A "Bombshell" Or a Dud?

Once again, originalism is only elevated when a scholar with conservative credentials opposes conservative jurisprudence.

Yesterday, the New York Times published an article, titled Originalist 'Bombshell' Complicates Case on Trump's Power to Fire Officials. Adam Liptak highlights a new essay by UVA Law Professor Caleb Nelson that casts doubt on the claim that the Article II Vesting Clause includes a removal power.

Nelson did not say anything particularly novel in this 3,000 word essay. Indeed, he cites the work of scholars like Jed Shugerman and Julian Davis Mortenson who have written hundreds of pages on this issue in recent years.

So why did Nelson warrant a glowing profile in the newspaper of record? Simple: a law professor with conservative credentials opposed conservative jurisprudence. Here, a Thomas clerk published a short essay that bucks the conventional wisdom on the right. Will Baude hailed the essay on BlueSky as a "bombshell." I think it is fitting that the Times quoted Baude's announcement, as he was the subject of a similarly positive NYT piece by Adam Liptak in 2023.

Barely two years ago, Will and his co-author, Michael Stokes Paulsen wrote a 150-page article arguing that Donald Trump was unquestionably disqualified by the presidency under Section 3. (Seth Barrett Tillman and I were on the other side of that debate.) In the wake of January 6, there were many scholars who had written that Trump was disqualified. But what made the Baude/Paulsen article stand out was their conservative credentials. Baude, in particular, had clerked for Chief Justice Roberts.

I think there is something of a pattern. The mainstream media will elevate originalism when it bucks conservative orthodoxies. But when originalism unquestionably supports a conservative position, it is described as fringe and radical.

Ultimately, I'm not sure that Nelson's article moves the needle, at all. I don't need to remind everyone that the Baude and Paulsen position received zero votes at the Supreme Court. Justice Thomas made up his mind about Humphrey's Executor a long time ago. He stated the issue plainly in Seila Law.

I don't think Justice Thomas will wake up and say, "my goodness, because of a 3,000 word essay by a law professor I hired three decades ago, I have to radically alter everything I think about the separation of powers." A former Thomas clerk once told me a story of how he tried to persuade the boss that he was wrong about some case. Thomas sat patiently and listened as the clerk presented his argument. After the clerk was done, Thomas said he felt even more convinced that his initial position was correct.

I think it far more likely that Thomas cites, and continues to cite, another former clerk who is also on the University of Virginia faculty: Sai Prakash. Indeed, Thomas cited Prakash in Seila Law:

1 For a comprehensive review of the Decision of 1789, see Prakash, New Light on the Decision of 1789, 91 Cornell L. Rev. 1021 (2006).

Why is it that Prakash, whose credentials are very close to those of Nelson, doesn't even merit a mention by the Times? Prakash has been engaging in a lengthy debate with Mortensen and Shugerman on this issue. Indeed, Prakash co-authored an article with another member of the UVA faculty, Aditya Bamzai, in the Harvard Law Review.

Still, all the focus now is on Nelson, who wrote a short essay. If you read down to the last paragraph of Nelsons piece, you will see how tentative the claim is:

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.

This is not exactly lion-hearted originalism. It isn't even faint-hearted originalism. Call it "inclined-to-be" originalism?

Ultimately, I think this new entry to the field will not be a bombshell, but will be a dud.

Comments

[Charles Nichols - CRTC]

A great irony is that Josh Blackman's writing partner, Randy Barnett, is neither a conservative nor an originalist.

[ducksalad]

Barnett not an originalist?

It's true he promotes a somewhat aggressive list of proposed amendments, but I'm fairly sure he views them as restoring original intent. Like the word "Restoring" is in the title of his most famous book.

[Charles Nichols - CRTC]

Barnett is very much opposed to originalism when it comes to the Second Amendment. Remind him that SCOTUS said in District of Columbia v. Heller that Open Carry is the right guaranteed by the Second Amendment and said that prohibitions on concealed carry do not violate the Second Amendment.

This is triggering for Barnett. Try it and find out for yourself. His foaming-at-the-mouth reactions are quite entertaining. He can be reached on Twitter at @RandyEBarnett.

[ducksalad]

Christians disagree, sometimes with foam at the mouth, over particular points about the New Testament. Doesn't mean they're not all Christians. What makes them Christians is agreeing that the New Testament is a valid source of authority. It doesn't hinge on agreeing with the Pope.

If Barnett argues that the 1791 meaning covered concealed carry, he may be factually wrong, but that's still an originalist argument. Even if he disagrees with the Supremes.

But I guess you know all that. Perhaps you're a non-originalist thinking he's found an inconsistency and that brings down the whole structure?

[Charles Nichols - CRTC]

ducksalad, Christianity, like every religion, is a get out of Hell free card for believers. Unlike attempting to decipher religious texts from two thousand years ago, it does not take a legal scholar to know that the American People who enacted the Second Amendment did not think that it protected a right to, in the words of Heller, "secret advantage and unmanly assassination."

