Jed H. Shugerman, Boston University School of Law, has posted two papers on the Removal Power. The first is Movement on Removal: An Emerging Consensus on the First Congress:
What did the “Decision of 1789” decide about presidential removal power, if anything? It turns out that an emerging consensus of scholars agrees that there was not much consensus in the First Congress.
The unitary executive theory posits that a president has exclusive and “indefeasible” executive powers (i.e., powers beyond congressional and judicial checks and balances). This panel was an opportunity for unitary executive theorists and their critics to debate recent historical research questioning the unitary theory’s claims (e.g., Jonathan Gienapp’s The Second Creation and my article “The Indecisions of 1789: Inconstant Originalism and Strategic Ambiguity,” since published in the University of Pennsylvania Law Review).
Unitary theorists on the panel conceded some errors and problems with the claims of a “decision.” Most pivoted away from the traditional account that, based on the legislative debates, a majority of the First Congress endorsed an interpretation that Article II established a presidential removal power. Instead, they shifted to emphasize that the statutory texts rather than legislative history; that the endorsement of even a minority faction of roughly 30% of the House was still substantial; that it was the quality of the argument, not the quantity of supporters (though the “quality” is in the eye and the ideological priors of the beholder, and though it is unclear how original public meaning could be established by a defeated minority position); or perhaps it is the quality or historical importance of the speakers, like Washington, Hamilton, Madison, and Marshall, that counts (never mind that Madison, Hamilton, and Marshall also contradicted the unitary theory). None of these pivots rescue the “Decision” myth.
Perhaps most interesting was the unitary theorists' openness to turning to later evidence, of practices and debates further and further away from the Founding and Ratification. To their credit, they demonstrated a willingness to leave behind standard originalist methods of “original public meaning” during Ratification, and to engage in methods more consistent with common law constitutionalism and living constitutionalism. The challenge is whether they will acknowledge that they have to choose between originalism and the unitary theory.
The second is Freehold Offices vs. 'Despotic Displacement': Why Article II 'Executive Power' Did Not Include Removal:
The Roberts Court has relied on an assertion that Article II’s “executive power” implied an “indefeasible” or unconditional presidential removal power. In the wake of growing historical evidence against their theory, unitary executive theorists have fallen back on a claim of a “backdrop” or default removal rule from English and other European monarchies. However, unitary theorists have not provided support for these repeated assertions, while making a remarkable number of errors, especially in the recent “The Executive Power of Removal” (Harvard L. Rev. 2023).--Dan Ernst
This Article offers an explanation for the difficulty in supporting this historical claim: Because it is wrong. Many officeholders in European monarchies bought their offices as part of a mutual bargain, and in return for their investment, their office was protected as property – especially in England. European administration depended upon a flexible mix of removable patronage offices and unremovable offices for sale. Legal scholarship has missed this history, but many European historians and economic historians have explained this widespread system of “venality.” Montesquieu’s The Spirit of the Laws rejected “displacement” at will (i.e., removal at pleasure) as a tool of “despotic government,” then endorsed “vénalité” limits on removal as a practical system of family investment, incentives, checks, and balances in constitutional monarchies. The sale of offices-as-property may seem strange and even corrupt to modern readers, but it was a long-lasting and practical foundation for the nation-state, modern administration, and colonial expansion.
Whereas vénalité had grown out of control in revolutionary-era France, the English had a more stable system of freehold property rights, a distinctive English protection of the officeholders’ investment against “despotic” displacement. Many central officers and powerful Treasury officers were unremovable. This history explains the silence on removal in the text of Article II, in the Convention and Ratification debates, especially in the Anti-Federalists’ speeches, and gives context to Hamilton and Madison rejecting presidential removal in the Federalist Papers. The sale of offices-as-property shaped colonial America and the Declaration of Independence, and it was the background for the Constitution’s “offices of profit” and early congressional requirements of financial “sureties of office.”
When unremovable officers were uncooperative with the English monarch’s policy goals, the Crown turned to alternate ways to “execute” and “take care” of execution: through systems of rotation and the creation of higher layers of offices. Removal was neither necessary nor sufficient for law execution. Unitary theorists’ mistaken assumptions about “executive power” are not only a warning for the Roberts Court to exercise restraint in upcoming cases on presidential power and the administrative state; they also illustrate originalism’s blindspots and biases in practice.
