In an essay published earlier this fall, Professor Caleb Nelson argues that, as a matter of originalism, the President does not have a constitutional power to remove executive officers. Professor Nelson is a renowned scholar, whose arguments could well influence the Supreme Court in two upcoming removal cases: Trump v. Slaughter and Trump v. Cook. It’s therefore important to evaluate whether his historical claim about removal is correct.

The Breadth of Executive Power

Professor Nelson declares that, “[a]t its core, . . . executive power entails executing laws and judgments made by others, such as statutes enacted by Congress and judicial judgment rendered by courts.” From this remarkably narrow, law-executing definition of executive power, he concludes that executive power didn’t include any presidential authority to remove officers. Leave aside that his conclusion doesn’t follow from his premise. More fundamentally, he provides no evidence at all that the executive power was narrowly conceived in terms of the execution of the law. This cramped vision of the Constitution’s executive power is mistaken.

There is substantial evidence—some already published and more to come—that leading European theorists understood executive power to be a society’s strength or force, not only in law enforcement (primarily at home) but also in other national exertions (mostly abroad). Commentators as eminent as John Locke and Jean Jacques Rousseau, and as academic as Thomas Rutherforth, agreed that executive power was the “force” or “strength” of the society. Echoing this sort of vision, Alexander Hamilton wrote in The Federalist that the Constitution divides the government’s powers into those of “Force,” “Will,” and “judgment.”

Of course, like all definitions of power, this vision of executive power in terms of the society’s force or strength could sometimes seem unclear. James Madison therefore, at least on occasion, characterized executive power as the government’s residual power—that is, its non-legislative and non-judicial action. Not so much a departure from the strength or force definition of executive power, this was a means of clarification.

None of this is to say that there was only one conception of executive power. The leading alternative to the vision of the society’s strength or force was a vision that focused on its domestic application—this being the view that executive power was a matter of law enforcement.

The division of eighteenth-century opinion between these two positions may seem an insuperable obstacle to understanding the Constitution. But drafters often adopted phrasing to resolve disagreements, and what needs to be understood is not the definition of executive power in general, but rather the Constitution’s executive power.

The Constitution’s very words confirm that its executive power was broader than mere law execution. Although Article II begins by granting the President “executive Power,” it later imposes his duty to “take Care that the Laws be faithfully executed.” It thereby distinguishes between the executive power, which is stated generically, and the related duty, which is confined to the execution of the laws. Being restricted to executing the laws, the duty shows that the more generically stated executive power meant something broader.

Executive power thus included law execution but was not limited to that. In this way, the Constitution itself recognizes that executive power goes beyond mere law execution. And the only widely held eighteenth-century conception of executive power that went beyond law-executing was, of course, the old vision of it as a society’s action, strength, or force.

Once one recognizes this definition of executive power, it is no surprise that James Madison, for example, thought that the executive power included both appointments and removal. Both, Madison explained, were part of the Constitution’s executive power, and the Constitution limited only appointments, not removal:

The constitution affirms, that the executive power shall be vested in the president: Are there exceptions to this proposition? Yes there are. The constitution says that, in appointing to office, the senate shall be associated with the president, unless in the case of inferior officers, when the law shall otherwise direct. Have we a right to extend this exception [to removals]? I believe not. If the constitution invested all executive power in the president, I venture to assert, that legislature has no right to diminish or modify his executive authority.

Madison added: “If any power whatsoever is in its nature executive it is the power of appointing, overseeing, and control[l]ing those who execute the laws,” and “the general rule established by the constitution,” subject to specified exceptions, was that “the executive power shall be vested in the president.”

Professor Nelson’s cramped, law-executing vision of executive power collides with the leading eighteenth-century theory on the subject; it defies the Constitution’s text; and it ignores repeated assertions by James Madison.

The President’s Take Care Duty

The president has a constitutional duty to “take Care that the Laws” are “faithfully executed.” It’s widely recognized that if he is to fulfill this duty, he needs to be able to fire subordinates who, in his view, are not complying with the law. Professor Nelson, however, disagrees. In defending congressional limits on the President’s authority to remove subordinates, Nelson concedes only that removal authority “could be helpful to the president,” not that it is necessary to ensure that the laws are faithfully executed. Remarkably, Professor Nelson adds that “if the President believes that [his subordinates] are not faithfully executing the laws the President could alert Congress and recommend their impeachment.”

Really? Is it to be believed that the President can adequately control wayward subordinates by asking Congress to impeach them? How can the President ensure enforcement of the laws by relying on another branch of government—indeed, a distinctively cumbersome power of the most cumbersome branch? Adding to the difficulty, what if Congress, in opposition to the President, were to take a different view of the faithful execution of the laws? The sheer unreality of Professor Nelson’s proposal goes far in suggesting that it is mistaken.

Officers can be removed by impeachment only when the Senate convicts them of “Treason, Bribery, or other high Crimes and Misdemeanors.” Is it even remotely plausible that those crimes alone constitute unfaithful execution of the laws?

Professor Nelson seems to recognize that removal is necessary for carrying out the President’s duty. That’s good as far as it goes. But he wants to separate the duty from the power to effectuate it, leaving the one in the President and placing the other in Congress. This gratuitously violates the separation of powers on the basis of no historical or textual evidence whatsoever.