When Barnett ranted against Open Carry on Twitter, he did not present any originalist argument or any legal argument, for that matter. Again, Barnett can be reached on Twitter at @RandyEBarnett. Find out for yourself.

[David Nieporent]

it does not take a legal scholar to know that the American People who enacted the Second Amendment did not think that it protected a right to, in the words of Heller, "secret advantage and unmanly assassination."

That is a quote from the Louisiana Supreme Court in 1850, which, needless to say, does not shed much light on what the framers thought about the right in 1791.

[Charles Nichols - CRTC]

David Nieporent, a fun fact about our Federal legal system is that the United States Supreme Court has the final say on what the Framers thought the Constitution meant in 1791. Given that the use of a concealed weapon to kill someone was punished by death without the possibility of a pardon or lesser punishment, where, in the otherwise identical set of circumstances, the killing would be manslaughter or self-defense if the weapon had been openly carried, one would be hard pressed to make the case that they thought the Second Amendment protected the right of cowardly, depraved degenerates to carry concealed weapons.

Concealed carry is to the Second Amendment what same-sex marriage is to the 14th Amendment, not a right until a majority of morally corrupt justices says it is.

[TwelveInchPianist]

"David Nieporent, a fun fact about our Federal legal system is that the United States Supreme Court has the final say on what the Framers thought the Constitution meant in 1791."

WTF? No it doesn't.

[Charles Nichols - CRTC]

TwelveInchPianist just proved that he has no idea how our Federal courts work.

[David Nieporent]

David Nieporent, a fun fact about our Federal legal system is that the United States Supreme Court has the final say on what the Framers thought the Constitution meant in 1791.

What does that have to do with the fact that you misrepresented what the Supreme Court said?

Given that the use of a concealed weapon to kill someone was punished by death without the possibility of a pardon

TF? Where did you get that idea? Or the idea that self-defense ceased to be self-defense if the weapon was concealed?

[Charles Nichols - CRTC]

David Nieporent - English common law dating back to 1603.
Now this is where a moron will say that English law did not apply to the English-American colonies, and will say that the United States did not adopt the English common law court system as our own.

[Stepped Reckoner]

So delightful to watch Charles consign Christianity to the dustbin of history in such a sneeringly en passant way, on his ranting way to a foaming condemnation of a (checks notes) rant by someone whose (rechecks notes) Twitter posts he thinks lack a sufficiency of footnote.

[Charles Nichols - CRTC]

Stepped Reckoner, you're welcome.

[dwb68]

I have never quite understood the peevish focus on open carry. If anything, the original practice was unlicensed carry (open or concealed) with some states expressing a preference for open, but only because concealed carry was considered insidious.

I mean, if you want to be hyperliteral, the first amendment only protects printing presses, the second only protects muskets, and the 4th only protects (literal) papers. lol.

Obviously not.

I don't see the big deal. I now have a CCW permit in a blue state thanks to Bruen.

[Charles Nichols - CRTC]

dwb68, the "original practice," which long predates 1791, was that the use of a concealed weapon to kill another person was punished with death, without the possibility of a pardon or lesser punishment.

You don't see the big deal because you, like many (if not most) people, have lost your sense of smell.

Only cowardly, depraved degenerates carry concealed weapons. To which the cowardly, depraved degenerates say, "What's your point?"

[dwb68]

No. In some places.
Halbrook has already covered this ground extensively. https://www.stephenhalbrook.com/law_review_articles/right_to_bear_arms_in_the_first_stat_bills_of_rights.pdf

Both PA and Vermont have constitutional provisions for RKBA that date to the 1790s.

Vermont Supreme Court in 1876 recognized the right to bear arms "openly or concealed," and to this day, Vermont does not recognize the open/concealed distinction.

In PA, up until at least the 1870s, concealed carry was not prohibited statewide, and there was debate whether they were constitutional (see footnote 23).

New Jersey did not prohibit concealed carry until 1905.

Nowhere in the Federal Crimes Act of 1790 does it mention concealed carry. All the federal crimes receiving the death penalty were listed... including counterfeiting. Not CCW!

On the frontier in the wintertime, you would have likely carried your pistol in a leather pouch to protect it from the elements. Concealed! lol.

Being that I am from PA, with an original provision for the RKBA dating to 1790s, and a long tradition of both open and CCW, I feel very comfortable with it.

[Charles Nichols - CRTC]

dwb68, I said that in 1791, it was the use of concealed weapons that was punished (severely), not the carrying of a concealed weapon. As I recall, the first statewide prohibition on the carrying of concealed weapons was in 1813.

Perhaps the most moronic part of your argument is "Nowhere in the Federal Crimes Act of 1790 does it mention concealed carry."

It's like trying to teach a moron why he shouldn't shit on his desk; it's impossible.

[dwb68]

I can be persuaded; you just dont know your history. As i said, in Vermont, PA, NJ, and other states, carrying a concealed weapon was considered part of the right. Go back and read Halbrook. He covers history thoroughly.

