Recently published: Noah A. Rosenblum (Washington University in St. Louis) & Andrea Scoseria Katz (New York University School of Law), Removal Rehashed (136 Harv. L. Rev. Forum 404 (2023)) (responding [harshly!] to this article by Aditya Bamzai & Saikrishna Bangalore Prakash). From the introduction (footnotes omitted):
We are grateful to the Harvard Law Review Forum for the chance to respond in these pages to The Executive Power of Removal. In this new piece, Professors Aditya Bamzai and Saikrishna Bangalore Prakash aim to persuade readers that the President’s power to remove executive officers is exclusive and nondefeasible; textually mandated; and a matter of common assent at the time of the Founding.
There are high hurdles to proving this argument, and this piece fails to scale them. There is little evidence for any of these separate contentions, whether we look to the Constitution’s text or the history of the Founding.
We are not convinced that the Article says much that is new, either. For nearly fifty years, defenders of the “unitary executive” have relied on the same historical set pieces and sources to make the same arguments. Professors Bamzai and Prakash propose to reinvigorate this old debate by offering “new materials” and a rejoinder to recent critics. Yet it was unclear to us which materials were new or what the new materials added. And while a response to critics would be valuable, Bamzai and Prakash all but ignore the most compelling recent work critiquing unitary theory and a nondefeasible presidential removal power.
Despite these significant scholarly weaknesses, the piece may well receive a favorable reception at the Supreme Court. Over the last decade, its conservative majority has increasingly embraced a unitary theory of Article II, according to which the singular person of the President enjoys far-reaching powers over the government. Over the same period, the Court has committed itself to a simplistic originalist theory of interpretation, which takes the Constitution to mean what it was understood to mean when it was written. Putting these two trends together, the Court might be in search of an originalist foundation for unitary theory.
The potential utility of such a theory to the Court’s current jurisprudential project became apparent in the last two terms. In Seila Law LLC v. Consumer Financial Protection Bureau and its successor Collins v. Yellen, the Supreme Court announced that the Constitution grants the President an indefeasible power to remove the leaders of single-headed agencies. Yet it grounded its ruling in a democratic theory that no scholar believes traces back to the Founding. At the same time, in Dobbs v. Jackson Women’s Health Organization and New York State Rifle & Pistol Ass’n v. Bruen, the Court wrapped itself more fully in history and tradition, making them privileged sources of constitutional meaning.
This has made the Court’s current Article II jurisprudence intellectually indefensible. The Justices have discovered a new presidential power of removal. But they have not yet found how to ground it in history. Worse, the Court’s separation of powers decisions over the last decade have sparked a boom in research on the history of the early republic, the bulk of which undercuts the Court’s rulings.
The Court would thus benefit from scholarly reinforcement. The Executive Power of Removal might seem like a wished-for brief to deliver the Court from its predicament. The Court might be tempted to embrace it as a new originalist defense of its new jurisprudence.
This would be a mistake. The Article is not up to the task. The Executive Power of Removal fails to persuade on its own terms. It fails to seriously respond to critics of unitary theory. And it presents some of its sources in a way that could mislead less historically informed readers.
(Thanks to Mila Sohoni and Seth Barrett Tillman [separately] for the pointer.)
As a matter of style, I'm not sure it's helpful to the scholarly debate to label a position that's been widely defended by Justices and scholars "intellectually indefensible". Of course the authors are entitled to say in strong terms that they don't find that position persuasive. But the escalation of scholarly rhetoric here seems excessive.
As to the substance, here's a brief summary of the defense (though perhaps not "intellectual" enough for Professors Rosenblum and Katz). (1) The Constitution vests the President with the executive power and directs that the President take care that the laws are faithfully executed. (2) The eighteenth century meaning of executive power included — as the take care clause indicates — the power to enforce the law. (3) Congress has power to provide offices and officers to assist the President in enforcing the law, but Congress does not have power to alter the Constitution's core separation of powers directives (as to executive power or otherwise, for example as to the Constitution's allocation of the judicial power). (4) If the President does not control the actions of officers who enforce the law, the officers, and not the President, exercise the executive power of law enforcement. (5) Removal power is essential to full control, so for the President to have control over the officers who execute the law, the President must have the removal power [theoretically, it may be possible for the President to have complete control in some way other than by removal, but that has not been tried in practice]. (6) Post-ratification history, although mixed, shows that key framers such as Madison adopted this view of executive removal power, and the post-ratification practice is not strong enough to overcome the textual meaning. (7) The contrary view advanced by, for example, Professors Rosenblum and Katz, leads to absurd results — for example, that Congress could establish an office of attorney general, having complete control of federal law enforcement, with a lifetime appointment removable only by impeachment — and yet still say the President has the executive power.
Posted at 6:11 AM