In a post at Slate, Professor Jed Shugerman (Fordham) challenged the historical foundations of Justice Scalia’s dissent in Morrison v. Olson:

It’s worth, however, delving deeper into Scalia’s historical misunderstandings of “complete” executive control over prosecution. Scalia’s dissent in Morrison is simply inconsistent with its originalist commitments and not worth resuscitating for that fact alone.

In this post, I will examine Professor Shugerman’s evidence as set forth in his essay.  I count six historical claims.

(1) “First, for most of English and American history, most prosecution was not an executive function at all, because it was a private enterprise.” True enough, but beside the point.  As Scalia explained in Morrison, the question is the location of the federal government’s power of prosecution.  Plus, I wonder how true Professor Shugerman’s claim is, in regard to U.S. federal law.  Were most federal prosecutions in the early post-ratification period initiated privately?  Professor Shugerman does not say that they were.  He refers more generally to English, colonial and state practice.  I haven’t looked at the issue specifically but I haven’t run across a lot of federal prosecutions that were initiated privately.  But in any event, the existence of a private right doesn’t say anything about the meaning of the executive power of the United States.

(2) “Congressional committees investigate crimes with subpoena power, and Congress has the power to enforce these powers with its own legislative contempt proceedings. Contempt of Congress is a criminal offense, and it historically has been prosecuted entirely within the legislature.”  Sure, and contempt of courts has historically been punished by courts.  This just shows (again assuming it’s true) that the legislative power (and the judicial power) include the power to punish contempts.  It doesn’t say anything more broadly about executive power.

(3) “[T]he Judiciary Act of 1789 … allowed deputy marshals to be removed by federal judges. Even today, federal judges have the power to appoint interim U.S. attorneys.”  The second point is obviously irrelevant, as it relates to appointment (specifically spelled out in the Constitution), not removal.  The first is true (Section 27 of the Judiciary Act) and does pose a bit of a puzzle, but I don’t think it proves what Professor Shugerman thinks it proves.  A better way to reconcile it with the Constitution’s text is to see deputy marshals as part of the judiciary, and thus answerable to the court, not as part of the executive.  Deputy marshals, as far as I know, did not prosecute cases; they implemented orders of the court.

(4) “The first draft of the Judiciary Act also gave the Supreme Court the power to appoint the attorney general and gave district judges the power to appoint district attorneys.” Again, it’s not about appointment.  The Constitution provided for appointment as a shared power. That does not show that appointment wasn’t an executive power; it shows that appointment was a traditional executive power that the Constitution shared with other branches as a check on the President (like treatymaking power).  The question was who had control after appointment.  The First Congress did think about this issue, in the so-called “Decision of 1789,” discussed in this recent essay by Ilan Wurman, and concluded that it was an executive/presidential power.  The full story of this and similar provisions actually supports Scalia’s view, as does post-ratification practice: in the early post-ratification period the Attorney General and other federal officers with prosecutorial power were understood to be removable by the President.

(5) “State constitutions adopted separate branches, and often declared a separation of powers explicitly, unlike the federal Constitution. Nevertheless, many state constitutions did not reflect Scalia’s formalism.  [They] … sometimes placed attorneys general and prosecutors under the judiciary article or judicial sections of their constitutions.”  I rate this potentially the most weighty of Shugerman’s evidence by far, even though he puts it almost last (and doesn’t provide any links).  It would depend a bit on the scope of that “sometimes,” as well as the way the state constitutions described their systems and the way they worked in practice.  But in any event the federal Constitution did not adopt the state constitutions’ approaches in many respects, and the Decision of 1789 shows that when the First Congress thought about the matter carefully, a majority understood the removal power to be constitutionally vested in the President.  I would like to see a good bit more discussion here before I found it persuasive, but it’s a point worth considering.

(6) “Moreover, some of the constitutions assigned the power of appointment of law enforcement officials to the legislature with no role for the governor, and some assigned this appointment power to the judges.”  Once again, appointment power is irrelevant, because (a) the issue is removal not appointment, and (b) the federal Constitution obviously rejected this approach to appointment.

On the whole this seems rather thin support for Professor Shugerman’s conclusion that “Scalia’s dissent was wrong on its own originalist terms, and it still serves as a red flag against his kind of hyperformalist originalism.”  Instead, I would say that if this is all Scalia’s detractors have on thier side, it confirms the correctness of Scalia’s dissent.

Further, as I noted in my earlier post on his essay, Professor Shugerman provides no alternative explanation of the constitutional language.  His sole argument is that Scalia’s explanation does not line up exactly with some historical evidence.  But history (as historians like to say) is messy and does not always point wholly in the same direction.  The originalist question is which meaning of the constitutional language makes the most sense of both the language and the history.

NOTEThis post was originally published at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.

Michael D. Ramsey
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