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The case for impeaching and removing every Federalist Society judge and justice
Fascinating article with lots of detail supporting the argument.
The Case for Impeaching and Removing Every Federal Judge and Supreme Court Justice Who Has Ever Been a Member of the Federalist Society or Endorsed Unitary Executive Theory.
Christopher Armitage
The Federalist Society spent forty years building a captured federal judiciary, and we are now living inside the result. The doctrine they built it around has a name, unitary executive theory, and the doctrine has a method. The method is to read every Democratic exercise of power narrowly and every Republican exercise of power broadly, until the Constitution comes to mean whatever the conservative legal movement requires it to mean on any given Tuesday. This piece does three things. It explains what unitary executive theory actually claims and where the doctrine came from. It shows how the same justices who built the doctrine apply it selectively along partisan lines, using the student loan ruling and the presidential immunity ruling as the central exhibits. And it makes the case that membership in the Federalist Society or endorsement of unitary executive theory should disqualify a judge from federal office, with impeachment and removal as the constitutional mechanism the framers built for exactly this situation.
Let’s start with the doctrine. Unitary executive theory says the president alone controls the entire executive branch of the federal government. Every official who enforces federal law, from cabinet secretaries down to line prosecutors and agency inspectors, works under presidential command. The president can hire them, fire them, override their decisions, and direct their actions. No part of the executive branch operates independently of the president’s will. The theory rests on the opening line of Article II, which vests “the executive Power” in a president, and proponents read that grant as complete. If executive power belongs to the president, the argument goes, then anyone exercising executive power must answer to the president, and Congress cannot insulate executive officials from presidential control.
Unitary executive theory (UET) is a forty years old legal theory, attached to “originalism, although the Constitution it claims to interpret is nearly two hundred and fifty years old. UET was invented in the Reagan administration, by lawyers who needed a constitutional argument that would expand presidential power in directions the conservative movement wanted it expanded. Reagan took office in 1981 and the Federalist Society launched the following year at Yale and the University of Chicago, founded by law students who would become the architects of the project, including Steven Calabresi, who would later coauthor the foundational law review articles claiming unitary executive theory as the framers’ original design. Edwin Meese became Attorney General in 1985 and turned the Justice Department’s Office of Legal Counsel into a workshop for the new doctrine, producing the originalist briefs and internal memoranda that would become the movement’s intellectual scaffolding. Antonin Scalia joined the Court in 1986 and wrote the founding dissent of the project two years later in Morrison v. Olson, arguing the independent counsel statute violated the Constitution by placing an executive officer outside presidential control. That dissent became scripture, taught in Federalist Society reading groups and cited in law review articles as the suppressed truth about Article II.
The historical claim was always thin. The first Congress, sitting with many of the same people who wrote the Constitution, created executive offices with mixed structures and debated removal at length without treating presidential control as absolute. Alexander Hamilton, the framer most associated with executive powers, wrote in Federalist 77 that the Senate’s advice and consent role extended to removal, a position the strong unitary theory cannot accommodate. The Comptroller of the Treasury, established in 1789, operated with explicit independence from presidential direction. Humphrey’s Executor v. United States, decided in 1935, upheld for-cause removal protections for Federal Trade Commission commissioners and stood as settled law for nearly ninety years. Constitutional scholars including Jed Shugerman, Jane Manners, and Lev Menand have documented in recent work how thin the originalist case becomes when the sources receive honest treatment. The theory’s proponents knew this. They built the doctrine anyway, because the doctrine was useful, and they spent four decades credentialing the lawyers who would become the judges who would convert a Reagan-era policy preference into binding constitutional law.
Let’s start with the doctrine. Unitary executive theory says the president alone controls the entire executive branch of the federal government. Every official who enforces federal law, from cabinet secretaries down to line prosecutors and agency inspectors, works under presidential command. The president can hire them, fire them, override their decisions, and direct their actions. No part of the executive branch operates independently of the president’s will. The theory rests on the opening line of Article II, which vests “the executive Power” in a president, and proponents read that grant as complete. If executive power belongs to the president, the argument goes, then anyone exercising executive power must answer to the president, and Congress cannot insulate executive officials from presidential control.
Unitary executive theory (UET) is a forty years old legal theory, attached to “originalism, although the Constitution it claims to interpret is nearly two hundred and fifty years old. UET was invented in the Reagan administration, by lawyers who needed a constitutional argument that would expand presidential power in directions the conservative movement wanted it expanded. Reagan took office in 1981 and the Federalist Society launched the following year at Yale and the University of Chicago, founded by law students who would become the architects of the project, including Steven Calabresi, who would later coauthor the foundational law review articles claiming unitary executive theory as the framers’ original design. Edwin Meese became Attorney General in 1985 and turned the Justice Department’s Office of Legal Counsel into a workshop for the new doctrine, producing the originalist briefs and internal memoranda that would become the movement’s intellectual scaffolding. Antonin Scalia joined the Court in 1986 and wrote the founding dissent of the project two years later in Morrison v. Olson, arguing the independent counsel statute violated the Constitution by placing an executive officer outside presidential control. That dissent became scripture, taught in Federalist Society reading groups and cited in law review articles as the suppressed truth about Article II.
The historical claim was always thin. The first Congress, sitting with many of the same people who wrote the Constitution, created executive offices with mixed structures and debated removal at length without treating presidential control as absolute. Alexander Hamilton, the framer most associated with executive powers, wrote in Federalist 77 that the Senate’s advice and consent role extended to removal, a position the strong unitary theory cannot accommodate. The Comptroller of the Treasury, established in 1789, operated with explicit independence from presidential direction. Humphrey’s Executor v. United States, decided in 1935, upheld for-cause removal protections for Federal Trade Commission commissioners and stood as settled law for nearly ninety years. Constitutional scholars including Jed Shugerman, Jane Manners, and Lev Menand have documented in recent work how thin the originalist case becomes when the sources receive honest treatment. The theory’s proponents knew this. They built the doctrine anyway, because the doctrine was useful, and they spent four decades credentialing the lawyers who would become the judges who would convert a Reagan-era policy preference into binding constitutional law.
The record of the debate by the founders in the Federalist Papers refutes what the theory of the unitary executive claims. The Federalist Society's claim of original intent a smokescreen for what they are actually doing. It is a remaking of the Constitution to say what they want it to say. Long article, but essential reading.
6 replies
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If we're going to impeach the judges who are connected to the Federalist Society, great! But let's start by outlawing the Federalist Society first. They're the folks who made this nightmare possible in the first place.
