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2023 Jotwell: J. Things We Like 1 (2023)
In Search of the Presidential Removal Power: What Venality (Offices as Property) Tells Us about the Constitutional Dogs That Did Not Bark and the Howling Hounds of Bureaucratic Accountability

handle is hein.journals/jotwell2023 and id is 331 raw text is: Administrative Law The Journal of Things We Like (Lots) https:/adlaw.jotwell.com In Search of the Presidential Removal Power: What Venality (Offices as Property) Tells Us About the Constitutional Dogs that Did Not Bark and the Howling Hounds of Bureaucratic Accountability Author : Jodi Short Date : July 26, 2023 Jed H. Shugerman, Freehold Offices vs. Despotic Displacement: Why Article II Executive Power Did Not Include Removal (Jul. 25, 2023) available at SSRN. Originalist scholars have been hard at work to backfill justifications for the Roberts Court's pronouncement in Seila Law of an indefeasible presidential power to remove executive branch officers (a prominent recent example is Aditya Bamzai and Saikrishna Bangalore Prakash, The Executive Power of Removal). Unable to point to constitutional language authorizing (much less requiring) presidential removal, purported originalists have located this power provisionally in Article il's broad grant of The executive Power to the President based in part on the argument that executive power, as understood by the Founders, undeniably encompasses the power to remove executive officers at will. Into this consequential debate wades Jed Shugerman, with Freehold Offices vs. Despotic Displacement: Why Article I Executive Power Did Not Include Removal. Shugerman persuasively demonstrates that there was no general rule of indefeasible executive removal power prior to and at the founding. Instead, there was a mix of office types-from cabinet-level officers who served at the pleasure of the king, to patronage offices usually held at the pleasure of the patron officer, to offices that were bought and sold as unremovable freehold property (a practice known as venality). The article itself is a tour de force, presenting extensive evidence to support this office hybridity claim and responding point-by-point to existing and anticipated counterarguments by unitary executive theorists. And it is but one installment in a larger project to debunk unitary/originalist claims about the President's removal power (which also includes The Indecisions of17: Inconstant Oriinalism and Strategic Ambiguity and an extensive Appendix to this article cataloguing Unitary Executive Theorists' misuse of historical sources). This brief post will touch on only a sliver of Shugerman's intricate argument and extensive evidence, which I encourage all to read for themselves. I was particularly interested in Shugerman's account of venality-the practice of buying and selling offices as property. I must confess that I am no originalist. My eyes glaze over at the first mention of the First Congress. But Shugerman's article caught my eye not only for its rejoinder to the pseudo- originalism of the Court's recent appointment and removal jurisprudence, but also for its relevance to ongoing discussions of bureaucratic accountability. At the core of the originalist case for unfettered presidential removal power is the empirical claim that English monarchs had the indefeasible prerogative to remove executive officials and that this power was universally assumed by the Founders to be part and parcel of the executive power. In this telling, silence about removal power in constitutional text, convention debates, and other Founding-era documents only reinforces the taken-for-granted nature of executive removal power. Thus, the story goes, when the Founders vested the executive power in the President, they surely took for granted that it included unfettered removal power. Apart from legitimate debate about whether the Framers intended to bestow royal prerogatives on the President, Shugerman takes more direct aim at the 1/3

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