Kexel Chabot's "Interstitial Executive"

Christine Kexel Chabot, Marquette University Law School, has posted the The Interstitial Executive: A View from the Founding:

The Supreme Court appears poised to recognize a unitary executive President with power to override statutory removal restrictions for almost all principal officers in the executive branch. The core unitary claim is that Article II vests “the executive power in a President of the United States,” and that the President therefore has exclusive control over all exercises of executive power by subordinate officers. The Court and unitary scholars have further grounded their claims in originalism and contended that the unitary executive’s primary mechanism of control is an indefeasible power to remove all subordinate officers at will. This Article debunks originalist unitary claims by introducing new historical evidence to show that the Washington, Adams, and Jefferson Administrations failed to practice what unitary scholars preach. It introduces a critical body of previously unexamined archival evidence of the terms of office and removal specified in over 200 commissions that Presidents issued to their appointees. These records recover a representative and more comprehensive view of the distinct terms of office that Presidents specified for all of their appointees including officers who exercised executive power both with and without statutory tenure protections. Unlike the Supreme Court, early Presidents recognized removal during pleasure only for officers whose tenures were not specified by statute and respected statutory and constitutional removal restrictions for other officers. 

While unitary scholars claim that Article II empowered early Presidents to remove officers notwithstanding statutory restrictions, the officer commissions introduced by this Article show that executive practice instead turned on congressional discretion under Article I’s Necessary and Proper Clause. The Washington, Adams, and Jefferson Administrations asserted service “during pleasure” for officers ranging from the Secretary of State to the Librarian of Congress, but only when governing statutes left terms of office unaddressed. Presidents departed from this practice when they issued commissions to officers who enjoyed statutory or constitutional tenure protections, such as independent commissioners to settle accounts between the United States and individual states, Chief Justices who served on the Sinking Fund Commission, and Justices of the Peace who served for five-year terms set by statute. Commissions which the Presidents and Secretaries of State prepared for these officers repeatedly omitted references to removal “during pleasure” and indicated that these tenure-protected officials served during “good behavior” or for fixed terms. Early Presidents therefore asserted a power of removal during pleasure when Congress left terms of office unregulated but abided by statutory restrictions on removal applicable to other offices. The extended historical record shows that Presidents’ exercise of removal power operated within the law, not above it, and that Presidents respected the statutory terms of office which Congress established pursuant to the Necessary and Proper Clause.

--Dan Ernst.  Professor Kexel Chabot's appendices are here

Legal Historians as Authority in West Virginia v. EPA

Here are the rival resorts to legal historians on nondelegation and the Founding in today's West Virginia v. EPA.  First, Justice Kagan’s dissent:

The kind of agency delegations at issue here go all the way back to this Nation’s founding. “[T]he founding era,”scholars have shown, “wasn’t concerned about delegation.” E. Posner & A. Vermeule, Interring the Nondelegation Doctrine, 69 U. Chi. L. Rev. 1721, 1734 (2002) (Posner & Vermeule). The records of the Constitutional Convention, the ratification debates, the Federalist—none of them suggests any significant limit on Congress’s capacity to delegate policymaking authority to the Executive Branch. And neither does any early practice. The very first Congress gave sweeping authority to the Executive Branch to resolve some of the day’s most pressing problems, including questions of “territorial administration,” “Indian affairs,” “foreign and domestic debt,” “military service,” and “the federal courts.” J. Mortenson & N. Bagley, Delegation at the Founding, 121 Colum. L. Rev. 277, 349 (2021) (Mortenson & Bagley). That Congress, to use a few examples, gave the Executive power to devise a licensing scheme for trading with Indians; to craft appropriate laws for the Territories; and to decide how to pay down the (potentially ruinous) national debt. See id., at 334–338, 340–342, 344–345; C. Chabot, The Lost History of Delegation at the Founding, 56 Ga. L. Rev. 81, 113–134(2021) (Chabot). Barely anyone objected on delegation grounds. See Mortenson & Bagley 281–282, 332, 339; Chabot 117–119; Posner & Vermeule 1733–1736.

And here is Justice Gorsuch's concurrence:

In the course of its argument, the dissent leans heavily on two recent academic articles. Post, at 29. But if a battle of law reviews were the order of the day, it might be worth adding to the reading list. See, e.g., I. Wurman, Nondelegation at the Founding, 130 Yale L. J. 1490, 1493–1494 (2021); D. Candeub, Preference and Administrative Law, 72 Admin. L. Rev. 607, 614–628 (2020); P. Hamburger, Delegation or Divesting?, 115 Nw. L. Rev. Online 88, 91–110 (2020); M. McConnell, The President Who Would Not Be King 326–335 (2020); A. Gordon, Nondelegation, 12 N. Y. U. J. L. & Liberty 718, 719 (2019); R. Cass, Delegation Reconsidered: A Delegation Doctrine for the Modern Administrative State, 40 Harv. J. L. & Pub. Pol’y 147, 155–161 (2017); G. Lawson & G. Seidman,“A Great Power of Attorney:” Understanding the Fiduciary Constitution104–129 (2017); P. Hamburger, Is Administrative Law Unlawful? 377– 402 (2014); L. Alexander & S. Prakash, Reports of the Nondelegation Doctrine’s Death are Greatly Exaggerated, 70 U. Chi. L. Rev. 1297, 1298–1299 (2003); G. Lawson, Delegation and Original Meaning, 88 Va. L. Rev. 327, 335–343 (2002); D. Schoenbrod, The Delegation Doctrine: Could the Court Give It Substance? 83 Mich. L. Rev. 1223, 1252–1255, 1260–1261 (1985); see generally P. Wallison & J. Yoo, The Administrative State Before the Supreme Court: Perspectives on the Nondelegation Doctrine (2022).

H/t: Rafi Stern for noting my earlier, erroneous attribution of the second quotation to the Chief Justice.

--Dan Ernst

Chabot on Delegation and the Appropriations Clause at the Founding

Christine Kexel Chabot, Marquette University Law School, has posted The Founders' Purse:

Alexander Hamilton (NYPL)

This Article addresses a new and impending war over the constitutionality of broad delegations of spending power to the executive branch. In an opening salvo, the Fifth Circuit held that Congress unconstitutionally delegated its power of the purse to the Consumer Financial Protection Bureau, and the Supreme Court has agreed to review its decision this term. Notwithstanding the fact that Congress authorized the Bureau’s budget “by law,” the Fifth Circuit held that this law violated the Appropriations Clause because it granted the Bureau substantial budgetary independence in two key respects: first, it afforded the Bureau broad discretion to self-direct its budget for an unlimited duration, and second, it granted the Bureau permanent funds that were drawn from interest-based earnings of the Federal Reserve system. The Fifth Circuit supported this conclusion with an ambitious but highly selective originalist interpretation of Article I, section 9’s Appropriations Clause. Defenders of the Fifth Circuit’s ruling have likewise justified its holding with formalist and originalist arguments that the Bureau’s budgetary independence amounts to an unconstitutional delegation of legislative spending power. The broader debate about delegation of spending power extends beyond the Bureau and calls into question laws awarding similar budgetary independence to financial regulators such as the Federal Reserve as well as the Biden Administration’s ability to forgive student loans (and spend debt owed the government) “without specific statutory authorization.”

Originalist claims to a nondelegation doctrine that limits the duration, generality, and source of spending in laws passed by Congress have missed a critical body of contrary historical evidence introduced by this Article. First, records of the Constitutional Convention show that the delegates approved new and durable congressional revenue and spending powers to support the U.S. government and its credit while declining proposals for general temporal limitations on Congress’s revenue and spending powers. Second, early congresses repeatedly put these new and durable spending powers to use in laws that bypassed all three proffered limitations on duration, generality, and source of funding. To support U.S. credit, and upon the recommendation of Secretary of the Treasury, Alexander Hamilton, early congresses granted an agency known as the Sinking Fund Commission power to self-direct a permanent fund that was drawn from interest-based earnings on debt held by the United States. To establish an affordable new federal government, early congresses also funded a majority of federal officers including core law enforcement officials and even a new agency through permanent and independently directed fees that were paid by private parties. This history shows that Article I, section 9 means what it says and requires only that Congress authorize spending “by law.” Critics who have questioned the constitutionality of broad delegations of spending power have strayed from the lessons of both text and history.

--Dan Ernst

Kexel Chabot on Falsifying the Unitary Executive

Christine Kexel Chabot, Marquette University Law School, has posted Rejecting the Unitary Executive:

George Washington (NYPL)

Critics have dismissed originalism as an empty methodology incapable of resolving our most important constitutional disputes. The debate over the unitary executive has proved particularly difficult to resolve as a matter of original public meaning.  While unitary scholars claim that Article II grants the President an indefeasible power to remove all subordinates at will, their interpretation rests on minimal text and conflicts with significant historical evidence. The Supreme Court circumvented this impasse when it adopted a strong unitary interpretation of Article II in Trump v. United States.

This Article develops a new methodological framework to address the underlying disconnect between ongoing historical disputes over the unitary executive and original public meaning’s claims to a determinate understanding of the Constitution. Leading originalists have staked their claims to determinacy on empirical, fact-based assertions of historical consensus on the Constitution’s meaning. My framework responds to these empirical claims on their own terms. It requires unitary theorists who assert historical consensus to measure their claims against the entire historical record including evidence that would render these claims false. Under my approach, for example, a theory asserting an absolute claim that all that swans are white cannot withstand observations of swans that are black. A theory of historical consensus that Article II empowered the President to remove all subordinates at will likewise cannot withstand reliable historical counterevidence of restrictions on the President’s removal power.

