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29 posts from December 2021

12/30/2021

Blackstone on Removal Power: Reprise
Michael Ramsey

Here are my four posts on Blackstone and removal power, responding to Professor Jed Shugerman's criticisms of originalist scholarship on the subject:

Blackstone on Removal Power, Part 1: Blackstone on the Unitary Executive

Blackstone on Removal Power, Part 2: Blackstone on Judicial Tenure

Blackstone on Removal Power, Part 3: Blackstone on Subordinate Magistrates

Blackstone on Removal Power, Part 4: Blackstone on Removal of Subordinate Magistrates

Professor Shugerman argued, in the article linked above and in a series of blog posts here, that originalist scholarship -- particularly in a brief submitted to the Supreme Court in Seila Law v. CFPB, greatly overstated the extent to which Blackstone described a broad removal power in the English system.  The posts noted above review Blackstone's writings on the subject.  In my view, they confirm that the originalist scholarship is basically correct on the key issue: a reader of Blackstone would conclude that the monarch, as part of the crown's unified executive power over law enforcement, had broad removal power over principal, national-level executive officers, and in large part had such a power over local executive officers as well.  I note, though, that Professor Shugerman makes some fair criticisms of the way the material was presented in the Seila Law brief, where it was necessarily described in somewhat abbreviated form due to space limitations.

12/29/2021

Joseph Simmons: Reconstructing the Bankruptcy Power
Michael Ramsey

Joseph E. Simmons (J.D. '22, Yale Law School; Ph.D.. Chicago) has posted Reconstructing the Bankruptcy Power: An Originalist Approach (131 Yale L.J. 306 (2021)) (64 pages) on SSRN.  Here is the abstract:

This Note responds to two distinct difficulties in the constitutional law of bankruptcy. First, many bankruptcy scholars and practitioners intuit that the Thirteenth Amendment places important limitations on the law of personal bankruptcy, but this intuition is difficult to cash out in a convincing legal argument. Second, modern bankruptcy law requires an expansive construction of the bankruptcy power, but such a construction is difficult to ground in the meaning of the Bankruptcy Clause in 1789. This Note resolves both difficulties by showing how the proper legal construction of the bankruptcy power changed during Reconstruction with the ratification of the Thirteenth Amendment in 1865. Before Reconstruction, the bankruptcy power was limited to the creation of collective-creditor remedies against merchants who committed acts of insolvency. The Thirteenth Amendment both granted Congress new powers to legislate against relations of economic domination, including relations between creditors and insolvent debtors, and altered the function that the bankruptcy power plays within the Constitution. These changes amounted to a reconstruction of the bankruptcy power, such that bankruptcy law now has as its primary purpose the provision of a “fresh start” to the honest unfortunate debtor. This argument helps ground the constitutionality of both voluntary bankruptcy and corporate bankruptcy, but its most important implications are for consumer bankruptcy law, particularly the status of the debtor’s fresh start and the grounds on which it can be denied.

12/28/2021

No Rehearing in Samoa Citizenship Case
Andrew Hyman

On December 27, the Tenth Circuit Court of Appeals voted 5-2 against en banc rehearing of Fitisemanu v. United States regarding a lawsuit by persons born in American Samoa claiming U.S. citizenship.  Judge Bacharach wrote a dissent to the denial of rehearing.

Mike Ramsey and I previously discussed this case at some length here at this blog, and a list of our blog posts is here.  As I mentioned, Christopher C. Langdell argued in 1899 that "United States" in the Citizenship Clause refers only to the states, because, "if they had contemplated Territories as well, they certainly would have said ‘citizens of the State or Territory in which they reside.'"  This is an interesting subject, and is closely linked to the issue of whether children of persons unlawfully in the United States are entitled to birthright citizenship, instead of having to rely upon Congress to decide the matter via naturalization.

