Historical Perspective on the Unitary Executive
George Liebmann
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Thu, Feb 5 at 11:46 AM
The White House in Washington, DC. (Volodymyr Tverdokhli… more
February 5, 2026 Law and liberty
Historical Perspective on the Unitary Executive
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Anyone reading the briefs and transcript of oral argument in the recent Slaughter case involving the president’s power to remove members of independent regulatory agencies can only be amazed at the lack of historical perspective of all the major actors, including counsel. All treat Article II of the Constitution as a perfect model of executive unity, the only issue being how far its powers extend. In truth, the drafting and history of Article II show that there have always been reservations with and limits to the unitary character of the executive branch.
Today, there is a widespread failure to realize that Article II made several concessions to the notable members of the Constitutional Convention who favored a plural executive on the Swiss model, or on the model prevailing in most American states, where the attorney general, comptroller, and treasurer are chosen separately from the governor. In some of those states, such as Massachusetts and New Hampshire, an executive council is given important powers, while in Virginia, not the least important state in 1787, the legislature exercises appointment powers elsewhere belonging to the executive.
The advocates of a plural executive included Benjamin Franklin, Edmund Randolph, Luther Martin, and George Mason. The principal concession they won was the requirement of Senate concurrence in appointments of “officers of the United States” unless Congress vested appointment “of such inferior officers as they think proper, in the president alone, in the Courts of Law, or in the heads of Departments.” Such legislative involvement is hardly in line with a model of pure executive unity. The principle extended not only to cabinet officers but to all officers in the military, save to the extent that Congress relinquished its power of confirmation.
Alexander Hamilton held in Federalist #75 that the Senate’s confirmation power would prevent the president from appointing relatives or sycophants to the Cabinet. And in Federalist #77, he assumed that “the consent of [the Senate] would be necessary to displace as well as to appoint.” This contention was ultimately rejected by the first Congress, but only by a nine-to-nine vote in the Senate in 1789, with Vice President Adams casting the deciding vote against a requirement of Senate concurrence in removals.
Nearly eighty years later, Congress imposed just such a requirement by the Tenure of Office Act of 1867. The Senate came within one vote of the two-thirds majority necessary for enforcing this provision in the presidential impeachment trial of Andrew Johnson. The Tenure of Office Act would be repealed in 1887, but the view that the Constitution definitely lacked a requirement of Senate consent to removals without cause was not clearly established until the Myers case of 1926, over the vehement dissenting opinions of Justices Holmes, Brandeis, and McReynolds. Brandeis declared that the constitutional separation of powers existed “not to promote efficiency but to preclude the exercise of arbitrary power, to save the people from autocracy.”
Article II is not a charter for presidential thunderbolts from on high; it vested executive power, to be sure, but it also curbed and dispersed it.
There are several other examples of Congress imposing reasonable limitations on the president’s ability to direct every part of the executive branch. Congress has reposed in the judiciary the appointment of court clerks and the appointment of interim United States attorneys who arguably perform executive functions.
Aside from the confirmation and removal issue, the Constitution also circumscribes the president’s ability to command the Executive Branch by the provisions of Article II limiting the duration of recess appointments and by the provision allowing Congress to vest the power of appointment of “inferior officers” in “the Heads of Departments.”
Moreover, in at least two respects, Congress has further diluted the unitary power of the president: the Twenty-fifth Amendment, ratified in 1967, gives “the principal officers of the executive departments” the power to remove a disabled president. A 1967 statute also limits the ability of both the president and other federal officials to appoint relatives to positions. Both these measures are inconsistent with a pure “unitary executive.”
At issue in Slaughter are the limitations placed on the president’s power to remove members of the Federal Trade Commission, limits first upheld in Humphrey’s Executor. The Humphrey’s case of 1935 did not stand in isolation but was part of a concerted effort, led by Chief Justice Hughes and Justice Brandeis, to bring to an end the First New Deal’s pale imitation of Mussolini’s corporate state. Liberals of that era were alarmed by the NRA parades, the “we do our part” stickers displayed in store windows on pain of having them broken, the industry codes drawn up by the largest businesses, the pervasive price controls, and the mandatory closed shops obtained by organized labor. The same day it decided Humphrey’s, the Court also handed down Schechter Poultry, which struck down an unconstitutional delegation of legislative power to the executive. Justice Cardozo, then regarded as the most “liberal” member of the Court, contributed a concurring opinion in Schechter, taking alarm, two years after Hitler’s all-encompassing Enabling Law, at the sheer breadth of the transfers of power: “no such quantity of power is susceptible of transfer.”
Like Schechter, the Humphrey’s decision dealt with an attempt to concentrate power in the hands of the executive. The bipartisan independent regulatory commission with staggered terms was an effort to institutionalize gradualism and political compromise rather than presidential command. One of its innovators was Charles Evans Hughes, whose report on a natural gas trust became the basis of the law establishing the New York State Public Service Commission. Justice Robert Jackson, in his posthumous memoir of Roosevelt, That Man, regarded Hughes as his co-equal among the political leaders of his time. It was Hughes and Brandeis together, joined by the conservative Willis Van Devanter, who later wrote the letter credited with extinguishing Roosevelt’s court-packing plan. Today’s “conservative” judges would do well to emulate their suspicion of untrammeled executive authority.
The foregoing doesn’t definitively demonstrate the correct outcome in Slaughter, but it does show that the Court was not well served by briefs and arguments neglecting the divided counsels at the Constitutional Convention and the Anglo-American prejudice against concentrated power. Article II is not a charter for presidential thunderbolts from on high; it vested executive power, to be sure, but it also curbed and dispersed it. Limitations on presidential control of the executive branch have been part of our political tradition, too. If we take as our starting point an assumption of unquestioned unity, it leads us to a Cromwell or Charles I, not to America’s constitutionally restrained executive.
Article II of the Constitution offered significant concessions to those who preferred a more plural executive.
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