Amicus Curiae Brief — Securities and Exchange Commission, Petitioner v. George R. Jarkesy, Jr., et al.
Supreme Court briefSep 5, 2023
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No. 22-859
In the
Supreme Court of the United States
SECURITIES AND EXCHANGE COMMISSION,
Petitioner,
v.
GEORGE R. JARKESY, ET AL.,
Respondents.
On Writ of Certiorari to the United States
Court of Appeals for the Fifth Circuit
BRIEF OF AMICIUS CURIAE
PROFESSOR JED H. SHUGERMAN
IN SUPPORT OF PETITIONER
JEFFREY B. DUBNER
Counsel of Record
Democracy Forward Foundation
P.O. Box 34553
Washington, DC 20043
(202) 448-9090
jdubner@democracyforward.org
Counsel for Amicus Curiae
i
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ……………………………….iv
INTERESTS OF AMICUS CURIAE ……………………...1
SUMMARY OF ARGUMENT ……………………………...2
I.
Why Article II “Executive Power” Did Not Include
Removal: The Law of Freehold Offices vs.
“Despotic” Displacement. ………………………...…4
II.
Recent Scholarship Shows That Article II Did Not
Imply a General Presidential Removal Power. ….9
A. Neither Federalists or Anti-Federalists
believed that Article II’s Vesting and Take
Care clauses implied a presidential removal
power. ………………………………………………9
B. The Take Care and Executive Vesting clauses
did not signify indefeasible removal powers...11
C. The First Congress made no “Decision of 1789”
in favor of Article II presidential removal….12
D. Offices granted for a limited term of years
without a specific removal provision were
unremovable…………………………………….15
ii
E. Other early statutes reflect a congressional
power to limit presidential removal and assign
significant executive power to unremovable
officers. ………………………….……………….15
III. Recent Responses From Unitary Executive Theorists
Confirm the Weakness of the Originalist Case ........ 16
A. Professor McConnell’s prerogativist
interpretation of Article II would mean, at
most, a defeasible removal power, and his
anti-royalist republican theory of Article II
would reject the approaches of other unitary
theorists ........................................................... 17
1. McConnell’s method would hold that
Article II does not imply removal,
because removal was not a royal
prerogative ........................................ 17
B. “The Executive Power of Removal” is strong
evidence that Article II “executive power” did
not include removal......................................... 20
C. Wurman’s Amicus Brief takes historical
records out of context ...................................... 27
1. Removal follows appointment, but only
if the office is removable .................... 27
2. Wurman took Giles Jacob out of
context in several crucial ways ......... 29
iii
3. Wurman’s reliance on English history
to extend a presidential removal power
over “principal officers” is quixotic,
because the category of “principal
officers” is a recent American
neologism. .......................................... 30
CONCLUSION ................................................................ 30
iv
TABLE OF AUTHORITIES
CASES
PAGES
Free Enter. Fund v. Pub. Co. Acct. Oversight Bd.,
561 U.S. 447 (2010) .............................. 2, 10, 12, 15
Marbury v. Madison,
5 U.S. (Cranch) 137 (1803) .......................... 8, 26-27
N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen,
142 S. Ct. 2111 (2020) ................................... 11, 22
Seila Law v. CFPB,
140 S. Ct. 2183 (2020) .................. 2, 4, 9-10, 12, 15
CONSTITUTIONAL PROVISIONS
U.S. Const. art. I .......................................................... 8
U.S. Const. art. II .................................................. 8, 28
OTHER AUTHORITIES
1 Edmund Burke, The Works of Edmund Burke
(1847) ...................................................................... 8
1 Office-Holders in Modern Britain: Volume 1,
Treasury Officials 1660-1870 (J.C. Sainty ed.,
Univ. London 1972) ................................................ 7
1 William Blackstone, Commentaries on the Laws of
England 335 (3d ed. 1884) (1765) .......................... 8
v
1 William S. Holdsworth, A History of English Law
247 (3d ed. 1922)..................................................... 6
3 Edmund Burke, The Writings and Speeches of
Edmund Burke Volume III: Party, Parliament,
and the American War: 1774-1780 (Warren M.
Elofson, John A. Woods, and William B. Todd eds.,
1996)........................................................................ 8
10 William S. Holdsworth, A History of English Law
499-506 (1938) ..................................................... 6-7
Adam Liptak, ‘Lonely Scholar with Unusual Ideas’
Defends Trump, Igniting Legal Storm, N.Y. Times
(Sept. 25, 2017),
https://www.nytimes.com/2017/09/25/us/politics/tr
ump-emoluments-clause-alexander-hamilton.html
................................................................................. 3
Adrian Vermeule, Common Good Constitutionalism
(2022) .................................................................... 31
Aditya Bamzai & Saikrishna B. Prakash, The
Executive Power of Removal, 136 Harv. L. Rev.
1756
(2023) ............................................. 15, 17, 20-25, 28
Andrea Scoceria Katz and Noah Rosenblum, Removal
Rehashed, 136 Harv. L. Rev. Forum 404
(2023) .................................................. 18, 20, 22, 24
vi
Andrew Kent, Ethan J. Leib & Jed H. Shugerman,
Faithful Execution and Article II, 132 Harv. L.
Rev. 2111 (2019) ........................................... 1, 5, 11
Christine Kexel Chabot, Interring the Unitary
Executive, 98 Notre Dame L. Rev. 129 (2022) ..... 16
Christine Kexel Chabot, Is the Federal Reserve
Constitutional? An Originalist Argument for
Independent Agencies, 96 Notre Dame L. Rev. 1
(2020) .................................................................... 16
Daniel D. Birk Interrogating the Historical Basis for a
Unitary Executive, 73 Stan. L. Rev. 175 (2021) .... 5
David Lundberg & Henry F. May, The Enlightened
Reader in America, 28 Am. Q. 262 (1976) ........... 29
Documentary History of the First Federal Congress,
1789-1791 832-33 (Charlene Bangs Bickford et al.
eds, 2004) .................................................. 10, 14, 23
Douglas W. Allen, Compatible Incentives and the
Purchase of Military Commissions, 27 J. Legal
Studies 45–66 (1998) .............................................. 5
Douglas W. Allen, The Institutional Revolution
(2012) .................................................................. 5, 8
Edward Corwin, The President’s Removal Power
Under the Constitution (1927) ............................. 29
vii
Ethan J. Leib & Andrew Kent, Fiduciary Law and
the Law of Public Office, 62 Wm. & Mary L. Rev.
1297 (2021) ............................................................. 5
Forrest McDonald, Alexander Hamilton (1982) ....... 10
G.E. Aylmer, The King’s Servants: The Civil Service
of Charles I, 1625-1642 (1961) ............................... 6
Ilan Wurman, In Search of Prerogative, 70 Duke L. J.