Of course the "use" of a concealed weapon could be punished if it was murder. Murdering someone with an openly carried weapon was also severely punished! lol. Murder was murder.

You are taking the examples of some southern states too far.

[Charles Nichols - CRTC]

dwb68, executing someone for the use of a concealed weapon, without the possibility of pardon or lesser punishment, dates back long before the English American colonies became states.

Halbrook is proven to be a pathological liar who panders to cowardly, depraved degenerates.

[Kazinski]

What's your point?

[Charles Nichols - CRTC]

I said, "Only cowardly, depraved degenerates carry concealed weapons. To which the cowardly, depraved degenerates say, "What's your point?""

Kazinski replied, "What's your point?"

[David Nieporent]

SCOTUS did not in fact say that in DC v. Heller.

[Charles Nichols - CRTC]

Here is a link to an audio clip of Justice Scalia reading an excerpt from the Heller opinion in which he emphasized that concealed carry is not a right. https://www.bitchute.com/video/sDqQIlTXzDtE

David Nieporent, not only did the Heller decision say that Open Carry is the right guaranteed by the Constitution (pages 612-613), Justice Scalia (the writer of the opinion) began Section III of the decision with:

"Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e. g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152-153; Abbott 333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e. g., State v. Chandler, 5 La. Ann., at 489-490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884)." District of Columbia v. Heller, 554 U.S. 570, 626 (2008).

For the benefit of those who are too lazy or ignorant:
State v. Chandler - "[T]he Louisiana Supreme Court held that citizens had a right to carry arms openly: “This is the right guaranteed by the Constitution of the United States, and which is calculated to incite men to a manly and noble defence of themselves, if necessary, and of their country, without any tendency to secret advantages and unmanly assassinations.” Heller at 613.

Heller did not elaborate on Nunn v. State of Georgia (Bruen did), but this is the relevant part of Nunn from both Heller and Bruen - "The act of 1837 was passed to guard and protect the citizens of the State against the unwarrantable and too prevalent use of deadly weapons." ""The question recurs, does the act "to suppress the evil practice of carrying weapons secretly," trench upon the constitutional rights of the citizen? We think not."

"The Georgia Supreme Court's decision in Nunn v. State, 1 Ga. 243 (1846), is particularly instructive. Georgia's 1837 statute broadly prohibited "wearing" or "carrying" pistols "as arms of offence or defence," without distinguishing between concealed and open carry. 1837 Ga. Acts 90, § 1. To the extent the 1837 Act prohibited "carrying certain weapons secretly," the court explained, it was "valid." Nunn, 1 Ga. at 251. But to the extent the Act also prohibited "bearing arms openly," the court went on, it was "in conflict with the Constitutio[n] and void." Ibid.; see also Heller, 554 U.S. at 612, 128 S.Ct. 2783." New York State Rifle & Pistol Assn, Inc. v. Bruen, 142 S.Ct. 2111, 2147 (2022).

So, David Nieporent, are you a liar or simply a fool?

[Kazinski]

"without any tendency to secret advantages and unmanly assassinations.”

What about women, or the elderly?

Do they have to choose between the risk of being cold cocked and their gun stolen, and going unarmed?

[Krayt]

Will someone intent on assassination refuse to hide their gun in a pocket because of the law?

It's a stupid concept.

[Charles Nichols - CRTC]

Krayt, assassins, and mass murderers routinely conceal their firearms until they start murdering people. The policy underlying the prohibition against concealed weapons is based on the protection of those persons who may come into contact with a weapon bearer. If a weapon is not concealed, one may take notice of the weapon and its owner and govern oneself accordingly, but no such opportunity for cautious behavior or self-preservation exists for one encountering the bearer of a concealed weapon.

[Charles Nichols - CRTC]

Kazinski, cowardice, and depraved degeneracy (secret/tactical advantage) are invariably the top two reasons given by cowardly, depraved, degenerated concealed carriers.

[David Nieporent]

No; I'm just literate. Not one of those quotes says what you pretend. To whit:

For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues.

Not only does this amalgate federal and state constitutions, but it clearly says that the majority of courts said this — which means that some courts did not say it. And SCOTUS isn't holding it here; it's just discussing history.

State v. Chandler - "[T]he Louisiana Supreme Court held that citizens had a right to carry arms openly:

As I said above: the Louisiana Supreme Court, whose holdings about the federal constitution are not authoritative.

"The question recurs, does the act "to suppress the evil practice of carrying weapons secretly," trench upon the constitutional rights of the citizen? We think not."

The Georgia Supreme Court, whose holdings about the federal constitution are not authoritative.

[Charles Nichols - CRTC]

David Nieporent, and yet every Federal Court of Appeals has said that the prohibitions from Heller, including the above state court prohibitions cited by Heller, are not only "authoritative" but also binding on them.

When your parents taught you to repeatedly lie in order to convince others that your lie is the truth, they forgot to teach you that the trick only works on simpletons, and they forgot to teach you that no matter how many people believe that your lie is the truth, it will still be a lie.

