Earlier this month Professor Jed Shugerman, in a series of blog posts and a short article, sharply criticized originalist executive power scholars, and particularly a brief submitted to the Supreme Court in Seila Law v. CFPB. (See here [Originalism Blog discussion], here [Shugerman article] and here [response by Ilan Wurman].) One key point of dispute was the extent to which Blackstone’s Commentaries indicates that the eighteenth-century English monarch had removal power over executive officers.
The brief (which I signed and assisted in writing) argued that by the Constitution’s original meaning, the President had removal power over executive officers from Article II, Section 1 and 3. Blackstone’s view of the English system is only a small part of this argument, but it is an important part: as Michael McConnell shows in his great book The President Who Would Not Be King, the Constitution’s framers looked to Blackstone’s descriptions of the executive power in England as a starting point for their design, although they also made very substantial changes.
So in considering presidential removal power, it’s useful — though not decisive — to start with Blackstone’s description of the English system. (Aside: Blackstone’s work was not always reliable as to what the English system actually was, but its wide circulation in America makes it a good indication of what the Constitution’s drafters and ratifiers understood the English system to be.)
I appreciate Professor Shugerman raising questions about the correct reading of Blackstone, and prompted by his criticism I’ve taken a second and closer look. As described below and in a series of subsequent posts, on further reflection I think the Seila Law brief was correct in its characterization of Blackstone, though it might have done a better job of supporting its conclusions (one must bear in mind that the length of amicus briefs is limited and Blackstone was only a small part of the brief).
The relevant discussion in the Commentaries is volume 1, pp. 242-253 (of the 1765 edition). Here Blackstone makes four key points crucial to the topic of removal, which I’ll discuss in separate posts.
(1) First, Blackstone says that executive power is unified in the king. His discussion begins:
We are next to consider those branches of the royal prerogative, which invest this our sovereign lord, thus all-perfect and immortal in his kingly capacity, with a number of authorities and powers; in the exertion whereof consists the executive part of government. This is widely placed in a single hand by the British constitution, for the sake of unanimity, strength and dispatch. Were it placed in many hands, it would be subject to many wills: many wills, if disunited and drawing different ways, create weakness in a government: and to unite those several wills, and reduce them to one, is a work of more time and delay than exigencies of state will afford. The king of England is therefore not only the chief, but properly the sole, magistrate of the nation: all others acting by commission from, and in due subordination to him: in like manner as, upon the great revolution in the Roman state, all the powers of the antient magistracy of the commonwealth were concentrated in the new emperor… (pp. 242-43.)
This is a powerful statement of the theory of the unitary executive. The “executive part of government” is “placed in a single hand” – and that unity is justified in terms that anticipate the framers’ arguments for executive unity: “unanimity, strength and dispatch.” Although it doesn’t say anything directly about removal power, it strongly implies that the king had complete control over executive officers, which (as Madison said later in the 1789 removal debates) necessitates the ability to remove them.
Blackstone then discusses the specific powers “whereof consists the executive part of government.” After a long discussion of foreign affairs and military powers (pp. 245-257), Blackstone turns to the king’s powers as “fountain of justice and general conservator of the peace of the kingdom.” (p. 257.) This discussion brings him to matters we think of as execution of the law, in which Blackstone again speaks of the king’s power in unitary terms:
[A]s the public, which is an invisible body, has delegated all it’s power and rights, with respect to the execution of the laws, to one visible magistrate, all affronts to that power, and breaches of those rights, are immediately offenses against him [i.e., the king], to whom they are so delegated by the public. His is therefore the proper person to prosecute for all public offenses and breaches of the peace, being the person injured in the eyes of the law. (pp. 258-259.)
From the same original, of the king’s being the fountain of justice, we may also deduce the prerogative of issuing proclamations, which is vested in the king alone. These proclamations have then a binding force, when (as sir Edward Coke observes) they are grounded upon and enforce the laws of the nation. For, though the making of laws in entirely the work of a distinct part, the legislative branch, of the sovereign power, yet the manner, time and circumstances of putting those laws in execution must frequently be left to the discretion of the executive magistrate. And therefore his constitutions or edicts, concerning these points, which we call proclamations, are binding upon the subject, where they do not either contradict the old laws, or tend to establish new ones; but only enforce the execution of such laws as are already in being, in such manner as the king shall judge necessary. (p. 261.)
Finally on this point:
The king is likewise the fountain of honour, of office, and of privilege: and this in a different sense from the wherein he is stiled the fountain of justice; for here he is really the parent of them. It is impossible that a government can be maintained without a due subordination of rank; that the people may know and distinguish such as are set over them, in order to yield them their due respect and obedience; and also that the officers themselves, being encouraged by emulation and the hopes of superiority, may the better discharge their functions: and 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 the same principle also arises the prerogative of erecting and disposing of offices: for offices and honors are in their nature convertible and synonymous. All offices under the crown carry in the eye of the law and honour along with them; because they imply a superiority of parts and abilities, being supposed to be always filled with those what are most able to execute them. (pp. 261-262)
These passages confirm that law execution – specifically encompassing prosecution of offences, implementation of laws, and appointment of subordinate executive officers – is part of the unified executive power of the king that Blackstone discussed in his opening description. They also continue to speak of these specific powers as unified in the king: the king has all the power of prosecution, all the power of issuing proclamations, and all the power over offices.
It’s true, as Professor Shugerman points out, that there’s nothing in these passages directly addressing removal of officers. As Shugerman specifically emphasizes, the power of “erecting and disposing of offices” is most immediately about appointments, not removals: “dispos[e]” in this context is probably best read to mean generally to “distribute,” not specifically to “withdraw.” In his response to Professor Shugerman, Ilan Wurman – the principal author of the Seila Law brief – acknowledged that the brief read too much into this particular phrase (and I agree). But the overall implication of these passages seems unmistakably to be (as the brief said) that the king had ultimate control over prosecutions, law implementation, and offices. That is the essence of the unitary executive. Most notably, “the law supposes, that no one can be so good a judge of [officers’] several merits and services, as the king himself who employs them” and “the offices [are] supposed to be always filled with those what are most able to execute them.” Thus these passages strongly imply – without saying in so many words – that the monarch had power of removal. Otherwise, the law execution powers would not be truly united in the monarch, as Blackstone says they are, and the king would not be able to judge and control the service of those he employed, as Blackstone says he does. And there is not a hint in any of these descriptions that the king’s power in this regard is limited by inability to remove unsatisfactory executive officers.
My next post on the subject turns to a key area in which, in Blackstone’s description, the king’s removal power was limited: the tenure of judges. His discussion there is in sharp contrast to the foregoing discussion of the king’s unitary power over law execution.
- Blackstone on the Unitary Executive - December 26, 2021
- The Constitution and the Minimum Corporate Tax Agreement (Part 2) - November 7, 2021
- The Constitution and the Minimum Corporate Tax Agreement - October 31, 2021