Although Article II, Section 2 specifies how executive department officials are appointed, no constitutional provision specifies or even hints at how executive officials are removed. The constitutional framers and drafters who were part of the 1st Congress confessed that they had made a mistake, and did not claim that they had plainly set down the rules for removing officials whose services are no longer needed. Madison admitted to the 1st Congress that the handling of removals was “an omitted question.” A contemporary statesperson might have simply said “oops.”

The Contested Removal Power, 1789–2010 provides a vital history of the consequences of this omission for American constitutional development. J. David Alvis, Jeremey D. Bailey, and F. Flagg Taylor IV have written the definitive study of the ongoing debates over the removal power that began during the 1st Congress, and still remain vibrant. Along the way, these authors provide well-researched accounts of the constitutional disputes over control of the executive branch and administrative agencies that took place during the Jackson administration, the Andrew Johnson administration, the Progressive Era, the Nixon administration, and in contemporary politics. All persons who teach American constitutional law, American constitutional politics, or American constitutional development need to be familiar with the information in this book.

Readers of The Contested Removal Power, 1789–2010 will learn about the narrowing of constitutional possibilities over time. The 1st Congress, the authors observe, considered four possible constitutional means for removing executive branch officials. Various members of Congress, when debating the organization of the cabinet, proposed that executive officials could be removed by the president alone, by the president with the advice and consent of the Senate, by whatever process Congress devised, or only by impeachment. The last alternative was decisively rejected during the 1789 debate over removals. Over the next 200 years, Americans largely abandoned the option of removal by the president with the advice and consent of the Senate, leaving removal by the president or removal by whatever process Congress devises as the only two contemporary alternatives. Lawyers advancing partisan causes often assert that history has resolved the matter. The authors are nevertheless convincing when they demonstrate that at no time in history have American constitutional decision makers, from the Supreme Court to members of Congress, ever agreed on the precise rules for removing particular executive officials or even on which officials are members of the executive branch of the national government.

Alvis, Bailey, and Taylor have written the seminal study of the removal power in American constitutional development, and not only because they have penned the first book-length study of the subject. The Contested Removal Power is admirably thorough. The authors cover all the main constitutional debates over the removal power, whether those debates took place before the Supreme Court, in congressional debate, or in the Oval Office. The analysis is informed by law, political science, and history. Those scholars who have insisted that the removal power was settled, tend to do so because they focus on a particular controversy, such as the removal debates of 1789, or on a particular branch of government, most often the presidency. The Contested Removal Power, by exploring the positions that all branches of the national government have taken on the removal power over time, brings complexity to the discussion. Presidents, the authors note, do tend to favor a unitary executive who has the sole removal power, but Congress often regards the Constitution as empowering the legislative to make rules for removal, whereas the jurisprudence of the federal courts has wavered throughout history. The issue of “the removal power,” Alvis, Bailey and Taylor correctly conclude, “remains unsettled” (5).

For a study advertised as a work in American political development (14–15), too little change sometimes takes place throughout The Contested Removal Power. The text too often treats history as an enduring contest between proponents of executive removal and proponents of congressional discretion, omitting the different versions of each position that have been championed over time, or even at the same time. Readers will find far more sentences such as Henry Clay “anticipat[ed] the dissenters in Myers, and expanded on an argument made by Sedgwick in the First Congress” (92) than those such as the more nuanced “Jackson continued Jefferson's emphasis on public opinion, but he transformed it by attaching the principle of rotation” (73). Alvis, Bailey, and Taylor note some minor legal differences between the defenses of congressional delegation theory advanced by Justice Louis Brandeis and those advanced by James McReynolds in Myers v. United States (1926), but they never acknowledge that the Brandeis dissent was rooted in a commitment to participatory democracy that Reynolds did not share. Moreover, although The Contested Removal Power correctly notes that the precise balance of power between the president and Congress remains unsettled, some removal questions have been resolved. Although the authors paint the contemporary Supreme Court as wavering between a unitary executive who can removal all executive branch officials, and congressional power to set the rules for all removals, twentieth century practice has settled that the president may remove all officials with “pure” executive functions, while leaving unsettled what constitutes a “pure” executive function. We do not have the unitary executive of Richard Chaney's dreams, but Henry Clay's claim that only Congress could authorize the removal of the Secretary of the Treasury is off the table.

The merits of The Contested Removal Power clearly outweigh these flaws. Scholars who attempt serious interdisciplinary work inevitably are found a bit wanting with respect to at least one discipline, for the simple reason that not everyone can take every perspective on every issue. Alvis, Bailey, and Taylor provide readers with an exceptionally scholarly account of the removal power in American constitutional history. The reader who is bound to cavil at one perceived flaw or another will nevertheless find themselves much smarter for having read this book.