Later this year, the Supreme Court will hear arguments in a case that will decide whether President Donald Trump can fully reshape the executive branch in his own image. At issue is whether Federal Trade Commission member Rebecca Slaughter can be fired before her term ends only in cases of “inefficiency, neglect of duty, or malfeasance of office,” as the law establishing the FTC states, or whether Trump can dismiss her at will, as he attempted in March. The conservative majority is all but certain to find he does have that power, regardless of what Congress or the court’s own precedents have to say on the matter.
Trump v. Slaughter is but the latest in a string of cases before the court in which the administration seeks to free the president from the checks and balances that the country’s founders devised to prevent a king from arising in America. And yet, if you were to ask the court’s conservative justices about their judicial philosophy, most would at least nod toward originalism. That framework argues that the Constitution should be read and interpreted only as it was intended at the time of its drafting more than 200 years ago. And if the originalist justices’ interpretation of an 18th century document unerringly coincides with 21st century Republican ideology, even on issues the Founders never considered, why, that’s mere happenstance.
On top of originalist ideology, Justice Samuel Alito and several of his colleagues also layer on a belief in the so-called unitary executive. And while Chief Justice John Roberts may not identify as an originalist, he, too, has embraced the unitary executive. The theory places extraordinary weight on Article II’s “vesting clause,” which states that “executive Power shall be vested in a President of the United States of America.” As I wrote this year, the theory’s adherents believe that “every facet of the executive branch is necessarily an extension of that power, and the president must accordingly have complete control over all aspects of it.” Congress’ clear role under Article I in establishing the shape and functions of the executive branch — let alone the laws the executive is meant to execute— is treated as an afterthought.
The unitary executive is difficult to square with many of originalism’s tenets and emphasis on the text as written. The Constitution can be remarkably nonspecific even about seemingly basic issues such as the removal of federal officers or other executive branch employees from their positions. But before the originalist justices once again defer to a Republican president, they should consider the words of University of Virginia law professor Caleb Nelson. One of the nation’s most prominent originalist thinkers, Nelson argues that there are strong originalist grounds to rule in favor of Slaughter and against Trump.
In an article recently published by New York University’s Defending Democracy Project, Nelson is skeptical of the idea that Congress has no authority over the structure of the executive branch. After all, the Constitution set out the process for the first Congress to establish the various departments that would report to the president and roles for the various officers who would staff them. “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,” Nelson writes. “In my view, the Necessary and Proper Clause lets Congress make these judgment calls as it enacts particular statutes that structure particular agencies.” He added that “the power to execute the law is itself subject to the law; executive officials are allowed to use only the resources that the law makes available for this purpose, in the way that the law allows them to be used.”
Moreover, Nelson writes, the nebulously defined “executive power” that the unitary executive camp reifies is not as easily comparable to the powers that English kings had in the 18th century as many of the justices would like to claim: “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 II does not do so.”
But, as with so many of the cases involving Trump in recent years, there is little doubt how the Supreme Court will rule. Roberts last month placed a lower court decision allowing Slaughter to remain in her position on hold. An unsigned order from the shadow docket issued a few weeks later extended that stay pending a ruling on the merits from the court. Roberts’ 2020 opinion in Seila Law LLP v. Consumer Financial Protection Bureau used the same kind of faulty historical analysis that originalists heavily rely on to bash the 1935 decision in Humphrey’s Executor v. United States. The New Deal-era case that the Trump administration is seeking to overturn limited the president’s ability to fire officials confirmed to “quasi-legislative or quasi-judicial agencies” like the FTC and the Federal Reserve.
Nelson does sympathize with Roberts’ discomfort with independent federal bodies like the FTC’s sitting outside of the three established branches but cannot help but be warier of the alternative. If the unitary executive theory types are correct, he writes, “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.”
Such a critique would be brutal from any law professor, but from Nelson it’s particularly damning. As The New York Times wrote Monday, his work “has been cited in more than a dozen Supreme Court opinions, including ones by every member of the six-justice conservative majority.” Nelson was also a law clerk for Justice Clarence Thomas, himself a longtime proponent of maximizing executive authority.
Nelson’s pleas recall those from leading conservative jurisprudents William Baude and Michael Stokes Paulsen during the legal battle to get Trump removed from last year’s presidential ballot for insurrection. Even when faced with dire warnings from scholars with unimpeachable originalist pedigrees, Roberts and his fellow conservatives voted to expand the president’s protections from the rule of law. In cases like last year’s Loper Bright Enterprises v. Raimondo, the chief justice managed to strike a key tool from Congress’ legislative powers while transferring that authority to the federal courts (which Republicans are now dutifully working to fill with Trumpian hacks).
It is hard, then, to see what line Trump would have to cross before the originalists and their pro-unitary executive allies ruled to limit his powers. The justices will more likely, as Nelson fears, “act as if their hands are tied and they cannot consider any consequences of the interpretations that they choose.” By doing so, they reveal themselves to be the spiritual successors not of the founders and the revolutionary notions they sought embody in the Constitution, but the defeated monarchists who still longed for the paternal guidance of a king.
This article was originally published on MSNBC.com