93 (2021) ................................................................. 5
Jack Rakove, Taking the Prerogative out of the
Presidency: An Originalist Perspective, 37
Presidential Stud. Q. 85 (2007)............................ 18
James Pfander, The Chief Justice, the Appointment of
Inferior Officers, and the ‘Court of Law’
Requirement, 107 Nw. L. Rev. 1125 (2015) ........... 5
Jane Manners & Lev Menand, The Three
Permissions: Presidential Removal and the
Statutory Limits of Agency Independence, 121
Colum. L. Rev. 5
(2021) .................... 10, 15, 28
Jed H. Shugerman, Freehold Offices vs. ‘Despotic
Displacement’: Why Article II ‘Executive Power’
Did Not Include Removal (posted July 27,
2023).......................... 1, 7-9, 15-16, 18, 21-23, 26-29
Jed H. Shugerman, Movement on Removal: An
Emerging Consensus on Unitary Theory and the
First Congress (2023)........................................ 1, 18
viii
Jed H. Shugerman, Presidential Removal: The
Marbury Problem and the Madison Solutions, 89
Fordham L. Rev. 2085 (2021) .......................... 1, 15
Jed H. Shugerman, Removal of Context: Blackstone,
Limited Monarchy, and the Limits of Unitary
Originalism, 33 Yale J. L. & Humanities 125
(2022) ............................................................ 1, 8, 18
Jed H. Shugerman, The Indecisions of 1789:
Inconstant Originalism and Strategic Ambiguity,
171 U. Penn. L. Rev. 753
(2023) ..................... 1, 8, 10-14, 19, 21, 24-25, 27-28
Jed Handelsman Shugerman, The Indecisions of
1789: Appendices on the Misuse of Historical
Sources in Unitary Executive Theory (Feb. 27,
2023) (unpublished manuscript) .............. 21, 24, 28
Jed H. Shugerman, Vesting, 74 Stan. L. Rev. 1479
(2022) ................................................................ 1, 12
Jeremy D. Bailey, The Traditional View of Hamilton’s
Federalist No. 77 and an Unexpected Challenge: A
Response to Seth Barrett Tillman, 33 Harv. J.L. &
Pub. Pol’y 169 (2010) ............................................ 10
Jeremy Bentham, On the Sale of Offices, The
Rationale of Reward (1825) .................................... 8
John Brewer, The Sinews of Power: War, Money, and
the English State, 1688-1783 (1989) ...................... 7
ix
Jonathan Gienapp, Removal and the Changing
Debate over Executive Power at the Founding, 63
Am. J. L. Hist. (forthcoming 2023) ........................ 9
Jonathan Gienapp, The Second Creation: Fixing the
American Constitution in the Founding Era
(2018) .............................................................. 10, 12
Julian Davis Mortenson, Article II Vests Executive
Power, Not the Royal Prerogative, 119 Colum. L.
Rev. 1169 (2019) ................................................... 29
Julian Davis Mortenson, A Theory of Republican
Prerogative, 88 So. Cal. L. Rev. 45 (2014) ................. 18
K. W. Swart, Sale of Offices in the 17th Century
(1949) ............................................................................ 6
Matthew Steilen, How to Think Constitutionally About
Prerogative: A Study of Early American Usage, 66
Buff. L. Rev. 557 (2018) ............................................. 18
Michael W. McConnell, The President Who Would Not Be
King (2020) ............................................................ 17-19
Michael Ramsey, Jed Shugerman Apologizes to Tillman
and Blackman, Originalism Blog (Sept. 25, 2017) ..... 3
Montesquieu, The Spirit of the Laws (Thomas Nugent
trans., Batoche Books 2001) (1748)............................. 6
Nicholas Parrillo, Against the Profit Motive: The Salary
Revolution in American Government, 1780-1940
(2013) ........................................................................ 5, 8
x
Seth Barrett Tillman, The Puzzle of Hamilton’s
Federalist No. 77, 33 Harv. J.L. & Pub. Pol’y 149
(2010) .......................................................................... 10
Steven G. Calabresi & Gary Lawson, Why Robert
Mueller’s Appointment as Special Counsel Was
Unlawful, 95 Notre Dame Law Review 87 (2019) .... 30
The Congressional Register (June 22, 1789), reprinted in
Documentary History of the First Federal Congress,
1789-1791 (Charlene Bangs Bickford et al. eds.,
2004) ........................................................................... 13
The Daily Advertiser (June 20, 1789), reprinted in
Documentary History of the First Federal Congress,
1789-1791 (Charlene Bangs Bickford et al. eds.,
2004) ........................................................................... 23
William Crosskey, The Reasons for the Enumeration of
Congressional Powers: The Influence of the Royal
Prerogative, 1 Politics and the Constitution in the
History of the United States 409 (1953) ................... 17
1
INTERESTS OF AMICUS CURIAE1
Amicus Curiae Jed Shugerman is a Professor of
Law at Boston University. He has a JD and a History
PhD. He subscribes to the interpretation of the
Constitution based on original public meaning (i.e.,
originalism) but has found many errors and
misunderstandings in originalism-in-practice in the
unitary executive theory. This brief offers new
evidence about the original public meaning of Article
II and critiques new claims by unitary theorists. His
findings and analysis are contained in recent academic
articles2 and are part of a forthcoming book, A Faithful
President: The Founders vs. the Originalists.
1 No counsel for a party authored this brief in whole or in part,
and no person other than amicus and their counsel made a
monetary contribution intended to fund the preparation or
submission of this brief.
2 Jed. H. Shugerman, Freehold Offices vs. ‘Despotic Displacement’:
Why Article II ‘Executive Power’ Did Not Include Removal (posted
July
29,
2023)
[hereafter
Freehold
Offices],
https://ssrn.com/abstract=4521119;
Jed
H.
Shugerman,
Movement on Removal: An Emerging Consensus on Unitary
Theory and the First Congress (forthcoming 2023) [hereafter
Movement
on
Removal],
https://papers.ssrn.com/sol3/
papers.cfm?abstract_id=4513324; Jed H. Shugerman, The
Indecisions of 1789: Inconstant Originalism and Strategic
Ambiguity, 171 U. Penn. L. Rev. 753 (2023) [hereafter
Indecisions]; Jed H. Shugerman, Vesting, 74 Stanford L. Rev.
1479 (2022); Jed H. Shugerman, Removal of Context: Blackstone,
Limited Monarchy, and the Limits of Unitary Originalism, 33
Yale J. L. & Humanities 125 (2022) [hereafter Removal of
Context]; Jed H. Shugerman, Presidential Removal: The Marbury
Problem and the Madison Solutions, 89 Fordham L. Rev. 2085
(2021) [hereafter Presidential Removal]; Andrew Kent, Ethan J.
Leib, & Jed H. Shugerman, Faithful Execution and Article II, 132
Harvard L. Rev. 2111 (2019) [hereafter Faithful Execution].
2
SUMMARY OF ARGUMENT
In holding that the SEC’s administrative law
judges’
protections
against
removal
were
unconstitutional, the Fifth Circuit extended Free
Enterprise Fund v. PCAOB, 561 U.S. 447 (2010), and
Seila Law LLC v. CFPB, 140 S. Ct. 2183 (2020). Those
precedents were based on an incomplete historical
record. Subsequent historical research shows that the
Founding generation never understood Article II to
grant the President an indefeasible removal power.
To be sure, this evidence does not suggest Congress
should have unlimited power to protect any executive
office or delegate removal to itself. Rather, the bottom
line is that the evidence of original public meaning is
so unclear and mixed that this Court has no sufficient
originalist
basis
to
overturn
long-standing
congressional statutes. While the SEC’s arguments
are sufficient to reverse the Fifth Circuit’s ruling
without reconsidering this Court’s prior precedents on
removal, it should consider doing so in light of the
historical evidence.
