Christine Kexel Chabot, Marquette University Law School, has posted the The Interstitial Executive: A View from the Founding:
The Supreme Court appears poised to recognize a unitary executive President with power to override statutory removal restrictions for almost all principal officers in the executive branch. The core unitary claim is that Article II vests “the executive power in a President of the United States,” and that the President therefore has exclusive control over all exercises of executive power by subordinate officers. The Court and unitary scholars have further grounded their claims in originalism and contended that the unitary executive’s primary mechanism of control is an indefeasible power to remove all subordinate officers at will. This Article debunks originalist unitary claims by introducing new historical evidence to show that the Washington, Adams, and Jefferson Administrations failed to practice what unitary scholars preach. It introduces a critical body of previously unexamined archival evidence of the terms of office and removal specified in over 200 commissions that Presidents issued to their appointees. These records recover a representative and more comprehensive view of the distinct terms of office that Presidents specified for all of their appointees including officers who exercised executive power both with and without statutory tenure protections. Unlike the Supreme Court, early Presidents recognized removal during pleasure only for officers whose tenures were not specified by statute and respected statutory and constitutional removal restrictions for other officers.
While unitary scholars claim that Article II empowered early Presidents to remove officers notwithstanding statutory restrictions, the officer commissions introduced by this Article show that executive practice instead turned on congressional discretion under Article I’s Necessary and Proper Clause. The Washington, Adams, and Jefferson Administrations asserted service “during pleasure” for officers ranging from the Secretary of State to the Librarian of Congress, but only when governing statutes left terms of office unaddressed. Presidents departed from this practice when they issued commissions to officers who enjoyed statutory or constitutional tenure protections, such as independent commissioners to settle accounts between the United States and individual states, Chief Justices who served on the Sinking Fund Commission, and Justices of the Peace who served for five-year terms set by statute. Commissions which the Presidents and Secretaries of State prepared for these officers repeatedly omitted references to removal “during pleasure” and indicated that these tenure-protected officials served during “good behavior” or for fixed terms. Early Presidents therefore asserted a power of removal during pleasure when Congress left terms of office unregulated but abided by statutory restrictions on removal applicable to other offices. The extended historical record shows that Presidents’ exercise of removal power operated within the law, not above it, and that Presidents respected the statutory terms of office which Congress established pursuant to the Necessary and Proper Clause.
--Dan Ernst. Professor Kexel Chabot's appendices are here
