The Supreme Court is poised to deliver a series of rulings this term that dramatically expand President Donald Trump’s powers. Chief Justice John Roberts and his colleagues will likely claim that they are faithfully applying the original public intent of the Constitution, as their professed interpretive method of originalism demands.
A growing number of conservative legal scholars and self-identified originalists disagree with the court’s Trump-friendly jurisprudence. The most recent addition is Caleb Nelson, a University of Virginia law professor, a former clerk for Justice Clarence Thomas, and an avowed originalist. He recently wrote a widely read article critiquing the court’s approach to the unitary executive theory and sketching out an alternative view of the president’s removal power.
As The New York Times’ Adam Liptak noted this week, Nelson is frequently cited by the Supreme Court’s conservative justices for his work in this area, with Justice Brett Kavanaugh even including him on a list of “respected scholars” who study the Constitution’s original meaning. That makes it all the more noteworthy that he has dismantled the justices’ prevailing approach towards the separation of powers—and, indeed, to the fundamental nature of the American constitutional order.
In the Roberts Court’s view, the presidency is a unique and unparalleled office in that constitutional order. The unitary executive theory’s premise is twofold. First, the president has absolute control over the executive branch’s functions and decisions unless otherwise explicitly constrained by the Constitution. Second, the legislative and judicial branches cannot interfere in the executive branch’s internal workings through subpoenas, investigations, oversight measures, regulations, and so on.
The theory’s proponents, whom Nelson calls “unitarians,” point to the Vesting Clause of Article Two, which vests the “executive power” in a “president of the United States,” as well as writings by the Framers that refer to an “energetic” executive who is able to effectively channel the democratic will of the people who elected him. They claim this is the natural order of things and the last century or so—they are usually vague on the exact date—is an aberration.
Our current situation is the unitary executive theory in action. Trump has claimed that he can fire anyone in the executive branch at will and without legal or judicial recourse, even if Congress passed laws protecting office-holders from unjustified removal. He has seized Congress’s power of the purse by blocking congressional appropriations at will, dismantling and shuttering agencies and departments established by Congress, and spending money from his likely illegal tariffs to fund programs during a shutdown.
In perhaps the most constitutionally alarming move, Trump has even signaled that he will keep paying soldiers this week during the government shutdown despite a lack of congressionally authorized funds. (Other Pentagon outlays will be transferred instead.) The Framers went to great lengths to ensure that Congress would maintain civilian control of the military by controlling its funding. Trump has obliterated that 250-year-old check on the armed forces’ power with a single stroke.
This is a stark, zero-sum vision of constitutional power where the branches can only check each other through hard means like impeachment and removal. The theory is also largely hogwash, as Nelson articulates much more politely. Most of his article is focused on the problems as applied to the removal-power question, but his reasoning applies in other contexts as well.
The Supreme Court’s conservative majority has leaned heavily on a few vague and dubious sources to articulate its expansive view of presidential power. “The President’s power to remove—and thus supervise—those who wield executive power on his behalf follows from the text of Article II, was settled by the First Congress, and was confirmed in the landmark [1927] decision Myers v. United States,” Chief Justice John Roberts wrote in a 2020 case that eliminated for-cause removal protections for the director of the Consumer Financial Protection Bureau.
Article Two does not mention a removal power. Nelson began with the basic observation that all federal agencies and officials are the creations of Congress, and it is Congress that defines those offices’ duties, powers, and responsibilities. While the president can nominate people to fill top-level positions in those agencies and departments, it is also Congress—through the Senate—that confirms them. The president’s power over them, he argued, is much more limited than it seems:
When officers are duly appointed pursuant to the Appointments Clause, moreover, the Constitution requires the President to “Commission” them—which, in the case of executive officers, entails either conferring executive power on them or attesting to the executive power that their appointments confer. To my way of thinking, neither the Vesting Clause nor anything else in Article II compels the inference that after officers have been duly appointed, and after the President has issued the commissions that the Constitution requires, the President must be able to terminate the appointments and rescind the commissions at will, or to dictate how all such officers must use any discretion that the law attempts to give them.
The Constitution gives presidents the power to “take Care that the Laws be faithfully executed,” which Trump and some of his predecessors have cited as the source of much broader powers over these officials. Nelson counters that Congress’s powers through the Necessary and Proper Clause allow it to grant removal powers to the president if it deems them necessary to that faithful execution of the law.
How does this work in practice? Members of the Federal Reserve’s board of governors cannot be removed from office by the president except for cause. The Trump administration has challenged this limit while trying to fire Federal Reserve Governor Lisa Cook by arguing that Congress is unconstitutionally limiting the president’s constitutional power to remove officials. Nelson’s interpretation suggests that it’s actually the other way around: To whatever extent Trump can remove Cook from her position, it is only because Congress granted him the power to do so. (Nelson does not address the merits of Cook’s dismissal or the particulars of the case.)
