Balkinization: Alvis, Bailey and Taylor, THE CONTESTED REMOVAL POWER

Alvis, Bailey and Taylor, THE CONTESTED REMOVAL POWER

Mark Graber

The following book review with a few edits will be published by the Law and History Review. I am grateful for the journal’s permission to spread the word about this very good book Professor Alvis, Bailey and Taylor have written.

The removal power is Exhibit A for claims that the persons responsible for the Constitution were not demi-gods who anticipated all possible contingencies. Article II, Section 2 specifies how executive department officials are appointed. No constitutional provision specifies or even hints at how executive officials are removed. The constitutional framers and drafters who sat in the first Congress confessed mistake and did not claim that they had plainly set down the rules for getting rid of officials whose services are no longer needed. Madison admitted to the first Congress that removals were “an omitted question.” A contemporary statesperson might have simply said “whoops.”

The Contested Removal Power, 1789-2010 provides a vital history of the consequences of this omission for American constitutional development. J. David Alvis, Jeremey D. Bailey, and F. Flagg Taylor IV have written the definitive study of the ongoing debates over the removal power that begun during the first Congress and remain vibrant at present. Along the way, they provide well researched accounts of the constitutional disputes over control of the executive branch and administrative agencies that took place during the Jackson administration, the Andrew Johnson administration, the progressive era, the Nixon era and in contemporary politics. All persons who teach American constitutional law, American constitutional politics or American constitutional development need to be familiar with the information in this book.

Readers of The Contested Removal Power, 1789-2010 will learn about the narrowing of constitutional possibilities over time. The first Congress, Alvis, Bailey and Taylor observe, considered four possible constitutional means for removing executive branch officials. Various members of Congress when debating the organization of the cabinet proposed that executive officials could be removed by the president alone, by the president with the advice and consent of the Senate, by whatever process Congress devised, or only by impeachment. The last alternative was decisively rejected during that 1789 debate over removals. Over the next two hundred years, Americans largely abandoned removal by the president with the advice and consent of the Senate, leaving removal by the president or removal by whatever process Congress devises as the only two contemporary alternatives. Lawyers advancing partisan causes often assert that history has resolved the matter one way or another. Alvis, Bailey and Taylor are nevertheless convincing when they demonstrate that at no time in history have Americans constitutional decision makers, from the Supreme Court to members of Congress, ever agreed on the precise rules for removing particular executive officials or even which officials are members of the executive branch of the national government.

Alvis, Bailey and Taylor have written the seminal study of the removal power in American constitutional development, and not just because they have penned the first book length study of the subject. The Contested Removal Power is admirably thorough. The authors cover all the main constitutional debates over the removal power, whether those debates take place before the Supreme Court, in congressional debate, or in the oval office. The analysis is informed by law, political science and history. Edward Corwin, Gordon Wood, and Stephen Skowronek are among the many guides Alvis, Bailey and Taylor use when providing contexts to the often arcane disputes over who the president can cashier and how that removal may be done. Most important, the text is comprehensive institutionally and historically. Those scholars who have insisted that the removal power was settled tend to do so because they focus on a particular controversy, such as the Removal Debates of 1789, or on a particular branch of government, most often the presidency. The Contested Removal Power, by exploring the positions all branches of the national government have taken on the removal power over time, brings complexity to the table. Presidents, the authors note, do tend to favor a unitary executive who has the sole removal power, but Congress often regards the Constitution as empowering the legislative to make rules for removal, while the jurisprudence of the federal courts has wavered throughout history. “The removal power,” Alvis, Bailey and Taylor correctly conclude, “remains unsettled.” (5).

For a study advertised as a work in American political development (14-15), too little development sometimes takes place during The Contested Removal Power. The text too often treats history as an enduring contest between proponents of executive removal and proponents of congressional discretion. Until the conclusion, Alvis, Bailey and Taylor spend less energy discussing the different versions of each position that have been championed over time, or even at the same time. Some developments are discussed in the main body of the text. Nevertheless, readers will find far more sentences as Henry Clay “anticipat[ed] the dissenters in Myers, and expanded on an argument made by Sedgwick in the First Congress” (92) than the more nuanced “Jackson continued Jefferson’s emphasis on public opinion, but he transformed it by attaching the principle of rotation” (73). Alvis, Bailey and Taylor note some minor legal differences between the defenses of congressional delegation theory advanced by Justice Louis Brandeis and James McReynolds in Myers v. United States (1926), but they never acknowledge that the Brandeis dissent was rooted in a commitment to participatory democracy that Reynolds did not share. Moreover, while The Contested Removal Power correctly notes that the precise balance of power between the president and Congress remains unsettled, some removal questions have been resolved. While the authors paint the contemporary Supreme Court as wavering between a unitary executive who can removal all executive branch officials and congressional power to set the rules for all removals, twentieth century practice has settled that the president may remove all officials with “pure” executive functions, while leaving unsettled what constitutes a “pure” executive function. We do not have the unitary executive of Richard Chaney’s dreams, but Henry Clay’s claim that only Congress could authorize the removal of the Secretary of the Treasury is off the table.

The merits of The Contested Removal Power clearly outweigh these flaws. Scholars who attempt serious interdisciplinary work inevitably are found a bit wanting with respect to at least one discipline for the simple reason that not everyone can take every perspective on every issue. Alvis, Bailey and Taylor provide readers will an exceptionally scholarly account of the removal power in American constitutional history. The reader who is bound to cavil at one perceived flaw or another will nevertheless find themselves a whole lot smarter for having read the book.

Posted 8:19 AM by Mark Graber [link]