The Interstitial Executive: A View from the Founding

This Article introduces new archival evidence to show that the raging historical debate about presidential removal power has missed a basic Founding era understanding of the respective roles of Congress and the President. Archival evidence of officer commissions issued by the Washington, Adams, and Jefferson administrations demonstrates that the Founding generation understood removal as a statutory term of office which Congress could regulate pursuant to the Appointments and Necessary and Proper Clauses. The statutorily mandated, Department of State records of over 200 officer commissions brought to light by this Article reveal the distinct terms of office and removal that early presidential administrations recognized for officers both with and without tenure protections. The commissions show that early presidential administrations consistently recognized statutes assigning significant executive power to tenure protected officers appointed by the President. Early presidential administrations therefore failed to practice what advocates of a unitary executive theory and an absolute Article II removal power preach. Founding era understandings of the scope of the President's removal power turned on statutory terms of office authorized by the Appointments and Necessary and Proper Clauses. In their officer commissions, the Washington, Adams, and Jefferson administrations asserted service "during pleasure" for officers ranging from the Secretary of State to the Librarian of Congress, but only when governing statutes were silent or expressly granted Presidents authority to cut short term of years offices during pleasure. These administrations routinely altered the language they used in commissions issued to tenure-protected principal officers who were required to execute significant laws impartially or consistently with long-term statutory goals. Commissions for tenure-protected officers such as Revolutionary War Debt Commissioners, Chief Justices who served on the Sinking Fund Commission, and Justices of the Peace omitted references to service "during pleasure" and indicated "good behavior" or fixed terms of office. Early officer commissions establish that presidential assertions of removal power operated within the parameters of federal statutes, not above them. The Founding generation understood removal as a term of office which Congress and the President could regulate by statute and, at the very least, restrict when necessary to shelter officers charged with determining significant matters impartially or consistently with long-term statutory goals. As constitutional questions about the President's removal power begin to work their way through the courts in cases like Trump v. Slaughter , this Article cautions against extending historically unfounded arguments for an absolute Article II removal power any farther than necessary or to all officers in the executive branch.