Sorry for the delay of a few days. There are so many flagrant misuses of historical evidence in Slaughter and Cook, so little time. I decided to spend more time chasing down the new misuses, instead of repeating the same fact-checks of the old myths I’ve already identified and published elsewhere. I had strong suspicions that Chief Justice Roberts had misused the Papers of Jefferson and Madison, and those sources took longer to track down.
It turns out I was right.
For context, this fact-check picks up from my last fact-check: Hamilton’s Federalist No. 77 applied a symmetry rule: removal follows appointment, and thus, the Senate is necessary to remove (“displace”); and in case anyone (e.g., Chief Justice Roberts) might suggest that Hamilton meant otherwise, Hamilton himself clarified that he meant the plain meaning in 1789 — and the record suggests that his audience (the First Congress) shared that same understanding of Federalist No. 77. This symmetry rule returns here, because Chief Justice Roberts again misunderstood and misapplied it by relying on Jefferson’s 1780 Note.
Here is an “Executive” Summary, so to speak, on Jefferson’s 1780 Note:
1) The context of Jefferson’s Note: Its primary context was a military question during the Revolution, with a special focus on Gen. Charles Lee, who had been court martialed. As soon as Jefferson turned to civilian offices, he emphasized a mix of rules, including limits on any kind of removal.
2) Jefferson explicitly recognized officers who “have freehold” hold their offices “during good behavior,” including “Judges—Register Clerks—Attorney General” as examples, and added that the Treasurer under the Articles of Confederation was removable by the legisture, not the executive. These are not just examples against executive removability at pleasure; these are examples in which there is no executive removal power at all –contradicting Roberts’s interpretation in Slaughter and confirming my research (e.g., as Justice Sotomayor cited in her dissent, “Indecisions of 1789,” “Venality,” and “Quasi-Judicial: A History and Tradition” (co-written with Beau Baumann), plus articles she did not cite, e.g., “Presidential Removal as Article I, Not Article II (with Gary Lawson).
3) Jefferson recognized that removal at pleasure was for “indefinite” offices, clearly implying that “definite offices,” i.e., offices for a term of years, were not removable at pleasure. This note is additional evidence consistent with the breakthrough research by Jane Manners and Lev Menand in “The Three Permissions,” a mountain of evidence explaining a default rule against presidential removal at pleasure.
4) Most obviously, these are Jefferson’s private notes from 1780, long before the Framers drafted the Appointments Clause in 1787. In 1780, the background was English (Royalist) practice of unilateral royal/executive office-creation and appointment power. In 1787, the Framers deliberately rejected this model in favor of shared power (congressional office-creation, shared appointment with the Senate). A statement “he who appoints may remove” applies differently before 1787 vs. after 1787; and in royal England vs. the republican United States under the new Appointments Clause power share. In every documented reference to this symmetry rule from the Founding, whether in my research or offered by the unitary theorists, I have shown that the overwhelming application to Article II and the Appointments Clause was that it meant the Senate had to share in the removal power (and even the only exception ultimately rejected the presidential removal theory).
5) Finally, I think it is very likely that Chief Justice Roberts pulled these quotations from Ilan Wurman’s article “The Original Presidency” (2024) at p. 36 and/or his amicus brief and I think it is noteworthy that Wurman omitted the sentences contradicting his interpretation of these sources and did not acknowledge any of these glaring problems.
I attached the full document here so you can read the parts that Roberts omitted.
First, here are Chief Justice Roberts’s two uses of this Jefferson source in Slaughter:
p. 8: “Jefferson wrote as early as 1780 that “[t]he power of appointing and removing executive officers [is] inherent in [the] Executive,” as “[h]e who appoints may remove.” 4 Papers of Thomas Jefferson 281 (1951)”
Roberts wrote on p. 12:
“Early Presidents of all persuasions, too, hewed to the Decision of 1789… [citing Washington and Adams]. So did Jefferson. See 4 Papers of Thomas Jefferson, at 281 (the power to “remov[e] executive officers [is] inherent in [the] Executive”). So did Madison. See 2 Papers of James Madison 192 (D. Mattern, J. Stagg, M. Johnson, & A. Colony eds. 2013) (one of the “[c]onstitutional attributes of the Executive” is to determine “[t]he tenure of the office” of subordinates).
