“Removal of Context,” Part V: Contradicting Claims About “Executive Power” and Removal

This post is a part of a series on the errors and misquotations in a Seila Law amicus brief by some of the most prominent originalist scholars and supporters of the unitary executive theory. It is increasingly clear that the unitary executive theory is built on sand, a collection of ahistorical assumptions, errors, and misreadings of soures. see Parts I, II, and especially Part III (the earlier Blackstone misquote) and Part IV (other misuses of Blackstone) below. And there are more posts still to come.

Here is another unsupported claim in their brief:

“Other parts of Blackstone likewise indicate that the power to appoint, control, and remove officers was part of ‘the executive power.‘ Blackstone wrote that the king had a right to erect a particular kind of office—courts—because it was ‘impossible’ for the king to exercise ‘the whole executive power of the laws’ on his own. Blackstone *257.”

Seila Law amicus at p. 9 (emphasis added)

Read this paragraph again. It is mystifying and actually proves the opposite point. Did Blackstone or eighteenth-century English law clearly distinguist between executive and judicial power? The second sentence contradicts the basic point that these scholars were making in their brief: Because the king could not exercise “the whole executive power of the laws,” according to Blackstone, the king created courts. The implication is that the king created courts to help exercise executive power. How did the authors write this sentence wihtout pausing and thinking, “Wait. Maybe the English did not have the clear distinction between executive and judicial power that we have assumed.” Not only are these scholars having a hard time reading Blackstone correctly. It seems they are having difficulty writing their own sentences to be consistent with their ideological assumptions about a formal, clear, and categorical meaning of “executive.” It’s astonishing.

Here is the full quotation from Blackstone, and indeed, it indicates that judges were considered part of the executive power and law execution, with four different references to “execution” as the power that the courts perform or assist, and yet, these judges were protected from removal at pleasure:

The original power of judicature, by the fundamental principles of society, is lodged in the society at large; but, as it would be impracticable to render complete justice to every individual, by the people in their collective capacity, therefore every nation has committed that power to certain select magistrates, who with more
case and expedition can hear and determine complaints; and in England this authority has immemorially been exercised by the king or his substitutes. He therefore has alone the right of erecting courts of judicature; for, though the constitution of the kingdom hath intrusted him with the whole executive power of the laws, it is impossible, as well as improper, that he should personally carry into execution this great and extensive trust: it is consequently necessary that courts should be erected to assist him in executing this power; and equally necessary that, if erected, they should be erected by his authority. And hence it is that ull jurisdictions of courts are either mediately or immediately derived from the crown, their proceedings run generally in the king’s name, they pass under his seal, and are executed by his officers.

1 Blackstone 266-67 (or 257 in other editions)

Somehow the unitary scholars thought this passage supported their point about executive power being subordinate under the king: “Other parts of Blackstone likewise indicate that the power to appoint, control, and remove officers was part of ‘the executive power.’” If judges were part of their conception of executive power, then clearly the English king did not have the power to remove these “executive” magistrates and officers. If the point is that the American Constitution was also different from England’s… well, that is precisely the point. The U.S. Constitution was a decisive break from monarchy and royal absolute powers.

At this point, it appears that the unitary scholars somehow got lost in both the forest and in the trees with Blackstone: Lost in the details of Blackstone, they repeatedly misread and misquoting his sentences. But what are they doing in the Blackstone rabbit hole in the first place? Why is the English king the obvious model for the Framers’ view of executive power? If they think Blackstone shows a clear original public meaning of executive power, this passage contradicts them, because the English thought executive power included judicial power.

This Blackstone page was the only citation to support a sentence about “other parts of Blackstone” on “the power to… remove officers,” and this section is entirely about judicial offices and the limitations on royal removal power, with no implication about other offices and a more robust removal power over them. It is unclear how the second sentence on courts relates to the first sentence on executive removal, nor is it clear why the brief cites this page at all. This confusion raises doubts about whether amicus, in fact, could find other parts of Blackstone indicating a general power to remove officers. To the contrary, other parts of Blackstone indicate limits on royal removal power over executive offices.

In fact, Blackstone only twice mentions the tenure term “durante bene placito” (service at pleasure), the kind of tenure assumed by unitary theory. The first use was about the rejection of tenure during pleasure — in favor of tenure during good behavior for judges. The second use was for sheriffs. The English term “at the pleasure” appears only in reference to a church office and military offices,[1]  while “during pleasure” does not appear at all in Blackstone. Royal removal power was not a given, and nor was tenure “during pleasure.”

Next up: The missing and misused evidence to the contrary: These scholars cited a historian who actually showed king did not have a general default removal power.

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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