At the Democracy Project today, we’re running a special feature essay from Caleb Nelson, the Spies Distinguished Professor of Law at the University of Virginia School of Law and former law clerk to Justice Clarence Thomas. Caleb is a major originalist scholar and is frequently cited at the Supreme Court.

In his extensive special feature essay, Caleb goes carefully through the arguments for the unitary executive branch and explains why, on originalist grounds, he ultimately rejects them. Here’s a brief excerpt, read the whole piece for more:

…To be sure, the authority to direct or remove administrative officers (and even civil-service employees) might sometimes be helpful to a President who is trying in good faith to “take Care that the Laws be faithfully executed.”  But this authority carries obvious dangers too.  As Professor William Van Alstyne pointed out many years ago, the Necessary and Proper Clause generally allows Congress to weigh the costs and benefits of giving the President powers and protections that the Constitution does not itself specify but that might help the President carry out his assigned tasks.  Usually, then, the fact that such a power could be helpful to the President means only that Congress could confer it on him, not that the Constitution itself does so.  In my view, if Congress reasonably decides that the President should be able to remove some duly appointed officers only for certain causes and through certain processes, the President could discharge his obligations under the Take Care Clause by going through those processes when warranted.  Indeed, I am open to the possibility that the President need not be empowered to remove certain officers at all; if the President believes that they are not faithfully executing the law, the President could alert Congress and recommend their impeachment.  In any event, the Take Care Clause does not imply that the President must be able to fire all executive officials at will, any more than it guarantees the President the ability to imprison officials who do not do what the President says….

Admittedly, the rhetoric and even the analysis of Humphrey’s Executor conflict with current ideas about the taxonomy of powers that the Constitution recognizes.  Under current doctrine, the federal government’s legislative powers can be exercised only by Congress (acting through the process of bicameralism and presentment), and what Article III calls “[t]he judicial Power of the United States” can be exercised only by true federal courts (staffed by judges who enjoy life tenure).  For purposes of constitutional taxonomy, that leaves the “executive” category for everything else.  Thus, the modern Supreme Court has said that even when agency actions resemble legislating or judging, “they are exercises of—indeed, under our constitutional structure they must be exercises of—the ‘executive Power.’”

I share that understanding of the taxonomy, but it raises the stakes of the Court’s flirtation with strong versions of the unitary-executive theory.  If most of what the federal government currently does on a daily basis is “executive,” and if the President must have full control over each and every exercise of “executive” power by the federal government (including an unlimitable ability to remove all or almost all executive officers for reasons good or bad), 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.

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.  But both the text and the history of Article II are far more equivocal than the current Court has been suggesting.  In the face of such ambiguities, I hope that the Justices will not act as if their hands are tied and they cannot consider any consequences of the interpretations that they choose.