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12/10/2021

A Sharp Exchange on Blackstone, Removal Power, and the Scholars' Brief in Seila Law v. CFPB
Michael Ramsey

Jed Shugerman (Fordham) has posted Removal of Context: Blackstone, Limited Monarchy, and the Limits of Unitary Originalism (Yale Journal of Law and the Humanities, Vol. 32, 2022, forthcoming) (36 pages) on SSRN.  Here is the abstract: 

This article is part of a series on Article II, questioning the unitary theory’s three pillars: the Executive Vesting Clause, the Take Care Clause (or the “Faithful Execution” clauses), and the Decision of 1789 (or more accurately, the Indecisions of 1789). “Removal of Context” focuses on the “executive power” part of the Vesting Clause: Did “executive power” imply supervision and removal in the eighteenth century? What do the unitary theorists cite to support their claim that “executive power” includes removal, and “indefeasibly” so?

Unitary executive theorists’ reliance [ed.: I think he means "theorists rely"] on the English Crown in the seventeenth and eighteenth centuries, but they overlook or obscure the problems of relying on England’s limited monarchy, the era’s rise of Parliamentary supremacy over the Crown and its power to eliminate or regulate (i.e., make defeasible) royal prerogatives. There appears to be no evidence that executive removal was ever conceived as a “royal prerogative” at all, and the historical record indicates that the king did not have a general removal power at pleasure. The structure of the historical comparison has a major flaw: They concede that the Constitution explicitly limits many core royal powers, such war, peace (treaties), and the veto, so that the president is weaker than the king, but somehow Article II implies unnamed “executive powers” (like removal) that make a president stronger than a king? Moreover, there were eighteenth-century royal prerogatives related to law execution (prorogue and dissolution), but no one claims Article II “executive power” implies them.

When one investigates the unitary evidence more closely and follows their sources, one finds a pattern of misinterpreting historical sources, especially Blackstone in amicus briefs and law review articles in the unitary executive scholarship. In particular, the recent brief by unitary scholars in Seila Law misinterprets Blackstone’s use of the word “disposing” of offices as removing, instead of dispensing or appointing (which are indicated by context and general usage) and then misquotes a passage from Blackstone, reversing his meaning from his uncertainty about the relevant law of offices to a certain positive claim about removal. These misreadings are more than just small or narrow errors. They obscure more significant points: Blackstone was fundamentally in favor of parliamentary supremacy, against “indefeasible” executive powers; and Blackstone never mentions removal as a royal prerogative or a general executive power, which is powerful counter-evidence to the unitary theorists’ assumptions. These errors are also a cautionary moment about originalist methods and the notion that originalism is more reliable or objective than other methods of interpretation.

Professor Shugerman has related posts at his blog, here, here and here.

Ilan Wurman (Arizona State), the principal author of the originalist scholars’ brief in Seila Law that Professor Shugerman sharply criticizes, has this response at the Yale Journal on Regulation Notice and Comment Blog: Some Thoughts on My Seila Law Brief. From the introduction:

Jed Shugerman has just posted a short paper, “Removal of Context,” and a series of short blog posts, in which he takes on originalists for misusing Blackstone passages in the removal power debates. Although Jed takes on a number of other scholars, too, he cites my amicus brief in Seila Law as an example of misuse, as well as a footnote in a longer law review article that I published in the Duke Law Journal in 2020. I think Jed’s paper is helpful and originalists should (of course) change their views in light of countervailing evidence, so I wanted to address Jed’s claims.

In a footnote in [the Duke Law Journal] piece I relied on a passage from Blackstone, and in my Seila Law brief, for which I was the lead drafter on behalf of a number of other scholars, I relied on that and another passage from Blackstone, both of which Jed argues I misused. I am not so sure about the first passage, although I grant the matter is less clear than I originally believed. As for the second, I think Jed is right that I read too much into the passage. I don’t think the error changes any substantive conclusions, but I think it’s important to correct the record.

And in conclusion:

… I do not think that changes the substantive outcome or the analysis in the brief. We ourselves admitted in the brief that Blackstone is largely silent on the question of removals. We argued that as a historical matter the monarch did in fact have a removal power (which King George III exercised). That is precisely why Parliament had to enact various statutes in order to limit this power, as it did with judges in the Act of Settlement. Moreover, other passages from Blackstone regarding the need for unity in the executive and the due subordination of all other magistrates, and his passage that “the law supposes, that no one can be so good a judge of their several merits and services, as the king himself who employs them,” strongly imply such a power, too. What’s more, nothing in Blackstone suggests that once the monarch “disposes” of an office, the monarch cannot do so again through a new appointment. Still, in the brief, I did assume that the word “dispose” itself was indicative of a removal power, and I now recognize that I made a mistake by reading too much into the passage.

In any event, I am not persuaded that the brief’s central claim about English law and practice relating to the king’s removal power is incorrect, or even materially in doubt. Jed so far hasn’t pointed to specific evidence to the contrary, and I have responded to the historical arguments of Daniel Birk and others in my Duke piece. But I look forward to continuing to read Jed’s scholarship on these issues.

Professor Shugerman then has some further followup posts on his blog here, here and here.

I joined Professor Wurman’s brief in Seila Law and assisted in drafting it, so I have something of a stake in this debate.  I hope to have more to say later.  As to the Blackstone quotes, for now I’ll just say that I thank Professor Shugerman for raising questions about them, and I think Professor Wurman gives an appropriate response.

The more significant question in my view is the state of removal power in eighteenth-century English law (or, rather, how the founding generation in American understood that power).  Of course, the U.S. Constitution does not necessarily adopt the English practice on removal, because the Constitution reflects different ideas about separation of powers and in at least some other respects it quite obviously departs from English practice.  Nonetheless, English practice is relevant in addressing the question whether the Constitution adopted a unified executive power.  If the English executive had broad removal power over executive offices, that tends to support (though doesn't prove) the idea that the Constitution's executive power encompasses removal power.  And if the English executive did not have broad removal power, that suggests (but doesn't prove) the opposite.  

In one of his later posts, Professor Shugerman says that he has pointed to contrary historical evidence, citing G.E. Aylmer’s The King’s Servants (which he discusses in the post and in the longer article) and Jane Manners & Lev Menand, The Three Permissions: Presidential Removal and the Statutory Limits on Independence, Columbia L. Rev. 2020) (which he discusses in the longer article).  This, then, seems to be the key point of disagreement.

I confess that I had always assumed the English monarch had broad removal power over executive officers, and I think that this has been a common assumption.  Professor Shugerman is surely right to challenge it (though I wish he would do it in a less snarky way).  Again, I hope to have more to say upon further consideration, as is appropriate in an academic debate.