I: The scientific debate at object level
One of the oldest questions in constitutional law is whether and to what extent the president has the power to fire other officials of the executive branch and whether and to what extent Congress has the power to regulate or limit those powers. This question goes back to the congressional debates of 1789, the debates over the impeachment of Andrew Johnson, and the Supreme Court cases from Myers v. United States to Humphrey’s Executor v. United States to Seila Law v. CFPB.
Another of the oldest questions in constitutional law is whether and to what extent the Constitution’s delegation of “executive power” to “a President of the United States of America” includes various powers not expressly enumerated elsewhere in Article II. The two questions are distinct, but they overlap, since one of the strongest arguments for an executive power to remove is the argument that the appointment and removal of executive officers has been understood to be an executive power even without an explicit enumeration.
The academic debate on these questions has been extensive and is becoming increasingly substantive. 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 strict interpretation of the unenumerated or residual executive powers; in various formulations they describe the executive power as limited to “execution of the law” or as an “empty vessel” containing only the powers conferred by other laws.
Meanwhile, Professors Aditya Bamzai and Saikrishna Prakash recently published a paper entitled “The Executive Power of Removal” that addresses the first question. They argue that executive power includes the power to remove other executive branch officials, and that Congress’s ability to regulate that power is limited. Professors Andrea Katz and Noah Rosenblum have published a fairly sharp response to Bamzai & Prakash (Removal Rehashed). Bamzai & Prakash have now published a fairly sharp response to Katz & Rosenblum (How to Think About the Removal Power).
Katz & Rosenblum argued in passing that Mortenson’s work refutes that of Bamzai & Prakash, because if the executive power is an empty vessel limited to law enforcement, it does not seem to include a power of removal. On the other hand, Bamzai & Prakash argue, it is not clear how Mortenson’s thesis (and the evidence on which it relies) should be understood. Mortenson’s papers do not specifically address the question of removal, and allow for the possibility that the law enforcement conception of the executive power might include a power of appointment (as some evidence suggested). If the law enforcement conception of the executive power included a power of appointment, it might (or might not) also include a power of dismissal, since the power of appointment is related to law enforcement.
Bamzai & Prakash believe this is part of a larger ambiguity in Mortenson’s thesis. The idea that the 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. Perhaps they are. But how should we think, for example, about a law that says it should not be the president who enforces it? One could say that the president cannot enforce such a law because the 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.
Related to this is the question of what to make of a law that says the president cannot fire other officials who enforce the law. Perhaps the only executive power is the power of law enforcement, including the power to supervise those who enforce the law; or perhaps Congress has the power to tell the president in various cases that he cannot supervise law enforcement. Bamzai & Prakash therefore argue that Mortenson’s article does not disprove their thesis.
II: The Twitter debate
This last part of the exchange provoked unusually sharp reactions on Twitter/X from Mortenson, who called Bamzai & Prakash “peddlers of false descriptions of (his) work” and wrote that “other responsibilities are more important than the obligation to be kind.” He believes that their misunderstanding of his work cannot reflect a serious and nuanced attempt to engage with it: “At best, these are the critiques of people who have not gone above and beyond; second, these are the critiques of busy, career-focused, disinterested and disinterested interlocutors; third, these are the critiques of 11th-grade debaters at national championships.” His more recent tweets have raised the temperature even further. Professor Jed Shugerman also joined in with a series of posts.
Those reactions, in turn, led to many more replies both on and off Twitter, as well as a lot of meta-commentary that something unusual and disturbing seemed to be going on among criminal justice experts. (No links for this paragraph, sorry.)
In my view, this turn was unhelpful and, indeed, unwarranted. It may well be that Katz & Rosenblum (along with many other scholars before them) have a better understanding of the question of removal. And it may well be that there is a clear answer to the question of how the empty vessel thesis affects Congress’s power to regulate or limit enforcement of the law. It may even be that a more attentive reader could have guessed the answers to these questions already – although I must admit that I have followed this debate quite closely for many years and do not know the answers to them.
The best way for legal scholars to discuss these questions, however, is through various forms of jurisprudence. I can say from experience that sometimes you write a brilliant article that is completely correct but fails to convince all of the gullible readers of that article. And sometimes you believe that your brilliant article has already clearly solved a problem, but some gullible readers of that article somehow failed to understand what you clearly said. In those cases, it sometimes makes sense to write more to discuss lower-level sub-questions, to explain more, more clearly, or differently. No one is obligated to answer everyone else or to answer within their time constraints, but in a world of human legal scholars, for better or worse, this is part of the progress of science.
(I should add that Mortenson (and Shugerman, who I’ll say more about in a moment) has produced a number of links, screenshots, and substantive tweets that address the object-level issues to some degree. I found them a little difficult to follow, but I tried, and failed to understand them, to clarify the underlying ambiguity, which I’m still not sure about.)
Finally, Shugerman’s papers also include a number of claims about scientific integrity, sharing and citing drafts, who said what to whom at conferences, etc. In my view, these claims are largely misleading and thoroughly malicious. But my own judgment may be influenced by having been a secondary target of one of Shugerman’s previous witch hunts, and so I will say no more about them here.
I am a proponent of Twitter among law professors and consider it a valuable medium for discovering new work and ideas, especially outside my narrow circles. But for scholarly values and scientific norms, this was a dire episode.
III: Constitutional Law in the Legal Academy
I suppose this is obvious, but one reason this dispute has generated so much online attention is that there is a great deal of underlying ideological tension among constitutional law professors in general, and on executive power issues in particular, and it seems to have hardened into a pattern of distrust about the legitimacy of engaging with scholars who disagree on these issues.
When I talk (offline) with friends on both sides of this debate, I hear liberal law professors express concern that conservative law professors are career-oriented liars who are using the courts to harm the country. And I hear conservative law professors express concern that liberal law professors are narrow-minded ideological monoliths who refuse to seriously engage with counterarguments and use their control of law schools as a weapon to make up for their lack of control of the courts. Not all law professors – everyone always says this – but if you have written a brilliant article that has not convinced everyone, and the people who read it then say things about it that seem obviously stupid and wrong to you… what are you supposed to think?
This pattern is nothing new, but we lawyers must resist it and hopefully one day break it. That requires careful, patient engagement at the object level. It requires careful, patient engagement at the object level, even when we are convinced that our interlocutors are not as careful and patient as we are. It requires the use of norms of argument that elevate reason—norms like evidence and logic and free inquiry, not appeals to personal honor. And that is not something any of us can do alone or in ideological silos.
