I: Object-level academic debate
One of the oldest questions about the Constitution is whether and to what extent the president has the power to fire other executive branch officials, and whether and to what extent Congress has the power to regulate or limit such power, dating back to congressional debates in 1789, Andrew Johnson’s impeachment debates, and Supreme Court cases such as Myers v. United States, Humphreys Executor v. United States, and Sayre Law v. CFPB.
Another of the oldest questions about the Constitution is whether, and to what extent, the “executive power” it grants to the “President of the United States” includes various powers not specifically enumerated elsewhere in Article II. The two questions are distinct but overlapping, because one of the strongest arguments in favor of the executive power of removal is that the appointment and removal of executive officials were understood to be executive powers even though they were not specifically enumerated.
The academic debate on these questions is rich and getting richer. Two recent papers by Professor Julian Davis Mortenson: Executive Power Clauseand Article 2 defines executive power, not royal power(also a guest post on this blog), addresses the second question and argues against a strict interpretation of unenumerated or residual executive power. In various formulations, they describe executive power as being limited to “executing the law” or as an “empty vessel” containing only powers granted by other laws.
Meanwhile, Professor Aditya Banzai and Professor Saikrishna Prakash recently published the following paper: Enforcement power of dismissalanswers the first question. They argue that the executive branch includes the power to remove other executive branch officials, and that Congress has limited ability to regulate this power. Professors Andrea Katz and Noah Rosenblum have published a somewhat harsher rebuttal to Banzai and Prakash (Rethinking the removalBanzai and Prakash published a rather harsh rebuttal to Katz and Rosenblum (Thinking About Removal Power).
In the process, Katz and Rosenblum argue that Mortenson’s work refutes Banzai and Prakash’s paper because if executive power is an empty vessel and limited to law enforcement, it would not seem to include the power of removal. Banzai and Prakash, on the other hand, counter that there is ambiguity in the way Mortenson’s paper (and the evidence it relies on) is understood. Mortenson’s article does not specifically address the issue of removal, but it does acknowledge that the law enforcement conception of executive power may include the power of appointment (as some evidence suggests). If the law enforcement conception of executive power includes the power of appointment, it may (or may not) also include the power of removal, since the power of appointment is contingent on the enforcement of law.
Banzai and Prakash think this is part of a broader ambiguity in Mortenson’s thesis. The idea that the executive power is an empty vessel and the idea that the executive power is limited to enforcing laws are very similar, and one could argue that they are two appendages of the same elephant. Perhaps they are. But what to think about, say, a law that says the president should not enforce 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 executive power is limited to enforcing laws.
A related question is what to think about the law that says the president cannot fire other law-enforcing officials. Perhaps the only executive power is the power to enforce the law, which includes the power to oversee those who enforce the law. Or perhaps Congress has the power to declare in various cases that the president cannot oversee law enforcement. Thus, Banzai and Prakash argue, Mortenson’s article does not refute their argument.
II: Twitter Controversy
That last exchange prompted an unusually harsh response from Mortenson on Twitter/X. Explained Banzai & Prakash said, [his] He believes their misconceptions about their jobs do not reflect a sophisticated attempt to take their work seriously.At best, These are criticisms of people who, at best, did not get beyond Control F; criticisms of busy, careerist, disinterested and uncaring interlocutors at best; criticisms of 11th grade debaters who competed in national championships.’ His recent tweets have further raised the heat. Professor Jed Sugarman has also joined in a series of posts.
These reactions spawned many more on and off Twitter, as well as a lot of meta-commentary that something unusual and heated seems to be going on among constitutional law scholars. (No link in this paragraph, sorry.)
In my view, this turn is unhelpful and even unjustified. Katz and Rosenblum (and many before them) may have a better view of the removal issue. And there may be clear answers to the question of how the empty vessel theory relates to Congress’s power to regulate or limit the execution of laws. It may be true that the answers to these questions could have already been guessed by a more careful reader. However, I confess that, having followed the debate quite closely for many years, I do not know the answers.
But the best way for legal scholars to unravel these questions is through various forms of legal scholarship. From experience, sometimes you write a great article that is completely correct, but you fail to convince all of the well-meaning readers who read it. And sometimes you think you have already clearly resolved a problem in your great article, but some of the well-meaning readers who read it did not understand what you clearly stated. In such cases, it may be beneficial to write a further article to discuss the accompanying side issues and explain them further, more clearly, or in a different way. No one is obligated to reply to everyone else, or to reply on their timeline, but for better or worse, in the world of human legal scholars, this is part of the progress of scholarship.
(I should add here that Mortenson (and Sugarman, more on that later) have made some links, screenshots, and substantive tweets that go into the object-level issues at some length. These were somewhat difficult to understand, but I tried and didn’t understand them enough to clarify the underlying ambiguity, which I still don’t quite understand.)
Finally, Sugarman’s intervention also raises a number of suspicions about academic integrity, about the sharing and citation of drafts, about who said what to whom at the conference, etc. In my view, these suspicions are largely misleading and entirely harmful. However, my own judgment may be influenced by the fact that I was caught up in one of Sugarman’s earlier witch hunts, so I will not say more about them here.
I’m a big advocate of Twitter for law professors, and see it as a valuable outlet for discovering new research and ideas, especially outside of one’s immediate circle, but this is a bad thing for academic values and standards.
III: Constitutional law in legal circles
It seems obvious, but one of the reasons this debate has generated such a stir online is that there are underlying ideological tensions among constitutional law professors in general, and especially on issues of executive power, that seem to have solidified into a pattern of doubting the legitimacy of even engaging with scholars with whom we disagree on these issues.
As I talk (offline) with friends on both sides of this debate, I hear liberal law professors express concern that conservative law professors are careerist liars who are misleading the courts into doing the country wrong, and I also hear conservative law professors express concern that liberal law professors are insular ideological monoliths who refuse to take dissent seriously and who weaponize their control over legal academia to compensate for their lack of control over the courts. All law professors Everyone always emphasizes that, but when you write a great article and it doesn’t convince everyone and the people who read it say things that seem obviously stupid and wrong to you… what should you think?
This pattern is not new, but it is our duty in the legal community to resist it and, hopefully, eventually break it. This requires careful and patient engagement at the subject level, even when we are convinced that our interlocutors are not as careful and patient as we are. It requires the use of discursive norms. Raising the water level of sanity – It operates on norms of evidence, logic, and free inquiry, not appeals to personal honor, and it is not something any of us can do alone or within ideological silos.
