Regulating the Commander in Chief: Some Theories

Symposium: War, Terrorism and Torture: Limits on Presidential Power in the 21st Century. Convened by the American Constitution Society for Law and Policy and the Indiana University School of Law- Bloomington, prominent legal scholars, human rights advocates and government lawyers gathered in Bloomington on October 7, 2005

Originalism As Thin Description: An Interdisciplinary Critique

My essay was intended as a critique of originalism from the perspective of intellectual history. I pointed out that originalism lacked a rigorous empirical method for analyzing what texts meant in the past. I suppose in some sense it is flattering that Solum has devoted much of his recent article to an attack on my earlier essay. Of course, flattery aside, it would have been more useful if Solum had stated my thesis correctly. For purposes of clarity, I have juxtaposed Solum’s description of my argument with what my essay actually said. Readers will be able to judge for themselves if Solum correctly captured the original meaning of my words

New Light on the Decision of 1789

In the Constitution’s earliest days, members of the House engaged in one of the nation’s most momentous constitutional debates. While deliberating on the Department of Foreign Affairs bill, representatives considered the mechanisms for removing executive officers. The final Act conveyed no removal authority but discussed what would happen when the president removed the Secretary of Foreign Affairs. The traditional view of the Decision, voiced by James Madison, Alexander Hamilton, and William Howard Taft, is that because the Act conveyed no removal authority and laid out what would happen when the president removed, the Act presumed that the president had a preexisting constitutional power to remove executive officers. But there has long been a revisionist view that the Decision did not decide any constitutional question, certainly not in any definitive way. Citing a split in the House majority on a crucial amendment, Louis Brandeis, Edward Corwin, and others have claimed that the majority coalition that voted for the Foreign Affairs Act was deeply divided on constitutional principles. In particular, revisionists have asserted that about half of the majority that approved the Foreign Affairs bill rejected the view that the Constitution granted the president a removal power. Using evidence recently made accessible, this article argues that the traditional reading of the Decision is the correct one. A majority in the House and the Senate concluded that the Constitution’s grant of executive power enabled the president to remove executive officers. Moreover, on two subsequent departmental bills, majorities in the House and the Senate voted to reaffirm the view that the executive power granted the president a removal power. The Decision of 1789 thus stands as the first significant legislative construction of the Constitution and as an exemplary episode when Congress approached its constitutional obligations with sophistication, sincerity, and deliberation

The Appointment and Removal of William J. Marbury and When an Office Vests

Scholars have ignored the most important question in one of the most famous constitutional law cases, obscuring the machinations that spawned the dispute. This Article sheds light on the events that precipitated Marbury v. Madison and also explains when an appointment vests. Thomas Jefferson famously refused to deliver a commission to William J. Marbury, causing the latter to seek a writ of mandamus from the Supreme Court. The received wisdom supposes that Jefferson’s refusal rested on the grounds that Marbury had not been appointed a justice of the peace precisely because he never had received a commission. In fact, Jefferson’s delivery argument was a post-hoc rationalization, having nothing to do with his actions in March of 1801. John Adams’s midnight appointments incensed Jefferson, leading the new President to treat all of the justice of the peace appointments as nullities. To Jefferson, the failure to deliver commissions to some of those appointees mattered not a whit. What seems to have been far more significant is his sense that the justices of the peace served at his pleasure. Acting on this belief, he simultaneously removed them all and recessappointed most of them, save for more than a dozen, including William J. Marbury. This Article also addresses whether William J. Marbury and the other midnight appointees who never received their commissions were nonetheless appointed, considering five theories of when an appointment vests: when the Senate consents; after consent but before commissioning; when commissioning occurs; with the delivery of a commission; and with acceptance of the office. In the course of considering these theories, the Article discloses the surprising fact that Thomas Jefferson, as Secretary of State, endorsed the second theory, namely that appointments vest before the act of commissioning. Moreover, well before Marbury v. Madison, the Adams Administration likewise concluded that appointments could vest prior to any commission being issued or delivered. Despite this convergence, the Article contends that none of the five theories is correct because each reads the Constitution as enshrining a single answer regarding when an appointment vests. There is no single answer. Rather an appointment vests whenever the President determines that it shall. The Constitution grants power to the President to appoint, never precisely specifying when or how an appointment vests. By not specifying when or how appointment is made, the Constitution leaves it to the President to decide the manner in which he appoints. This conclusion derives from a general principle of constitutional law: When the Constitution grants power to an entity but does not specify the precise means by which it will be exercised, the grantee may decide the means of exercising it

Reanimator: Mark Tushnet and the Second Coming of the Imperial Presidency

A world without judicial review? Not that long ago-when the Left fought tooth and nail to defend the legacy ofthe Warren and (much of the) Burger Courts-the thought of taking the Constitution away from the courts would have been horrific. Witness, for example, Edward Kennedy\u27s depiction of Robert Bork\u27s America!\u27 as a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, [and] rogue police could break down citizens\u27 doors in midnight raids. Bork\u27s sin, of course, was embracing a kind of populist constitutional discourse, that is, the notion that the founders banked a good deal upon the good sense ofthe people and their elected representatives to sort out the meaning of equality, due process, and the like