Recently filed, in Securities and Exchange Commission v. Jarkesy (U.S. Supreme Court, pending): Amicus brief of Jed H. Shugerman in Support of Petitioner. From the "Interests of Amicus Curiae":
Amicus Curiae Jed Shugerman is a Professor of Law at Boston University. He has a JD and a History PhD. He subscribes to the interpretation of the Constitution based on original public meaning (i.e., originalism) but has found many errors and misunderstandings in originalism-in-practice in the unitary executive theory. This brief offers new evidence about the original public meaning of Article II and critiques new claims by unitary theorists. His findings and analysis are contained in recent academic articles and are part of a forthcoming book, A Faithful President: The Founders vs. the Originalists.
And from the introduction to the "Summary of Argument" section:
In holding that the SEC’s administrative law judges’ protections against removal were
unconstitutional, the Fifth Circuit extended Free Enterprise Fund v. PCAOB, 561 U.S. 447 (2010), and Seila Law LLC v. CFPB, 140 S. Ct. 2183 (2020). Those precedents were based on an incomplete historical record. Subsequent historical research shows that the Founding generation never understood Article II to grant the President an indefeasible removal power.
To be sure, this evidence does not suggest Congress should have unlimited power to protect any executive office or delegate removal to itself. Rather, the bottom line is that the evidence of original public meaning is so unclear and mixed that this Court has no sufficient originalist basis to overturn long-standing congressional statutes. While the SEC’s arguments are sufficient to reverse the Fifth Circuit’s ruling without reconsidering this Court’s prior precedents on removal, it should consider doing so in light of the historical evidence.
Part II of the Brief specifically addresses academic arguments for executive removal power by Professor McConnell, Bamzai & Prakash, and Wurman.
Posted at 6:14 AM