Jack interviews Caleb Nelson, the Emerson G. Spies Distinguished Professor of Law at the University of Virginia School of Law, about his working paper, “Against the Dictatorial Presidency.” They discuss the modern history of unitary executive theory, Nelson’s criticisms of the theory in Slaughter, the relevance of the Necessary and Proper Clause, and the dangers of Slaughter, with special focus on the civil service. Goldsmith and Nelson close by discussing the Court’s unexplained Fed carve-out, with Nelson lamenting the Court’s selective willingness to consider consequences in crafting the unitary executive.
Mentioned:
Caleb Nelson, “Against the Dictatorial Presidency” (Working paper, October 16, 2026)
Trump v. Slaughter, 146 S. Ct. 2283 (2026)
Daniel Webster, Speech on the Appointing and Removing Power, U.S. Senate, February 16, 1835
Jed Shugerman and Gary Lawson, “Presidential Removal as Article I, Not Article II,” 121 Northwestern University Law Review (forthcoming)
Jane Manners and Lev Menand, “The Three Permissions: Presidential Removal and the Statutory Limits of Agency Independence,” 121 Columbia Law Review 1 (2021)
This is an edited transcript of an episode of “Executive Functions Chat.” You can listen to the full conversation by following or subscribing to the show on Substack, Apple, Spotify, or wherever you get your podcasts.
Jack Goldsmith: I’m Jack Goldsmith. Today I’m going to be discussing modern unitary executive theory, what the theory means, its origins, its application in the already famous Trump v. Slaughter case, and its implications. And I’m thrilled to discuss these issues with Caleb Nelson, the Emerson Spies Distinguished Professor of Law at the University of Virginia. Caleb is one of the leading public law scholars in the country and also a prominent originalist, and he’s written an important article about Slaughter called “Against the Dictatorial Presidency.” Caleb, welcome.
Caleb Nelson: Thanks, Jack. I’m delighted to be here.
So your article, as I read it, is a bit of a takedown of the Slaughter decision. But before we get to that, I want to set the stage. You kind of give the intellectual origins of modern unitary executive theory, going back through decades of conservative legal thought. Can you talk about those origins?
Sure. Others have done that more thoroughly than I, but I do gesture at that. I think the idea that Article II of the Constitution entitles the president to fire executive officers at will, and that Congress can’t restrict that authority by statute, has been around for a long time. But I think until sometime in the 1970s or so, a lot of conservatives resisted that idea. I think dating back to the New Deal and FDR, they didn’t like aggressive claims of presidential power. That had changed by the start of the Reagan administration.
The party line among Reagan Republicans from the 1980s on was that Article II did indeed give the president unilateral removal authority, and Article II did indeed entitle the president to control all executive power—the unitary executive theory. I’m sure we’ll talk about the legal arguments for that idea, and maybe the idea was more about law than about politics. But I think it is worth noting that Reagan Republicans did have political incentives to like the idea.
The basic idea of the theory is that all principal executive officers, and maybe inferior executive officers too, serve at the pleasure of the president, and Congress can’t restrict his authority to fire them for any reason or for no reason at all. In the 1980s, Republicans thought that they would pretty often have the presidency, but that they wouldn’t be in control of Congress for a long time. And under those circumstances, I think a legal theory that allocated more power to the presidency and less to Congress was politically congenial.
I think at the same time, the theory also would have appealed to Reagan Republicans and other administrations with anti-regulatory commitments, because it suggested a mechanism for the president to curb or control regulatory activities by administrative agencies, including even agencies that Congress had tried to make independent of presidential removal authority. Anyway, the idea that Article II entitles the president to remove executive officers at will, and also broader visions of unitary executive theory, those I think have become the party line in Republican legal circles and have been the party line since at least the early 1980s. And they also found their way to the Supreme Court.
One thing about the Supreme Court is that when vacancies arise, the president nominates people to fill them. As unitary executive theory became more prominent in Republican legal circles, it also became important in Supreme Court nominations. I don’t think it’s an accident that both of George W. Bush’s Supreme Court appointees, Chief Justice Roberts and Justice Alito, had worked as lawyers in the executive branch and were strong believers in the unitary executive theory. And I don’t think it hurt Justice Kavanaugh’s chances that he, as a judge on the D.C. Circuit, had been a strong proponent of unitary executive theory. I think President Trump would have liked that.
