Document Type
Article
Publication Title
Yale Journal of Law & the Humanities
Volume
33
Publication Date
2022
Abstract
The Supreme Court's recent decisions that the President has an unconditional or indefeasible removal power rely on textual and historical assumptions and a “removal of context.” This article focuses on the “executive power” part of the Vesting Clause and particularly the unitary theorists' misuse of Blackstone. Unitary executive theorists overlook the problems of relying on England’s limited monarchy: the era’s rise of Parliamentary supremacy over the Crown and its power to eliminate or regulate (i.e., make defeasible) royal prerogatives. Unitary theorists provide no evidence that executive removal was ever identified as a “royal prerogative" or a default royal power. The structure of their historical comparison is flawed: the Constitution explicitly limits many royal powers, such war, peace (treaties), and the veto, so that the President is weaker than the king, but they still infer from Article II other unnamed “executive powers” (like removal) that would make a President stronger than a king.
Recommended Citation
Jed H. Shugerman,
Removal of Context: Blackstone, Limited Monarchy, and the Limits of Unitary Originalism, 33 Yale J. L. Humanities 125
(2022)
Available at: https://ir.lawnet.fordham.edu/faculty_scholarship/1244
