Caleb Nelson's Originalist Critique of Unitary Executive Theory

The prominent originalist legal scholar argues the Constitution does not require that the president have the power to fire executive branch officials.

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The Supreme Court seems likely to embrace "unitary executive" theory (UET) in its upcoming case in Trump v. Slaughter, at least in so far as that theory mandates that the president have the power to fire lower-level executive branch officials with any significant policy discretion. It already strongly hinted in that direction in its May "shadow docket" decision in Trump v. Wilcox (though it also suggested the Federal Reserve is an exception to the rule).

Prominent originalist legal scholar Caleb Nelson (University of Virginia) recently posted an originalist critique of UET. Here's an excerpt:

Aside from its provisions about impeachment,… the Constitution does not specifically address the removal of officers in the executive branch (which, for this purpose, includes the enormous variety of agencies that administer an enormous variety of statutes in an enormous variety of ways).  Who gets to fire them and for what reasons?

It would be natural to conclude that as with other issues relating to the structure of the executive branch, Congress has broad authority to address this topic by statute.  Given the range of tasks that Congress can authorize different officers to perform (entering into contracts, making grants, issuing licenses, conducting formal adjudications, participating in the promulgation of regulations, and more), and given the variety of things that different statutes require or allow these officers to consider (including legal constraints, technical or scientific expertise, the evidence introduced in adjudicative proceedings, and more), one might not expect a one-size-fits-all approach.  For sensible policy reasons, Congress might decide that the President should be able to remove many officers or even lower-ranking employees at will, but that other officers or employees should be removable only for defined causes and through defined processes.  In my view, the Necessary and Proper Clause lets Congress make these judgment calls as it enacts particular statutes that structure particular agencies.

The Supreme Court, however, has interpreted Article II of the Constitution to address the topic of removal itself. Although the case law is still in flux, the Court appears to be moving toward a sweepingly pro-President position: most officers who participate in the exercise of executive power must be removable at will by the President or his direct subordinates….

As Nelson notes, the text of the Constitution does not indicate that the president has any specific removal authority. And, as the rest of his article describes, historical evidence is at best ambiguous on this score, and may well point to the conclusion that Congress can determine the scope of removal authority.

I, myself, have a different set of originalist reservations about UET, which I most recently outlined earlier this year:

If the executive branch still wielded only the relatively narrow range of powers it had at the time of the Founding, the case for the unitary executive would be pretty strong…. Unfortunately, however, the current scope of executive authority goes far beyond that. To take just one noteworthy example, the president now presides over a vast federal law-enforcement apparatus, much of it devoted to waging the War on Drugs (which accounts for the lion's share of federal prosecutions and prisoners). Under the original meaning of the Constitution - and the dominant understanding of the first 150 years of American history - the federal government did not have the power to ban in-state possession and distribution of goods. That's why it took a constitutional amendment to establish federal alcohol Prohibition in 1919…. Immigration is another field where the executive now wields vast power, despite the fact that, as James Madison and others pointed out, the original meaning of the Constitution actually did not give the federal government any general power to restrict migration into the United States….

The same holds true for a great many other powers currently wielded by the executive branch. The original Constitution does not authorize the federal government to regulate nearly every aspect of our lives, to the point where we have so many federal laws that a  majority of adult Americans have violated federal criminal law at some time in their lives (to say nothing of civil law).

There is nothing originalist about giving the president such unconstitutional powers. If "executive" power is the power to "execute" federal laws authorized by the original meaning of the Constitution, it does not apply to powers that have no such authorization. The only way to truly enforce the original meaning in such cases is to remove such authority from federal hands altogether. But if we cannot or will not do that, there is no reason to think that giving the power to the president is any better - from an originalist point of view - than lodging it somewhere else. Either way, someone in the federal government will be wielding power that they are not supposed to have under the original meaning of the Constitution.

If we are not going to enforce the original scope of federal power, then we also should not enforce the (possibly) unitary original distribution of that authority. Concentrating such vast power in the hands of one man would actually run counter to the Framers' objective of promoting separation of powers, and avoiding excessive concentration of power in any one person.

Later in my piece, I criticize the "political accountability" rationale for UET. As I explain, accountability through Congress is just as good as that through the executive, perhaps more so; though neither actually works particularly well, given the combination of vast federal powers and widespread voter ignorance about many of the functions of government. At the very least, accountability rationales can't justify giving one man sweeping authority that goes beyond anything envisioned at the Founding.

Nelson hints at a similar concern about concentration power near the end of his article:

If most of what the federal government currently does on a daily basis is "executive," and if the President must have full control over each and every exercise of "executive" power by the federal government (including an unlimitable ability to remove all or almost all executive officers for reasons good or bad), then the President has an enormous amount of power—more power, I think, than any sensible person should want anyone to have, and more power than any member of the founding generation could have anticipated.

I am an originalist, and if the original meaning of the Constitution compelled this outcome, I would be inclined to agree that the Supreme Court should respect it until the Constitution is amended through the proper processes.  But both the text and the history of Article II are far more equivocal than the current Court has been suggesting.  In the face of such ambiguities, I hope that the Justices will not act as if their hands are tied and they cannot consider any consequences of the interpretations that they choose.

I agree. Whether these or any other considerations stay the hand of the Supreme Court remains to be seen.