So I think it has kind of filtered from Reagan era Republican circles to the modern Supreme Court, perhaps for political reasons as well as for legal reasons.
Okay, so political as well as legal reasons, it became an article of belief. I mean, it may have had these political origins, but my sense is that the conservatives who are believers in the unitary executive have a kind of theological commitment to it almost. So this theory, through some of the mechanisms you mentioned, Caleb, makes its way into Supreme Court jurisprudence, but it culminates in the Slaughter case where the Court held last summer that the president had the power under Article II to remove two Democratic commissioners of the FTC without regard to their statutory for-cause removal protections. And you’re very critical of the decision. You have a long and complicated argument, but if you could just hit the high points and tell us what the main arguments were about why this was perhaps a poor interpretation of Article II.
(4:38) Sure. So my criticism is partly about timing. Even if you think there’s a stronger case for unitary executive theory than I do, this is an extraordinarily dangerous time, I think, for the Supreme Court to upend precedent and to move in that direction.
And my criticism is also about history. Chief Justice Roberts keeps repeating claims about the First Congress that I’m pretty sure aren’t true and that scholars have, I think, debunked. But let’s just focus on the text of the Constitution for now.
There are two sentences in Article II of the Constitution that could be read to support Chief Justice Roberts’s position. The first is just the opening sentence of Article II, the Vesting Clause, which says, quote, “the executive power shall be vested in a president of the United States.” And the second sentence that I’ve mentioned is the Take Care Clause, which says the president, quote, “shall take care that the laws be faithfully executed.”
Those are pretty general sentences. I’m not sure that they should be understood to provide as many details about personnel practices as advocates of unitary executive theory suggest. In fact, Article II really doesn’t say much about the structure of the executive branch.
That’s at least partly because Article I of the Constitution explicitly gives Congress the power to make all laws that are necessary and proper for carrying into execution not only Congress’s own powers, but also, quote, “all other powers vested by the Constitution in the government of the United States or in any department or officer thereof,” including the executive power. In part because of that clause, there’s widespread agreement that the Constitution doesn’t authorize the president to create offices, even for people who would help him execute the laws. That’s up to Congress.
Congress can decide whether to create particular offices and how to organize those offices into broader agencies or departments and what powers and duties to give the people who hold those offices. If and when Congress does create offices, the Appointments Clause addresses how people are appointed to fill them. And the Commission Clause adds that the president, quote, “shall commission all the officers of the United States.”
So when somebody has been appointed to an office pursuant to the Appointments Clause, the president has a duty to issue a commission. I think it’s pretty clear that when Congress has created an office by statute and when somebody has been properly appointed to that office pursuant to the Appointments Clause and has received his commission from the president as required by the Commission Clause, the officer can exercise the powers that the law validly assigns to the office. And that’s true even if those powers are executive for constitutional purposes.
What about removal? Nothing in the Constitution specifies that once an officer has been appointed to an executive office pursuant to the Appointments Clause and once the president has issued the commission that the Commission Clause requires, the president can always terminate the appointment and can always revoke the commission. Aside from its provisions about impeachment and conviction, the Constitution doesn’t say anything about removal at all.
I would conclude that just like the Necessary and Proper Clause lets Congress specify other details about the structure of the executive branch and the characteristics of the offices that Congress creates by statute, so too Congress gets to regulate the tenure of those offices as it deems necessary and proper for carrying the executive power into execution. Rather than getting into the weeds of the ambiguities that I see in the Vesting Clause and why I don’t think it has to be understood in the way that unitary executive theorists suggest, let me highlight just a couple of big picture points that I think are suggestive. The first point is about administrative agencies.
Everybody agrees that Congress can try to promote good decision making in agencies by regulating administrative procedures and establishing rules of evidence and requiring the agencies to make the decisions that they make on the basis of certain statutory criteria and not other criteria. To promote proper application of the statutory criteria and hence to promote faithful execution of the law, Congress might sensibly think that the decision makers who are applying those statutory criteria should be subject to removal only for some causes, like failure to faithfully execute the law, and not others, like failure to protect the president’s friends or to punish the president’s enemies.
In my view, just like Article I allows Congress to try to create the conditions for good agency decision making by having statutory criteria that agencies are supposed to apply, so too I think the Necessary and Proper Clause allows Congress to try to create the conditions under which agency decision makers can actually apply those criteria instead of having just to do what the president tells them to do. That’s the first point, just a practical point.
