“Removal of Context,” Part II: Blackstone and “Dispose” as “Remove” in Seila Law Amicus

Today, I posted a draft of my paper on SSRN here: “Removal of Context: Blackstone, Limited Monarchy, and the Limits of Unitary Originalism,” forthcoming in the Yale Journal of Law & the Humanities, 2022.

In the course of writing this paper, I have found a series of misinterpretations of historical sources by unitary executive scholars to try to establish a general presidential removal power, including a misquotation of Blackstone in a 2020 amicus brief in the Supreme Court case Seila Law v. CFPB. Their brief is linked here. You can find the relevant passages from Blackstone following this link.

Over the next few posts, I will detail some of those misquotations and misinterpretations in this amicus brief itself, and then in the scholarship upon which this brief relied — some of the same scholarship upon which the Supreme Court relied. I start here with one misinterpretation of Blackstone, interpreting the word “disposing” as “removing,” when context and usage indicate that it meant “distributing” and “appointing.” The next post will explain what I think is the most problematic example, a Supreme Court amicus brief misquoting Blackstone by selectively deleting important words and moving the word “not” to reverse the meaning of the quoted sentence.

These misreadings are more than just small or narrow errors. They obscure more significant points: Blackstone was fundamentally in favor of parliamentary supremacy, against “indefeasible” executive powers; and Blackstone never mentioned removal as a royal prerogative or a general executive power, which is powerful counter-evidence to the unitary theorists’ assumptions. These errors are also a cautionary moment about originalist methods and the notion that originalism is more reliable or objective than other methods of interpretation.

Let me start with some context: I wrote a letter to the seven signatories of this amicus brief on October 13, 2021, identifying these questions, suggesting they were misinterpretations and asking for clarifications. I have had good phone conversations with most of them since sending this letter, and we have had good exchanges about my draft. These posts will not come as a surprise. I have learned much from each of the co-signatories, and I am planning a conference with one of them (Michael McConnell), “The Histories of Presidential Power,” and we have invited most of these co-signatories to this conference. Michael Ramsey and Ilan Wurman are participating. I offer this post as a commitment to dialogue. As I told them in my letter, I believe these misinterpretations were in good faith, surely attributable to the complexity of England’s unwritten constitution evolving and revolving through the seventeenth and eighteenth centuries, the opacity of Blackstone’s language, the fragmentary nature of the letters and congressional records in the early republic, and the unfamiliar use of phrases in the Founding Era. I also acknowledged that I have made good-faith errors in an amicus brief myself, and I understand all too well how these sources can be misread.  See my apology here. See one of the Seila Law co-signers for his generous post here: Michael Ramsey, “Jed Shugerman Apologizes to Tillman and Blackman (Updated).”

         My chief concern is how the Seila Law brief repeatedly misuses Blackstone and relies on scholarship that similiarly misinterpreted historical sources. The brief altered Blackstone’s words to change his meaning. I am also concerned that the reliance on the Decision of 1789 is problematic, because Sai Prakash’s “New Light on the Decision of 1789,” 91 Cornell L. Rev. 1021 (2006), cited in the brief and then cited in Justice Thomas’s Seila concurrence, relies upon a series of misreadings of the historical sources and miscategorizations of multiple House members. I document my concerns here in this draft, “The Indecisions of 1789: An Originalism Cautionary Tale.”

         The Seila Brief’s affirmative historical case is in Part I, which has two parts: A. “The English Constitutional Backdrop,” which relies more on Blackstone than any other source (p. 3 and from p. 6 to 11); and B. “The Decision of 1789,” through which the brief explicates and validates its interpretation of Article II (p. 12 to 19). The remainder of the brief rebuts arguments about the First Congress and then criticizes Humphrey’s Executor. It is fair to say that the brief’s two most significant sources are Blackstone and the First Congress. My point is that these errors are not marginal, but they are part of the central structure and substance of the brief.

First, Blackstone:

         The section “The English Constitutional Backdrop,” (p. 6 to 11) makes three basic errors: A) It assumes that by “dispose,” Blackstone meant “remove,” rather than use powers at one’s disposal, to grant, or to appoint, given other usage of the word in Blackstone and the U.S. Constitution; B) the brief misquoted and re-wrote Blackstone’s tentative passage on “great officers” and “subordinate magistrates,” fundamentally changing the meaning from introductory set-aside language of uncertainty to a certainty claim of “not”; and C) assumes that Blackstone’s reference to “great officers” or “principal secretaries” is the equivalent of the U.S. Constitution’s “principal officers,” when they are the equivalent of the cabinet and department heads. There are additional concerns laid out in D).

Here are three passages from the brief raising my concerns, with questionable passages in bold:

“First, in eighteenth-century English law and practice the executive magistrate had the power to remove principal executive officers as part of the executive power to carry law into execution. See, e.g., 1 William Blackstone, Commentaries on the Laws of England *243, 261–62, 327 (1st ed. 1765–69); Michael Duffy, The Younger Pitt 18–27 (2013); Murray Scott Downs, George III and the Royal Coup of 1783, 27 The Historian 56, 72– 73 (1964).”

– Amicus brief, p. 3

See below for a discussion of these three passages (pages 243, 261-62, and 327).