[wvattorney13]

That's a terribly hyper literal reading. The discussion in Heller illustrates some acceptable limits on the RKBA. And the distinction was, by all reasonable accounts, that the state can regulate the manner of carrying so long as it allowed an alternate form.

If the social mores of today reject open carry and think that concealed carry is the better way--so that we don't scare soccer moms--then that is functionally the same distinction.

Nothing in Heller suggested that the open vs. concealed carry distinction that was socially prevalent in 1789 was to be forever obeyed as if Moses commanded it.

[Charles Nichols - CRTC]

wvattorney13, I assume by your handle that you are pretending to be an attorney from West Virginia. But if you are really one, you have not learned to hide the fact that your family tree does not have any branches.

[DDHarriman]

Unlike the Left who forbids it, people not on the Left are allowed to have different viewpoints and still associate, and even do so often.

You should try it. It's kinda neat not living in an echo chamber. But then again, does the fish know he's in water?

[Charles Nichols - CRTC]

DDHarriman, I'm to the right of Ayn Rand. You, Barnett, and the rest are the fish.

[DDHarriman]

I'm so far right I can't believe you thought Ayn Rand was 'right'.

neener, neener

[Charles Nichols - CRTC]

DDHarriman is proof that you should just say no to drugs.

[Stepped Reckoner]

"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."

Talk about ending not with a bang but a whimper. (Or, perhaps one should instead say, not with a bombshell.) If not lion-hearted originalism, perhaps this is, to borrow a word from a famous Scalia opinion, mouse-hearted originalism.

[David Nieporent]

to borrow a word from a famous Scalia opinion, mouse-hearted originalism.

Scalia's phrase was "faint-hearted originalism," and it was not from any opinion, but from a speech he gave, later published, called "Originalism: The Lesser Evil."

And saying, "Originalism doesn't resolve this particular question" is not any sort of repudiation of or deviation from originalism.

[Stepped Reckoner]

David Nieporent,

Interesting that you leap to at least three inaccurate conclusions: (i) that my quotation was inaccurate, (ii) that my describing it as a "word" (instead of "phrase") was inaccurate, and (iii) that my locating it in a famous "opinion" was inaccurate. I was borrowing the word "mouse." You know, the mouse who lives in the mousehole that doesn't conceal an elephant in Scalia's majority opinion in Whitman v. American Trucking. Maybe you've heard of it. But hey, you be David Nieporent.

The sentence "Originalism doesn't resolve this particular question" doesn't appear in my post. Unlike some, though, let's charitably interpret what you meant. You probably meant that that's what Caleb Nelson really meant. I can't read his mind like you can, but it's easy to intone things like that when your "originalist" analyses so readily conclude that originalism does not compel an outcome. It's a good thing Nelson said, "I am an originalist." Otherwise I might not have guessed it. To borrow an aphorism first borrowed by Margaret Thatcher, sometimes, if you have to tell people you are, you ain't.

Some guy has said on this thread, "Statements against interest are much more noteworthy than self-serving statements. If Alito endorses a Thomas opinion, it doesn't really tell us much about the merits of that opinion". If so, it follows that if David Nieporent endorses an anti-Trump statement by a law professor, it doesn't really tell us much about the merits of that statement.

[David Nieporent]

I can't read his mind like you can,

You apparently can't read his words, either:

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,

[wvattorney13]

The line is based on an assumed premise. That is if you can inject anything but absolute certainty into a question, then you jettison originalism and judge according to outcomes.

If it is truly THAT bad to let a President have these powers in 2025, then it would seem that there would be large majorities to amend the Constitution. After all, Trump won't be President forever. Each side will understand (if it is so bad) that they don't want to hand their opponents this power for 4 years at a time.

But that is not what people have done because the choice is between an elected president with this power and an entrenched administrative state. Nobody likes the latter.

[Brett Bellmore]

We didn't get the latter as a result of nobody liking it. Plenty of people like it, because they think they can count on the entrenched people generally being in their camp. Or because they're part of it themselves.

[dwb68]

A former Thomas clerk once told me a story of how he tried to persuade the boss that he was wrong about some case. Thomas sat patiently and listened as the clerk presented his argument. After the clerk was done, Thomas said he felt even more convinced that his initial position was correct.

I loled.

Maybe those 3000 words will move Thomas... in the opposite direction.

Humphrey Executor is dead. Roberts has wanted to gut and fillet the administrative state since he was confirmed. Now, he can.

Its not a question of how, but how far: I am someone doubtful it will extend to the Fed.

The problem with the Fed (the FOMC specifically) its that it has quasi-congressional powers (to coin money), and congress has set specific rules how that should be done.

The counter of course is that the Fed is also a regulatory body.

Officials overseeing bank and financial market regulations are executive functions; those officials can be fired. Officials overseeing purely monetary policy cant.

[Sarcastr0]

It says a lot about both you and the Court that you're just doing outcomes here.

We get it. But it says a lot that to get there you need to dismiss any scholarship that doesn't go your way.

