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.

Comments

[wvattorney13]

That's an odd take. Because we are already violating the Constitution by allowing the feds to assume a vast array of powers that they were never given originally, then we certainly must violate it a second time by clipping the wings of the President to offset the damage we have caused by the first violation.

[dwb68]

Two wrongs make a right! With unconstitutional power comes unconstitutional remedies!

It also doesnt make sense. The President has enforcement discretion not to prosecute said war on drugs, ergo he must have the ability to fire the people who might enforce it.

[M L]

The logic should be just the opposite. If the feds have assumed vast powers that were not properly delegated to them by the states, all the more important to hold those powers in check by keeping them in the politically visible and accountable elected office of the president. Not only because that office is politically accountable through elections while faceless bureaucracies are not, but also because the presidency is rival to Congress. Without this Congress will be even less likely to guard its powers and do its job.

[thesafesurfer]

"... that office is politically accountable through elections while faceless bureaucracies are not, but also because the presidency is rival to Congress. Without this Congress will be even less likely to guard its powers and do its job."

Hear! Hear!

[Archibald Tuttle]

View 1, unitary executive, The President is the most powerful man in the world, holding vast powers and no accountability short of impeachment.

View 2, Congress has the power to micro-manage everything the executive does, what to do, and how to do it. The President has almost no power not subject to regulation, oversight and review. He can make nominations, he can push the launch button on the nuclear football. That makes him the most powerless man in all of government.

The extremes of this view scream for a clarifying constitutional amendment. How the hell have we gotten so far without any such amendment even proposed?

[dwb68]

Its not about congress vs the president.

It's who are executive agencies accountable to? Which voters, specifically? Are lower-level Department of Justice or Treasury employees lifetime hires that are free to ignore the President?

[thesafesurfer]

"It's who are executive agencies accountable to? Which voters, specifically? Are lower-level Department of Justice or Treasury employees lifetime hires that are free to ignore the President?"

Thank you!

[ducksalad]

How the hell have we gotten so far without any such amendment even proposed?

Because it would require a situation where 2/3 of the members of Congress see no prospect of their side taking the presidency anytime soon. Electorally, that's almost impossible. And thus we keep sliding toward your first option.

[Michael P]

View 2 also says that every district court judge in the country has an independent power to micro-manage everything the executive does, what to do, and how to do it.

[thesafesurfer]

He states "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).

The original executive branch did not contain an enormous variety of agencies that administer and enormous variety of statues. Three departments existed at the time of ratification- War, Foreign Affairs, and Treasury. It is intellectually dishonest to discuss originalism without discussing the executive branch as it originally existed.

The Constitution specifically vests control and Ilya does not mention this vesting once.

"All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives."

"The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows."

"... the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments."

"The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish."

"WIDESPREAD VOTER IGNORANCE" Ilya's famous catch all phrase utterly unsupported by facts in evidence.

Somin claims that the concentration of power in one man ran counter to the framers intentions. Again, this is an opinion not supported by facts in evidence.

In Federalist #70 Hamilton makes unity as specific element of the executive.
"The ingredients which constitute energy in the Executive are, first, unity; secondly, duration; thirdly, an adequate provision for its support; fourthly, competent powers."

"That unity is conducive to energy will not be disputed. Decision, activity, secrecy, and despatch will generally characterize the proceedings of one man in a much more eminent degree than the proceedings of any greater number; and in proportion as the number is increased, these qualities will be diminished."

I forbear to dwell upon the subject of expense; though it be evident that if the council should be numerous enough to answer the principal end aimed at by the institution, the salaries of the members, who must be drawn from their homes to reside at the seat of government, would form an item in the catalogue of public expenditures too serious to be incurred for an object of equivocal utility. I will only add that, prior to the appearance of the Constitution, I rarely met with an intelligent man from any of the States, who did not admit, as the result of experience, that the UNITY of the executive of this State was one of the best of the distinguishing features of our constitution."

[windycityattorney]

Are you serious? You are using the word unity as a justification for unitary executive theory? You have to understand that the terms being used are functionally different, do you not? Unitary in the theory is more akin to solitary. That is, all executive powers are unified into one solitary person/position. Unity in your example is one of 'aligned purpose or shared motivations' or some such. E.g, all members of the offense are united in their purpose to control the line of scrimmage.

The quotes at the beginning of your comment suggest that it is in fact Congress that is given more powers - as they can appoint officers...'as they think proper' to both the executive and judicial departments.

[ReadMore]

Received a donation solicitation from the Pacific Legal Foundation in today’s mail. Although I generally have thought they do some laudable work, I cannot in good conscience give money to any organization that employs a lawyer with as bad of a sense of judgment as Ilya Somin’s wife. Into the bin it goes.

[mulched]

She's by far the saner of the two, I recall from her posting here some time back.

[Kazinski]

Yeah, I follow her on Twitter, she's got the brains in the family.

[mulched]

[pdshaw]

In a post on originalism and removal powers, it has to be trolling for Somin to cite James Madison?

[Kazinski]

Any originalist critique of the President's authority to fire executive branch officers which doesn't mention Taft's opinion in Myers v US, which goes into exhaustive depth into the debates in the 1st Congress about the President's removal power.

In the debates crafting the legislation for the first cabinet departments, it was decided not to include a provision making the Secretary of State removable by the President, because it seemed like a grant of authority, and it was already an inherent power of the presidency:

"1 Annals of Congress, 578.
Mr. Madison admitted the objection made by the gentleman near him (Mr. Benson) to the words in the bill. He said:
"They certainly may be construed to imply a legislative grant of the power. He wished everything like ambiguity expunged, and the sense of the House explicitly declared, and therefore seconded the motion. Gentlemen have all along proceeded on the idea that the Constitution vests the power in the President, and what arguments were brought forward respecting the convenience or inconvenience of such disposition of the power were intended only to throw light upon what was meant by the compilers of the Constitution. Now, as the words proposed by the gentleman from New York expressed to his mind the meaning of the Constitution, he should be in favor of them, and would agree to strike out those agreed to in the committee."

Taft goes on to point out that
"Of the members of the House, eight had been in the Constitutional Convention, and, of these, six voted with the majority, and two, Roger Sherman and Eldridge Gerry, the latter of whom had refused to sign the Constitution, voted in the minority....
Ten of the Senators had been in the Constitutional Convention, and, of them, six voted that the power of removal was in the President alone. The bill, having passed as it came from the House, was signed by President Washington and became a law. Act of July 27, 1789, 1 Stat. 28, c. 4."

Myers is still good law, in fact better than ever, whether or not Humphrey's is, which was a much narrower decision.

[thesafesurfer]

Thank you. A very informative post.

[PleaseReadMore]

Great Job not reading the referenced article at all. It does — in fact — discuss Myers and discusses your contentions about the 1st congress in detail. The 1st congress passed nothing that signalled they took a side in the arguments that occurred in its chambers. Some who thought that it was decided even later admitted they were wrong. The words of one member that you reference do not speak for the whole chamber.

[pdshaw]

But the post cites Madison as an authoritative source of "the original meaning of the Constitution."

[SRG2]

I think it's surprisingly simple. The Executive swears to carry out the laws passed by Congress, and if the law does not infringe on an explicitly delegated power of the Executive then the law takes priority, Hence while a law cannot infringe on the Executive's right to execute the law, it can constrain the Executive in any other way, including firing officials.

[wvattorney13]

"while a law cannot infringe on the Executive's right to execute the law, it can constrain the Executive in any other way, including firing officials."

How is telling a President that he cannot rid himself of an obstinate subordinate not infringing on his right to execute the law?

I think it is simple as well: If there is a person who has any sort of executive power and not fully answerable to the President, then that means the person has executive power separate and greater than that of the President. That's against the plain text of the Constitution.

[M L]

Exactly. Imagine Congress doesn't like the President, so they just "pass a law" vesting executive authority in someone else. It's absurd.

[SRG2]

No - because as I said, "a law cannot infringe on the Executive's right to execute the law".