Jeff Hetzel: The Original Criminal Jury
Michael Ramsey

Jeff Hetzel (independent; J.D. Stanford Law School) has posted The Original Criminal Jury (47 pages) on SSRN.  Here is the abstract:

In early America, the criminal jury decided matters of law. The prosecutor and defense counsel read aloud to the jury from statutes, precedent, and treatises. The presiding judge instructed the jury that it had the power to decide matters of law. Then, the jury deliberated and rendered a verdict based on, among other things, its independent judgment about matters of law, whether that meant the common law, statutes, or the Constitution.

The legal world has for generations failed to recognize the power of the original criminal jury. Those who have not ignored the evidence of the jury’s power over matters of law have tended to interpret it as an early form of jury nullification, by which the jury could review the morality of the prosecution. But a careful examination of early practice reveals that the jury held no more power to nullify than it does today. Rather, the early American jury held the power to do what judges today are expected do—to decide what the law means without deciding its morality.

This Article reintroduces this forgotten—yet still constitutionally binding—model of the criminal jury.

12/27/2021

Blackstone on Removal Power, Part 4: Blackstone on Removal of Subordinate Magistrates
Michael Ramsey

This is my fourth post in a series responding to Professor Jed Shugerman’s criticisms of originalist scholarship on Blackstone and removal power (here are part 1, part 2 and part 3).  This post addresses what Blackstone said about removal of subordinate magistrates in vol. 1, ch. 9 of the Commentaries.  Again, the principal point of debate here is the extent to which Blackstone’s work describes a system in which the king had removal power over executive officers.

As discussed in my previous post, Blackstone opens Chapter 9 with the observation that he will not write about “his majesty’s great officers of state” because “I do not know that they are in that capacity in any considerable degree the object of our laws” (p. 327).  Chapter 9 then turns to a detailed examination of the rights and duties of six types of local officers: sheriffs, coroners, justices of the peace, constables, surveyors of highways, and keepers of the poor.  He mentions removal only as to the first four (and the last two do not seem to exercise material executive powers).

As to justices of the peace, Blackstone says directly that

As the office of these justices is conferred by the king, so it subsists only during his pleasure; and is determinable, 1. By the demise of the crown, that is, in six months after. 2. By express writ under the great seal, discharging any particular person from being any longer justice. 3. By superseding the commission by writ of supersedeas … 4. By a new commission, which virtually, though silently, discharges all the former justices that are not included therein; for two commissions cannot subsist at once. 5. By accession of the office of sheriff or coroner… (pp. 341-342.)

This “during his pleasure” tenure may seem odd because Blackstone wrote earlier that judges had had tenure during good behavior pursuant to the Act of Settlement (see my second post in this series).  But justice of the peace was a distinct officer that was executive as well as judicial and was not covered by the Act of Settlement (which applied only to “judges of the superior courts”):

His commission, first, empowers him singly to conserve the peace; and thereby gives him all the power of the antient conservators at common law, in suppressing riots and affrays, in taking securities for the peace, and in apprehending and committing felons and other inferior criminals…. (p. 342.)

Thus a justice of the peace was a substantial local officer without removal protection. Moreover, Blackstone’s description suggests a general baseline principal governing removals, namely that for an office “conferred by the king,” the officeholder can be discharged by the king (a) issuing an “express writ under the great seal” or (b) issuing a new commission to a different person “which virtually, though silently, discharges” the former officeholder.  Both points strongly indicate that the crown had removal power over principal executive officers, at least absent any specific exceptions.

As to sheriffs, Blackstone described them as “do[ing] all the king’s business in the county” (p. 328).  They were appointed by a process (not fully explained) in which “the judges, and certain other great officers … nominate three persons to the king, who afterwards appoints one of them to be sheriff,” although Blackstone acknowledged some debate about whether in some circumstances they might be appointed by the king alone (pp. 329-331).  As to removals, he wrote:

Sheriffs, by virtue of several old statutes, are to continue in their offices no longer than one year; and yet it hath been said that a sheriff may be appointed durante bene placito, or during the king’s pleasure; and so is the form of the royal writ.  Therefore, until a new sheriff be named, his office cannot be determined, unless by his own death, or the demise of the king, in which case it was usual for the successor to send a new writ to the old sheriff. (p. 331.)