[SRG2]

That anecdote does not quite present the image Josh wishes to convey - Thomas comes over as a closed-minded consequentialist and that he was more convinced pf his position is a well-known psychological phenomenon.

[MollyGodiva]

The entire concept of saying the president can fire anyone under him that he wants is read out of "The executive Power shall be vested in a President of the United States of America." That's it. No where else does it even imply that the president can do that. However it does explicitly say that the president must faithfully execute the laws.

The powers of the pesident are enumerated in the Constitution. To give him more power or immunity is something that people just made up.

[Riva]

If being vested with Executive power doesn't mean you have the power to manage and remove those personnel serving under you, then it really doesn't mean anything. And fun fact: The President is the only party vested with the Executive power under the Constitution.

[MollyGodiva]

Being vested with executive power means what Article II enumerates. The Constitution does not hide vast powers between the lines.

[Michael P]

There is, of course, nothing in the text to suggest that federal executive power is bounded to what Article II enumerates.

Angel Raich and believers in a broad Necessary and Proper clause would be equally surprised to learn that "[t]he Constitution does not hide vast powers between the lines."

[ducksalad]

The Necessary and Proper Clause is in Article I Section 8, Powers of CONGRESS.

nothing in the text to suggest that federal executive power is bounded to what Article II enumerates.

The entire federal government is one of enumerated powers. Amazing that no one ever told you that.

Every single federal action has to be justified, ultimately by a reference to an enumerated power. Executive branch officials exist only because Congress created their offices. The President's authority to manage those offices is derived from that. I can see an argument that Congress by default expected the POTUS to fire people at will, but not when they expressly voted to the contrary.

[dwb68]

Presidents since the founding have removed federal employees. Washington, Adams, and Jefferson all rewarded their supporters. Andrew Jackson was famous for it. He campaigned on purging the federal government and did so. He gave the positions to his patrons. 100% constitutional, endorsed by the founders themselves.

[MollyGodiva]

That was before Congress passed laws limiting the ability to fire anyone they want.

[dwb68]

Hmmm... So I guess that means Congress can also allow the President to raise and lower taxes at will, just by passing a law too.

[Riva]

No, "Molly." You completely ignore the separation of powers and fail to address in anyway the underlying powers necessarily implied in definition of the Executive power. Even worse, in your crowning idiocy, you redefine the executive branch as an arm of the legislature. What insipid AI tool gave you this "argument"?

[NvEric]

So, once employed it's for life ?
If POTUS can't fire anyone, then can another be brought in ?
Then there'll be two for one office.
Firing people who POTUS brings in is not 'vast powers between the lines,' it's simple executive management.

[ducksalad]

"If being vested with Executive power doesn't mean you have the power to manage and remove those personnel serving under you, then it really doesn't mean anything."

Really? According your Riva Theory, if Lisa Cook wins, then all the rest of Trump's powers disappear as well? Cool!

But really that's too radical. Maybe we could just read the pretty damn explicit definition of executive powers that's right there in Section II (maybe it got torn out of your pocket constitution, I could send you a fresh one with that part highlighted) and acknowledge the fact that those are precisely the executive powers vested in Section I.

[dwb68]

Presidents since the founding have exercised unilateral removal power.

https://constitution.congress.gov/browse/essay/artII-S2-C2-3-15-2/ALDE_00013108/

[Sarcastr0]

So the statement here is: "The Nation’s first two Presidents, George Washington and John Adams, each unilaterally removed Executive Branch officers, although neither of them removed a large number of officials."

It cites to "163 Joseph Story, Commentaries on the Constitution of the United States § 1537."

That appears here: https://press-pubs.uchicago.edu/founders/documents/a2_2_2-3s58.html

During the administration of President Washington few removals were made, and none without cause; few were made in that of the first President Adams. In that of President Jefferson the circle was greatly enlarged; but yet it was kept within narrow bounds, and with an express disclaimer of the right to remove for differences of opinion, or otherwise, than for some clear public good. In the administrations of the subsequent presidents, Madison, Monroe, and J. Q. Adams, a general moderation and forebearance were exercised with the approbation of the country, and without disturbing the harmony of the system.

And then later on, about Jackson:

Since the induction into office of President Jackson, an opposite course has been pursued; and a system of removals and new appointments to office has been pursued so extensively, that it has reached a very large proportion of all the offices of honour and profit in the civil departments of the country. This is matter of fact; and beyond the statement of the fact it is not the intention of the Commentator to proceed. This extraordinary change of system has awakened general attention, and brought back the whole controversy, with regard to the executive power of removal, to a severe scrutiny. Many of the most eminent statesmen in the country have expressed a deliberate opinion, that it is utterly indefensible, and that the only sound interpretation of the constitution is that avowed upon its adoption; that is to say, that the power of removal belongs to the appointing power.

Story seems quite a bit more equivocal than your linked text might indicate. And the unilateral aspect is *utterly absent*.

[David Nieporent]

Moreover, as Molly points out above, that a president has an implied power of removal when the law is silent is nearly irrelevant to the question of what power the president has when Congress expressly limited his removal power.

