Freehold Offices vs. 'Despotic Displacement': Why Article II 'Executive Power' Did Not Include Removal
69 Pages Posted: 29 Jul 2023 Last revised: 3 Nov 2023
Date Written: July 25, 2023
The Roberts Court has relied on an assertion that Article II’s “executive power” implied an “indefeasible” or unconditional presidential removal power. In the wake of growing historical evidence against their theory, unitary executive theorists have fallen back on a claim of a “backdrop” or default removal rule from English and other European monarchies. However, unitary theorists have not provided support for these repeated assertions, while making a remarkable number of errors, especially in the recent “The Executive Power of Removal” (Harvard L. Rev. 2023).
This Article offers an explanation for the difficulty in supporting this historical claim: Because it is wrong. Many officeholders in European monarchies bought their offices as part of a mutual bargain, and in return for their investment, their office was protected as property – especially in England. European administration depended upon a flexible mix of removable patronage offices and unremovable offices for sale. Legal scholarship has missed this history, but many European historians and economic historians have explained this widespread system of “venality.” Montesquieu’s The Spirit of the Laws rejected “displacement” at will (i.e., removal at pleasure) as a tool of “despotic government,” then endorsed “vénalité” limits on removal as a practical system of family investment, incentives, checks, and balances in constitutional monarchies. The sale of offices-as-property may seem strange and even corrupt to modern readers, but it was a long-lasting and practical foundation for the nation-state, modern administration, and colonial expansion.
Whereas vénalité had grown out of control in revolutionary-era France, the English had a more stable system of freehold property rights, a distinctive English protection of the officeholders’ investment against “despotic” displacement. Many central officers, powerful Treasury officers, and even some established eighteenth-century cabinet offices were unremovable. This history explains the silence on removal in the text of Article II, in the Convention and Ratification debates, especially in the Anti-Federalists’ speeches, and gives context to Hamilton and Madison rejecting presidential removal in the Federalist Papers. The sale of offices-as-property shaped colonial America and the Declaration of Independence, and it was the background for the Constitution’s “offices of profit” and early congressional requirements of financial “sureties of office.”
When unremovable officers were uncooperative with the English monarch’s policy goals, the Crown turned to alternate ways to “execute” and “take care” of execution: through systems of rotation and the creation of higher layers of offices. Removal was neither necessary nor sufficient for law execution. Unitary theorists’ mistaken assumptions about “executive power” are not only a warning for the Roberts Court to exercise restraint in upcoming cases on presidential power and the administrative state; they also illustrate originalism’s blindspots and biases in practice.
Keywords: legal history, constitutional law, separation of powers, presidential power, executive power, originalism, constitutional theory
JEL Classification: K23, N21
Suggested Citation: Suggested Citation