I will have a lot to say about the unitary executive in the coming weeks. I am less interested in relitigating whether the Supreme Court’s view of the unitary executive, as most recently explained in Trump v. Slaughter, is the correct one, and more interested in figuring out what this decision means as a practical matter and how we go forward from here.
But I do have a quick comment on the exchange between the majority and the dissent regarding James Madison’s suggestion in 1789 that the comptroller of the Treasury, an officer in the Treasury Department, should be subject to special removal provisions. Chief Justice Roberts, writing for the majority, dismisses this incident, contending that Madison never suggested that the comptroller be protected against presidential removal. See slip op. at 29 n.5. Moreover, whatever Madison intended to suggest, it was not well-received by his colleagues and did not become law. Various unitarians have struggled to explain what Madison meant regarding removal. Professor Saikrishna Prakash, for example, has variously suggested that Madison was misinterpreted, was confused, or was just wrong. See Bamzai & Prakash, The Executive Power of Removal, 136 Harv. L. Rev. 1756, 1821-23 (2023); Prakash, New Light on the Decision of 1789, 91 Cornell L. Rev. 1021, 1070-72 (2006).
Putting aside the controversy over the removal question, however, Madison was clear on why he thought that the comptroller was different than the secretary of the treasury or the secretary of foreign affairs. Madison explained that the comptroller was “not purely of an Executive nature,” but performed duties that were both judicial and executive in nature. 1 Annals of Cong. 611-12 (1789). As Justice Sotomayor noted in dissent, Madison thought that for executive officers “whose duties ‘partak[e] strongly of the judicial character . . . there may be strong reasons why an officer of this kind should not hold his office at the pleasure of the Executive branch.” Sotomayor Dissent, slip op. at 6 (quoting 1 Annals of Cong. 612).
Whatever Madison’s views on the removal question and whether or not others agreed, it does not appear that anyone at the time or since has disputed his underlying point, which is that the comptroller’s functions by their nature were to be performed independently and without presidential interference. Indeed, more than a century later, none other than William Howard Taft, then a former president and the future author of the seminal unitarian decision in United States v. Myers, would make this exact point regarding the same office:
Then consider the drawing of money from the Treasury Department under an appropriation act. The drawing of the warrant must be approved by the Comptroller of the Treasury. It is for him to say how the appropriation act shall be construed and whether the warrant is lawful and whether the money can be drawn. The Comptroller of the Treasury is an appointee of the President, and in a general sense is his subordinate. If the President does not like him as a Comptroller, he can remove him and with the consent of the Senate put in another one, but under the act of Congress creating the office, the President cannot control or revise the decisions of this officer. His work is like the work I have referred to, quasi-judicial.
William Howard Taft, Our Chief Magistrate and his Powers 81 (1916) (emphasis added).
The Court no longer likes the terminology of “quasi-judicial,” which it apparently views as conclusory. But the idea that the president cannot properly direct or control the performance of particular functions that Congress has delegated to executive officers is one that, as far as I can tell, was utterly uncontroversial until relatively recently. It would have been self-evident to Madison and Taft and, I think, pretty much everybody else that the president could not overrule a comptroller’s decision as to the lawfulness of a warrant and the propriety of drawing money from the treasury.
Are we now in a world where the president can personally issue regulations, decide patent applications, approve drug applications, conduct IRS audits, rule on contract disputes and other claims against the government, conduct immigration proceedings, and dispose of the countless other matters that Congress has delegated to some officer or agency in the vast federal bureaucracy? If so, we are in a brave new world, and we better figure out what we are going to do about it.
Fast.