[SRG2]

IT's not a binary choice - "the Executive has no right to fire people" and "the Executive has unrestricted right to fire people". Congress can set conditions under which someone may be fired.

Oh wait, that's what they already do...

[not guilty]

As Justice Robert Jackson opined in his famed concurring opinion in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952):

The actual art of governing under our Constitution does not, and cannot, conform to judicial definitions of the power of any of its branches based on isolated clauses, or even single Articles torn from context. While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity. Presidential powers are not fixed but fluctuate depending upon their disjunction or conjunction with those of Congress. We may well begin by a somewhat over-simplified grouping of practical situations in which a President may doubt, or others may challenge, his powers, and by distinguishing roughly the legal consequences of this factor of relativity.

Any objective reading of the Constitution indicates that the drafters designed Congress as the preeminent branch of the federal government. In addition to various enumerated powers of Congress, Article I § 8 provides that the Congress is authorized:

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof. [Emphasis added.]

The Necessary and Proper clause thus is not limited to the Congressional powers created by the balance of Article I. § 8. Article II, § 2 of the Constitution provides that the President:

shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments. [Emphasis added.]

It seems to me that the power to establish an agency by law carries with it the discretionary authority to set terms of office which are not constitutionally specified and to fix grounds for removal prior to expiration of an officer's term. If the Congress intends for an officer to serve at the pleasure of the President, it knows what language to employ in order to do that. If the Congress intends for an officer to serve a fixed term subject to removal only for cause, it knows what language to employ in order to do that.

[not guilty]

Sorry for failing to close the italics.

[Kazinski]

That hardly seems like a bedrock constitutional principle.

So imagine Congress decided that the judiciary can not set aside Congressional legislation for being unconstitutional or irrational.

Would you then say: "if the law does not infringe on an explicitly delegated power of the Judiciary, then the law takes priority"?

I don't think so.

And if the President's powers, or the Judiciary's powers need to be explicitly delegated by the constitution, why not Congress's.

Nor does the "necessary and proper clause" provide carte blanche, if it allows the Congress to do anything it wants, wouldn't the 10th amendment cut that back to only necessary and proper within the bounds of Congress's delegated powers?

[not guilty]

Uh, the judiciary's power to "set aside Congressional legislation for being unconstitutional or irrational" is not "explicitly delegated by the constitution."

Chief Justice Marshall declared in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), that the judicial branch had that authority, and it has been ratified by centuries of practice following thereafter.

[mulched]

"It would be natural to conclude..."

It ranks right up there with "obviously" and "any reasonable person would think..."

[Roger S]

Except all those ignorant Americans who are too stupid to understand his Marxist reasoning.

[Michael P]

Clearly so.

[JoeFromtheBronx]

The president has the authority to ask for opinions in writing from the heads of departments (more exactly, "principal officer").

How is there a unitary executive with broad royal-like power when even that is specifically enumerated?

Madison, in Federalist 37, warned us about the lack of clarity of the exact meaning of the Constitution. "Questions daily occur in the course of practice, which prove the obscurity which reins in these subjects, and which puzzle the greatest adepts in political science."

The original people debated the details. Why should we assume we know better than they? It is, to a large degree a political question & SCOTUS is wrong to constitutionalize a certain view of executive supremacy.

[Roger S]

If the Federal Reserve Bank officers cannot be fired, then they are effectively a fourth branch of government. I do not think that the Founders would have gone along with that.

[JoeFromtheBronx]

If they can be fired for cause, they can be fired.

[wvattorney13]

Two possibilities. 1) That's surplusage, or 2) the President only has the specific powers listed in the Constitution.

#2 seems right out. Under your interpretation, the President couldn't have a cabinet meeting and ask for oral opinions from his cabinet heads.

Surplusage is not at all unusual. For example, Congress has the power to print and coin money and set the standard of weights and measures. But those seem to be a clear regulation of interstate commerce.

There is a canon of interpretation against surplusage but it is sparingly used. It is very common for people when drafting an instrument to specify a certain thing that strikes them as important without meaning for it to cast a doubt on everything else.