Roberts’s claim that the removal power was “settled by the First Congress” is a reference to what he and others call the “Decision of 1789.” The First Congress debated a bill that would establish the “secretary of foreign affairs”—now known as the secretary of state—and a provision on whether the president could remove them from office. Lawmakers ultimately scrapped the removal provision, which led some—including then-Chief Justice William Howard Taft, a former president, in his Myers ruling—to conclude that Congress had implicitly recognized a presidential removal power.
Not so, said Nelson. He concluded that the First Congress had not settled on any one coherent position on removal. “In any event, even some members of later Congresses who agreed that the point had been ‘settled’ came to believe that the original decision was wrong—and by the 1860s if not before, Congress stopped following the purported decision,” he noted. “For the past century and a half, Congress has been enacting statutes in conflict with the position that unitarians take the First Congress to have settled.”
Unitarians have defended their pseudo-monarchical vision of the American presidency by arguing that the executive branch inherited some, most, or all of the royal prerogatives once held by the British monarchy. This argument dovetails with the unitarians’ general disdain for Congress. Former Attorney General Bill Barr claimed in a 2019 speech that the Revolution was a rejection of Parliament, not the king, and that the presidency was “brought to our Republic a dynamism and effectiveness that other democracies have lacked.”
“One of the more amusing aspects of modern progressive polemic is their breathless attacks on the ‘unitary executive theory,’” Barr wrote, perhaps anticipating this column. “They portray this as some new-fangled ‘theory’ to justify executive power of sweeping scope. In reality, the idea of the unitary executive does not go so much to the breadth of presidential power. Rather, the idea is that, whatever the Executive powers may be, they must be exercised under the President’s supervision. This is not ‘new,’ and it is not a ‘theory.’ It is a description of what the Framers unquestionably did in Article II of the Constitution.”
Nelson disagreed in the removal context. He pointed to scholarship on the king’s power to fill offices and how it differed from the founding-era practice, as well as sharp differences between the “executive power” understood by the Framers and the “royal prerogative” exercised by British kings. “Even if removal authority was part of the royal prerogative, most members of the founding generation did not think that they were giving the president the royal prerogative, and the Vesting Clause of Article Two does not do so,” he noted.
In the end, Nelson ultimately concluded with some general agreement with the unitarians on what he described as the current constitutional “taxonomy of powers,” which treats executive power as a catch-all category for anything that is not Congress’s legislative power or the federal courts’ judicial power. But he also urged the justices not to embrace presidential maximalism because of the broader systemic consequences.
“The current Supreme Court may likewise see itself as interpreting the Constitution for the ages, and perhaps some of the Justices take comfort in the idea that future Presidents will not all have the character of Donald Trump,” he wrote. “But the future is not guaranteed; a President bent on vengeful, destructive, and lawless behavior can do lasting damage to our norms and institutions. As one member of Congress argued in 1789, we should not gravitate toward interpretations of the Constitution that ‘legaliz[e] the full exertion of a tyrannical disposition.’”
Nelson is far from the only originalist to criticize the Supreme Court’s Trump-era rulings. Michael Rappaport, an originalist law professor at the University of San Diego, lambasted the court’s decision in Trump v. Anderson was a “disaster” that was “not originalism.” Even those predisposed to criticize originalist arguments can’t help but agree: The court’s decision to shield Trump from disqualification under Section Three of the Fourteenth Amendment was so slapdash that it did not even really try to reckon with the original meaning of the amendment.
“In the end, it is understandable that the Supreme Court would have decided the case on this nonoriginalist basis,” Rappaport wrote. “It does not want to wade into the question of whether Trump engaged in an insurrection. The Republic will not fall because the Court engaged in an unprincipled, pragmatic resolution where its self-interest was severely implicated. But let’s not kid ourselves that this was originalism. It was not.”
The presidential immunity decision in Trump v. United States received even more criticism along those lines. Legal scholars from across the ideological spectrum assailed the justices in the majority for refusing to engage with the historical evidence and for inventing an immunity that the Constitution’s plain text does not grant. David French, a lawyer and conservative columnist at The New York Times, argued that the two decisions were ultimately rooted in the justices’ policy preferences instead of the constitutional text.
“I disagree with the Supreme Court’s rulings for the most basic reason of all—they do not square with the text of the document the justices are supposed to interpret, and that means they’re granting the presidency a degree of autonomy and impunity that’s contrary to the structure and spirit of American government,” French wrote. “In both Trump cases, the liberal minority was more originalist than the conservative majority. This time, it was the conservatives who created a living constitution.”
There is a certain irony in that switch, which French likely intended. Justice Elena Kagan, a member of the court’s liberal wing, once famously remarked that “we are all originalists now” during her confirmation hearing in recognition of that method’s ascendancy. But the problem isn’t that the Supreme Court has adopted one interpretive method for the Constitution or another. Instead, it has largely abandoned interpretive methodology altogether in favor of results-oriented outcomes that for the last two years have almost uniformly favored Donald Trump.
If there is one big question for the Supreme Court this term, it is whether the conservative justices will continue down the path towards hyperpresidentialism and personalist rule, or whether they will hear the critiques from Nelson and other originalists like him and change course towards the Framers’ civic republican intent. I wish I could be confident that they will make the right choice.
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