I: The Object-Level Scholarly Debate
One of the oldest questions in constitutional law is the extent of the President’s power to remove executive branch officials and Congress’s authority to regulate or limit this power. This debate dates back to the early days of the United States, with discussions during the impeachment of Andrew Johnson and landmark Supreme Court cases such as Myers v. United States, Humphrey’s Executor v. United States, and Seila Law v. CFPB.
Another longstanding question is whether the Constitution’s grant of “the executive Power” to the President includes powers not explicitly listed in Article II. While these two questions are distinct, they intersect because the argument for an executive removal power often hinges on the historical understanding of executive powers beyond those specifically enumerated.
The scholarly discourse on these issues has been robust and continues to evolve. Recent articles by Professor Julian Davis Mortenson, such as The Executive Power Clause and Article II Vests the Executive Power, Not the Royal Prerogative (also featured on this blog), focus on the latter question and argue against a broad interpretation of unenumerated executive powers, suggesting that the executive power is limited to enforcing existing laws.
On the other hand, Professors Aditya Bamzai and Saikrishna Prakash have published The Executive Power of Removal, addressing the former question. They contend that the executive power historically encompassed the authority to remove other executive officials, with Congress having limited ability to regulate this authority. Professors Andrea Katz and Noah Rosenblum offered a critical response to Bamzai & Prakash in Removal Rehashed, to which Bamzai & Prakash responded with How to Think About the Removal Power.
These exchanges led to discussions about how Mortenson’s work interacts with the arguments put forth by Bamzai & Prakash. While some believe Mortenson’s emphasis on law-execution as the core of executive power undermines the notion of a removal power, others suggest that the law-execution framework could potentially encompass appointments and removals as incidental to enforcing the law.
Overall, the debates highlight the complexities of interpreting executive powers and the role of Congress in regulating them, underscoring the need for further scholarly inquiry.
II: The Twitter Debate
The recent Twitter exchanges between scholars have sparked intense reactions, with Mortenson expressing frustration at what he perceives as misrepresentations of his work. The heated discussions have attracted attention both on and off Twitter, prompting reflections on the nature of scholarly discourse in constitutional law.
While disagreements are inevitable in academic debates, the focus should remain on rigorous analysis and respectful dialogue to advance understanding in the field. It is essential for scholars to engage with differing viewpoints through scholarly publications rather than through social media exchanges.
Ultimately, the pursuit of knowledge and truth in constitutional law requires thoughtful engagement and a commitment to intellectual integrity, even in the face of disagreements.
In some situations, it can be beneficial to expand on a topic, delve into related sub-issues, provide further explanations, or present information in a different manner. There is no obligation for individuals to respond to every comment or engage in discussions immediately, but within the realm of legal scholarship, this interaction plays a part in advancing knowledge.
It is worth noting that Mortenson and Shugerman have shared various links, screenshots, and tweets addressing specific issues to some extent. While attempting to comprehend these details, I found them somewhat challenging to follow, leaving me uncertain about the underlying ambiguity.
Additionally, Shugerman has made allegations regarding scholarly integrity, draft sharing, conference interactions, and more. While I personally believe these claims are misleading and harmful, it is essential to acknowledge that my perspective may be influenced by past experiences with Shugerman’s actions.
I appreciate the value of law professor Twitter as a platform to explore new ideas and research beyond my immediate circles. However, the recent events have highlighted a departure from scholarly values and norms.
Moving on to the topic of Constitutional Law in the Legal Academy, the online dispute has stirred considerable reaction due to the ideological tensions among constitutional law professors, particularly concerning executive power. These tensions have led to suspicions about engaging with scholars who hold differing views on these matters.
Conversations with colleagues from both sides of the debate offline reveal concerns from liberal law professors about conservative counterparts being deceitful careerists manipulating the legal system, while conservative law professors express reservations about liberal scholars being close-minded ideologues unwilling to consider opposing viewpoints.
Although this dynamic is not new, it is incumbent upon us in the legal academy to challenge and eventually dismantle it. This requires engaging thoughtfully and patiently on the specifics of a topic, even when facing less meticulous interlocutors. We must uphold norms of evidence, logic, and open inquiry to elevate the quality of discourse and avoid resorting to personal attacks. Collaboration across ideological divides is essential to this endeavor.
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