[JoeFromtheBronx]

Lindsay M. Chervinsky wrote The Cabinet: George Washington and the Creation of an American Institution.

The very concept of a cabinet was a development not necessarily predicted by the Framers. It underlines my overall concern here. The details here are debatable and were debated.

They developed over time. The text only provides some degree of clarity. The specific details should largely be left to the political processes and not set in stone by a majority of SCOTUS when the document is not so firm on the rules here.

It's quite possible that the opinions clause could suggest that some principal officer would only communicate in writing. The explicit text provides the minimum the executive can demand. The oral communication option is more discretionary.

The Opinions Clause should not be deemed mere surplusage. The coining of money can ("seem") be understood as a subset of the commerce power. That power is potentially very open-ended.

Coinage (there is no explicit power to "print" money) helps clarify. It helps clarify that the Commerce Clause is somewhat less open-ended on its own. The Opinions Clause does the same with executive power. It does not "cast doubt on everything else." It does cast doubt on an excessively open-ended view of executive power.

The Opinions Clause helps clarify that the executive power is limited. Art. II provides specific executive powers. There is not merely some open-ended executive power.

The specific contours of executive power are unclear; the First Congress had multiple theories on removal in particular. Kagan notes this in her Seila law dissent.

The Opinions Clause helps to show the complications.

[ducksalad]

A theoretical question:

Suppose Congress passed a law with some vague aspirational language that monetary policy, in particular the prime rate and amount of money released into the economy, must be "fair, equitable, and promote a stable economy".

Part of the law creates a cause of action where some large pool of people, maybe everyone, has standing to sue if they claim the prime rate or the amount of money released into the economy isn't "fair, equitable, etc..."

Anticipating a lot of cases, they create a new Article III court with exclusive jurisdiction over cases arising under the new law. With seven members. It's called the Federal Reserve Board, oops sorry, the US Monetary Policy Court. Just by chance it turns out most of "judges" have backgrounds in economics or finance rather than law. Like all judges, they are removable only by impeachment.

The law limits the Supremes to only hearing appeals from the USMPC claiming constitutional violations. Final judgment on statutory stuff like the fairness and stability is with the USMPC.

Does this pass constitutional muster?

[Kazinski]

"fair, equitable, and promote a stable economy".

So it would have to be Pareto optimal?

Lets face it, an interest rate that would be "fair, equitable, and promote a stable economy" for senior citizens with a limited income and living off their assets would be different that the "fair, equitable, and promote a stable economy" interest rate for younger citizens buying cars and homes and wanting jobs.

Such a board would be captured by some well healed or once powerful interest group, perhaps one that fell out of favor decades ago, just like the federal reserve board, except the people would have no opportunity to vote to make their voice heard because they would have life tenure.

I'm not sure it would pass muster, but it sounds worse than what we have now.

[ratufa]

I think the focus on this flavor of UET misses the point somewhat. Whether or not officers in policy making positions must be removable, the powers of the executive are clearly not "vested" in the president himself. The erosion of norms around senate confirmation, i.e. the serial use of interim appointees, seems to me a more serious problem.

[Daddyhill]

I agree. I expect, however, that the "remains to be seen" will be those of the Constitution before the end of Donald Trump's term in office.

[JonFrum]

When did 'separation of powers' become not a thing?

[Michael P]

Since leftists have put out talking points that it's an evil right-wing MAGA Trump idea, apparently.

On the Supreme Court, ASO tells people not to “affirm right-wing framing like ‘rule of law’” or “reference ‘co-equal branches’ or ‘Constitutional authority’ to argue for Congress’s role” (page 18).

https://open.substack.com/pub/thewelcomeparty/p/persuasion-2025-unpersuasive

[Krenn]

I don't know.... I mean, even if we assume that congress has SOME power to mandate that a skilled civil service or skilled military profession remain available and on-call for the NEXT president, whether the current president likes it or not....

I could see an argument that Congress possesses the power to bar the President from halting pay and benefits and maybe even information access for certain type of executive-branch employees, simply to ensure that they are retained in service for use by the next president....

