The Unitary Theorists' Appointments Clause Problems

Authors

Jed Handelsman Shugerman, Boston University School of LawFollow

Document Type

Working Paper

Publication Date

1-2026

Language

en-US

Abstract

The unitary executive theorists’ recent retreat to the Appointments Clause as a basis for unconditional presidential removal power is contradicted by the text and by overwhelming originalist evidence.

It is a surprising argument for a power of presidential removal, because the text of the Appointments Clause plainly requires both the President and Senate to appoint. The noncommon sense reading, that the president alone appoints, and thus the president can remove, was not in any of the Trump Administration’s briefs, but it was in a single amicus brief, and it was picked up in oral argument and the mainstream media.

This argument is based on a misreading of my own research contradicting the unitary executive theory, taken out of context. It is true that common law had a default rule: removal was incidental to the power of appointment. Among the Founding sources who relied on this maxim, they overwhelmingly applied this maxim with a common sense reading of the Appointments Clause: if both the President and Senate were necessary to appoint, then both were necessary to remove. Both Hamilton (in Federalist No. 77) and Madison (in 1789) supported this reading of the common law maxim, even if they later gave other arguments for presidential removal more weight.

Unitary executive theorists citing this default rule maxim have not been able to find their interpretation of the Appointments Clause from a single “presidentialist” (someone who believed Article II implied a general presidential removal power, rather than the “congressionalist” interpretation of the Constitution gave Congress latitude about how to delegate removal power). Their only citation is to a member of the House (John Laurance) who then rejected this conclusion and explicitly endorsed Congress’s power to delegate removal and set conditions on presidential removal.

I have dug deeper and found that three presidentialists mentioned the maxim – the default rule – and the Appointments Clause, but not one relied on this argument as the basis for their presidentialist argument. They were offering rebuttals to the Senatorials’ strongest argument, either by relying on other clauses, dismissing the maxim’s relevance, and/or, arguendo, trying to weaken the Senatorial argument with other plausible readings.

The point here is not that this originalist evidence means the Constitution requires the Senate to consent in any removal. The point is that the Founding Era was sharply divided in three directions on a removal power between presidentialist, congressionalist, and senatorial interpretations. If unitary theorists are now retreating to the use of such a maxim that was understood overwhelmingly to count against presidential removal, they are revealing how little originalist evidence they have to cite.

Recommended Citation

Jed H. Shugerman, The Unitary Theorists' Appointments Clause Problems (2026).
Available at: https://scholarship.law.bu.edu/faculty_scholarship/4180