Originalism and the Seila Law Brief, Part II: Prerogative vs. Royalism, Blackstone vs. Schmitt, McConnell vs. Amicus

This is the second post in a series of responses to Mike Ramsey and Ilan Wurman on the unitary executive history and their use of Blackstone and historical sources in their Seila Law amicus brief. As I said in my first post on Jan. 7, I want to reiterate my appreciation that these two co-authors have stepped forward to defend their use of Blackstone. I also appreciate that they have conceded error on one of the uses I raised (their misinterpretation of the royal prerogative of “disposing” offices as removing from office). They contend that this error was inconsequential. They also claim that changing the wording and plain meaning of a Blackstone quotation was simply a “clarifying” of its overall meaning. I disagree.

Blackstone’s list of prerogative powers may seem like an esoteric and irrelevant consideration for American law. However, it is precisely the clarity of an established enumerated list that they claim the Framers relied on, and that they say differentiates their approach of republican rule of law, as opposed to “unbounded” executive power or “Schmittian” authoritarianism (McConnell p.28). If they cannot cite removal as a listed prerogative power, they aren’t following their declared method or the historical narrative that they’ve claimed to distinguish their argument from royalist cherry-picking. The list is their own difference between being bound by law or unbound by law.

Wurman wrote, “I think Jed is right that I read too much into the passage. I don’t think the error changes any substantive conclusions, but I think it’s important to correct the record… 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.” 

Ramsey followed with a similar conclusion: “Ilan Wurman – the principal author of the Seila Law brief – acknowledged that the brief read too much into this particular phrase (and I agree).  But the overall implication of these passages seems unmistakably to be (as the brief said) that the king had ultimate control over prosecutions, law implementation, and offices.”

This response is one of the big-picture problems with the brief, and maybe a big-picture problem with originalism’s moving goalposts [Originalism claims to support rule of law values with clear and stable historical meaning, but here the history seems to be ripe for cherry-picking episodically for royal powers]. Both Wurman and Ramsey say here in these conclusions that the relevant historical question is “What were the powers of the English king circa 1787?” This is an assumption that the Framers were royalists or modeled the presidency on the full powers of the king. And are we to imagine that the Ratifiers knew the actual details of English administrative practices within English central government? Instead, we should focus on what the American Founders read, understood, and wrote. To be fair, they say elsewhere that this is the relevant question, which is why it is so important to get Blackstone right and not misinterpret or misquote him. The relevant question is about what the Framers and Ratifiers read, intended, and meant on this side of the Atlantic circa 1787.

The answer is both simpler and clearer (what was written on the established lists they used) and more complicated (how they split up that list). Their co-author Michael McConnell rejected Ramsey’s and Wurman’s royalist approach in his recent book aptly titled “The President Who Would Not Be King.” His more appropriate question is: What traditional English executive powers did the Framers intend to distribute? McConnell’s answer is that the Framers relied on Blackstone’s list of prerogative powers, and they did not automatically give them to the president, but instead, assigned some to Congress, some to the president, some to both, some to neither. Kings used and abused many powers. A list of prerogative powers is the line between legal and extralegal.

Why Do They Rely Heavily on Blackstone and Royal Prerogative?

Mike Ramsey wrote (with my emphasis added): 

“As described below and in a series of subsequent posts, on further reflection I think the Seila Law brief was correct in its characterization of Blackstone, though it might have done a better job of supporting its conclusions (one must bear in mind that the length of amicus briefs is limited and Blackstone was only a small part of the brief).”

In fact, Blackstone was their opening argument and the first five pages of their substantive argument. In the short “Summary of the Argument” on p. 3, they highlight Blackstone as one of their “important historical sources,” and the cite four pages of Blackstone for their core opening claim: “[I]n 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.” 

