, 87; unitary executive supported by, 91 Adams, Sherman, 319, 332 Administrative Procedure Act, 389 Advisory Council on Executive Organization (Ash Council), 350–52, 352, 425

African Americans, 168, 175; as cabinet members, 338–39; Eisenhower and, 320–21; emancipation of, 428; Reconstruction and, 193; Truman and, 315 Agency for International Development (AID), 335, 386 Agnew, Spiro, 339 Agricultural Trade Development and Assistance Act (1964), 343 Agriculture, Department of, 370 Akerman, Amos T., 193, 194 Alford, Julius, 135 Alger, Russell, 233 Alien and Sedition Acts, 60, 61, 67, 68, 69–70, 420 Alito, Samuel, 13 Altgeld, John Peter, 229 Ames, 120 Anti-Federalists, 64 appointment power, 35, 81, 110, 220, 243–44, 452n25 Appointments Clause, 413, 414

517

518

Index

appropriations riders, 17, 104, 187; Buchanan and, 158–59; Hayes and, 198–99; Hoover Commission and, 311; Johnson (Lyndon) and, 340–41; Roosevelt (Franklin) and, 282–83; United States v. Lovett and, 308–10 aristocracy, 129 Armed Services Committees, 313 Armstrong, John, 79 Army Appropriations Act (1860), 159 Army Appropriations Act (1867), 177, 187 Arnett v. Kennedy, 7, 367 Arthur, Chester A., 189, 199–200, 202, 206–08 Articles of Confederation, 13, 30; Constitutional Convention and, 33; “executive by committee,” 20, 37; executive power in plural body, 32–33; removal power and, 112; Washington and, 40 Ash, Roy, 347, 350 Ash Council. See Advisory Council on Executive Organization (Ash Council) Ashcroft, John, 410, 413 Aspin, Les, 393 assassination, 221, 340, 430; of Garfield, 205, 206; of Kennedy, 336; of Lincoln, 173, 174, 190; of McKinley, 237, 238 attainder, bill of, 309 attorneys general, 28, 47, 90, 426; Bush (G. H. W.) and, 386; Bush (G. W.) and, 410; Carter and, 363–64, 368, 369, 371; Cleveland and, 227; Clinton and, 400, 403; Eisenhower and, 319, 326, 327, 329; Fillmore and, 151, 421; Ford and, 359; Grant and, 192–93, 421; Harrison (Benj.) and, 221, 222; Hayes and, 201; Hoover and, 312; Jackson and, 101, 103, 421; Jefferson and, 74; Johnson (Andrew) and, 176, 185; Johnson (Lyndon) and, 340; Kennedy and, 331, 333; Lincoln and, 167, 169, 421; Monroe and, 88, 421; Nixon and, 352–53, 355, 357; Pierce and,

153, 154, 155, 421; Polk and, 142, 421; Reagan and, 374–75; Roosevelt (Franklin) and, 289; Roosevelt (Theo.) and, 241; Taylor and, 421; Truman and, 306; Van Buren and, 126, 127 Babcock, Orville, 195 Bailey v. Richardson, 321 Baker, James, 375, 392 Bakke case, 368 Balanced Budget and Emergency Deficit Control Act of 1985 (Gramm-Rudman-Hollings Act), 379 Ball, George, 332 Ballinger, Richard, 248, 249, 471n13 Bank of the United States (first), 45, 53–54 Bank of the United States (second), 60, 67, 96, 119–22, 139, 419, 451n3; abolition of, 5; Exposé, 106–07, 108; House of Representatives and, 116–18; origins of, 105–06; “pet” banks plan, 106; president’s law execution power and, 103; Protest by Jackson, 110–15; removal of deposits demanded, 107–08, 421; Senate bill to limit removal power, 118–19; Vesting Clause and, 84; Veto Message (1832) and, 98; Whig support for rechartering of, 134, 136 Bannard, Otto T., 247 Barbour, James, 128–29 Barr, William, 386 Barton, David, 100 Bates, Edward, 169, 170, 172 Bayard, James, 453n42 Beck, James M., 267, 268 Begala, Paul, 395 Bell, Griffin, 363–64 Benson, Egbert, 35, 120 Benton, Thomas Hart, 116, 117, 135 Bentsen, Lloyd, 392 Bergeron, Paul, 139, 140, 141 Berrien, John MacPherson, 101, 102, 154 Biddle, Francis, 283

Index Biddle, Nicholas, 105, 107, 117, 118 Bin Laden, Osama, 408 Bingham, John A., 185, 463n31 Bingham, William, 50 Binkley, Wilfred, 138, 172, 196 Black, Hugo L., 20 Black, Jeremiah, 463n29 Blackstone, William, 47 Blaine, James G., 224–25 Blair, Frank, 170 Blumenthal, Michael, 363 Board of the Treasury, 41, 44 Boke, Richard L., 309 Bolton, John R., 376 Bonaparte, Charles J., 241 Bork, Robert, 353–54, 426, 433n2 Bornet, Vaughn Davis, 338, 339, 340 Boutwell, George S., 185, 463n31 Bowles, Chester, 332 Bowsher v. Synar, 27, 379, 437n12 Boxer Rebellion, 237 Bradbury, James, 146 Bradley, Omar, 307 Brandeis, Louis D., 15, 268, 471n13 Brewer, David J., 228 Breyer, Stephen G., 401 Bricker, John, 329 Bristow, Benjamin, 193, 194, 195 Britain (England), 47, 65, 137, 155, 225; Crown’s removal power in, 309; executive branch and law enforcement in, 37–38; Stuart kings, 31; treaties with, 138; wars with France, 49; Whig Party, 97 Brown, Walter F., 262 Brown v. Board of Education, 320 Brownell, Herbert, Jr., 319, 326, 327 Brownlow Committee. See Committee on Administrative Management (Brownlow Committee) Bruff, Harold, 75 Bryan, William Jennings, 255 Brzezinski, Zbigniew, 383 Buchanan, James, 135, 152, 157–65, 208, 240, 469n4; appropriations rider

519

and, 158–59; removal power and, 158; Southern secession and, 159–60, 163, 166; unitary executive and, 157; veto power and, 157; as weak or worst president, 17, 157, 160, 165 Buckalew, Charles, 462n6 Budget and Accounting Act (1920), 256, 294 Budget and Accounting Act (1921), 262, 263 Budget and Impounding Control Act (1974), 354 Bureau of Forestry, 241–42 Bureau of Internal Revenue, 270, 306 Bureau of the Budget, 256, 257, 262–63, 264, 301, 421; Brownlow Committee and, 292; Coolidge and, 266–67; Eisenhower and, 319; in Executive Office of the President, 299; Johnson (Lyndon) and, 342, 427; Kennedy and, 334; Nixon and, 347; Roosevelt (Franklin) and, 280, 299; Truman and, 306. See also Office of Management and Budget (OMB) bureaucracies, federal, 6–7, 279; cabinet secretaries and, 346; civil service laws (1880s), 100; growth in modern era, 303; Jeffersonian opposition to, 66; president’s control over, 334, 393 Burk, John Daly, 61 Burke, Edmund, 15 Burnett, John D., 211 Burr, Aaron, 68, 420 Butler, Benjamin, 463n31 Bush, George H. W., 5, 303, 375, 381, 384–90; direction of executive agencies, 386–87; as head of CIA, 358; independent agencies and, 389, 425; independent counsel law and, 11; Iran-Contra scandal and, 11; legislative veto and, 389; regulatory policy and, 12, 393, 394; signing statements, 387–88; unitary executive and, 384, 387, 388, 389–90; veto power and, 385–86

520

Index

Bush, George W., 9, 13, 14, 19–20, 28, 389, 405–16; control over administration, 406–08; controversial election of, 405–06; executive orders, 407, 412–13; Gonzales retained as attorney general, 8; Homeland Security Department and, 11–12, 408–09; law execution and, 406; Posse Comitatus Act and, 197; regulatory policy and, 12; removal power and, 6, 409–10, 413–15; unitary executive and, 405, 406, 408, 428; war on terrorism and, 18–19, 408, 410–11, 429, 430 Bush Doctrine, 408 Butler, Benjamin F., 125, 127, 129, 154, 185, 191 Butz, Earl, 358 Byrnes, James, 297 cabinets/cabinet secretaries, 8, 41, 51; Adams (John Q.) and, 92; Bush (G. H. W.) and, 385; Carter and, 363; Cleveland and, 209–10; Clinton and, 392, 402; Coolidge and, 269, 271; Doctrine of Direct Representation and, 97; Eisenhower and, 319; Fillmore and, 138; Ford and, 356–57; Grant and, 194–95; Harding and, 261, 263–64, 269; Harrison and Tyler administrations, 136, 137; Harrison (Benj.) and, 219; Harrison (Wm. H.) and, 131; Hayes and, 200; Jefferson and, 66; Johnson (Andrew) and, 180; Johnson (Lyndon) and, 338–40; Kennedy and, 332, 336; Lincoln and, 169–70; McKinley and, 232–33; Nixon and, 346; Roosevelt (Theo.) and, 238, 240–41, 244; Truman and, 305–06, 307, 314; Tyler and, 134; Washington and, 420 Cable Television Protection and Competition Act of 1992, 385 Caesarism, 125, 128, 134 Cafeteria and Restaurant Workers Local 473 v. McElroy, 322

Calabresi, Steven, 14, 485n67 Calhoun, John C., 84–85, 108, 115–16, 118–19, 161, 454n65 Califano, Joseph, 339, 363 Cameron, Simon, 171, 172 Camp Blanding Bill, 326, 327 Card, Andrew, 389, 406 Carter, Jimmy, 54, 140, 362–73, 404, 410; independent agencies and, 425; law execution and, 372–73; legislative veto and, 368–71; political weaknesses of, 362–63; post-Watergate reforms and, 363–68, 426, 427; regulatory policy and, 12; removal power and, 363–64, 422 Casper, Gerhard, 75 Cass, Lewis, 117 Castel, Albert, 174 censure resolution, against Jackson, 124–25 Central America, 225 Central Intelligence Agency (CIA), 343, 347, 358, 367, 409–10 Chambers, John, 131 Chandler, Zacariah, 185 Chase, Samuel, 167, 463n31 Chavez, Dennis, 480n41 Cheney, Dick, 358, 362, 406, 408 Cheney v. U.S. District Court for the District of Columbia, 407 Cherokee Indians, 40, 50, 98 Chevron USA Inc. v. Natural Resources Defense Council, 382, 389 China, 237, 277, 307 Christopher, Warren, 393 Cisneros, Henry, 392 Civil Aeronautics Board (CAB), 287, 334 civil liberties, 31 civil rights, 197, 198; Eisenhower and, 320–21; Grant and, 195; Kennedy and, 331, 333, 336 Civil Rights Act (1866), 175–76 Civil Rights Act (1964), 341–42, 350 Civil Rights Act (1991), 388

