Thread by @jedshug

This week, 2 major scholars re-asserted the unitary executive theory:
Akhil Amar in "The Words That Made Us," p. 357-59; @jacklgoldsmith in After Trump podcast w/ @page88.

Yet the Founding Era documents don't support them (linked @lawfareblog post).
1/
lawfareblog.com/imaginary-unit…

2/ The unitary executive theorists that Trump appointed are getting more extreme. Yesterday, Judge Newsom on the 11th Cir. used the theory to assert ahistorical and unprecedented restrictions on Congress, standing, and private rights of action:

https://twitter.com/seanhecht/status/1390402663045505024

3/ @jacklgoldsmith is right about how the Supreme Court has ruled recently, and that limits reform. But this is how their show summary characterize the reformers’ view:

“As a legal and constitutional matter, this ‘independent’ Justice Department is a lot of nonsense.”

Nonsense?

4/ @jacklgoldsmith (veteran of the Bush DOJ) and Bob Bauer (Obama’s White House Counsel) have admirably worked together on the important reformist book and podcast After Trump. Role models for bipartisan openness.
But that’s why this is so disappointing:

5/ Goldsmith makes 2 brief points:
"Article II vests executive power in the president alone..."
It doesn't say "alone." Even if it did, vesting doesn't imply indefeasibility, i.e., that Congress set no conditions).
See "Vesting" forthcoming @StanLRev:
papers.ssrn.com/sol3/papers.cf…

6/ Goldsmith adds: Art II "gives president the duty to faithfully execute the law."
Take Care/Faithful execution clause is primarily a duty-imposing power-limiting clause more than a power-creating clause. Historically not a basis for unlimited power:
harvardlawreview.org/2019/06/faithf…

7/ Here are the pages from Amar's book and Maclay.
Last summer in @lawfareblog (linked above) and in this paper, I flagged how Maclay's diary, overlooked by scholars & judges, undercuts the Decision of 1789 claims.
But Amar cherrypicked just Ellsworth.
papers.ssrn.com/sol3/papers.cf…

8/ Let's go page by page from Amar. First is a stunning claim and major error analogizing Washington's removal power over officials to his power to fire "managers of fields" and "butlers" "at will" or "displeasure."
Let's set aside the troubling plantation implications here...

9/ More to come, but I note the Convention & First Congress shows little support for "at pleasure" removal (historical predecessor of "at will").
Other ardent unitary theorists like Sai Prakash acknowledge this issue was not resolved.
See my paper here:
papers.ssrn.com/sol3/papers.cf…

10/ The Convention ignored such a proposal, the Federalist Papers rejected unitary removal, and only a tiny number of members of the First Congress spoke for presidential removal at pleasure.
Here is a section of my draft paper on the First Congress rejecting the unitary theory:

11/ Next Amar relies on Madison's speeches in the House on June 16, 1789.
But Amar doesn't acknowledge the evidence that Madison had to retreat from his initial language on June 22, and his colleagues mocked him for it. The best explanation? He didn't have the votes.

12/ Page 4 of my draft. Compare the before & after.

Why would Madison need to abandon the explicit presidential power text in favor of confusing ambiguity?
Keep in mind that Madison was an expert preamble drafter when he wanted to be.
But not when he didn't have the votes.

13/ Madison's colleagues mocked him for having “evacuated untenable ground” & not being “candid and manly.”
The easy answer? Just add an explanatory clause to clarify the power & purpose. The First Congress did so elsewhere.
But not here.
Because Madison didn't have the votes.

14/ See a more concise version of the argument and the member-by-member vote count & chart in the amicus brief I filed in the Supreme Court in Mnuchin v. Collins in October.
Only a third of the House supported Madison's unitary argument...
papers.ssrn.com/sol3/papers.cf…

15/ Moreover, Madison contradicted these arguments before and after mid-June, 1789.
Madison wrote Fed #39 against the unitary theory, flip-flopped, then retreated.

See my article "Presidential Removal: The Marbury Problem and the Madison Solutions" ir.lawnet.fordham.edu/flr/vol89/iss5…

16/ Remarkably, Amar concludes with Maclay's diary for 2 senators' arguments. And they were famous: Ellsworth and Paterson. But he doesn't tell you that Maclay's diary indicates they were confused and obfuscating the issue in a messy debate.
See:
papers.ssrn.com/sol3/papers.cf…