If Congress can provide statutory criteria for administrative decision making, maybe it should be able to create the structures under which those criteria matter. The second point is about the enormous variety of tasks that count as exercises of executive power for constitutional purposes, at least as modern unitary executive theorists understand the concept of executive power. It includes all kinds of different authorities granted by statute, the authority to grant licenses of the sort that the law requires to operate a civilian nuclear reactor, or the authority to prosecute criminal defendants on behalf of the United States, or the authority to make procurement decisions, or to enter into contracts on behalf of the United States, or the authority to adjudicate disputes about social security benefits, or the authority to promulgate regulations establishing safety standards for motor vehicles, or the authority to manage federal buildings and other federal property, or the authority to dispatch security details to protect particular federal officials or former officials, or innumerable other things. From the standpoint of system design, there’s no reason to think that the decision-making structure should be the same for all of those various tasks.
For instance, one probably would want adjudicators to have more decisional independence than, say, treaty negotiators, but unitary executive theory reads the Constitution to put a single person in charge of all executive branch decision-making, no matter what that decision-making is about. To whatever extent the law confers discretion, unitary executive theory says that the president has to be in charge of that discretion, and unitary executive theory also suggests that within the executive branch, at least, the president gets the last word about whether the law confers discretion. That’s the structure that you might choose if you wanted to maximize the president’s personal authority, but I don’t think you would take that one-size-fits-all approach if you wanted the government to reach the best decisions, or even just to execute the law according to the instructions that the law itself supplies.
One feature of the Necessary and Proper Clause is that it allows Congress to establish different decision-making structures for different kinds of decisions. Given the complexity of modern government, that seems like a good design feature, one that I wouldn’t lightly read the general language of the Vesting Clause to discard.
(11:54) I have a whole bunch of questions to follow up on. Let me begin with the Necessary and Proper Clause. I’ve never really understood where one is supposed to draw the line between Congress’s necessary and proper power, which, as you say, has always been understood to allow Congress to create and structure executive offices, but doesn’t extend to removal authority. But I take it that, on the theory you just articulated, one could argue—or could one?—that Congress could, for example, make every department, including, say, the Justice Department, the Defense Department, have for-cause removal protections. Does that follow from what you said?
Yeah, let me give a two-pronged answer to that. The first relates to the 20th century settlement that I think was pretty stable when you and I were both in law school. The Supreme Court seemed to have settled on the idea that the president does get to fire the heads of executive departments at will, and maybe even some inferior officers like the postmaster in Myers, but the president isn’t entitled to the same unfettered removal authority with respect to administrative agencies like the Federal Trade Commission.
As modified by Chief Justice Rehnquist’s opinion for the Court in Morrison against Olson, that line depended on functional considerations. But I think the 20th century consensus would have been that Congress has power to establish for-cause removal restrictions for agencies whose tasks would benefit from them, but not for the attorney general or the secretary of defense. The president needs to be able to remove those people at will, and Congress can’t restrict that.
As a matter of first principles, I’m not actually sure that’s right. Chief Justice Taft’s opinion for the Supreme Court in Myers, I think, suffers from a lot of the same flaws as Chief Justice Roberts’s opinion in Slaughter. And while Humphrey’s Executor disapproved a lot of what Taft had said in Myers, I probably would personally be inclined to disapprove more.
Take the attorney general, for instance, the head of the Justice Department. Obviously, Congress hasn’t tried to insulate the attorney general from removal without cause, but that was proposed in the wake of Watergate. And I think we are again seeing why it maybe isn’t so great for the president just to be able to demand that the Department of Justice be run according to his dictates, so that criminal investigations and prosecutions might be used to harass the president’s opponents and to shield the president’s allies.
In his dissent in Morrison against Olson, which has become canonical in conservative legal circles, Justice Scalia spoke about criminal prosecutions as being just at the core of executive power, the executive power that the Constitution allegedly entitles the president to control. But historians have questioned that claim. And while Justice Scalia suggested as a practical matter that we don’t need to worry that his version of unitary executive theory would let the president demand prosecutions of his opponents because the administration would just pay too big a political cost for that sort of bad faith behavior, current events suggest that maybe Justice Scalia was overconfident about the fact that unitary executive theory wouldn’t lead to those problems. I personally probably come down where Daniel Webster did in the 1830s.