 While the supposedly competing evidence relied on by unitary executive theorists may show an unrestricted removal power over some subordinate officers, this evidence does not rule out tenure protection for other subordinate executive officers. It aligns just as well with the unitary executive’s theoretical alternative: a pluralist understanding in which Congress has discretion whether or not to restrict the President’s removal power. The framework developed by this Article makes clear what originalism’s underdetermined methodological framework has hidden from plain sight. The Founding generation rejected the unitary executive and not today’s pluralistic system of congressional discretion.

--Dan Ernst

Chabot on the Lost History of Delegation at the Founding

Christine Kexel Chabot, Loyola University Chicago School of Law, has posted The Lost History of Delegation at the Founding:

The Supreme Court is one decision away from bringing the administrative state to a grinding halt. Justice Gorsuch’s dissent in Gundy v. United States raises grave questions about the constitutionality of countless regulatory statutes in which Congress has delegated significant policymaking authority to the executive branch. Now that Justice Kavanaugh has signaled his general agreement with this approach, Justice Gorsuch’s dissent may soon become the majority. But history does not support Justice Gorsuch’s argument that, as an originalist matter, Congress cannot delegate significant policymaking authority.

This Article demonstrates that our Republic began with a completely different understanding of Congress’s constitutionally prescribed role. Alexander Hamilton, James Madison, and the First Congress all approved of legislation that delegated highly consequential policy decisions to the executive branch. This Article adds previously overlooked but critical historical evidence of constitutional debates leading up to these delegations, as well as the significant policies that the executive branch determined in Congress’s stead. After Alexander Hamilton proposed legislation delegating Congress’s Article I, section 8 power to “borrow Money” and “pay the Debt,” James Madison and other members of the First Congress debated this delegation and concluded that it was constitutional. The First Congress ultimately awarded President Washington and executive officers serving on the Sinking Fund Commission borrowing and payment authority that implicated financial policy decisions of the utmost importance to our national economy. The First Congress also delegated its power under the Intellectual Property Clause when it passed a bare-bones patent act that required executive officers including Thomas Jefferson to establish important substantive and procedural rules of patent law. Hamilton, Madison, and the First Congress never understood the Constitution to require that Congress decide all of the important policy questions, and the Supreme Court will create an unprecedented constitutional requirement if it requires Congress to start doing so now.

See also this.

–Dan Ernst

Kexel Chabot on Originialism and Trump v. United States

Christine Kexel Chabot, Marquette University Law School, has posted Trump v. United States and the Half-Originalist Presidency, which is forthcoming in the University of Michigan Journal of Law Reform:

The Court's recent decision in Trump v. United States has been criticized for its ahistorical approach to presidential immunity. This essay offers the first account of the historical mismatch between the Trump Court's decision to immunize presidential removal power and Founding-era conceptions of the Presidency. Unlike the presumptive immunity that the Court recognized for most other official presidential acts, the immunity afforded for presidential removal power is absolute. The Court ruled that the President's "unrestricted power of removal" can never be regulated by Congress or considered as evidence of wrongdoing, even when the President threatens removal in order to effectuate blatantly unlawful ends. The Court's approach creates a far more powerful Presidency than was ever recognized by the Founding generation. The text of Article II authorized the President "to execute" the law, not to violate it, and it required Presidents to "take care" that the law be faithfully executed. The Court's decision to immunize removal also conflicts with Founding era understandings and laws in which Congress restricted the President's removal power.

--Dan Ernst

Chabot on Senatorial Influence on Supreme Court Appointments

Christine Kexel Chabot, Loyola University Chicago School of Law, has posted A Long View of the Senate's Influence over Supreme Court Appointments.  Here is the abstract:

Supreme Court Justices sometimes disappoint their appointing presidents, and opposing-party Senates are often blamed for presidents' "mistakes." This paper offers the first empirical analysis of the Senate's role over an extended historical period. It measures whether ideologies of Senates to which Justices are nominated predict Justices' voting behavior.

Earlier empirical studies consider only limited numbers of recent nominees. They suggest that the Senate has constrained presidents' choices, and many scholars theorize that the Senate has enhanced its role in the appointments process since the 1950s. This study substantially qualifies earlier understandings of senatorial constraint.

Taken as a whole, historical data show that presidential ideology significantly predicts Justices' votes, while senatorial ideology does not. The Senate's ideology has had significant predictive power over Justices' votes only in two isolated historical periods. It last gained significance in the 1970s and after filibustering Abe Fortas, but then it failed to maintain significant predictive power after the Senate rejected Robert Bork in 1987.

