Amicus in Wilcox v. Trump on Presidential Removal and Unitary Executive Theorists' Errors

Abstract

As courts consider President Trump's firings and question Humphrey's Executor as precedent, the more immediate questions should be focused on new historical evidence and new fact-checking finding pervasive and repeated historical errors and misinterpretations at the foundation of the unitary executive theory.

Since the Supreme Court decided Seila Law (2020), a wave of new historical research has shown that the Founding generation did not understand Article II to grant the President an indefeasible removal power over executive officials. In response, pro-unitary executive scholars have tried to offer new historical support. That evidence has not withstood scrutiny. For example, unitary theorists have been unable to address core critiques of their interpretations of sources from the First Congress. They cannot identify a single sentence from the voluminous Ratification Debates suggesting Article II "executive power" implied removal. Instead, they have repeated serious errors about English sources, the Ratification Debates, and the First Congress, including misquotations of Blackstone, repeatedly taking sources out of context, and what appears to be at least one grossly misleading statement (if not a demonstrably false statement) about the Ratification Debates.

Every scholar makes mistakes. Indeed, this author lives in a glass house. But in an Amicus role, serving as a friend to the Court, this brief is an originalist scholar's defense of originalism against unitary theorists' ahistorical, anti-originalist errors. These repeated errors are red flags that the theorists cannot find any real historical support for their claims, and they are yellow flags to slow down and proceed with caution.

The evidence of original public meaning is so unclear and contradictory that the Supreme Court would not have a sufficient originalist basis to go any further. Until the new evidence and these historical errors have been reviewed by the Supreme Court, lower courts should assume that Humphrey's Executor is - and will remain - good law and controlling precedent.

Keywords: Presidential power, Executive power, Independent agencies, Administrative law, Removal, Originalism, Constitutional Law