[dwb68]

Congress doesn't limit Presidential power; only the Constitution does. And it's well-settled (since 1789) that the Constitution has no such limitation.

[MollyGodiva]

Does that apply to Congress? The only limits to their power is what the Constitutions limits and otherwise they can do what they want?

[dwb68]

Congress has no enforcement power. How are they going to get a President to enforce a law against himself?

They cant! **

That is the magic of separation of powers. Judges don't really have much power, except the power of persuasion. To enforce a judgment... the executive has to help.

**Well... they can impeach him. Good luck with that.

[Sarcastr0]

How is what you describe different from a monarchy with a parliament?

[David Nieporent]

Congress doesn't limit Presidential power; only the Constitution does. And it's well-settled (since 1789) that the Constitution has no such limitation.

I mean, that's entirely wrong. See, e.g., Youngstown Sheet and Tube. There are a few powers that the Constitution grants exclusively to the President. A few. Pardons. Vetoes. Receiving ambassadors. Congress can't restrict those. Almost all of the rest of his powers, either the Constitution splits them between Congress and the president, or they come from statute. Congress determines what those powers are, and thus can define their scope.

[ducksalad]

Let me explain something: when I was kid it was legal to smoke in post offices and interstate aircraft, and people did it, ever since the "founding" of post offices and cross-country airlines. Then Congress passed some laws and it was not legal. Perhaps you find that hard to believe but it happened.

There was no Federal Reserve Board in 1791, and there was no law restricting firing members. So of course it didn't come up. Now they've passed a law, and unless the law violates the constitution, the president is bound to follow it.

Congress created it, Congress can abolish it, and Congress can specify in excruciating detail how it operates, should they choose to do so.

How is that Congress can specify how much they get paid, how many members there will be, how often they have to meet, when they have to fill out little pieces of employment paperwork, what kind of outside investments they can be involved in, and even say whether they can smoke a cigarette in their office, but Congress has zero say on their term of office?

If you say that term of office is solely up to the president, why not the rest of it? Can he tell them to light up in the office, excuse them from conflict of interest laws, tell them they don't have to fill out their I-9, stop meetings required by law, change the number of members, and ignore the federal pay scales? Why aren't those all in the Magic Vesting Clause also?

The sole viable argument that can overcome Congress's power is that it violates some other section of the constitution. Not that presidents did it before it became illegal.

[wvattorney13]

The debate over the reach of "executive power" is irrelevant. Whatever that term means, if someone purports to exercise such powers, that person by definition has a lesser executive power than the President.

And if the President has no power to fire that person, then that person has an executive power that is greater to or at least equal to that of the President. Such an outcome is inconsistent with the idea that the executive power lies with the President alone.

It's really simple if you imagine someone who is not Trump as president.

[Brett Bellmore]

It's as simple as this: If the President can't fire the people below him, then the people below him are free to do what THEY want, instead of following his orders, and he's no longer in control of the Executive branch.

[Sarcastr0]

This remains a ridiculous exaggeration.

Employees who are not at will don't become wild rogue employees with zero controls on what they can do.

[Alpheus W Drinkwater]

Where in the Constitution does it say that the executive power lies with the President alone?

"The executive Power shall be vested in a President of the United States of America. "

No mention of alone. The framers weren't even agreed that the President had the power to remove members of his cabinet. Indeed Hamilton famously changed his mind on the matter between 1787 and 1789.

[Longtobefree]

" the New York Times published . . . "

Stopped right there.

[NvEric]

+ 1

[Doug Heffernan]

Nelson would likely agree with blackman that his new article will have no effect.

Nelson acknowledged that the new article is unlikely to have a practical effect, and that the Supreme Court “appears to be moving toward a sweepingly pro-president position.”

The text/history/tradition doesn't help much with the removal power. Roberts seems to think that some debates in the first Congress are enough (when combined with the text of Article II) to favor a monarchical style presidency. Nelson is more or less saying that is not enough to compel monarchical power upon the presidency on originalist grounds. But it will be enough.

[QuantumBoxCat]

"I think there is something of a pattern."

Now that's a "skewed sample [size]".

[Thomas L. Knapp]

"The mainstream media will elevate originalism when it bucks conservative orthodoxies. But when originalism unquestionably supports a conservative position, it is described as fringe and radical."

Usually the case is somewhat different: Originalism is described as fringe and radical regardless, but conservative originalists are correctly painted as hypocrites when they plead originalism for six days and suddenly become living constitutionalists on the seventh.

[Alpheus W Drinkwater]

There are some good faith practitioners, but for the most part it's an outcome in search of half-baked historical "analysis" as justification.

[LawTalkingGuy]

I think you’re misunderstanding the pattern. Legal journalists and academia today generally consider “originalism” not to be “fringe” but just your basic partisan right-wing outcome oriented jurisprudence. You and Randy Barnett (and soon Wurman) are the poster children in academia for this. It’s a little hit or miss with the justices and judges but still fairly predictable where “originalism” leads. Especially when the supposed originalists have the history all wrong like they do with Reconstruction.