This passage is somewhat opaque, for the second sentence seems to contradict the first (especially given how the tenure of justices of the peace is described).  The best reading is probably that sheriffs were removeable by the king’s writ (as with justices of the peace), in keeping with their “during pleasure” appointment, and that the second quoted sentence above is incomplete in its description of how the officer’s tenure might be “determined” [i.e., ended].

The third type of local office, coroner, Blackstone expressly describes as “chosen by all the freeholders in the county court” (p. 335) and

chosen for life: but he may be removed, either by being made sheriff, or chosen verderor, which are offices incompatible with the other; or by the king’s writ de coronatore exonerando, for a cause to be therein assigned, as that he is engaged in other business, incapacitated by years or sickness, hath not a sufficient estate in the county, or lives in an inconvenient part of it.  And by statute 25 Geo II c.29, extortion, neglect, or misbehavior, are also made causes of removal. (p. 337).

Thus coroners had a form of good-cause tenure protection.  But Blackstone also described their office as “either judicial or ministerial; but principally judicial” – mainly, “enquiring (when any person is slain or dies suddenly) concerning the manner of death.” And they were not appointed by the king.  So their offices seem best understood as not materially part of the king’s executive power.

Finally, as to constables, “the general duty of all constables, both high and petty, as well as of the other officers, is to keep the king’s peace in their several districts; and to that purpose the are armed with very large powers, of arresting, and imprisoning, or breaking open houses, and the like…" (p. 344).  As to tenure, Blackstone says only that “high constables” are

appointed at the court leet of the franchise or hundred over which they preside, or, in default of that, by the justices at their quarter sessions; and are removeable by the same authority that appoints them.

This description suggests, without saying directly, that constables do not serve at the king’s pleasure – an interesting point given that they are described as having what appears to be considerable local executive power.

What all this means for local executive power under the English system may be subject to reasonable debate.  There is surely some basis for saying that executive power at the subordinate local level (as described by Blackstone) was not entirely unified in the king, but rather was to some extent exercised by local authorities such as coroners and (probably) constables who enjoyed some tenure protection.  Nonetheless, it also seems a fair conclusion that much – perhaps most – of the executive power at the subordinate local level (as described by Blackstone) was unified in the king, being exercised by local authorities such as justices of the peace and (probably) sheriffs who served at the king’s pleasure.

More importantly, this discussion further suggests that principal, national-level executive officers served at the king’s pleasure.  Even the principal local officers had at-pleasure tenure, and the ones that did not were special cases who either did not have extensive executive power (coroners) and/or had longstanding traditional procedures for selection (coroners and constables).  And Blackstone went into the details of the law of local offices after saying he would not discuss principal executive officers because they were not (so far as he knew) “the object of our laws.”  The most evident conclusion from all this is that the laws did not provide principal executive officers with tenure protection.

This concludes my survey of Blackstone on removal power.  Without engaging in a repetitive restatement of the analysis, in summary I think Blackstone’s account is best read to indicate a unified executive power in the king that included removal power over principal executive officers (but not judges) and most (though probably not all) local executive officers.  Thus while I thank Professor Shugerman for engaging in the debate and prompting this reassessment, I find his objections to the originalist account of Blackstone on removal power to be unpersuasive.

Several caveats should be noted.  First, Blackstone was not always accurate in his descriptions of English law, so I’m not making any claims here about what the English law of removal actually was; the point is instead how a careful reader of Blackstone would understand that law. Second, Blackstone was in any event only seeking to describe what English law was at the time, not what it necessarily must be; as an advocate of parliamentary supremacy, Blackstone surely believed that the constitutional structure could be changed by parliament (as parliament had done with respect to  judicial tenure in the Act of Settlement).  Third, the Constitution did not adopt all of the English system of executive power as described by Blackstone – most obviously, it rejected or limited executive power over appointments and key foreign affairs matters.  The limited point here is only how the founding generation in America likely understood the English system as described by Blackstone.  But as to that limited point, I think the foregoing analysis largely confirms what prior executive scholarship has said about it, and refutes the strongly worded objections Professor Shugerman has raised.

12/23/2021

Blackstone on Removal Power, Part 3: Blackstone on Subordinate Magistrates
Michael Ramsey

This is my third post in a series responding to Professor Jed Shugerman’s criticisms of originalist scholarship on Blackstone and executive removal power.  The first two posts described Blackstone’s general account of the king’s executive power (part 1) and Blackstone’s account of the tenure protections for judges under the Act of Settlement (part 2).  This post turns to Blackstone’s chapter titled “Of Subordinate Magistrates” (Vol. 1, Chapter 9 of the Commentaries).

As discussed in my opening post, Professor Shugerman is sharply critical of the originalists' contention that Blackstone described a system in which the king had broad removal power over subordinate executive officers.  In response, I’ve argued so far that Blackstone’s general discussion of executive power in vol. 1, ch. 7 of the Commentaries strongly implies a broad removal power – both because it affirms the king’s supreme and unified executive power and because it identifies judges, but not subordinate executive officers, as enjoying protection against removal by the king.

Blackstone begins Chapter 9 by saying that he will “proceed to enquire into the rights and duties of the principal subordinate magistrates."  Then there is this sharply disputed passage:

And herein we are not to investigate the powers and duties of his majesty’s great officers of state, the lord treasurer, lord chamberlain, the principal secretaries, or the like; because I do not know that they are in that capacity in any considerable degree the objects of our laws, or have any very important share of magistracy conferred upon them: except the secretaries of state are allowed the power of commitment, in order to bring offenders to trial. (vol. 1, p. 327, emphasis added.)

For the balance of chapter 9, Blackstone specifically discusses six categories of officers: sheriffs, coroners, justices of the peace, constables, surveyors of highways, and overseers of the poor, including “the manner in which they are appointed and may be removed.”

In the originalist scholars’ brief in Seila Law v. CFPB and in other related originalist scholarship, this passage is read to mean that principal executive officers had no legal protection against removal from office because they are not in that capacity “the objects of our laws” and thus are wholly subject to the king’s supreme executive power.  Professor Shugerman objects strongly that Blackstone said no such thing; Blackstone only said he did not know whether the subordinate officers had such protection.

Professor Ilan Wurman (the principal author of the Seila Law brief) responds:

Jed argues that this [quotation] is not evidence of a removal power, but rather Blackstone is expressing uncertainty given his use of the phrase “I do not know.” Perhaps that’s right, but I read the passage differently. Blackstone seems to be saying, “I can’t say for sure in every case, but I do not understand them to be subject to these laws.” That would be consistent with earlier passages in which Blackstone wrote about the importance of unity in the executive and hence “all other[ magistrates] act[] by commission from, and in due subordination to” the monarch; it would also be consistent with Blackstone’s need to specify the exception for judges, who are “nominated indeed, but not removeable at pleasure, by the crown.” Still, I grant that it’s possible to interpret the passage differently.

            I agree with Professor Wurman, and I’ll add several points in support.  First, it’s a common expression to say something like “I don’t know that that’s right” to mean in effect “I’m confident that that’s not right, at least as a general matter.”  Second, Blackstone was the foremost authority on English law at the time; he was a chaired professor at Oxford who had systematically described the English constitutional system in a series of lectures that became the basis of the Commentaries, and he was, when he wrote this passage, engaged in preparing a comprehensive four volume treatise on English law.  If he did not know of any legal protections for the tenure of principal executive officers, I think it fair to conclude that there weren’t any of significance.

            Third, as Professor Wurman says, the preceding discussion in Chapter 7 of the Commentaries is entirely consistent with there being no legal barriers to the king’s removal of principal executive officers, and completely inconsistent with there being such barriers.  In particular, if the king’s ability to remove principal executive officers was materially constrained, that would bring into question Blackstone’s unqualified description of supreme and unified executive power.  Blackstone’s failure to say more on the matter in Chapter 9 further confirms that Blackstone, far from being in doubt, was confident that there were not material restrictions on the crown’s power over principal executive officers.

