Aaron Spikol (Stanford University, Department of Political Science, Students) has posted The Decision of 1802 (Cornell Law Review) on SSRN. Here is the abstract:
Today, many assume that the Good Behavior Clause gives Article III judges ironclad protection from removal—the only method is impeachment by the House and conviction by the Senate. This article challenges that consensus. It argues that under an interpretive doctrine known as “liquidation,” the prevailing understanding of the Good Behavior Clause is incorrect.
Liquidation is the idea that the meaning of indeterminate constitutional provisions becomes fixed by practice. For example, the Court recently relied upon liquidation in Trump v. Slaughter to explain why the President has the power to remove independent agency heads. In Slaughter, the Court pointed to the Decision of 1789, a founding-era legislative debate often cited as the origin of unitary executive theory, to prove that the President has the power to remove most principal executive officers without cause. Given the Court’s embrace of liquidation, it is incumbent on scholars to see where else the doctrine leads.
Applying the doctrine to the Good Behavior Clause reveals a surprising result: the clause liquidated in 1802 to allow Congress to remove Article III judges by statute. At the founding, there was widespread disagreement over the extent of Congress’s power over federal courts and judges. Some held the modern view—the Good Behavior Clause prevents removal except through impeachment—whereas others believed that Congress could remove Article III judges by statute. After a thorough debate over the clause’s meaning, the Republican-controlled Congress passed the Judiciary Act of 1802, thereby removing sixteen Article III judges by abolishing their courts. The public expressed its approval and the Supreme Court acquiesced in Stuart v. Laird. Those events liquidated the meaning of the Good Behavior Clause to allow for non-impeachment removal of Article III judges. That meaning was endorsed throughout the nineteenth and early twentieth centuries and it remains the law today.
The Decision of 1802 was far more significant than other early liquidations, including the Decision of 1789. In comparison to the Decision of 1789, the interpretive question at issue in the Decision of 1802 was more thoroughly debated, more popularly approved of, and more definitively settled. Rejecting the Decision of 1802 would call into question not just the Decision of 1789 but also other early liquidations that are foundational to American constitutional law.
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