Officer Removal in the Early Republic
The Supreme Court’s Article II jurisprudence rests on a fundamental misunderstanding. Current law presumes that the Framers understood the President’s removal power to be rooted in the Constitution. Early republic practice indicates this conclusion is mistaken. Removal was a statutory feature of federal office, not an inherent presidential power.
This article returns to the Founding Era to show how removal operated in practice. Drawing on two new, hand-coded datasets built over several years, it catalogs every statute passed between 1789 and 1820 that created a new office and tracks the careers of those who held these positions. It is, to our knowledge, the most comprehensive picture of early federal officeholding attempted.
The resulting study shows that law varied the “who,” “how,” and “why” of removal to achieve good governance ends. Statutes created offices with a wide variety of structures that responded to the particular responsibilities and dangers a given office presented. Significantly, offices of trust, expertise, or with a high risk of conflicts of interest often included specialized “automatic” removal provisions that did not depend on executive power.
Nor did early presidential practice support an indefeasible removal power. Presidents fired seldom, and almost always for manifest fault such as drunkenness and absenteeism. Only on very rare occasion did Presidents fire officials for the express purpose of partisan advancement. We found no evidence that any early President ever removed an officer of the United States in contravention of a statute. In practice, “at will” removal operated as removal for cause. Presidents struggled with the reach of their authority but did not remove for no reason or just because an officer was not in line with the President’s agenda.
These findings have important consequences for law and scholarship on the presidency. This Article proposes a fundamentally different interpretation of the relationship between politics and removal than the conventional wisdom that operates in most scholarship in law, history, and political science. It should displace the aging studies on removal by Carl Fish and Carl Prince that have heretofore served as the point of departure for scholars and advocates. It undermines originalist claims to an indefeasible Article II removal power and the related argument that removal is an inherently executive power. And it illustrates a different, more defensible way of bringing history to bear on law: reconstructing legal understanding on the basis of contextual interpretation.
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