The Supreme Court will hear arguments in December about whether President Trump can fire government officials for any reason, or no reason, despite laws meant to shield them from politics.
There is little question that the court will side with the president. Its conservative majority has repeatedly 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.
But a new article, from a leading originalist law professor, has complicated and perhaps upended the conventional wisdom. The legal academy treated the development like breaking news.
“Bombshell!” William Baude, a law professor at the University of Chicago who himself is a prominent originalist, wrote on social media. “Caleb Nelson, one of the most respected originalist scholars in the country, comes out against the unitary executive interpretation” of the Constitution.
Professor Nelson, who teaches at the University of Virginia and is a former law clerk to Justice Clarence Thomas, wrote that the text of the Constitution and the historical evidence surrounding it grants Congress broad authority to shape the executive branch, including by putting limits on the president’s power to fire people.
Professor Nelson’s article was published Sept. 29 by the Democracy Project, an initiative at the New York University School of Law that plans to release 100 essays in 100 days by an ideologically mixed group.
The article is particularly notable, said Richard H. Pildes, who is a law professor at N.Y.U. and one of the project’s founders.
“If a highly respected originalist scholar like Professor Nelson, on whom the court relies frequently, denies that originalism supports the unitary executive theory,” Professor Pildes said, “that inevitably raises serious questions about an originalist justification for the court’s looming approach.”
Professor Nelson’s scholarship has been exceptionally influential. It has been cited in more than a dozen Supreme Court opinions, including ones by every member of the six-justice conservative majority.
Justice Brett M. Kavanaugh, in a concurring opinion last year, listed him among “respected scholars” who are “continuing to undertake careful analysis” about the role tradition plays in determining the Constitution’s original meaning. Justice Thomas cited one of his articles six times in a single concurring opinion in 2023 and two of his articles in another concurring opinion that year.
Still, the new article is unlikely to have a practical effect, and Professor Nelson acknowledged that the Supreme Court “appears to be moving toward a sweepingly pro-president position.”
Indeed, one of Chief Justice John G. Roberts Jr.’s signature projects since he joined the court 20 years ago has been to grant the president more power to fire executive officers.
“Since 1789, the Constitution has been understood to empower the president to keep these officers accountable — by removing them from office, if necessary,” he wrote in 2010. Later decisions, too, kept chipping away at a 1935 precedent, Humphrey’s Executor v. United States, that said Congress could put limits on the president’s power to fire people.
In recent orders ruling on emergency applications, the court has signaled that the precedent is on life support. In May, the Supreme Court let Mr. Trump remove leaders of the National Labor Relations Board and the Merit Systems Protection Board at least temporarily.
“Because the Constitution vests the executive power in the president,” the majority said in an unsigned opinion, “he may remove without cause executive officers who exercise that power on his behalf, subject to narrow exceptions recognized by our precedents.”
That last clause referred to Humphrey’s Executor.
Then last month, in another unsigned order, the court let Mr. Trump temporarily remove a member of the Federal Trade Commission — the agency at issue in Humphrey’s Executor — and said it would hear arguments in the case in December. It ordered the parties to file briefs addressing whether the decision should be overruled.
The Trump administration filed its brief on Friday. “This court should overrule anything that remains of Humphrey’s Executor,” the brief said. “That decision was ‘egregiously wrong from the start,’ both legally and factually,” it added, quoting Dobbs v. Jackson Woman’s Health Organization, the decision that overturned Roe v. Wade in 2022.
In Dobbs, Justice Samuel A. Alito Jr. wrote that “the Constitution makes no mention of abortion.” The same is true of the president’s power to remove executive officers. Nor was the question discussed at the Constitutional Convention.
In a majority opinion in 2020, Chief Justice Roberts relied on debates at the first Congress, saying they settled the matter, but Professor Nelson wrote in his new article that there was no consensus at the time.
Indeed, he wrote, “more than one member warned against interpreting the Constitution in the expectation that all presidents would have the sterling character of George Washington.” One member, Professor Nelson wrote, warned against “legalizing the full exertion of a tyrannical disposition.”
Letting the president fire officials “for reasons good or bad,” Professor Nelson wrote, would grant him “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.”
But the question is not whether allowing limits on the president’s power to fire officials is sensible, Professor Nelson wrote.
“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,” he wrote.
But the textual and historical evidence is “far more equivocal than the current court has been suggesting,” he wrote.
“In the face of such ambiguities, I hope that the justices will not act as if their hands are tied.”