Here’s what he said in the Senate in 1835. Quote, “If Congress were to declare by law that the attorney general or the secretary of state should hold his office during good behavior, I am not aware of any ground on which such a law could be held unconstitutional. A provision of that kind might be unwise in regard to such officers, but I do not perceive that it would transcend the power of Congress.”
Maybe that position goes too far. Professors Gary Lawson and Jed Shugerman have a forthcoming article about the scope of the Necessary and Proper Clause as it relates to removal, and they suggest that giving the attorney general life tenure is not a necessary and proper means of carrying the executive power into execution, but I don’t know what they would say about lesser forms of removal protections like the for-cause idea that you mentioned, or giving the attorney general a four-year term with the possibility of removal only for some causes and not others, that sort of thing. So I guess the two-pronged answer is if Chief Justice Roberts hadn’t started to unsettle the 20th century consensus generated by Myers and Humphrey’s Executor in that case law, then attorney general and the secretary of defense and the secretary of state probably would be held to be removable at will.
As a matter of first principles, if we’re going back to how the Constitution ought to be understood, I’m not actually sure that’s right. The Necessary and Proper Clause maybe does give Congress the ability to make some judgment calls about whether the attorney general should be more insulated than the attorney general currently is.
So you’re right about the Watergate proposal, but it was rejected even in the 70s on basically Article II grounds.
It was, yeah. Griffin Bell wrote an opinion to that effect.
Bell wrote an opinion, and lots of progressive scholars who didn’t like what Nixon did came and testified and said, not a good idea. Maybe they were wrong about that, but also not allowed by Article II.
That’s right. And that certainly was contrary to the 20th century consensus that they were operating under at that time.
So what you call this mid-century settlement, that seemed to me to reflect all sorts of compromises having to do with the New Deal state and a bunch of other things. Just to be clear about this, it seems to me that that view of the Necessary and Proper Clause commits the opposite sin, kind of allowing Congress to really make the presidency—just shrink it down to nothing. If they can have a for-cause provision for the senior departments, let’s just say DOD and DOJ, and if they could impose, I don’t see any reason why under the theory they couldn’t impose an even higher for-cause standard. It seems to me it would be very hard for the president, at least in many contexts, to run the government. Is that an unfair way of looking at it?
The question maybe is what one thinks the executive power is and how much kind of independent policymaking authority one thinks that phrase conveys. I don’t really think it conveys independent policymaking authority. I think the executive power is at most the power to execute the laws, to carry out the instructions that the laws supply, using the means that the laws authorize.
It’s not like executive power, even as used in Article II, is sort of a defined quantity, a certain set of things that the president can do. The power to execute the laws depends on what the laws are, and I think Congress does have primacy with respect to what the laws are. So maybe I’m less troubled than you at the thought that the president might not have freewheeling authority to remove executive officers, even kind of cabinet level officers of the sort who have long been thought to be removable at will.
But I don’t want to insist on that point. That is, by 20th century historical standards, an extreme position that I think, as you say, goes to maybe the same lengths in the opposite direction that the unitary executive theory does in support of presidential power. I think the unitary executive theory is an extreme position in the other direction.
So if the Court had not started unsettling the 20th century settlement, I don’t think I would be writing about how we got to overrule the 20th century settlement and let Congress do whatever it wants to do. I do think that the Necessary and Proper Clause is an important source of authority for Congress that unitary executive theorists tend to overlook or minimize.
I agree with that completely. I’m just wondering if that purist argument goes too far. And let me just ask you how that view of the Necessary and Proper Clause squares with the take care duty, which is also invoked to support the unitary executive. I think the basic idea being it’s the president’s duty to take care to faithfully execute the law, and therefore he has to be able to control at least the removal, at least the principal officers who enforce the law, if not all the way down. On this view, does the Take Care Clause square with the Necessary and Proper Clause?
Again, the Take Care Clause, the duty to take care that the laws be faithfully executed, I think does depend on what the laws are. If the laws were to confer discretion on a certain administrative agency, I don’t think that the Take Care Clause naturally suggests, well, the president has to be able to control the agency’s exercise of discretion. I think the president could take care that that law be faithfully executed by just trying to ensure that nobody interferes with the discretion that the agency has by virtue of its statutory authority.
