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Amicus in Wilcox v. Trump on Presidential Removal and Unitary Executive Theorists’ Errors
No full textAs courts ask whether Free Enterprise and Seila Law call into question Humphrey’s Executor and independent officers or agencies, the more immediate questions should be focused on new historical evidence and new fact-checking finding pervasive and repeated historical errors and misinterpretations at the foundation of the unitary executive theory of removal.
Since the Supreme Court decided Seila Law, a wave of new historical research has shown that the Founding generation did not understand Article II to grant the President an indefeasible removal power over executive officials. In response, pro-unitary executive scholars have tried to offer new historical support. That evidence has not withstood scrutiny. For example, unitary theorists have been unable to address core critiques of their interpretations of sources from the First Congress. They cannot identify a single sentence from the voluminous Ratification Debates suggesting Article II “executive power” implied removal. Instead, they have repeated serious errors about English sources, the Ratification Debates, and the First Congress, including misquotations of Blackstone, repeatedly taking sources out of context, and what appears to be at least one grossly misleading statement (if not a demonstrably false statement) about the Ratification Debates.
Every scholar makes mistakes. Indeed, this author lives in a glass house. But in an Amicus role, serving as a friend to the Court, this brief is an originalist scholar’s defense of originalism against unitary theorists’ ahistorical, anti-originalist errors.
These repeated errors are red flags that the theorists cannot find any real historical support for their claims, and they are yellow flags to slow down and proceed with caution. Given the explicitly limited holdings of Seila Law and Free Enterprise (see, e.g., footnote 10), the Supreme Court has merely distinguished novel agency designs from Humphrey’s and created narrow exceptions. The evidence of original public meaning is so unclear and contradictory that the Supreme Court would not have a sufficient originalist basis to go any further.
Until the new evidence and these historical errors have been reviewed by the Supreme Court, lower courts should assume that Humphrey’s Executor is – and will remain -- good law and controlling precedent
In Defense of Appearances: What Caperton v. Massey Should Have Said
Full text linkIn June of 2009, the U.S. Supreme Court ruled for the first time that an elected judge must recuse himself from a case that involves a major campaign contributor. In Caperton v. A. T. Massey Coal Co., a coal company had been hit with a 3 million to help a challenger, Brent Benjamin, who had no judicial experience, defeat the incumbent, West Virginia Supreme Court Justice Warren McGraw. Blankenship funded political attack ads by a political organization (And for the Sake of the Kids) that was created to defeat McGraw, alleging that he was soft on child molesters.1 The well-financed Benjamin won, 53% to 47%, and was the deciding vote to overturn the jury verdict. In a 5-4 ruling, Justice Anthony M. Kennedy concluded, There is a serious risk of actual bias when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds ... when the case was pending or imminent. \u272 Such political and financial influences on the court violate due process and threaten to imperil \u27public confidence in the fairness and integrity of the nation\u27s elected judges.\u27
In dissent, Chief Justice John G. Roberts, Jr. expressed concern for public confidence too, but with a very different result. The majority\u27s decision, Roberts feared, will inevitably lead to an increase in allegations that judges are biased, however groundless those charges may be. The end result will do far more to erode public confidence in judicial impartiality than an isolated failure to recuse in a particular case. \u27 4 Roberts concluded that future Caperton motions will bring our judicial system into undeserved disrepute, and diminish the confidence of the American people in the fairness and integrity of their courts. \u27 5 In Caperton, Justice Kennedy and Chief Justice Roberts engaged in a battle of appearances. For Kennedy, litigants who buy seats on courts create an appearance of bias that is severe enough to implicate the right to due process. For Roberts, simply the claims of bias create an appearance of bias, which he believes is undeserved. Roberts then goes on to raise forty questions about the future applications of Caperton and its ambiguities, concluding that it creates more problems than it resolves.
