The President\u27s Approval Power

This Essay introduces the President’s approval power as it was originally understood in the United States. Leading proponents of a unitary executive President have asserted that the President’s absolute power to control subordinate officers includes power to veto or approve subordinates’ discretionary actions before they take effect. This Essay reconsiders the approval power’s purportedly unitary function and presents previously overlooked evidence of the originalist foundations of a presidential approval power. My comprehensive analysis of every public act passed by the First Congress shows that the founding generation never understood Article II to grant the President general authority to approve subordinates’ decisions. Approval was instead a permissive power that the First Congress withheld in a vast majority of statutes and granted in only a handful of laws. Even when statutes granted the President or superior officers an approval power, moreover, they did not gain unitary control. Approval afforded only ex post review without power to force nonremovable subordinates to initiate regulatory action implementing superiors’ preferred policies. Early practices surrounding approval power offer further evidence against originalist arguments for a unitary executive President with absolute control over subordinate officers. At the founding, approval offered a partial measure of accountability that Congress could incorporate when allocating decision-making power within the executive branch. Approval sometimes checked spending and contracting decisions that would be difficult to undo by removing an officer. In other instances, approval governed executive adjudications conducted by officials who operated outside formal levers of control established by appointments and removal. Statutory approval permissions reflected the understanding that the President and other superior officers would exercise partial but not absolute control over subordinates’ execution of the laws

Is the Federal Reserve Constitutional? An Originalist Argument for Independent Agencies

Originalists have written off the Federal Reserve’s independent monetary policy decisions as an unconstitutional novelty. This Article demonstrates that the independent structure of the Federal Reserve dates back to a Founding-era agency known as the Sinking Fund Commission. Like the Federal Reserve, the Commission conducted open market purchases of U.S. securities with substantial independence from the President. The Commission’s independent structure was proposed by Alexander Hamilton, passed by the First Congress, and signed into law by President George Washington. Their decisions to create an independent Commission with multiple members to check the President and one another—and to include the Vice President and Chief Justice as Commissioners who could not be replaced or removed by the President—belie the notion that such independence violated the newly minted Constitution. The Sinking Fund Commission establishes that the Federal Reserve’s independent structure has an impeccable originalist provenance and does not violate the Constitution

Do Justices Time Their Retirements Politically? An Empirical Analysis of the Timing and Outcomes of Supreme Court Retirements in the Modern Era

As the rampant speculation preceding Justice Kennedy’s retirement made clear, it is difficult to predict when Justices will retire. Justices often defy the conventional wisdom that a Justice is more likely to retire when the president and Senate share the Justice’s ideology. For example, Justice Ginsburg chose to remain on the Court rather than retire during President Obama’s terms. Her choice is not unusual. Since 1954, a majority of similarly situated Justices refused to retire. In light of this behavior, it is no surprise that existing studies struggle to explain Justices’ retirement decisions and disagree on whether political factors predict retirement. This Article identifies key reasons past studies have found Justices’ retirement decisions inexplicable. No studies measure whether Justices actually succeed in obtaining like-minded successors. Nor do past studies consider accurate measures of ideology while controlling for retirements forced by health. This empirical study of modern-era retirements addresses each of these shortcomings. It constructs more accurate measures of ideology by using voting records to pinpoint ideological similarities or differences between Justices, presidents, and Senators who may appoint a successor. It also differentiates between voluntary retirements and involuntary retirements forced by health. Finally, by comparing the votes of a Justice and his or her successor relative to other Justices remaining on the Court, this study offers the first measure of Justices’ success in obtaining like-minded replacements. The analysis reveals that Justices have had limited opportunities to retire to ideologically compatible presidents and Senates, and even then, limited success in obtaining like-minded replacements. Not all Justices had opportunities to time their retirements politically. Health problems forced many Justices to leave at politically inopportune times, and some Justices near the center of the Court were ideologically distant from leaders of both parties by the time they retired. Further, even Justices who retired to ideologically compatible presidents rarely obtained a successor who closely replicated the retiring Justice’s voting behavior. Limited success in obtaining like-minded replacements explains why Justices flout calls to retire while presidents who share their ideology are in office

Schooling the Supreme Court

Supreme Court Justices\u27 uniform professional backgrounds have drawn increasing criticism. Yet it is unclear how diverse professional training would affect the Court\u27s decisions. This Article offers the first empirical analysis of how Justices with diverse professional training vote: It examines a unique period when Justices with formal legal education sat with Justices who entered the profession by reading the law alone. The study finds that Justices\u27 levels of agreement and politically independent voting vary significantly according to their professional training. In cases which divided the Court, Justices who shared the benefit of formal legal education (1) voted together more often and (2) voted more independently of their appointing presidents\u27 ideologies than Justices without this background. These findings substantially qualify earlier views on the desirability of Justices without formal legal education. Diversity in professional training is consistent with calls for a more politically responsive Court. It does not support arguments for an optimally diverse group of decision makers, however, unless one is also willing to accept diminished political independence that has been shown to accompany diverse professional training

Interring the Unitary Executive

The President’s power to remove and control subordinate executive officers has sparked a constitutional debate that began in 1789 and rages on today. Leading originalists claim that the Constitution created a “unitary executive” President whose plenary removal power affords her “exclusive control” over subordinates’ exercise of executive power. Text assigning the President a removal power and exclusive control appears nowhere in the Constitution, however, and unitary scholars have instead relied on select historical understandings and negative inferences drawn from a supposed lack of independent regulatory structures at the Founding. The comprehensive historical record introduced by this Article lays this debate to rest. It makes clear that the Founding generation never understood the unitary executive to be part of our Constitution. This Article establishes that nonunitary, independent structures were not only present at the Founding, but that they pervaded regulatory statutes passed into law by the First Federal Congress and President George Washington. Unitary executive theory and its requirements of absolute accountability to the President stand at odds with the independence and tenure protections afforded to scores of unelected officials who run our government. Unitary scholars insist that Article II’s Vesting and Take Care Clauses require the Supreme Court to erase longstanding precedent allowing tenure protections for heads of multimember, independent agencies such as the Federal Reserve and the Federal Trade Commission. Some unitary scholars have also extended these objections to tenure protections for administrative law judges and a multitude of other inferior officers. The Roberts Court has become increasingly receptive to unitary arguments and appears poised to invalidate tenure protections applicable to wide swaths of the administrative state. This Article demonstrates that unitary scholars and judges have rested their arguments on deficient understandings of Founding-era history. Their failure to recognize the independent structure of the Sinking Fund Commission—a Founding-era agency proposed by Alexander Hamilton and passed into law by President Washington and the First Congress—is just the tip of the iceberg. Unitary jurists have also missed scores of early statutory provisions that repeated nonunitary aspects of the Sinking Fund Commission’s structure and required autonomous actors to reinforce the President’s duty to take care that the laws be faithfully executed. The First Congress repeatedly delegated control over executive officers, as well as significant executive discretion, to independent judges and lay persons whom the President could not remove or replace. This body also chose a nonunitary framework when it dispersed executive decisions amongst multiple officers and required these officers to check actions taken by the President and each other. These laws belie the conventional originalist view that the Constitution vests complete control over the exercise of executive power in the President of the United States. Independent regulatory structures have been with us since the beginning, and originalism provides no occasion for the Court to declare them unconstitutional now

A Long View of the Supreme Court’s Influence over Supreme Court Appointments

This Article offers the first empirical analysis of the Senate’s role in constraining presidents’ choices of Supreme Court nominees over an extended historical period. It considers ideologies of Senates faced by nominating presidents and measures whether the ideologies of these Senates predict Justices’ voting behavior. The analysis substantially qualifies earlier understandings of senatorial constraint.Earlier empirical studies consider only limited numbers of recent nominees. They suggest that the Senate has constrained presidents’ choices, and many scholars theorize that the Senate has enhanced its role in the appointments process since the 1950s. Analysis of a larger group of nominees shows that the Senate’s ideology has had significant predictive power over Justices’ votes in only two isolated historical periods. Senatorial ideology was last significant in the 1970s, shortly after the filibuster of Abe Fortas’s nomination to be Chief Justice, but then it lost significance following rejection of Robert Bork’s nomination in 1987

Mavericks, Moderates, or Drifters - Supreme Court Voting Alignments, 1838-2009

We introduce a new data set recording the vote of every Justice in 18,812 Supreme Court cases decided between 1838 and 1949. When combined with existing data sets, our new data allow us to examine votes in all cases through 2009. We use this data to address previously unanswerable questions about the president\u27s ability to appoint Supreme Court Justices of similar ideology. Surprisingly, history shows that the president\u27s odds of appointing a Justice who sides with appointees of his party have been no better than a coin flip. We find no evidence that divided government at the time of nomination increased the rate of appointees who voted across party lines. These findings cast doubt on the hypothesis that appointments bring the Court in line with majoritarian views. Indeed, many failed appointments occurred when a majority of the Senate and the president were of the same party. These mavericks are not outliers, but rather are part of a larger pattern of appointees whose votes departed or drifted away from executive expectations at remarkable frequency throughout our nation\u27s histor