[The Madison quotation is also highly misleading. Notably, Roberts provided no date, no context of what the source is, and he miscited it. It is not from “Volume 2” of the Madison Papers, it is only the second volume of the “Retirement Series” of Madison’s papers, confusing any reader who is trying to track it down. It turns out to be a private letter from 1820… when Madison was no longer president. And this letter also fails More on that later.]
Back to Jefferson: Chief Justice Roberts tells the reader the first time that the Jefferson quote was from 1780, but when Roberts asserts that presidents “hewed to the Decision of 1789,” he conveniently omits this date — which was not only before 1789, but also long before 1787 when the Framers deliberately changed the balance of office-creation and appointment by taking away unilateral royal powers and sharing office-creation with Congress and appointment with the Senate.
Now let’s actually read the full source from Jefferson that Roberts cherry-picked and clipped, basically copy-and-pasting from Ilan Wurman’s outrageously wrong article from 2024 , “The Original Presidency”. It is only a personal note – a private sketch, not a published or official document — and as the editors of the Jefferson Papers tell us, it is prompted by a military question, which explains why it is initially focused on military officers. Notice what happens when Jefferson broadens his discussion to civil offices:
Here’s the full source, undated but likely December 1780 :
Whether the Executive may remove officers of the line or staff.
There may be a difference as to the Chaplains and such others as are not appointed by the Executive. But qu?
Again as to officers of the line, it is highly probable that no such would ever be removed but on regular trial by a court martial: unless indeed the occasion was very great, as in the case of Geni. Lee where the sentence given by the court martial was against the universal sense of mankind.
The question principally affects the Staff, whose rapacity, inattention and means of evasion require energetic superintendance.
The power of appointing and removing executive officers inherent in Executive. Executive inadequate to every thing. Appoint deputies—qui agit per alterum &c. Ministerial office may be executed by deputy but not judicial. He who appoints may remove.
Difference between an office and estate.
An indefinite conveyance of an estate is for life—not to be accounted for ex vi termini, but historically from known progress of feuds. In their early state was not so.
An indefinite appointment to office is during pleasure. Escheat —clerks of parliament—clerks of council &c. Otherwise if I employ a steward indefinitely he would have freehold. Ld. Coke’s opinion as to privy counsellor condemned by practice and general opinion.
Law has so considered it. And where the officers of government should have freehold has declared they shall hold during good behavior. Judges—Register Clerks—Attorney General.
Where not removable by Executive, reserved expressly to legislature or others. Aud. B. W. & T. [Boards of War and Trade] Treasurer.
All the principles of law which may be retailed on this subject restrained to civil government.
The army, as such, not comprehended within civil constitution.The freest governments in the world, have their army under absolute government.
Republican form and principles not to be introduced into government of an army. Congress exercise powers of dismission—Geni. Lee. Consequences. Cannot dismiss nor suspend the most pettifogging and rascally officer. Forage masters—waggon masters—gardeners—purveyors— nurses — expresses—waggoners — smiths — carpenters — mercantile agents — ambassadors — Directors general—surgeons—surgeons mates—chaplains—Commissaries —Quartermasters—
Indolence, rapacity and means of evasion of Staff may account for the ordinary exercise of the powers of dismission on them, while those of the line, over whom the powers have been equal, have been submitting to the regular but more dilatory forms of trial by a military court.
In the attachment, see the editor’s note from the sources Roberts cited clarifies the military context as the prompt. And Jefferson himself emphasized that there were differences between military executive rules and civilian executive rules:
“All the principles of law which may be retailed on this subject restrained to civil government. The army, as such, not comprehended within civil constitution. The freest governments in the world, have their army under absolute government. Republican form and principles not to be introduced into government of an army.”
Jefferson went out of his way to distinguish between the military context of the first section of the note vs. the middle-to-end of the note, which is about civil offices. He does not specify all the differences in such a brief note. The point is that any reader should avoid relying on this note for any general rules about civilian offices.
Moreover, when Jefferson writes that “appointment” and “removal” are “inherent” power in the executive, he specifies ministerial offices, in which the deputy stands in for the executive. (“Qui agit per alter” means “he who acts through another, acts for himself.” See vicarious liability and agency law). Many offices are not ministerial. “Ministerial office may be executed by deputy but not judicial.” This is not a statement of a closed universe dichotomy, “deputy” vs. “judicial.” There are other offices in between. Jefferson is simply saying that deputy/ministerial offices are removable, but he is leaving out other offices with more discretionary legal roles.