First, this brief presents new research showing
that the Executive Vesting Clause did not imply a
removal power, because “executive power” did not
imply removal in the eighteenth century. The English
common law protected many offices as freehold
property rights, meaning that the officers could not be
removed without legal process and except in cases of
misconduct. Many powerful British executive offices,
especially in the Treasury and even in the royal
cabinet, were unremovable in the eighteenth century.
English and colonial administration was a hybrid of
removable patronage offices and unremovable freehold
offices. These protections have not been examined in
3
the Court’s previous opinions about removal. This
background explains why no English sources described
removal as a royal prerogative, and why it has been so
hard for unitary theorists to find any English or
Ratification-era sources discussing removal as an
“executive power.” It also explains why Montesquieu’s
The Spirit of the Laws rejected removal at pleasure as
“despotic,” and why Chief Justice Marshall concluded
that William Marbury’s office was his unremovable
property.
Second, this brief summarizes other new research
on Article II, the law of offices, the Ratification
Debates, and the First Congress, further undercutting
the assumptions about presidential removal.
Third, at the broadest level, this case is a test for
whether originalism is a reliable method in practice.
Leading unitary executive scholars have tried to
reconstruct their removal theories in response to this
new evidence, but their theories contradict each other,
are internally contradictory, introduce new errors, and
repeat many old errors and misunderstandings
without addressing the core critiques. These weak
responses indicate that little evidence supports their
claims about removal. The Founding era left the
removal question unresolved. If this Court is
committed to originalism as a check against judges
voting their personal preference, it should conclude
that the evidence is insufficient to overturn longstanding statutes.
Every scholar has biases and makes mistakes. To
be sure, this amicus lives in a glass house.3 But in this
Adam Liptak, Lonely Scholar with Unusual Ideas Defends
Trump, Igniting Legal Storm, N.Y. Times, Sept. 25, 2017; Jed
Shugerman Apologizes to Tillman and Blackman, Originalism
3
4
amicus role, serving as a friend to the Court, this brief
is a defense of originalism against unitary theorists’
ahistorical errors.
I.
WHY ARTICLE II “EXECUTIVE POWER” DID
NOT INCLUDE REMOVAL: THE LAW OF
FREEHOLD OFFICES VS. “DESPOTIC”
DISPLACEMENT
This Court has relied on the premise that Article
II’s “executive power” implied an indefeasible and
nearly “unrestricted [presidential] removal power.”
Seila Law, 140 S. Ct. at 2197-98. In reaction to growing
historical evidence against this 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
executive theorists have not provided support for these
repeated assertions.
There is a good explanation why the defenders of
the unitary executive theory have such difficulty in
supporting this historical claim: because it is wrong.
This Part offers a summary of the history of the sale of
office and offices protected as freehold property
against executive removal at will.
The sale of offices-as-property may seem strange
and even corrupt to modern readers, but it was a longlasting and practical foundation for the nation-state
and colonial expansion—and a well-established
administrative practice as the Founders were
structuring the federal government. Legal scholars
have described the sale of office in Anglo-American
Blog (Sept. 25, 2017), https://originalismblog.typepad.com/theoriginalism-blog/2017/09/jed-shugerman-apologizes-to-tillmanand-blackmanmichael-ramsey.html.
5
administration,4 and archaic as it may seem, “the
profit motive” in American offices persisted long past
the Founding.5 However, the pervasiveness of
unremovable freehold offices up to the Founding era,
including some with significant national executive
power and even at the English cabinet level, has been
overlooked in the removal debate.6
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.7 Legal scholarship has missed this
history, but many European historians and economic
See James Pfander, The Chief Justice, the Appointment of
Inferior Officers, and the ‘Court of Law’ Requirement, 107 NW. L.
REV. 1125, 1144 (2015); Kent, Leib & Shugerman, Faithful
Execution at 2115-16, 2189-90; Ethan J. Leib & Andrew
Kent, Fiduciary Law and the Law of Public Office, 62 Wm. &
Mary L. Rev. 1297, 1308-09, 1321 (2021); Douglas W. Allen,
Compatible Incentives and the Purchase of Military Commissions,
27 J. Legal Studies 45–66 (1998).
5 Nicholas Parrillo, Against the Profit Motive: The Salary
Revolution in American Government, 1780-1940 (2013) [hereafter
Against the Profit Motive].
6 In addition to these offices, Daniel D. Birk’s Interrogating the
Historical Basis for a Unitary Executive, 73 Stan. L. Rev. 175
(2021) offers many examples of Parliament protecting offices from
removal. However, critics have observed that many of these
examples were too early, too late, too judicial, too local and lowlevel, and too geographically remote from the American Founding
to illuminate the meaning of “executive power” circa 1787-88. Ilan
Wurman, In Search of Prerogative, 70 Duke L.J. 93, 142-43 n. 205
(2021).
7 Douglas W. Allen, The Institutional Revolution 7, 12-17, 21
(2012).
4
6
historians have explained this widespread system of
“venality.” Montesquieu rejected “displacement” at
will (i.e., removal at pleasure) as a tool of “despotic
government,” then endorsed “vénalité” and its limits
against removal as a practical system of family
investment, incentives, checks, and balances in
constitutional monarchies. Montesquieu, Spirit of the
Laws, Book V, Ch. 19 (Thomas Nugent trans., Batoche
Books 2001) (1748).
The Anglo-American system added an especially
strong protection of these offices as freehold property.8
Whereas vénalité had grown out of control in
revolutionary-era France, the English had a more
stable property law protecting officeholders’
investment against “despotic” displacement. G.E.
Aylmer, the leading historian of early modern English
administration, observed that “[i]t is difficult to
generalize about the security of tenure,”9 but that,
through the seventeenth century, English law
protected many executive offices from removal more
than it protected judicial offices.10
Under English law, many central officers and
powerful Treasury officers were unremovable. The
highest offices, like the “great offices,” the privy
council, and most (but not all) of the cabinet served at
8 See K. W. Swart, The Sale of Offices in the 17th Century 45-49;
(The Hague, 1949); 1 William S. Holdsworth, A History of English
Law 247–50 (1d ed. 1898); 10 William S. Holdsworth, A History
of English Law 499-506, 509-16 (1st ed. 1938); Thomas Ertman,
Birth of the Leviathan: Building States and Regimes in Medieval
and Early Modern Europe 172-74 (1997).
9 G.E. Aylmer, The King’s Servants: The Civil Service of Charles
I, 1625–1642, at 110 (1961).
10 Id. at 106, 109 (1961).
7
pleasure. However, William Holdsworth’s classic
History of English Law explained, the “inner ring” of
the original royal “Council,” which became “the
committee” and the initial royal “cabinet” that defined
modern English government, included the heads of
household departments—who were unremovable. 10
Holdsworth 481-82; Freehold Offices at 6, 29-30. They
were part of the cabinet until 1782. 10 Holdsworth 482.
Of course, those household “department heads” did not
look like today’s Secretary of State, but in early modern
England, they were significant “department heads”
both in name and function—as unremovable cabinet
members.
English historians also reveal that many of the
officers who ran the British Treasury—the engine of
the British empire, the “sinews of power”—were
unremovable.11 The English Crown executed policy
despite these limitations on removal. When
unremovable Treasury 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.12 Removal was
neither necessary nor sufficient for law execution.
By the eighteenth century, Blackstone, Edmund
Burke, and others documented a gradual legislative
reform effort to curtail the sale of office and
unremovability, but they also indicate that these
changes were a departure from English tradition, that
11 See John Brewer, The Sinews of Power: War, Money, and the
English State, 1688–1783, at 69-73 (1989); J.C. Sainty, 1 OfficeHolders in Modern Britain: Treasury Officials 1660–1870, at 5-6,
16, 29, 34 (1972).