Index Civil Service Act of 1883 (Pendleton Act), 7, 207, 213, 220–21, 322, 367, 422; Arthur and, 207; Carter and, 367–68; Cleveland and, 213, 230; Harrison (Benj.), and, 220–21; limit on removal power, 243; McKinley and, 236; Roosevelt (Franklin) and, 288; Roosevelt (Theo.) and, 242–43 Civil Service Commission, 207, 220, 221, 230, 236, 288, 300; Carter and, 367; Cleveland and, 213, 230; Eisenhower and, 321–22; Harrison (Benj.) and, 220; McKinley and, 236; Nixon and, 349; Roosevelt (Theo.) and, 220, 230, 243; Taft and, 249 Civil Service Reform Act of 1978 (CSRA), 367–68, 376, 422–23 civil service system, 6–7, 14, 217, 419, 422–23, 483n8; Arthur and, 207; Cleveland and, 212–13, 230; Eisenhower and, 321–22; Garfield and, 204, 205; Harrison (Benj.) and, 220–21; Hayes and, 199; Kennedy and, 333–34; Madison and, 79; McKinley and, 235–36; Nixon and, 349; removal power and, 16; Roosevelt (Franklin) and, 288–89; Roosevelt (Theo.) and, 242–43; rotation in office and, 100; Taft and, 249–50; unitary executive and, 300 Civil War, 159, 171, 190, 218, 226, 340; extraordinary executive power and, 163, 165; law execution and, 170; Lincoln’s conduct of, 163, 173, 421, 428; pardons following, 48 Civiletti, Benjamin, 371 Civilian Exclusion Orders, 281 Clark, Bennett Champ, 296–97 Clark, Ramsey, 493n30 Clark, Tom, 15 Clark, William, 100 Clay, Henry, 123, 130, 132, 147, 161; “Corrupt Bargain” and, 92; Jackson’s Bank War and, 108–10, 115, 116,

521

118, 119, 128, 454n65; National Intelligencer and, 136 Clay, Lucius D., 319 Clean Air Act Amendments (1990), 388 Cleland, Max, 409 Clements, Kendrick, 254, 255 Cleveland, Grover, 6, 189, 209–15, 219, 226–31; civil service and, 230, 242; independent agencies and, 258, 424; as Jacksonian, 226, 227; railroad strike (1894) and, 227–29; removal power and, 209, 212–13, 216, 227, 267, 269, 422; as strong president, 254, 301; Tenure of Office Act and, 27, 210–11, 229, 230, 231; unitary executive and, 227, 231; veto power and, 215 Clifford, Nathan, 142, 229 Clinton, Bill, 5, 7, 140, 391–99, 410; executive orders, 393, 395–96; impeachment of, 5, 400–04, 426; independent agencies and, 391, 394–95, 425; independent counsel law and, 9, 11; law execution and, 393, 394, 395, 398–99; policymaking knowledge of, 391–92; regulatory policy and, 12, 393–95, 396, 427; Reinventing Government project, 397–98; removal power and, 392–93; Reno retained as attorney general, 8; signing statements and, 86, 396–97; Starr’s investigation of, 390 Clinton, Hillary, 392 Clinton v. Jones, 401 Cohens v. Virginia, 223 Colby, William, 358 cold war, 48, 383 Coles, Edward, 81 Coletta, Paolo E., 246, 247, 248, 251 colonial period, 37–38, 47 command, hierarchy of, 85 Commander in Chief Clause, 167 Commentaries (Kent), 120–21 Commerce, Department of, 275, 287, 313, 342

522

Index

Commission on Economy and Efficiency, 250–52, 256, 275 Commission on Organization of the Executive Branch of the Government (first Hoover Commission), 311–12, 313, 425 Commission on Organization of the Executive Branch of the Government (second Hoover Commission), 320, 322, 325, 329, 425, 483n8, 484n30 Committee on Administrative Management (Brownlow Committee), 5, 291–99, 300, 311, 425 common law constitutionalism, 15, 16, 28–29 communism, 307 Competition in Contracting Act (1984) (CICA), 379–80, 387 Compromise of 1850, 144, 149 comptroller general: Bush (G. H. W.) and, 387; Bush (G. W.) and, 406; Carter and, 367; Eisenhower and, 327; Harding and, 263, 264, 267; Kennedy and, 333; Nixon and, 349, 350, 490n26; Reagan and, 379, 380; Roosevelt (Franklin) and, 295, 296, 299; Truman and, 312; Wilson and, 256, 257, 294 Confederacy, 152, 168, 169, 175, 190 Conference Committee, 326 Confiscation Cases, 52 Congress, U.S., 4, 7, 16, 55, 326; Buchanan and, 158–59; Bush (G. W.) and, 410–11, 413, 414; Carter and, 363, 365, 367, 368–71, 370, 371; Civil War and, 19; Clinton and, 396, 397, 399; Coolidge and, 266, 271–72; Eisenhower and, 320, 325, 326–30; executive agencies and, 258; executive branch communications to, 84–85; executive power and, 418–19; Fillmore and, 150; Ford and, 360; Garfield and, 204; Grant and, 191–95; Harding and, 261, 262, 263; Hayes and, 198–99, 201; Hoover

and, 273, 274–76, 277; impeachment power, 110; independent agencies and, 27, 424; independent counsels and, 10–11; Jackson and, 102; Jackson’s Bank War and, 105, 106, 108–10; Jefferson and, 71; Johnson (Andrew) and, 163, 187; Johnson (Lyndon) and, 340–41, 344; Kennedy and, 335; law execution and, 12, 17; legislative veto and, 300; Lincoln and, 166–73; Madison and, 79; McKinley and, 235, 237; Monroe and, 84, 86, 87–88, 91; Nixon and, 347, 351, 352, 354, 355; Pierce and, 153, 155–56; Polk and, 140, 142; presidency dominated by, 218; president’s control of executive branch and, 311; protection of judges and, 224; Reagan and, 376; Reconstruction and, 174, 175; removal power and, 5, 10, 27–28, 121, 234, 271, 308–10, 431; Roosevelt (Franklin) and, 279, 281, 282–83, 284, 288, 290, 292, 295–98, 429; Roosevelt (Theo.) and, 239, 242, 246; separation of powers and, 254, 294; statutes enacted by, 22; Taft and, 251; Taylor and, 147; Treasury Department and, 43–45, 56–57; Truman and, 307, 312, 313–14; Tyler and, 137–38; Washington and, 41, 51; Wilson and, 256, 260; World War I and, 259. See also First Congress (1789); House of Representatives; legislative branch; Senate Congressional Budget Office, 354 Congressional Government (Wilson), 253, 254 Conkling, Roscoe, 191, 192, 199, 200, 204, 205 Conrad, Holmes, 241 conservatives/conservatism, 7, 297, 358 Constitution, 8, 12, 161, 212; Civil War and, 170; Cleveland and, 231; Clinton and, 393; departmentalism and, 80; Eisenhower and, 327, 328;

Index “executive by committee” and, 13; executive power and, 62, 222–23, 231, 293, 296, 407, 431; Hamilton’s views on, 55, 56; Hoover and, 275; interpretation of, 23, 27, 417; Jackson and, 111–15; Jefferson and, 64, 68, 69, 70–71, 75; Johnson (Lyndon) and, 339, 341, 344–45; law execution and, 47, 182; Lincoln and, 428; Madison and, 78, 79; Monroe and, 86; Nixon and, 349; on obstruction of mail and commerce, 228; Philadelphia Convention and, 3; Pierce and, 154–55; presidential succession and, 133; ratification history, 19–20; Reagan and, 382; removal power and, 4, 100, 126, 234; Roosevelt (Franklin) and, 280; Roosevelt (Theo.) and, 239, 240, 244; strong unitary executive and, 28; Taft and, 247; three-branch construction of, 24, 54, 327, 417; Wilson and, 257; writing of, 21. See also Appointments Clause; Commander in Chief Clause; Declaration of War Clause; Eighteenth Amendment; Fifteenth Amendment; First Amendment; Fourteenth Amendment; Guarantee Clause; Necessary and Proper Clause; Opinions Clause; Recommendations Clause; Take Care Clause (Faithful Execution Clause); Thirteenth Amendment; Treaty-Making Clause; Vesting Clause, Article I; Vesting Clause, Article II Constitutional Convention (Philadelphia Convention) (1787), 30, 31, 33–36; Madison at, 77, 82; removal power and, 267; state constitutions and, 32; Virginia Plan, 34, 37 Constitutional Government in the United States (Wilson), 254 constitutionalism, Burkean, 15, 16, 28–29 Continental Congress, 32–33, 39, 47, 58 Coolidge, Calvin, 262, 264, 265–72, 273, 275; federal debt and, 266–67;

523

independent agencies and, 265–66, 271–72; law execution and, 265; removal power and, 267–69, 270; Teapot Dome scandal and, 269–70; unitary executive and, 268, 269, 272 coordinate construction. See departmentalism (coordinate construction) Cornell, Alonzo, 199, 200, 202 Corrupt Bargain, 92 corruption, 9, 107, 194 Corwin, Edward, 119, 171 Coughlin, Charles, 297 Council of Economic Advisors, 306 Council on Competitiveness, 388, 393 Council on Wage and Price Stability, 359 Court of Claims, 283, 308, 309, 323; Myers case and, 256; Wiener case and, 323, 324 Cox, Archibald, 335, 352–53, 354, 403, 410, 425–26 Coxe, Tench, 61 Crampton, John F., 145 Cranch, William, 126, 127 Crawford, William H., 79, 85, 92 Credit Mobilier Affair, 194 Crittenden, John J., 150, 151, 154, 172, 229 Cross, Frank, 280 Cuba, 236, 237 Cummins, H. E. “Bud,” III, 413 Currie, David, 45–46 Curtis, Benjamin R., 185 Curtis, George William, 220 Cushing, Caleb, 153, 154–55 Cushman, Robert, 258, 300, 424 Customs Administrative Act, 233 Customs Service, 250 Dames and Moore v. Regan, 373 Daugherty, Harry, 264, 270, 271 Davis, Garrett, 137 Davis, Jefferson, 152, 175 Davis, John, 61 Davis, Kenneth Culp, 425 Dawes, Charles, 263

524

Index

De Lolme, Jean-Louis, 121 Dean, John, 358–59 Deaver, Michael, 375 Debs, Eugene V., 227, 228 debt, national, 107 Decatur v. Paulding, 128, 421 Decision of 1789, 3, 10, 25, 35, 37, 42, 78, 96, 250, 419; Adams and, 59, 229; broad presidential power favored by, 27; Calhoun’s proposal and, 118–19; Clay and, 118; Cleveland and, 270; Congress and, 121; Coolidge and, 270; executive direction and, 250; Guthrie case and, 154; Hamilton and, 56; Hayes and, 201; Hennen case and, 128; Jackson and, 181; Johnson (Andrew) and, 180–81, 185, 187; Johnson (Lyndon) and, 345; Kendall case and, 127; Kent and, 35, 120–21, 229; as legislative construction of Constitution, 120; legislative vetoes and, 345; Madison and, 56, 78, 79, 82, 87, 121, 127, 137, 270, 345, 347; Monroe and, 87; Myers case and, 267; Nixon and, 347; Parsons case and, 229; removal as inherent executive power, 35, 116, 137, 154, 201, 229, 233; removal power and, 87, 185, 267; separation of powers and, 347; Shurtleff case and, 233; Story and, 35, 121, 229; Tyler and, 137; unitary executive and, 419; Washington and, 42; Webster and, 116, 118, 121 Declaration of Independence, 75 Declaration of War Clause, 78–79 Defense, Department of, 326, 337 Defense Appropriations Act of 1956, 326–27 Defense Reorganization Act (1958), 320 Dellinger, Walter, 396–97 democracy, 129, 184, 298, 314; bureaucracy as instrument of, 279; direct election of president and, 97; legislative supremacy and, 31

