Many of my contributions to this blog will riff my forthcoming tome on the Constitution and its federalism, cleverly entitled The Upside-Down Constitution. The publisher’s (Harvard University Press) release date is February 15. However, you can already pre-order the book on Amazon.com. What exactly is “upside-down” about our Constitution? Keep reading to find out.
This excellent and important book ends with a quotation from The Federalist indicating the spirit of the whole book. Quoting Madison: “Will it be sufficient to mark, with precision, the boundaries of these departments, in the constitution of the government, and to trust to these parchment barriers against the encroaching spirit of power?” In the book itself, authors Alvis, Bailey, and Taylor answer this question in the same way that I imagine James Madison would have. Although, unlike Madison who is merely predicting how the constitutional order he had a hand in creating will behave, The Contested Removal Power illustrates its behavior in the specific case of removal power over the entire course of American history.
For this reason, I would venture to say that this is one of the few books emerging out of American political science in the last thirty years which James Madison would have both read and enjoyed. The authors illustrate the history of an important constitutional lacuna. The removal power is a constitutional lacuna because, while the Constitution is clear about how executive officers will be appointed, it says nothing about how they will be removed. Thus, the question of executive officer removal has been a continuous source of contestation between Congress and the President. Some of the options include: Does the President have the complete power of removal independent of Congress? Or does removal follow the same constitutional pattern as appointment thus giving Congress a great deal more control over the power? Or given that the Constitution says nothing about the question, is removal wholly subject to Congress’s statutory specifications? In tracing the political history of the debates about the removal power, the authors teach us something timely about not only the removal power, but about the system of separation of powers itself.
The authors explicitly challenge a dominant trope of modern conservatives who subscribe to the theory of the unitary executive. According to the unitary executive theory, the President must have complete power to remove any and all subordinate executive officials. Only with such complete power can the President truly possess the responsibility that follows from the unitary nature of the executive branch. If some forms of executive power can be exercised independently of the President—i.e. Congress prohibits the President from removing certain executive officers—then Presidents cannot be held accountable or responsible for all that happens under their watch. According to the theory of the unitary executive, any independent executive official defeats the Constitution’s purpose in creating a single executive.
The authors challenge this theory not by directly contradicting it in their own name: although they illustrate the arguments of those who would challenge the unitary executive theory, they rarely take sides on these issues. Instead, the book itself serves as the challenge. Theorists of the unitary executive claim both the Constitution and historical precedent on their side; they claim that the Constitution settles the matter, as did what the authors refer to as the “decision of 1789.” The “decision of 1789” was the congressional intervention led by James Madison himself to side with the President’s possession of the removal power over and against Congress. Proponents of the unitary executive typically point to the “decision of 1789” as their proof that the removal power ought to be constitutionally uncontested as this constitutional lacuna was settled by some of the Constitution’s framers in the immediate years after its adoption. By showing both how inconclusive the “decision of 1789” itself was along with the continued fight over this power for the rest of nineteenth and twentieth centuries, the authors suggest that this issue has never been settled.
By illustrating the continuous argument over removal power, the authors also suggest something important about the system of separation of powers. In this issue and others throughout our constitutional order, we are always in search of some definitive constitutional settlement that will take the issue out of the realm of political contention. As this book almost unintentionally shows by its investigation of the various Supreme Court opinions on the removal power, our search for constitutional settlement often leads us to the steps of the Supreme Court. We ask the Supreme Court to provide the settlement of the issues which politics is unable to settle. Thus, theorists of the unitary executive keep hoping that the Supreme Court will embrace the constitutional precedent they think is eminently clear and settle the constitutional debates about removal power by pronouncing it as wholly belonging to the President. By contrast, their opponents want the Supreme Court to uphold the settled position within which Congress can make a whole set of limitations and qualifications on this power.
