“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

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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