12 See Sinews of Power at 69-73, 110; Freehold Offices at 32-35.
8
such reforms were limited, and that they were
skeptical of these reforms undermining officers’ job
security.13 The sale of office and its property
protections
robustly
persisted
through
midnineteenth-century England.14
This history explains the silence on removal in the
text of Article II and in the Convention and
Ratification debates, and gives context to Hamilton
and Madison rejecting presidential removal in the
Federalist Papers.
The most potent counterargument is that many
colonial Americans objected to the English sale of
office, and the Constitution effectively banned the resale of office with the Appointments Clause. However,
even if the Framers banned the sale of office, they
continued the related traditions of “offices of profit”
and offices-as-property long after. See Against the
Profit Motive; Indecisions at 846-51; Freehold Offices
at 47-50. This explains Chief Justice Marshall’s
recognition of Marbury’s “property” in his office.
Marbury v. Madison, 5 U.S. (1 Cranch) 137, 155, 162,
167, 172-73 (1803). And the phrase “Office … of Profit,”
which appears in the Constitution three times,15 is a
reminder that the Framers recognized the market
13 1 Blackstone, Commentaries on the Laws of England 334-36 (3d
ed. 1884) (1765); 3 Edmund Burke, The Writings and Speeches of
Edmund Burke: Party, Parliament, and the American War: 1774–
1780 (Warren M. Elofson, John A. Woods, & William B. Todd,
eds., 1996); 1 Edmund Burke, The Works of Edmund Burke 296
(1847); Freehold Offices at 35-37; Removal of Context at 157-64;
see also Jeremy Bentham, On the Sale of Offices, The Rationale of
Reward 182-86 (1825).
14 Institutional Revolution at 12-17, 21.
15 See U.S. Const., art. I, §§ 3, 9; id. art. II, § 1.
9
system of offices. Indeed, they memorialized it in the
Constitution more explicitly than any removal power.
II.
RECENT SCHOLARSHIP SHOWS THAT
ARTICLE II DID NOT IMPLY A GENERAL
PRESIDENTIAL REMOVAL POWER
A. Neither Federalists nor Anti-Federalists
believed that Article II’s Vesting and Take
Care clauses implied a presidential
removal power.
Recent research indicates that the Ratification
debates were silent about whether Article II “executive
power” or the Take Care Clause implied a presidential
removal power. This silence throughout six volumes of
Herbert Storing’s The Complete Anti-Federalist speaks
loudly. The Anti-Federalists had the strongest
incentive to warn about implied presidential powers
and even exaggerate such powers, but did not offer
such an interpretation. See Jonathan Gienapp,
Removal and the Changing Debate over Executive
Power at the Founding, 64 Am. J. L. Hist. (forthcoming
2023); Freehold Offices at 40-52. The only instance of
any discussion of removal is Luther Martin, who
identified a limited power to remove military—not
civil—officials, and cited only the Commander-inChief Clause, not the Vesting or Take Care clauses.
See infra Section III.B.
This evidence confirms the Federalist Papers’
rejection of an indefeasible presidential removal
power. Without the benefit of recent research, this
Court prematurely discounted Madison’s Federalist
No. 39 (“The tenure of the ministerial offices generally
will be a subject of legal regulation … .”) in Seila Law,
10
based on an earlier misunderstanding of Madison’s
1789 comptroller proposal. See 140 S. Ct. at 2005.
(citing Free Enter. Fund, 561 U.S. at 500 n.6). As
discussed below, Madison’s comptroller proposal was
made against a default rule that term-of-years offices
were unremovable, and he acknowledged that the
removal provision he proposed was “rare” in that
context. Jane Manners & Lev Menand, Three
Permissions: Presidential Removal and the Statutory
Limits of Agency Independence, 121 Colum. L. Rev. 5,
20-21
(2021)
[hereafter
Three
Permissions];
Indecisions, at 824-34. New research also catalogues
how Madison spoke more consistently with
congressionalism and Federalist No. 39 from the
Convention through the summer of 1789. Indecisions
at 771, 776-79, 803 n.264, 834-44.
Seila Law also erred in dismissing Hamilton’s
Federalist No. 77 (“The consent of [the Senate] would
be necessary to displace as well as to appoint.”) merely
because Hamilton “later abandoned” its senatorial
position. 140 S. Ct. at 2005.16 New research shows that
16 Some have speculated that “displace” may not have meant
“removal.” Seth Barrett Tillman, The Puzzle of Hamilton’s
Federalist No. 77, 33 Harv. J. L. & Pub. Pol’y 149, 149-54 (2010).
However, contemporary evidence disproves this theory,
confirming Hamilton’s original senatorial position. See Letter
from William Smith to Edward Rutledge (June 21, 1789),
reprinted in 16 Documentary History of the First Federal
Congress, 1789-1791 at 832-33 (Charlene Bangs Bickford et al.
eds., 2004) [hereafter Documentary History]; see also Jonathan
Gienapp, The Second Creation: Fixing the American
Constitution in the Founding Era, 154-55 (2018) [hereafter
Second Creation]; Indecisions at 778; Forrest McDonald,
Alexander Hamilton, 130-31 (1979); Jeremy D. Bailey, The
Traditional View of Hamilton’s Federalist No. 77 and an
11
both Madison and Hamilton had self-interested
motivations to change their minds in the summer of
1789 and to promote President Washington’s power:
Madison as Washington’s “Prime Minister,” as
historians have described him, Indecisions at 851-60;
and Hamilton as a potential cabinet nominee, as his
colleagues noted about his reversal on removal, id. at
778-79. Federalist No. 77’s explanation to the
Ratifying public is far more relevant to original public
meaning than Hamilton’s changed mind in 1789. This
research confirms a crucial methodological point:
Ratification evidence should be weighted more heavily
than post-Ratification evidence. See N.Y. State Rifle &
Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111, 2136 (2023)
B. The Take Care and Executive Vesting
clauses did not signify indefeasible
removal powers.
The history of “faithful execution” shows that the
Take Care Clause (the president “shall take Care that
the laws are faithfully executed”) imposed a duty of
good faith, loyalty, and care to follow the law, with
limits on executive discretion. See Kent, Leib, &
Shugerman, Faithful Execution at 2117-19. Even if
one infers a removal power from this text, despite the
eighteenth-century evidence to the contrary, there is
no evidence from original public meaning that the
Take Care Clause would imply indefeasible powers. It
would be incongruous for a duty limiting the
executive’s powers in executive the laws to yield a
power greater than Congress’s ability to make those
laws.
Unexpected Challenge: A Response to Seth Barrett Tillman, 33
Harv. J. L. & Pub. Pol’y 169, 184 (2010).
12
Some originalists have speculated that the word
“vested” had a connotation of a special legal status
limiting legislative alteration or delegation. To the
contrary, research from two centuries of legal
dictionaries, from colonial charters and early state
constitutions, and Founders’ usage from 1776 to 1789
indicate that the word “vesting” did not have a special
legal status and did not signal an indefeasible power.
See Vesting at 1521-27. This research could explain
why the word “all” appears in Article I’s Legislative
Vesting Clause (“All legislative power shall be vested
… .”) but not the Executive Vesting Clause (“The
executive power shall be vested … .”): to create a more
robust assignment of power to Congress. Id. at 150506.
