Notice & Comment: My Reply to the Unitary Executive Theorists on the Misuse of Historical Materials

I summarized my replies to the unitary executive co-authors of the Seila Law brief (Steven Calabresi, Michael McConnell, Sai Prakash, Jeremy Rabkin, Mike Ramsey, Michael Rappaport, and Ilan Wurman) in a post on the Yale Journal on Regulation’s blog “Notice and Comment” here.

Some key points and conclusions:

“I think it is important to acknowledge how this misquote itself is a microcosm of a pervasive problem in originalism: because of a series of assumptions, originalists often jump to conclusions of certainty from more uncertain and contested meanings. Here, Blackstone was explicitly saying “I do not know” whether something was true about the law of offices, and the unitary theorists changed the words to jump from Blackstone’s explicit uncertainty to a statement of certainty in their brief and two articles. That should be a serious red flag about originalist methods, and it should have been a moment for the authors to pause and reconsider their strongly worded conclusions in their brief: claims of “overwhelming weight of the evidence” (p. 7), that their conclusions were “unquestionabl[e],” that our [Kent, Leib & Shugerman] alternative interpretation was “simply a disagreement with the Constitution.” (p. 17)…

“To be clear, the misquoting of Blackstone may be their most obvious error, but these are not the most serious, pervasive, and fundamental historical errors. The “Decision of 1789” plays a more central role in the unitary executive precedents (MyersSeila, etc.), and Sai Prakash’s misinterpretations of First Congress sources were more widespread (Appendix here). Former federal judge Michael McConnell’s book has gaps, unsupported claims, and fundamental errors undermining its thesis (described here in “Prerogative vs. Royalism, Blackstone vs. Schmitt, McConnell vs. Amicus”). After many months of sharing my concerns privately, only Wurman and Ramsey have replied publicly, and only on the narrower question of Blackstone on the removal power…

If one misquotes a major source in a brief – and then offers a defense that one got the gist right anyway – one ought to have overwhelming evidence for that “gist.” (And even then, it’s still problematic to change any quotation’s plain meaning). Unfortunately, they have not offered any evidence that Blackstone recognized a general, traditional royal power of removal. Their new Blackstone citations backfire.

I am not simply suggesting that their historical evidence (for the claim that Blackstone’s Commentaries are evidence that the king had a general power or prerogative to remove “executive” officers as part of “executive power) is weaker than the evidence I and others have offered. To be clear: I find that none of their evidence actually supports their brief’s general claim…

Their Retreat from “Overwhelming Evidence” to Mere “Plausibility”: From Their Originalism to Royalism:

In some replies, Wurman makes some surprising clarifications. He has retreated to claiming that his reading is simply “plausible,” which is a far cry from the brief’s overclaiming of “the overwhelming weight of the evidence” (p. 7) and “unquestionably” that the king could remove “principal executive officers” (even though that category did not exist in Blackstone). I did not think originalists believed that merely “plausible” readings were acceptable in constitutional interpretation. They still have not acknowledged the inappropriate chutzpah of writing in an amicus brief that our historical argument in “Faithful Execution and Article II” was “simply a disagreement with the Constitution.” (p. 17).

Wurman also claims that I “fundamentally misunderstand [their] argument. Of course we know about the Act of Settlement. Parliament is supreme and can restrict *any* royal power. But it had to enact removal restrictions *because* otherwise the king had a removal power.”

It is still unclear why the English monarch is the right baseline for the American republican chief executive, but even assuming it is, arguendo, this is yet another unsourced claim. English removal powers and their limitations were worked out between king and Parliament over centuries, going in different directions over time. Blackstone suggested no default rule, and the best reading of Blackstone and other sources like Aylmer is that royal removal powers were contested and limited over time. Many offices were removable, many were not, but Blackstone had no general category of “principal executive officer,” and even if one could project such a category back onto Blackstone, he did not discuss “removal” as a royal prerogative or a general rule for “executive officers.”

This is where these scholars have retreated to royalism, rather than republicanism, even though McConnell fundamentally rejected this approach (the problem of relying on whatever a king could do, rather than the Founders’ unbundling of the list of prerogatives). In fact, that’s the point of his own title, “A President Who Would Not Be King,” and the point of his introduction, method, and thesis. McConnell himself tells us that pointing to English royal practices as the basis for presidential power is royalism and Schmittian, and not faithful to the Founding. I can’t help but conclude that, in the end, both the brief and the book are royalism, not originalism.

The Seila Law brief, Prakash’s article on the Decision of 1789, and McConnell’s book each misuse many historical sources, and many of their core historical claims are not backed by evidence. I ask readers to take a look for yourselves. The unitary executive theory is premised on the concept of presidential accountability. What about accountability to historical accuracy? Accountability to the courts for misquoting sources in briefs and misusing sources in books and articles cited by the Supreme Court? Originalism claims its legitimacy from a historical record and historical interpretation being clear, reliable, and open to new evidence. If the amicus brief’s historical arguments do not stand up to scrutiny, and if the Supreme Court has been citing this flawed historical scholarship, what would be the appropriate next step for originalist amicus authors?

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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