The conservative legal movement has for decades insisted that an originalist understanding of the Constitution — that is, an interpretation that looks to how the document was understood at the time of the nation’s founding — demands letting the president remove executive branch officials as he sees fit. That follows, the argument goes, from the “unitary executive theory,” which says the president should have complete control of the executive branch and that congressional efforts to shield the leaders of independent agencies from politics should be forbidden.
In September, though, a leading originalist law professor, Caleb E. Nelson, challenged that conventional wisdom in an article that attracted attention in legal circles and beyond. He wrote that the text of the Constitution and the historical evidence surrounding it in fact grant Congress broad authority to shape the executive branch, including by putting limits on the president’s power to fire people.
“Bombshell!” William Baude, a law professor at the University of Chicago who is also a prominent originalist, wrote on social media after Professor Nelson’s article was published. “Caleb Nelson, one of the most respected originalist scholars in the country, comes out against the unitary executive interpretation” of the Constitution.
Professor Nelson, who teaches at the University of Virginia and served as a law clerk to Justice Clarence Thomas, has been exceptionally influential. His scholarship has been cited in more than a dozen Supreme Court opinions and by every member of the six-justice conservative majority.
His September article was repeatedly cited by lawyers for Rebecca Kelly Slaughter, the member of the Federal Trade Commission whose firing is at issue in Monday’s case, in her main Supreme Court brief. In reply, lawyers for Mr. Trump wrote that Ms. Slaughter’s brief “rehashes objections to the removal power” from a “recent essay by Professor Caleb Nelson.”
Professor Nelson declined an interview request in October, saying in an email that “I fear that I don’t have much to add to what I said in the piece.”
His article acknowledged that the Supreme Court “appears to be moving toward a sweepingly pro-president position.”
Indeed, one of Chief Justice John G. Roberts Jr.’s signature projects since he joined the court 20 years ago has been to grant the president more power to fire executive officers.
In a majority opinion in 2020, he relied on debates at the first Congress in 1789, saying those lawmakers settled the matter. But Professor Nelson re-examined those same events and wrote that there was no consensus at the time.
Letting the president fire officials “for reasons good or bad,” Professor Nelson wrote, would grant him “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.”
But the question is not whether allowing limits on the president’s power to fire officials is sensible, Professor Nelson wrote.
“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,” he wrote.
But the textual and historical evidence is “far more equivocal than the current court has been suggesting,” he wrote.
Adam Liptak covers the Supreme Court and writes Sidebar, a column on legal developments. A graduate of Yale Law School, he practiced law for 14 years before joining The Times in 2002.
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