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. Thus, unitary theorists have not met their evidentiary burden to support their historical claims about Article II implying removal as a matter of original public meaning.
Recommended Citation
Jed H. Shugerman,
Venality: A Strangely Practical History of Unremovable Offices and Limited Executive Power,
100
Notre Dame L. Rev.
213
(2024).
Available at:
https://scholarship.law.nd.edu/ndlr/vol100/iss1/4