Democratic Party, 61, 144, 150, 196; Buchanan and, 157; Bush (G. H. W.) and, 385; Bush (G. W.) and, 408–09; Civil War and, 170, 171; Cleveland and, 210; Clinton impeachment and, 403; independent counsel law and, 11; Jacksonian/Jackson’s legacy, 97–98, 116, 117, 132, 136, 153; Johnson (Andrew) and, 174; New Democrats, 397; Northern (post–Civil War), 176, 185; Pierce and, 152, 153; Polk and, 139; Posse Comitatus Act and, 197; Reconstruction and, 197, 198; Roosevelt (Franklin) and, 297; Van Buren and, 125; Watergate scandal and, 355; Whig challenge to removal power and, 135. See also Republicans (Democratic-Republican Party) Denby, Edwin, 269–70, 271 departmentalism (coordinate construction), 23, 80, 168–69, 317, 382, 417–18 despotism, 30–32, 130 Destutt de Tracy, A.C.V.C., 76 DeWitt, J. L., 281 Dickinson, Daniel, 146 dictatorship, 297, 298, 310 Digital Millennium Copyright Act (1998), 393 district attorneys, 38, 46, 419; Adams (John) and, 60; Jackson and, 103; Jefferson and, 67, 68; Lincoln and, 167; Monroe and, 88; Sedition Act and, 67; Washington and, 49, 50, 51 Dixon, Robert G., Jr., 352 Doctrine of Direct Representation, 96–97 Doenecke, Justus, 206–7 Dred Scott case, 157, 168, 185, 244 Duane, William J., 5, 60, 67; appointment of, 106; conflict with Jackson, 106; Exposé and, 106–07; Jackson’s removal of, 81, 99, 100, 111, 117, 119–20, 160, 419; removal of bank deposits and, 107–08; senators’ defense of, 109

Index Dulles, Allen, 409 Dulles, John Foster, 319 Duskin, George M., 211–12, 216, 270 Economy Act (1932), 275, 276 Edmunds, George F., 211 Eighteenth Amendment, 264, 271 Eisenhower, Dwight D., 303, 318–30, 343; executive orders and, 321; “hidden-hand leadership” of, 318–19; independent agencies and, 323–25, 330, 425; law execution and, 320–21, 323, 330, 351; legislative veto and, 326–30; removal power and, 321–25, 330, 422 Eizenstat, Stuart, 370 Electoral College, 35, 196, 219, 291 Ellsberg, Daniel, 355 Ellsworth, Oliver, 34 Emancipation Proclamation, 170 Embargo Act (1807), 72, 74, 421 emergency powers, 19, 20, 354, 412 Emergency Price Control Act (1942), 282, 290 Enforcement Acts (1870, 1871), 72, 74, 193, 194 England. See Britain (England) Environmental Protection Agency (EPA), 27, 348, 382 Ethics in Government Act (EIGA), 11, 365–66, 378, 410, 420, 437n12; Bush (G. H. W.) and, 386, 390; Carter and, 365–66; Clinton impeachment and, 400–04; Reagan and, 376–77, 426; rise and fall of, 426–27 Evarts, William M., 185, 197 Ewing, Thomas, 100–01 Ex parte Gilchrist, 73–74 Ex parte Hennen, 128, 236 Ex parte Merryman, 168 Ex parte Quirin, 411 executive branch, 4, 5, 8, 66, 269; appointment power and, 220; Brownlow Committee and, 291–99; congressional control over, 17; coordinate

525

construction and, 80; establishment of, 34; growth in strength of, 123; hierarchical structure of, 277; independent agencies and, 350; law execution and, 37–38, 42, 96, 371; in modern era, 303; presidential control over, 8, 14–15, 29, 63, 104, 120, 153, 172, 204, 299, 430; removal power and, 308; reorganization of, 262; slavery issue and, 161; tripartite government and, 335; unitary theory of, 57, 173, 277, 295, 299, 406 executive by committee, 13, 20, 37 executive councils, 31, 33, 34, 76 Executive Office of the President, 280, 299, 301, 334, 372–73 Executive Order 9066, 280–82 Executive Order 9102, 281 Executive Order 10340, 315 Executive Order 12291, 380, 381, 382, 388 Executive Order 12498, 381, 388 Executive Order 12866, 412–13 Executive Order 13083, 396 Executive Order 13095, 396 Executive Order 13422, 412 executive orders, 29, 207, 286, 315, 364, 399, 418, 425; Bush (G. W.) and, 407, 411–13; civil service and, 230, 236, 243, 249–50, 300, 333, 349, 367, 422; Clinton and, 393, 395–96; Eisenhower and, 321; executive reorganization and, 250, 257, 275, 280, 299, 348, 367; Jefferson and, 75; Johnson (Lyndon) and, 349; Kennedy and, 332–34, 336; McKinley and, 236; nondiscrimination and, 280, 314–15, 321, 332–33, 341, 349, 487n17; Pierce and, 155; Reagan and, 380–82, 388; regulatory review and, 372, 380– 82, 388, 393–94, 412–13; Roosevelt (Franklin) and, 279–82, 321, 332–33; Roosevelt (Theo.) and, 242; Truman and, 314–15, 321, 332–33; Washington and, 43; Wilson and, 257

526

Index

executive power, 12, 110, 283; Adams (John) and, 58; antipathy toward, 30, 33; centralization of, 296; Civil War and, 160; division of, 37; “gloss” on, 25, 316, 418; Hamilton’s defense of, 54–56; Harrison (Benj.) and, 220; Jefferson and, 66, 67, 72; Lincoln and, 171, 173; Monroe and, 84; plural executive in French Revolution, 76; Roosevelt (Franklin) and, 282; state constitutions and, 32; Steel Seizure case and, 315, 316 executive privilege, 153, 330, 366, 401, 407 exemptions, granting of, 221 Export Control Act (1961), 340 Fair Labor Standards Act (1938), 297 Fall, Albert, 269 Fausold, Martin, 274, 276–77 Federal Advisory Committee Act, 359, 407 Federal Bureau of Investigation (FBI), 339, 354, 429 Federal Communications Commission (FCC), 6, 53, 398, 423, 424; Kennedy and, 334; Roosevelt (Franklin) and, 283; Truman and, 313 Federal Election Commission (FEC), 398 Federal Election Commission v. NRA Political Victory Fund, 398 Federal Legal Council, 368, 380 Federal Maritime Board, 313, 335 Federal Power Commission (FPC), 258, 274, 283, 334, 342, 424 Federal Radio Commission (FRC), 271–72 Federal Reserve Board, 6, 53, 300, 424; Clinton and, 398; Coolidge and, 265; creation of, 257, 258; Harding and, 262; Kennedy and, 335; members removable “for cause,” 10; Roosevelt (Franklin) and, 287 Federal Trade Commission (FTC), 6, 53, 300, 398, 424; Coolidge and, 265;

Kennedy and, 335; Roosevelt (Franklin) and, 283–85, 286; Shurtleff case and, 235; Wilson and, 258–60 Federal Trade Commission Act (FTC Act) (1914), 258, 259, 284–85, 424 Federalist Papers, The, 23, 35, 55–56; Federalist No. 49, 417, 435n2; Federalist No. 70, 120, 326, 352; Federalist No. 77, 120, 142 Federalist Party, 69, 74, 100; Adams (John Q.) and, 91, 92, 93–94; foreign policy and, 62; “midnight appointments” and, 68 Ferrell, Robert, 266–67, 271 Field, Stephen, 19, 221, 222, 223, 430 Fifteenth Amendment, 193, 194 Fillmore, Millard, 148–51, 153, 421; removal power and, 150–51; slavery legislation and, 149–50; unitary executive and, 150 First Amendment, 414, 422 First Congress (1789), 21, 35–36, 42, 46, 59, 96; Madison in, 77; Treasury Department and, 112. See also Congress, U.S. Fish, Carl Russell, 135 Fiske, Robert, 400 Fitz, Gideon, 101 Fitzgerald, Patrick, 410 Flaherty, Martin, 17, 304 Floyd, John B., 158 Food and Drug Administration (FDA), 388 Ford, Charles, 463n30 Ford, Gerald R., 356–61, 406; law execution and, 357, 359–60, 361; legislative veto and, 360–61, 371; Nixon pardoned by, 356, 357, 361; regulatory policy and, 12, 360–61; removal power and, 358–59 Foreign Affairs, Department of, 35, 44, 59 foreign affairs power, 20, 21, 406, 429 Foreign Aid and Related Agencies Appropriations Act (1963), 335

Index foreign policy: Bush (G. W.) and, 405, 411–12, 428; Carter and, 363; executive power and, 277; Harrison (Benj.) and, 224–25; Monroe Doctrine, 84, 272; Tyler and, 137 forests, national, 221, 241–42, 249 Fort Sumter, 159, 160, 171 Foster, Vince, 11, 401 Fourteenth Amendment, 178, 186, 194 France, 41, 43, 49, 76, 107 Frankfurter, Felix, 15, 20, 316, 417–18; “gloss on the text” standard, 26; United States v. Midwest Oil Co. and, 25; on Wiener case, 324 Freedmen’s Bureau Bill, 175 French Revolution, 76 Fried, Charles, 374, 377 Fries Rebellion, 61 Frug, Gerald, 6, 7, 250 Frum, David, 406, 408, 409–10 Fugitive Slave Act (1850), 149–50, 153, 160, 170 Fuller, Melville W., 223 Gallatin, Albert, 64, 66, 68, 72, 73, 93 Gannett, Frank, 297 Gara, Larry, 152, 153 Gardner, William, 61 Garfield, James A., 189, 203–05, 238 General Accounting Office (GAO), 256–57, 263, 312 General Services Administration, 352, 397 Genet, Citizen Edmond-Charles, 49 George III, King, 30 Gerry, Elbridge, 33 Giglio, James, 331, 332 Gilpin, Henry, 128 Glorious Revolution (1688), 97 Gonzales, Alberto, 8, 413–14, 415, 430 Gorbachev, Mikhail, 383 Gore, Albert, 397 Gore, Christopher, 48

