Dispatching Humphrey’s Executor (Christopher James Wolfe, 8/12/26, Law & Liberty)
Thach fully recounts all of that in his book, but he would perhaps add three additional points to the chief justice’s account.
First, Thach would add to the discussion of the Articles of Confederation period. In chapter 3, he describes the Continental Congress’ attempts to execute the laws without an executive branch:
Having reached a decision, [the Continental Congress] entrusted its execution to whatever agency seemed at the moment most convenient, perhaps a committee of its own membership, perhaps a state council or convention, perhaps individuals without official status. Such agencies, having carried out the order in question, immediately lapsed. There was neither plan nor organization.
These committees for execution ate up Congress’ time, created turf wars, and were ineffective—leading to calls for a national executive branch of some sort. The plural executive model was failing both at the national and state levels, therefore. How to fix the national executive branch, making it both energetic and democratically accountable, was a question left open even in Madison’s Virginia Plan presented at the beginning of the convention.
Second, in chapter 4, Thach points out that the key model for the presidency cited during the convention was the New York governorship of George Clinton. That was the one state where a truly unitary model had been tried, and it had worked well, so well that Clinton rival Alexander Hamilton felt compelled to cite him as a paradigm in Federalist #70. It is true that the New York Constitution did not spell out appointment and removal powers for the executive branch, but “[Governor] Clinton’s control of nominations had given him control of the patronage, as was well known to all conversant with New York politics,” writes Thach. Here is another important point: after the convention, arguments made by various participants at the convention are repeated by the defenders of the Constitution, no matter who made them in the summer of 1787.
Third, Thach offers a highly nuanced account of the different sides in the Decision of 1789. He points out that eighteen Congressmen involved in the Decision of 1789 had been at the Constitutional Convention themselves—it was virtually the same “political environment.” During the debate, there were four camps, but one can tell by reading the debates that the presidential removal argument won the day—and got the final vote that mattered. Six of the House members present at the convention voted for the bill (Madison, Clymer, Baldwin, Carroll, Fitzsimons, and Gilman), while just two voted against (Sherman and Gerry, a “Grumbletonian”). The fact that several Congressmen were members of the convention is a significant point that Chief Justice Roberts leaves out; the Decision of 1789 gives us insight into the original meaning of Article II. It is not just one Congressional interpretation that could be erased by a later Congress, as it tried to during the Tenure of Office years after Reconstruction. As Chief Justice Taft said in Myers v. US, the Decision of 1789 is “contemporaneous legislative exposition” (272 US 175). And what is especially definitive about the Decision of 1789 is that the Senate renounced the power of removals. Thach writes: “The significance of the [Senate] vote is the greater when it is remembered that instances where a political body voluntarily deprives itself of power are very few in all the history of government.”