Confession of an Uneasy Unitary Executivist

I have long been a strong unitary executivist–a proponent of the principle that the buck stops in the big leather chair behind the Resolute Desk.  Central to my unitary executivism has been the tenet that the President must have plenary power to fire anyone performing executive functions on behalf of the federal government.  The President may not be culpable initially for the misfeasance or nonfeasance of his subordinates, but he becomes culpable if he suffers the miscreants or noncreants to remain in office.  Hence, my disdain for Humphrey’s Executor, the case that insulated certain federal officials performing (in my view) plainly executive functions from the President’s removal power.

Our current President made his mark as a celebrity by hollering “You’re fired!,” so I assumed that, whatever else his virtues or vices, he would champion the cause of bold termination.   In many ways, he conspicuously has, including of course by firing FBI Director James Comey and a number of U.S. Attorneys (including my very able colleague Barb McQuade).

But what gives with the current charade over Attorney General Jeff Sessions?  Trump clearly has lost confidence in Sessions and wants him gone over Sessions’s recusal in the Russian influence probe.  Rather than firing Sessions, however, Trump continuously undermines him with critical comments designed to shame Sessions into quitting.  Trump calls him “weak” and “beleaguered” and suggests that Sessions only joined the Trump bandwagon to exploit the crowds Trump was drawing on the campaign trail.  This might constitute constructive discharge through hostile environment, but it’s not the kind of buck stops here Article II leadership that I was weaned on in the Federalist Society.

I don’t get it.  A John Wayne executive promotes performers and fires underperformers. He doesn’t keep them in office and continuously undermine their person and position.  That just demoralizes their department and weakens the President’s own administration.  It’s petty, vindictive, and cowardly.  A President should wield the axe, not the pillory.

To be clear, I don’t mean to suggest that Sessions deserves to go.  My concern is less over the politics of this immediate moment–of which I wash my hands–than over the longer term implications for my unitary executivist commitments.  What good is the power to fire if it’s degraded into the power to shame?  As to the Attorney General, the power to fire is constitutionally entrenched, so the question is moral rather than legal.  But as to the grey zones of Presidential removal power–about which much may be decided in upcoming months–my mind is suddenly wavering.

Where have you gone, Nino Scalia?

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