Executive Power Scholarship: A Three Level Problem

Reflections on that Twitter dust-up.

I: The Object-Level Scholarly Debate

One of the oldest questions of constitutional law is whether, and to what extent, the President has the power to remove other executive branch officials; as well as whether, and to what extent, Congress has the power to regulate or restrict any such power. It dates back to congressional debates in 1789, the impeachment debates of Andrew Johnson, and Supreme Court cases from Myers v. United States, to Humphrey's Executor v. United States, to Seila Law v. CFPB.

Another one of the oldest questions of constitutional law is whether, and to what extent, the Constitution's vesting of "the executive Power" in "a President of the United States of America" includes various powers not specifically enumerated elsewhere in Article II. The two questions are different, but they overlap, because one of the strongest arguments for an executive removal power is the argument that appointment and removal of executive officers was understood as an executive power even without being specifically enumerated.

The scholarly debate about these questions has been rich and keeps getting richer. Two recent articles by Professor Julian Davis Mortenson, The Executive Power Clause, and Article II Vests the Executive Power, Not the Royal Prerogative, (also guest-posted on this blog) address the second question, and argue against a robust reading of unenumerated or residual executive power; in various formulations, they describe the executive power as being limited to "law-execution," or as being an "empty vessel," containing only the powers vested by other laws.

Meanwhile, Professors Aditya Bamzai and Saikrishna Prakash recently published an article, The Executive Power of Removal, that addresses the first question. They argue that the executive power did include the power to remove other executive branch officials, and that Congress's ability to regulate this power is limited. Professors Andrea Katz and Noah Rosenblum published a somewhat sharp response to Bamzai & Prakash (Removal Rehashed). Bamzai & Prakash have now published a somewhat sharp reply to Katz & Rosenblum (How to Think About the Removal Power).

Along the way, Katz & Rosenblum argued that Mortenson's work refutes Bamzai & Prakash's, because if the executive power is an empty vessel, limited to law-execution, it would seem not to include a removal power. On the other hand, Bamzai & Prakash reply, there is an ambiguity in how to understand Mortenson's thesis (and the evidence on which it relies). Mortenson's articles do not specifically address the removal question, and they allow the possibility that the law-execution conception of the executive power might include an appointments power (as some evidence suggested). If the law-execution conception of the executive power included an appointments power, because the power to appoint was incidental to law-enforcement it might (or might not) also include a removal power.

Bamzai & Prakash believe this to be part of a broader ambiguity in Mortenson's thesis. The idea that executive power is an empty vessel, and the idea that it is limited to enforcing the law, are very similar and one could argue that they are two appendages of the same elephant. Maybe they are. But how should we think about, for example, a law that says that the President should not be the one to enforce it? One could say that the President cannot enforce such a law, because executive power is an empty vessel; or one could say that the President can enforce such a law, because the one executive power is the power of law enforcement.

The question of what to think about a law that says that the President cannot remove other officials who enforce the law is related. Perhaps the one executive power is the power of law enforcement, including the power to superintend those who enforce the law; or perhaps Congress has the power to say that the President cannot superintend law enforcement in various cases. Bamzai & Prakash thus argue that Mortenson's articles do not refute their thesis.

II: The Twitter Debate

This last piece of the exchange provoked unusually sharp responses on Twitter/X from Mortenson, who described Bamzai & Prakash as "selling false descriptions of [his] work," and wrote that "other responsibilities trump the obligation to be kind." He believes that their misunderstanding of his work cannot reflect a serious and sophisticated attempt to engage with it: "at best, these are the criticisms of people who didn't go beyond control F at second best, these are the criticisms of busy, careerist, disengaged, and incurious interlocutors at third best, these are the criticisms of 11th grade debaters at nationals." His more recent tweets have turned the temperature up still higher. Professor Jed Shugerman also joined in with a series of posts.

These reactions in turn produced a lot more responses both on and off of Twitter, as well as a lot of meta-commentary that something unusual and heated seemed to be going on among con law scholars. (No links for this paragraph, sorry.)

My view is that this turn has been unhelpful, and indeed unjustified. It may well be that Katz & Rosenblum (along with many many other scholars before them) have the better view of the removal question. And it may well be that there is a clear answer to the question of how the empty vessel thesis relates to Congress's power to regulate or restrict the enforcement of the law. It might even be true that the answers to those questions could have been divined by a more careful reader already—although I confess that I have been following this debate for many years, reasonably carefully, and I do not know the answers to them.

But the best way for legal scholars to ventilate these questions is through various forms of legal scholarship. I will say from experience that sometimes one writes a brilliant article which is completely correct but fails to convince all good-faith readers of that article. And sometimes one believes that one's brilliant article has already clearly resolved some issue, but some good-faith readers of that article somehow didn't understand what one clearly said. In those cases, it is sometimes useful to write more, to discuss ancillary sub-issues, to explain more, or more clearly, or differently. Nobody is under an obligation to respond to everybody else, or to respond on their timelines, but for better or worse, in a world of human legal scholars, this is part of how scholarship advances.

(I should add that Mortenson (and Shugerman, more on whom in a moment) has produced a number of links, screenshots, and substantive tweets getting in to the object-level issues to some extent. I found these somewhat difficult to follow, but I tried, and I didn't understand them to clarify the underlying ambiguity, about which I remain unsure.)

Finally, Shugerman's interventions also make a number of allegations about scholarly integrity, the sharing and citations of drafts, who said what to whom at conferences, and so on. In my view, these allegations are mostly misleading, and entirely poisonous. But my own judgment may be affected by the fact that I was a collateral target in one of Shugerman's earlier witch-hunts, and so I won't say more about them here.

I am a defender of law-professor-twitter, and I find it a valuable medium for discovering new work and ideas, especially outside my close circles. But this has been a bad episode for scholarly values and scholarly norms.

III: Constitutional Law in the Legal Academy

I suppose this is obvious, but part of the reason this dispute seems to have sparked such a reaction online is that there is a lot of underlying ideological tension among constitutional law professors generally, and about questions of executive power in particular. These seem to have hardened into patterns of suspicion about the legitimacy of even engaging with scholars who disagree on these issues.

As I speak to friends on both sides of this debate (offline), I hear liberal law professors express the concern that conservative law professors are careerist liars who are deceiving the courts into doing bad things to the country; and I hear conservative law professors express the concern that liberal law professors are a close-minded ideological monolith who refuse to engage seriously with counterarguments and weaponize their control over the legal academy to make up for their lack of control over the courts. Not all law professors – everybody always stresses that – but when you have written a brilliant article, and it has failed to convince everybody, and then people who read it say things about it that seem obviously dumb and wrong to you . . .  well what are you supposed to think?

This pattern is nothing new, but it is the obligation of those of us in the legal academy to resist it, and hopefully one day to shatter it. That requires careful, patient engagement on the object level. It requires careful, patient engagement on the object level even when we are convinced that our interlocutors are not as careful and patient as we are. It requires using norms of argumentation that raise the sanity waterline – norms such as evidence and logic and free inquiry, and not appeals to personal honor. And it is not something that any of us can do alone, or in ideological silos.