If you ask me
about whether or not the President has an implied constitutionally-granted
power to remove high-level Executive Branch officers subject to his (the
President’s) appointment power, my answer is basically that I do not
have a dog in that fight. Last August, in response to an inquiry by e-mail,
I responded: “I have always avoided taking any position on this issue: [the
scope of presidential] removal [powers]. I think [any interpreter taking a
position] is at the far edge of the construction zone . . . where policy is
driving legal conclusions. I do not think [the question] answerable as an
originalist matter.”
Contra
Tillman, Professor Shugerman and Professor Prakash do have positions on this
issue.
Shugerman
believes the answer is: No, the President has no such power impliedly
granted by the Constitution. And Prakash believes: Yes, the President
does have such a power. For the reasons I elaborated above and others, I am
not going to judge between these two views, and I am not going to judge between
these two academics. At least, between Shugerman and Prakash, I can honestly
say that I am unbiased: Shugerman and Prakash have offered something less than
effusive praise for my publications—as they are entirely entitled to do.
But now something has changed. The
terms of this debate, indeed, of legal academic debate, are being changed.
Prakash et al wrote a 2023 Harvard Law Review article. See Aditya Bamzai & Saikrishna Bangalore Prakash, The
Executive Power of Removal, 136 Harv.
L. Rev. 1756 (2023), <https://harvardlawreview.org/print/vol-136/the-executive-power-of-removal/>. Prakash made certain arguments in support of
his position—he relied on certain documents, and he put forward his
interpretation of those documents. Shugerman has taken the position that
Prakash has seriously erred—i.e., that Prakash’s interpretations have been
wrong all along, and that he (Shugerman) has demonstrated that wrongness, and
that Prakash has refused to retract or to sufficiently respond. For this
alleged wrong, Shugerman put forward:
If “originalism”
is a serious academic enterprise, are there any consequences for originalist
scholarship that repeatedly misused, misrepresented, or made false claims about
the historical record?
….
Is there accountability for originalists who make false historical claims?
Jed
Shugerman, The Misuse of Ratification-Era Documents by Unitary Executive
Theorists, Mich. J. L. Reform (2025) (last revised on SSRN on Jan. 10, 2025) (manuscript at 25), <https://ssrn.com/abstract=5070241>; id.
at 1 (same).
Let’s assume that Shugerman is
correct, and that Prakash is wrong.
What
does Shugerman have in mind by way of “accountability” where Prakash remains
unmoved and unwilling to voluntarily concede error? What would Shugerman have
third parties do? Should third parties convene a tribunal or board of inquiry?
Who would be the judges? Would the finders-of-fact be generalists off the
street or specialist academics, and if so, in what field(s)?
Moreover,
what punishments would the tribunal be empowered to impose?
Assuming
lethal injection and a custodial sentence are out, does Shugerman want to see
Prakash “removed” from his academic post?
Should
Prakash be held in stocks and forced to read Gienapp and Rakove?
Or
Should Prakash be denied access to his university’s library and interlibrary
loan service?
Or—God
forbid—should Prakash be asked to suffer the Amy Wax treatment—i.e., denied
teaching duties involving impressionable 1Ls?
Is the punishment to be shunning by
on-campus peers, or to be denied a spot, by distant faculty, at some off-campus
conference?
What does Shugerman mean by
“accountability”?
I am a traditionalist. Let me suggest
that we stick with the traditional norm for legal academics. What is the norm?
When Academic-A publishes an article, then Academic-B can write a response. If
people are persuaded by Academic-B’s publication, then Academic-A’s reputation
will take a hit. And that is “accountability.” Likewise, Academic-A can
reply to Academic-B’s response. And that’s “accountability” too. Critics can be
critiqued. A university built on free inquiry allows third parties to judge
among publications, responses, and replies (and sometimes sur-replies)—along
with the absence of such responses and replies. An interlocutor is not owed a
response. Where an interlocutor writes a response, the initial proponent can
reply or he can stand on his original publication. But the interlocutor is not
owed a reply.