So I don’t know that the Take Care Clause necessarily tells us what the structure of decision-making in matters that count as exercises of executive power has to be. I think that the duty to take care that the laws be faithfully executed depends on what the laws are. With respect to removal, Jane Manners and Lev Menand have pointed out that even aggressive readings of the Take Care Clause don’t suggest that the president has to be able to remove executive officers without cause.
And for that purpose, I think cause could be defined pretty narrowly. So the cause that has to be available for removal would just involve failure to execute the law faithfully. That’s different from an officer’s failure to follow the president’s orders.
If the law gives discretion to the officer, I don’t think the president automatically gets to exercise that discretion himself by virtue of Article II or the Take Care Clause, or gets to direct how the officer has to exercise the discretion. And if Congress reasonably decides that the president should be able to remove certain officers only for certain causes and through certain processes, I think the president could comply with his duties under the Take Care Clause just by going through those processes when warranted. So I don’t think that the Take Care Clause provides a strong independent argument for unitary executive theory.
To me, the stronger argument for unitary executive theory relies on the Vesting Clause rather than the Take Care Clause. But I’m not persuaded by the Vesting Clause arguments either.
(22:45) Okay, let’s go back to Slaughter. It’s technically, I suppose, limited to the case before it. And the chief justice sort of said this at the end. He said it doesn’t extend to questions about officers not involved in the case. And the case was about commissioners of a multi-member, formerly independent agency. But the opinion was written in what I would say are sweeping maximalist unitary executive terms. Basically, the president has all of the executive power and has to be able to remove those who exercise the executive power. It’s a little more subtle than that, but not much more so. So I’m just wondering what you make of that, and how broadly—just as a matter of interpreting the opinion—do you, for example, think that it will extend to inferior officers, all inferior officers, some inferior officers that the president can remove? Is the civil service in jeopardy? And then we’ll get to other issues after that.
Yeah, so just to start, I agree with you. I think that Slaughter is written in a sweeping maximalist way. The tenor of the opinion and the logic of the opinion is very broad.
It is true that Chief Justice Roberts did include some lines like the one you mentioned. He said, “because the FTC’s activities fall well within the heartland of executive power, we have no occasion today to define the bounds of what such power entails.” Of course, that’s drawing a line between executive power and other things, not between, say, inferior officers and principal officers.
And his main examples of entities that he wasn’t addressing, at least in that section of the opinion, were federally chartered corporations like the Boy Scouts of America or Georgetown University that probably don’t exercise governmental power at all. If the edge cases that he has in mind that he’s not weighing in on are whether the Constitution entitles the president to fire Georgetown professors, then I don’t think he sees all that many edge cases. He did say that the Court was reserving judgment about, quote, “the permissibility of tenure protections for the judges of ‘non-Article III courts,’ such as the Tax Court and the Court of Federal Claims.”
The phrase non-Article III courts, that’s not clear language, but he certainly didn’t seem to mean that administrative agencies like the FTC that conduct adjudications are non-Article III courts for this purpose. And if I’m reading the tea leaves of the shadow docket and some denials of cert correctly, a majority of the Supreme Court seems to think that Article II also entitles the president to fire, say, the members of the Merit Systems Protection Board without regard to the statutory restrictions on that removal authority. I’d like to talk about the MSPB in a little bit.
You mentioned civil service, and I think the MSPB is crucial to enforcing civil service laws. With respect to civil service laws, I don’t know exactly what to predict about how far the Supreme Court will take these ideas. I think Chief Justice Roberts himself might be inclined to extend his opinion to all inferior executive officers, not just principal executive officers like FTC commissioners, but all inferior executive officers as well.
That would include some people who are covered by civil service laws. The civil service laws currently protect some people who are inferior officers and some people who are just mere employees. Maybe Chief Justice Roberts would allow those who are mere employees to remain protected by civil service laws, but maybe he’ll say that inferior officers have to be removable at will by the president if they exercise power that he considers executive for constitutional purposes.
For people like Chief Justice Roberts, who take a strong view of unitary executive theory, it’s also worth noting that the difference between at-will removal and removal for cause might not be all that meaningful. Even if Chief Justice Roberts allows Congress to protect certain government employees against removal without cause, he might think that the causes that justify removal have to include failure to do what the president tells them to do. And if you think the Constitution entitles the president to direct the activities of everybody who wields executive power, then failure to follow the president’s directions would provide cause for removal, and that starts to look a lot like removal at will.
So I think Slaughter is going to go pretty far. I read Chief Justice Roberts’s opinion to be quite sweeping, and it certainly goes farther than I would want it to go.
