Thread by @jedshug

Why didn't Jefferson or Madison simply fire Marbury?
"The Marbury Problem & the Madison Solutions"

My recent @FordhamLRev essay building on research by @Jane_C_Manners @LevMenand, adding evidence from Madison & the 1st Congress vs. the unitary exec @SSRN
papers.ssrn.com/sol3/papers.cf…

2/ Daniel Birk, Manners & Menand saw a problem for the unitary theory in Marbury.
Marshall wrote: "[W]hen the officer is not removable at the will of the executive, the appointment is not revocable, and cannot be annulled. It has conferred legal
rights which cannot be resumed..."

Marbury (CJ Marshall) cont.:
"The discretion of the executive is to be exercised until the appointment has been made. But having once made the appointment, his power over the office is terminated in all cases, where, by law, the officer is not removable by him."
Why not?

4/ Marbury was a justice of the peace with a 5-year term, not an Art III judge.
Was Marshall confusedly assuming that a judicial-like office could be insulated from removal?
Marbury’s counsel Charles Lee seemed to make such an assumption...
To be honest, I had, too, in 2002...

5/ When I wrote my article on Marbury & the fight over removing judges in state & fed courts in “Marbury and Judicial Deference" in 2002, the way I could make sense of Marbury was that judge-like offices were arguably protected from removal.
But JPs were not really judges...

6/ @Jane_C_Manners & @LevMenand showed that when an English office was for a "term of years," that language meant the officer was protected from removal.
This default rule made sense in an aristocratic era when offices were property, sometimes inheritable:
papers.ssrn.com/sol3/papers.cf…

7/ I wanted to explore whether the early Americans assumed this default rule applied only to judicial or quasi-judicial offices.
Here's a Madison Solution from 1789: Madison himself proposed a "good behaviour" Comptroller - for a "term of years."

8/ Chief Justice Roberts was presented with this history in Seila Law amicus briefs citing Manners & Menand.
And I filed an amicus brief in Collins v. Yellen specifically highlighting Madison's Good Behaviour Comptroller evidence.
But Roberts & Alito botched all the history.

9/ But could Marshall's dicta in Marbury arguably support the unitary exec theory?
If Marbury had a "vested" rights for his office, did that signify "vested" powers as indefeasible?
In a forthcoming @StanLRev article "Vesting," I show that no, it did not.
papers.ssrn.com/sol3/papers.cf…

10/ Since 2020, Birk, Manners/Menand, Christine Kexel Chabot, and I have presented a series of papers that raise serious problems for the unitary executive theory.
See also my paper "The Decisions of 1789 Were Anti-Unitary."
Originalists: Any response?
papers.ssrn.com/sol3/papers.cf…

11/ The US Reports include legal arguments from both sides, more from Marbury's counsel Lee than from Attorney General Levi Lincoln.
Lee emphasized that the JPs "exercise part of the judicial power of the US. They ought therefore to be independent," citing Federalist 78 & 79...

12/ But he also emphasizes that "hold their office for five years." It is not obvious to us now, but as @Jane_C_Manners, @LevMenand and I show, in 1787 through 1803, the original public meanng of such tenure meant a protected legal right to the office & insulation from removal...

13/ Lee began his argument for Marbury with the statement that a Justice of the Peace is "an office not held at the will of the president." 5 U.S. 138.
And then Lee offers a fascinating dichotomy about the Secretary of State that contradicts the unitary executive theory...

14/ See 5 US 139:
"Lee would make a few remarks on the nature of the office of Secretary of State. His duties are of two kinds, and he exercises his functions in two distinct capacities; as a public ministerial officer of the United States, and as agent of the President...

15/ "In the first his duty is to the United States or its citizens; in the other his duty is to the President; in the one he is an independent, and an accountable officer; in the other he is dependent upon the President, is his agent, and accountable to him alone..."

16/ A principal officer has dual roles: One accountable to and controllable by the president.
The other has a duty to the "citizens," "independent" from the president and legally "accountable" to the courts (and presumably Congress).
This contradicts the unitary theory of duty.

17/
-Jefferson's AG Levi Lincoln never argues that the case is moot because Marbury has been effectively removed or could be removed.
-Lee never tries to preempt or rebut such an argument.

*And Marshall's unanimous decision says JPs are not removable.*
Isn't that interesting?