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The Contested Removal Power, 1789 – 2010

By J. David Alvis, Jeremy D. Bailey, and F. Flagg Taylor IV

Publication Year: 2013

The U.S. Constitution is clear on the appointment of executive officials: the president nominates, the Senate approves. But on the question of removing those officials, the Constitution is silent—although that silence has not discouraged strenuous efforts to challenge, censure, and even impeach presidents from Andrew Jackson to Bill Clinton. As J. David Alvis, Jeremy D. Bailey, and Flagg Taylor show, the removal power has always been and continues to be a thorny issue, especially as presidential power has expanded dramatically during the past century.

Published by: University Press of Kansas

Title Page, Copyright

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pp. 2-5

Contents

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pp. v-7

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Acknowledgments

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pp. vii-viii

The idea for this book began at a panel at a conference of the American Political Science Association, where each of us presented a paper on the removal power. After a few years of discussing the removal power during breaks at various conferences, we finally approached Fred Woodward with the idea of writing a book on the topic. Fred told us to send him a proposal, ...

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Introduction

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pp. 1-15

...[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appoint-...

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1. The Decision of 1789

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pp. 16-47

Article II of the United States Constitution might be considered the architectural plan for the executive branch. But even given the substance of these plans and their significant departure from what had existed un-der the Articles of Confederation, the actual above-ground structure could have taken on enormously different aspects. As was quickly discovered in ...

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2. From Responsibility to Rotation

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pp. 48-72

Scholars often write that the Decision of 1789 settled the question of who holds the power to remove. But as scholars of American politi-cal development have long argued, serious constitutional questions are rarely closed in the way this statement suggests. Because they often arise out of irresolvable problems of constitutionalism, they instead tend to re-...

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3. Jackson to Johnson: The Rise of Congressional Delegation

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pp. 73-105

The Decision of 1789 did not settle the question of removals. As we have seen, presidential control of the removal power remained contested; opponents included those who were normally wary of executive power as well as those who normally wanted a vigorous executive. The first two ?reconstructive? presidents (Thomas Jefferson and Andrew Jackson) ex-...

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4. The Revenge of Executive Power: From the Tenure of Office Act to Myers v. United States

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pp. 106-140

The Tenure of Office Act of 1867 represented the highwater mark of a congressionally centered removal power. As we have just explained in Chapter 3, this act was not solely rooted in the debate over Reconstruction. In its origins and implications, the passage of this act and President An-drew Johnson?s reaction to it were linked to a long-standing debate about ...

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5. The Progressive Era and Independent Regulatory Commissions

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pp. 141-175

Here we examine the 1935 Supreme Court case Humphrey?s Executor v. United States in light of Congress?s creation of independent regulatory commissions. Because IRCs were a means of buffering administration from presidential control over removals, scholars have long argued that the rise of IRCs can be explained as a victory of the Progressive movement in ...

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6. The New Unitarians

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pp. 176-209

Below we examine the rise of the Unitary Executive Theory, which is commonly thought to have originated under President Ronald Reagan?s time in the White House (1981?1989). However, the rise of the unitarians had an important precursor in the events that unfolded under Richard Nix-on?s presidency (1969?August 9, 1974). In this chapter we also explain the ...

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Conclusion

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pp. 210-216

In summer 1789, before partisan differences were institutionalized in the form of political parties, an extraordinary debate and decision took place in Congress. Four interpretations of the removal power were aired. And even though the executive power interpretation prevailed, we argue that the question was not settled, as subsequent political actors and com-...

Notes

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pp. 217-246

Index

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pp. 247-260

Back Cover

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p. 272-272


E-ISBN-13: 9780700619771
Print-ISBN-13: 9780700619221

Page Count: 270
Publication Year: 2013