The Ratification-Era Executive: How “Original” is UET Originalist Theory?

Originalist defenses of the Unitary Executive Theory (UET) have become a central feature of modern constitutional argument over presidential control of the administrative state. These defenses typically claim that Article II’s vesting of “the executive Power” in a single president establishes a constitutionally mandated hierarchy in which all executive officials are subject to presidential direction and removal, allegedly rooted in the “original” attitudes of the Framers of the Constitution. While the Unitary Executive Theory is often touted as a historical extension of Article II of the United States Constitution, its claim that presidential removal authority is constitutionally inherent depends on a faulty reading of various framing-period accounts of “at-pleasure” removal of officials by the executive. [1]

In this article, I argue that Originalist defenses of the Unitary Executive Theory
overstate ratification-era commentary by selectively privileging the Federalist Papers while ignoring conflicting evidence from ratification debates and early congressional practice. This significantly weakens many UET scholars’ attempts to ground plenary removal authority in the originalist impulse. I further contend that advocacy in favor of the UET is implied to be necessarily originalist, meaning that many of its strongest claims are presented as recoverable from alleged ratification-era historical evidence. It is thus a matter of consequence whether such evidence actually supports the proposition that executive power included plenary authority. Given the dramatic expansion of the administrative state beyond anything originally contemplated at the founding, I conclude by considering the implications of UET on the balance of powers in today’s administrative state.

The originalist argument for the UET broadly depends on two core propositions: 1. that founding-era sources reflect a shared understanding of executive power that includes aspects like removal authority, [2] and 2. that early execution of the executive branch and its implied powers confirms this understanding. [3] The UET relies on isolated historical examples of “at-pleasure” offices to construct this general rule of presidential removal authority, despite the absence of evidence that such a rule existed uniformly across all executive offices. While at-pleasure removal existed, it was narrowed to only certain “at-pleasure” offices without establishing that they were the default or dominant model. [4] More importantly, early federal administration was not composed exclusively of purely executive actors operating within a hierarchical chain of command. From its earliest years, Congress created offices like the United States Customs Service that exercised functions that resist clear classification as “executive” in the modern sense of the word. [5] Similarly, early customs officials and pension administrators were tasked with applying statutory standards to individual cases, often exercising judgement in ways that very loosely resemble modern “independent” adjudication agencies like the Federal Trade Commission. [6] There seems to be much more salient evidence for a Multitudinous Administrative Theory, so to speak, than the UET will ever find in ratification-era documents.

The initial question is whether removal authority is properly understood as part of “the executive Power” within originalist theory. Article II of the Constitution provides a detailed mechanism for appointment of agency heads through presidential nomination and senatorial approval, but omits any direct reference to removal. [7] As Hamilton’s discussion in Federalist 77 further clarifies, the relationship between appointment and removal was not self-evident even to those defending the Constitution. [8] In fact, Hamilton herein writes that the Senate’s role in appointments would promote “stability in the administration,” in part because its consent would be required “to displace as well as to appoint.” [9] The broader text of the Constitution demonstrates that the Framers knew how to specify personnel arrangements when they wanted to. It is thus telling that the Appointments Clause is not coupled with a subsequent discussion of removals: if removal were thought to follow automatically from executive vesting, this asymmetry would not be present.

The Vesting Clause itself also carries more weight in traditional UET arguments than its text can support. Stating that “the executive Power” is vested in the President does not instinctively define what said power entails, nor does it mandate that all execution of law must occur through agents removable at presidential will. [10] The strongest unitary argument is that the Vesting Clause should be read as granting otherwise unstated residual powers. Under this reading, Article II contains some expressly enumerated abilities, such as the power to act as Commander in Chief of the national military, but the phrase “executive Power” also sweeps in other historically-recongized executive authorities, including removal. [11] Even on this stronger account, however, it does not follow that removal was understood as a plenary and universally applicable presidential power, as opposed to a more limited authority contingent on the structure of particular offices. The same problem appears in appeals to the Take Care Clause. The duty to “take Care that the Laws be faithfully executed” certainly implies some presidential role in administration, but faithful execution is not necessarily synonymous with personal execution. [12] If anything, the word “faithfully” cuts against the stronger version of the UET because it directs attention to lawful administration rather than maximal presidential discretion. It stands that a president may ensure faithful execution by supervising, coordinating, instituting that statutory officers carry out their duties, or removing those who are incompetent or defiant. None of these provisions, however, yield the further conclusion that Congress is outwardly forbidden to insulate certain offices from removal.

