Thread by @jedshug

Forthcoming in the Stanford Law Review, March 2022:

"Vesting": Text, Context, and Separation-of-Powers Problems

("Vesting" didn't mean what the Roberts Court and the unitary theorists assume it meant).
Abstract attached.
papers.ssrn.com/abstract=37932…

2/ The unitary executive theory relies on 3 originalist pillars: Take Care/Faithful Execution Clause, Vesting, and the Decision of 1789.
It's a shell game - if you raise questions about one, unitarians point to another.
But none of the 3 pillars can support the Roberts Court.

3/ The Take Care Pillar?
@andrewkent33, Leib, and I showed in 2019 @HarvLRev that the Faithful Execution clauses (Take Care and Oath clauses) are historically duty-imposing rather than power-granting, setting fiduciary-like limits on the president.
harvardlawreview.org/2019/06/faithf…

4/ The Decision of 1789 Pillar?
I dug into the First Congress, and the evidence shows the opposite:
Madison strategically retreated from unitary presidentialism bc he didn’t have the votes.
And then Congress delegated removal to judges and juries!
papers.ssrn.com/sol3/papers.cf…

5/ It seems like law reviews are serious about not publishing 90-page articles, so I am in the process of cutting that bad boy into two pieces (and writing them more concisely). But the shorter amicus-brief summary version for Collins v. Mnuchin is here:
papers.ssrn.com/sol3/papers.cf…

6/ I raised questions about Scalia's errors and ahistoric assertions in Morrison v. Olson in 3 pieces (see 1 below).
Scalia: “Government investigation and prosecution of crimes is a quintessentially executive function.”

Historically fundamentally false.
ir.lawnet.fordham.edu/flr/vol87/iss5…

7/ For most of English history, including the American colonial era, the grand jury played a more significant role in investigation & even prosecution than public prosecutors (who barely existed).
And the grand jury is a governmental body, even if it's not obvious to moderns.

8/ I was surprised by how unitary theorists put so much weight on the word "vesting" for indefeasibility, with so little historical evidence.

To his credit, Michael McConnell wisely backed off from Vesting = indefeasible in his recent book "The President Who Would Not Be King."

9/ But the Roberts Court and other scholars are leaning into this error more than ever. (Seila Law).
But these assumptions are more projections back from the 19th C. and from ideology.

We might call this "magical-vesting" because of its anachronism and magical thinking.

10/ A surprise twist: The evidence can support both sides of the non-delegation debate.

For delegation: Vesting does not mean exclusive.
Against: The dictionaries plus intratextualism/expressio unius suggest that the “All” in Article I vesting clause is significant = exclusive.