Notice & Comment

Some Thoughts on My Seila Law Brief, by Ilan Wurman

Jed Shugerman has just posted a short paper, “Removal of Context,” and a series of short blog posts, in which he takes on originalists for misusing Blackstone passages in the removal power debates. Although Jed takes on a number of other scholars, too, he cites my amicus brief in Seila Law as an example of misuse, as well as a footnote in a longer law review article that I published in the Duke Law Journal in 2020. I think Jed’s paper is helpful and originalists should (of course) change their views in light of countervailing evidence, so I wanted to address Jed’s claims.

First, I should note that my latest view on the questions of executive power and removal can be found in my Duke Law Journal article, In Search of Prerogative. I used to believe the standard formalist argument that “the executive power” was a residual grant of all royal prerogative powers, until Julian Mortenson convinced me otherwise. In the Duke piece I explain why I agree with Julian that the executive power is merely the power to execute law and thus the President likely has less power over foreign affairs than the residual theorists believe, but why it’s also plausible to think that removal is a necessary incident of this power to execute law. I show that Madison’s statements in the so-called Decision of 1789, sometimes taken for evidence of the residual view, are consistent with the idea that the executive power is merely law execution, but that appointments and removals are an incident of that power.

In a footnote in that piece I relied on a passage from Blackstone, and in my Seila Law brief, for which I was the lead drafter on behalf of a number of other scholars, I relied on that and another passage from Blackstone, both of which Jed argues I misused. I am not so sure about the first passage, although I grant the matter is less clear than I originally believed. As for the second, I think Jed is right that I read too much into the passage. I don’t think the error changes any substantive conclusions, but I think it’s important to correct the record.

As to the first passage: In our brief, and in the footnote in my longer Duke piece, I said (quoting now from the latter) that “Blackstone certainly argued that principal officers were entirely under the control of the king.” For this proposition, I cited page 327 of Blackstone with the following parenthetical: “[H]is majesty’s great officers of state, the lord treasurer, lord chamberlain, the principal secretaries, or the like[, are not] . . . in that capacity in any considerable degree the objects of our laws . . . .” In the brief we similarly wrote that Blackstone had written that the great officers of state “are not ‘in any considerable degree the objects of our laws.’”

As Jed points out, the full passage creates some potential ambiguity. The full passage reads: “And herein we are not to investigate the powers and duties of his majesty’s great officers of state, the lord treasurer, lord chamberlain, the principal secretaries, or the like; because I do not know that they are in that capacity in any considerable degree the objects of our laws, or have any very important share of magistracy conferred upon them: except that the secretaries of state are allowed the power of commitment, in order to bring offenders to trial.”

Jed argues that this is not evidence of a removal power, but rather Blackstone is expressing uncertainty given his use of the phrase “I do not know.” Perhaps that’s right, but I read the passage differently. Blackstone seems to be saying, “I can’t say for sure in every case, but I do not understand them to be subject to these laws.” That would be consistent with earlier passages in which Blackstone wrote about the importance of unity in the executive and hence “all other[ magistrates] act[] by commission from, and in due subordination to” the monarch; it would also be consistent with Blackstone’s need to specify the exception for judges, who are “nominated indeed, but not removeable at pleasure, by the crown.” Still, I grant that it’s possible to interpret the passage differently.

Jed also argues that the clause “or have any very important share of magistracy conferred upon them” suggests that these officers were somehow not “magistrates,” but rather had other administrative roles “such as in finance, foreign affairs, religion” that apparently had little or nothing to do with law execution. He acknowledges, however, that Blackstone is most likely referring to the equivalents of the “heads of department” under the American Constitution. I don’t think I disagree. Indeed (although the point is disputed) I suspect that the head of department per the Appointments Clause is the same as the principal officer of the department per the Opinions Clause. So Blackstone does seem to be referring to what we would classify as at least some principal officers. Perhaps he believed they did not have any share of the magistracy because they were solely responsible to and merely extensions of the monarch, without any independent duties assigned by law. I don’t think any of that changes the principal meaning of the passage.

As for the second passage, in the brief I mentioned that the monarch had the power to erect and “dispose” of offices, and that this suggested a removal power. Blackstone wrote in regard to “officers” that “the law supposes, that no one can be so good a judge of their several merits and services, as the king himself who employs them,” from which principle “arises the prerogative of erecting and disposing of offices.” I later interpreted this passage as follows: “The power to create offices, dispose of (appoint to and remove from) those offices, and direct those officers was part of the king’s power to carry law into execution.” As Jed points out, however, the word “dispose” likely meant to “distribute.” Thus, the monarch could clearly appoint to those offices, but it did not necessarily follow that the monarch could remove them from office. I concede the point. The mere use of the word “dispose” does not prove a removal power, and I begged the question in my use of that passage. I regret the error and am grateful that Jed pointed it out to me.

Having said that, I do not think that changes the substantive outcome or the analysis in the brief. We ourselves admitted in the brief that Blackstone is largely silent on the question of removals. We argued that as a historical matter the monarch did in fact have a removal power (which King George III exercised). That is precisely why Parliament had to enact various statutes in order to limit this power, as it did with judges in the Act of Settlement. Moreover, other passages from Blackstone regarding the need for unity in the executive and the due subordination of all other magistrates, and his passage that “the law supposes, that no one can be so good a judge of their several merits and services, as the king himself who employs them,” strongly imply such a power, too. What’s more, nothing in Blackstone suggests that once the monarch “disposes” of an office, the monarch cannot do so again through a new appointment. Still, in the brief, I did assume that the word “dispose” itself was indicative of a removal power, and I now recognize that I made a mistake by reading too much into the passage.

In any event, I am not persuaded that the brief’s central claim about English law and practice relating to the king’s removal power is incorrect, or even materially in doubt. Jed so far hasn’t pointed to specific evidence to the contrary, and I have responded to the historical arguments of Daniel Birk and others in my Duke piece. But I look forward to continuing to read Jed’s scholarship on these issues.

Ilan Wurman is an associate professor at the Sandra Day O’Connor College of Law at Arizona State University.

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