At the Yale Journal on Regulation’s Notice & Comment Blog, Philip Hamburger: Removal: A Response to Professor Nelson. From the introduction:
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.” …
I of course agree that the executive power includes more than just law execution, especially in foreign affairs (see here) but that isn’t necessary to support removal power. As Professor Hamburger says, Professor Nelson’s “conclusion [that the is no executive removal power] doesn’t follow from his premise [that the executive power only includes law execution power].”
Hamburger returns to this point later:
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.
I mostly agree, and crucially this argument does not depend on thinking that the executive power includes anything other than law enforcement power. Removal is not a separate power from law execution power; it is a consequence of law execution power.
Counterpoint: Also at Notice & Comment, Christine Kexel Chabot: Running Away from History in Trump v. Slaughter. From the introduction:
On December 8, the Supreme Court will hear oral argument in the landmark case of Trump v. Slaughter. A fundamental issue in the case is whether the statutorily created office of Commissioner for the FTC can include partial restrictions on the President’s ability to remove a Commissioner. The government contends that the statutory removal restrictions impinge on an indefeasible presidential removal power under Article II.
While the Supreme Court’s recent decisions in Seila Law and Collins have recognized an indefeasible presidential removal power for some officers, a flood of recent research has undermined historical arguments for a categorical rule that would extend removal at pleasure to all officers or all principal officers. For summaries of this historical literature, see Chabot, Katz, Rosenblum & Manners, Nelson, and Katz & Gienapp. (My latest paper, The Interstitial Executive: A View from the Founding, adds more fuel to the fire: it introduces a critical body of previously overlooked archival evidence to show that the Washington, Adams, and Jefferson Administrations routinely complied with statutory removal restrictions in their officer commissions.)
The government’s reply brief banked on recent precedent from the Roberts Court. It leaned in to Seila Law and the unitary understanding of the Decision of 1789 that the Court adopted in that case. At the same time, the government offered an extension of Seila Law that would create further conflicts with the historical record.
Both Seila Law and the officers created pursuant to the Decision of 1789 involved departments led by single officers. Neither Seila Law nor the Decision of 1789 involved statutory tenure protections for officers serving on multimember commissions such as the Federal Reserve or the FTC. As a result, Seila Law is not necessarily at odds with historical evidence supporting these independent multimember commissions. Some of the strongest Founding era examples of tenure-protected officers were those serving on multimember commissions such as the Sinking Fund Commission (described in my work here and here) and the Revolutionary War Debt Commission (described in recent work by Victoria Nourse as well as my new paper).
I’ve heard a lot about the Sinking Fund Commission and the Revolutionary War Debt Commission, and I’m doubtful they can bear the weight placed on them. They seem quite different to me from the modern FTC. If these are the “strongest Founding era examples of tenure-protected officers”, that seems insufficient to overcome the text.
Posted at 6:03 AM