Jed H. Shugerman (Boston University School of Law) has posted Venality and Functionality: A Strangely Practical History of Selling Offices, Administrative Independence, and Limited Presidential Power (Notre Dame Law Review, Vol. 100, 2024) (53 pages) on SSRN. Here is the 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. 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.
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 and leave in place the long-standing settlement on executive power and independent commissions, preserving the balance of Myers with Humphrey’s Executor, Wiener, and Morrison v. Olson.
Please see a different paper, "Freehold Offices vs. Despotic Displacement" at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4521119
for more detail on the Opinions Clause's original public meaning for decisional independence; on English common law default rules for charters and "good cause" removal without assigning it to any category of power; and for appendices on the Founders' Bookshelf, eighteenth-century dictionaries on executive power and removal, on the silence on removal during the Ratification Debates, and on unitary theorists' use of sources associating removal with "executive power"
Professor Shugerman presented an earlier version of this paper at the Originalism Works-in-Progress conference in San Diego in 2023, with Ilan Wurman (Arizona State) as commentator.
Posted at 6:07 AM