Part of the reason both sides want this issue decided by the Supreme Court stems from their desire to win more permanently by having their win settled as established within constitutional precedent. But part of the reason also stems from something other than the desire merely to win more permanently; instead, we seem to turn to the Supreme Court for a settlement on this and other issues because we are inherently uncomfortable with politics deciding these important constitutional questions. We want them decided at the level of “principle,” independent of politics. Thus, we turn to the Supreme Court for a principled constitutional settlement that will once and for all free this and other hotly contested constitutional questions from politics itself. The problem is, however, that, as the authors’ concluding quotation already begins to indicate, the system of separation of powers aims to preserve constitutional rivalry itself as one of its defining virtues, or it aims to create and nourish what might be called an “unsettlement” Constitution.
Even here, however, this book also shows that every win for one side on the Supreme Court is often followed by a win for the other side. Whether intentionally or not is unclear, but the Supreme Court’s convoluted decision history on this question has managed to preserve the removal power as a point of real constitutional dispute between Congress and the President. And, by showing this continuous struggle, this book illustrates how productive such contestation actually can be. If either the “decision of 1789” or the Supreme Court had settled the removal power once and all for all, we would have lost the interesting and fruitful political dialogue that has emerged from both sides of the issue.
Madison in The Federalist hopes that ambition will counteract ambition. To return to the original quotation from The Federalist, such hope is rooted in the belief that the separation of powers can only be preserved if ambition counteracts ambition. “Parchment barriers” will be insufficient against the “encroaching spirit of power.” A counterbalancing “spirit of power” can only check the “spirit of power”. Given the aforementioned attraction to precisely these “parchment barriers” as articulated by the Supreme Court, one might wonder whether we still need mutually counterbalancing power.
There are other virtues, however, to the system of separation of powers besides mutual counterbalancing. Madison continues his passage about ambition counteracting ambition with the expectation that the “interest of the man must be connected with the constitutional rights of the place.” To push back against a President seeking too much executive power, Congress must connect its power to the constitutional rights of the legislature. Thus, in the case of the removal power debate for instance, Congress asserts its authority over legislation in order to assert its rightful control over those executive officers implementing this legislation. Or, conversely, presidents assert their authority to control the officers implementing legislation by connecting this control to their responsibility for the well-being of the whole nation. By connecting their power to these constitutional arguments, each branch thus brings these reasonable and important arguments into our political sphere. If the issue of removal is settled, there will be no constitutional controversy and thus these arguments will not find their way into our politics.
By showing both the long history of the removal power debate and, even more importantly, by showing with such care the various arguments that have been offered by the participants in this debate, this book directly illustrates not only Madison’s success in his Federalist prediction, but also the political usefulness of that success. The continuous return of the removal power debate has preserved the robustness of our politics because it has caused legislators to assert their virtues as legislators and executives to assert their virtues as executives. And thus the removal power debate has helped us to achieve a continually robust constitutional order. As importantly, the constitutional debate that follows from a robust constitutional order preserves a dialogue between the variety of political virtues that inhere in the separation of powers. To assert their power over removal and their need to control the implementation of legislation, legislators assert, for instance, their virtues of deliberation and their concern for their particular constituents. By contrast, presidents assert their concern and clear responsibility for the whole and their consequent need for the “energy” that only arises from a unitary executive. Whereas a “settlement” Constitution would have one of these virtues win permanently because it is most important, an “unsettlement” Constitution—as I am asserting our Constitution is—preserves these virtues in continuous dialogue with one another. There should be no permanent winner because both sides make good arguments for their position. And these good arguments ought continuously to be made from both sides.
As I said at the beginning, this book follows almost directly from the Madisonian tradition of political science. The contest for political authority, especially insofar as that authority is conditioned by the Constitution, demands coherent political arguments. As a political scientist attempting to make sense of what happened, one cannot simply ignore these political arguments. And this last point is why I would say Madison would appreciate this book so much. The authors are eminently aware of the fact that politicians quest for power. In that way, the authors are like Madison, but unlike modern political scientists, in their awareness that the quest for power occurs within a context in which political arguments matter. To marshal the political authority necessary to exercise power, a politician has to make good arguments. And, in a political context conditioned by a foundational document like the Constitution, what we recognize as a good argument will tend to be that which seems to resonate most with the Constitution. Thus, in a constitutional political order like our own, the only kind of political science possible is a constitutional political science.