Today’s Ad Law Reading Room entry is “Against the Dictatorial Presidency,” by Caleb Nelson, which was recently posted to SSRN. Here is the abstract:

Article II of the Constitution says that “[t]he executive Power shall be vested in a President of the United States of America.” Ever since the 1980s, it has been an article of faith in Republican legal circles that this spare sentence answers an enormous number of questions about personnel practices and decision-making structures for everything that the federal government does outside of Congress and the Article III courts. Among other things, it is said that the Constitution requires the President to be able to control every individual exercise of authority by all nonlegislative and nonjudicial officers in the federal government, and that the President must also have unfettered power to fire any and all of those officers for any reason or for no reason at all. At the same time, it is said that the Necessary and Proper Clause of Article I (which explicitly empowers Congress to make all laws that are necessary and proper for carrying the executive power into execution) has little bearing on these questions.

The current Supreme Court has enthusiastically embraced these aggressively pro-President readings of the Constitution. But the text of the Constitution is at best ambiguous about the issues that the Court takes it to resolve. As for history, the Court has flitted imprecisely between the idea that history reveals a determinate original meaning on these points and the idea that historical practices have “liquidate[d] & settle[d]” ambiguities in the original meaning—but in any event, the Court is wrong about both its historical evidence and the theory of liquidation.

The stakes are high. Even as the Court is moving swiftly to expand presidential power, daily events illustrate the dangers of its preferred course.

Ad Law Reading Room often features pieces that haven’t yet gotten the attention they’re due—the kind of thing you might later brag you were among the first to appreciate. “Against the Dictatorial Presidency” has already garnered plaudits and an impressive number of downloads. And yet, it’s impossible to resist featuring. Nelson’s is the first article people should turn to for a comprehensive synthesis of the case against the Supreme Court’s recent embrace of executive unitarianism. It’s also a lively and compelling read. Go ahead and give it another download.

The Ad Law Reading Room is a recurring feature that highlights recent scholarship in administrative law and related fields. You can find all posts in the series here.