Has the Supreme Court Abandoned Originalism?
The Supreme Court’s conservative majority has leaned heavily on a few vague and dubious sources to articulate its expansive view of presidential power. “The President’s power to remove—and thus supervise—those who wield executive power on his behalf follows from the text of Article II, was settled by the First Congress, and was confirmed in the landmark [1927] decision Myers v. United States,” Chief Justice John Roberts wrote in a 2020 case that eliminated for-cause removal protections for the director of the Consumer Financial Protection Bureau.
Article Two does not mention a removal power. Nelson began with the basic observation that all federal agencies and officials are the creations of Congress, and it is Congress that defines those offices’ duties, powers, and responsibilities. While the president can nominate people to fill top-level positions in those agencies and departments, it is also Congress—through the Senate—that confirms them. The president’s power over them, he argued, is much more limited than it seems:
When officers are duly appointed pursuant to the Appointments Clause, moreover, the Constitution requires the President to “Commission” them—which, in the case of executive officers, entails either conferring executive power on them or attesting to the executive power that their appointments confer. To my way of thinking, neither the Vesting Clause nor anything else in Article II compels the inference that after officers have been duly appointed, and after the President has issued the commissions that the Constitution requires, 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.
The Constitution gives presidents the power to “take Care that the Laws be faithfully executed,” which Trump and some of his predecessors have cited as the source of much broader powers over these officials. Nelson counters that Congress’s powers through the Necessary and Proper Clause allow it to grant removal powers to the president if it deems them necessary to that faithful execution of the law.
