Freehold Offices vs. 'Despotic Displacement': Why Article II 'Executive Power' Did Not Include Removal (with Appendices)

84 Pages Posted: 12 Dec 2024 Last revised: 3 Nov 2023

See all articles by Jed H. Shugerman

Jed H. Shugerman

Boston University - School of Law

Date Written: July 25, 2023

Abstract

The Roberts Court has asserted that Article II’s “executive power” implied an “indefeasible” or unconditional presidential removal power. In response to counterevidence from the Founding Era, unitary executive theorists have claimed a “British Backdrop” of a general removal power under the English Crown and European “executive power.” These assumptions are incorrect.

This Article shows that many powerful executive officers through the late eighteenth century, especially high English Treasury offices and even “department heads” in the cabinet, were unremovable. A long common law tradition protected many English offices as freehold property rights. European administration depended upon a flexible mix of removable patronage offices and unremovable offices for sale. 

This paper goes beyond "Venality and Functionality" with additional research on:

1. The Opinions Clause from parallel state constitutional antecedents and successors and from commentary in the Ratification Debates and the First Congress confirming a meaning of decisional independence;

2. The backdrop of English common law on charter/corporate default rules of "good cause" removal ("amotion"), without reference to who would exercise the power (i.e., not described as an "executive" power within the corporate structure, as a parallel to American written "charter" constitutions;

3. The Founders' novelty of the concept of "judicial power" as separate from "executive power," which suggests that the concept of "separation of powers" was inchoate, informal, and lacked a background of original public meaning.    

4. Appendices on:

A. The silence on "removal" on the Founders' Bookshelf

B. 18th Century Dictionaries on "Executive Power," "Removal," "Prerogative" etc., confirming that removal was almost never included as an "executive power" or "prerogative" and also reflecting little evidence of "judicial power" as a category.

C. The silence on removal in the Ratification Debates

D. Questions about the use of sources in Bamzai & Prakash's "The Executive Power of Removal," Harv. L. Rev. 2023.

Keywords: legal history, constitutional law, separation of powers, presidential power, executive power, originalism, constitutional theory

JEL Classification: K23, N21

Suggested Citation

Shugerman, Jed H., Freehold Offices vs. 'Despotic Displacement': Why Article II 'Executive Power' Did Not Include Removal (with Appendices) (July 25, 2023). Boston Univ. School of Law Research Paper No. 4521119, Available at SSRN: https://ssrn.com/abstract=4521119 or http://dx.doi.org/10.2139/ssrn.4521119

Jed H. Shugerman (Contact Author)

Boston University - School of Law ( email )

765 Commonwealth Avenue
Boston, MA 02215
United States

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