Kexel Chabot on the President's Approval Power and the Unitary Executive

Earlier today we noted the upcoming symposium on the Unitary Executive at Fordham Law
Christine Kexel Chabot, Loyola University Chicago School of Law, has posted her contribution to it, The President's Approval Power, which is forthcoming in the Fordham Law Review:

This Article introduces the President’s approval power as it was originally understood in the United States. Leading proponents of a unitary executive President have asserted that her absolute power to control subordinate officers includes power to veto or approve subordinates’ discretionary actions before they take effect. This Article reconsiders approval’s purportedly unitary function and presents previously overlooked evidence of the originalist foundations of a presidential approval power. My comprehensive analysis of every public act passed by the First Federal Congress shows that the Founding generation never understood Article II to grant the President general authority to approve subordinates’ decisions. Approval was instead a permissive power that the First Congress withheld in a vast majority of statutes and granted in only a handful of laws. Even when statutes granted the President or superior officers an approval power, moreover, they did not gain unitary control. Approval afforded only ex post review without power to force non-removable subordinates to initiate regulatory action implementing superiors’ preferred policies.

This Article also draws on historical practice to situate approval power within the broader unitary executive debate. At the Founding, approval offered a partial measure of accountability that Congress could incorporate when allocating decisionmaking power within the executive branch. Approval sometimes checked spending and contracting decisions that would be difficult to undo by removing an officer. In other instances approval governed executive adjudications conducted by officials who operated outside formal levers of control established by appointments and removal. The latter category of approval powers provides originalist evidence of an important alternative to formal requirements of plenary removal power. Unitary scholars following Justice Scalia’s Morrison dissent may likewise agree that it is proper for Congress to require approval as an alternative form of supervision for tenure-protected inferior officers and officials farther down the chain of command. 

--Dan Ernst

Kexel Chabot on "Interring the Unitary Executive"

Christine Kexel Chabot, Loyola University Chicago School of Law, has posted Interring the Unitary Executive:

This Article addresses a constitutional debate that began in 1789 and rages on yet today. While the U.S. Constitution unequivocally establishes a single President, it leaves open many questions about the officers who will necessarily assist the President in executing the law. Leading originalist scholars contend that Article II’s provisions vesting “the executive Power” in a single President and requiring her to “take Care that the Laws be faithfully executed” dictate a particular governmental structure: a “unitary executive” President with absolute power to remove (and thus control) all officers in the executive branch. An express presidential removal power appears nowhere in the text of the Constitution, and originalist proponents of a unitary executive have placed heavy emphasis on history. They claim that the Founding era never included independent regulatory structures designed to insulate executive officers from presidential removal and control. This Article refutes such claims and introduces a comprehensive historical record that earlier scholars have largely missed. My work establishes that independent structures were not only present at the Founding, but that they pervaded regulatory statutes passed into law by the First Federal Congress and President George Washington.

Unitary scholars’ failure to recognize the independent structure of the Sinking Fund Commission — a Founding-era agency proposed by Alexander Hamilton and passed into law by President Washington and the First Congress — is just the tip of the iceberg. Unitarians have also missed dozens of early statutory provisions that repeat non-unitary aspects of the Sinking Fund Commission’s structure and require independent actors to autonomously reinforce the President’s duty to take care that the laws be faithfully executed. By scouring every public act passed by the First Congress, my research brings to light independent regulatory structures that pervaded the Founding era. The First Congress repeatedly dispersed executive decisions amongst multiple officers who checked one another as well as the President. This body also repeatedly delegated control over executive officers as well as significant executive power to independent judges and lay persons whom the President could not remove. All of these laws belie the conventional originalist view that the Constitution vests “exclusive control over the exercise” of “executive power” in the President of the United States. Independent regulatory structures have been with us since the beginning, and originalism provides no occasion for the Court to declare them unconstitutional now.

–Dan Ernst

Chabot on the Constitution and the Sinking Fund Commission

Christine Kexel Chabot, Loyola University Chicago School of Law, has posted Is the Federal Reserve Constitutional? An Originalist Argument for Independent Agencies:

The President’s inability to control the Federal Reserve’s monetary policy decisions raises significant constitutional concerns. The Federal Reserve’s Federal Open Market Committee executes critical statutory mandates when it buys or sells U.S. securities in order to expand or contract the money supply, and yet the Committee’s twelve voting members check one another instead of answering directly to the President. The President cannot remove Committee members who refuse to carry out his monetary policy directives. Seven of the Committee’s twelve voting members are Federal Reserve governors who enjoy for-cause protections from removal by the President. Congress delegated power to supervise and remove the remaining five voting members, who are presidents of regional Federal Reserve banks, to the governors rather than the President. Further, the President has no say in the appointment of regional bank presidents to the Committee. While the Committee’s independence and appointments process would likely pass muster under current precedent, a growing chorus of originalists have argued that the Constitution requires greater executive control and a more expansive application of Article II’s Appointments Clause requirements.

This paper demonstrates that existing originalist accounts are incomplete. They do not account for the structural independence of an obscure agency known as the Sinking Fund Commission. This Commission was proposed by Alexander Hamilton, passed into law by the First Congress, and signed into law by President George Washington. One would expect all of these actors to have a clear grasp on the original public meaning of the Constitution, as well as a strong dedication to the structural commitments established therein. Their decisions to form a Sinking Fund Commission with multiple members to check one another — and to include the Vice President and Chief Justice as Commissioners who cannot be replaced or removed by the President — belie the notion that an independent agency structure violates the newly minted Constitution. The Sinking Fund Commission directed open market purchases of U.S. securities pursuant to a statutory mandate. It provides a direct historical analogue to the Federal Open Market Committee’s independent purchases of U.S. securities pursuant to a statutory mandate. This analysis shows that the structure of the Open Market Committee is not a novel invention of the twentieth century. Rather, the independence stemming from the Committee’s multi-headed structure and protections from removal has an impeccable originalist provenance which dates all the way back to Alexander Hamilton and First Congress.

--Dan Ernst

Sunday Roundup

• The Dallas Bar Association will sponsor. with the J.L. Turner Legal Association, a conversation with Jose F. Anderson, University of Baltimore School of Law, on his book Genius for Justice: Charles Hamilton Houston and the Reform of American Law on Thursday, May 30, 2024, 12:00 PM to 1:00 PM, at Dallas’s Arts District Mansion.  Professor Anderson will highlight “cases litigated from Texas that were part of Houston's strategy to define the responsibility and privileges of citizenship under constitutional government.”  CLE credit is available.
  

• 
  Cameron Sauers, a doctoral candidate at Pennsylvania State University, reviews Giuliana Perrone's Nothing More Than Freedom: The Failure of Abolition in American Law (2023) in The Docket.
  

• Christine Kexel Chabot, Marquette Law, has posted Saving the Consumer Financial Protection Bureau (and the Constitution) from the Courts, a critique of the Supreme Court's use of history in Consumer Financial Protection Bureau v. Community Financial Services Association.  The Brennan Center also weighs in.
  

• We've previously noted the passing of Stephen J. Pollak.  Here are Attorney General Merrick Garland's remarks at a memorial event for Mr. Pollak.

--Dan Ernst

Weekend Roundup

• 

  David S. Tanenhaus (UNLV)
  

  Heartfelt congratulations to David S. Tanenhaus on his receipt of the American Society for Legal History's Craig Joyce Medal, awarded to recognized extraordinary and sustained service to ASLH (UNLV Boyd School of Law).
  

• In Time Magazine's Made By History series: Ajay Mehrotra on The Tariff History Donald Trump Is Overlooking.
  

• Garrett Epps reviews Stuart Banner's The Most Powerful Court in the World, "a fresh and readable one-volume history of the Court [that] explains how we got from Marbury to Dobbs" (Washington Monthly).

• On Saturday, November 9, from 12:30pm to 1:30pm, Alison L. LaCroix will discuss The Interbellum Constitution as part of the Chicago Humanities Festival, at the Reva and David Logan Center for the Arts, 915 E 60th St, Chicago, IL 60637.  The event is open to the public.

• The Smithsonian American Women’s History Museum has launched We Do Declare: Women’s Voices on Independence, a "multi-year oral history and education project" commencing with the fiftieth anniversary of the Equal Credit Opportunity Act.

• On Monday, November 4, at Noon ET at the National Constitution Center, Keith Richotte, Jr., and Matthew L.M. Fletcher (University of Michigan) will discuss "Native American history and law through the stories of landmark Supreme Court cases."

• Christine Kexel Chabot, Marquette University Law School, is again making available the syllabus for her course Litigating the Lessons of History, in response to the revived debate making legal history part of the law-school curriculum.
  

• From In Custodia Legis (the blog of the Law Librarians of Congress): "Witchcraft and a Haunted Case of Torture in Joost de Damhouder’s Praxis Rerum Criminalium (1555)"; How a House Becomes Legally Haunted: Stambovsky v. Ackley, The “Ghostbuster” Ruling."

• Literary Hub's Ten Best Books on Reproductive Rights includes ones by Michele Goodwin, Leslie Reagan, and Mary Ziegler.  
  

• A notice of Molly Brady's  Brandeis Chair lecture at HLS, much of which she devoted to the legal history of single-family dwellings in the United States (Harvard Law Today).
  

• The University of Helsinki Faculty of Law "invites applications for a fixed term employment as a doctoral researcher or a postdoctoral researcher" with the project Comparing Early Modern Colonial Laws, led by Academy Professor Heikki Pihlajamäki.   More.

• 
  
  New online in Law & History Review: Weber in Jerusalem: The Rabbinical Debate over the Establishment of the Rabbinical Court of Appeals, 1918–1921, by Chagai Schlesinger.
  

