Jed Shugerman: The Misuse of Ratification-Era Documents by Unitary Executive Theorists
Michael Ramsey
Jed H. Shugerman (Boston University - School of Law) has posted The Misuse of Ratification-Era Documents by Unitary Executive Theorists (forthcoming, Michigan J. L. Reform (2025)) (25 pages) on SSRN. Here is the abstract:
The unitary executive theory is approaching its political and doctrinal zenith in 2025, at the very moment it is approaching an evidentiary crisis, a methodological crisis, and perhaps an academic crisis. This symposium essay (on "The Future of Agency Independence") suggests that, given an ostensibly originalist Supreme Court, the future depends on getting the past right. This essay details that crisis: a subset of misuses and misrepresentations of sources in the unitary executive scholarship. This subset focuses on serious misrepresentations of the Ratifications debates.
The Ratification debates appropriately have become the primary source of evidence for original public meaning, the dominant theory of originalism. The Ratification debates have always been a significant problem for the unitary executive theorists, because The Federalist Papers are solid contrary evidence. The Ratification debates were silent about whether the president had a general power of removal -- even in the voluminous Anti-Federalist speeches and writings, where one would most expect to see such warnings if they existed.
Aditya Bamzai and Saikrishna Prakash, attempting to rescue their theory, claim to have identified four passages from the Ratification debates. Unfortunately, none of these four passages withstand scrutiny. These misuses are part of a serious pattern of misuses of historical materials. They have not only misinterpreted historical records from the 1780s and 1790s, but also how they have repeatedly misinterpreted other scholars’ work in the 2020s.
Taking these examples together with the many errors and misinterpretations identified by historians and legal scholars over the past few years, there are at least three big-picture questions:
1. If these sources were the only examples that the unitary executive theorists have identified from the Ratification debates, is it reasonable to conclude that the Ratification debates offered no support for the unitary executive theory of presidential removal, while the Federalist Papers plus Anti-Federalist silence are overwhelming evidence against it?
2. If so, is the originalist case for the unitary executive theory dead?
3. If “originalism” is a serious academic enterprise, are there consequences for originalist scholarship that repeatedly misused, misrepresented, or made false claims about the historical record?
(Via Dan Ernst at Legal History Blog.)
I leave it to Professors Prakash and Bamzai to respond on the specifics, though on a quick look at the essay this appears to be a commonplace dispute over the implications of somewhat ambiguous text that forms a fairly small part of a larger historical debate, and thus perhaps does not justify the extravagant rhetoric in the abstract and throughout the essay.
I have two quick general thoughts:
(1) I follow Justice Scalia in Morrison v. Olson in thinking that the case for presidential removal power arises directly from the Constitution's text vesting the President with "[t]he executive Power." The history might undermine this reading, if the history is strong enough. But I think the burden is on those who say that the President's unqualified possession of the executive power does not include the power to control subordinates who exercise the executive power.
(2) I was struck by this comment in Professor Shugerman's paper:
No one disputes the existence of “some” offices held at [the President's] pleasure, but they [Bamzai and Prakash] are arguing for a more universal and absolute interpretation of Article II.
I'm not sure it's true that "no one" disputes a limited version of presidential removal power. But leaving that aside, I take this comment to mean that at least Professor Shugerman doesn't dispute it. So what is the basis of this limited presidential removal power? And once it is conceded, we are really just arguing about the scope of removal power, not (as a good bit of the commentary on the anti-removal side seems to suggest) the existence of removal power.