Yale Law School
The Supreme Court's recent decisions that the President has an unconditional or indefeasible removal power rely on textual and historical assumptions and a "removal of context." This article focuses on the "executive power" part of the Vesting Clause and particularly the unitary theorists' misuse of Blackstone. Unitary executive theorists overlook the problems of relying on England's limited monarchy: the era's rise of Parliamentary supremacy over the Crown and its power to eliminate or regulate (i.e., make defeasible) royal prerogatives. Unitary theorists provide no evidence that executive removal was ever identified as a "royal prerogative" or a default royal power. The structure of their historical comparison is flawed: the Constitution explicitly limits many royal powers, such war, peace (treaties), and the veto, so that the President is weaker than the king, but they still infer from Article II other unnamed "executive powers" (like removal) that would make a President stronger than a king.
When one investigates the unitary theorists' evidence and follows their sources, one finds a pattern ofmisinterpreting historical sources, especially Blackstone. In particular, the recent amicus brief by unitary scholars in Seila Law misinterprets Blackstone's use of the word "disposing" of offices as removing, instead of dispensing or appointing, and then misquotes a passage from Blackstone, reversing his meaning from his uncertainty about the relevant law of offices to a certain positive claim about removal. These misreadings are more than just small errors. They show that the unitary theorists were not following their claimed historical method of English "prerogative . . . defined by law. " Blackstone provides clear evidence against a default royal removal power. These errors are also a cautionary moment about originalism's methodological flaws.
Jed H. Shugerman,
Removal of Context: Blackstone, Limited Monarchy, and the Limits of Unitary Originalism
Yale Journal of Law & the Humanities
Available at: https://scholarship.law.bu.edu/faculty_scholarship/3583
Draft available on SSRN