Guest Post from Professor Tillman: Professor Shugerman (et al) vs. Professor Prakash (et al)
I am happy to publish this guest post from my frequent co-author Seth Barrett Tillman, which is cross-posted at Seth’s blog.
***
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 Ratifica
Article from Reason.com
The Reason Magazine website is a go-to destination for libertarians seeking cogent analysis, investigative reporting, and thought-provoking commentary. Championing the principles of individual freedom, limited government, and free markets, the site offers a diverse range of articles, videos, and podcasts that challenge conventional wisdom and advocate for libertarian solutions. Whether you’re interested in politics, culture, or technology, Reason provides a unique lens that prioritizes liberty and rational discourse. It’s an essential resource for those who value critical thinking and nuanced debate in the pursuit of a freer society.