C. The First Congress made no “Decision of
1789” in favor of Article II presidential
removal.
Contrary to the interpretations of a presidentialist
“Decision of 1789” in Myers, Free Enterprise Fund, and
Seila Law, the First Congress was sharply divided
between three clashing removal theories throughout
the summer of 1789, resulting in a series of
compromises that deliberately left the constitutional
debate unresolved.
The House was evenly divided between three blocs:
“presidentialists” who thought Article II implied
presidential removal; “senatorials” who thought
Article II implied that removal mirrored the
appointment process, both requiring Senate consent;
and “congressionalists” who thought Article I
delegated the removal question to congressional
discretion, and supported presidential removal as a
policy matter. Indecisions at 759, 863, 865. As
13
Jonathan Gienapp documents, these debates reveal
that little thought was given to removal before the
First Congress; House members treated it as an open
question, rather than relying on claims about the
Convention, Ratification, or even the positions taken
in the Federalist Papers. Second Creation at Chapter
3.
Contrary to recent claims by unitary executive
theorists (see infra Section III.B), these three divisions
persisted throughout the summer of 1789. Senator
William Maclay’s diary described a Senate majority
that was hostile to the removal clause and likely
against unilateral presidential removal (under any
theory) as the Senate debate started. See Indecisions
at 809-19. The House presidentialist faction was
aware of this problem and needed to find compromise
through ambiguity. Id. That is why the final text was
deliberately unclear. Id. at 783-96. Madison and the
House presidentialists suddenly deleted an explicit
removal clause, replaced it with an ambiguous clause,
and repeatedly declined challenges to offer an
explanatory or declaratory clause clarifying their
interpretation of Article II. Madison’s opponents
mocked his retreat and criticized him for shifting back
to such unclear language rather than forward with a
“declarative act.” Id. at 779-800, 834-40. One of the
presidentialists, Rep. Vining, acknowledged this
strategy of House-Senate compromise in the pivotal
debate: The proposed ambiguous clause “was more
likely to obtain the acquiescence of the [S]enate on a
point of legislative construction on the constitution,
than to a positive relinquishment of a power which
they might otherwise think themselves in some degree
[e]ntitled to.” Congressional Register (June 22, 1789),
14
reprinted in 11 Documentary History at 1035-36;
Indecisions at 762, 795-96.
Ultimately, there was no decision in the House,
except for a decision to avoid clarity and to turn to
“strategic ambiguity.” Only sixteen members of the
House could be considered “presidentialist” from their
voting patterns (i.e., only about 30% of the House), and
of those sixteen, seven never spoke or wrote explicitly
endorsing an Article II interpretation and may have
voted for “strategic ambiguity” rather than an
interpretation of Article II.
The same compromise through ambiguity was
reflected in breaking a removal impasse that bogged
down the Treasury Bill for much of August 1789. The
Senate refused to acquiesce on a proposal for a
declaratory clause granting presidential removal
explicitly, and then the various factions returned to
the ambiguous compromise. Id. at 834-40. Thereafter,
Madison and others in President Washington’s insider
circle tried to claim victory for their interpretation. Id.
at 851-60. Chief Justice Marshall’s later biography of
Washington and Madison’s private letters pushed this
unitary interpretation, but this evidence reliably
reflects neither original meaning nor public meaning.
To the contrary, it shows how the strategy of
ambiguity plays out: make a compromise over unclear
language, so that each side can claim victory, and then
each side argues the implications later. Two centuries
later, the supporters of each side can find their friends
in that victory party, but the more famous victors
(Madison and Washington’s allies) had an advantage
in writing their version of the history.
15
D. Offices granted for a limited term of years
without a specific removal provision were
unremovable.
Through the Founding era, offices held for a “term of
years” were property with limits on removal, unless
the tenure specified removal or terms like “at
pleasure.” See Three Permissions at 5, 18-27. To be
sure, other than the case of the justices of the peace in
the Judiciary Act of 1801, it is difficult to find Congress
using that term of art in the Founding era and the
nineteenth century. See Aditya Bamzai & Saikrishna
Bangalore Prakash, The Executive Power of Removal,
136 Harv. L. Rev. 1756 (2023) [hereafter Executive
Power of Removal]. Nevertheless, as a matter of
original public meaning circa 1787-88, unremovability
was the default rule in the “term of years” common law
tradition. Three Permissions, at 18-27. This makes
sense of a number of puzzles, such as Madison’s
comptroller proposal (which was misunderstood in
Free Enterprise Fund and Seila Law, see supra Section
II.A); and why Chief Justice Marshall concluded
Marbury was unremovable (“not revocable”) as a
justice-of-the-peace, Three Permissions at 25;
Presidential Removal; Freehold Offices at 47-51; see
infra Section III.B.
E. Other
early
statutes
reflect
a
congressional power to limit presidential
removal and assign significant executive
power to unremovable officers.
The First Congress’s other statutes reflect a mix of
congressional discretion to delegate power to
unremovable officers and judicial control over removal
conditions. With the Sinking Fund Commission, for
example, the First Congress placed the Chief Justice
16
and Vice President, unremovable commissioners
exercising significant executive power, as two out of
the five votes on the commission. Christine Kexel
Chabot, Is the Federal Reserve Constitutional? An
Originalist Argument for Independent Agencies, 96
Notre Dame L. Rev. 1, 35, 39-40 (2020). In many other
statutes, early Congresses similarly delegated
significant discretion over executive adjudication and
enforcement to non-removable judges and private
parties. See Christine Kexel Chabot, Interring the
Unitary Executive, 98 Notre Dame L. Rev. 129 (2022);
Freehold Offices at 47-50.
III.
RECENT RESPONSES FROM UNITARY
EXECUTIVE THEORISTS CONFIRM THE
WEAKNESS OF THE ORIGINALIST CASE
Unitary executive theorists have attempted to
respond to this evidence in articles and presumably
will do so in amicus briefs. Their responses reflect an
irony: the unitary executive theorists cannot agree on
a unified theory of Article II or a historical basis for
removal. Some, led by former Judge Michael
McConnell, take an anti-royalist position, focusing on
“prerogative” powers. But these did not include
removal, and thus any removal power would be
defeasible. Others, led by Ilan Wurman, Aditya
Bamzai, and Saikrishna Bangalore Prakash, take an
ahistorical royalist approach that goes against the
spirit of the Founding. This approach is internally
contradictory and relies on factual errors,
misunderstandings, and sources taken out of
context—revealing how difficult it is to find solid
originalist evidence that Article II included a removal
power.
17
A. Professor
McConnell’s
prerogativist
interpretation of Article II would mean, at
most, a defeasible removal power, and his
anti-royalist republican theory of Article II
would reject the approaches of other
unitary theorists.
1. McConnell’s method would hold that
Article II does not imply removal,
because removal was not a royal
prerogative.
In The President Who Would Not Be King (2020),
McConnell offers a “prerogativist” thesis:17 that the
Framers drew upon a traditional list of the English
Crown’s prerogative powers, and this list is a more
legitimate legalist and republican source than simply
drawing from royal practices. Id. at 11, 24-31. The
Framers assigned some to Congress (like declaring
war), shared some with the Senate (like appointment
and treaty), and assigned some to the president (e.g.,
commander-in-chief,
pardon,
veto). Remaining
prerogative powers were implied by Article II, such as
removal.
