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The Unitary Executive During the Second Half-Century University of Pennsylvania Carey Law School Penn Law: Legal Scholarship Repository Faculty Scholarship at Penn Law 2003 The Unitary Executive During the Second Half-Century Steven G. Calabresi Northwestern University School of Law Christopher S. Yoo University of Pennsylvania Carey Law School Follow this and additional works at: https://scholarship.law.upenn.edu/faculty_scholarship Part of the Constitutional Law Commons, Legal Commons, Legal History Commons, Legislation Commons, Political History Commons, President/Executive Department Commons, Public Law and Legal Theory Commons, and the United States History Commons Repository Citation Calabresi, Steven G. and Yoo, Christopher S., "The Unitary Executive During the Second Half-Century" (2003). Faculty Scholarship at Penn Law. 786. https://scholarship.law.upenn.edu/faculty_scholarship/786 This Article is brought to you for free and open access by Penn Law: Legal Scholarship Repository. It has been accepted for inclusion in Faculty Scholarship at Penn Law by an authorized administrator of Penn Law: Legal Scholarship Repository. For more information, please contact [email protected]. THE UNITARY EXECUTIVE DURING THE SECOND HALF-CENTURY * STEVEN G. CALABRESI ** CHRISTOPHER S. YOO I. INTRODUCTION .....................................................668 II. THE UNITARY EXECUTIVE DURING THE JACKSONIAN PERIOD, 1837-1861 .........................669 A. Martin Van Buren .................................................670 B. William H. Harrison ..............................................678 C. John Tyler...............................................................682 D. James K. Polk..........................................................688 E. Zachary Taylor.......................................................694 F. Millard Fillmore.....................................................698 G. Franklin Pierce.......................................................704 H. James Buchanan .....................................................709 III. THE UNITARY EXECUTIVE DURING THE CIVIL WAR, 1861-1869 ..................................717 A. Abraham Lincoln....................................................718 B. Andrew Johnson.....................................................737 C. The Tenure of Office Act and the Impeachment of Andrew Johnson .................................................746 IV. THE UNITARY EXECUTIVE DURING THE GILDED AGE, 1869-1889................................759 A. Ulysses S. Grant ....................................................759 B. Rutherford B. Hayes...............................................769 C. James A. Garfield....................................................780 D. Chester A. Arthur ..................................................785 E. Grover Cleveland....................................................790 V. CONCLUSION.........................................................801 * Professor of Law, Northwestern University. ** Associate Professor of Law, Vanderbilt University. We would like to thank Ben Tisdell for his invaluable research assistance on this project. We would also like to thank Gary Lawson, John McGinnis, Andrew Kull, Randy Barnett, and Ilya Somin for helpful comments and suggestions. Finally, we would like to thank the participants in the faculty workshop series at Northwestern University School of Law and at Boston University School of Law for their helpful comments and suggestions. 668 Harvard Journal of Law & Public Policy [Vol. 26 I. INTRODUCTION 1 In The Unitary Executive During the First Half-Century, we surveyed the first seven presidencies under the Constitution to determine the view of presidential power held by the incumbents during that period. We found that from 1789 to 1837, American presidents from Washington to Jackson strongly believed in a unitary executive of the kind defended by many scholars in recent years, 2 including Professor Calabresi. In particular, we established that the first seven presidents vigorously defended the president’s unitary authority over the execution of federal law. We also concluded that many of these presidents believed the Vesting Clause of Article II was a direct grant of power to the president, as Professor Calabresi has previously argued in a debate with Professors Lawrence Lessig 3 and Cass Sunstein. We now pick up our survey where we left off in the prior article and examine the presidencies during the second half-century of our nation’s history to see what view these men held on the scope of the president’s power to execute the law. In so doing, we focus primarily on three mechanisms generally viewed as essential to any theory of the unitary executive: the president’s power to remove subordinate policy-making officials at will, the president’s power to direct the manner in which subordinate officials exercise discretionary executive power, and the president’s power to veto or nullify such 4 officials’ exercises of discretionary executive power. We also employ the interpretive methodology known as “departmentalism” or “coordinate construction,” which is based on the principle that all three branches of the federal government have the competency and 1. Steven G. Calabresi & Christopher S. Yoo, The Unitary Executive During the First Half-Century, 47 CASE W. RES. L. REV. 1451 (1997). 