The Misuse of Ratification-Era Sources by Unitary Executive Theorists

This symposium essay suggests that, given an ostensibly originalist Supreme Court, the future depends on getting the past right. The unitary executive theory is approaching its political and doctrinal zenith in 2025, at the very moment it is approaching an evidentiary crisis. This essay details that crisis: a subset of misuses and misrepresentations of sources in the unitary executive scholarship. This subset focuses on serious misrepresentations of the Ratifications debates. The Ratification debates appropriately have become the primary source of evidence for original public meaning, the dominant theory of originalism. The Ratification debates have always been a significant problem for the unitary executive theorists, because The Federalist Papers are solid contrary evidence. The Ratification debates were silent about whether the President had a general power of removal—even in the voluminous Anti-Federalist speeches and writings, where one would most expect to see such warnings if they existed. Aditya Bamzai and Saikrishna Prakash, attempting to rescue their theory that Article II implies a presidential power of removal at pleasure, claim to have identified five passages from the Ratification debates. Unfortunately, none of these five passages withstand scrutiny. These misuses are part of a serious pattern of misuses of historical materials. Historians and legal scholars have offered so much evidence against these claims, with the unitary theory’s defenders offering so little evidence in return, that it is safe to say that none of these pillars remain standing.