In a recent paper, Professor John C. Harrison remarks that “[p]erhaps the most famous example of [presidential] removal for policy purpose was President Jackson’s replacement of Secretary of the Treasury William Duane with Roger Taney.” John C. Harrison, The Unitary Executive Without Inherent Presidential Removal Power 43 n.171 (2022). This might understate matters because, depending on what one means by “policy purpose,” Jackson’s removal of Duane might be the only example of such removal in American history.
Professor Prakash identifies Andrew Jackson, not coincidentally, as the originator of the concept of the popular mandate, which Prakash blames for the pernicious “reconception of the office” from a chief executive focused on faithful execution of the law to the claimed embodiment of the popular will. See The Living Presidency at 75, 77-78.
Surprisingly, though, Prakash only alludes to the episode at the heart of this reconception. He notes that Jackson justified his decision to withdraw funds from the Bank of the United States by reference to the mandate allegedly given by the people in 1832, when Jackson was reelected after campaigning against the Bank. See id. at 75. But the constitutional clash between Jackson and his congressional critics (led by the Senate’s Great Triumvirate of Daniel Webster, Henry Clay, and John C. Calhoun) did not center on the fact money had been withdrawn from the Bank, but how it had been withdrawn.
Congress had delegated the authority to remove funds from the Bank to the secretary of the treasury, not to the president. Accordingly, Jackson asked Secretary of the Treasury Duane to remove the funds, a “request” he clearly expected to be honored. But Duane hesitated. He maintained, reasonably enough, that the law provided that only the treasury secretary could remove the funds and therefore it was his responsibility to make the decision. Strauss, 75 Geo. Wash. L. Rev. at 706; Jon Meacham, American Lion 257, 268 (2008). Jackson countered that the president could direct him to remove the deposits, thereby taking it on the president’s responsibility. Meacham, American Lion at 268. Duane thought this theory would reduce him (and presumably all heads of department) “to a mere cipher in the administration.” Id. at 258.
As a matter of unitary executive theory, the situation raises several issues. Taft might ask whether the statute “peculiarly and specifically committed to the discretion” of the treasury secretary the issue at hand. Arguably, the statute here perhaps implicitly required the decision to be made based on financial prudence and other factors within the treasury secretary’s expertise, but the case against presidential interference would have been stronger had the statute expressly set forth what factors should govern the decision to withdraw funds. Put another way, if the statute allowed the secretary to withdraw funds for any reason, it would be more constitutionally problematic for Congress to attempt to insulate this decision from presidential control.
On the other hand, Prakash presumably would contend that the president must be able to direct the treasury secretary in the exercise of his lawful discretion, regardless of congressional intent or the nature of the decision. Professor Harrison, who contends that the unitary executive requires the president to control all “policy decisions,” a term he does not define but which apparently would have included the decision to withdraw funds from the Bank, seems to have the same view. The current Supreme Court appears to agree, as the secretary would be exercising executive power which belongs to the president. Unless, of course, it falls under a “special arrangement sanctioned by history” such as “that monetary policy should not be subject to political interference.” See Trump v. Cook, 609 U.S. __, slip op. at 23-24 (2026) (insert shrug emoji).
Continue reading “The Unitary Executive (Part 4): Historical Lessons”