• The Stanford Law School has announced its latest round of Sallyanne Payton Fellows.  I mentioned this here not simply because two legal historians, Greg Ablavsky and Bernadette Meyler, are their mentors, but because I gained lasting insights into the mindset of the first, postwar generation of Washington lawyers when then-Professor Payton shared her recollections of Charles Horsky when I presented at Michigan Law, some years ago.  DRE
  

• ICYMI:  Kristina M. Lee, University of South Dakota, on "What the history of blasphemy laws in the US and the fight for religious freedom can teach us today" (Akron Legal News).
  

Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Weekend Roundup

• Legal historian Tomiko Brown-Nagin has been appointed dean of the Stanford Graduate School of Education. Stanford's notice is here.
   
• Over at JOTWELL: Bethany Berger (Iowa College of Law) spotlights Lila Teeters Knolle's Indians Now Taxed: Citizenship and Taxation in Settler-Colonial South Dakota, 44 J. Am. Ethnic History 44 (2025); Lisa Owens (UMass Dartmouth) flags K-Sue Park's Property and Sovereignty in America: A History of Title Registries & Jurisdictional Power, 133 Yale L.J. 1487 (2024). 

• From In Custodia Legis: "Murder, He Signed? The Unexpected Death of A Declaration of Independence Signer." 

• We have previously posted about Christina Kexel Chabot's "The Interstitial Executive: A View from the Founding," forthcoming in the BYU Law Review. She has now posted an updated version, which includes historical evidence that bears directly on the Supreme Court's recent decision in Trump v. Slaughter. 

• Nursing Clio is spotlighting undergraduate writing this summer. Here's a post on "Registration of Maternity Homes Act, 1934: Institutional inadequacy and indifference in Irish maternity homes," by Whitney Cowan (St. Olaf College). 

Weekend Roundup is a weekly feature compiled by all the Legal History bloggers. 

Weekend Roundup

• "On the 250th anniversary of America’s independence, Harvard Law historian and legal scholar Bruce H. Mann argues that colonists were fighting to uphold English common law rights and traditions" (Harvard Law Bulletin). 

• The Penn Carey Law School welcomes Christian Burset to its faculty. 

• An appreciation of the late John R Wunder (AHA Perspectives) .

• After appearing in "The Last Minute" segment of CBS's "60 Minutes," Jill Lepore wins the Pulitzer Prize in History for We the People: A History of the U.S. Constitution. The National Review is not wholly persuaded.  

• A notice of Stanford’s “America at 250,” one-unit course, cross-listed in the History and American Studies departments and the Law School.  It is “an exploration of where America has been, and based on that, where it might be going or might need to go,” according to Jonathan Gienepp, who is one of its instructors, with Pamela Karlan (Stanford Daily).

• A Q&A with Len Niehoff about his new book, Meeting Shakespeare at the Bar: Reading the Bard Through the Lens of the Law (American Bar Association, 2026) (Michigan Law). 

• On Thursday, May 7, Christine Chabot, Jane Manners and Lev Menand presented papers on removal, with a comment Nick Parrillo, in one of the Academic Paper Workshops at the Spring conference of the Administrative Law and Regulatory Practice Section of the American Bar Association."  

• "Alex Votta recently received Michigan Law’s Dimond Prize for his paper “The Great Rampart in Protecting Human Liberty: The Right to Education in Antebellum and Reconstruction Black Constitutional Consciousness.”  He credits Sam Erman, Rebecca Scott et al. (Michigan Law).

• The subsequent lives of the subjects of Dorothea Lange's Depression-era photographs (National Gallery of Art).  

• From the New York Times: "A Look Inside the Case That Enshrined Political Power for Billionaires" (Buckley v. Valeo).  

Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Weekend Roundup

• 
  Salutations to the participants in the J. Willard Hurst Summer Institute in Legal History of the American Society for Legal History, which continues into next week at the University of Wisconsin-Madison under the direction of chairs John Fabian Witt and Michelle McKinley!  For some other reasons to join the ASLH, consider its Early Career (Virtual) Legal History Workshop, its Early Career Global Legal History Research Fellowships, and its just-announced Themed (Virtual) Legal History Workshops.

• Over at the LPE Blog, the symposium on Sandeep Vaheesan’s Democracy in Power: A History of Electrification in the United States continues. The most recent post, by William Boyd, is here.  

• The Minnesota Supreme Court Historical Society is hosting a one-hour CLE panel, A Dive Into Unitary Executive Theory: Presidential Powers and Limitations, on June 24 from 3-4 CDT in person at the Minnesota Judicial Center.  The panelists are Christine Chabot, Marquette University Law School; Heidi Kitrosser, Northwestern University Pritzker School of Law; and Nick Bednar, University of Minnesota Law School. 

• We hear there might still be spaces at next months Rare Book School, devoted to Medieval Manuscript Fragments: Cataloging & Discoverability, with Lisa Fagin Davis.

• From Time's "Made by History": Tom Hanchett on "The History of the Low-Income Housing Tax Credit—And How it Could Improve Trump’s ‘Big Beautiful Bill.’"  

• Via ESCH and H-Law, we have a CFP for the junior colloquium Invisible Actors in the Making of International Law (1750-2000) at Sciences Po/Center for History in Paris on November 27-28, 2025. 

• UC Irvine School of Humanities on its alumna, Stanford Law's Bernadette Meyler 

• Modern Criminal Law Review had a symposium on Chloë Kennedy’s Inducing Intimacy: Deception, Consent and the Law (Cambridge University Press, 2024).  A podcast version is here.

• ICYMI:  How Much Money Do Historians Make From Their Writing? (Contingent Magazine).  Kate Hampton on a Montana antidiscrimination case from 1881 (Daily Montana).  Manisha Sinha on Lincoln and the abolitionists (Unpopulist). John Yoo on Putting the Executive in "Unitary Executive" (Law & Liberty).  St. Louis's Old Courthouse (Ladue News).

 Weekend Roundup is a weekly feature compiled by all the Legal History bloggers. 

Weekend Roundup

• On November 25, 2025, Susanne Brand delivered the annual lecture of the Centre for English Legal History at the University of Cambridge. Her topic was "Outlawry and its Consequences in Later Medieval English Law and Practice."  View it here. 

• Trump v. Slaughter Roundup: Christine Kexel Chabot (Notice & Comment).  “What do you do when the Supreme Court says its decisions are supported by history, but history doesn’t support the Supreme Court?” asks Craig Green, in an article quoting a number of other legal historians (Bloomberg Law).  The Yale Law bench memo (Just Security). Jed Shugerman and Gary Lawson reply to Richard Re (Divided Argument).  And a blog version of “Quasi-Judicial”: A History and Tradition, a paper that Beau J. Baumann and Jed H. Shugerman posted on SSRN yesterday (Notice & Comment).

• National Guard Deployment Roundup: Bernadette Meyler (SLS Blog).  What about the Whiskey Rebellion? (Lawfare).

• Vanderbilt Law's notice of Sara Mayeux's appointment to its Mildred Prescott Miller Chair. 

• Fordham Law's notice of Jamie Grischkan, a legal scholar and historian of financial regulation and antimonopoly law and policy. 

• Carl Landauer reviews Lauren Benton's  They Called It Peace: Worlds of Imperial Violence (2024) in the European Journal of International Law.  

• The American Historical Association will host a congressional briefing on the history of federal funding of science on Thursday, December 11, at 9:00 a.m. ET in Rayburn House Office Building Room 2075. 

• A recording of the National Constitution Center's "town hall" on amending the U.S. Constitution may be viewed here.   And tune in Monday at noon for another town hall, in which John Q. Barrett, joins Gerard Magliocca, and G. Edward White to discuss Robert H. Jackson's "influential concurrence in Youngstown Sheet & Tube Co. v. Sawyer, his approach to constitutional interpretation, and the lasting legacy he left on debates over presidential power." 

• A briefing on Bush v. Gore and the State of U.S. Elections sponsored by the Brennan Center for Justice on Tuesday, December 9 from 2–3 p.m. ET.

• John Lennon's lawyer recalls Lennon's and Ono's deportation case (ABA Modern Law Library). 

• The University of Nebraska-Lincoln's notice of the receipt by its "Petitioning Freedom" project of the Mary Dudziak Prize in Digital History from the American Society for Legal History. 

• ICYMI: The history of the University of Memphis School of Law. Tracing the roots of modern international refugee law (SCC Times).  The South Carolina Supreme Court Historical Society (Columbia Metropolitan). 

• Update: "Feds Grant Nearly $1 Million to Develop Second Amendment History Curriculum" (Reload).

 Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Weekend Roundup

• Stephen Klugewicz and Lenore Ealy have posted History on Proper Principles: The Legacy of Forrest McDonald (The Imaginative Conservative). 
  

• Stanford Law School's profile of Jud Campbell, who recently joined its faculty (Stanford Lawyer).
  

• Christine Chabot, Marquette University Law School, has posted the syllabus for her very interesting course, Litigating the Lessons of History. 
  

• Over at the LPE Blog, this post on local procurement includes some interesting legal history. Scott Cummings (UCLA Law) and Madeline Janis (Jobs to Move America) discuss "a little-known federal rule requiring that all contracts using federal grant funds be awarded through a 'competitive bidding' process." This process, they argue, "privileges low price over all other criteria—effectively preempting local governments from using their procurement authority to sponsor public works projects meeting pressing social needs."

• Over at Lawfare, Michael Ramsey and  Matthew Waxman have a post on the history of constitutional debates and practice of delegating Congressional war power to the President.

• "The Irish Legal History Society has invited under-graduate and post-graduate students to submit entries for this year’s student-essay competition by 31 May 2024"  (Law Society Gazette). 
  

