Interring the Unitary Executive

This Article addresses a constitutional debate that began in 1789 and rages on yet today. While the U.S. Constitution unequivocally establishes single President, it leaves open many questions about officers who will necessarily assist President executing law. Leading originalist scholars contend II’s provisions vesting “the executive Power” requiring her to “take Care Laws be faithfully executed” dictate particular governmental structure: “unitary executive” with absolute power remove (and thus control) all branch. An express presidential removal appears nowhere text of Constitution, proponents unitary have placed heavy emphasis history. They claim Founding era never included independent regulatory structures designed insulate from control. refutes such claims introduces comprehensive historical record earlier largely missed. My work were not only present at Founding, but they pervaded statutes passed into law by First Federal Congress George Washington. Unitary scholars’ failure recognize structure Sinking Fund Commission — Founding-era agency proposed Alexander Hamilton Washington is just tip iceberg. Unitarians also missed dozens early statutory repeat non-unitary aspects Commission’s require actors autonomously reinforce President’s duty take care laws executed. By scouring every public act Congress, my research brings light era. The repeatedly dispersed decisions amongst multiple checked one another as well President. body delegated control over significant judges lay persons whom could remove. All these belie conventional view vests “exclusive exercise” “executive power” United States. Independent been us since beginning, originalism provides no occasion for Court declare them unconstitutional now.