To Ramsey’s credit, he also acknowledged in this post why Blackstone was so important: “As Michael McConnell shows in his great book The President Who Would Not Be King, the Constitution’s framers looked to Blackstone’s descriptions of the executive power in England as a starting point for their design, although they also made very substantial changes.” But did the brief actually follow McConnell’s explicit method of tracking Blackstone’s prerogative powers “as defined by law”? And did McConnell’s book follow its stated method on tracking Blackstone’s “list”? If Blackstone did not refer to removal as a “prerogative” power or list it as such, then there is a problem with both the brief and the book.

Another reason these scholars put so much emphasis on Blackstone and the First Congress/”Decision of 1789” is because the Constitution explicitly addresses appointment but does not mention removal, and most of the standard kinds of evidence for original public meaning during the Convention and Ratification Debates does not support the unitary theory (e.g., both Madison in Federalist #39 and Hamilton in #77 explicitly reject the unitary theory on removal). [Links to my papers on the unitarians’ problems here: “The Indecision of 1789: An Originalism Cautionary Tale” ; “Vesting”; “Removal of Context.“;  “Faithful Execution” with Leib and Kent; “Fiduciary Constitutionalism” with Leib.] The unitary theorists need to reach back to Blackstone and the English king and reach forward to the First Congress in order to expand the meaning of “executive power” and claim that “executive power” included removal of executive officials. 

To modern 21st century ears and our assumptions about royal power, this claim seems unremarkable, but it turns out that early modern English administrative history is far more complicated than that, given that England was a limited monarchy mixed with aristocracy and offices-as-property. As Blackstone noted himself, many offices were not only protected from removal; they were often held for life, for an removable “term of years,” and were even inheritable to descendants and sellable (though sale was more heavily restricted). More on this below.

The unitary theorists rely on Blackstone because they need a historical basis for a capacious meaning of “executive power,” broad enough to give the president implied powers beyond the ones listed in Article II (e.g., veto and pardon), but, they say, not so broad as to be lawless. There are many problems with relying on the general history of the English monarchy as the Framers’ model for a republican president. These scholars know they cannot just create an American model based on things sometimes done by English kings. The scholars have said themselves that such an open-ended royalist approach to expanding the term “executive power” so capaciously would risk a kind of absolutism or authoritarianism. But the “English royal prerogative” could have provided a bounded and enumerated list of powers for the Framers to distribute, some to the president, some to Congress, and some to neither.

This claim that the Framers and Ratifying generation understood “executive power” to include “the royal prerogative” not otherwise assigned elsewhere is heavily contested, but for the sake of understanding the structure of [McConnell’s new version] of the unitary argument, let’s assume it arguendo. Once the unitary theorists assert this connection to the royal prerogative, they acknowledge that they rely on Blackstone to provide that bounded list. Here is a key passage from amicus co-author Michael McConnell’s introduction “Purpose, Scope, Methods,” in A President Who Would Not Be King (2020), p. 11:

In its broadest sense, “prerogative” sometimes is used to mean power undefined by law, unrestrained by law, and, when necessary, superior to law. Locke famously described prerogative as the “Power to act according to discretion, for the publick good, without the prescription of the Law, and sometimes even against it.” Prerogative is therefore associated with the Schmittian conception of sweeping emergency powers and an unchecked executive. In the British constitutional tradition, however, the prerogative powers (plural) were defined by law. The king could act unilaterally within his prerogatives but not range outside them. In this tamer version, the law defines the bounds and subject matter of prerogative powers but does not govern the content of decisions made within those bounds. Under the common law, executive decisions based on prerogative could be challenged as ultra vires but not as unreasonable, unjustified, or ill-motivated.

