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

89 Pages Posted: 29 Jul 2023 Last revised: 7 Feb 2024

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. Moreover, this Article explains why it was widely understood that monarchs lacked a general removal power and why so many public offices were treated as private property: a surprisingly functional “venality” system. Many powerful officeholders in European monarchies bought their offices, 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. Montesquieu rejected “displacement” at will (i.e., removal at pleasure) as a tool of “despotic government,” and he endorsed “vénalité.” He and many English legal writers defended such limits on removal as a practical system of family investment, incentives, checks, and balances. The sale of offices-as-property may seem strange and corrupt today, but it was a practical foundation for the nation-state, modern administration, and colonial expansion.

This history shows how removal was neither necessary nor sufficient for law execution. It offers a consistent explanation for the text of Article II, The Federalist Papers, and the First Congress’s debates and statutes. New research from state constitutions and Founding Era debates shows that opinions clauses signaled structural independence and that the federal Opinions Clause implied independent “department heads.”

This history also supports more flexible and functionalist interpretations of the separation of powers, as the categories of “executive power” and “judicial power” were still inchoate and evolving in 1787. In the parallel developments in charters and corporate law of offices, this Article shows a gradual shift from formal freeholds to functional “good cause” removal default rules – and not removal at will, and still no identification of this power as “executive.”

As new litigants argue for overturning statutes and longstanding precedents, this history shows, in the very least, that unitary theorists have not met their evidentiary burden, and it should caution the Roberts Court to exercise more restraint on presidential power and originalist methods.

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 (July 25, 2023). Available at SSRN: https://ssrn.com/abstract= 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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