As discussed in the following sections, other unitary
executive theorists rely on British royal practice as a
“backdrop” for understanding Article II. See Executive
Power of Removal at 1790; Amicus Br. of Ilan Wurman
at 13-17 (Aug. 22, 2023) [hereafter “Wurman Amicus
Br.”]. McConnell rejects such reliance on royal
practices as unreliable, vulnerable to selection bias,
17 See also William Crosskey, The Reasons for the Enumeration of
Congressional Powers: The Influence of the Royal Prerogative, 1
Politics and the Constitution in the History of the United States
409-67 (1953).
18
and inconsistent with republicanism and the rule of
law. This is the point of his book title: The President
Who Would Not Be King. Royal practices were
“undefined by law,” and royalism opened a dangerous
door to an ultra vires “Schmittian conception of
sweeping emergency powers and an unchecked
executive.” President Who Would Not Be King at 28-29.
By contrast, “legal prerogatives” were “defined and
limited by law.” Id. A fixed and established list of
prerogatives provided legality, grounded in historical
sources rather than unlimited assertions about
necessity.18
McConnell originally claimed that English
monarchs had a traditional prerogative power of
removal. He relied on Blackstone and Joseph Chitty,
see id. at 30, 99, 161-62, 368 n. 7, but neither included
removal or anything like it on their lists of prerogative
powers, and they did not even discuss removal as a
general non-prerogative practice. Removal of Context
at 156-60. No other sources have listed removal as a
royal prerogative. Freehold Offices at 42-46. To his
credit, McConnell recently has conceded that he was
wrong about removal as a listed prerogative power.19
President Who Would Not Be King at 28. For alternative
arguments about the royal prerogative and the Constitution, see
Andrea Scoceria Katz & Noah Rosenblum, Removal Rehashed,
136 Harv. L. Rev. Forum 404, 409 (2023); Julian Davis
Mortenson, A Theory of Republican Prerogative, 88 So. Cal. L.
Rev. 45, 48 (2014); Matthew Steilen, How to Think
Constitutionally About Prerogative: A Study of Early American
Usage, 66 Buff. L. Rev. 557, 566 (2018); Jack Rakove, Taking the
Prerogative Out of the Presidency: An Originalist Perspective, 37
Presidential Stud. Q. 85 (2007).
19 Movement on Removal at 21-22.
18
19
McConnell’s book is a powerful critique of the
royalism discussed infra Part III.B & C. McConnell’s
republican method should lead to the conclusion that
“executive power” did not include removal, based on his
recent acknowledgement that removal was never listed
as a royal prerogative.
2. Even if one infers removal from Article
II, it would be an implied (or “residual”)
power, and thus defeasible by Congress.
The Opinions in Writing Clause has always been a
problem for those who claim an indefeasible removal
power. If Article II already gave the president an
absolute removal power, why would it need to specify
a lesser power merely to ask for opinions? Refusal to
give an opinion surely would be sufficient cause for
removal. See Federalist No. 74.
McConnell’s thesis explains this puzzle. The
Opinions Clause has a specific function: without such
an explicitly granted power, “nothing in the
Constitution would have prevented Congress from
using its Necessary and Proper authority to insulate
officers from any such demands. … The Opinions in
Writing Clause forecloses this kind of congressional
interference.” President Who Would Not Be King, at
244-45.20 McConnell posits that the specific
“prerogative powers” that the Framers spelled out in
Article II, Section 2 (e.g., commander in chief, opinions,
and pardons) are “indefeasible” because they are
McConnell’s other explanation militates against a removal
power. See President Who Would Not Be King, at 244-45. If the
Convention wanted to “negate” the council or “provide a textual
anchor” for presidential power, it is notable that the delegates
agreed only to add such a weak power (merely asking for opinions)
and ignored removal. Indecisions at 772-73.
20
20
explicit, but an unenumerated “residual powers”
(merely implied from the Executive Vesting Clause)
are “defeasible” by Congress. Id. at 277-78. For
example, if “executive power” implies foreign policy
powers, the President can act unilaterally (e.g., the
Neutrality Proclamation of 1793), but Congress retains
a power to change the policy or set some conditions.
Even if one infers a removal power from Article II,
it would be in the latter category: an implied and
defeasible power. To argue that the Take Care Clause
implies an indefeasible removal power is special
pleading for removal, an exception for one implied
power without historical support, inconsistent with the
rest of McConnell’s rule of law–based prerogative
framework.
B. “The Executive Power of Removal” is
strong evidence that Article II “executive
power” did not include removal.
The most recent article positing an originalist basis
for indefeasible presidential removal power is Aditya
Bamzai and Saikrishna Prakash’s The Executive Power
of Removal, 136 Harv. L. Rev. 1756 (2023). If this
article is considered the most thorough and up-to-date
argument for this power, it is one of the strongest
pieces of evidence that “executive power” did not
include removal, because it offers so little evidence of
original public meaning, and much of its evidence
contradicts its conclusions.
The article has already been rebutted in several
detailed papers—or, in some cases, pre-butted, as
many of its claims had been made previously by its
authors. As Andrea Scoceria Katz and Noah
Rosenblum concluded in Removal Rehashed, 136
Harv. L. Rev. Forum 404, 406 (2023): “The Executive
21
Power of Removal fails to persuade on its own terms.
It fails to seriously respond to critics of unitary theory.
And it presents some of its sources in a way that could
mislead less historically informed readers.” “[I]t
largely rehashes old arguments with old sources.” Id.
at 417. Section II.B, “Bamzai and Prakash’s Handling
of Sources Makes Us Worry That They Are Not
Reliable Guides to Meaning in the Founding Era and
Early Republic,” concludes that one document on
which they rely, a Pennsylvania Censor’s report,
“probably means nearly the opposite of what Bamzai
and Prakash claim.” Id. at 417. See also Indecisions
and its Appendix II;21 Freehold Offices at 9-12.
While this brief can do no more than summarize
these detailed critiques, here are some main points:
1. The Executive Power of Removal claims to
subscribe to originalist methodology, but the vast
majority of the article is post-Ratification evidence,
including two subsections on the mid-nineteenth
century and another on the late-nineteenth century.
Executive Power of Removal at 1814-21. They offer
literally no evidence from English history, the
Convention, or Ratification supporting their argument
that the English Crown or other European monarchs
had a general removal power, nor that Americans
during ratification thought so.
The First Congress and other early postRatification evidence could be probative of original
public meaning, but only with a large grain of salt
Jed Handelsman Shugerman, The Indecisions of 1789:
Appendices on the Misuse of Historical Sources in Unitary
Executive Theory (Feb. 27, 2023) (unpublished manuscript)
[hereafter Indecisions App’x II], https://papers.ssrn.com/sol3/
papers.cfm?abstract_id=4359596
21
22
about the evolving self-interest of political actors. As
the Court recently explained, “we must … guard
against giving postenactment history more weight
than it can rightly bear.” Bruen, 142 S. Ct. at 2136.
This is particularly true for mid- and late nineteenthcentury evidence. The Court has repeatedly stated
that post-Ratification events “do not provide as much
insight into … original meaning as earlier sources.” Id.
at 2137 (quoting District of Columbia v. Heller, 554
U.S. 570, 614 (2008)). Yet Bamzai and Prakash rely
almost entirely on distant evidence, as none of their
pre-Ratification evidence holds up to scrutiny. See
Removal Rehashed at 407-08 (on their use of early
state constitutions); id. at 422 (on their use of
Federalist No. 66).