527

Gould, Lewis, 232, 233, 237, 239, 240, 241; on Keep Commission, 243–44; on Roosevelt Corollary to Monroe Doctrine, 244; on Roosevelt (Theo.) cabinet, 238; on stewardship theory, 239–40 Gramm-Rudman-Hollings Act. See Balanced Budget and Emergency Deficit Control Act of 1985 (Gramm-Rudman-Hollings Act) Grand Old Party (GOP). See Republican Party (Grand Old Party) (GOP) Granger, Gideon, 66, 79, 132 Grant, Ulysses S., 167, 176, 190–95, 199, 320; as army general, 169; cabinet, 346; corruption in second term, 194–95; Johnson impeachment and, 183–84, 184–85, 187, 463n30–31; law execution and, 190, 193; Reconstruction and, 181–82, 190, 193–94, 195; removal power and, 216; Tenure of Office Act and, 189, 190–92, 195, 203, 216 Gray, C. Boyden, 381, 384 Great Depression, 278, 340 Great Society, 7, 340 Greene, Abner, 304 Greene, John Robert, 358, 384–85 Greenleaf, Ann, 60 Greenstein, Fred I., 318 Grenada, invasion of, 383 Grider, Henry, 138 Groesbeck, William S., 185, 463n29 Guantánamo Bay detentions, 430 Guarantee Clause, 177, 178 Gulf War, first, 406 Gwyn, William, 46, 47 habeas corpus, 194, 228, 428, 430; Lincoln’s suspension of, 166–67, 168; Neagle case and, 221 Haig, Alexander, 346, 356, 375 Haldeman, H. R., 346, 362 Halleck, Henry, 169 Hamdan v. Rumsfeld, 411

528

Index

Hamdi v. Rumsfeld, 411, 412 Hamilton, Alexander, 41, 42, 44–45, 51, 61, 78; Adams (John Q.) and, 91; executive power defended by, 54–56, 239; Jefferson as political opponent of, 64–65, 71; mercantilism of, 72; Pacificus letters, 54, 56; unitary executive and, 93, 411; Vesting Clause and, 99; writings for The Federalist, 120, 142, 326, 352 Hancock, Winfield S., 182 Harding, Warren, 261–64, 266, 275, 347; independent agencies and, 262; law execution and, 261, 263; unitary executive and, 261; as weak president, 17, 261 Harmon, John, 365, 368, 376 Harris, Joseph, 485n67 Harrison, Benjamin, 217, 219–25, 229, 242, 304; appointment power and, 220; foreign policy, 224–25; law execution and, 220–23; Neagle case and, 221–24; removal power and, 422; unitary executive and, 221, 225 Harrison, Richard, 51 Harrison, William Henry, 129, 130–32, 135, 137, 141; removal power and, 131–32; unitary executive and, 130; as war hero, 144 Hart, James, 41, 43, 59, 77–78 Hay, George, 68 Hay, John, 238 Hayburn’s Case, 50 Hayes, Rutherford B., 189, 193, 196–202, 204; appropriations riders and, 198–99; disputed election of, 196, 197, 405; law execution and, 197–98; Reconstruction ended by, 201; removal power and, 199–201, 202; veto power and, 198, 199 Hazlett, Swede, 320 Health, Education, and Welfare, Department of, 359 Health and Human Services, Department of, 386

Heath, Perry S., 241 Helvidius letters (Madison), 78–79 Henderson, John B., 463n30 Heney, Francis J., 241 Hermann, Binger, 241 Hill-Burton Act. See Hospital Survey and Construction Act of 1946 (HillBurton Act) Hirabayashi v. United States, 281 Hiroshima, atomic bombing of, 307 Hiss, Alger, 310 Hoar, George Frisbie, 212 Hoar, Rockwood, 193 Hobart, Garret A., 233 Hobbs Act (1946), 314 Holder, Eric, 402–3 Holmes, John, 100 Holmes, Oliver Wendell, Jr., 187, 268 Homeland Security, Department of, 6, 9, 11–12, 25, 408–9 Hoogenboom, Ari, 197 Hooker, Joseph, 169 Hoover, Herbert, 273–77, 283, 311, 312; administrative reorganization and, 273–74; independent agencies and, 276–77, 424; law execution and, 273, 276, 277; Prohibition and, 276–77; removal power and, 274–75, 277; as secretary of commerce, 264, 273; veto power and, 275–76 Hoover Commission, first. See Commission on Organization of the Executive Branch of the Government (first Hoover Commission) Hoover Commission, second. See Commission on Organization of the Executive Branch of the Government (second Hoover Commission) Hospital Survey and Construction Act of 1946 (Hill-Burton Act), 333 House of Representatives, 65, 111, 113; Brownlow Committee and, 296, 297, 298; Buchanan and, 158; Carter and, 371; Clinton impeachment and, 11, 401; Eisenhower and, 325,

Index 327; Ford and, 360, 361; Garfield and, 203; Hamilton and, 64; Hayes and, 198–99; Jackson and, 99, 104, 116–18; Johnson (Andrew) impeachment and, 5, 179–80, 185; Johnson (Lyndon) and, 344; Madison in, 81; Monroe and, 84; Reconstruction and, 197; Roosevelt (Franklin) and, 282; Roosevelt (Theo.) and, 239. See also Congress, U.S. House Un-American Activities Committee, 282, 310 Housing and Urban Development, Department of (HUD), 338, 339–40, 342 Hughes, Charles Evans, 264 Hulburd, Calvin, 176–77 Humphrey, George M., 319 Humphrey, Hubert, 338 Humphrey, William E., 266, 283–84, 285 Humphrey’s Executor v. United States, 9, 14, 27, 216, 424, 499n23; Coolidge and, 266; independent agencies and, 16, 260, 423, 425; Morrison v. Olson and, 377–78; Myers case and, 365; removal power and, 53, 214; Roosevelt (Franklin) and, 266, 284–88, 288, 300; Shurtleff case and, 235; Wiener case and, 324–25 Hunt, Theodore, 100 Immigration Reform and Control Act (1986), 383 impeachment, 5, 11, 212, 308; of Clinton, 5, 400–04, 426; as congressional power, 110, 111; Jackson’s Bank War and, 117; of Johnson (Andrew), 176–87, 419 imperial presidency, 218, 226, 304; McKinley and, 232, 237; Nixon and, 357; Wilson and, 255 In re Debs, 316, 412 In re Neagle, 19, 221–24, 225, 316, 412, 430 independent agencies, 27, 53, 217, 289, 418, 423–25, 451n3; Bush (G. H.

529

W.) and, 389; Bush (G. W.) and, 406; Carter and, 425; Cleveland and, 258, 424; Clinton and, 394–95; Coolidge and, 265–66, 271–72; Eisenhower and, 323–25, 330, 425, 484n33; Harding and, 262; Hoover and, 276, 277, 424; Johnson (Lyndon) and, 342, 425; Kennedy and, 334–35, 336; management of executive branch and, 293–94; Nixon and, 350–51, 425; president’s law execution and, 299–300; Reagan and, 376, 380, 381, 382, 425, 500n48; Roosevelt (Franklin) and, 283–89, 424, 425, 480n40; Truman and, 317, 425; Wilson and, 257–60, 424 Independent Board of Exchequer, 134 Independent Counsel Act, 403 independent counsel law, 4, 6, 9. See also Ethics in Government Act (EIGA) independent counsels (special prosecutors), 217, 425–27; Bush (G. H. W.) and, 390; Carter and, 365; Clinton impeachment and, 400–01; constitutionality of, 13; Ford and, 359–60; Myers case and, 365; presidential removal power and, 300; Reagan and, 5, 11, 377–78; Roosevelt (Theo.) and, 241; Truman and, 306; Watergate scandal and, 10–11, 353, 354, 425–26 Indian treaties/policy, 40, 50, 195 Inland Waterways Corp. v. Young, 316 INS v. Chadha, 12, 13, 15, 275–76, 389; civil service laws and, 349; Clinton and, 397; departmentalism and, 418; on legislative veto, 26; legislative veto and, 300, 327, 369; Reagan administration and, 378–79 inspectors general, 366, 376, 406 Inspectors General Act (1978), 366 Interior, Department of the, 214, 423, 467n28, 471n13 internment of Japanese Americans. See Japanese Americans, internment of

530

Index

Interstate Commerce Act of 1887, 72, 213, 258, 274, 423, 424 Interstate Commerce Commission (ICC), 14, 16, 216, 300, 423–24; creation of, 53; Harding and, 262; Kennedy and, 334; Myers case and, 285; removal power and, 213–14; Shurtleff case and, 235; Truman and, 313 Iran-Contra scandal, 11, 375, 383, 390, 403 Iran hostage crisis, 373 Iraq, 410 Isbrandtsen-Moller Co. v. United States, 286 Jackson, Andrew, 5, 23, 95–104, 145, 156; as army general, 85; Bank of United States and, 54, 60, 67; Bank War and, 96, 100; censured by Senate, 109–10; Cleveland and, 209, 226, 229; constitutional interpretation and, 98; criticized as would-be monarch, 98, 108, 129, 134, 166–67, 239, 396; Decision of 1789 and, 181; Johnson (Andrew) and, 174, 175; Kitchen Cabinet, 106; labor unrest and, 201; law execution and, 95, 96, 101–04, 125; Polk as follower of, 139; Protest to Senate, 110–16; removal power and, 81, 95, 99–101, 132, 267, 269, 409, 452n25; role of president in constitutional system and, 96–99; Roosevelt (Franklin) and, 478n6; Roosevelt (Theo.) and, 244; as senator, 92; signing statement of, 104; spoils system and, 171; as strong president, 17; transformation of presidency by, 95–96; Treasury Department and, 45, 257; Truman and, 314; Van Buren as follower of, 124; as war hero, 144; “Young Hickory” successors, 139, 152. See also Bank of the United States (second) Jackson, Robert H., 20, 289, 316 Jacksonians, The (White), 131

Japan, 277, 307 Japanese Americans, internment of, 280–82 Jaworski, Leon, 354, 410, 426 Jay, John (of New York custom house), 199 Jay, John (of Washington’s cabinet), 41 Jay Commission, 206 Jefferson, Thomas, 34, 56, 58, 61, 64–76, 78, 420; Cleveland and, 209; Congress and, 71; constitutional review and, 23, 69–71; coordinate construction and, 80; direct representation doctrine and, 97; Embargo Act and, 72–73, 420–21; law execution and, 66–68, 71, 88, 103; on legislative power, 32, 33; limits on presidential power of, 73–74; Louisiana Purchase, 75, 84; Monroe administration and, 86; removal power and, 68–69, 100; Revolution of 1800 and, 79; as secretary of state, 45, 49, 50, 65–66; on Tenure of Office Act, 86–87; unitary executive supported by, 64–66, 76; Vesting Clause and, 99; on Washington’s presidency, 41 Jenckes, Thomas, 193 Jewels of the Princess of Orange, 101, 103 Johnson, Andrew, 42, 164, 174–78, 190, 195, 427; criticized as would-be monarch, 396; equal rights abandoned by, 173; impeachment of, 5, 102, 163, 179–87, 189, 402, 419; Lincoln’s strong presidency inherited by, 163, 174–75; lost prestige of presidency and, 216; Reconstruction sabotaged by, 174, 175–76, 177–78, 182–83, 194; removal power and, 174, 176, 182–84, 267; Tenure of Office Act and, 27, 230; unitary executive and, 205; veto power and, 175–76; as weak or worst president, 174 Johnson, Louis A., 306