Now you might say: Seth—why do you
think that is the norm? The answer is tu quoque. Let me explain:
In 2017, as briefing began involving
litigation against Trump-45 based on the Foreign Emoluments Clause the Domestic
(Presidential) Emoluments Clause, Professor Shugerman wrote an article
appearing on Slate. He wrote:
Ultimately, the
central piece of documentary evidence for this emoluments argument is a
manuscript version of a 1792 document by Secretary of the Treasury Alexander
Hamilton. That document omitted President George Washington from a list of
“Persons Holding Civil Offices or Employments Under the United States.” Yet the
same document, when it was actually printed in official records of the early
U.S. government, listed the president and vice president under the heading of
“persons holding civil offices or employments under the United States.” In
every subsequent report of the Treasury Department listing the employees and
offices “under the United States”—from Treasury Secretary Hamilton himself and
his successors—the president is included . . . .
Jed
Handelsman Shugerman & Ors, Presidential
Revisionism, Slate (July 17,
2017, 5:42 PM), <http://tinyurl.com/y7qaabr4> (emphases added). Leaving
aside Shugerman’s claims about the 1792 document and its subsequent
reproduction, here, Shugerman is saying that there were other Treasury
Department circulars—that is, “every subsequent report”—listing offices “under
the United States.” Shugerman has this language in quotation marks. But
he fails to identify any such documents using office “under the United
States”-language. I put Shugerman et al on notice of my concerns long ago.
To date, roughly eight years later . .
.
· Shugerman
has not published copies of the documents he claimed existed in his 2017 Slate
publication—nor has he privately sent me copies;
· Shugerman has not
published full bibliographic information identifying where these documents can
be found—nor has he privately sent me this information;
and,
· Shugerman has not
published links to these documents—nor has he privately sent me such links.
My
own belief is that, in 2017, Shugerman erred, and that no such documents exist.
But he has not responded, and he has not retracted. And that is within norms.
Indeed, I suggest that it is the norm.
Shugerman
does not owe Slate, its readers, or me a reply regarding my
critique—then or now. Why Shugerman has not responded is difficult to say.
Perhaps he adheres to his original claims, and he leaves it to third parties
(such as me) to go out and find the documents he claims exist. Or, maybe, he
thinks the issue unimportant, and that his basic argument stands, even if this
lone set of document-related claims fails. Or, perhaps, he is just too busy.
And
the same applies to Prakash. Prakash does not owe the world and Shugerman a
reply just because Shugerman is 101% sure Prakash is wrong. A failure to reply
simply means that Shugerman gets the last word, and people have to decide who
has the better argument.
Even
now, at this late date, Shugerman might reply to my critique. But if he does so
now, that is, some eight years after the fact, that is a tell. Moreover, the
Foreign Emoluments Clause and the Domestic (Presidential) Emoluments Clause are
likely to be in the news again very soon. Perhaps as early as Monday,
January 20, 2025, at noon. Given that Shugerman’s Slate article is
likely to be cited in renewed scholarship and renewed briefing, there is good
reason for him to consider addressing the difficulties which I have flagged in
this blog post. But “good reason” does not amount to an academic duty or other
moral obligation. After all, if you are the sort who will rely on an article in
Slate, absent footnotes and links justifying ambitious documentary
claims, that is on you. What I can say is that if Shugerman revises his
position in light of my critique, and he does so some eight years after the
fact, that leaves Prakash with some time to reassess his position in a similar
fashion. After all, Shugerman was responding to a 2023 Prakash publication in Harvard
Law Review—so that leaves Prakash with a good seven years to decide what to
do.
Fair is fair.
Seth
Barrett Tillman, ‘Professor Shugerman (et al) vs. Professor Prakash (et al),’
New Reform Club (Jan. 17, 2025, 9:28 AM), <https://reformclub.blogspot.com/2025/01/professor-shugerman-et-al-vs-professor.html>;
Seth Barrett Tillman, ‘Part II—Professor Shugerman (et al) vs. Professor Prakash (et al),’ New Reform Club (Jan. 21, 2025, 6:48 AM), <https://reformclub.blogspot.com/2025/01/part-iiprofessor-shugerman-et-al-vs.html>;