2. See Steven G. Calabresi & Saikrishna B. Prakash, The President’s Power to Execute the Laws, 104 YALE L.J. 541 (1994); Steven G. Calabresi, The Vesting Clauses as Power Grants, 88 NW. U. L. REV. 1377 (1994); Steven G. Calabresi & Kevin H. Rhodes, The Structural Constitution: Unitary Executive, Plural Judiciary, 105 HARV. L. REV. 1153 (1992). 3. Compare Calabresi, supra note 2, at 1378-1400, 1403-05 (arguing that the Article II Vesting Clause represents a substantive grant of constitutional power); Calabresi & Prakash, supra note 2, at 563-64, 570-81, 612-13 (same); Calabresi & Rhodes, supra note 2, at 1165-70, 1175-81, 1186-1206 (same), with Lawrence Lessig & Cass R. Sunstein, The President and the Administration, 94 COLUM. L. REV. 1, 47-55, 119 (1994) (disagreeing with Professor Calabresi’s views). 4. See Calabresi & Yoo, supra note 1, at 1458. No. 3] The Unitary Executive 669 responsibility to interpret the Constitution and that the meaning of the Constitution is determined through the dynamic interaction of all 5 three branches. As we shall see, presidential power ebbed and flowed several times during the second fifty years under the Constitution. Congress reasserted itself and remained ascendant in the years following Andrew Jackson’s presidency until the crisis of the Civil War, which led the country to look to the president for leadership once again. Throughout these various shifts in the relative power of the branches and regardless of which party was in power, presidents generally defended their sole authority to execute the federal laws. Although some deviations from the unitary executive model did occur during this period, they were not so significant as to constitute presidential acquiescence to congressional interference with presidential execution of the laws. We begin in Part I with the history of the unitary executive in the years leading up to and including the Civil War and trace in Part II the pivotal presidencies of Abraham Lincoln and Andrew Johnson. These years culminated with a remarkable but ultimately unsuccessful attack on the unitary executive when Congress impeached but failed to remove Johnson from office because of his decision to fire Secretary of War Stanton in violation of the Tenure of Office Act. We turn in Part III to the reclamation of presidential power during the years following Johnson’s disastrous presidency. All told, our survey covers the years from 1837 to 1889, during which the Tenure of Office Act was repealed after Congress finally saw it as the constitutional monstrosity it truly was. II. THE UNITARY EXECUTIVE DURING THE JACKSONIAN PERIOD, 1837-1861 By modern standards, the eight presidential administrations between the Jackson and Lincoln administrations were generally unremarkable, both in terms of historical significance and executive effectiveness. Nevertheless, historical review convincingly demonstrates that the actions and words of these presidents reflected a consistent desire to protect the constitutional powers of the presidency against incursions by Congress. Indeed, several presidents during this period actually succeeded in expanding the constitutional powers of 5. For a more complete discussion of coordinate construction and its particular applicability to separation of powers disputes, see id. at 1463-72. 670 Harvard Journal of Law & Public Policy [Vol. 26 the presidency in a number of important ways. But perhaps the best direct evidence that the presidents of this period consistently protected their unitary constitutional powers from Congress can be found in the words of one of the executive branch’s greatest antagonists throughout this period, Henry Clay of Kentucky, who commented: The executive branch of the government . was eternally in action; it was ever awake; it never slept; its action was continuous and unceasing, like the tides of some mighty river, which continued flowing and flowing on, swelling, and deepening, and widening, in its onward progress, till it swept away every impediment, and broke down and removed every frail obstacle 6 which might be set up to impede its course. The presidential history from this period would ultimately underscore the truth underlying Clay’s words. A. Martin Van Buren
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