Index Johnson, Lyndon, 19, 337–45, 421; executive orders, 349; executive power and, 430, 431; independent agencies and, 342, 425; law execution and, 339, 340–42; legislative veto and, 342–45; regulatory policy and, 12, 13; as strong president, 337; Vietnam War and, 339 Johnson, Reverdy, 147, 154 Johnson, William, Jr., 73–74 Joint Committee on Printing, 313 Joint Committee on the Conduct of the War, 172 Jones, Paula, 11, 401 Jordan, Hamilton, 363 Judiciary Act (1789), 46, 47, 51, 52 Judiciary Act (1801), 71 judiciary branch, 28, 38, 71, 275, 283, 296; coordinate construction and, 80; executive power and, 127; independence of, 247; independent counsels and, 359, 403; interpretation of Constitution and, 23, 70, 80; Jackson’s Bank War and, 109; law execution and, 304; presidential control of district attorneys and, 38; Senate and, 81; tripartite government and, 65, 70, 335. See also Supreme Court Justice, Department of, 10, 27, 419; Bush (G. W.) and, 410; Carter and, 363–65, 366, 370; Clinton and, 398, 400, 403; creation of, 88, 167, 193; Eisenhower and, 319, 320; Ford and, 359; Hoover and, 276; Kennedy and, 332; McKinley and, 232–33; Nixon and, 352, 354; Office of Legal Counsel (OLC), 319; Reagan and, 382; Roosevelt (Franklin) and, 280; Roosevelt (Theo.) and, 241; Tax Division, 306; Truman and, 306; United States Attorneys and, 194 Kagan, Elena, 291, 393, 395 Kansas, 153, 158 Karl, Barry, 279, 297, 478n13

531

Katzenbach, Nicholas, 352 Kaufman, Burton I., 362, 363 Keep, Charles, 243 Keep Commission, 243–44, 251, 275 Keim v. United States, 236 Kelley, Christopher, 86, 381–82 Kellogg, Frank B., 271, 272 Kendall, Amos, 106, 126–27 Kendall v. United States ex rel. Stokes, 126–28, 421 Kennedy, John F., 331–36, 337, 422, 425 Kennedy, Robert, 331–32, 340 Kent, James, 35, 38, 50, 120–21, 122, 142, 229, 420 Kent, William, 247 Kessler, David, 388 King, Martin Luther, Jr., 340 The King v. Guerchy, 51 Kissinger, Henry, 358 Klein, Joe, 391, 397, 399 Knote v. United States, 52 Know-Nothing movement, 153 Knox, Henry, 40 Knox, Philander, 241 Korean War, 19, 307–08, 409 Korematsu v. United States, 281 Krent, Harold, 49 Ku Klux Klan, 193, 194, 197 labor unrest, 197, 201, 227–29, 235, 262, 375. See also Youngstown Sheet & Tube Co. v. Sawyer (Steel Seizure case) Lake, Anthony, 392 Lamar, Lucius Q. C., 223, 224 Lance, Bert, 363 Land Revision Act (1891), 221 Landis, James, 334–35, 425 Landis Report, 352 Latin America, 272 law enforcement/execution, 4, 120–21, 122, 182, 218, 418; Brownlow Committee and, 292–93, 294; Bush (G. H. W.) and, 406; Carter and, 372–73; Clinton and, 393, 394, 395, 398–99; Congress and, 12; Coolidge and,

532

Index

law enforcement/execution (continued): 265; Eisenhower and, 320–21, 323, 330, 351; Ford and, 357, 359–60, 361; Grant and, 190, 193; Harding and, 261, 263; Harrison (Benj.) and, 220–23; Hayes and, 197–98; Hoover and, 273, 276, 277; independent agencies and, 334; Jackson and, 95, 96, 101–04, 125; Jefferson and, 66–68, 71, 88, 103; Johnson (Lyndon) and, 339, 340–42; legislative veto and, 325; Lincoln and, 164, 165–66, 167, 168, 170, 173; Madison and, 88; McKinley and, 235; Nixon and, 347, 349–50, 353–55; Reagan and, 379–80; removal power and, 135; Roosevelt (Franklin) and, 279–80, 300, 379; Roosevelt (Theo.) and, 241, 245; Truman and, 317; Wilson and, 256–57, 260, 379 Lawrence, John, 120 Lawson, Gary, 375 Legaré, Hugh S., 137 legislative branch, 32, 55, 286, 295; balance of government powers and, 65; coordinate construction and, 80; executive leadership and, 331, 361; separation of powers and, 343; tripartite government and, 335; Whig notion of, 139. See also Congress, U.S. Lend-Lease Act (1941), 26, 289 L’Enfant, Pierre Charles, 45 Lessig, Lawrence, 72, 74, 96, 97, 304, 425 Lessing, Robert, 256 Leuchtenburg, William, 298 Levi, Edward, 358, 359 Lewinsky, Monica, 4, 401 Lewis, David, 347, 360, 382, 388 Lewis, William B., 125 Libby, I. Lewis “Scooter,” 410 liberals/liberalism, 7, 297 Libya, 408 Lincoln, Abraham, 23, 123, 159, 165–73, 187, 222; assassination of,

173, 174, 190; cabinet secretaries, 169–70; as commander in chief, 166; criticized as would-be monarch, 396; departmentalism and, 168–69; Dred Scott case and, 244; Emancipation Proclamation, 170; emergency powers claimed by, 19, 29, 289, 316, 354, 430; Fugitive Slave Act and, 160; habeas corpus suspended by, 166–67, 168; judicial branch and, 167–68; law execution and, 164, 165–66, 167, 168, 170, 173; Reconstruction and, 171, 175, 421; removal power and, 171–72, 215–16; as strong president, 17, 163, 232; Truman and, 315; unitary executive and, 171; war power and, 167; as Whig, 165, 172 Lindsey, Larry, 409 line item veto, 104 Lippmann, Walter, 265, 338 Livingston, Edward, 67 Lloyd–La Follette Act of 1912, 208, 213, 249–50, 288 Logan, John A., 185 Louisiana, 171, 182, 197 Louisiana Purchase, 75, 84, 428 Lund, Nelson, 155, 375 Lusk, Georgia, 323, 484n41 MacArthur, Douglas, 307–08, 363, 409 MacNamara, Robert, 339 Madison, James, 33, 34, 77–82, 84, 121, 270, 420, 435n2; at Constitutional Convention, 31, 96; Decision of 1789 and, 56, 78, 79, 82, 87, 121, 127, 137, 270, 345, 347; Hamilton criticized by, 56; Helvidius letters, 78–79; on Jackson and Bank War, 96; law execution and, 88; Monroe administration and, 86; removal power and, 77, 79–80, 80–81; separation of powers and, 347; on Tenure of Office Act, 86, 87; unitary executive supported by, 64, 78–79, 80–82; Vesting Clause and, 99

Index Madisonian, The, 136 Malcolm X, 340 Malek, Fred, 347 mandamus, writ of, 70, 71, 73, 126–27, 154, 407 Marbury v. Madison, 23, 24, 71 Marcy, William, 152 Marshall, John, 23, 68, 70, 98 Marston, David, 363 Martin, Joe, 307, 308 Maryland, 19, 166, 168 Mashaw, Jerry, 40, 44; on Jefferson, 73, 74; on Jeffersonians, 66, 72; on Patent Office, 53; on qui tam enforcement, 52 Mason, George, 34 Mason, John Young, 142–43 Massachusetts, 32, 50, 61 Maxey, Samuel, 214 Mayer, Kenneth R., 43, 242, 251–52, 381, 394 McAllister v. United States, 224, 225, 300 McCarthy, Joseph, 310, 330 McCoy, Donald R., 305, 306, 315 McCulloch v. Maryland, 223 McCullough, David, 305, 307, 310, 315 McDonald, Forrest, 71, 97 McGranery, James P., 306 McGrath, J. Howard, 306 McHenry, James, 61 McJimsey, George, 278, 279, 289, 292, 296, 297 McKinley, William, 213, 229, 232–37, 241; assassination of, 237, 238; civil service and, 242; imperial presidency and, 232; law execution and, 235; removal power and, 233–35, 236, 243, 422; Spanish-American War and, 236–37; as strong president, 254, 301 McKinley Tariff Act (1890), 221 McLane, Louis, 106 McNinch, Frank R., 283 McReynolds, James C., 268 Meade, George, 169

533

Meese, Edwin, III, 13, 374, 375, 380, 382 Meigs, Montgomery C., 158–59 Mellon, Andrew W., 264, 271, 274 Meredith, James, 333 Merit Systems Protection Board (MSPB), 367–68, 376 Merrill, Thomas, 23 Merryman, John, 168 Mexican War, 141 midnight appointments, 68 Mifflin, Thomas, 49 military commissions, 430 Military Commissions Act (2006), 411 Military Construction Act (1951), 314, 329 Military Construction Authorization Act (1968), 341 Miller, William Henry Harrison, 221, 222–23 mint, 44, 52 Mitchell, William D., 275, 276, 312 monarchy, 33, 64 Monroe, James, 42, 83–90, 91, 156, 229; control over executive branch, 84–85; foreign policy, 84; law execution and, 88; military matters and, 83–84; removal power and, 86–87; signing statements and, 86, 104; Tenure of Office Act and, 86–87; unitary executive supported by, 83 Monroe Doctrine, 84, 244, 272, 408 Montesquieu, Baron de, 76 Morgan, Arthur E., 287, 288 Morgan, John, 214 Morocco, 244 Morris, Edmund, 242 Morris, Gouverneur, 34 Morris, Newbold, 306 Morris, Robert, 39 Morrison v. Olson, 13, 377–78, 426, 437n12; removal power and, 27; Scalia’s dissent in, 403, 411–12; unitary executive and, 9, 419 Mueller, Robert, 409

534

Index

Mugwumps, 212 Mutual Security Act (1954), 333 Myers, Frank S., 256, 267 Myers v. United States, 15, 18, 27, 192, 435n31; Carter administration and, 364, 365; Clinton and, 396; Coolidge and, 267–69, 272; Humphrey’s Executor and, 285, 286; limits on presidential removal power and, 283; removal power endorsed in, 424; Taft and, 248, 252, 285; unitary executive and, 419; Wilson and, 256 Nagasaki, atomic bombing of, 307 Napoleonic Wars, 107 Nast, Thomas, 176 Nathan, Richard, 347 National Intelligencer, 136–37 National Labor Relations Board, 287, 313 National Resources Planning Board, 295 National Security Administration (NSA), 411 National Security Council (NSC), 306, 332 Navy Department, 250 Neagle, David, 221–23 Neagle case. See In re Neagle Necessary and Proper Clause, 224 Nelson, Thomas A. R., 185 Neutrality Proclamation, 49, 54, 84, 244 New Deal, 6, 14, 217, 291, 296, 303; Johnson (Lyndon) and, 342; Kennedy administration and, 335; Supreme Court and, 325 New Jersey Plan, 34 New Mexico, 145, 149 New York, city and state of, 32, 51, 167, 170 Nicaragua, 242 Nixon, Richard, 19, 319, 346–55, 363; administrative control and, 347–48; cabinet governance and, 346; civil service and, 349; executive power and,