McConnell, p. 11

When McConnell contrasts his approach to the “Schmittian conception,” it’s a reference to Carl Schmitt, and those are strong words – appropriately strong. It’s not just a rejection of the openly Schmittian scholars like Adrian Vermeule. He is distinguishing his legal “bounded” approach from the unbounded approach to Article II “executive power,” and rightly allows a role for Congress (i.e., he does not embrace “indefeasibility” for implied powers). The notion is something like: We’re in the Anglo-American rule of law tradition, not mid-20th century German lawlessness. By recognizing the traditional limits of “ultra vires,” McConnell wisely acknowledged the limited scope of executive power. He also relies on Matthew Steilen’s excellent work on the Framers’ more limited use of “legal” prerogative “defined and limited by law,” as opposed to unbounded royalism (p. 29).

To follow through on such limits, McConnell relies on Blackstone’s explicit “lists,” similar to Article I’s enumerated powers limiting Congress’ power. In McConnell’s introduction, he announces:

A principal conclusion is that the framers self-consciously analyzed each of the prerogative powers of the British monarch as listed in Blackstone’s Commentaries, but did not vest all (or even most) of them in the American executive.

McConnell p. 11

These passages in “Purpose, Scope, Methods” laid out McConnell’s method and thesis: The Framers were working from Blackstone’s list of royal prerogative and distributed them to a mix of the president, the Congress, or neither; this method allows for implied presidential powers, but still reflects the Framers’ commitment to a limited or bounded executive.   McConnell often relied on Blackstone’s list of prerogative powers (or “established” “lists of royal prerogative powers”) as the basis for Article II several times. See 39, 95, 206, 235. See also 78, 256, 330. See also chapter 7, “The Framers’ General Theory of Allocating Powers.” The book’s title reflects the book’s method: the Framers were not re-creating a king, so don’t draw from history to find just anything done by a king. That would be cherry-picking from almost a millennium of uses and abuses of royal power. The limited lists of royal prerogative were a source of executive power “defined” and “bound… by law.” 

Then McConnell created a list of “the most important prerogative powers still vested in the Crown at the time of the composition of the United States Constitution” and included “removing officers other than judges.” P. 30. Similarly, he wrote at p. 99, “But the eighteenth-century monarch continued to have important prerogative powers, such as the power [McConnell lists fourteen, including]… to appoint and remove officers… to list some of the more important.”  McConnell made similar references to removal as a prerogative power or a royal power at 161-62, and implicitly 39, 95. 

The problem is that I cannot find a reference to removal or anything like it on any list of prerogatives in Blackstone or Joseph Chitty, A Treatise on the Law of the Prerogatives of the Crown, which McConnell stated were his two “principal sources for the law of prerogative.” p. 368 n. 7. The lists including removal on p. 30 and 99 have no footnotes, other than a general reference to Blackstone and Chitty citing no specific page numbers. Similar references to “lists” or defined prerogatives at p. 26-27, 206, 235, and 256 do not cite where to find such lists. The section “Presidential Power to Remove Officers” claims, “The king had the prerogative power to remove most officers at will. (The right to some offices was a form of property, held in fee…” (p. 162) The rest of the paragraph [Jan. 11 correction: passage on offices held at pleasure] cites only two specific examples from Blackstone (sheriffs and justices of the peace) and a 20th century historian William Holdsworth. Neither one described removal as a royal prerogative (the Holdsworth references were unclear, and to McConnell’s credit, he did not overclaim from Holdsworth’s discussion of the “cabinet” (454)). I can address these sources in more detail in my paper (or in a more detailed follow-up post).

[Update: photos here of p. 162 and its notes, including the surprising reliance on the conduct of King George III in 1783, in the aftermath of losing to the American rebels, suggesting here and in their amicus brief that it was a positive example, not an anti-model, for the Americans who had just rebelled against him. A 20th century historian’s loose reference to “prerogative” is not the same as a contemporary use of the term.]

