Shugerman on Marbury and Presidential Removal
Jed Handelsman Shugerman, Fordham Law School, has posted Presidential Removal: The Marbury Problem and the Madison Solutions, which appears in volume 89 of the Fordham Law Review (2021):
Marbury v. Madison is not just a puzzling judicial review precedent. It is also a puzzle about presidential removal. Why didn't Jefferson, Secretary of State Madison, or another executive official simply fire Marbury? Why did Chief Justice Marshall also assume that Marbury could not be removed.
James Madison (LC)
This symposium essay summarizes recent research (especially by Jane Manners and Lev Menand) to solve this problem: an office appointed to a term of years limited removal in the Anglo-American tradition, demonstrating that presidential removal was not a default rule. This essay also summarizes my research on the first Congress, showing that this rule was not limited to arguably judicial or quasi-judicial offices like Marbury's office of justice of the peace. The Madison solution here is that then-Rep. Madison in 1789, in the debates creating the new Treasury Department, proposed an office of Comptroller with a limited term of office -- and he and his colleagues understood that such terms would protect the Comptroller from presidential removal.
But Chief Justice Marshall's Marbury decision suggests another problem: He used the word "vest" to connote special legal protection for an office-holder. Does this mean that the word "vest" in the Constitution also had an original public meaning of exclusive and infeasible powers, so that Article II vested complete and exclusive executive power in the president, as the unitary theorists posit?