430, 431; Ford’s pardon of, 356, 357, 361; impounding of federal funds, 25; independent agencies and, 350–51, 425; law execution and, 347, 349–50, 353–55; legislative veto and, 352, 371; regulatory policy and, 12, 348; removal power and, 347, 349, 422; Watergate scandal and, 347, 351, 353–55, 425–26 Nixon v. Administrator of General Services, 370 nolle prose qui, 49, 51–52 nondiscrimination orders, 280, 314–15, 321, 332–33, 341, 349, 487n17 O’Connor, John, 298 O’Fallon, James, 50 Office for the Oversight of Regulatory Agencies, 334 Office of Economic Opportunity, 339 Office of Information and Regulatory Affairs (OIRA), 372, 382, 388, 393–94 Office of Legal Counsel (OLC), 51, 356; Carter and, 365, 368, 371; Clinton and, 396; Ford and, 359; Reagan and, 377, 380 Office of Management and Budget (OMB), 421, 427–28; Bush (G. H. W.) and, 387, 388–89; Bush (G. W.) and, 406, 412; Carter and, 363, 372–73; Clinton and, 393, 394, 427; Ford and, 359, 491n12; Nixon and, 347–48, 350, 354; Reagan and, 12–13, 374, 380, 381–82, 427; Taft and, 251. See also Bureau of the Budget Office of Personnel Management (OPM), 367 Office of Special Counsel, 376, 387 Olney, Richard, 227 Omnibus Rivers and Harbors Act (1965), 344 O’Neill, Paul, 409 Opinions Clause, 35, 407 Ord, Edward O.C., 183

Index Osborn v. United States, 52 Our Chief Magistrate and His Powers (Taft), 248, 252 Overman Act of 1918, 257 Pach, Chester J., Jr., 318–19, 320, 330 Pacificus letters (Hamilton), 54–56 Paludan, Phillip Shaw, 158, 165, 167, 170 Panama Canal, 244 Paperwork Reduction Act (1980), 372 pardons: by Adams (John), 61; Bush (G. W.) and, 410; by Clinton, 399; by Ford, 356, 357, 361; by Johnson (Andrew), 175; by Lincoln, 171; by Washington, 48, 52 Parsons v. United States, 27, 229–30, 234, 235, 236, 300, 414 Patent Office, 53, 83, 420 PATRIOT Act, 413 patronage, federal, 132, 197; Adams (John Q.) and, 86, 92–93; Arthur and, 206; Bank War and, 118; Harrison (Benj.) and, 220; Hayes and, 200–01; Jackson and, 99, 118; Lincoln and, 171; removal power and, 176; Roosevelt (Theo.) and, 242; Whig opposition to, 144. See also spoils system Patton, John M., 81 Peace Corps, 333 Peckham, Rufus W., 229–30, 234, 235 Pendleton Act. See Civil Service Act of 1883 (Pendleton Act) Pennsylvania, 31, 49, 117, 119, 121; district attorneys, 60; Fries Rebellion, 61; Fugitive Slave Act in, 149; Whiskey Rebellion, 48 Perdicaris, Ion, 244 Perret, Geoffrey, 194 Peterson, Norma, 131, 136, 137, 138 Phelps, Glenn, 39–40, 43, 45, 48, 49, 50 Philadelphia Plan, 350 Philippines, 236, 237 Pickering, Timothy, 59, 60, 61, 62 Pierce, Franklin, 17, 152–56, 304

535

Pierce, Richard, 425 Pinchot, Gifford, 241, 247, 248–49, 471n13 Pinckney, Charles, 34 Pinckney, Thomas, 42 Platt, Thomas C., 205 Pocket Veto Case, 15, 417 Poindexter, George, 115 Polk, James K., 138, 139–43, 156, 421; as follower of Jackson, 160; Jackson’s Bank War and, 116; Mexican War and, 141; removal power and, 141–42; unitary executive and, 139–41, 142–43 Pomerene, Atlee, 269 Pomeroy, John Norton, 187 Pope, John, 183 Portal to Portal Act (1947), 314 Posse Comitatus Act of 1878, 197 Post Office/Postal Service, 43, 418, 419; Bush (G. H. W.) and, 389; Harrison (Benj.) and, 220; law execution and, 96; Nixon and, 351; obstruction of, 228; Polk and, 141; Postmaster General office, 79, 126, 128; Truman and, 314; unitary executive and, 44; Washington and, 45–46, 420 Powell, Colin, 408, 413 Prakash, Saikrishna, 46, 47, 49, 50, 51–52, 60, 61, 67, 68 president: appointment power, 35; as chief magistrate, 307; as commander in chief of military, 4, 72–73, 84, 134, 177, 223, 307, 308, 406, 408; constitutional interpretation and, 98, 168; council of state and, 34; direct election of, 97; executive power vested in, 293; Jefferson’s criticism of, 64; as law enforcement officer, 4; law execution and, 38, 299, 304; nuclear weapons and, 303; plebiscitary presidency, 66; removal power and, 4, 220–21, 229; as representative of the whole people, 139–40, 226, 254; role in constitutional system, 96–99;

536

Index

president (continued): separation of powers and, 24. See also executive branch; imperial presidency; individual presidents Presidential Problems (Cleveland), 231 President’s Committee on Equal Employment Opportunity, 332 Prigg v. Pennsylvania, 149 Prize Cases, The, 166 Progressive era, 239, 240, 255, 262, 275, 278 Prohibition, 264, 271, 276–77 Public Buildings Amendments (1972), 352 public opinion, 356–57; Garfield and, 205; Jackson and, 104, 117, 125; Jefferson and, 68; Kennedy and, 331 Public Works, Department of, 295 Public Works Appropriations Act (1963), 342 Public Works Committees, 314, 325, 326 Puerto Rico, 236, 237 Pullman strike, 227–28 purse, power of, 97 Quality of Life review, 348, 359, 373 qui tam actions, 51–52 racial integration, 314–15, 320–21 Rakove, Jack, 31 Randolph, Edmund, 33, 42, 45, 48, 51, 77 Rathbun, Samuel F., 284 Rawle, William, 48, 49, 60 Rawley, James, 198 Reagan, Nancy, 407 Reagan, Ronald, 23, 194, 358, 374–83, 384, 387, 410; EIGA opposed by, 376–77, 426; executive orders, 380–82, 388; independent agencies and, 376, 380, 381, 382, 425; independent counsels and, 5, 11, 377–78; law execution and, 379–80; legislative veto and, 26, 378–79, 389; regula-

tory policy and, 12–13, 380–82, 393, 394, 427; relationship with American people, 303, 384; removal power and, 7, 375–76; signing statements and, 86, 382–83; as strong president, 374; unitary executive associated with, 30, 375–76, 383, 428; war on terror and, 408 Recommendations Clause, 407 Reconstruction, 171, 193, 253, 402; end of, 201; Grant and, 181–82; sabotaged by Johnson, 174, 175–76, 177–78, 182–83, 194 Reconstruction Acts (1867), 178, 179 Redfield, William C., 255–56 Redford, Emmette, 322–23 Regan, Donald, 375 Regulatory Analysis Review Group (RARG), 372, 373 Regulatory Flexibility Act (1980), 372 Regulatory Impact Analyses (RIAs), 380–81 Rehnquist, William, 377–78, 437n12 Reich, Robert, 392 Reinventing Government project, 397–98 Remini, Robert, 115 removal power, 4, 14, 404, 419–20, 422, 428; Arthur and, 207–08; by British crown, 309; Bush (G. W.) and, 6, 409–10, 413–15; Carter and, 363–64, 422; civil service system and, 300; Cleveland and, 209, 212–13, 216, 227, 267, 269, 422; Clinton and, 392–93; Constitutional Convention and, 267; Coolidge and, 267–69, 270; debate over, 18, 27, 78; Eisenhower and, 321–25, 330, 422; as executive power, 112; fight between Congress and president, 22; Fillmore and, 150–51; Ford and, 358–59; Grant and, 216; Hamilton’s defense of, 55; Harrison (Benj.) and, 422; Harrison (Wm. H.) and, 131–32; Hayes and, 199–201, 202; Homeland Security

Index Department and, 9; Hoover and, 274–75, 277; independent counsels and, 427; Jackson and, 81, 95, 99–101, 132, 267, 269, 409, 452n25; Jefferson and, 68–69, 100; Johnson (Andrew) and, 5, 176; judicial branch and, 128; Kennedy and, 332; limits on president’s power, 431; Lincoln and, 171–72, 215–16; Madison and, 77, 79–80, 80–81; McKinley and, 233–35 ,236, 243, 422; Myers case and, 274; Nixon and, 347, 349, 422; partisanship and, 68–69; Pierce and, 153–54, 156; Polk and, 141–42; Reagan and, 7, 375–76; Roosevelt (Franklin) and, 283–89, 289, 409, 422; Roosevelt (Theo.) and, 243, 245, 422; “rotation in office,” 99; Supreme Court and, 142, 153–54, 185, 213–15, 224, 229–30, 234–35, 243, 256, 259, 274, 321–22, 333; Taft and, 248–49; Taylor and, 145–46; Tenure of Office Act (1867) and, 174; Truman and, 306, 307–10, 316, 363; Tyler and, 134–35, 137–38; Van Buren and, 125–26, 132; Washington and, 42; Wilson and, 255–56, 257, 267 Reno, Janet, 8, 392, 400, 403 Renshaw, Stanley, 392 Reorganization Act (1939), 289, 298–99, 310, 312 Reorganization Act (1945), 310, 312 Reorganization Act (1949), 313 Reorganization Act (1977), 370 Republican Party (Grand Old Party) (GOP), 174, 196; Arthur and, 206; Bush (G. H. W.) and, 386; Cleveland and, 210, 213, 226; Hoover and, 277; independent counsel law and, 11; Johnson impeachment and, 183–84, 186, 248; Lincoln and, 159, 169, 172, 173; McKinley and, 232, 235; New Deal and, 296; Radical Republicans, 203; Reconstruction and, 175, 181–82; Stalwart wing, 199, 204;

537

Tenure of Office Act (1867) and, 191; Truman and, 306, 307–08, 310. See also Whig Party, in United States Republicans (Democratic-Republican Party), 62, 67, 69, 74, 86, 120 Revolution of 1800, 78, 79 Revolutionary War, 32, 39–40, 45, 117 Rex v. Fielding, 51 Richardson, Elliott, 353, 425–26 Richardson, Elmo, 318–19, 320, 330 Richardson, William, 194–95 Roberts, Owen J., 269 Robertson, William H., 204, 205, 206 Robinson, Greg, 282 Rockefeller, Nelson, 358 Rodney, Caesar A., 70, 74 Rogers, William, 329 Roosevelt, Franklin Delano (FDR), 16, 194, 218, 278–90, 305, 347; administrative vision of, 278–79; Brownlow Committee and, 217, 291–99, 425; civil service and, 288–89; concentration of presidential power and, 263; constitutional interpretation and, 23; court packing plan, 5, 300, 425, 479n32; emergency powers and, 316; executive orders, 280–82, 321, 332–33, 421; executive power and, 19, 430, 431; independent agencies and, 283–89, 424, 425; law execution and, 279–80, 300, 379; legislative veto and, 26, 289, 298; military commissions and, 411; removal power and, 283–89, 409, 422; separation of powers and, 304; as strong president, 17, 289–90, 301; as three-term president, 226; unitary executive and, 288, 291; World War II and, 280–82, 289 Roosevelt, Theodore, 10, 201, 218, 238–45, 262; appointment power and, 243–44; civil service and, 242–43; on Civil Service Commission, 220, 230, 243; conservation and, 249; emergency powers claimed by, 29; executive orders of, 242;