I suggest that in explaining the new recusal rule, the Supreme Court should have been even more clear that appearances matter. Caperton requires recusal when a party\u27s campaign support for a judicial candidate creates a risk of actual bias or a probability of bias, rather than an appearance of bias. However, the appearance of bias standard is more rooted in precedent, and in response to Chief Justice Roberts\u27s practical concerns in dissent, the appearance of bias standard is actually more practical. I also address Chief Justice Roberts\u27s pragmatic concerns about the manageability of Caperton motions with some observations about civil procedure and the actual practice of judicial elections. Part II argues that the problem of money in judicial elections is real, and not just an isolated case, as Chief Justice Roberts suggested.6 Part III then argues that Caperton motions will be relatively manageable. 7 Part IV focuses in particular on the appearance of bias standard as a more established, more practical, and more manageable standard than the probability of bias standard.8 Justice Kennedy\u27s switch from appearance of bias language to the actual bias and probable bias language is not an accident. Perhaps mere appearances seem superficial, but the dismissal of appearances because of its mere appearance, if you will, is itself superficial. The appearance of bias standard is arguably more rooted in Anglo-American precedents, and appearances of bias are real harms in themselves. This Article also suggests that the Court should add an appearance of justice standard to capture what may have really been going on in West Virginia: the purchasing of a seat for a true believer who needed no political pressure to bias him in favor of Blankenship and Massey. Part V suggests that the Court does not need to seek perfect clarity in these rulings. In fact, ambiguity and uncertainty have their distinct advantages among reputation-protecting judges and risk-averse parties and lawyers, as long as the Supreme Court does not ignore these issues now that it already has entered the fray. The most important decisions in the future are the decisions to grant certiorari every so often, rather than the exact wording of its decisions
Amicus Brief in Collins v. Mnuchin on Original Public Meaning of Presidential Removal and the \u27Decision of 1789\u27
No full textPetitioners and the en banc Court of Appeals below have rested their contention that the Constitution grants the President at-will removal authority over the head of the Federal Housing Finance Agency (FHFA) on historical claims about the first Congress’s ostensible “Decision of 1789.” In so doing, Petitioners are following Chief Justice Taft’s account in Myers v. United States, upon which this Court relied on in 2010 and again last term for an originalist interpretation of Article II. New historical research shows that Myers was incorrect. The “Decision of 1789” actually supports, rather than undermines, Congress’s power to limit presidential removal.
Myers asserted that the first Congress’s “Decision of 1789” declared that the Constitution assigned removal power to the President alone: “[T]here is not the slightest doubt, after an examination of the record, that the [Foreign Affairs] vote was, and was intended to be, a legislative declaration that the power to remove officers appointed by the President and the Senate vested in the President alone.” 272 U.S. 52, 117 (1926). New evidence calls for a re-examination of this record, raising more than just a doubt.
Originalism depends upon clear historical evidence of public meaning. Seila Law LLC v. Consumer Financial Protection Bureau noted that the first Congress’s view “provides contemporaneous and weighty evidence of the Constitution’s meaning.’” 140 S. Ct. 2183, 2197 (2020) (internal quotation omitted). Overlooked Senate records show no consensus in the first Congress to support Myers’s interpretation. To the contrary, this new evidence suggests a very different decision in 1789. The first Congress rejected “presidentialism,” the more general constitutional claim that the President alone can remove principal officers confirmed by the Senate, even the heads of the Departments of Foreign Affairs, War, and especially Treasury; and it rejected the more specific claim of exclusive or “indefeasible” presidential removal under Article II (a claim by the Petitioners here), that presidential removal is “at pleasure” or “at will.” Both positions rely on a claim that Article II establishes “unitary” or exclusive presidential removal, unchecked by other branches.
The most significant new evidence:1) Senator William Maclay’s diary reveals initial opposition to presidential removal (of any source) in the Senate, which is the most plausible explanation for Madison’s sudden retreat from a clear removal clause to an ambiguous one. Madison’s opponents and allies identified this shift as evasion or reconciliation with the Senate.
2) The first head-count of the House by constitutional categorization demonstrates that only about one third of the House supported the “presidential” interpretation, and a wide majority rejected it.3) New evidence from the Treasury debate and from a series of statutes reveal further rejection of exclusive presidential removal, especially in the domain of finance. Congress delegated removal power, even of the Secretary of Treasury, to the judiciary.4) This widespread opposition to presidentialism in 1789 prompts a re-reading of the Constitution’s text, the Convention, and the Ratification debates. New research on “vesting” shows that this text likely did not have a public meaning of “exclusive” or “indefeasible.”Myers was mistaken. The first Congress opposed this interpretation of Article II, forced the deletion of the clear removal language in the Foreign Affairs bill, and then enacted six anti-presidentialist removal clauses. It would be an error in terms of originalism to rely on the first Congress or the Executive Vesting Clause to invalidate the FHFA structure
A Watershed Moment: Reversals of Tort Theory in the Nineteenth Century
No full textThis article offers a new assessment of the stages in the development of fault and strict liability and their justifications in American history. Building from the evidence that a wide majority of state courts adopted Fletcher v. Rylands and strict liability for unnatural or hazardous activities in the late nineteenth century, a watershed moment turns to the surprising reversals in tort ideology in the wake of flooding disasters.
An established view of American tort law is that the fault rule supposedly prevailed over strict liability in the nineteenth century, with some arguing that it was based on instrumental arguments to subsidize industry, while others claim that its basis was in the moral condemnation of wrongdoing as a principle of corrective justice. Courts supposedly did not embrace strict liability until the mid-twentieth century, driven by efficiency arguments. This article challenges the established view by setting forth three periods.
In the first period from 1810 to 1860, instrumental and moral arguments were rare or non-existent, and instead, courts relied on simple assertions or minimalist citations to precedent in establishing a general negligence rule. In the second period (the 1870s and 1880s), American courts defended the general negligence rule with economic arguments not as a primary justification, but as a defense against the English challenge in Rylands. In the third period around the turn of the century, state judges, partly reacting in horror to the disastrous Johnstown Flood of 1889 and other unnatural modern threats, turned to strict liability with moralistic corrective justice arguments, not instrumental arguments. The cases from this last period illustrate a number of moral arguments in favor of strict liability: choice and duties; fairness (those who profit from an activity should pay those they hurt); a social contract argument of reciprocity; and a rights argument in favor of the natural user over the unnatural innovator. Instead of enterprise liability emerging from post-Great Depression/New Deal politics, from twentieth-century academics, or from engineers overlooking the factory floor, it gained significant ground in the late nineteenth century from the murky depths of a flooded Pennsylvania valley. This historical study of the dramatic twists and turns on Rylands suggests that tort doctrine and tort theory are contingent upon events and context
Rights Revolutions and Counter-Revolutions Book Note
No full textThe rise of rights talk is a subject that has gripped academia in recent years. Many historians of modem America are now searching for the origins of the rights revolution and the feverish use of rights arguments on the left and on the right. Two recent works of legal history tackle one part of this question with trailblazing interpretations, focusing on left-wing rights discourse and the successes of the civil rights movement. Both books offer compelling and well-written narratives of post-war legal issues, and they present innovative arguments that this revolution began in response to global crises.1 Richard Primus\u27s The American Language of Rights argues that rights are not natural truths, but are, rather, historically contingent. Rights, he claims, evolve when a political community reacts to particular adversities and synthesizes established rights with new conceptions of rights to combat that adversity.2 Just as the Founding and Reconstruction generations articulated systems of rights in response to particular events and evils, the post-World War II generation pursued a vision of human rights defined against the horrors of Nazi and Stalinist totalitarianism. In a parallel story, Mary Dudziak\u27s Cold War Civil Rights attributes America\u27s advances in desegregation to a global public relations crisis over the treatment of blacks.3 As this international embarrassment provided ample fodder for Communist propaganda, presidents from Truman to Johnson heeded a Cold War imperative to promote racial justice.
Grappling with the complicated origins of the civil rights movement and the Warren Court\u27s activism, Primus and Dudziak offer coherent explanations that integrate domestic politics, international events, and the world of ideas. By placing this rights revolution so clearly in their global post-war context, they have pushed the boundaries of the legal academy to a more global perspective, and they have contributed to our understanding of the civil rights movement\u27s broader origins. They have also suggested how seemingly unrelated events force leaders to embrace social reform, and how those leaders build on rights traditions to gain momentum. Even as legal academics continue to argue that rights are fundamental and universal, Primus and Dudziak offer evidence that rights are historically constructed, contextually reactive, and ad hoc.
However, both books emphasize the role of elites,4 and for that matter, of left-leaning elites, which leads to two shared shortcomings. This emphasis enables them to make some particularly insightful observations about the decisions of many significant political leaders, judges, and academics from the 1940s to the 1960s. This perspective creates a great story, but unfortunately, it is only half the story, or more accurately, one quarter of the story. As a result, they overlook some very significant differing perspectives on the Cold War and rights discourse.
