This Article demonstrates that the historical claims about the original meaning of the executive power made by proponents of the "unitary executive" theory of presidential and executive power in the United States are largely unfounded. The ability to remove executive officials was not one of the prerogative powers possessed by the King of England at the time of the framing of the U.S. Constitution. Moreover, the king neither appointed nor was able to remove all of “his” principal officers, many of whom held their offices for life or pursuant to other forms of tenure and operated largely free of the king’s direction or control. While the king possessed plenary authority to choose his high-level advisers and the officers who carried out his prerogatives over the military and foreign affairs, Parliament frequently regulated the appointment, qualifications, and tenure of other executive officials in Great Britain, including by protecting them from removal by the king or his ministers, when there was good reason to do so. The evidence surveyed in this Article, which includes confirmation from a previously overlooked passage from one of James Madison's writings in The Federalist Papers, has important implications for debates over the unitary executive theory as well as for this term's Supreme Court case over the constitutionality of the Consumer Financial Protection Bureau. It suggests that the Constitution does not proscribe efforts by Congress to insulate regulatory and law-enforcement officials, such as the heads of independent agencies and special prosecutors, from political interference.

This is an early draft of a working paper. Many aspects of the holdings in Marbury v. Madison and Hayburn's Case, two famous early instances of federal courts refusing to give effect to unconstitutional congressional statutes, can be better understood by viewing the cases in the context of the executive functions previously exercised by courts in Britain and the colonies. Scholars often wonder how the first Congresses could have enacted the laws invalidated in Marbury and Hayburn's Case, given that those laws seem to assign responsibilities and jurisdiction to federal courts that clearly violate the dictates of Article III. The answer, this paper argues, may be that the concept of the "judicial power" was not yet fully developed in the early American Republic. Courts in England and the colonies exercised a variety of administrative functions, and the British Crown considered courts a subset of the executive apparatus available to administer laws and policies and to supervise officials. This would explain both why Congress may have assumed that federal courts would play a similar role in the new order, and why the federal courts ultimately rejected that assumption as inconsistent with the notion of a distinct and independent judicial power. The new interpretation of Marbury and Hayburn's Case offered in this paper helps to clarify lessons about justiciability and separation of powers doctrines that courts and scholars continue to draw from these and other early cases, particularly with respect to the supervisory powers of the Supreme Court.

Students of Article III have so far failed to resolve a fundamental tension in the theory of federal adjudication. On the one hand, Article III has been said to limit the federal courts to the resolution of concrete disputes between adverse parties, one of whom seeks redress for an injury caused by the other's conduct. On the other hand, Congress has repeatedly conferred power on the federal courts to hear ex parte proceedings in which the petitioner sets up a claim of right without naming an opponent. Such proceedings, dating from the nation's formative years and still extant today, call upon the federal courts to play an inquisitorial role that seems hard to square with the nation's commitment to an adversary system. In this Article, we catalog these ex parte proceedings and offer the first general theory of how they fit within our largely adversarial federal judicial system. We argue that Article III embraces two kinds of judicial power: power over disputes between adverse parties, which was known in Roman and civil law as "contentious" jurisdiction, and power over ex parte and other uncontested proceedings, which was described in Roman and civil law as voluntary or "non-contentious" jurisdiction. Non-contentious jurisdiction allows a party to seek a binding determination of a claim of right without identifying an injury in fact or naming an adverse opponent; it was taken up by courts of equity and admiralty and promptly introduced into the federal judicial practice of the early Republic. In working to situate non-contentious jurisdiction within America's broader legal inheritance, we offer a theoretical account of continuing practices that many view as aberrational. Our new account calls for a thorough reconsideration of the nature of the judicial power of the United States, and a reexamination of the Supreme Court's gloss on Article III's case-or-controversy requirement.

Historically minded scholars and jurists invariably turn to English law and precedents when attempting to recapture the legal world of the Framers. Blackstone's famous Commentaries on the Laws of England offers a convenient reference for moderns looking backward. Yet the generation that framed the Constitution often relied on other sources, including Scottish law and legal institutions. Indeed, the Scottish judicial system provided an important, but presently overlooked, model for the Framing of Article III. Unlike the English system of overlapping and primarily original jurisdiction, the Scottish judiciary featured a hierarchical, appellate-style judiciary, with one supreme civil court sitting at the top and an array of inferior courts of original jurisdiction below. What is more, the Scottish judiciary operated within a constitutional framework - the so-called Acts of Union that combined England and Scotland into Great Britain in 1707 - that protected the role of their supreme court from legislative remodeling.This Article explores the heretofore invisible influence of the Scottish judiciary on the language and structure of Article III. Scotland provided a model for a single "supream" court and multiple inferior courts, and it defined inferior courts as subordinate to, and subject to the supervisory oversight of the sole supreme court. Moreover, the Acts of Union entrenched this hierarchical judicial system by limiting Parliament to "regulations" for the better administration of justice. Practice under this precursor to Article ill's Exceptions and Regulations Clause established that a supreme court's supervisory authority over inferior courts would survive restrictions on its as of right appellate jurisdiction. The Scottish model thus provides an important historical perspective on the scholarly claim that unity, supremacy, and inferiority in Article III operate as textual and structural limits on Congress's jurisdiction-stripping authority.

Despite their obvious affinity on many matters related to law and economics, Judges Frank Easterbrook and Richard Posner recently engaged in a fierce battle over the economics of the mutual fund industry and over statutory interpretation in Jones v. Harris Associates, L.P., a case challenging the fees paid to a fund’s investment adviser. Chief Judge Easterbrook, writing for the panel, held that under § 36(b) of the Investment Company Act, advisers have a duty of full disclosure and must avoid fraud, but are not subject to a limit on compensation. In dissent, Judge Posner argued that the Jones decision is based “on an economic analysis that is ripe for reexamination.” It is true that the panel opinion relies heavily upon an economic analysis that counts on competition to restrain adviser compensation and whose validity the recent collapse of the financial services industry calls into question. But the opinion can best be viewed as a product of Judge Easterbrook's public choice theory of statutory interpretation: strict textualism based upon an extreme skepticism of legislation and of judicial discretion. That theory leads the court in Jones to reach a conclusion that ignores the text, structure, and history of § 36(b), and that nullifies the intended effect of the statute. Moreover, the decision suggests that Easterbrook’s theory of interpretation is inadequate as a solitary tool for interpreting statutes. Public choice principles help us to set limits upon interpretation, but they do not provide a guide to interpretation within those limits. Without a balancing principle of fidelity to congressional purpose, Easterbrook’s theory comes dangerously close to a different form of judicial activism: using strict construction as a means for eviscerating legislation of any practical effect.