538

Index

Roosevelt, Theodore (continued): executive power and, 430, 431; law execution and, 241, 245; personal presidency and, 238–39; removal power and, 243, 245, 422; stewardship theory and, 19, 24–25, 239–42, 245, 248, 410, 428; as strong president, 17, 254, 301; unitary executive and, 241, 242 Root, Elihu, 238, 244, 276–77 rotation in office, 92, 99, 125 Rove, Karl, 406, 410, 413 Ruckelshaus, William, 348, 353, 425–26 Rumsfeld, Donald, 356, 358, 362, 408 Rumsfeld v. Padilla, 411 Rusk, Dean, 308 Rust v. Sullivan, 389 Ryan, James W., 286 Safe Drinking Water Act Amendment of 1986, 383 Salary Act (1789), 44, 57, 59 Sawyer, Charles, 315 Scalia, Antonin, 11, 356, 361, 378, 435n31; dissent in Morrison v. Olson, 403, 411–12; on special prosecutors, 426 Schlesinger, Arthur, 357 Schlesinger, James, 358, 363 Schofield, John M., 186 Schultz, George, 348 Schurz, Carl, 197, 212 Schuyler, Philip, 39–40 Scott, Winfield, 141, 150 Second Supplemental Appropriations Act (1972), 352 Securities and Exchange Commission (SEC), 6, 10, 283, 334, 423 Select Committees on Government, 292 Senate, 5, 8, 46; Adams (John) and, 60, 61; appointment power and, 35; bill to limit Jackson’s removal power, 118–19; Brownlow Committee and, 296–98; Buchanan and, 157; Bush (G. H. W.) and, 385; Bush (G. W.) and,

408–09; Cleveland and, 210, 211–12; Clinton impeachment and, 11, 401, 403; confirmations and, 58–59, 101, 347; Coolidge and, 269, 270, 271; Decision of 1789 and, 59; Eisenhower and, 325, 327; federal patronage and, 92, 93; Ford and, 360; Grant and, 191, 192; Hayes and, 199–200, 202; Hoover and, 274; Jackson censured by, 109–10; Jackson’s Bank War and, 108; Johnson impeachment and, 163, 179, 180, 186; Johnson (Lyndon) and, 344; Judiciary Committee, 13; Kennedy and, 332; Madison and, 77, 79, 81; Monroe and, 83; Nixon and, 347; Protest by Jackson to, 110–16; removal power and, 96; Roosevelt (Franklin) and, 282; Roosevelt (Theo.) and, 239, 246; Tyler and, 138; Washington and, 53. See also Congress, U.S. Sentencing Act (1987), 383 separation of powers, 15, 19, 328, 407, 431; Constitutional Convention and, 31; Ford and, 361; independent agencies and, 293, 294; Johnson (Lyndon) and, 343, 344; judiciary branch and, 23–24; legislative veto and, 389; Louisiana Purchase and, 75; Nixon and, 347; Vesting Clauses and, 110; Wilson on, 254 Seward, William H., 145, 169–70, 175, 180, 186 Seybert, Adam, 83 Shalala, Donna, 392 Shane, Peter, 75 Sheridan, Philip H., 182 Sherman, John, 180, 184, 193; election of Hayes and, 196; as secretary of state, 233; as secretary of treasury, 197, 199 Sherman, Roger, 33, 58 Sherman, William T., 184, 194 Sherman Antitrust Act, 221, 241 Short, William, 65

Index Shriver, Sargent, 337 Shurtleff, Ferdinand, 233 Shurtleff v. United States, 27, 214, 216, 233–35, 243; Humphrey’s Executor and, 284–86; president’s law execution and, 300; on removal power, 424; TVA Act and, 288; Wiener case and, 324; Wilson and, 259–60 Sickles, Daniel, 183 signing statements, 27, 28, 86, 104, 326, 360, 361, 418; Bush (G. H. W.) and, 385, 386, 387–88; Bush (G. W.) and, 406; Carter and, 368, 369, 370, 372; Clinton and, 86, 396–97, 398; Jackson and, 104; Johnson (Lyndon) and, 341, 342; Monroe and, 86; Reagan and, 86, 379, 382–83; Roosevelt (Franklin) and, 282; Supreme Court recognition of, 235, 379; Truman and, 314; Tyler and, 138 Singlaub, John K., 363 Skowronek, Stephen, 217 slavery, 145, 153, 158; Emancipation Proclamation, 170, 428; factionalism over issue of, 161; Reconstruction and, 175 Small, Melvin, 346, 351 Small Reclamation Projects Act (1956), 328 Smith, Charles Emory, 241 Smith, Elbert, 145, 157, 159 Smith, George Otis, 274, 283 Smith, Jean Edward, 176, 183, 191–92 Smith, Jesse W., 270 Smith, Robert, 79 Smith, William French, 374–75, 380, 383 Smythe, Henry A., 176–77 Social Security Administration, 27, 395, 398 Social Welfare, Department of, 295 Socolofsky, Homer, 219, 220, 224–25 South Carolina, 150, 159, 160, 194, 197 Spain, 236 Spanish-American War, 233, 236–37

539

special prosecutors. See independent counsels (special prosecutors) Spetter, Allan, 219, 220, 224–25 spoils system, 7, 146, 171, 207. See also patronage, federal Sprague, Peleg, 463n31 Springer v. Philippine Islands, 286 Stamp Tax, 59 Stanbery, Henry, 176, 185, 186 Stanton, Edwin, 5, 169, 172; Johnson impeachment and, 180, 184–85, 186, 402, 419; limits on Johnson’s power and, 176, 177; removed by Johnson, 181, 182, 184 Star Route scandal, 206–7 Starr, Kenneth, 5, 11, 51, 390, 400–01, 403 State, Department of, 79, 112, 363; Johnson (Lyndon) and, 342; Kennedy and, 332; McKinley and, 233; Taft and, 250; Truman and, 307 state constitutions, 13, 31, 32, 33 state militias, 48, 72–73, 83–84 states’ rights, 133 Steel Seizure case. See Youngstown Sheet & Tube Co. v. Sawyer (Steel Seizure case) stem cell research, 407 Stephens, Alexander H., 175 Stevens, John Paul, 401 Stevens, Thaddeus, 185 Stevenson, Adlai, 338 stewardship theory: Bush (G. W.) and, 429; conservation issues and, 241–42; Roosevelt (Theo.) and, 19, 24–25, 239–42, 245, 410, 428; Taft’s attack on, 246, 248 Stimson, Henry L., 277 Stimson Doctrine, 277 Stockman, David, 380 Story, Joseph, 38, 120, 142, 420; Decision of 1789 and, 35, 121, 142, 229; on removal power, 121–22, 229 Straus, Michael W., 309 Strauss, Peter, 304, 425

540

Index

Stuart kings, 31 subordinate executive officers, direction of, 3, 7–8, 13, 19, 122, 419, 422; direction of appointment power and, 35; Bush (G. H. W.) and, 386; Bush (G. W.) and, 429; Congress and, 10, 12, 16, 431; Constitution and, 4, 418; Eisenhower and, 319, 320; executive power and, 15, 20, 29; Fillmore and, 151; Ford and, 359; Grant and, 193; Harrison (Benj.) and, 219–20; Jackson and, 99, 102, 106, 120, 421; Jefferson and, 66, 75, 420–21; Johnson (Lyndon) and, 337–39, 421; Lincoln and, 167, 168, 421; Monroe and, 85, 90; Pierce and, 154–55, 156; Polk and, 140, 142; Reagan and, 428; Roosevelt (Theo.) and, 240–41; Taylor and, 146, 147; Truman and, 309; Washington and, 40, 42, 43, 44, 47, 420 Sumner, Charles, 184 Sunstein, Cass, 72, 74, 96, 97, 304, 425 Sununu, John, 389 Supreme Court, 8, 110, 129, 236, 296, 421; attempted assassination of Justice Field, 221, 430; on autonomy of executive, 407; civil rights cases, 320; civil service laws and, 349; Civil War and, 166; Clinton civil suit and, 401; Decision of 1789 and, 181; on departmentalism, 417–18; Eisenhower and, 324–25; election of Bush (G. W.) and, 405; emergency presidential power and, 19; executive branch and, 244; on executive power, 225, 399; hostility to Roosevelt (Franklin) and, 286–87; on independent agencies, 300; independent agencies and, 335, 425; on internment of Japanese Americans, 281; on interpretation of statutory language, 382; Iranian hostage crisis and, 373; on legislative veto, 26, 300, 327, 370; on obstruction of mail and commerce, 228;

on presidential action in absence of statute, 252; presidential direction of subordinates and, 308–09; on presidential law execution, 223–24; qui tam actions and, 52; Reagan administration and, 377–78; Reconstruction and, 194; scope of executive power and, 126–28; on separation of powers, 15, 19, 23–24, 390, 398, 407; sex-based discrimination cases, 359; size of, 176; slavery cases and, 149, 157; Southern secession and, 165; Taft as Chief Justice, 248, 264; Truman’s seizure of steel mills and, 315–16; unitary executive and, 192, 419; vacillations over removal power, 27–28; War on Terrorism and, 411– 12, 430; Washington administration and, 50. See also judiciary branch; individual justices; specific court cases by name Sutherland, George, 285, 286 Sylvester, H. H., 137 Taft, Alphonso, 193, 252 Taft, William Howard, 246–52, 275, 384, 435n31, 469n4, 471n13; administrative reorganization and, 250; budget reform and, 250–51, 256; as Chief Justice, 18, 248, 264, 268, 285; civil service and, 249–50; executive power seen by, 246–47; law execution and, 250, 251; removal power and, 248–49, 409, 422; Roosevelt (Theo.) contrasted with, 246–48; stewardship theory and, 240, 246 Take Care Clause (Faithful Execution Clause), 29, 47, 48, 89–90, 222, 293, 295; Carter and, 369; executive power and, 223; grant of removal power and, 78; independent counsels and, 377; Jackson’s Bank War and, 111; Jefferson on, 71; law execution and, 364; Lincoln and, 167; Nixon and, 352; president’s power of direction

Index and, 89; Roosevelt (Franklin) and, 288; Truman and, 316 Taney, Roger B., 101–02, 103–04, 118, 142, 154; Bank War and, 106, 108; on Lincoln and writ of habeas corpus, 168; nomination to Supreme Court, 116, 119 Taylor, Maxwell, 320 Taylor, Zachary, 141, 144–47, 151, 156; cabinet replaced by Fillmore, 148, 150; removal power and, 145–46; unitary executive and, 147; as war hero, 144 Teapot Dome scandal, 261, 264, 269–70 Tenet, George, 409–10 Tennessee Valley Authority (TVA), 287–88 Tenure of Office Act (1820), 80, 86–87, 118 Tenure of Office Act (1867), 5, 6, 27, 37, 173, 208, 217; amended, 200, 202, 224; Cleveland and, 27, 210–11, 229, 230, 231; constitutional crisis and, 250; Ethics in Government Act compared with, 404, 427; Garfield and, 203–04, 205; Grant and, 216; Johnson (Andrew) and, 174, 179–87, 189, 402, 419; Parsons case and, 229, 230; passage of, 176; removal power limited by, 234; repeal of, 189, 190–92, 201; Wilson’s criticism of, 255 term limits, 99 terrorism, 194, 197, 408, 409–10, 412 Terry, David S., 221, 223, 430 Texas, 137, 145, 149, 182 Texas v. White, 165 Thach, Charles, 30, 33 Thirteenth Amendment, 177 Thomas, George H., 182 Thomas, Lorenzo, 184 Thomasson, William P., 138 Tilden, Samuel, 196, 197, 405 Tower, John, 383, 385