Okay. So you mentioned the Merit Systems Protection Board, and this gets us into some of the dangers of the unitary executive embraced by Slaughter. And the MSPB is one example, and I think it’s a great example because it’s an agency that a lot of people haven’t heard of, and yet if its members are fireable by the president and the president can effectively control it, it empowers the president in important ways. Just walk through that as a danger to connect that up to the civil service, if you like.
Sure. So the MSPB is a primarily adjudicative agency. In the words of a regulation that was promulgated in the 1990s and is still on the books, it, quote, “operates like a court.”
Federal employees who are protected by the civil service laws can ask the board to review personnel actions that they think are illegal, like if they’ve been fired without adequate cause or in retaliation for being a whistleblower, that sort of thing. The MSPB is also involved if an agency wants to fire one of its administrative law judges, an adjudicator within the agency. By statute, an agency can do that, quote, “only for good cause established and determined by the Merit Systems Protection Board on the record after opportunity for hearing before the board.”
Those are important adjudicative functions the MSPB performs. By statute, Congress has set up the MSPB to have three members, no more than two of whom can belong to the same political party, and they serve staggered and non-renewable seven-year terms. I assume the terms are non-renewable in another effort to try to protect the independence of the MSPB’s members.
The Civil Service Reform Act, the statute explicitly provides that members of the MSPB, quote, “may be removed by the president only for inefficiency, neglect of duty, or malfeasance in office.” So a pretty strong for-cause removal restriction. At the start of President Trump’s term, the MSPB had two Democratic members and one Republican member, but just two weeks in, President Trump fired one of the Democratic members, Cathy Harris, without identifying any cause.
She sued because that violates the statute, and a federal district court granted summary judgment in her favor. But even before Slaughter, the Supreme Court stayed the relief that the district court had ordered, so Harris was out while appeals proceeded. In the meantime, the other Democratic member’s term had expired, and he had left the board, so the MSPB was down to just one member out of three, and it lacked a quorum.
But in October 2025, President Trump appointed another Republican member, so the board now has two Republicans and no Democrats. Ultimately, a panel of the D.C. Circuit ruled in favor of the Trump administration in its appeal from the district court’s judgment in favor of Cathy Harris. Harris sought certiorari, and the Supreme Court held onto the cert petition pending its disposition of Slaughter.
But once the Supreme Court decided Slaughter, it just denied Harris’s petition, suggesting that the Court either isn’t willing or at least isn’t eager to distinguish the MSPB from the FTC, and consistent with that understanding, the current leadership of the MSPB is no longer describing the MSPB as an independent agency. For anybody who doesn’t like the spoils system or who supports civil service laws, that strikes me as a bad outcome. The MSPB adjudicates complaints by executive branch employees who say that they’ve been fired in violation of civil service laws. They’ve been the victim of prohibited personnel practices, which include failure to follow merit systems, retaliation against whistleblowers, and so forth—other things that political appointees might want to do.
As a policy matter, I think it is close to obvious that the president and his inner circle shouldn’t be able to threaten MSPB members that they’ll lose their jobs if they find that the president’s political appointees have violated civil service laws, even if the Court ends up holding that the civil service laws themselves don’t violate Article II, because it’s okay for Congress to provide employment protections, at least for mere employees as opposed to inferior executive officers.
The MSPB is less likely to apply the civil service laws faithfully, I think, if the president can just direct its decisions or can fire MSPB members who rule against the president’s wishes. If I were trying to identify a list of agencies that really, really, really should be insulated from at-will removal, the MSPB would be pretty high up on my list, so I think it’s quite disturbing that the Supreme Court seems to think that Article II entitles the president to remove members of the MSPB at will, which—I think the Court hasn’t explicitly held that, but those are the suggestions that I get from its shadow docket action and its subsequent denial of certiorari.
The danger, as you put it, is especially poignant or obvious now, because at the same time that the president is going to increasingly, I think, exercise control over the MSPB, he’s firing civil servants and pushing civil servants out and rearranging civil servants in a way that raises a whole host of legal questions that the courts have been saying have to go through the MSPB, which is now under the control, effectively, of the president. So it’s really those two things together, it seems to me, that highlight the danger here.