So when someone with conservative credentials purporting to be an originalist goes against current Republican orthodoxy based on the methodology originalists supposedly use, people think it’s notable.

[David Nieporent]

Yeah; Blackman is just playing dumb here. Statements against interest are much more noteworthy than self-serving statements. If Alito endorses a Thomas opinion, it doesn't really tell us much about the merits of that opinion; if Sotomayor does the same, it's worth paying attention to.

[Sarcastr0]

How quick supposed originalists are to dismiss scholarship when it doesn't go the way they want.

There are real originalists out there; Baude is one of them. I guess this author is as well.
They're not quite so loud as the originalism as fig leaf for politics crowd, and they tend to be shouted down quite a bit.

[Stepped Reckoner]

If Baude is a "real originalist" (a curious phrase), I'm a real German.

Spoiler alert: Never been. Just the heritage. The Thirty Years War evidently was too hot for my Palatine forebears.

[Sarcastr0]

He does actual scholarship on founding-era documents to reach conclusions.

Not sure why you went off on your heritage, but I'll put you down in the 'political fig leaf' crowd.

If outcomes you don't like mean it's not 'real' then you're the one who isn't taking things seriously.

[Stepped Reckoner]

You're saying the Supreme Court justices who've disagreed with Baude -- of whom there are at least (checks notes) nine -- don't do such "actual scholarship"? Whose opinions are you reading?

And how odd, to suggest I'm using "'real'" in a manner not taking things seriously. You were the one who was using it, and I literally was critiquing you for using it that way. That's projection, Sarcastr0.

As a charter lurker here since Hector was a pup, I do miss the old days when you didn't torch so many straw men, or coarsen so many debates with short-circuits like "actual scholarship," "real originalist," and, any minute now no doubt, "real American."

[Sarcastr0]

I talked about Baude's process, not his ends. By this point, everyone knows originalism is not deterministic of a single specific outcome; like most scholarship reasonable minds can differ.

But yes, some on the Court are pretextual in their originalism (Alito). Others aren't originalists at all (Thomas, Kavanaugh).

Gorsuch is an originalist, most of the time. Often to a fault He'll swing when he's gotta, though.
Roberts does a bit more work, but he's all about the historical narrative; with all the outcome-orientation such narritivism allows.

Dunno about Barrett.

[Stepped Reckoner]

I'm won't say you're wrong about Kavanaugh, Gorsuch, Alito. Unfortunately IMHO justices are very often pretextual.

Certainly Kagan is. She's just better at it, often figleafing it with caustic wit in the Scalia mode.

But I think Thomas is originalist as there is. I am not sure who on the bench I would call more originalist than him. The fact that in some cases he is unconvincingly pretextual does not contradict that. We are all human, even clever Conspiracy commenters.

(Well, I'm sure there are some clankers nowadays, but not you -- you've been around too long.)

[JoeFromtheBronx]

Other "originalists" (whatever that means) also "do actual scholarship on founding-era documents to reach conclusions."

This results in long articles where they have a variety of conclusions and often skip over some documents (it's hard to include them all). Their analysis of the material is of mixed value.

Baude has praised Barrett's book (he goes as far as to say it should be the leading book out there/maybe the leading fairly new book for lay people to check out) and her integrity & her promotion of the book alone suggest that it is misguided. See. e.g., a recent piece by Chris Geidner.

[For his praise, see, e.g., a recent SCOTUSBlog article on originalism & tomorrow's voting rights case.]

[Sarcastr0]

I’m not an originalist, but Baude is at least putting in the work and coming to conclusions he might not like.

[bernard11]

So why did Nelson warrant a glowing profile in the newspaper of record? Simple: a law professor with conservative credentials opposed conservative jurisprudence. Here, a Thomas clerk published a short essay that bucks the conventional wisdom on the right.

What an easy question to answer. Has Josh ever heard the phrase, "Man bites dog?" That is, of course, a cliche example of a newsworthy event, and that's what happened here.

Look, fine-grained disagreements among Constitutional law professors are a lot less interesting and important than Josh imagines. A conservative (liberal) faculty member writing in support of a conservative (liberal) position is seriously unsurprising. Unless a new, unconventional, argument is presented they are all going to sound the same.

Why is it that Prakash, whose credentials are very close to those of Nelson, doesn't even merit a mention by the Times?

For exactly the reason that his opinion, right or wrong, is utterly predictable.

[Sarcastr0]

This is the vein Bari Weiss has been mining from for ages.

[bernard11]

Sarcastro,

Rather Delphic. Could you clarify?

[Sarcastr0]

Bari Weiss talks a lot about how she's a gay Jew who says she used to be liberal, but all she has done for over a decade is condemn liberalism for going 'too far' and reaping the man bites dog coverage that gets her.

That act has taken her to the head of CBS.

https://www.youtube.com/watch?v=gieTx_P6INQ

[Alpheus W Drinkwater]

She and her FreePress got lots of attention from John Oliver last Sunday. All attention is good attention, I guess.