• UC Law San Francisco offers its students a certificate in research into California's Legislative History. 

• "The Cokie Roberts Research Fund for Women’s History will support one to three annual fellowships [in support of] research to elevate women’s history using the records held by the National Archives." More.

• Archivist of the United States Colleen Shogan to discuss "The Politics of History and Records" at Yale University's Institution for Social and Policy Studies, Wednesday, January 31, 2;00 to 3:30 EST.  Register here. 

• This Week in Section 3: Should President Trump Be Allowed on the 2024 Ballot?–a National Constitution Center podcast with Josh Blackman and Gerard Magliocca, moderated by Jeffrey Rosen.  Mark Graber disputes the significance of the latest discovery of Josh Blackman and Seth Barrett Tillman related to whether the President is an Office of the United States for purposes of Section 3 of the fourteenth Amendment (Balkinization).

• ICYMI: The failed attempt to rename Brown v. Board of Education (Law&Crime).
  

Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Unitary Executive: History and Practice

[We have word of the following symposium.  DRE]

Unitary Executive: History and Practice, Friday, February 17, 2023, Fordham Law School, Costantino Room, 150 West 62nd Street, Second Floor, New York, NY

Live Broadcast via Zoom Webinar.  Register here.

The symposium will feature panels discussing one of “the oldest and most venerable debates” in administrative and constitutional law: whether the President of the United States is a “unitary executive” with unrestricted power to remove and control the actions of executive officers who run administrative agencies, and with insulation of executive power from the oversight or conditions set by Congress and the judiciary.

10:00 - 10:30 a.m. | Check-In and Breakfast

10:30 - 10:40 a.m. | Welcome and Introduction

10:40 a.m. - 12:10 p.m. | Panel 1: The Founding Era (1.5 CLE credits)
Michael McConnell, Stanford School of Law
Jim Pfander, Northwestern Pritzker School of Law
Christine Chabot, Loyola Chicago School of Law
Gary Lawson, Boston University School of Law
Saul Cornell, Fordham University School of Law
Jane Manners, Temple University Beasley School of Law
Andrew Kent, Fordham University School of Law

12:10 - 1:00 p.m. | Lunch

1:00 - 2:30 p.m. | Panel 2: Article II & Executive Practice (1.5 CLE credits)
Anya Bernstein, University at Buffalo School of Law
Cristina Rodriguez, Yale Law School
Peter Shane, Ohio State University School of Law
Barry Sullivan, Loyola-Chicago School of Law
Andrea Katz, Washington University School of Law
Nicole Hemmer, Vanderbilt University
Ethan Leib, Fordham University School of Law

2:30 - 2:45 p.m. | Break

2:45 - 4:15 p.m. | Panel 3: Article III and Adjudication (1.5 CLE credits)
Harold Krent, Chicago-Kent College of Law
Bijal Shah, Boston College School of Law
John Golden, University of Texas at Austin School of Law
Tom Lee, Fordham University School of Law
Abner Greene, Fordham University School of Law
Jennifer Mascott, Antonin Scalia Law School
Noah Rosenblum, New York University School of Law

4:15 - 4:30 p.m. | Concluding Remarks

4:30 - 6:00 p.m. | Reception

Notre Dame Graduate Legal History Colloquium

[We have the schedule for the first meeting this academic year of the Notre Dame Graduate Legal History Colloquium on September 26, 2026, 10 AM - 3 PM (CST) at the Notre Dame Law School at Chicago.  You may register for the event here.  DRE]

09:45 - 10:05 AM.  Registration/Welcome
Coffee & Morning Refreshments

10:05 - 11:00 AM.  Paper #1: Originalism and the New Deal    

"Refounding the New Deal"
Author: Keshav Raghavan, Harvard Law School
Respondent: Joanna Grisinger, Associate Professor of Instruction in Legal Studies, Northwestern University

11:05 - 12:00 PM.  Paper #2: Emergency Powers: From Exception to Expectation

"The Court of History: Executive Power and the Patient Constitution"
Author: Christian Ketter, University of Illinois at Chicago
Respondent: Beau Baumann, Associate Professor, University of Utah, S. J. Quinney College of Law

12:05 - 1:00 PM.  Afternoon Break (Lunch)

01:05 - 2:00 PM.  Paper #3: The Imperial Executive

"Empire and the Making of the Managerial Presidency"
Author: Elliott Setzer, Yale University 
Respondent: Christine Chabot, Associate Professor of Law, Marquette University Law School

02:05 - 3:00 PM,  Paper #4: The Executive and Judiciary in Perspective

"The Protective Power: Judicial Self-Defense and the Origins of a Presidential Prerogative" 
Author: Tim Vanable, Columbia University
Respondent: Harold J. Krent, Professor of Law & Interim Dean, Chicago-Kent College of Law