But I would still think that the current POTUS has to have the power to place those officials on some sort of paid semi-leave, or at least to block them from issuing any meaningful orders on the President's behalf if he fundamentally does not trust them to be competent or to represent his directions faithfully.

In theory, POTUS almost has to have the power to banish certain executive officials to a library-in-waiting, where they can read departmental documents, write complaints to congress, get paid, and have zero meaningful power, other than maybe a few minions to help them write policy dissents.

[The Margrave of Azilia]

If a constitutional provision is vague enough that there are different *plausible* meanings, then I don't hesitate to say: Select the plausible meaning which best serves the public interest (you might even say, serves The Common Good). With a few caveats/understandings: Respect precedent unless it's clearly wrong, consider the impact of a given interpretation of one clause on the interpretation of other clauses, etc.

I make bold to assert that if judges (and others) consciously followed this rule, they would in many cases end up with the same opinions as before.

As far as the removal power, my best effort at interpretation would be that the President's duty to see the laws are faithfully executed implies a duty and power to fire executive-branch officials who violate the law, or even show lack of zeal in enforcing it. As for when the official says "*I'm* the one following the law; the President is the one breaking it;" I am undecided whether such dispute should be resolved by the Art III courts or the impeachment process. I lean toward the impeachment process - knowing that to rely on the impeachment process would mean that if impeachment fails the President gets to enforce his legal interpretation on the executive branch (but not on the judicial). I don't think this is an implausible interpretation or ruled out by the relevant Constitutional language - so why not adopt that interpretation, and tell the Founders that if this violates their intent, they should have written plainer language.

[The Margrave of Azilia]

Not only that, but the Pres should be able to fire an executive branch official for having the wrong enforcement *priorities.*

[Krenn]

I could see some sort of 'dueling impeachments' standard in the law. Federal executive officers of a certain rank, say, the top 50 highest-ranking federal executive officers beneath the president or so, would have the right to demand that Congress impeach+convict either POTUS for giving an illegal order, or the official in question for failing to follow a legal order. pick one. Congress must permanently bar one or the other from ever holding federal office again. No ties, no backsies, no face-saving compromises... Him or Me, and congress must choose.

Might take a constitutional amendment, though.

[NvEric]

I know it's dear to everyone's heart to make life complex with intrigue because it excites them ; that humanity grovels barely above sustenance level ; that the time for a better form of government remains fixed in a future far, far away ; technology focuses past abilities ; reason flounders in an abyss.

Just fill the tank and move on.

[OpinionsVary]

A question for those who believe in a strong vesting clause.

So Congress has created officers and agency and given them powers. The Fed can set rates, the attorney general can relieve fire arm disabilities, the commerce secretary can... You get the point. Only these officers can do these things. The president can't just sign a piece of paper setting rates, because the power belongs to the Fed committee. Proponents of a strong vesting clause claim this means the president must be able to remove these officers for any reason.

Under a strong vesting clause, isn't a removal power rather beside the point? If all executive power must be vested in the president then, well, it must be vested in the president. You can't give power just to the Fed. It must be given to the president - must be *vested* in him because it is an executive power. The Fed might use it day to day as a form of delegation. But if all executive power must be vested in the president, surely, under a strong vesting clause interpretation, the President must be able to ignore the junior officer and use the power directly himself? No need for removal at all.

How do people square that circle?

[M L]

I think you have a point there.

As I said above, Congress can do many things, but they can't really vest executive power in someone other than the President, it would seem.

If authority is given to certain agencies, but they remain subject to the direction of and removal by the President, then you might say the executive power is still in the President.

But as soon as you have executive branch officials claiming some sort of "independent" power, independent of the president, and not being subject to removal, that's a problem. Of course they can disagree with the President, and perhaps even take actions contrary to the President's directions, and there will be some level of tolerance for those things but the level of tolerance is up to the President.

[OpinionsVary]

>If authority is given to certain agencies, but they remain subject to the direction of and removal by the President, then you might say the executive power is still in the President.