The first shortcoming is that this perspective does not address perhaps the most significant aspects of this era: the rise of popular rights consciousness and the decisive role played by marginalized social groups that embraced liberal rights talk.5 Second, the focus on liberal elites obscures two of the most important explanations for the demise of American liberalism: first, the conservative popular revolt against liberal elites; and second, the successful rights counterattack by conservatives. Turning the tables on the New Deal coalition\u27s populism, conservatives recast themselves as defenders of the people\u27s rights against a liberal elite.6 Conservatives with different interests and backgrounds were able to coalesce around rights rhetoric, libertarianism, and anti-totalitarian Cold War themes to form the ascendant Republican majority.7 Primus ignores this backlash, which developed equally significant languages of rights in response to totalitarianism. Dudziak does a better job of noting the limits of her study, of identifying the role of non-elites, and of recognizing the eventual backlash. Part of the reason she devotes less attention to how the Cold War undermined civil rights is that this story is the conventional wisdom that she questions so effectively.
This Book Note seeks to extend their insights about the significance of global politics and rights discourse even further, in order to grasp the dynamics of the rights counter-revolution. This conservative response was equally context-driven, globally minded, and anti-totalitarian. Other historians, fleshing out the story with other groups and other rights talk, reveal that this era was less a rights revolution with one language prevailing, -than a rights evolution with multiple vocabularies developing from traditional languages of rights. When Primus\u27s and Dudziak\u27s books are synthesized with this historical scholarship, a rich and complicated story of rights revolutions and counter-revolutions emerges
Marbury and Judicial Deference: The Shadow of Whittington v. Polk and Maryland Judiciary Battle
Full text linkThe Twist of Long Terms: Disasters, Elected Judges, and American Tort Law
No full texthttps://scholarship.law.bu.edu/clark_speakers/1052/thumbnail.jp
Originalisms\u27 Indifferences?: Friendly Amendments to Sherif Girgis\u27s Originalism\u27s Difference?
No full textSherif Girgis’s Lecture Originalism’s Differences? reflects on what had differentiated originalism from other methods and why those differences are eroding. The differences are (or were): (1) avoiding “ostentatious moral reasoning”; (2) relatedly, constraining judges by requiring originalist historical evidence (i.e., tying judges’ hands); and (3) engaging historical research with more “intensity.” Girgis rightly criticizes the Court for engaging in the same kind of flexibility and creativity that originalists had long rejected.In this commentary, I highlight our areas of agreement and offer friendly amendments. My title takes Girgis’s title two or three steps further: I use an “s-apostrophe” because I believe we are identifying plural originalisms and even a fracturing of originalism into conflicting methods. I use “indifferences” as a riff on Girgis’s “differences” in two senses: a kind of “non-difference” or indifference to differences and, more specifically, the growing problem that too many self-proclaimed originalists are indifferent to contrary evidence.I follow Girgis’s apt use of a question mark with some of my own questions about his three differences: For example, is constraint a higher priority than other values? Are “intensity” and “avoiding ostentatious moral reasoning” more noise than signal? Do today’s originalists sometimes show more “intensity” in their research and avoid “ostentatious moral reasoning” because they are using historical sources as cover for the real underlying forces—their moral or ideological commitments?This Essay turns to some of Girgis’s own examples of problematic originalism to further illustrate the breakdown of constraint and even a troubling sign of anti-originalism (presidential immunity in Trump v. United States). Finally, this reply suggests how Girgis’s approach is similar to modest “lexical” or “pluralist” originalism with appropriate burdens of proof to avoid originalist overreach. Girgis’s wise and open-minded questions might help save originalism from itself
The Misuse of Ratification-Era Sources by Unitary Executive Theorists
No full textThis symposium essay suggests that, given an ostensibly originalist Supreme Court, the future depends on getting the past right. The unitary executive theory is approaching its political and doctrinal zenith in 2025, at the very moment it is approaching an evidentiary crisis. This essay details that crisis: a subset of misuses and misrepresentations of sources in the unitary executive scholarship. This subset focuses on serious misrepresentations of the Ratifications debates.
The Ratification debates appropriately have become the primary source of evidence for original public meaning, the dominant theory of originalism. The Ratification debates have always been a significant problem for the unitary executive theorists, because The Federalist Papers are solid contrary evidence. The Ratification debates were silent about whether the President had a general power of removal—even in the voluminous Anti-Federalist speeches and writings, where one would most expect to see such warnings if they existed.
Aditya Bamzai and Saikrishna Prakash, attempting to rescue their theory that Article II implies a presidential power of removal at pleasure, claim to have identified five passages from the Ratification debates. Unfortunately, none of these five passages withstand scrutiny. These misuses are part of a serious pattern of misuses of historical materials. Historians and legal scholars have offered so much evidence against these claims, with the unitary theory’s defenders offering so little evidence in return, that it is safe to say that none of these pillars remain standing
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