            Finally, in the rest of Chapter 9, Blackstone undertakes a detailed description of the laws relating to local executive officers such as sheriffs and justices of the peace.  If there had been a similar set of laws governing principal executive officers, it would have been very strange for Blackstone to spend so much time on local offices and ignore the major offices.  And if he really did not know what the laws governing major offices were, it would be very strange – for someone writing a supposedly comprehensive treatise of English law – not to investigate.  All this confirms that what Blackstone meant in the disputed passage, and what a reader would likely understand him to have meant, is that principal executive officers “are not in that capacity in any considerable degree the objects of our laws.”

            That said, I agree with Professor Shugerman’s criticism to this extent.  In the Seila Law brief (which I signed and assisted in drafting), this key quote from Blackstone is shortened and clarified with brackets, rather than being quoted in full with a supporting explanation.  On further reflection I think that was not the right way to do it; a quotation of this importance should be set out in full rather than being edited, so that the reader can draw independent conclusions.  In my scholarship (including blog posts!) I try to include long block quotes from key sources for exactly this reason (often over editors’ forceful objections).  A brief, of course, comes with challenging word limits, so the editorial pressure to condense quotations is especially formidable.  But here it should have been resisted.  (Nonetheless, I agree with Professor Wurman that the Blackstone passage meant what the brief said it meant).

In my next post, I’ll briefly address what Blackstone said about local executive officers and add some thoughts and caveats in conclusion.

12/22/2021

Lisa Heinzerling: Nondelegation on Steroids
Michael Ramsey

Lisa Heinzerling (Georgetown University Law Center) has posted Nondelegation on Steroids (NYU Environmental Law Journal, Vol. 29, 2021) (24 pages) on SSRN.  Here is the abstract:

Five sitting Supreme Court justices appear ready, perhaps eager, to adopt a more assertive approach in applying the principle that the Constitution forbids Congress to delegate legislative power to any other person or institution. In several separate opinions in recent cases, these conservative justices appear to converge on at least one new test for evaluating legislative delegations: a delegation is improper when Congress hands off an important policy issue to the executive branch for decision, and the executive uses that delegated power to control private conduct.

The Supreme Court has never struck down a federal statute based on such a test, and it should not start doing so now. Indeed, if the conservative justices truly do not want to substitute their own views of wise public policy for those of the political branches, they should run, screaming, away from the approach they have proposed for legislative delegations. A test based on the justices' perceptions of the importance of the underlying policy issues cannot help but simply reflect the justices' own political preferences. And a test skewed to disfavor regulatory interventions while giving non-regulatory choices a free pass flouts the Court's decision in Whitman v. American Trucking Associations, which unanimously held that an agency cannot fix a statute's nondelegation problem by restricting its own power. An asymmetrical test also reflects a narrow and privileged view of liberty that cannot be rescued by pretending that "the whole of the people" consented to the conservative justices' vision of the separation of powers.

12/21/2021

Blackstone on Removal Power, Part 2: Blackstone on Judicial Tenure
Michael Ramsey

As noted in my opening post in this series, earlier this month Professor Jed Shugerman sharply criticized originalist executive power scholars, and particularly a brief submitted to the Supreme Court by originalist scholars in Seila Law v. CFPB.  One key point of dispute was the extent to which Blackstone’s Commentaries indicates that the eighteenth-century English monarch had removal power over executive officers.

In my first post, I discussed Blackstone’s account of the monarch’s executive power. This post addresses a key area in which, in Blackstone’s description, the king’s removal power was limited: the tenure of judges.  Blackstone’s discussion there is in sharp contrast to his discussion of the king’s unitary power over law execution.