Once the Constitutional text runs out, pro-UET originalists often turn to ratification-era documentation to justify their support of a strong executive. The difficulty in endorsing the UET with Founding-era documents only becomes more apparent within the context of these framing debates, which do not reflect anything close to a settled understanding of executive removal power. Anti-Federalist opposition to the Constitution shows that the scope of presidential control over administration was uncertain and contested during the ratification period, which undercuts originalist claims for the UET. Anti-Federalist writings repeatedly frame executive power as dangerously open-ended, particularly insofar as it might expand through control over administration. The pseudonymous Anti-Federalist Brutus, for example, warned that “the great officers of government would soon become above the controul [sic] of the people, and abuse their power,” precisely because the Constitution leaves sufficient ambiguity for the office to accumulate power over time. [13] This concern was bolstered by his fear that powers such as “the appointment of officers,” along with the collection and expenditure of public revenue, would be “lodged and exercised … in the hands of a few,” thereby shaping government practice beyond textual boundaries. Cato similarly criticized the proposed executive for possessing a combination of structural advantages that could, in practice, consolidate power in ways the Constitution does not expressly specify. [14] Despite these exigent fears of an overgrown executive branch, neither author lists the removal power as an understood area of presidential control. It stands to reason that, if removal power was an intended executive privilege, the Anti-Federalists would have taken a more explicit issue with it. Their silence on the matter indicates that this was simply not the case.

Federalist responses far from resolve this indeterminacy. Hamilton’s defense of executive unity in Federalist 70, which is frequently credited as supporting the UET directly, argues for “decision, activity, secrecy, and dispatch” within the executive branch. [15] He is particularly occupied with the executive’s capacity to act effectively and with “energy,” which consists of addressing foreign threats, enforcing the law, and protecting property. However, Hamilton was in the minority of the Founders in supporting the power and authority of the executive branch of the federal government. Selectively deciding the extent to which modern American jurisprudence ought to embrace Hamiltonian ideals is particularly humorous given some of Hamilton’s more extreme proposals, like his staunch support for life-long presidential appointments. Moreover, Federalist 70 was further contradicted by early legislation proposed by Hamilton as Treasury Secretary to form the Sinking Fund Commission as an independent agency with authority to purchase federal debt. [16] Not even in the Federalist Papers is the Unitary Executive Theory unanimously agreed upon by the Framers. In Federalist 39, for example, Madison outlines the hybrid nature of government sharing both state and national power and clearly rejects a unitary view of federal government control. [17] He goes as far to describe the Constitution as establishing a “compound republic” in Federalist 51, a moniker which certainly fails to endorse a strictly unitary understanding of executive power. [18] Together, these sources suggest that, while the Framers agreed on the desirability of an energetic executive, they did not articulate a uniform theory of presidential control over administrative personnel, much less one so clear that it can be opined on up until the modern day.

There is, finally, a semi-normative argument to make regarding the relationship between the budding United States and their former overseeing power, the British Crown. At the time of ratification, the Framers were already operating against a constitutional backdrop in which executive authority did not necessarily entail unfettered control over lower executive officers. In fact, there was established precedent in England that the King could not remove certain administrators without Parliament approvals. [19] English practice, particularly following the Act of Settlement of 1701, imposed meaningful limitations on the Crown’s ability to remove certain officials. The Founders’ views on balancing executive power were indubitably informed by this precedent, and their silence with regard to plenary removal is perhaps an indication of their preexisting comfort with the executive status quo. [20] If this is all understood, then the UET’s core claim asks us to conclude that the Framers, having just separated from a system they viewed as dangerously concentrated in executive power, [21] chose to create a presidency with broader practical control over administration than the British monarchy. This concept is already difficult to accept on its face, but is further muddied by the lack of constitutional reference to plenary removal verbatim. If the Framers intended to depart so significantly from an established common law principle, one would reasonably expect some clear indication of that departure, either in the text itself or in the greater conversation surrounding the framing of the Constitution. It thus stands that no such absolute executive right to removal was widely understood to exist during the ratification period.

