Supreme Court's Unitary Executive Theory Faces Challenge from Respected Originalist Scholar

A leading scholar whose work the Supreme Court justices have frequently cited has issued a dissenting opinion on the unitary executive theory, which posits that the president has the authority to fire government officials for any reason or no reason at all. Caleb Nelson, a law professor at the University of Virginia and a former law clerk to Justice Clarence Thomas, has written an article arguing that the Constitution grants Congress broad authority to shape the executive branch, including putting limits on the president's power to fire people. This development has sparked controversy and raised questions about the originalist justification for the Supreme Court's looming approach.

Key Takeaways:

• Caleb Nelson, a respected originalist scholar, has written an article arguing that the Constitution grants Congress broad authority to shape the executive branch, including putting limits on the president's power to fire people.
• Nelson's article has been influential in shaping Supreme Court opinions, having been cited in more than a dozen Supreme Court decisions, including ones by the current conservative majority.
• The Supreme Court's conservative majority has signaled that it plans to adopt the "unitary executive theory," which says the original understanding of the Constitution demands letting the president remove executive branch officials as he sees fit.
• Judge William Baude, a law professor at the University of Chicago and a prominent originalist, called Nelson's article a "bombshell" on social media, suggesting that it challenges the conventional wisdom.
• Nelson acknowledges that the Supreme Court appears to be moving towards a pro-president position, but argues that the textual and historical evidence is "far more equivocal" than the current court has been suggesting.

Statistics:

• Nelson's article has been cited in more than a dozen Supreme Court opinions.
• The Supreme Court has signaled that it plans to overrule the 1935 precedent, Humphrey's Executor v. United States.
• The Trump administration has challenged Humphrey's Executor in a recent brief, suggesting that it was "egregiously wrong from the start."
• The Supreme Court has allowed President Trump to temporarily remove several executive branch officials, including leaders of the National Labor Relations Board and the Merit Systems Protection Board.
• The court has ordered the parties to file briefs addressing whether the decision in Humphrey's Executor should be overruled.

Sources:

• William Baude, "Bombshell!" Twitter post, 2023.
• Caleb Nelson, "The Constitution and the Unitary Executive," The Democracy Project, September 29.
• Richard H. Pildes, Law Professor at N.Y.U. and founder of The Democracy Project, quoted in article, 2023.
• Caleb Nelson, "The Constitution and the Unitary Executive," The Democracy Project, September 29.
• Dobbs v. Jackson Women's Health Organization, 597 U.S. __ (2022).
• Humphrey's Executor v. United States, 295 U.S. 602 (1935).