In fact, Jefferson clearly offer some examples of unremovable “freehold” civil offices:
“Judges-Register Clerks-Attorney General.”
Jefferson continues: “An indefinite appointment to office is during pleasure.” This sentence implicitly confirms the Manners & Menand research here and here establishing that a definite appointment — a term of years — is NOT during pleasure, but is protected from executive removal. Their research is devastating to the unitary executive theory’s assumptions about English background, the Founding, and legislative default rules. And Roberts quoted a source without even understanding or acknowledging that other parts of the source conflicted with his interpretation, contradicted his interpretation, and – on balance – confirmed the historical research on the opposing side.
It is notable that Chief Justice Roberts did not acknowledge or address any of this research about the Anglo-American tradition of unremovable freehold offices or unremovable “term of years” offices.
Ilan Wurman’s article and amicus brief, which were the likely source for Roberts’s misuses of Jefferson, also omitted these sentences, obscured the context, and failed to acknowledge how the source actually contradicted his own argument. I have read more on presidential power and the removal power debates than any human should have to, and I’ve lived to tell the tale. And I’ve never seen anyone cite this Jefferson note from 1780 before Wurman. I addresssed Wurman’s misinterpretation of my research and my evidence in several places. I found this argument so plainly irrelevant to the meaning of Article II — and so contradicted by the text of Article II and the historical record of how the Founding generation actually interpreted the symmetry rule — that I did not think it needed to be addressed again in an amicus brief with such strict word limits.
I am astounded that Wurman’s misuse of Jefferson’s 1780 private note — omitting the context and sentences that contradicted his theory — so easily became Chief Justice Roberts’s misplaced reliance on Jefferson’s 1780 private note. And it is clear that if they had to rely on such a private note many years before the Appointments Clause was drafted and decisively changed the balance of appointment powers, they were hard pressed to offer actual evidence that would stand up when it was tracked down.
Here is Wurman, “Original Presidency,” at p. 36:
And in 1780 Thomas Jefferson wrote in a private note: “The power of appointing and removing executive officers inherent in Executive. Executive inadequate to every thing. Appoint deputies…. He who appoints may remove” (Boyd 1951, 4:281)
Here is Wurman’s amicus brief in Slaughter, p. 10
And in 1780 Thomas Jefferson wrote in a private note: “The power of appointing and removing executive officers inherent in Executive. Executive inadequate to every thing. Appoint deputies…. He who appoints may remove.” 4 PAPERS OF THOMAS JEFFERSON, supra, at 281.
I have had to fact-check Ilan Wurman for repeated misinterpretations of the historical record, including changing the wording of Blackstone in articles and even a Supreme Court amicus brief to change Blackstone’s basic meaning, and I already had to fact-check this article on his general misuse of my research on the symmetry rule (removal follows appointment). To his credit, he cited my research as the source of his argument, but his re-interpretation of my argument is plainly contradicted by the sources I identified, as I explained here and here. I did not realize that And now Wurman’s misuse of a Jefferson note seems to have led to Roberts’s misuse of that same Jefferson note.
Chief Justice Roberts’s use of a Jefferson sentence is one of the most egregious misuses of a source I have encountered in this entire episode of the unitary executive myths. Some of the aspects of this misuse are recurring patterns: Many sources were obviously taken out of context (check). And Roberts and untiary theorists often ignore chronology (check). And specifically, this Appointments Clause argument (because “removal follows from appointment,” presidents can unilaterally remove) is an obvious embarrassment, as it is contradicted by the text and purpose of the Appointments clause (see Justice Scalia); it is contradicted by Hamilton in the Federalist Papers, as Hamilton confirmed in 1789, as I noted in a previous fact-check last week; and as I have explained, no advocate of presidential removal offered this interpretation, and instead, when this symmetry rule was invoked, it was always interpreted to require Senate consent to remove (with only one arguable exception).
But in this case, this misuse is even worse. Two sentences are cherry-picked, but the sentences that contradict the theory are omitted. This is how the unitary executive theorists have built a myth — by misusing historical sources over and over again….
More on the misuse of the symmetry rule soon.
The original Jefferson private notes, 1780:



