“Removal of Context,” Part VI: Historical Evidence Against Royal Removal Power

The Seila Law brief makes some bold historical claims about the background of English practice with some strong language:

The power to remove principal executive officers was one of the few royal powers not explicitly discussed, but the overwhelming weight of the evidence is that removal was part of the executive power, necessary to the President’s role of law execution, and not assigned to Congress.

Amicus p. 7

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.” Amicus at p. 9

By now, it should be clear that the authors did not have much evidence to support these claims. Otherwise, they would not have needed to rely on (and misinterpret and misuse) Blackstone’s word “dispose” as removal (see Part II here), nor would they need to misquote Blackstone by changing his statement of uncertainty about the law of offices into certainty. (see part III here). My paper shows evidence to the contrary, relying on a series of books on early modern English administration.

One of the Seila amicus co-authors, in his other work, actually cited (and misinterpreted) a book that offers strong evidence in the opposite direction, and indeed raises significant “questions.” More recent research also shows that the king did not have a general removal power.

Sai Prakash does not cite Blackstone in the section of his book (Imperial from the Beginning) on removal, but he does cite him earlier and highly selectively to support George III’s claims of royal “primacy”: “Blackstone had stressed the Crown’s personal exercise of power, writing that the Crown was not only the ‘chief, but properly the sole, magistrate of the nation; all others acting by commission from, and in due subordination to him.’” Prakash, Imperial at 29. The key word here was “magistrate,” Blackstone’s semi-synonym for executive. It is either a misunderstanding or a misuse of Blackstone to suggest that he more generally supported royal “primacy” when Blackstone more thoroughly stressed parliamentary sovereignty and supremacy. 

On the same page Imperial from the Beginning, Prakash cited G.E. Aylmer’s The King’s Servants as support for his own assertion: “Because most executives served at pleasure, the Crown could remove most officers without cause.” Prakash at 29. First, isn’t it a problem for the brief that it is only “most,” and not all or almost all? “Most” means some discretion to protect officers from removal, which is the rule under Humphrey’s Executor, contra the unitary theory’s absolutism. But far more problematic, the pages he cited either did not discuss tenure during pleasure or removal, or the pages stated the opposite: life tenure and even more protection for many executive ministerial offices than that which judges held. One part of a sentence on a page he cited states that “most of the great offices of state and the judgeships of King’s Bench and Common Pleas, were held during the King’s pleasure,” and later, Aylmer discusses how Secretaries of State served at pleasure. However, “great offices of state” and the Secretaries of State are the equivalent of the cabinet and department heads, as discussed above; and if Aylmer says only most of such cabinet level officers served at pleasure, does that not imply that some cabinet level secretaries had greater protection against removal? Is this not strong evidence against an assumption in the brief that the king must have had the power to remove any “great office of state” cabinet level official at pleasure?

The same passages in Aylmer discuss high executive offices like Chancellorship of the Exchequer In fact, the introductory sentence in this passage states, “It is difficult to generalize about the security of tenure” in the middle of a discussion of life tenure offices along with tenure during pleasure, and soon after his observation that “ministerial officers, being the Crown’s executive agents… might properly hold for life.” One of Aylmer’s most interesting findings is that seventeenth-century Stuart England offered more protection for many executive ministerial offices than that which judges held. Aylmer’s other books on later eras reflect the same job security of executive officers against removal. The rest of the chapter (pages 106 to 125) suggests that it was common for other executives below the cabinet level to have life tenure or good behavior tenure. I can find nothing in these pages supporting the broader claim made by Prakash on p. 29. I am not making a positive claim of any general rule; I am noting that Aylmer states plainly that “it is difficult to generalize” and find a general rule. I do not understand how Prakash is able to generalize from Aylmer when Aylmer explicitly declined to do so in these pages, and in fact, Aylmer’s section on tenure of office suggests the opposite of the claims in the brief: the Crown had only limited removal power over executive offices. These mistakes rise to the level of misuse of both Blackstone and secondary historical materials, as well.

(Note: Prakash cites pages 106 to 110 of the 1974 edition, and I am using the 1961 edition, which appears to track the same pagination that Prakash cited. Both editions have 521 pages of text, and the only difference appears to be the preface (xii pages in 1961, xviii pages in 1974) according to WorldCat. If the two editions are substantially the same, the problem is that the pages Prakash cites do not support a claim that “most executives” served at pleasure. I have sent Prakash a letter on October 15 to address this lack of support. If the issue the 1961 vs. 1974 editions, I have not received a reply as of Dec. 6, 2021. I am trying to track down the 1974 edition now.)

Last Wednesday, Ilan Wurman wrote his acknowledgment of the “dispose” error but non/acknowledgment of the misquotation of Blackstone’s “I do not know,” he concluded:

In any event, I am not persuaded that the brief’s central claim about English law and practice relating to the king’s removal power is incorrect, or even materially in doubt. Jed so far hasn’t pointed to specific evidence to the contrary…

To the contrary, I offered this evidence from Aylmer and Chester in that same paper, “Removal of Context.” It is troubling to see it dismissed so swiftly, especially after so many errors have been identified in the brief. And other recent historical evidence (see Manners & Menand, The Three Permissions: Presidential Removal and the Statutory Limits on Independence, Columbia L. Rev. 2020) raises many other doubts

Author: Jed Shugerman

Legal historian at Fordham Law School, teaching Torts, Administrative Law, and Constitutional History. JD/PhD in History, Yale. Red Sox and Celtics fan, youth soccer coach. Author of "The People's Courts: Pursuing Judicial Independence in America" (2012) on the rise of judicial elections in America. I filed an amicus brief in the Emoluments litigation against Trump along with a great team of historians. I'm working on "The Rise of the Prosecutor Politicians," a history of prosecutors and political ambition (a cause of mass incarceration), and "The Imaginary Unitary Executive," on the myths and history of presidential power in America.

2 thoughts on ““Removal of Context,” Part VI: Historical Evidence Against Royal Removal Power”

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: