It’s no secret that the President is having a great run in court. Over the last two decades, the Roberts Court has protected the office from legal process; built out presidential control over foreign affairs, national security, and the hiring, firing, and oversight of officers; and recently hinted it would go further by extending the president’s power to independent agencies. Behind these cases lurks the theory of the unitary executive, which reads the Constitution to give the President far-reaching powers over the executive branch, including the power to fire officers at will. First advanced in modern form by lawyers in the Reagan administration, the theory inspired a generation of originalist scholars who claimed it as an authentic account of the Framers’ thought. Since then, scholars have sharply pushed back, pointing out that the theory is anachronistic, an overreading of the text, and contradicted by early American history and practice. Despite the controversy, the Roberts Court, untroubled, continues to apply it.
Enter Christine Kexel Chabot’s forthcoming article Rejecting the Unitary Executive, which poses the provocative question: What if we required proof that the Founding generation actually believed in a unitary executive? Rejecting does just that, with illuminating results. Applying philosopher Karl Popper’s theory of empirical falsifiability to the realm of legal history, Professor Chabot subjects unitary theory to a rigorous test. In her words, the theory’s main claim is that
Article II’s grant of “the executive power” was originally understood to grant the President an implied and indefeasible power to remove all subordinate officers at will. This claim reflects a hypothesis about the following empirical, historical facts: the consensus in the Founding era was that Article II granted the President indefeasible power to remove all subordinate officers at pleasure (emphasis original).
This claim is falsifiable, and Professor Chabot borrows an example from Popper to show how.
Consider the theory that all swans are white. As Popper showed, it’s impossible to prove the white-swan hypothesis true based on simply observing white swans and nothing else. On the other hand, the discovery of one black swan would suffice to falsify it. By analogy, a constitutional rule that the President’s firing power is absolute cannot be proven true simply by identifying officers in early America whom the president could fire (white swans), but pointing out officers who could not be fired by the president (black swans) would cast the rule into doubt.
Let’s be a little more precise about what the originalist unitary claim is saying, from an empirical perspective. Despite our Constitution’s silence on removal, unitarians argue that to prove the rule, they don’t need to show that every early American understood the President’s powers this way, only that a critical “consensus” did. How high is the threshold to establish a consensus? Originalists have mostly evaded this question, but the very thoughtful Lawrence Solum suggests somewhere between 60 to 90% of the population. Using this definition, unitary originalism can be restated as the following claim: “At least sixty percent of early Americans believed that the President can fire all officers.”
It turns out that, whether we look for evidence that “all” Americans or “most” of them believed in a unitary president, its proponents have failed to take this burden of proof seriously. Instead, the preponderance of such scholarship points only to select examples of white swans: pre-1787 state constitutions that gave governors a removal power, early federal laws making the Cabinet fireable, and scattered statements of early congressmen supporting the unitary position. But each cache of evidence—state constitutions, federal laws, on-the-record statements of congressmen—contains examples pointing the other way. A sizeable number of early legislators believed the power to fire was one that Congress could vest in the President (or not, if it so decided). Laws from before and after the ratification of the Constitution insulated offices from at-will firing or made them removable by actors other than the president (say, deputy marshals, who were fireable by judges). Many laws were in fact enforced by private citizens! With law enforcement so dependent on decentralized, even private authority, the notion of the Founders’ executive branch as a modern, top-down bureaucracy is pure myth.
Far from seeking out such disconfirming evidence, unitary originalists have ignored “black swans” tending to hurt the notion of an early presidentialist consensus, or tried unconvincingly to explain them away. Empirical scholars Lee Epstein and Gary King have written that it would be “ludicrous” for a researcher to consult “congressional debates over the Civil War Amendments” and analyze “only comments and drafts indicating that [they were] right.” Professor Chabot agrees. “Unitary scholars,” she writes, can support their theory “only by limiting their analysis to select historical evidence that is consistent with their views and ignoring the plain historical import of counterevidence. That is no way to prove consensus or historical truth.”
Professor Chabot is a tough but fair-minded critic. Original public meaning, she emphasizes, can be properly applied to answer some historical questions. For instance, while the text of Article II is consistent with a rule that officers may only be removed by impeachment, early laws recognizing the president’s power to fire disprove that theory as a matter of original public meaning. As for the unitary executive, the theory rests on thin-to-nonexistent evidence of historical consensus, and its uncompromising nature is belied by contrary examples. To their credit, when presented with discomfirming evidence, some unitary originalist scholars have walked back more extreme versions of the theory. Troublingly, the Supreme Court has not taken notice. Professor Chabot concludes that the Court has a choice: reject the unitary executive, or reject originalism itself.
During the second Trump term, the unitary president has become what the Framers most feared, a “formula for maximum disruption,” prone to “imposing decisions at will, marginalizing dissent, and to radicalizing opposition.” Meanwhile, the Supreme Court is advancing a winner-takes-all reading of our Constitution in which the President retains all of the tools to control officers of our government and Congress, increasingly, none. As a matter of scholarly truth, whether the unitary executive is dangerous is beside the point: it is, Professor Chabot emphatically writes, a “historical fiction.” Back in the Middle Ages, that all swans were white was considered a statement of scientific truth, until Dutch explorer William de Vlamingh discovered a black swan in present-day Australia in 1697. Perhaps one day, we, too, will allow ourselves to be persuaded by the facts.