P. 162

The bottom line is that I can’t find any evidence that Blackstone or any contemporary sources listed or explicitly described removal as a royal prerogative. Maybe I’ve missed something, but I have been chasing down their footnotes and sources for months. And Wurman’s and Ramsey’s replies have not pointed to anything specific, only some examples of offices held at pleasure (proving not enough) (Ramsey Part 3 & 4) or general passages on royal power (proving too much) — such as a claim that “dominion” over those “commissioned” or over “officers” means removal (Ramsey Part 1), except both categories include judges… who were not removable. So Blackstone’s “dominion” does not mean what they claimed it means.

As a practice, it seems like “cabinet” level officials were indeed removable at pleasure, but even for these offices, the removal power is not described in Blackstone or other contemporary sources as a prerogative power, as far as I’ve seen. In my paper and blogposts, I have identified several passages in Blackstone that suggest the opposite: not only was removal not a royal prerogative; it was not a general traditional norm. 1 Blackstone 334-36; 331, 341; 2 id. at 36; see my paper for the other contemporary and secondary sources explaining in more detail; More on that in a future post.

I have been working my way through Joseph Chitty, A Treatise on the Law of the Prerogatives of the Crown(1820), McConnell’s second most important source, and Sir Matthew Hale, The Prerogatives of the King [composed 1641–1649], cited by McConnell and the amicus. So far, I cannot find any reference to removal as a prerogative or general power, but I have found passages suggesting limits on removal throughout English history, Chitty 80-85; Hale 111-12. Some of these passages indicate life tenure offices at high level national positions.See Hale 111-12, see also JC Sainty, “The Tenure of Offices in the Exchequer,” 80 English Historical Review 449-75 (July 1965) on the important offices of chancellors and chamberlains.

Julian Mortenson, in his “Article II Vests the Executive Power, not the Prerogative Power,” Columbia L. Rev. 1224-28 (2019) created a list of 39 prerogatives from Blackstone, spanning 1 Blackstone pages 242 to 306, from the power “to make treaties, leagues, and alliances with foreign states and princes” and “the sole prerogative of making war and peace” to the power to build lighthouses and markets to the right to gold mines, washed-up goods, whales, sturgeon, and “valuable animals as are found wandering” without an apparent owner. One of those prerogatives was “the prerogative of erecting and disposing of offices,” which their amicus misconstrued. None of the listed powers mentioned removal or anything like it.

A Puzzle or a Solution?

McConnell suggests that it “is a puzzle” that the Framers put appointment explicitly in Article II, but not removal:

The king had the prerogative power to remove most officers at will… The Committee of Detail and the Convention addressed and allocated every other significant royal prerogative, but not the Removal Power. Yet it is hard to see how it could have been neglected; it is crucial to the structure of the executive branch… Given the undoubted importance of the Removal Power, it is mystifying that the drafters said nothing about it. There are no plausible strategic reasons for silence on the matter.

McConnell 162-63

Perhaps we can solve McConnell’s puzzle by challenging his historical assumption that removal was a royal prerogative… and his modernist assumption that removal at will is “crucial to the structure of the executive branch.” Maybe it is because McConnell’s general theory could be right, but the specific application here was wrong: The Framers may have been using Blackstone’s list of prerogatives to distribute and name powers, and the Framers did not name removal because removal was not on Blackstone’s list. This absence would be consistent Blackstone’s understanding of England’s mixed history of offices as lifetime property or unremovable for a term of years. (2 Blackstone 36).

McConnell vs. Amicus? Take Care vs. Vesting? Duties vs. Powers?

This is where the prerogative path in McConnell’s book diverges from the brief’s two paths. All three are historically problematic. 

First, McConnell may have been/could have been mitigating the “not on a prerogative list” problem by not relying on the Executive Vesting Clause for removal. Instead, he relies on the Take Care clause (166, 262). This move has advantages for supporting the unitary theory: In McConnell’s schematic, Vesting Clause powers are defeasible, while Take Care powers are indefeasible. McConnell also recognizes that the Executive Vesting Clause basis would go too far: it would invalidate civil service laws because “executive power” would apply to the removal of any executive officer (165).  But this opportunity to mitigate or avoid the prerogative problem gets lost when McConnell decides to invoke “Take Care” as a prerogative power. It seems like McConnell is now suggesting that the Take Care clause is a catch-all for combining royal prerogatives, and perhaps he is shoehorning an assumed/mistaken “removal” royal prerogative into an assumed “Take Care” prerogative. On page 68, he has a chart that lists the duty to “Take Care That Laws Be Faithfully Executed” as a “Prerogative Power of the King.” On page 166, he writes of removal as indefeasible, “The Take Care Clause, which is a duty that implies the power to supervise all officials engaged in execution of the law, has the hallmarks of prerogative.” Neither claim had a footnote. It does not appear McConnell was drawing on Blackstone, because, as Ethan Leib and I have found, Blackstone associated “faithful execution” language with the duties of bailments, not with royal prerogative and kings.  As Andrew Kent, Leib,, and I detailed in “Faithful Execution and Article II” in 2019, the “Faithful Execution” language in the Take Care clause and the Presidential Oath had a original public meaning of imposing duties and limiting discretion, and the language was not drawn from the empowering royal coronation oath, but from the limiting oaths of ministers, mid-level officials and even low-level functionaries. “Take Care” and “faithful execution” did not have the hallmarks of prerogative, nor is it clear why duty-imposing language would lead either to indefeasibility or to powers greater than the duty. As McConnell says elsewhere in the book in crticizing Justice Holmes, “Most of the provisions of Section 3 to which Holmes referred are actually duties rather than mere powers, which makes a significant difference…” 242-43. The language of “take care” and “faithful execution” is more duty than power, and it is puzzling that this non-royal republican language of duty and limitation could generate a power greater than England’s kings had.

The amicus brief did not follow McConnell’s problematic path to Take Care as prerogative. It stuck with the combination of take care and vesting. But that meant two different errors. First, they had to stick with arguing that removal was a prerogative power, and that led to mistakenly grasping for “disposal” (in “the prerogative of erecting and disposing of offices”) as removal. To Ramsey’s and Wurman’s credit, they concede error, but they fail to see its significance. They seemed to have understood the importance of McConnell’s anti-Schmittian “legal prerogative” hook, or otherwise they would not have stretched the meaning of “disposal” so far. Without a prerogative power, they’re grasping at things kings did, i.e., royalism. The disposal error is especially puzzling, not only because Blackstone consistently used the word as “distribution,” but so did McConnell – at least six times, and never as removal. McConnell 69, 97, 122, 229, 230, 275.

Without the word “disposal” at their disposal from Blackstone’s list, they are left with the approach that McConnell rightly rejected. The argument about whether the Framers intended to vest any of the royal prerogative to the federal government at all is heavily contested. The influential book by Eric Nelson, “The Royalist Revolution,” does not claim that some/many Framers wanted to restore the full panoply of late eighteenth-century royal power, but instead, Founders like Hamilton, Wilson, and Adams wanted to bring back traditional executive powers based on an established legalist prerogative, more often looking back to the seventeenth century. These Framers were still critics of the more recent monarchs’ use of powers. I don’t know of any evidence that the Framers were drawing more generally on whatever powers English kings had exercised or any new powers they had gained in the eighteenth-century. And even if they did, the scope of royal removal power beyond the cabinet is unclear. The amicus brief took on a burden to prove its claims about English royal power AND about how royal power fit into the Framers’ scheme and original public meaning. Even before we get to the problem of misquoting Blackstone, their amicus brief fell short of that burden when it turns out they fundamentally misinterpreted Blackstone’s list.

Up next: The brief’s second path: relying not on Blackstone’s legal prerogatives but on royalist anecdote. And why misquoting Blackstone is a big deal.

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.

6 thoughts on “Originalism and the Seila Law Brief, Part II: Prerogative vs. Royalism, Blackstone vs. Schmitt, McConnell vs. Amicus”

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 )

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: