Beyond Removal

By Jane Manners
November 1, 2023

The contemporary debate over presidential power often assumes that removal is the primary tool through which a President exercises control over executive branch officers to fulfill the Constitutional duty to “take Care that the Laws be faithfully executed.”  This must be so, the logic goes, because without this authority, “the President could not be held fully accountable for discharging his own responsibilities.”  The power to remove, the U.S. Supreme Court has reasoned, also endows the President with the power to supervise.  To be sure, other scholars and jurists have pointed out the ways that this fails to capture the range of disciplinary options available to the President.  But the general view is that removal is key because otherwise “the buck would stop somewhere else.”

The three essays in this symposium issue dedicated to the founding era help us to see that this assumption is, in some ways, a failure of imagination.  As a matter of constitutional text and historical practice, they argue, there were many ways in which officers could be held accountable for their actions in the absence of a presidential removal power, just as there were other ways in which Congress could assure that the law would be executed, with or without the cooperation of executive officials.  Professor Gary Lawson argues for the potency of a presidential negative rooted in the Constitution, a power that he sees as both more supple and more textually grounded than a constitutional removal power, which he does not believe exists.  Professor Christine Kexel Chabot, focusing on the powers that the First Congress actually delegated to the President by statute, argues that—whatever one thinks of the constitutionality of presidential removal—the historical record indicates that the First Congress granted President George Washington the power to approve the actions of subordinates only in cases in which he would otherwise be unable to roll back any decisions, often involving expenditures, with which he disagreed.  Professor Chabot offers this historical record to suggest that the founding era Congress envisioned a presidential supervisory power that would be used far less often and far more precisely than would be possible with the blunt tool of removal.  Finally, Professor James E. Pfander, by demonstrating the widespread acceptance of private informer suits in the early republic, reveals not only how far current, narrow conceptions of standing stray from this original understanding, but also how, in practice, the prosecution of state and federal crimes—an act that we today consider a “quintessentially executive function”—was frequently left to individual private citizens to pursue.