2. Even their post-Ratification evidence is weak and
self-contradictory. Freehold Offices at 9-12, 46-51.
Their only evidence of any American reference to a
royal removal power, cited three separate times, is
from after Ratification, a mere two sentences from a
newspaper account of a speech by James Jackson, an
obscure Georgia congressman, during the Foreign
Affairs debates of 1789.22 However, Jackson was an
anti-presidentialist merely attributing this argument
to the presidentialists to tar them as royalists. Jackson
likely was exaggerating or inventing it, given that
Bamzai and Prakash offer no evidence of
presidentialists actually relying on royalist practice.
Moreover, Bamzai and Prakash pulled this
fragment out of context: Jackson specifically said that
an executive power to dismiss officers “might hold good
in Europe, but it did not apply to our constitution, by
22 Executive Power of Removal, at 1769 n. 76, 1790 n. 249, & 1790
n.252 (internal quotations omitted).
23
which the President had not the executive powers
exclusively.”23 Jackson then described a parade of
monarchy’s evils, including “the deadly influence of the
crown in England, where offices were held during the
pleasure of the king.”24 Jackson’s speech is evidence
against Bamzai and Prakash’s assumption that Article
II drew on royal traditions. If this is their best
evidence, it confirms that most eighteenth-century
Americans on either side of the removal debate
understood that the Crown did not have a general
removal power.
3. Bamzai and Prakash’s presentation of the
Constitutional Convention and the Federalist Papers is
similarly insupportable. For example, they take
Luther Martin’s limited reference to removal during
the Ratification debates out of context. Executive
Power of Removal at 1772 n.10. As discussed above,
supra Section II.A, Martin is the only instance in the
entire six volumes of Herbert Storing’s The Complete
Anti-Federalist of an Anti-Federalist warning that the
Constitution gave the president a removal power—and
even that was limited to the military under the
Commander-in-Chief Clause, not civil offices subject to
other parts of Article II. This speech, in the context of
silence otherwise,
indicates that
both
the
Constitution’s proponents and opponents did not
imagine that the Executive Vesting Clause or the Take
Care Clause implied a removal power. Freehold Offices
at 46.
Another glaring example of misreading the
Ratification debates is their illogical misuse of
The Daily Advertiser (June 20, 1789), reprinted in 11
Documentary History at 889.
24 Id. at 890 and nn. 12-13.
23
24
Hamilton’s Federalist No. 66 to parry his senatorial
No. 77. Hamilton simply referred to “those who hold
offices during pleasure”; he was not asserting that all
who hold offices hold them during pleasure. Removal
Rehashed at 422.
4. Their analysis of the “Decision of 1789” is
unresponsive to longstanding criticisms of their
interpretation, most glaringly in ignoring contrary
evidence from Senator William Maclay’s diary, a
widely cited and definitive resource for the first
Senate’s proceedings. The diary shows that
presidentialism was likely a minority view among
senators, and that the Senate was digging in for a fight
with the House on multiple issues as the House was
debating removal. See Indecisions at 779-83. The diary
and other records from the First Congress reveal initial
Senate opposition to the Foreign Affairs bill before a
round of log-rolling lobbying, culminating in a 10-10 tie
(broken by Vice President Adams) over the ultimate
compromise bill. Id. at 779-83, 809-19. Instead of
addressing this substantial contradictory evidence,
Bamzai and Prakash cite Maclay’s diary only to cherrypick a convenient argument from a single
presidentialist Senator. Executive Power of Removal at
1796.
Similarly, Bamzai and Prakash have repeatedly
conflated presidentialists (whom they call “executivepower partisans”) and congressionalists (whom they
call “legislative-grant partisans”). Id. at 1793;
Indecisions at 807-09 & App’x II. For example, they
claim Theodore Sedgwick was “[a] one-time proponent
of the legislative-grant theory” but converted to
presidentialism. Executive Power or Removal at 179596. During the debates, Sedgwick gave speeches on
25
three separate occasions that were clearly
congressionalist. Indecisions at 791, 847-48, 866. Their
only evidence of a conversion on the road to Damascus
is Sedgwick’s statement at the time of his final vote
that the “majority of the house had decided, that all
officers concerned in executive business, should
depend upon the will of the president, for their
continuance in office.” Executive Power of Removal at
1795-96. But Sedgwick did not explicitly specify a
constitutional basis for this power, and his final
statement is entirely compatible with his earlier
statements: it may simply reflect his understanding
that a majority, a combination of congressionalists and
presidentialists, intended to apply the same textual
compromise across the board to leading officers.
Bamzai and Prakash created two false dichotomies.
First, on the scope of removal power, they assume
presidentialists wanted a broad removal power, but
congressionalists wanted a limited power. To the
contrary, some presidentialists, including Madison,
thought Article II implied a limited removal power,
while some congressionalists supported granting a
broader removal power. Indecisions at 834-41. The
second is that if a member supported presidential
removal but voted “no” on the new ambiguous clause
(e.g., Sedgwick), either they were congressionalists or
they found it too unclear and confusing. This is illogical
and ahistorical. It makes sense that a congressionalist
like Sedgwick who thought Article II was silent or
unclear would be more likely to want a statute to
clarify a removal power and would oppose deleting a
clear statement in favor of perpetuating the textual
ambiguity problem.
26
By
conflating
presidentialists
and
congressionalists, Bamzai and Prakash ignore the
possibility that disparate supporters of the bill reached
a loose compromise only about the result, rather than
the constitutional basis for that result. They never
address the “strategic ambiguity” thesis or explain why
the presidentialists dodged the challenges to put their
theory up for a vote in an explanatory clause.
5. Finally, their discussion of Marbury’s statement
that justice of the peace appointments were “not
revocable,” id. at 1802-14 (quoting Marbury, 5 U.S. (1
Cranch) at 162), is no more persuasive. They offer two
alternative explanations for Marshall’s conclusion
that Marbury was unremovable.25 The first relies on a
laconic fragmentary opinion by a fragmented court on
a different question holding that justices of the peace
were Article III judges, id. at 1810-14. This marginal
position was ignored by Chief Justice Marshall. It
would also make a mess of Article III life tenure,
leading to bizarre results like Congress having the
power to impose five-year term limits on Supreme
Court Justices and federal judges.
Their second alternative, that justice of the peace
was a territorial office, id. at 1803, 1811, does not
explain why this would lead Marshall to declare the
office unremovable. Bamzai and Prakash thus wind
up implicitly conceding the main point: consistent
25 A third explanation is that President Jefferson believed he
could remove the justices of the peace. Any such attempt was
ignored legally, and Chief Justice Marshall obviously disagreed.
See Freehold Offices at 50. Jefferson’s views as president bear
the same drawback as Hamilton’s change of mind: personal
political incentives and spin are especially problematic for
relying on post-Ratification evidence.
27
with Founding-era evidence, Marshall understood
that when an office was granted for a limited term of
years, the default rule was that it was unremovable
“property,” following the long English tradition of
offices-as-freehold property. See Marbury, 5 U.S. at
155, 175; Three Permssions at 5, 18-20; Freehold
Offices at 46-50.
C. Wurman’s Amicus Brief takes historical
records out of context
1. Removal follows appointment, but only
if the office is removable.