My point is this isn't true. Removal doesn't a vesting make because all the removal in the world doesn't change where the power is placed.

Either all executive power is vested in the president or it isn't. If it is, removal is beside the point because the president can directly set rates. If it isn't, well, what's the problem with removal protections.

To me, this argument effectively reads that vesting must mean and can only mean vesting but vesting doesn't actually mean vesting.

[M L]

This is a bit reductionist I think. The President could do a lot of things I suppose, like run special ops or engage in combat on the battlefield, or argue in front of SCOTUS. But they generally don't. As for setting the fed funds rate, it's not just a matter of picking a number of out thin air, the law requires some fact finding and provides parameters within which to make that decision. As Krenn suggests below, the fact that various functions within a corporation are carried out by different persons doesn't mean the President of the corporation isn't in charge. So I think the President could instruct the Fed, "you will set this interest rate or face removal." The reason a President might not want to do that is, mostly, I would think, a matter of political accountability, which is appropriate and how it's supposed to work. But I don't think the fact that a president has to go that route, acting through subordinates, necessarily violates the constitutional structure - which undoubtedly vests "the" (singular) executive power in the President.

[Krenn]

It's a corporate-style responsible governance thing.

Basically, the president of the United States actually has to do TWO things contained within "ensure that the laws are executed faithfully."

The first, is to make sure that as much as possible of what the federal government does to and with other people, who are not members of the federal government, is consistent with the law as established by congress. Thinks like filing criminal charges, imprisoning convicted felons, drafting soldiers, cutting checks, etc, etc, etc.

The second is to make sure that how the members of the Federal Government interact with other fellow members of the federal government is also occurring in a sane and documentable and trackable way, such that after the NEXT election, when the NEXT President of the United States and the NEXT set of cabinet secretaries are sworn in, they actually have a plausible chance of figuring out what the Federal Government has been DOING for the last 250 years, and who was responsible for which decisions, and which policies are still active versus which have been shut down as having been bad ideas or good ideas which are no longer needed, and which specific prior federal officers may or may not have committed crimes in which matters, and which retired-in-good-standing federal officers can be called up on the phone and asked to explain a really confusing mess that was left behind in the filing system.

That's the basic theory of corporations, or of most forms of governance more complicated than 1200 AD Absolute Monarchies or so. The institution has to explain itself and conduct itself in such a manner that other humans can figure out how to maintain institutional continuity afterwards.

So, all the laws saying HOW to maintain institutional continuity, like by specifying that all federal criminal charges must have the signature of a federal executive officer on the charges, and that the federal executive officer in question must have a law degree, and must be properly appointed, and must be in an office location where he can routinely consult with all the other subordinate officers involved with the case who also have law degrees, and he must keep his file cabinets in good order, and he must maintain written communication with other relevant federal executive officers, and he must save copies of that written communication, etc, etc, etc.

Potus can't possibly do ALL of that on behalf of EVERY officer who's taking a stance that POTUS doesn't like. POTUS has to delegate nearly all of it, and he has to trust that when he delegates nearly all of it, the paperwork will still get filled out in a way that makes sense to future federal executives, and the records retention and decision-making-procedure laws will still be complied with in the nitpicking little ways that POTUS doesn't have time to worry about.

If Potus has good reason to believe that a subordinate officer ISN'T keeping the records straight, and ISN'T following the decision-making procedures, and ISN'T being a faithful and well-documented servant to what both POTUS and Congress meant for that sort of executive officer in that sort of position to do, then of course POTUS has to fire him. Otherwise we live in a world where the various senior Clerks and Postmasters throughout the government can conduct silent coups simply by 'losing' certain types of mail into a fire by 'accident'.

[ReaderY]

Whatever this is, it is not an orignalist argument. Professor Somin’s thesis is basically “things are different from the way they were at the founding, so we have to decide based on how things are today, not what the constitution said back then.”

Whatever originalism is, it’s not that. Whatever the argument’s other merits, it’s not originalist.

[Alpheus W Drinkwater]

One can make an "originalist critique" on any side of any principle or discussion. Its main virtue is its flexibility.