Even for those who do not traditionally adopt an originalist jurisprudential lens, the wholesale absence of a clear historical foundation for the Unitary Executive Theory presents obvious concerns for its modern use. As the function of the executive branch has broadened over the past century, Congress has empowered numerous independent agencies to oversee and implement rulemaking, law enforcement and administrative law adjudication. Without commenting on the constitutionality of this structure, the practical impact is an executive branch performing executive, legislative and judiciary functions which were intended to be non-partisan in their implementation. A blanket shift to UET without contemplation of its implications on existing government agency constructs could have unintended (or perhaps intended) consequences in the balance of power among the branches of the federal government. Especially given modern controversies surrounding executive power, risking overreach to satisfy an impulse completely unrooted from the original framing of the Constitution is simply not justifiable. Conclusively, the UET lacks both foundational support from the founding era and presents a significant threat to contemporary institutional design. With neither an Originalist nor Pragmatist foothold, the Unitary Executive Theory buckles.

Bibliography
[1] Andrea Scoseria Katz, Noah A. Rosenblum, and Jane Manners, “Disagreement and Historical Argument or How Not to Think About Removal,” University of Michigan Journal of Law Reform 58 (2025): 555.
[2] Jed H. Shugerman, “The Imaginary Unitary Executive,” Lawfare, July 6, 2020, https://www.lawfaremedia.org/article/imaginary-unitary-executive; see also Jed H. Shugerman, “The Misuse of Ratification-Era Sources by Unitary Executive Theorists,” University of Michigan Journal of Law Reform 58 (2025): 591 (“The unitary executive theory had three pillars: Article II’s Executive Vesting Clause, its Take Care Clause, and the ostensible ‘Decision of 1789.’”).
[3] Saikrishna Prakash, “New Light on the Decision of 1789,” Cornell Law Review 91 (2006): 1021 (discussing the “Decision of 1789” as evidence that some originalists view the First Congress as recognizing presidential removal power without Senate consent).
[4] Lawrence B. Solum, “The Public Meaning Thesis: An Originalist Theory of Constitutional Meaning,” Boston University Law Review 101 (2021): 1953, 1972–74. See also, supra note 2.
[5] Act of July 31, 1789, ch. 5, 1 Stat. 29 (establishing a system of customs collectors, naval officers, and surveyors vested with authority to apply federal revenue laws as a regulated but somewhat independent agency); Jerry L. Mashaw, Creating the Administrative Constitution: The Lost One Hundred Years of American Administrative Law (New Haven: Yale University Press, 2012), 37–67.
[6] Jerry L. Mashaw, Creating the Administrative Constitution: The Lost One Hundred Years of American Administrative Law (New Haven: Yale University Press, 2012), 81–157 (describing early congressional experimentation with administrative structures and the discretionary application of statutory standards by customs and pension officials).
[7] U.S. Const. art. II, § 2, cl. 2.
[8] Alexander Hamilton, The Federalist No. 77, in The Federalist Papers, ed. Clinton Rossiter.
[9] Ibid.
[10] U.S. Const. art. II, § 1, cl. 1.
[11] Steven G. Calabresi and Saikrishna B. Prakash, “The President’s Power to Execute the Laws,” Yale Law Journal 104 (1994): 541, 570–73.
[12] U.S. Const. art. II, § 3; see also Myers v. United States, 272 U.S. 52, 117 (1926).
[13] Brutus I, in The Anti-Federalist Papers and the Constitutional Convention Debates, ed. Ralph Ketcham (New York: Signet Classics, 1986), 270.
[14] Cato IV, in The Anti-Federalist Papers, ed. Ralph Ketcham (New York: Signet Classics, 1986), 111–12.
[15] Alexander Hamilton, The Federalist No. 70, in The Federalist Papers, ed. Clinton Rossiter (arguing for a unified Executive to operate with energy and effectiveness).
[16] Christine Kexel Chabot, “Is the Federal Reserve Constitutional? An Originalist Argument for Independent Agencies,” Notre Dame Law Review 96, no. 1 (2020): 1 (arguing the Sinking Fund Commission marked “a deliberate and important decision not to entrust a single elected President with absolute control over the execution of federal laws”).
[17] James Madison, The Federalist No. 39, in The Federalist Papers, ed. Clinton Rossiter.
[18] James Madison, The Federalist No. 51, in The Federalist Papers, ed. Clinton Rossiter.
[19] Bill of Rights, 1689, 1 W. & M., Sess. 2, c. 2 (Eng.) (limiting royal prerogative and affirming rights of subjects)
[20] Act of Settlement 1701, 12 & 13 Will. III, c. 2 (Eng.); See also, supra note 3.
[21] See, e.g., Alexander Hamilton, The Federalist No. 69, in The Federalist Papers, ed. Clinton Rossiter (contrasting the President with the British monarch to emphasize the limited and non-monarchical character of the executive); Gordon S. Wood, The Creation of the American Republic, 1776–1787.