[Keldonric]

Unless I missed it, I don’t see mention of Justice Thomas’s dissent in Seila Law. Most of this discussion is about the President’s removal power, but Thomas focused on something deeper. He argued that if the office itself, as legislated, is unconstitutional, then the agency’s authority should be invalidated—not preserved by severing the structure. In his view, Congress would have to re-delegate that power under a valid design.

As Thomas wrote in his concurrence in Seila Law v. CFPB (2020):
“If Congress cannot constitutionally vest authority in the CFPB Director, then it cannot create that office. The proper course is to invalidate the agency’s authority and allow Congress to reconstitute it in accordance with constitutional principles.”

[Katall]

I suggest that the founders made the Constitution vague on purpose: so as to allow it to adapt to the tomes. That is the original intent. As a result, whether they had a specific purpose in mind when writing it is irrelevant. They knew society would change.

When they wanted things to be specific, they could do it, see, e.g.,the enumeration of powers in Article I, and the 3/5 clause, as well as age limitations for holding office.

IMO, they would be aghast at some interpretations of the Constitution. For example, the expansive reach of the commerce clause. But they would agree that the Constitution could be interpreted as it is.

Generally, oeiginalisn is bunk. It is used to justify the results five justices want, when there is no real justification for the result.

[Brett Bellmore]

And I'd suggest that the founders didn't make the Constitution vague, on purpose or accidentally. It's just that people who see ambiguity as licensing themselves to make choices tend to see lots of ambiguity, because people LIKE being able to make their own choices.

[Sarcastr0]

Something that grants the President 'the executive power' or talks about rights not mentioned is not exactly nailing down the details.

This is why I'm not an originalist - the Constitution is a framework, not a recipe.

We're long beyond Scalia's examination of the Founders' writings.
You can see originalists these days filling in the gaps with behavior-based historical vibes, which makes unsupported assumptions of how restrictive our early leaders thought the Constitution was [they didn't seem troubled], and the effect of the post-Civil War reframing of the Constitution.

[wvattorney13]

The founders created an amendment process to allow the constitution to adapt to the times. And while there may be new and modern phenomena that doesn't neatly fit with 1789 terminology or practice, most difficult issues can be answered easily by originalism.

Far from being results oriented it looks for the original meaning of those terms. The "fault" in originalism is only in the truly hard cases that it doesn't provide a crystal clear answer. In most things that we argue about it provides easy, smooth answers: the death penalty is constitutional, the constitution does not require it to be legal for two men to "marry" each other, there is no right to an abortion, etc.

Your side sees that originalism does not require YOUR preferred results, so you scuttle it for a philosophy that can do nothing but lead to your preferred results.

[Katall]

Another issue: whose intent? That is,do we take into the views of the authors? Congress? People who voted? They all may have had different views on what certain clauses meant.

Take the second amendment. Did everyone who voted for it mean for it only to apply to militias,despite the wording? Who knows? Even when it passed, they could only guess.

Originilism is simply an intent to at divination. A dowsing rod if you will.

[thesafesurfer]

The left could not exist without double standards and hypocrisy.

[NvEric]

Federalist 77

The View Of The Constitution Of The President Concluded,
With A Further Consideration Of The Power Of Appointment,
And A Concise Examination Of His Remaining Powers

It has been mentioned as one of the advantages to be expected from the co-operation of the senate, in the business of appointments, that it would contribute to the stability of the administration. The consent of that body would be necessary to displace as well as to appoint.*

* This construction has since been rejected by the legislature; and it is now settled in practice, that the power of displacing belongs exclusively to the president.

The Federalist (The Gideon Edition), Edited with an Introduction, Reader’s Guide, Constitutional Cross-reference, Index, and Glossary by George W. Carey and James McClellan (Indianapolis: Liberty Fund, 2001)

The new Liberty Fund edition presents the text of the Gideon edition of The Federalist, published in 1818, which includes the preface to the text by Jacob Gideon as well as the responses and corrections prepared by Madison to the McLean edition of 1810.
The McLean edition had presented the The Federalist texts as corrected by Hamilton and Jay but not reviewed by Madison.

[Alpheus W Drinkwater]

"But when originalism unquestionably supports a conservative position, it is described as fringe and radical."

That quote made me chuckle. I can only imagine examples in Prof. Blackman's mind of when originalism "unquestionably supports a conservative position."

[DemocratParadigmBreaker]

Leftists are just so deceitful, devious and disgustingly dumbed down ......to a point you resent their stupidity.

[DemocratParadigmBreaker]

Only a Democrat President can fire anybody they want. Lol
Isn't that obvious?
that needs to be codified in law, though

[DemocratParadigmBreaker]

Biden fired anybody he wanted, and the federal courts backed him up and set the precedents, and here we are......!

[David Nieporent]

Who did Biden fire without cause that Congress had said could only be fired for cause?

[Katall]

The Commissioner of Social security?