A Supreme Court decision expected by the end of June will likely address the unitary executive theory of presidential power and whether originalist understandings of the Constitution support it in a particular circumstance. That interpretive exercise is a fool’s errand both in general and in the case at hand.

The Supreme Court is expected to decide Collins v. Yellen, which questions whether statutory protections against the president’s ability to terminate the Director of the Federal Housing Finance Agency are constitutional. The case will test the role of Framing-era historical sources, which are often the sole evidence relied upon by originalists on the Court. Originalists have cited Founding-era history that they claim supports the unitary executive theory, which holds that the entire executive power of the United States – including the power to remove executive officials – is vested in the president. Under this theory, constraining the president’s ability to remove senior executive branch officials is unconstitutional, and the statutory protections against removal must be struck down.

Originalists rely on three sources of history for this theory: the original meaning of the Constitution and, in particular, the vesting clause at the beginning of Article II of the Constitution; the so-called Great Decision of 1789, which they argue shows that the First Congress agreed that that the Constitution permitted removal of executive branch officials by the president; and evidence that, at the time of the Framing, the King of Great Britain had unfettered power to terminate officials in his government.

Recent historical scholarship about the time of the Framing, however, undermines originalist argument for a unitary executive theory. This new scholarship takes originalism on its own terms, assuming arguendo that originalism is the proper method of interpreting the Constitution and asking: What does the historical record actually show? The challenge for originalists is that historical analysis generally – and of these three events in particular – is murky and subject to dispute. Reasonable but competing views on the topic often exist within the academy, leading the reflective mind to keep alternative theories under consideration and not dogmatically subscribe to a particular view as necessarily correct.

First, consider competing views of the vesting clause. Julien Davis Mortenson, in an article in the Columbia Law Review, has reviewed the history from the time of the Framers and concluded that, as the title of his article recounts, “Art. II Vests Executive Power, Not the Royal Prerogative.” According to Mortenson, “executive power” at the time of the Framing was the power to execute laws passed by Congress. It did not encompass a range of unenumerated powers that the King would ordinarily have possessed. Professor Prakash, in his book Imperial from the Beginning: The Constitution of the Original Executive, reviews the history of the vesting clause and takes the opposite position. Michael McConnell in his book, The President Who Would Not Be King, takes a middle ground. Three serious academics have written long, well-researched, scholarly treatments of the same question, and each came to a different conclusion.

It is much the same with the “Great Decision of 1789,” the series of debates in the First Congress on whether the Constitution vested removal power in the president alone, in Congress, or in some combination thereof. Chief Justice William Howard Taft in the 1926 case Myers v. United States argued that the Great Decision demonstrates that members of the First Congress who were among the Framers agreed that the president has unfettered removal power. Jed Shugerman, on the other hand, in an amicus brief filed in Collins, relies on a recently studied diary by one of the Senators in that First Congress to show that a majority of the First Congress rejected an exclusive presidential removal power. Again, history is contested, this time with a wrinkle as happens with history all the time: New sources emerge, and with the new sources comes a new understanding of the historical event.

Finally, the British King’s removal powers at the time of the Framing are also unclear. Daniel Birk argued in the Stanford Law Review in January 2021 that the power to remove executive officials was not one of the prerogative powers of the Crown. The King had the power to hire and fire his close advisors, but Parliament frequently regulated the qualifications, hiring, and tenure of other officials — including protection against termination. McConnell, in his book, disagrees to some extent, arguing that the King had the power to remove most officers at will including his senior advisors. This debate over the history of the time is yet another illustration that what the Framers envisioned is “almost as enigmatic as the dreams Joseph was called to interpret for Pharaoh,” as Justice Robert Jackson famously said in 1952 in the Steel Seizure case.

Why are these seemingly intractable questions of history important in a case pending before the Supreme Court in 2021 concerning the constitutionality of a statute enacted by Congress in 2008 to address mortgage lenders after the financial collapse? Originalists typically argue the history of the Framing can definitively resolve constitutional questions that the Framers almost certainly could never have imagined. The outcome of the case, they say, is driven by the history. Critics of originalism argue that the theory is a convenient method of reaching conservative outcomes.

The academic disputes discussed above make clear that divining history in any given constitutional case may not be realistic. The history is rarely one-sided. Justice Jackson’s observations in the Steel Seizure case are once again on point: “[P]artisan debate and scholarly speculation yields no net result but only supplies more or less apt quotations from respected sources on each side of any question. They largely cancel each other.”

Legal historians acting in good faith and able to dedicate months and years to researching and seeking just what the history shows with respect to a single issue – rather than juggling a large and disparate docket of cases – often reach quite different conclusions. New sources can emerge, or existing understandings of the past can be reconsidered. Can we really expect non-expert judges, operating within tight timelines and the confines of the adversarial judicial system, to be able to divine the ground truth of this frequently elusive and highly contested history? When there is, at best, a 51 percent chance that the Justices have the history right, is it really advisable to lock the Constitution into a particular version of that history for all time? Can constitutional history be determined by a 5-4 vote of Supreme Court justices? What all of these cases show is that the adversarial nature of the U.S. judicial system is a poor method of divining that frequently elusive history – and that the originalist method for deciding cases cannot provide the certainty that it claims.

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