Blackstone begins (p. 257-258):

It is probable, and almost certain, that in very early times, before our constitution arrived at it’s full perfection, our kings in person often heard and determined causes between party and party.  But at present, by the long and uniform usage of many ages, our kings have delegated their whole judicial power to the judges of their several courts; which are the grand depository of the fundamental laws of the kingdom, and have gained a known and stated jurisdiction, regulated by certain and established rules, which the crown itself cannot now alter but by act of parliament.  And in order to maintain both the dignity and independence of the judges in the superior courts, it is enacted by the statute 13 W. III. c.2 [the 1701 Act of Settlement] that their commissions shall be made (not, as formerly, durante bene placito [during pleasure], but) quamdiu bene se gesserint [during good behavior], and their salaries ascertained and established; but that it may be lawful to remove them on the address of both houses of parliament.

He goes on to emphasize the importance of this change in judicial tenure in strong terms:

In this distinct and separate existence of the judicial power, in a particular body of men, nominated indeed, but not removable at pleasure, by the crown, consists one main preservative of the public liberty; which cannot subsist long in any state, unless the administration of common justice be in some degree separated both from the legislative and also from the executive power.  (p. 259.)

The significance of these passages for executive removal power is twofold.  First, Blackstone focuses directly on limited removal power as the mechanism for separating judicial power from executive power.  The Act of Settlement’s substitution of good behavior tenure (quamdiu bene se gesserint) for tenure at the king’s pleasure (durante bene placito) assures “the dignity and independence of the judges.” Or as stated in the second quoted passage above, the “distinct and separate existence of the judicial power” arises from the judges being “nominated indeed, but not removable at pleasure, by the crown.”  The king’s executive power formerly included judicial power but because of the Act’s changes in the removal power it no longer did.

Second, Blackstone’s discussion of judicial tenure strongly implies that executive officers, in contrast to judges, did not have protection against removal by the monarch.  Most simply, the reason judges had removal protection was because the Act of Settlement provided it, and the Act did not protect executive officers.  Moreover, in focusing particularly on judges as having a noteworthy protection from executive interference, Blackstone’s description carries the negative implication that executive officers lack that protection.

More fundamentally, read together with Blackstone’s description of unified executive power (which it would be, as they are in the same part of the Commentaries), Blackstone’s account of judicial tenure shows that the English constitutional structure would not accommodate similar tenure protections for executive officers.  As shown in my prior post, Blackstone emphasized the unity of the executive power in the king.  But for Blackstone, the king’s lack of at-pleasure removal power over judges established judicial independence (even though judicial offices were filled by the monarch).  Protections against removal were incompatible with a unified power: they created separation and independence.  Thus the monarch could not have had unified executive power (as Blackstone said he did) without a general power of removal of subordinate executive officers.

In sum (as to my posts so far), Blackstone said (a) the king had unified executive power, and (b) the king lacked judicial power because although he appointed judges he lacked removal power over them (as a result of the Act of Settlement).  I think it clear that an ordinary reader would conclude from this account that the king’s executive power implied removal power over executive officers.

In my next post on the subject, I'll turn to what Blackstone said specifically about removing subordinate executive officers.

12/20/2021

Blackstone on Removal Power, Part 1: Blackstone on the Unitary Executive
Michael Ramsey

Earlier this month Professor Jed Shugerman, in a series of blog posts and a short article, sharply criticized originalist executive power scholars, and particularly a brief submitted to the Supreme Court in Seila Law v. CFPB.  (See here [Originalism Blog discussion], here [Shugerman article] and here [response by Ilan Wurman].)  One key point of dispute was the extent to which Blackstone’s Commentaries indicates that the eighteenth-century English monarch had removal power over executive officers.

The brief (which I signed and assisted in writing) argued that by the Constitution’s original meaning, the President had removal power over executive officers from Article II, Section 1 and 3.  Blackstone’s view of the English system is only a small part of this argument, but it is an important part: as Michael McConnell shows in his great book The President Who Would Not Be King, the Constitution’s framers looked to Blackstone’s descriptions of the executive power in England as a starting point for their design, although they also made very substantial changes.

