Amicus Brief in SEC v. Jarkesy on Original Public Meaning of Article II & Presidential Removal by Jed H. Shugerman :: SSRN

Amicus Brief in SEC v. Jarkesy on Original Public Meaning of Article II & Presidential Removal by Jed H. Shugerman :: SSRN

Jed H. Shugerman

Boston University School of Law

Date Written: September 5, 2023

Abstract

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.

First, this brief presents new research showing that the Executive Vesting Clause did not imply a removal power, because “executive power” did not imply removal in the eighteenth century. The English common law protected many offices as freehold property rights, meaning that the officers could not be removed without legal process and except in cases of misconduct. Many powerful British executive offices, especially in the Treasury and even in the royal cabinet, were unremovable in the eighteenth century. English and colonial administration was a hybrid of removable patronage offices and unremovable freehold offices. These protections have not been examined in the Court’s previous opinions about removal. This background explains why no English sources described removal as a royal prerogative, and why it has been so hard for unitary theorists to find any English or Ratification-era sources discussing removal as an “executive power.” It also explains why Montesquieu’s The Spirit of the Laws rejected removal at pleasure as “despotic,” and why Chief Justice Marshall concluded that William Marbury’s office was his unremovable property.

Second, this brief summarizes other new research on Article II, the law of offices, the Ratification Debates, and the First Congress, also undercutting the assumptions about presidential removal.

Third, at the broadest level, this case is a test for whether originalism is a reliable method in practice. Leading unitary executive scholars have tried to reconstruct their removal theories in response to this new evidence, but their theories contradict each other, are internally contradictory, introduce new errors, and repeat many old errors and misunderstandings without addressing the core critiques. These weak responses indicate that little evidence supports their claims about removal. The Founding era left the removal question unresolved. If this Court is committed to originalism as a check against judges voting their personal preference, it should conclude that the evidence is insufficient to overturn long-standing statutes.