The Unitary Executive

In defending congressional limits on the President’s authority to remove subordinates, Professor Nelson adds that he objects to ideas about the “unitary” executive. He explains that the Constitution vests the executive power “in a single person—the President”—and that “unitarians conclude that the President must therefore be in charge of all exercises of executive power by the federal government.” Thus, “to whatever extent Congress’s statutes leave policymaking discretion in the hands of the people who execute those statutes, unitarians insist that the President must be able to control how that discretion is used.”

Professor Nelson protests that “neither the Vesting Clause nor anything else in Article II compels the inference that after officers have been duly appointed, . . . 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.”

But the executive is unitary in two ways: both by placing executive power in a single person and by making it a single power.

Let’s start with the Constitution’s vesting of executive power in a single person. By using the phrase “shall be vested in a President,” the Constitution signals that the location of executive power in the President is mandatory. Even when the executive power is carried out by subordinates, it must still remain in the President. This means he must be able to fire them, as he otherwise would not be able to control their exercise of executive power. To the extent he is deprived of his constitutional authority to remove them, the executive power is no longer vested in him—in clear violation of the words shall be vested.

Now, let’s turn to the single nature of executive power. The Constitution states: “The executive Power shall be vested in a President . . .” It thereby vests him with the executive power—a single power in a single person.

If he is to exercise the executive power, he must be able to remove anyone who exercises the executive power. If he cannot fire such persons at his discretion, there isn’t one executive power, but thousands of executive powers, each controlled by a different, potentially insubordinate officer or employee.

Although the unitary executive is a valuable explanatory theory, the Constitution’s text is more dispositive. It makes clear that the executive power is a single power mandatorily vested in a single person. Both sides of this equation mean that the President must be able to fire anyone who exercises executive power.

The Opinion Power

Professor Nelson also relies on the Constitution’s provision that the President “may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices.” In Nelson’s view, the Constitution’s specification of this “relatively minor” presidential authority over principal officers “suggests that the Vesting Clause does not give the President a general authority to command those officers, or to remove all who displease him.”

It is true that the Constitution specifies a presidential power to demand an opinion but not a power to remove. But what does that prove? The Constitution doesn’t specify most of the President’s foreign affairs authority, which is even more important than removal. Yet Professor Nelson isn’t contesting that foreign affairs belongs to the President.

Appointments, removal, and foreign affairs were all important. But they were all part of the executive power. Accordingly, none of them had to be mentioned, except to modify or clarify them.

Why, then, did the Constitution authorize the President to require written opinions from heads of departments? Alexander Hamilton, in Federalist No. 74, thought this provision “a mere redundancy . . . as the right for which it provides would result of itself from the office.” From this perspective, the opinion power is even less important than Professor Nelson recognizes, and he is even less justified in using it to discredit the President’s removal authority.

The 1789 Congressional Debates

Professor Nelson tops off his argument by disparaging the interpretation of executive power adopted in 1789 by the First Congress. When authorizing the Department of Foreign Affairs—what became the State Department—Congress employed language upholding the President’s power to remove the department’s Secretary. That congressional endorsement of presidential removal has long been considered evidence of the Constitution’s meaning and an important early precedent. Professor Nelson, however, demurs.

He begins by protesting that the congressional debates “do not show a consensus for any particular interpretation of the Constitution.” True, there was no consensus. But that’s a red herring. There’s rarely consensus about anything, and disagreement did not mean that Congress didn’t act on its interpretation of the Constitution.

Professor Nelson adds that there was “no majority” position in Congress. His point seems to be that no interpretation of the Constitution, certainly not one upholding presidential removal, can be attributed to the legislature. But is that true?

Although one wouldn’t know it from Professor Nelson’s account of the debates, James Madison thought the Constitution’s authorization for removal carried the day. Writing to Thomas Jefferson, Madison reported that, although congressmen debated four different views, the leading position was that “the Executive power being generally vested in the President, and the Executive function of removal not expressly taken away, it remained with the President.” This opinion eventually “prevailed, as most consonant to the text of the Constitution, to the policy of mixing the Legislative and Executive Departments as little as possible, and to the requisite responsibility and harmony in the Executive Department.” Not for the first time, Nelson disagrees with James Madison.

Conclusion

Professor Nelson’s disparagement of the President’s removal authority is regrettably distant from the evidence. It fails to do justice to:

• the Constitution’s definition of executive power,
• the president’s take care duty,
• the mandatory vesting of a single executive power in a single person,
• the unreasonableness of reasoning from the opinion clause, and
• the First Congress’s interpretation of the Constitution.

Being unburdened by the textual and historical evidence and, indeed, contrary to it, Professor Nelson’s approach is more original than originalist.

It is not unreasonable for Professor Nelson and others to worry about the breadth of executive power. His concern appears to be narrowly about the current occupant of the White House. More structurally, one should be troubled about the extent of executive power at a time when it has been expanded to include administrative power—that is, the executive exercise of legislative and judicial power.

The remedy, however, is not a further departure from the Constitution. Rather than restrict the President’s executive power over removal, the Supreme Court needs to recognize the danger and unconstitutionality of administrative power. To be precise, the Court needs to disentangle executive power from legislative and judicial power—so that executive power doesn’t extend to making binding rules or adjudications. The President’s executive power embraces the authority to fire those who exercise executive power, and this removal authority won’t be particularly worrisome—indeed, it will be valuable—when his subordinates exercise only executive power.

Philip Hamburger is the Maurice and Hilda Friedman Professor of Law at Columbia Law School.