541

Trani, Eugene, 264 Transportation, Department of, 340, 342 Treasury Department, 35, 295, 418, 419; Bureau of the Budget in, 263, 280, 299; Coolidge and, 270; district attorneys and, 88; as executive department, 72; Fillmore and, 151; Hoover and, 276; law execution and, 96; Madison and, 56–57; presidential control over, 120, 122, 125; removal power and, 112–13, 115, 131; Taylor and, 146; Washington and, 43–46, 420; Whig position on, 97; Wilson and, 257 treaties, 110, 138, 329–30 Treaty-Making Clause, 78–79 Tribe, Laurence, 425 Truman, Harry S, 19, 287, 303, 305–17, 329, 480n41; cabinet, 305–06; emergency powers claimed by, 29; executive orders, 314–15, 321, 332–33; executive power and, 430, 431; independent agencies and, 317, 425; Korean War and, 307–08; law execution and, 317; relationship with American people, 303, 314; removal power and, 306, 307–10, 316, 363; reorganization of executive and, 310–14; seizure of steel mills and, 20, 25, 245, 315–16, 410, 429; signing statements and, 314; unitary executive and, 306–07, 310, 316–17; veto power and, 314; World War II and, 305 Trumbull, Lyman, 175 Tugwell, Rexford, 42–43 Tyler, Harold, Jr., 359 Tyler, John, 98, 133–38, 148, 157, 215; removal power and, 135, 137–38; signing statement of, 138; unitary executive and, 134–35; veto power and, 135–36; Whig Party’s relation to, 133, 136, 137 Tyner, John, 241

542

Index

Uhlmann, Michael M., 359 unitary executive, 26–27, 187, 304, 351; Bush (G. H. W.) and, 384, 387, 388, 389–90; Bush (G. W.) and, 405, 406, 408, 428; Carter and, 373; civil service system and, 300; classic theory of, 20, 21; Cleveland and, 227, 231; Clinton and, 399; Constitutional Convention and, 36; Coolidge and, 268, 269, 272; debate over, 10–21; Decision of 1789 and, 3; Eisenhower and, 330; Fillmore and, 150; Hamilton and, 93, 411; Harding and, 261; Harrison (Benj.) and, 221, 225; Harrison (Wm. H.) and, 130; independent agencies and, 217, 299–300; Jackson’s Bank War and, 119; Jefferson and, 64–66, 76; Johnson (Lyndon) and, 345; Kennedy and, 336; Lincoln and, 171; Madison and, 64, 78–79, 80–82; Nixon and, 355; Polk and, 139–41, 142–43; Reagan and, 30, 375–76, 383, 428; Roosevelt (Franklin) and, 288, 291; Roosevelt (Theo.) and, 241, 242; scope of executive power and, 429–30; signing statements and, 86; Supreme Court and, 8; Taft and, 384; Take Care Clause and, 89–90; Truman and, 306–07, 310, 316–17; Van Buren and, 125–26; Wilson and, 253, 260 United States: border with Canada, 138; Bush (George W.) and, 6, 12; foreign policy, 272, 277; as imperial power, 236; Independence (1776), 21, 30; Monroe Doctrine and, 244, 272; population, 67 United States Attorneys: Bush (G. W.) and, 413–14, 415; Fillmore and, 150; Jackson and, 103; Jefferson and, 73; Justice Department and, 194; Washington and, 46 United States ex rel. Goodrich v. Guthrie, 153–54 United States v. Lovett, 283, 308–10

United States v. Midwest Oil Co., 15, 25, 252, 316, 417 United States v. Perkins, 214–15 United States v. Weatherhead, 398–99 Urgent Deficiency Appropriation Act (1943), 282 U.S. Commission on Civil Rights, 375, 498n7, 498n9 U.S. Maritime Commission, 287, 313 U.S. Shipping Board: Coolidge and, 265, 266; Harding and, 262; Roosevelt (Franklin) and, 286; Wilson and, 258, 259, 260 U.S. Tariff Commission, 262, 266 Van Alstyne, William, 24 Van Buren, Martin, 124–29, 130, 421; Kendall case and, 126–28; removal power and, 125–26, 132; unitary executive and, 125–26, 129; as vice president, 105 Varmus, Harold, 391 Vaughn, Harry, 310 Vesting Clause, Article I, 55, 110 Vesting Clause, Article II, 3–4, 16, 84, 99, 110, 222; executive power and, 222, 223, 293; foreign policy context and, 84; “grant” of executive power to president, 65, 78; as grant of power to president, 29, 99, 431; Hamilton and, 55; independent counsels and, 377; Monroe Doctrine and, 244; Nixon and, 352; removal power and, 309; separation of powers and, 110; Steel Seizure case and, 315–16; Take Care Clause and, 90; war power and, 20 Veterans Administration, 296 Veterans’ Preference Act (1944), 288, 321, 333, 349 veto, legislative, 12, 16, 155–56; Brownlow Committee and, 296; Bush (G. H. W.) and, 389; Bush (G. W.) and, 406; Carter and, 368–71; Eisenhower and, 325, 326–30, 483n67; executive power and, 312; Ford and, 360–61,

Index 493n31; Hoover and, 275, 277; Johnson (Lyndon) and, 342–45; Kennedy and, 335, 336; law execution and, 300; Nixon and, 352, 371; Reagan and, 26, 378–79, 389, 499n27; Roosevelt (Franklin) and, 26, 289, 298; Truman and, 310, 314, 317 veto power, 8, 14, 24, 110; Buchanan and, 157; Bush (G. H. W.) and, 385–86; Cleveland and, 215; Hayes and, 198, 199; Hoover and, 275–76; Jackson and, 99; Johnson (Andrew) and, 175; Taylor and, 144–45; Truman and, 314; Tyler and, 135–36; Wilson and, 294 vice president, 88, 133, 148, 394 Vietnam War, 48, 339, 357 Vinson, Fred M., 84 Virginia Plan, 34, 77 Volstead Act of 1919, 264, 271 Wade, Benjamin, 463n31 Wallace, George, 333 Wallace, Henry, 264 Walsh, Lawrence, 5, 11, 390, 403 War Claims Commission, 323–24, 484n41 War Department, 35, 44, 59, 83, 85, 250 War of 1812, 79, 117, 316 War on Terrorism, 19, 408, 410–12, 414–15, 429 war power, 8, 20, 167; Carter and, 368; McKinley and, 237; nuclear weapons and, 303, 339; Roosevelt (Franklin) and, 290 War Powers Act (1973), 358, 369 War Relocation Authority, 281 Washington, George, 14, 28, 39–57, 65, 91, 222, 303; attacked as closet monarchist, 62; Bank of the United States and, 53; at Constitutional Convention, 40; Continental Congress and, 32, 40; control over executive branch, 40–43, 102; direct representation doctrine

543

and, 97; district attorneys and, 60; Jefferson as secretary of state under, 65–66; law execution and, 47–51, 57, 88; Neutrality Proclamation and, 54, 84, 244; Post Office and, 45–46; qui tam actions and, 51–52; removal power, 42, 69; in Revolutionary War, 39–40, 44–45; Treasury Department and, 43–45; unitary executive and, 93; as war hero, 144 Water Power Act (1920), 283 Water Power Commission, 258 Water Resources Research Act (1964), 343–44 Watergate scandal, 347, 351, 353–55, 425–26; Ford’s pardon of Nixon and, 356; reforms in wake of, 363, 364, 366 Watts, J. C., 396 Weaver, Robert, 338–39 Webster, Daniel, 108, 119, 130, 136, 161, 420, 454n65; Fugitive Slave Act and, 149; on removal power, 36, 99, 121; response to Jackson’s Protest, 116; as secretary of state, 131, 134, 137, 148–49 Weed, Thurlow, 151 Weinberger, Caspar, 390 Welch, Richard E., Jr., 209, 210, 215, 226–27, 228–29 West Virginia, 170, 201 Whig Party, in England, 97 Whig Party, in United States, 97–98, 99, 129, 133, 157; creation of, 108; Fillmore and, 148, 150–51; Hayes and, 197; limited executive power favored by, 161, 165, 166–67; Lincoln and, 165, 172; Mexican War and, 141; removal power and, 131–32; Taylor and, 145, 146, 151; “Treasury Caesarism” opposed by, 125; Tyler’s expulsion from, 136, 137; veto power opposed by, 144–45; vision of presidential power, 134. See also Republican Party (Grand Old Party) (GOP)

544

Index

Whipple, Joseph, 61 Whiskey Rebellion, 48 Whistleblower Protection Act (1988), 376, 387 whistle-blowing activities, 7 Whitcomb, James, 146 White, Leonard, 40, 41, 64, 160–61, 420; on Adams (John), 58, 59, 62–63; on Adams (John Q.), 85, 91; on civil service reform, 230; on Harrison, 131; on Hayes, 196; on Jackson, 96, 100, 119, 160; on Jefferson, 66, 68; on Madison, 79; on persistence of Federalist policies, 93–94; on Roosevelt (Franklin), 279; on Taft, 251; on Taylor, 146 Whitewater affair, 11, 400–01 Whitney, Reuben M., 106 Whittington, Keith, 402 Wickersham, George, 471n13, 471n15 Wiener, Myron, 323–24 Wiener v. United States, 27, 323–25, 367, 377 Wilkes v. The King, 47 Williams, George H., 193, 194–95 Williams, Thomas, 179–80, 185, 462n5 Wilmot, John, 47 Wilson, David, 264 Wilson, James, 33–34, 77, 96, 131 Wilson, James F., 185 Wilson, Major L., 124–25, 128 Wilson, Woodrow, 12, 190, 218, 247, 253–60; Congressional Government, 253–54; Constitutional Government in the United States, 254; emergency

powers and, 316; executive power seen by, 253–55; Federal Reserve Board and, 54; independent agencies and, 257–60, 424; law execution and, 256–57, 260, 379; legislative veto and, 16, 26, 345, 379; removal power and, 255–56, 257, 267; unitary executive and, 253, 260; veto power and, 294; World War I and, 257, 259 Wirt, William, 88–90, 92, 101, 122, 142, 421; on limit of president’s removal power, 154; on power of direction, 193 Wood, Gordon, 30 Woodward, Bob, 408 Worcester v. Georgia, 98 World War I, 255, 257, 259 World War II, 5, 305, 323, 340; atomic bombings of Japan, 307; internment of Japanese Americans, 280–82; LendLease Act and, 26, 289 Yoo, John, 429 Youngstown Sheet & Tube Co. v. Sawyer (Steel Seizure case), 15, 19, 20, 315–16, 373; emergency powers claimed in, 29; on executive power, 418; In re Neagle compared with, 221; Monroe Doctrine and, 84; presidential power claimed in, 245; on president’s implied power, 228; War on Terrorism compared to, 412 Zoellick, Bob, 388