Disagreement and Historical Argument or How Not to Think About Removal

Scholars have debated the reach of the President’s power to remove government officers for over one hundred years. This old fight is now suddenly urgent as President Trump asserts far-reaching powers to control the federal bureaucracy and the Supreme Court transforms Unitary Executive Theory into caselaw. Yet the scholarly case for an indefeasible presidential removal power has never been weaker. This Essay continues an ongoing conversation about how to read some critical early republic evidence about removal.

It briefly recapitulates the stakes of the disagreement before offering in-depth analyses of developments in Pennsylvania removal practice, including a reading of the Council of Censors’ Report from 1784. Along the way, it responds to some recent criticisms of our work by Professors Saikrishna Prakash and Aditya Bamzai. The Essay makes two overarching arguments: First, there was no consensus in the early republic that the executive power included an indefeasible power of removal. Second, legal historians must take dissensus seriously.

Historical disagreement is a fact that lawyers wishing to make legal meaning out of history need to confront. In this case, it straightforwardly undermines the notion there was a shared understanding in the early republic that the executive power included an indefeasible power of removal.