I agree with all that, but even apart from the MSPB, we are also seeing similar threats to the decisional independence of other agency adjudicators. Immigration judges, for instance, are a prominent example. Those are employed within the Justice Department in a sub-agency called the Executive Office for Immigration Review, EOIR.
And when President Trump started his second term, there were about 725 of them. In the first year alone, he fired more than 100. I think it’s now up to about 130.
And news reports suggest that the administration has selected immigration judges for firing based on their rates of granting asylum applications. Those applications are supposed to be determined on the basis of the evidence, and there’s regulatory guarantees of independence, although the statutes don’t provide as much decisional independence to immigration judges as some people might want. But I think it is pretty troubling, again, that the unitary executive theory seems to allow the president, as a matter of constitutional power, to remove agency adjudicators based on their decisions of particular cases and to threaten them with being fired if they don’t follow the party line in denying relief, even if they think that the applicable statutory standards require relief or support relief. That seems like a bad arrangement for agency adjudication to me.
Okay. So I urge the reader to read the last section of your article where you really go through a whole host of other executive branch entities, inspectors general, whistleblowers, other agencies, non-Article III courts, and talk about the potential implications of Slaughter for basically bad governance because of executive control that might be untoward, let’s just say. But I want to close by asking you something you said at the beginning and something you talked about in the paper, which is you said something to the effect of whatever you think of unitary executive theory in the abstract or normal times, this is an especially dangerous time for the Court to be embracing it, especially in the robust terms it’s embracing it. And so my question is, why? It’s a couple of questions. One, my sense is that the Court, as I suggested at the beginning, they really believe in the principle. And one might have thought that they would adjust it or narrow it or constrain it in the light of what Trump is doing. I can’t believe that many members of the Court love all of the things Trump is doing. I think it’s probably evidence of commitment to principle despite consequences. So just a couple of questions. One, I mean, how do you think about the legal principle versus adjusting the principle for consequence? And two, what is your explanation, if you have one, for why the Court has basically been indifferent to consequences, or seemingly so, except, of course, with this giant unexplained ad hoc exception for the Federal Reserve, where they were clearly focused on consequences, why have they been indifferent to them in other contexts? Do you have a view on that?
(34:31) Well, I was going to mention the Federal Reserve in response to your question, because it is, I think, an unprincipled exception to their unitary executive theory. They certainly don’t provide a good account, a satisfying account of why the Federal Reserve is different. To me, that suggests that consequences matter to them when they are sufficiently concerned about the consequences that they care about.
And I wish they cared about some other consequences, too. On the broader question of commitment to principle versus adjusting for consequences, I guess if you thought that the Constitution is just clear on this topic—there’s no ambiguity, and of course the president gets to remove all executive officers at will, and Congress can’t do anything about it—then I think you’d be more likely to adhere to that principle, almost regardless of consequences.
That’s not my understanding of the Constitution. To the extent that the justices have persuaded themselves that it’s the unambiguous meaning of the Constitution, I think they’re wrong. And to the extent that the Constitution is more indeterminate on this question, as I think it is, and as I think debates heading back to the time of the First Congress suggest people at the time of the founding thought there wasn’t a clear answer to this question, the more indeterminate you think it is, the more you might think, well, let’s think about whether the structure of government should look this way or the other way, right? Let’s think about consequences as we resolve the indeterminacy in the Constitution.
As a practical matter, unitary executive theory prevents Congress from using its authority under the Necessary and Proper Clause, which is an explicit provision in the Constitution, to create the conditions that it deems most conducive to the faithful execution of the law. Basically, Congress and all the rest of us are effectively told we have to trust the president to act in good faith, subject to the possibility that courts will occasionally reverse what he does if he gets things wrong in a way that the courts can correct. Maybe that wouldn’t be a disaster if the president and his inner circle were honestly trying to follow the law, but I think it’s very dangerous at a time when the president sees the law as a tool for getting what he wants, for other reasons, or as a cudgel that he can use against his opponents, rather than as a real constraint on his own behavior.
And sadly, I think those are the times that we are in. I do not think that President Trump cares much about law, except as a device for inflicting pain on others. And I think the others whom he wants to inflict pain on include critics of his administration and people whose activities would traditionally have been thought to deserve some protection.
And I do think we are heading into dangerous times, and I am not optimistic about how things will turn out, but I hope I’m wrong.
I hope you’re wrong too, and thanks so much, Caleb. It’s a great article.
Thank you, Jack. I appreciate the opportunity to be with you.