So in considering presidential removal power, it’s useful -- though not decisive -- to start with Blackstone’s description of the English system.  (Aside: Blackstone’s work was not always reliable as to what the English system actually was, but its wide circulation in America makes it a good indication of what the Constitution’s drafters and ratifiers understood the English system to be.) 

I appreciate Professor Shugerman raising questions about the correct reading of Blackstone, and prompted by his criticism I’ve taken a second and closer look.  As described below and in a series of subsequent posts, on further reflection I think the Seila Law brief was correct in its characterization of Blackstone, though it might have done a better job of supporting its conclusions (one must bear in mind that the length of amicus briefs is limited and Blackstone was only a small part of the brief). 

The relevant discussion in the Commentaries is volume 1, pp. 242-253 (of the 1765 edition).  Here Blackstone makes four key points crucial to the topic of removal, which I’ll discuss in separate posts.

(1) First, Blackstone says that executive power is unified in the king.  His discussion begins:

We are next to consider those branches of the royal prerogative, which invest this our sovereign lord, thus all-perfect and immortal in his kingly capacity, with a number of authorities and powers; in the exertion whereof consists the executive part of government. This is widely placed in a single hand by the British constitution, for the sake of unanimity, strength and dispatch.  Were it placed in many hands, it would be subject to many wills: many wills, if disunited and drawing different ways, create weakness in a government: and to unite those several wills, and reduce them to one, is a work of more time and delay than exigencies of state will afford.  The king of England is therefore not only the chief, but properly the sole, magistrate of the nation: all others acting by commission from, and in due subordination to him: in like manner as, upon the great revolution in the Roman state, all the powers of the antient magistracy of the commonwealth were concentrated in the new emperor… (pp. 242-43.)

This is a powerful statement of the theory of the unitary executive.  The “executive part of government” is “placed in a single hand” – and that unity is justified in terms that anticipate the framers’ arguments for executive unity: “unanimity, strength and dispatch.”  Although it doesn’t say anything directly about removal power, it strongly implies that the king had complete control over executive officers, which (as Madison said later in the 1789 removal debates) necessitates the ability to remove them.

Blackstone then discusses the specific powers “whereof consists the executive part of government.”  After a long discussion of foreign affairs and military powers (pp. 245-257), Blackstone turns to the king’s powers as “fountain of justice and general conservator of the peace of the kingdom.” (p. 257.)  This discussion brings him to matters we think of as execution of the law, in which Blackstone again speaks of the king’s power in unitary terms:

[A]s the public, which is an invisible body, has delegated all it’s power and rights, with respect to the execution of the laws, to one visible magistrate, all  affronts to that power, and breaches of those rights, are immediately offenses against him [i.e., the king], to whom they are so delegated by the public.  His is therefore the proper person to prosecute for all public offenses and breaches of the peace, being the person injured in the eyes of the law.  (pp. 258-259.)

Further:

From the same original, of the king’s being the fountain of justice, we may also deduce the prerogative of issuing proclamations, which is vested in the king alone.  These proclamations have then a binding force, when (as sir Edward Coke observes) they are grounded upon and enforce the laws of the nation.  For, though the making of laws in entirely the work of a distinct part, the legislative branch, of the sovereign power, yet the manner, time and circumstances of putting those laws in execution must frequently be left to the discretion of the executive magistrate.  And therefore his constitutions or edicts, concerning these points, which we call proclamations, are binding upon the subject, where they do not either contradict the old laws, or tend to establish new ones; but only enforce the execution of such laws as are already in being, in such manner as the king shall judge necessary. (p. 261.)

Finally on this point:

The king is likewise the fountain of honour, of office, and of privilege: and this in a different sense from the wherein he is stiled the fountain of justice; for here he is really the parent of them.  It is impossible that a government can be maintained without a due subordination of rank; that the people may know and distinguish such as are set over them, in order to yield them their due respect and obedience; and also that the officers themselves, being encouraged by emulation and the hopes of superiority, may the better discharge their functions: and 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. …

From the same principle also arises the prerogative of erecting and disposing of offices: for offices and honors are in their nature convertible and synonymous.  All offices under the crown carry in the eye of the law and honour along with them; because they imply a superiority of parts and abilities, being supposed to be always filled with those what are most able to execute them. (pp. 261-262)

These passages confirm that law execution – specifically encompassing prosecution of offences, implementation of laws, and appointment of subordinate executive officers – is part of the unified executive power of the king that Blackstone discussed in his opening description.  They also continue to speak of these specific powers as unified in the king: the king has all the power of prosecution, all the power of issuing proclamations, and all the power over offices.