Wurman’s amicus brief generously cited my work in
Indecisions of 1789 collecting examples of the maxims
“[e]very obligation is dissolved by the same method
with which it is created” and “whose right it is to
institute, his right it is to abrogate.” Wurman Amicus
Br. at 17-19 (citing Indecisions at 820). In other words,
the removal process follows the appointment process.
This maxim was contemporaneously used to support
the “senatorial” view—that “if the President and
Senate together appointed, then both were necessary
to remove”—rather than the unitary “presidentialist”
view. Indecisions at 819-20. But Wurman tries to
associate it with the presidentialists, too: “In short, in
1789 there was general agreement that the power to
execute the laws included the power to appoint officers,
and that power included the ability to remove. But one
could draw two different conclusions: the ‘senatorial’
view or the ‘presidentialist’ view.” Wurman Amicus Br.
at 20.
First, this conclusion is a concession: Even if there
was agreement on this legal concept at a high level of
generality, Wurman acknowledges dissensus on the
concrete question about presidential removal. It is like
28
pointing out agreement that Article II vested
“executive power,” but then minimizing the
disagreement about what “executive power” included.
As explained above, a majority of the House rejected
“the ‘presidentialist’ view.” See Indecisions at 802-09 &
App’x II. Papering over dissensus is not a faithful
application of originalism.
Second, Wurman overstates the meaning of the
maxim. In context, the maxim is a default rule that
removal follows appointment—but only if an office is
removable. The maxim did not apply to freehold offices
or offices held for a limited term of years without a
removal clause. See Three Permissions at 5, 18-27;
Freehold Offices at 16, 32, 47. If it did, Chief Justice
Marshall surely would have applied this maxim in
Marbury and would not have concluded Marbury was
unremovable.
Third, Wurman mistakenly relies on an error by
Bamzai and Prakash. The senatorial bloc frequently
offered the maxim, but it was exceedingly rare for
presidentialists to rely on it—presumably because
Article II clearly distinguishes unilateral presidential
“nominat[ion]” from “appoint[ment]” “with the Advice
and Consent of the Senate,” and the maxim turned on
appointment. U.S. Const., art. II, § 2. Wurman relied
on Bamzai and Prakash’s erroneous categorization of
John Laurance as a presidentialist, see Wurman
Amicus Br. at 19, (citing Executive Power of Removal,
at 1775), when he in fact believed that “the legislature
had power to establish offices on what terms they
pleased” and could impose some (though not limitless)
tenure protections. Indecisions at 791-92, 829-830,
843, 847, 865 & App’x II at 8-10, 34; see also Edward
29
Corwin, The President’s Removal Power Under the
Constitution 12-13 n.22 (1927).
2. Wurman takes Giles Jacob out of
context in several crucial ways.
Wurman relies heavily on British author Giles
Jacob, see Wurman Amicus Br. at 16-17, but this too
takes a snippet of evidence out of context in several
fundamental ways, reaching conclusions that
contradict the complete historical record.
As I explained in Freehold Offices, I canvassed the
searchable “Founders’ Bookshelf,”26 the sources other
scholars had identified as the Framers’ main sources
on English or European law, and I found nothing in
those sources that identified removal as a royal
“prerogative” power or even a general or default royal
power. Freehold Offices at 40-42. I then searched
additional legal dictionaries and law reference books of
the era, and I again found no references to royal
removal powers—except for Giles Jacob. Id. at 42-43.
Jacob was an outlier, the sole exception I or any other
researcher have found in the sources available to the
Founders. Though his work was influential, it did not
compare to Coke, Hale, the two Bacons, or Blackstone,
none of which asserted such a proposition. Id. at 41-42.
Wurman removed all of that vital historical context
and presented an exception as representative.
Moreover, even Jacob the Outlier did not refer to
this power as a royal prerogative, and even the power
For “the Founders’ bookshelf,” see, e.g., David Lundberg &
Henry F. May, The Enlightened Reader in America, 28 Am. Q. 262
(1976); Julian Davis Mortenson, Article II Vests Executive Power,
Not the Royal Prerogative, 119 Colum. L. Rev. 1169 (2019);
Freehold Offices at 41-43.
26
30
he posited was far narrower than the power claimed in
this case, limited to only a subset of the cabinet. Id. He
said only that the king could remove “the great
officers,” which was a term of art typically referring to
nine particular officers. Id. (collecting sources). Even
on the broadest reading, “great officers” referred only
to a subset of cabinet-level officers, a far cry from the
modern category of “principal officers” or the legions of
administrative law judges in dispute in this case. Id.
3. Wurman’s reliance on English history to
extend a presidential removal power
over “principal officers” is quixotic,
because the category of “principal
officers”
is
a
recent
American
neologism.
Even if one assumes that English royal practice is
relevant for our republican Article II, and even if one
draws on such an outlier as Giles Jacob, it is still
unclear how the English Crown’s power to remove
“great officers” would translate to either “department
heads” or the broader category, the American
neologism “principal officers.” See Steven G. Calabresi
& Gary Lawson, Why Robert Mueller’s Appointment as
Special Counsel Was Unlawful, 95 Notre Dame L. Rev.
87, 135-36 (2019) (noting that the term “principal
officer,” in the context of presidential appointment,
appears to have been a twentieth-century inference
from the Opinions Clause and warning that, in their
view, “the terminology is a mistake that has the
potential badly to mislead”). Yet Wurman’s brief uses
the term “principal officer” fourteen times in an
originalist brief arguing for extending a historical
removal power to this neologism category, without
acknowledging this basic problem.
31
CONCLUSION
The original public meaning of Article II was
ambiguous. What is unambiguous is that the
Convention, Ratification, and early Congresses did not
resolve removal’s constitutional basis or its scope. If
proponents of an indefeasible presidential removal
power can offer no evidence of that power from the
Constitutional Convention or Ratification debates,
that should end the debate. As a question of original
public meaning, the Founding-era historical evidence
is insufficient to overturn the act of Congress in this
case.
This history does not suggest that the
congressionalist or senatorial theories prevailed
during the Founding. It does not mean that Congress
could delegate removal to itself alone or, for example,
grant the Treasury Secretary or the Defense Secretary
life tenure. Nor does it mean that the Senate must
consent to removing department heads, even if that
was Hamilton’s position in Federalist No. 77. The point
is simply that the Founders did not decide the removal
question, giving it little thought until after
Ratification. Even then, they were intractably divided
in three different directions with no resolution.
As Adrian Vermeule recently observed, the Court’s
removal jurisprudence is not originalist. “The
majority’s opinion [in Seila Law] is all but frankly
Dworkinian; it rests on an effort to read the existing
fabric of law in the best constructive light, by reference
to considerations of political morality.” Adrian
Vermeule, Common Good Constitutionalism 101
(2022).
Those are the larger stakes in this case: whether
originalism is a reliable method in practice, or
32
whether it enables judges to confirm their own prior
assumptions of “political morality” and ideal
governmental structure by finding their friends in a
voluminous and ambiguous historical record. If the
Court adopts the unitary theorists’ account,
presidents may win a greatly expanded removal
power, but originalism's legitimacy will be the loser.
Respectfully submitted,
JEFFREY B. DUBNER
Counsel of Record
DEMOCRACY FORWARD FOUNDATION
P.O. Box 34553
(202) 448-9090
jdubner@democracyforward.org
Counsel for Amicus Curiae Jed
Shugerman
SEPTEMBER 2023
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.