“Additionally, the power to remove principal executive officers unquestionably belonged to the executive magistrate as a necessary component of the executive power to carry law into execution, which the Constitution assigns to the President. Blackstone wrote that the king is “the fountain of honour, of office, and of privilege.” Blackstone, at *261. As to “officers,” Blackstone wrote, this meant that “the law supposes, that no one can be so good a judge of their several merits and services, as the king himself who employs them,” from which principle “arises the prerogative of erecting and disposing of offices.” Id. at *262. In a section of his Commentaries entitled “Of Subordinate Magistrates,” Blackstone described the principal officers—namely, “the lord treasurer, lord chamberlain, the principal secretaries, [and] the like”—as “his majesty’s great officers of state” and explained that these offices are not “in any considerable degree the objects of our laws.” Id. at *327. In other words, the principal officers of state were executive, not legislative, creatures.”

– Amicus brief, p. 8

“The power to create offices, dispose of (appoint to and remove from) those offices, and direct those officers was part of the king’s power to carry law into execution.”

– Amicus brief, p. 11:

This blog post focuses on the word  “dispose,” and the next will focus on the misquoting of Blackstone on page 8 (Blackstone said something more or less the opposite of what was claimed in the brief).

Blackstone included on his list of royal prerogatives the powers “of erecting and disposing of offices.” Blackstone at 261-62. See also Ilan Wurman, In Search of Prerogative, Duke L.J. 139-43 (citing this passage from Blackstone to support a claim of removal power).

However, context and general usage indicate that “disposing” means “at his disposal” for distributing them to his subjects. It seems the brief and “In Search of Prerogative” mistook “dispose” for a modern “disposal” system of removal or dissolution. Blackstone often used “dispose” to mean “use” or “distribute.” See, e.g., id at *218, 271, 273, 331. The rest of the passage indicates only one limit on the royal management of offices – no new fees – which seems to clarify that “dispose” meant distribute and not even to abolish the office. In the same section, Blackstone used the word “disposal” clearly in the context of distributions of honors and appointments, not removal:

“For the same reason, therefore, that honours are in the disposal of the king, offices ought to be so likewise; and, as the king may create new titles, so may he create new offices but with this restriction, that he cannot create new offices with new fees annexed to them, nor annex new fees to old offices; for this would be a tax upon the subject, which cannot be imposed but by act of parliament.” Id. at *271.

Elsewhere, Blackstone wrote, “But his present majesty having, soon after his accession, sponteneously signified his consent that his own hereditary revenues might be so disposed of as might best conduce to the utility and satisfaction of the public.” Id. at 331. See also id. at 218, 273

         Moreover, Article IV of the Constitution itself uses “dispose” as a synonym for “give,” “establish” or “make”: “The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.” See U.S. CONST. art. IV, § 3, cl. 2 

Even if, arguendo, the meaning of “dispose” was to abolish the office entirely, this power is not the same as removing and replacing the officer. The power to grant an office in the English system did not imply a power to remove an incumbent in order to grant it to someone new, for precisely the tradition of hereditary, life-time, or term-of-years property in offices that Blackstone himself discussed (“heritable property”) and that Birk, Manners, and Menand have documented.  If one assumes the proposition that the power to appoint implies the power to remove, that “the power to remove is incidental to the power to appoint,” it is striking that Blackstone does not mention such a general “incidental power” of removal in his extended discussion on “incidental powers” at pages *239-44.

Next up: Blackstone on “Subordinate Magistrates,” (Blackstone did not, in fact, “explain[] that these offices are not ‘in any considerable degree the objects of our laws,’” because he did not put the “not” there..)

Author: Jed Shugerman

Jed Handelsman Shugerman is a Professor at Fordham Law School. He received his B.A., J.D., and Ph.D. (History) from Yale. His book, The People’s Courts (Harvard 2012), traces the rise of judicial elections, judicial review, and the influence of money and parties in American courts. It is based on his dissertation that won the 2009 ASLH’s Cromwell Prize. He is co-author of amicus briefs on the history of presidential power, the Emoluments Clauses, the Appointments Clause, the First Amendment rights of elected judges, and the due process problems of elected judges in death penalty cases. He is currently working on two books on the history of executive power and prosecution in America. The first is tentatively titled “A Faithful President: The Founders v. the Unitary Executive,” questioning the textual and historical evidence for the theory of unchecked and unbalanced presidential power. This book draws on his articles “Vesting” (Stanford Law Review forthcoming 2022), “Removal of Context” (Yale Journal of Law & the Humanities 2022), a co-authored “Faithful Execution and Article II” (Harvard Law Review 2019 with Andrew Kent and Ethan Leib), “The Indecisions of 1789” (forthcoming Penn. Law Review), and “The Creation of the Department of Justice,” (Stanford Law Review 2014). The second book project is “The Rise of the Prosecutor Politicians: Race, War, and Mass Incarceration,” focusing on California Governor Earl Warren, his presidential running mate Thomas Dewey, the Kennedys, World War II and the Cold War, the war on crime, the growth of prosecutorial power, and its emergence as a stepping stone to electoral power for ambitious politicians in the mid-twentieth century.

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