VENALITY: A STRANGELY PRACTICAL HISTORY OF UNREMOVABLE OFFICES AND LIMITED EXECUTIVE POWER.

• Date: 01 November 2024
• Author: Shugerman, Jed Handelsman
• Published date: 01 November 2024

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 "venalite." 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.

INTRODUCTION
                I. BACKDROPS, BURDENS, AND THE EXECUTIVE/JUDICIAL
                 PROBLEM
                 A. "Backdrop"Burdens and the "Heads-I-Win
                 Tails-You-Lose" Problem
                 B. The "Executive" Versus "Judicial" Novelty Problem: English
                 Judges Were Unremovable Executive Officers
                II. "DESPOTIC DISPLACEMENT": MONTESQUIEU, HAMILTON
                 AND MADISON
                III. VENALITY AND OFFICES AS PROPERTY IN EUROPE
                 AND ENGLAND
                 A. How Did Venality and Sale of Office Work
                 B. Venalite in France
                 C. Sale of Office and Freehold Property in England
                IV. UNREMOVABILITY AMONG THE CABINET, DEPARTMENT HEADS
                 TREASURY, AND MILITARY
                 A. Holdsworth on the Cabinet and Department Heads
                 B. Sinews of Power: Treasury's Significant Unremovable Offices
                 C. The Republican Virtues of Venality: Blackstone,
                 Burke, Bentham
                V. VENALITY AND UNREMOVABILITY IN COLONIAL AMERICA
                 A. The British Military and American Experience
                 B. Colonial America: Unremovable Proprietary Rule and Sale
                 of Office
                VI. FROM FREEHOLDS TO FUNCTIONALISM: "OFFICES OF PROFIT"
                 AND SURETIES
                 A. Removal's Silence but Constitutional Continuities of
                 Independence
                 B. From Sale to Sureties
                CONCLUSION
                

[I]n despotic governments ... the subjects [in office] must be instantaneously placed or displaced by the prince.

--Montesquieu, The Spirit of Laws (1)

INTRODUCTION

Some assumptions about the past seem so obvious from our modern experience that Supreme Court Justices and legal scholars think they do not need footnotes and documentary support. One example from the unitary executive theory's series of assumptions is that European monarchs must have had broad removal powers over their officers, and thus "executive power" included a general removal power; ergo the Founders implicitly granted the President an unconditional (i.e., an "indefeasible") power to remove executive officers at will, without cause. In the 2024 presidential immunity decision in Trump v. United States, the Roberts Court went even further: the President's removal power and the related power to direct prosecutions, though unwritten, were so "core executive" (2) and so "conclusive and preclusive" that the President must be "absolutely immune" in the exercise of such powers. (3)

It turns out that all of these historical and originalist claims are wrong. European monarchs, and particularly the English Crown, lacked the power to remove many powerful administrative officers due to the now-forgotten conception of offices as protected private property. (4) "Executive power" did not imply a general removal power in England or during the Founding. In fact, some of the most powerful executive offices in England were unremovable, even deep into the eighteenth century.

The history of venality offers a coherent historical explanation for something that today seems implausible: European monarchs and the English Crown lacked a removal power because they had engaged in long-term bargains with potential officeholders, offering property rights as part of the sale of office. This "venality" system is an overlooked and counterintuitive backstory of how Europeans transformed decentralized feudal societies into modern bureaucracies and global colonial empires. In England, many powerful offices were bought, sold, and strongly protected as "freehold property" similar to land, and this legal regime survived long into the nineteenth century.

This Article builds on recent historical research criticizing the unitary theory on removal. (5) Unitary theorists have responded--correctly--that we had not (yet) identified central English offices exercising significant executive power relevant to late eighteenth-century American Founders. (6) However, new evidence from old English histories shows that many high offices, and even "great offices," department heads, and cabinet-level offices were unremovable. By "unremovable," I mean the tenures of these offices included legal protections from being fired or displaced by an executive, including protections of "tenure during good behaviour" that we now associate with Article III judges. English law granted such legal protections to many powerful executive officials long before extending them to judges.

This backstory helps explain why the Constitution was silent on removal: not because "executive" removal was the assumed or implied default rule, but because unremovability was so pervasive, even at the highest reaches of government, and functional flexibility was the rule. Even after the American Revolution, some department heads, cabinet members, and significant offices running Treasury continued to hold their offices as freeholds for life. (7)

Buying and selling offices as property was controversial, but reformers proceeded only incrementally. The English did not prohibit the purchase, solicitation, or sale of office until the Act of 1809, (8) and even after that, strong freehold protection for many offices persisted. (9) In the eighteenth century, major British figures defended the sale of office as necessary and efficient, and they argued that its property system was a check against executive abuses. (10) Related concepts and phrases entered into the Constitution's text ("Office of Profit," three times) (11) and shaped Founding-era debates. Whether or not the Founders approved of or accepted this system, it was part of the Anglo-American legal background, along with the more familiar system of patronage appointments and removal at will. These two models coexisted flexibly in Anglo-America, so that there was no one general rule or default norm about a removal power. In fact, freehold property rights to offices were so prevalent that in some cases, the default rule was non- removability. (12)

Readers understandably might wonder why early modern European administrative history, the British Crown, and English property law would be relevant to interpreting Article II "executive power" in a republican America. First, the major removal precedents have relied on incorrect assumptions about English history. In the foundational unitary executive case, Myers v. United States, Chief Justice Taft wrote, "In the British system, the Crown, which was the executive, had the power of appointment and removal of executive officers, and it was natural, therefore, for those who framed our Constitution to regard the words 'executive power' as including both." (13) In Free Enterprise, the first decision to revive and extend this theory for an indefeasible removal power, Chief Justice Roberts asserted that the power to oversee executive officers through removal was a "traditional" component of the executive power. (14) Neither Free Enterprise Fund nor Seila Law provided any historical sources for English removal as an "executive power," nor for their new indefeasibility rule. (15) Judges and prominent scholars, including Dean John Manning (16) and Akhil Amar, (17) recently made similar assumptions. (18) Even critics of the unitary theory sometimes have conceded this point. (19)

Second, as historians and legal scholars have critiqued or disproven unitary theorists' claims about the American Founding, (20) unitary theorists have shifted to "[t]he British Backdrop" of English practices, (21) royal prerogatives, (22) and British colonial administration. (23) This retreat to Europe raises questions about originalist inconsistencies: for example, sometimes monarchy or British colonial practices were the antimodel (e.g., British abuses led to the Bill of Rights and limits on office-creation and appointment powers), but unitary theorists look to royalism as the model.

Third, this history of venality and this new evidence of the unremovability of many high English offices (even at the cabinet level) go beyond a counterargument against the unitary theory and fact-checking the Roberts Court. The pervasiveness and significance of venality and unremovable high offices also should change how we think about the development of administrative law. The conventional wisdom is that modern administration emerged as...