It’s true, as Professor Shugerman points out, that there’s nothing in these passages directly addressing removal of officers.  As Shugerman specifically emphasizes, the power of “erecting and disposing of offices” is most immediately about appointments, not removals: “dispos[e]” in this context is probably best read to mean generally to “distribute,” not specifically to “withdraw.” In his response to Professor Shugerman, Ilan Wurman – the principal author of the Seila Law brief – acknowledged that the brief read too much into this particular phrase (and I agree).  But the overall implication of these passages seems unmistakably to be (as the brief said) that the king had ultimate control over prosecutions, law implementation, and offices.  That is the essence of the unitary executive.  Most notably, “the law supposes, that no one can be so good a judge of [officers’] several merits and services, as the king himself who employs them” and “the offices [are] supposed to be always filled with those what are most able to execute them.” Thus these passages strongly imply – without saying in so many words – that the monarch had power of removal.  Otherwise, the law execution powers would not be truly united in the monarch, as Blackstone says they are, and the king would not be able to judge and control the service of those he employed, as Blackstone says he does.  And there is not a hint in any of these descriptions that the king’s power in this regard is limited by inability to remove unsatisfactory executive officers.

My next post on the subject turns to a key area in which, in Blackstone’s description, the king’s removal power was limited: the tenure of judges.  His discussion there is in sharp contrast to the foregoing discussion of the king’s unitary power over law execution.

12/19/2021

Travis Crum: The Lawfulness of the Fifteenth Amendment
Michael Ramsey

Travis Crum (Washington University in St. Louis--School of Law) has posted The Lawfulness of the Fifteenth Amendment (Notre Dame Law Review, Vol. 97, 2022) (68 pages) on SSRN.  Here is the abstract:

One of the most provocative debates in constitutional theory concerns the lawfulness of the Reconstruction Amendments’ adoptions. Scholars have contested whether Article V permits amendments proposed by Congresses that excluded the Southern States and questioned whether those States’ ratifications were obtained through unlawful coercion. Scholars have also teased out differences in how States were counted for purposes of ratifying the Thirteenth and Fourteenth Amendments. This debate has focused exclusively on the Thirteenth and Fourteenth Amendments, dismissing the Fifteenth Amendment as a mere sequel.

As this Essay demonstrates, the unique issues raised by the Fifteenth Amendment’s ratification adds important nuance to this debate. New York rescinded its ratification at a time that is difficult to ignore. The Indiana state legislature lacked a quorum when it approved the amendment. Georgia was expelled from the Union not once, but twice—the latter instance after Congress had re-admitted it in July 1868. Georgia was then required to ratify the Fifteenth Amendment as a fundamental condition for its second re-admission. Georgia’s situation differs substantially from the Southern States that were consistently excluded from the Union. Under any theory—whether it endorses a loyal-, reduced-, or full-denominator—at least one of these States’ ratifications is necessary for the Fifteenth Amendment’s validity.

Notwithstanding these issues, the Fifteenth Amendment’s legality is on solid ground. Indeed, the Fifteenth Amendment showcases Reconstruction’s success. The majority of Southern States were represented in the Congress that passed the Fifteenth Amendment and those States ratified it free of any fundamental conditions. Given the demographics and political realities of Reconstruction, the Fifteenth Amendment was the first constitutional provision whose ratification was clearly attributable to the votes of Black men. More broadly, the fight to ratify the Reconstruction Amendments demonstrates that democracies must sometimes take extraordinary steps to protect themselves from secessionist, racist, and anti-democratic forces.